Written evidence submitted by Oxford Welfare
Rights
Oxford Community Work Agency (OCWA)
is a local charity which has been providing specialist advice
on social security benefits for over 20 years. OCWA is funded
by Oxfordshire County Council and Oxford City Council. OCWA's
services are provided through:
Oxfordshire Welfare Rights
(OWR) - which provides "second tier" advice in
social security law including tribunal representation, a telephone
consultancy service to other statutory and non-statutory agencies
and training courses. The service covers Oxfordshire (and under
separate funding a telephone consultancy service for Hampshire
Citizens Advice Bureaux).
Barton Advice Centre (BAC)
- which provides a "front line" advice service primarily
for residents of Oxford City and surrounding area. This service
includes specialist welfare benefits and debt advice work.
SUMMARY
— The
Work Capability Assessment (WCA) process including the statutory
test is not fit for purpose.
— The
migration process should be suspended until such time as there
has been a quantifiable improvement in the application of the
WCA.
— There
is considerable scope to reduce the cost to the public purse of
poor decision making and the consequent volume of appeals.
— The
"limited capability for work related activity" criteria
should be further revised to take account of claimants with severe
limitations including those previously "exempt" from
the Personal Capability Assessment (PCA).
— The
WCA does not effectively identify those claimants whose condition
is such that they are unable to undertake work or work related
activity.
— Claimants
should not be treated as not having limited capability for work
and benefit stopped immediately following an initial failure to
attend a WCA examination.
— The
WCA must include a process by which appropriate evidence from
the health professionals treating the claimant is obtained.
— Healthcare
Professionals and decision makers should receive additional training
on the proper application of the statutory criteria and case law.
— The
DWP and the Tribunals Service should be required to produce a
submission and list a case for hearing within a statutory time
limit.
— There
is significant scope for the DWP to improve the process of revision
and the quality of such decisions.
— Monitoring
of the appeals process and appeal outcomes is required.
— The
permitted work higher limit rule should be amended to make provision
for claimants who do not have the capacity to undertake "full
time" work.
INTRODUCTION
1. In our submission the WCA process, including
the statutory test itself, is not fit for purpose and the migration
process should be suspended until such time as there has been
a quantifiable improvement in its application.
2. There is considerable scope to reduce the
cost to the public purse of poor decision making and the consequent
volume of appeals.
3. It is our experience that the most significant
problem with the application of the WCA is the limited accuracy
and appropriateness of the medical opinion provided by Healthcare
Professionals (HCP) on form ESA85.
REPRESENTATION AT
WCA HEARINGS
4. In the period from August 2009 (first hearing)
to 31 March 2011 we have represented 157 claimants at a first
tier tribunal hearing[21]
following a decision that they were "fit for work".
94% of those appeals have been successful. This reflects our previous
experience under the PCA from its introduction. We believe this
demonstrates that there are significant problems with the application
of the WCA.
MIGRATION
The Department's communications to customers going
through the migration process.
5. We welcome the more proactive approach to
the WCA process the department intend to apply during the migration
process.
6. We are concerned that in practice:
— The
process will not be sufficiently responsive to individual claimant's
needs and circumstances, for example, those with a significant
mental health condition.
— Staff
may be constrained by following a question and answer style script
during telephone or face to face contact.
— Staff
may not have sufficient understanding of the statutory and administrative
processes.
— Staff
may not have sufficient awareness of incapacity and disability
issues, be sensitive to individual claimants needs or have the
necessary skills to enable them to "tease out" relevant
information.
— How
claimants who were previously accepted as exempt from the PCA
will be dealt with, as many will have had no prior experience
of the PCA process and will have significant limitations on their
capacity to engage in the migration process or work related activity.
— Following
a decision that a claimant does not have limited capability for
work the emphasis may be unduly placed on claiming alternative
benefits and work seeking.
— Claimants
may not be given clear and accurate information about their right
of appeal, the appeal process or entitlement to receive benefits
as "incapable of work" pending a tribunal hearing.
7. Following a decision that a claimant is "fit
for work" it is our experience that claimants are often given
inaccurate information by staff at local Jobcentre Plus offices.
For example, that the claimant cannot continue to receive ESA
pending an appeal hearing and must claim JSA instead (or vica
versa).
8. Similarly claimants who have been found fit
for work but have made an appeal are being advised by staff at
the JSA new claims contact centre that they cannot claim JSA because
they have an outstanding ESA appeal. What is absent in each scenario
is a clear and accurate explanation of a claimants options and
what action they need to take.
Migration of claimants exempt from the Personal
Capability Assessment (PCA)
9. Particular difficulties may arise for claimants
who are currently exempt from the PCA.[22]
Only a limited number of such claimants are likely to be found
to have limited capability for work related activity (the Support
Group) because of the more restrictive criteria. However, they
are unlikely to attain a capacity to work in the foreseeable future.
Case example:
Mr H had a diagnosis of schizophrenia. He lived
in supported accommodation. He was previously accepted as exempt
from the PCA. At his most recent PCA examination the HCP's opinion
was an award of zero points under the physical criteria and eight
points under the mental health criteria which was confirmed by
a decision maker. A tribunal found that he remained exempt from
the PCA due to a "severe mental illness".
A complaint was made to Atos Healthcare about
the failure of the HCP to explore his symptoms and the impact
of the condition. The complaint was upheld at the Independent
Tier of Atos Healthcare's complaints procedure.
10. If significant numbers of claimants who were
previously exempt from the PCA are found only to have limited
capability for work this may lead to a perception that the process
of migration is unfair and will bring the WCA process into further
disrepute.
11. Recommendation: The "limited
capability for work related activity" criteria should be
further revised to take account of claimants with severe conditions
(including those exempt from the PCA) who are unlikely in practice
to be capable of engaging in work related activity, and who have
little prospect of obtaining and maintaining work in the foreseeable
future.
FAILURE TO
ATTEND
12. It is appropriate that claimants should ultimately
suffer sanction if they fail to attend a WCA examination when
directed. However, the current provision is harsh. It is unlikely
that significant numbers of claimants wilfully fail to attend.
Reasons for failing to attend are varied but are often linked
to the claimant's health condition, a misunderstanding of the
process or administrative problems at DWP or Atos Healthcare.
13. Whilst there is some protection within the
"good cause" provision,[23]
in practice there are long delays in the determination of good
cause by decision makers. This means claimants are left without
benefit for considerable periods. If good cause is not accepted
there will be a further delay while a new claim for ESA (or JSA)
is made and processed and a new date for a WCA is set. Frequently
claimants in this situation are left reliant on Crisis Loans for
income.
14. There is significant scope for DWP to be
proactive and establish why a claimant has failure to attend,
and where appropriate offer a further appointment, before they
are treated as not having limited capability for work. A claimant
should only be treated as not having limited capability for work
where their failure to attend is wilful.
15. Recommendation: Claimants should not
be treated as not having limited capability for work and benefit
stopped immediately following an initial failure to attend a WCA.
THE WORK
CAPABILITY ASSESSMENT
Changes to the WCA criteria
16. Migration will commence at the same time
that significant changes to the WCA criteria are introduced. Whilst
we note that the Government has agreed to implement the recommendations
of Professor Harrington's first review of the WCA[24]
there will not have been time to implement many of the recommendations
or for them to have "bedded down".
17. We suggest that the forthcoming changes to
the statutory test will not lead to a significant improvement
in the quality and accuracy of WCA assessments until issues of
its inadequate application are addressed.
Revised ESA50 questionairre
18. We note that a revised version of the questionnaire
ESA50 will be introduced alongside the revised WCA. The new version
repeats the shortcomings of previous versions including a failure
to include questions which relate to all of the points scoring
criteria within an activity (for example, activity 2(b) - "standing
& walking" - nine points). This means that at the earliest
stage appropriate information to address the statutory test may
not be gathered.
Additional medical evidence
19. The WCA process repeatedly fails to obtain
evidence that properly addresses the WCA criteria.
20. GPs and other healthcare professionals are
likely to be best placed to provide detailed evidence regarding
a claimant's capabilities. The form ESA113 is inadequate for this
purpose as the questions are neither specific to the claimant
or the WCA criteria.
21. Recommendation: a process by which
appropriate evidence from the Health Professionals advising the
claimant is obtained must be introduced into the WCA process.
Application of the WCA
22. The WCA is not designed to be a "snap
shot" test. It should be applied with reference to a claimant's
ability to carry out an activity with "reasonable regularity".[25]
Similarly the effects of, for example, pain, discomfort, fatigue,
side effects of medication etc. should be taken into account.
23. Recommendation: HCP's and decision
makers should receive additional training on the proper application
of the statutory criteria and case law.
Claimants' perceptions of WCA examinations
24. The majority of our clients comment, both
to us and before a tribunal, on the way in which the HCP conducted
the PCA or WCA examination. Their comments can be summarised to
include:
— HCP
did not listen to what I had to say/did not allow me to fully
answer the questions.
— Spent
the whole of the interview looking at a PC screen and using the
keyboard.
— Asked
leading questions and would only accept a yes/no answer - for
example, "you don't have a problem with this do you?"
— Asked
only general questions about daily life and did not explain or
ask questions about the specific activities in the statutory test.
— Concentrated
on physical health (clients with conditions affecting mental,
cognitive or intellectual functions).
— General
perceptions that the HCP was disinterested in the individual,
dismissive of the effects of their condition and were rushing
through the assessment.
THE APPEALS
PROCESS
Delays
25. It is our experience that the considerable
delays that had developed since the introduction of ESA with the
processing of WCA and PCA appeals by both Jobcentre Plus and the
Tribunals Service have recently begun to reduce.
26. In our experience during 2010 PCA/WCA appeals
took on average in excess of six months to reach a hearing with
the length of delay being similar at both the Jobcentre Plus and
Tribunals Service stage.
27. There must be concern that delays will increase
again as a substantial numbers of claimants migrating from IB/IS
enter the appeals process later in 2011.
28. We note and commend the recommendations of
the Administrative Justice and Tribunals Council (AJTC) recent
report - Time for Action - A report on the absence of a time limit
for decision makers to respond to social security appeals.
29. Recommendation: DWP and the Tribunals Service
should be required to produce a submission and list a case for
hearing within a statutory time limit.
Revision of a WCA decision by a decision maker
30. In our experience only very rarely will a
decision be revised by a decision maker following submission of
a revision application which includes further medical evidence.
There appears to be a culture within DWP that "the appeal
has been made, let the tribunal decide". This means that
many claimants unnecessarily endure the stress and delay of the
appeals procedure.
31. Recommendation: There is significant
scope for the DWP to improve the process of revision and the quality
of such decisions.
Repeat WCAs, failure and appeal - the "revolving
door"
32. We are currently assisting claimants who
had "failed" their first WCA assessment, had been successful
on appeal and have now been found "fit for work" under
a subsequent WCA. Accepting that some claimants' conditions and
capabilities may change, there would appear to be no procedure
within the WCA process that takes account of the outcome of a
previous WCA decision or appeal.
33. We have assisted many individuals through
the cycle of failed PCA and success at appeal on numerous occasions
over a period of years.
34. Whilst it is appropriate that claimants are
re-assessed periodically under the WCA the period between assessments
must be sensitive to their medical condition. Proper account must
be taken of possible improvement in a claimants ability to undertake
the prescribed activities and the extent to which undertaking
work related activity is likely to have any impact on their move
toward being "work ready" and therefore the frequency
at which the WCA should be applied.
35. The repeated "cycling" of claimants
through the WCA and appeal process will bring the WCA into further
disrepute.
36. Recommendation: detailed monitoring
of the appeals process and outcomes is required including:
— Delays;
— Revision
of decisions subject to appeal; and
— Reasons
why original decisions are overturned on revision or appeal.
— Outcomes
for claimants previously within the PCA exempt categories.
Case example
Mr B has a visual impairment. He was scored nine
points (activity 9D) by a HCP confirmed by a decision maker. He
appealed against this decision. Medical evidence from his consultant
confirmed his loss of visual fields was 75% and that the condition
was degenerative. The appeal was allowed on this evidence without
Mr B having to attend.
Within weeks of the tribunal's decision he was
again assessed under the WCA and only awarded six points (9E).
He again appealed. DWP refused to revise the decision stating
that it preferred the opinion of the HCP to that of his consultant.
His second appeal was allowed without him being required to attend.
PERMITTED WORK
37. The therapeutic value of work, paid or unpaid,
is well understood. However, the permitted work rules are structured
on the assumption that claimants who are receiving benefit but
undertake some part time paid employment will progress from "out
of work" benefits to "full time" work within a
relatively short period.
38. Claimants undertaking paid work within the
Permitted Work Higher Limit (PWHL) rule are currently faced with
a "cliff edge" after 52 weeks. At that point they either
have to be both capable of and able to obtain an increase in their
working hours or give up permitted work.
39. Many claimants undertaking PWHL are not capable
of increasing their working hours because of their condition.
However they do not require support within the Supported Permitted
Work (SPW) rule in order to maintain that work. Having to give
up the work after 52 weeks in order to retain benefit entitlement
can be detrimental to their health and undermine their long term
prospects of increasing their working hours.
40. Recommendation: The Permitted Work
Higher Limit rule should be amended (in advance of the introduction
of Universal Credit) to make provision for claimants who are not
ready to undertake work in excess of 16 hours per week.
Case example
The following case illustrates issues outlined above
for claimants who are exempt from the PCA and/or are undertaking
permitted work.
Mr B (age 42) was employed as a motor technician.
He had a brain haemorrhage (aneurysm) in 1998. He was awarded
Incapacity Benefit and Income Support. He was able to return to
some very limited paid work with his employer under the then "therapeutic
earnings" rule. The work he undertook was being provided
by an extremely supportive employer and was of very limited "commercial"
benefit to them.
He continued with this work following the introduction
of the permitted work rules. Following maladministration of the
permitted work rules by DWP his awards of IB & IS were terminated
in May 2010.
As a result of this termination he made a claim
for ESA. He attended a WCA medical examination in June 2010 and
the opinion of the HCP was an award of six points under the physical
activities. This was confirmed by a decision maker. Mr B appealed
against this WCA decision.
It was not possible to establish from DWP whether
he had previously been treated as exempt from the PCA although
he had never been required to attend a PCA examination. Medical
evidence confirmed that he would have met the exempt criteria
throughout the period of his IB/IS award but that he did not meet
any criteria to be placed in the ESA Support Group (limited capability
for work related activity).
His appeal was allowed by a tribunal and he was
placed in the Work Related Activity Group.
As a result Mr B is required to attend Work Focused
Interviews and will be faced with giving up his higher rate permitted
work after 52 weeks. Medical evidence confirms that his condition
will not improve and he will not be able to undertake work in
excess of 16 hours per week. He is working for a very supportive
employer and does not require additional support from an outside
agency to enable him to continue in this work.
To enable him to continue with permitted work
(which is clearly of significant therapeutic value to him) after
the 52 week period it is necessary to find an organisation to
support his work so he fits within the "supported permitted
work rule" even thought such support is not required in practice.
21 Excluding hearings which did not reach a decision. Back
22
Social Security (Incapacity for Work)(General) Regulations 1995.
Reg.10. Back
23
ESA Reg 38(2). Back
24
An Independent Review of the Work Capability Assessment, Prof.
Malcolm Harrington. Nov 2010 Back
25
ESA Reg. 34, C1/95(IB), CSIB/17/96, CIB/14587/96 etc. Back
| 
