Memorandum submitted by Disability Rights
The DRC's vision is of a society
where disabled people are equal citizens. To this end we are developing
four key criteria based on citizenship against which to assess
These criteria are that reforms should
ensure human rights and equality of opportunity are promoted;
a more flexible system that supports participation; a fair balance
between individual and employer responsibility; and that disabled
people have access to the support they need in order to take up
Benefit reforms need to address the
problems of "incapacity for work" being the basis for
eligibility and enhance work incentives. One benefit may be preferable
to two. Severity of impairment may not necessarily determine whether
someone might be able to return to work or not, and benefit rules
should enable disabled people to participate in public life.
The Pathways to Work pilots appear
to have been very successful in helping people return to work,
and the role of the personal adviser is vital in ensuring the
continued success of the pilots.
Efficiency savings will be a challenge
to Jobcentre Plus but we understand that savings should go towards
IB reforms. The disability equality duty should have an impact
on the way that Jobcentre Plus and its contractors deliver their
services, and attitudes to IB recipients could potentially fall
under this duty.
The role of employers is important
as evidence suggests that if they fail to make reasonable adjustments
people can claim IB as a result.
1. THE DRC'S
1. The Disability Rights Commission (DRC)
welcomes this opportunity to respond to the Committee's inquiry.
Our thinking in this area is developing and we hope to submit
further evidence once the Green Paper has been published.
2. The DRC was set up in 2000 to work towards
ending discrimination, to promote equality for disabled people
and to keep the law under review. The DRC's vision is of a society
where disabled are equal citizens. In the coming year we will
be developing a policy agenda for the next decade, based on this
vision. The "Disability Debate" is based on ideas about
citizenship, such as belonging and playing a part in society.
Our work to date on Incapacity Benefit (IB) has developed from
this framework of citizenship.
We aim to develop this framework to assess the Green Paper for
its contribution towards the goal of equal citizenship.
3. We are currently considering four key
criteria, based on ideas of citizenship, to frame our response
to the Government's proposals.
4. These are:
ensuring that human rights are met
(also relevant to the other three);
a more flexible system that supports
a fair balance between individual
and employer responsibility; and
Reforms should ensure that fundamental human rights
and equality of opportunity are both observed and promoted
5. The state has a responsibility to prevent
harm to its citizens and also has positive obligations to ensure
that individuals can enjoy basic rights such as a private life
and family life (such as carrying out specific roles like parenting).
Human rights also include obligations on the state to ensure that
measures are taken to enable an individual's personal development
and participation in society.
Similarly, the public sector duty to promote equality of opportunity
for disabled people introduced by the Disability Discrimination
Act 2005 will require public authorities to promote disabled people's
participation in public life (see also paragraph 26).
6. Current benefit rules can also prevent
people from participating, for example denying some people the
opportunity to work to their potential.
Government reforms in relation to disability,
work and incapacity benefits should result in a more flexible
and responsive system that supports participation in society
7. IB reform will be more effective if carried
out in conjunction with related policies, rather than in isolation.
For example, the Scottish Executive "Fresh Talent" initiative
to tackle population decline and future supply of skills in Scotland
will require the full participation of disabled people in the
Scottish economy. Changes to the benefit structure should be undertaken
in the context of the Prime Minister's Strategy Unit "Improving
the Life Chances of Disabled People" report. This means helping
people who want paid employment to achieve this without benefit
penalty, whilst also offering income and opportunities during
periods when paid work is not possible.
8. For example, consistent with the first
criterion (human rights and equality of opportunity), reforms
should also protect the right to participate for people with severe
impairments. Currently this may not have happened; some advisers
report a lack of knowledge and confidence in dealing with conditions
perceived as being complex and severe, such as mental health problems.
These reforms need to result in a fair balance
between promoting the responsibilities of individuals to consider
work and the responsibilities of employers to adopt best practice
under the law
9. Whilst impairments may not make work
impossible they may make job-search or paid work extremely difficult,
so it would be unacceptable to compel people to undertake the
same job-search obligations that are mandatory for recipients
of Jobseekers Allowance. However it is not unreasonable to expect
individuals to consider-work in the context of the support and
appropriate work available to them.
10. The current system lowers people's expectations,
so at this point in time some disabled people would not consider
that work is an option for them. The Government can tackle this
by changing expectations so that, over time, more people want
to work and are enabled to do so because of the support that is
available to them. This culture of low expectations may have had
a greater impact on existing benefit recipients, who may not have
had the support or the legal rights that can be available today.
For the future, the expectations and practice of GPs, Jobcentre
Plus and employers need to be raised to include paid employment
as an option for disabled people. The disability equality duty
is also important in changing attitudes towards IB recipients
(see also paragraphs 41-47 below).
11. Individuals have responsibilities, but
so do employers. Too many employers are still failing to adopt
best practice under the Disability Discrimination Act (DDA) when,
had they made some adjustments at an earlier stage, their employee
could have been able to stay at work (see also paragraphs 48-53).
Early intervention, including rehabilitation assistance, could
help to prevent people losing their jobs.
12. Demand-side initiatives include employer-employer
campaigns, as recommended by the Strategy Unit report "Improving
the Life Chances of Disabled People", and initiatives on
skills (such as the Ambition programme and the roll out of the
Employer Training pilots) could have a role in enhancing the skills
of disabled people as well as meeting employers' business needs.
Reforms also need to enable disabled people to
accept responsibility, by ensuring the availability of, and full
access to, the range of high quality tailored support with work
and everyday living that disabled people may need to gain and
13. If individuals are expected to take
on greater responsibility then others have a responsibility to
ensure the widest possible inclusion in mainstream services so
everyone "belongs". As many IB recipients will have
DDA rights, this means that service providers like Jobcentre Plus
therefore have responsibilities. These responsibilities will,
from December 2006, include a duty on public sector bodies to
promote disability equality (see also paragraphs 41-47). This
duty should be a tool to improve access to processes and procedures
such as making a new benefit claim, employment programmes. As
a public authority, Jobcentre Plus should also be developing a
pro-active approach under Human Rights Act obligations (based
on fairness, respect, equality and dignity).
This means that policies and procedures need to be reviewed against
human rights and disability equality objectives.
14. For example, if people have to undertake
more work-related activity in return for benefit, information
and services will have to be fully accessible and available from
Jobcentre Plus and its contractors to ensure this reciprocity.
15. IB recipients may also need additional
measures to enable them to carry out their responsibilities. This
might include assistance with communications or support workers
(from Access to Work or Direct Payments) or altering the timing,
pacing, or location of work focused interviews or activities to
help people with mental health issues (eg so as to avoid rush
hour travel). The kind of support that is offered in Pathways
also needs to be available nationally to coincide with national
benefit reform, to ensure equity of access.
2. REFORMS TO
Pathways to work pilots and IB reform
16. The success of Pathways to Work (see
paragraph 28 below) suggests that, with the right kind of support,
many people on benefit can return to work. However the basis for
the benefit ("incapacity for all work") means that activities
can cast doubt on someone's entitlement. As a result many people
fear losing benefit if they undertake work-related activities,
and current benefit rules deny some people the opportunity to
undertake work or study.
This contradicts our fist and second criteria. A reformed system
therefore needs to ensure that these kinds of activities are consistent
with the basis for entitlement.
17. There is limited information in the
Five Year Strategy about the detail of the new benefits, but the
reforms are an opportunity to tackle some of the disincentives
in the present system. One of the problems with time-limited "permitted
work" is that it may not deal very well with people with
fluctuating conditions. Having programmes and job broker/voluntary
sector support for individuals that can kick in at below 16 hours
a week (and can accommodate changes over time) could be important.
18. Similarly evidence from the Pathways
evaluation suggests that some people may be unlikely to be better
off in work because of the complexity of their situation, for
example having problem debts. As well as the interaction with
other benefits like Housing Benefit, some services (like Disabled
Facilities Grants) are means tested, so that leaving benefit may
mean that people have to pay charges for an item which was previously
free. Some people may also have to pay for prescriptions once
they move off benefit; this was a particular concern raised by
the DRC's Mental Health Action Group as medication could cost
significant amounts each week. A Mind survey suggested that about
two thirds of people surveyed paid around £68 a month for
care or treatment.
People with mental health conditions can fall outside of the specified
conditions that confer exemption from prescription charges.
19. Government may also need to look at
other policies which may prevent people working, for example some
social housing providers may have a clause in their leases that
prevent tenants from working.
A dual benefit
20. The Five Year Strategy proposals for
two separate benefits to replace IB could create more "boundary"
issues than under the current system. The proposal for the "Disability
and Sickness Allowance" (DSA) with access to work-related
activity on a voluntary basis, and the "Rehabilitation and
Support Allowance" (RSA) with some compulsory work-related
activity suggests that the boundary would rest on a judgement
about which groups of people it would be reasonable to compel
to engage in work-related activity. Existing claimants already
fear losing benefit; having two new benefits, one of which is
less conditional than the other, might reinforce reluctance on
the part of existing IB recipients to try out work for fear of
making a claim under the new system. For new claimants post 2008,
such boundaries could result in a rush to claim the less conditional
DSA. If circumstances change, individuals and administrators have
to change benefit rather than simply altering an action plan.
The suggested names also carry negative connotations. For these
reasons the DRC is not convinced that the reforms need to be implemented
via two benefits, and are inclined to support the view that a
single benefit (with a less loaded name) would be more appropriate.
Distinguishing between those who are able to return
and those who cannot
21. How to make the distinction between
people who can and cannot be expected to work or who face significant
obstacles is difficult, especially when the outcome of making
such a distinction results in different conditions of entitlement
and benefit levels. Often the need to claim benefit will depend
on whether employers have made adjustments to enable them to stay
in work (as noted in paragraph 11 above). There may also be a
distinction between changing the culture of expectations and methods
of distinguishing people for the purposes of compulsion. The Five
Year Strategy proposed a distinction between the two benefits
based on "severity" of condition. This can go against
the culture of expectations though may provide "protection"
for a group of people with severe impairments. However, there
are two potential difficulties.
22. Firstly, making such a distinction purely
on impairment grounds runs the risk of reinventing IB as two benefits
instead of one. For example, people who are currently exempt from
the Personal Capability Assessment (PCA)
could be steered towards the "DSA" without work-related
conditions, irrespective of their aspirations to work. Others
would then be directed towards a "RSA" with some work-related
conditionality, when in fact they may have fewer prospects of
work, or significant barriers that are not related to impairment.
23. Secondly, distinctions based on impairment
do not necessarily reflect likelihood of getting a job. The DRC's
Mental Health Action Group was concerned that that officials could
assume that someone with a diagnosis of "severe and enduring
mental illness" would be incapable of any sort of employment.
If work focused interviews and approved activities are an opportunity
for people to learn about what support is available to them, then
some people (such as those exempt from the PCA) are excluded from
taking up those opportunities for reasons solely related to their
24. So how the distinctions between mandatory
and voluntary claimants are made, and who makes such a distinction,
is crucial. It may be that, in determining whether it is reasonable
to compel someone to undertake work-related activity, the focus
needs to be on the circumstances of individuals rather than their
impairment per se. Obstacles can relate to individual factors
as well as external disabling environments, and these may need
to be differentiated and dealt with separately. The PCA can measure
someone's impairment but needs to be accompanied by an assessment
of its impact in a work environment so as to determine what support
and help is needed, including work adjustments. We would question
whether doctors are best placed to make such an assessment. If
the Capability Report, currently used in Pathways areas, is to
be the basis for the proposed "employment and support assessment"
other professionals (as well as the individual) may have a role
to play in making such an assessment.
Main areas of concern with the current system
25. A key issue is that the gradual introduction
of more work-related requirements calls into question the original
basis for the benefit (incapacity for work). People are placed
in a position of having to meet incapacity-related conditions
whilst also undertaking work-related activity. Recent Pathways
evidence suggests that some people have failed a PCA because they
attended a Condition Management Programme.
The Green Paper presents an opportunity to construct a new basis
for benefit entitlement, which allows people to undertake some
activity whilst legitimately remaining on benefit.
26. Given our first and third criteria (participation)
the DRC is also concerned that the current rules have prevented
people from taking up public appointments. For example, people
can be referred for a PCA if the activities involved suggest that
they might be capable of work.
Income-related benefits can also cease if remuneration from a
public appointment is over the permitted work limits or earnings
disregards. These limits can, in effect, preclude someone from
spending more than about four hours a week in activities relating
to a public appointment. Payment of expenses can also exceed the
27. Local councillors are treated more favourably,
as their entitlement to IB can continue without their incapacity
for work being in doubt, and their allowances only reduce and
not extinguish benefit entitlement. Otherwise someone taking up
a different form of public appointment can risk losing all of
3. THE FUTURE
The success of the Pathways to work Pilots
28. The Pathways pilots seem to have been
extremely successful to date. Compared with the rest of the country,
six times as many people have taken up the Choices package of
back-to-work help and twice as many people entered jobs (about
12,000 people by January 2005).
About 7,500 people enter the pilots each month, one in 10 volunteering
rather than entering through the mandatory process of work focused
interviews. There is some evidence that advisers have helped people
to progress towards work, though there was a group considered
by advisers to be harder to work with.
The proportion leaving benefit is up to 10% in pilot areas; far
in excess of the international average of 1% across several OECD
Most of these seem to be moving into work rather than onto other
29. Evidence about delivery can be interpreted
in a positive or negative light but on balance suggest that, even
if a return to work has not been possible, some people have been
able to progress towards work. Advisers have been able to help
some people to progress towards work, though there was a group
of people considered by advisers to be harder to work with.
30. The role of the personal adviser is
vital in delivering the pilot; most see their role as enablers
and emphasise moving forward at the customer's own pace, which
appears to be an important ingredient in the success of Pathways
to date. About 20% have failed to attend a work focused interview,
though advisers report that there are usually good reasons for
this and many advisers make contact before an interview is due
so as to reduce the likelihood of non-attendance. Non-attendance
can lead to a benefit sanction (ie a reduction in benefit). Although
advisers' views about sanctions are mixed, only a limited number
appear to have been imposed to date; between April 2004 and March
2005, only 182 sanctions were imposed.
Design for national rollout and benefits implications
31. Consistent with our fourth criteria,
national rollout of the kind of support available in Pathways
areas is needed so as to build in reciprocity within the system.
Put simply, individuals cannot be expected to meet their responsibilities
unless the relevant support and opportunities are available to
them (see also paragraphs 13-15 above).
32. Without more evidence from the evaluation,
it is difficult to be precise about the range of changes which
might be needed. We concentrate here on some of the changes that
could be introduced to help people with mental health issues.
33. Expectations of people with mental health
issues on the part of social care and employment providers tends
to be low, yet people with mental health issues are more likely
than many people with other conditions to want work, and more
likely to fear the impact of benefit rules on trying out work
Whilst the changes to linking rules announced in the Budget may
help, the benefit processes (action plans, interviews) need to
allow for fluctuations in conditions and other circumstances that
are common for claimants with mental health problems. For example
this might entail allowing people to take a break from their agreed
activities during crises, etc.
34. The DRC's Mental Health Action Group
was concerned that someone's non-attendance at an interview, or
failure to return a phone call, could be an aspect of their mental
health condition rather than a deliberate decision not to participate
in the process. The tone to be adopted when following up such
events would be crucial; personal advisers should be trained and
informed in how to make their service accessible to mental health
service users. For instance, finding out people's preferred mode
of communications (such as telephone or email) and then, if the
person did not turn up, initially using this form of communication
to contact them in an encouraging way to enable the person to
engage with the process.
35. There was also concern that the new
"customer management system" involved long telephone
conversations which could make participation difficult for some
mental health service users. Some may prefer to receive information
in writing rather than by phone.
36. The early evidence from Pathways suggested
that personal advisers appear to be waiving or deferring work
focused interviews more, including for people with mental health
problems, though individual advisers varied in their response.
More training and guidance might be needed as to when this is
appropriate or when reasonable adjustments should be made to the
process. People with "severe to moderate mental health problems"
were among the groups considered by Personal Advisers to be harder
to progress. This may relate to a lack of confidence among advisers
and assumptions that people are "insufficiently stable"
to benefit from training. It is unclear whether this is a fair
assessment by advisers about someone's condition at that time
(and if so whether a review was scheduled), or whether reasonable
adjustments could have been made there and then. Adjustments might
have included timing of interviews eg to avoid rush hour travel,
a venue chosen by the client, allowing extra time for interviews,
37. An "employment first" approach
is often more successful than recycling around work preparation
activities. Whilst condition management programmes may be helpful,
their effectiveness and relevance may be maximised by running
concurrently with work trials or other work-related activity.
Such programmes could be available to people receiving Jobseekers
Allowance or in workso as not to create perverse incentives
for those in work to drop out in order to access condition management.
38. People with mental health problems who
knew they would find it difficult to undertake paid employment
can also be nervous of undertaking voluntary work in case this
"proved" that they were after all capable of paid employment.
However, voluntary work could be essential for some people's well-being
and may help to prevent re-admission to hospital.
39. Evidence suggests that a good job match
(based on the individual's preference), together with rapid job
entry (with training on the job) and support once in work, is
crucial. Offering people the opportunity to select a job they
wanted to do could prevent drop-out and demoralisation. Research
into NDDP job brokers also found that people with mental health
problems encountered more problems sustaining work once they have
This suggests that there needs to be a good choice of fit between
the individual and the job to begin with, and that in-work support
(not time limited) needs to be routinely available.
40. The DWP's Five Year Strategy stated
that Jobcentre Plus will have to make efficiency savings resulting
in 30,000 fewer staff by 2008. This needs to be achieved without
compromising the level of support than can be offered by Pathways
advisers. A press release announcing the efficiency savings suggested
that such savings would be used to support IB reforms.
41. As noted in paragraph 10 above, the
role of Jobcentre Plus will be crucial in changing the culture
of low expectations. In particular, the Disability Equality Duty,
which will be in place by December 2006, should affect the way
that Jobcentre Plus and its contractors provide a service. This
duty represents a shift from a reactive to a proactive approach,
based on organisational change that involves anticipating the
needs of disabled people in advance (rather than waiting for an
individual to complain). The DRC is soon to publish a Code of
Practice. There will be a General and Specific Duty.
42. The General Duty will involve having
regard to the following:
eliminating unlawful discrimination
under the DDA (this could require reasonable adjustments to be
made to the claim process or the way in which assessments are
promoting equality of opportunity
between disabled people and others;
taking steps to take account of disability
even if this means more favourable treatment;
promoting positive attitudes towards
disabled people; and
encouraging participation in public
43. The Specific Duty will involve compiling
a disability equality scheme and impact assessments, involving
disabled people in the preparation and review of such plans. These
plans should set out what steps they intend to take to meet their
44. Secretaries of State and the National
Assembly for Wales will also have a duty to report on progress
within their relevant policy sector and an overview of proposals
for co-ordinating the work of the public authorities within this
remit. There will be a separate Code of Practice for Scotland
and coverage of equivalent Scottish Ministers and public bodies.
45. Impact assessments of a new policy should
be made before any new legislation is introduced.
46. The DRC will have powers of intervention
where organisations are deemed to be failing to meet targets.
47. IB recipients are more often portrayed
in the media as "scroungers" rather than disabled. However,
most IB recipients are likely to be defined "disabled"
under the DDA. As the disability equality duty involves the promotion
of positive attitudes towards disabled people, attitudes towards
IB recipients could potentially fall under this duty.
5. THE ROLE
48. Given our third criterion (reciprocal
responsibilities of employers) the DRC hopes that the Green Paper
will address how Pathways and other reforms could enable more
employers to meet their responsibilities.
49. Over one third of calls to the DRC's
Helpline concern employers failing to make an adjustment that
could keep someone in work. Some enquiries concern people who
have been dismissed or left their job, sometimes needing to claim
IB as a result. One caller with arthritis had exhausted his Statutory
Sick Pay period and so claimed IB as his employer had not made
any adjustments (such as redeployment or a change in job role)
and he was under threat of dismissal. Another person with Multiple
Sclerosis contacted the Helpline after his employer told him that
his contract would be terminated as he had reached the end of
a period on Statutory Sick Pay. He had submitted a medical opinion
advising that he could cope with part time hours but this was
later refused by the employer on the basis that to do so would
set a precedent, and only full time hours could be offered. We
do not always know the outcome of these enquiries if people are
represented by other organisations; there is a need for greater
capacity building for advocacy at a local level.
50. The DRC has also handled cases where
people have subsequently received IB because their employer had
discriminated against them.
51. One example is Mr Law, whose employer
refused to allow part time working in an alternative position
following redundancy, and then dismissed him because he could
not accept full time working. His dismissal led to a further deterioration
in his health (depression, hernia and a mild heart attack) which
he feels would not have otherwise occurred. Subsequently he claimed
IB for almost two years.
52. Another case was successfully taken
by Mrs Beart, who was dismissed following a period off sick with
severe depression, where the employer failed to make an adjustment
(redeployment) and dismissed her. Had redeployment have taken
place it was considered that she would have worked until age 62;
instead as she was likely to have difficulty finding similar employment
for the rest of her career, she has received a record compensation
which included future loss of earningsestimated to be in
the region of £500,000.
53. Research evidence shows that people
most at risk of leaving their job are those with mental health
issues and workers over age 45.
In particular, employers and providers have low expectations of
the abilities of people with mental health issues, which results
in their being twice as likely to lose their job and to stay on
benefit for long periods. Employers are less likely to want to
recruit someone from benefit who has mental health problems than
people with physical impairments or other groups of claimants
like lone parents.
3 October 2005
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See DRC, 2004, "Conditions for conditionality"; DRC,
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