Select Committee on Work and Pensions Written Evidence

Memorandum submitted by Disability Rights Commission


    —  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 policy options.

    —  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 their responsibilities.

    —  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 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.[49] Our work to date on Incapacity Benefit (IB) has developed from this framework of citizenship.[50] 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 participation;

    —  a fair balance between individual and employer responsibility; and

    —  access to support.

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.[51] 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.[52]

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.[53]

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).[54] 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 retain employment

  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).[55] 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.


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.[56] 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.

Work incentives

  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.[57] People with mental health conditions can fall outside of the specified conditions that confer exemption from prescription charges.[58]

  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.[59]

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)[60] 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 impairment.

  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.[61] 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.[62] 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 limits.[63]

  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 their IB.


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).[64] 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.[65] The proportion leaving benefit is up to 10% in pilot areas; far in excess of the international average of 1% across several OECD countries.[66] Most of these seem to be moving into work rather than onto other benefits.[67]

  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.[68]

  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.[69]

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 again.[70] 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.[71] 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, etc.

  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 work—so 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 left benefit.[72] 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.[73]

  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 undertaken);

    —  eliminating harassment;

    —  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 life.

  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 duties.

  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.


  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.[74]

  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 earnings—estimated to be in the region of £500,000.[75]

  53.  Research evidence shows that people most at risk of leaving their job are those with mental health issues and workers over age 45.[76] 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.[77]

Neil Crowther

3 October 2005

49   DRC, 2005, "Shaping the future of equality". Back

50   See DRC, 2004, "Conditions for conditionality"; DRC, 2004, "Equal citizenship and IB reform"; DRC 2005, "Shaping the IB reforms Green Paper: preliminary response from the DRC". Back

51   Following the European Court case of Botta v ItalyBack

52   Beyer S et al, 2004, "Working lives: the role of day centres in supporting people with learning disabilities into employment", DWP research report 203. Back

53   Dickens S et al, 2004, "Incapacity Benefit Reforms: the Personal Adviser Role and Practices", DWP research W212. Back

54   See for example Nottinghamshire County Council v MeikleBack

55   Butler, F, 2005, "Improving public services: Using a human rights approach", ippr. Back

56   See for example Seebohm P and Scott J, 2004, "Addressing disincentives to work associated with the welfare benefits system in the UK and abroad", Social Enterprise Partnership GB. Back

57   Mind, 2003, "The hidden costs of mental health". Back

58   Page 232, Disability Alliance 2005, Disability Rights Handbook, 30th edition April 2005-April 2006. Back

59   Stanley K with Maxwell D, 2004, "Fit for Purpose", ippr. Back

60   This is a diverse group, but includes people with a severe/progressive condition, registered blind or receiving the higher rate of the DLA care component. Some people in this category are likely to have aspirations to work. Back

61   Knight, T et al, 2005, "Incapacity Benefit reforms-the Personal Adviser role and practices: stage Two", DWP Research Report 278. Back

62   Seebohm P and Scott, J, 2004, "Addressing disincentives to work", SEPGB. Back

63   Scott, J, 2005, "Benefit barriers to implementation of patient and public involvement", report for the Social Care Institute for Excellence, Commission for Social Care Inspection and the Practice Learning Task Force. Back

64   DWP, 2005, Pathways to Work: presentation to the Welfare to Work Convention June 2005: Back

65   Knight, T et al, 2005, "Incapacity Benefit reforms-the Personal Adviser role and practices: stage Two", DWP Research Report 278. Back

66   OECD 2003 "Transforming Disability into Ability". Back

67   Coleman, N and Kennedy, L, 2005, "Destinations of benefit leavers 2004", DWP research report 244. Back

68   Knight T et al, 2005, "Incapacity Benefit reforms-the Personal Adviser Role and Practices: stage Two", DWP research report 278. Back

69   HC Hansard 22 June 2005 col 1076. Back

70   Social Exclusion Unit, 2004, "Mental Health and Social Exclusion", ODPM. Back

71   Dickens S et al, 2004, "Incapacity Benefit Reforms: the Personal Adviser Role and Practices", DWP research W212. Back

72   Stafford, B et al, 2004, "New Deal for Disabled People (NDDP): First Synthesis Report", DWP research W199. Back

73   HM Treasury, 2004, "Improved Work and Pensions Services", Press Notice A13, 12 July 2004. Back

74   Law v PACE Microtechnology. Back

75   Beart v HM Prison Service: EOR no 144 August 2005. Back

76   Burchardt T, 2003, "Employment retention and the onset of sickness or disability: evidence from the LFS longitudinal data sets", DWP in house report 109. Back

77   Bunt, K et al, 2001, "Recruiting benefit claimants: a survey of employers in One pilot areas", DWP research report 139. Back

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