Written evidence submitted by Law Centre
Northern Ireland
1. ABOUT LAW
CENTRE (NI)
1.1 Law Centre (NI) is a public interest law
non-governmental organisation. We work to promote social justice
and provide specialist legal services to advice organisations
and disadvantaged individuals through our advice line and our
casework services from our two regional offices in Northern Ireland.
It provides a specialist legal service (advice, representation,
training, information and policy comment) in five areas of law:
social security, mental health, immigration, community care and
employment. Law Centre services are provided to over 450 member
agencies in Northern Ireland.
1.2 In this evidence we outline the significant
issues likely to be presented by the migration from incapacity
benefit (IB) to employment and support allowance (ESA), drawing
attention to the Northern Ireland specific issues.
2. THE NORTHERN
IRELAND CONTEXT
2.1 With a higher proportion of claimants on
IB than other regions in England or the devolved administrations,
the impact of the migration of claimants to ESA will have a particularly
greater impact in Northern Ireland. In Northern Ireland 8.6% of
the working age population are receiving Incapacity Benefit (IB)
compared to 5.2% in Britain. In Northern Ireland around 76,000
claimants will be subject to migration (ie approximately 500 claimants
every week for three years). The migration of IB claimants to
ESA has set an ambitious and arguably unrealistic timetable. We
are not convinced the Social Security Agency has the capacity
to manage this effectively within this timescale.
2.2 The DWP has estimated around 23% of claimants
will fail the Work Capability Assessment (WCA) test governing
migration. In practice, the early results from the Aberdeen pilot
suggest a failure rate of 30%. In addition, with the tightening
of the WCA test the expectation is that over 40% of new claimants
to ESA will also fail the test. This suggests that up to 17,500
claimants will join the unemployment register over the next three
years simply through the migration though some claimants who have
partners in work may drop out of the benefit system altogether.
Northern Ireland's employment rate of 66% is below the UK average
of 70.7% and is the lowest of the UK regions. The claimant count
rose in Northern Ireland in the last quarter of 2010 to 6.5% of
the workforce compared with 4.5% in GB.[30]
It is generally accepted by a number of economic forecasters that
Northern Ireland will come out of recession at a slower pace than
Great Britain.
3. WORK CAPABILITIES
ASSESSMENT
3.1 Where someone is found to have a limited
capability for work in this assessment, they will be moved (migrated)
onto ESA but of those found fit for work the Government expects
that:
— 50%
will move onto Jobseeker's Allowance.
— 20%
will move on to another benefit (eg Income Support, Carers Allowance
or re-claim ESA).
— 30%
will move off benefits altogether.
3.2 The first review of the work capability assessment
(WCA) carried out by Professor Malcolm Harrington was published
in November 2010. The review made 25 recommendations with the
Government accepting 21 of the recommendations (at least in part).
The DWP has published the "high-level timeline" for
work to be carried out over 2011 but only a quarter of the recommendations
seem to have been planned to be implemented before people on Incapacity
Benefits undergo a WCA from Spring 2011 at the rate of 10,000
per week. This will leave a flawed test operational at substantial
social and material cost through disabled people not receiving
appropriate support, high rates of appeal and an increased role
for support staff.
3.3 Law Centre (NI) has also been concerned about
the limited understanding of mental health problems in the assessment
process and the limited weight given to supplementary evidence
such as GP and carer's testimonies. Almost 46.6% of individuals
in receipt of Incapacity Benefit have mental or behavioural disorders
in Northern Ireland.[31]
We think that mental health issues need to be more specifically
focused on and addressed in the migration process.
4. DECISION-MAKING
PROCESS
4.1 We support the enhanced training of frontline
staff conducting the assessments. We are concerned about the capacity
of Health Care Professionals (HCP) carrying out the WCA. The Citizen's
Advice Report Not working has provided quantitative research
whereby claimants have reported "hurried medicals in which
the HCP does not look at them but at the computer screen".[32]
Similarly, Citizens Advice (NI) has highlighted delays in processing
claims which cause financial hardship for clients. Delays are
often caused by the loss of documentation supporting a claim or
a lack of communication or follow up from the Social Security
Agency.[33]
In addition, it is vital that Personal Advisers working with people
with disabilities and mental health issues have a good understanding
of the particular difficulties they may face and the impact this
may have on their health in returning to work. We welcome the
intention to develop personalised support delivered through JSA.
However, given the numbers likely to be transferred to Jobseeker's
Allowance we are doubtful whether this policy intention can be
carried through in practice. Moreover, we are particularly keen
to ensure that decision- makers employ an active role in making
decisions rather than rubber-stamping recommendations made by
Atos Healthcare.
5. OUTCOME OF
MIGRATION
5.1 Claimants who do not satisfy the terms of
entitlement to ESA at the point of transfer will not receive ESA
and their award of incapacity will also cease. Many of these people
will have been receiving incapacity benefits for a number of years
and will need to adjust to new criteria and assessment. We remain
unconvinced that ESA and Jobseeker's Allowance alone will be able
to offer the flexibility required of claimants in more complex
situations, for example when a claimant qualifies for support
under more than one category, such as a lone parent with caring
responsibilities.
5.2 Those found capable of work may be eligible
for Jobseeker's Allowance if they meet the criteria for entitlement.
We are concerned that there are not enough safeguards for these
people who have been found fit for work. We note that those who
become ill while on Jobseekers Allowance will have access to additional
support and flexibilities to help them return to work and through
agreement with a personal adviser those with more limited availability
to work and ability can restrict their search.
5.3 Our concern centres on those who are found
fit for work, but unable to find work, and who are ineligible
or unable to cope with JSA. A study carried out by the National
Autistic Society surveyed 500 people on the autism spectrum identified
that a third were neither in employment nor on benefits.[34]
We believe that more protection measures should be introduced
to ensure that ill and disabled people do not fall into benefit
deprivation and therefore poverty. In addition, those claimants
who come off Incapacity Benefit with, for example, a partner working
will fall out of the benefit system altogether. There is a need
to devise a strategy to ensure such claimants also have access
to support to find work and that what happens to such claimants
is monitored. Without such arrangements a considerable number
of claimants may be inadvertently written off, precisely the opposite
outcome intended by the reforms.
5.4 It also remains unclear whether the equivalent
of the Work Programme will be roled out in Northern Ireland. In
practice, we understand from the Department of Employment and
Learning that it will be at least April 2012 before any new arrangements
are put in place. In effect, we doubt that the challenge that
significant additional numbers moving to JSA who need considerable
support to get ready for work will be met in reality. The Work
Programme is seen as a crucial underpinning of the strategy of
welfare to work in Britain yet it will clearly not happen in Northern
Ireland for at least another 12 months at the earliest. We would
ask the Committee to highlight this situation in their report.
6. ROLL OUT
OF THE
SCHEME
6.1 We are not convinced that the timescale is
realistic to manage the roll out effectively within the timescale.
7. ABERDEEN AND
BURNLEY TRIALS
7.1 The IB migration trials in Aberdeen and Burnley
used a sample of 1,700 claimants. DWP has published statistics which
reveal that, in the Burnley and Aberdeen pilots, where people
are moved off incapacity benefits using the Work Capability Assessment:
— 30%
of former IB claimants entered the new Employment and Support
Allowance (ESA) benefit's support component (ie not required to
undertake any work);
— 40%
were found partially fit for work (ie have some significant underlying
health condition/impairment) and enter the ESA work-related activity
group; and
— 30%
were "fully fit for work" and go on Jobseeker's Allowance
(higher than the previous Government's 23% fully fit estimate).
7.2 However in examining the actual figures released
by the DWP in February 2011, the statistics relate to only 1,347
decisions when 1,700 claimants were assessed in the course of
the pilot. This means decisions have not been made (or released)
in over 350 cases. Also it is of note that 123 claimants from
the trials have already appealed the decision. Based on current
appeal success rates around 50 of these appeals will be upheld
- but this number may prove to be higher as these are all claimants
who were previously accepted as incapacitated.
7.3 It is of note that, in our understanding,
these claims were handled clerically, which means that DWP computer
software was not used for the trial and therefore will not be
tested until full migration starts. This is a further concern.
In Northern Ireland there are already significant delays in getting
cases to appeal tribunal hearings. This is likely to be exacerbated.
8. CONCLUSION
8.1 Welfare reform needs to take account of specific
Northern Ireland circumstances. The Law Centre encourages the
Committee to consider what is different about the circumstances
in Northern Ireland and the objective ramifications of the migration
from incapacity benefits to employment and support allowance for
claimants here.
8.2 Law Centre welcomes the opportunity to provide
evidence to the Committee. We trust you will find our comments
helpful. If there is any further way in which we could contribute
to this process we would welcome the opportunity to do so.
April 2011
30 Northern Bank, Quarterly Economic Outlook, November
2010 Back
31
Incapacity Benefit and Severe Living Allowance: Statistics DSDNI
November 2009 Back
32
Citizen Advice Bureau Briefing, "Not working", March
2010 pg 18 Back
33
Problems with ESA administration continue in Northern Ireland,
Citizens Advice comment on Rightsnet, www.rightsnet.org.uk 27
August 2010 Back
34
National Autistic Society (October 2009), Don't write me off:
make the system fair for people with Autism Back
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