Question

I have been receiving regular payments over several years from an insurance-based Income Protection Policy. This comes as part of my employment package.

I also receive PIP benefit from the DWP – who accept that I have significant problems with both mobility and care. So I would have thought that this would be adequate on-going evidence of my disability.

The insurance company now want to send me for a functional capacity test to assess whether I am capable of working again. What will this involve?

Is this test a valid way of assessing capability for work if you have ME/CFS? And can I refuse to do so if I am not happy with the way I am going to be assessed?

Answer

A functional capacity assessment (FCA) or evaluation (FCE) is the health insurance equivalent to having a work capability test (WCA) for the DWP benefit known as Employment and Support Allowance (ESA).

The aim is to produce an assessment of whether you are capable of work, possibly with the help of any aids and/or modifications to duties and hours that could help you to return to employment. This can be in your normal workplace, or in some cases (depending on the small print in the policy) some other form of employment.

These assessments normally involve a detailed interview and physical examination. The interview, like the ESA WCA, will ask about your capability to carry out a range of everyday physical tasks such as walking, lifting, bending, standing etc– as well as other aspects of your health and disability.

The assessments are often carried out by companies that employ nurses, occupational therapists or physiotherapists and normally last for at least a couple of hours. In some cases they may take a half or even a full day. Whilst this type of assessment can be helpful in some straightforward conditions, there are a number of problems when it comes to complex medical conditions like ME/CFS where there is a combination of symptoms relating to ill health and disability that affect both physical and mental functioning.

In relation to ME/CFS, these assessments are often inappropriate and unfit for purpose for the following reasons:

1. They are frequently carried out by health professionals who do not have any practical experience of managing people with ME/CFS and may not be up to date on the management of ME/ CFS – in particular following the recommendations on management in the new NICE guideline – and issues such as prognosis.

2. They may not include all the key symptoms of ME/ CFS that are going to impact and interact on a person’s ability to work.

In particular:

• activity-induced fatigue
• cognitive dysfunction
• dysautonomia: orthostatic
• intolerance and PoTS
• pain
• problems with balance
• flu-like symptoms and
• generally feeling unwell

3. The physical task assessment is often restricted to whether a person can carry out a particular task on a one off basis and does not ask (which does form a key part of a DWP WCA assessment) whether the person can perform the task reliably, repeatedly, safely to themselves and to others, and in a timely manner.

4. There is often a failure to take into account that ME/CFS is a fluctuating medical condition where symptoms and disability are likely to fluctuate throughout
the course of a day, from day to day, and from week to week

5. The length and intensity of these assessments are not suitable for people with ME/CFS who, after travelling to an assessment centre, may then be only able to cope with an hour (or less) of interview and examination and will require rest breaks if the process extends beyond an hour.

6. The examinations may involve people being pushed to unacceptable levels of exertion when assessing physical capabilities. This will not only cause post-exertional malaise but can cause further long-term damage to health.

Some of these shortcomings were highlighted in the 2022 All Party Parliamentary Group Report on ME. This stated (on page 26) that:
…some health insurers have required people with ME to participate in inappropriate and potentially harmful medical examinations to determine their work
capabilities and assess their claims. These medical evaluations have included the Chronic Pain Abilities Determinant (CPAD) assessment which aims to measure physical and cognitive abilities through a series of tests involving physical exertion. This type of testing is unacceptable given that any activity
which stretches an ME patient beyond their energy limits can result in long term health damage over and above the short-term symptoms of intense pain
and post-exertional malaise.

So you need to ask some questions in writing, based on the points above, before you have your assessment.

If you conclude that the assessment is not going to be appropriate then you need to proceed very carefully. Simply refusing to take part could give the insurance company a good excuse to terminate the policy.

If you have had an assessment and you disagree with a report which says that you are now fit for work again, you have two options:
First is to check if there is an appeal procedure – which is normally the case. If so, you should consider obtaining an independent medical report from a specialist (such as Dr William Weir at 10 Harley Street, London W1) who sees people with ME/CFS and is used to preparing this type of medical report

Second is consider taking legal advice from a solicitor (such as Richard Brooks at RWK Goodman, or Brian Barr) who is used to dealing with disputes involving insurance companies and disability assessments for people with ME/CFS.

Further information

Academic paper from Todd Davenport and Margaret Cicolella on the scientific and legal challenges to functional disability assessments in ME/CFS: https://tinyurl.com/bd7cm8wb

Richard Brooks: richardbrooks@rwkgoodman.com

Brian Barr Solicitors website: https://brianbarr.co.uk

Brian Barr test case involving a CPAD assessment: https://tinyurl.com/h6s3ufyw