Written evidence submitted by Rhydian
Fon James
SUMMARY
1. ESA is not fit for purpose. The system is
badly designed, in terms of eligibility testing and the process
of claiming the benefit.
2. WCA is not fit for purpose. The test for eligibility
does not work correctly, with many wrongly found fit for work
and a high percentage of appeals.
3. The appeals procedure is not fit for purpose.
People are automatically assigned to the lower rate of ESA while
appealing. This loss of income makes it harder to appeal.
4. WRAG is not fit for purpose. Unfair conditions
imposed so that many claimants must work for their benefits when
unfit to do so.
5. The Government is planning to time-limit ESA
to one year, meaning that claimants will be means-tested after
a year. If the claimant's partner or spouse works more the 24
hours a week, they will lose the benefit. This punishes working
families.
6. This response has been informed by evidence
from members of The Broken of Britain.
7. The submission is made on behalf of all the
disabled people in Britain who were unable to respond personally
to the consultation.
THE WORK
CAPABILITY ASSESSMENT
AND WORK-FOCUSED
HEALTH-RELATED
ASSESSMENT
8. Claimants must undergo the Work Capability
Assessment[41]
(WCA) and work-focused health-related assessment (WFHRA) to determine
whether they are eligible for a replacement benefit, employment
support allowance (ESA).
9. Over the next three years 1.5 million people
currently claiming Incapacity Benefit will undergo the Work Capability
Assessment, carried out by a medical and IT company, Atos.
10. A complex computer program will help a team
of "disability analysts" to rule on who is sufficiently
fit for work.
11. A computer-led assessment leads to the situation
where DWP decision-makers are sidelined when deciding on the eligibility
of claimants, merely approving decisions that are made by what
is a blunt and unsophisticated tool.[42]
12. The drive to reform IB has led to implicit
targets for caseload reduction, with expected savings of £1
billion over five years, even though the Government denies that
there are targets.
13. The estimated fraud rate for Incapacity Benefit
is 0.5%—the joint-lowest[43]
fraud rate in the benefits system according to the latest available
data - so why is this benefit seen as being so problematic?
14. Media focus on 859,000 people claiming sickness
and disability benefits for over 10 years, ignoring the fact that
sickness and disability is often a long-term problem.
15. The system has been in place for new claimants
since 2008, but will be expanded to retest all existing IB claimants
from the start of this month.
16. 11,000 existing claimants will be retested
every week.
17. The new test is much harsher than the old
version, and the Government expects to save £1 billion over
five years by bullying people into work, or failing that on to
a lower-paid benefit.
18. The combination of this hurried roll-out
and implicit targets is pernicious, as those reassessed earlier
on will face harsher tests from officials under pressure.
19. Speakers at a meeting[44]
between MPs on the Work and Pensions Select Committee and claimants
who were part of the pilot[45]
of ESA gave negative accounts of their experience of being tested.
20. The test has been vigorously criticised by
charities such as Citizens Advice and by a government-commissioned
independent review, saying that the process is impersonal, and
ill-equipped to gauge the seriousness of mental health conditions,
or the nuances of complex medical problems.
21. Many undergoing the WCA felt it was assumed
that they are lying or exaggerating.
22. The WCA is physically-oriented, and uses
a list of limited and disjointed "descriptors"—such
as the distance the claimant can walk and for how long they can
stand - to assign points.
23. Fifteen points are required for a claimant
to be declared unfit for work, with points "awarded"
on the basis of ability to do things like picking up a one pound
coin.
24. Written evidence including specialist medical
advice is all but ignored and the face-to-face assessment means
that only a "snapshot" consideration is made, disadvantaging
those with mental health problems or hidden conditions.
25. The WCA test is not fit for purpose, frequently
declaring people with serious health conditions fit for work on
the basis of how many points are scored.
26. During the preliminary roll-out of the test,
people with terminal cancer, multiple sclerosis and serious mental
illnesses have been found fit to work.
27. The health care professionals (HCP) who run
the WCA are not necessarily doctors, and may well have no knowledge
about the medical condition of the claimant they are assessing.
28. The majority of people find the experience
impersonal and find that the HCP does not listen to them.[46],[47]
They also feel that the WFHRA duplicates many of the steps in
the WCA.
29. People with mental health problems have complained
their condition is not taken seriously.
30. People with complex illnesses report that
the tick-box system is not able to cope with the nuances of their
problems.
31. One claimant has originally been given zero
points in the assessment, despite having multiple sclerosis, and
providing a letter from a surgeon stating they were too ill to
work
32. In pilots 30% fewer people have been found
unfit for work and 70% fewer people have been found eligible for
the full-rate, unconditional support benefit.
33. The second figure is particularly interesting,
as it suggests that the vast majority of those who had previously
qualified for full-rate support are likely to regain the ability
to work in the foreseeable future. These people will include those
with serious mental health conditions and learning disabilities
who are highly unlikely to be able to work.
34. A report[48]
commissioned by the Department for Work and Pensions found that
Health Care Professionals (HCP) wanted more supplementary medical
evidence to help them make decisions, and more discretion over
individual cases.
35. Prof. Paul Gregg, a prominent welfare reform
expert, recently told The Guardian that: "The test is badly
malfunctioning. The current assessment is a complete mess".[49]
36. Gregg, who helped design the new ESA, recommends
a further trial before it is introduced nationally.
37. Since early 2009, more than 240,000 cases
contesting the result of the health tests have been accepted for
tribunal hearings.
38. In total, 40% of claimants whose claims are
disallowed appeal the decision.
39. 40% of appeals are successful, with decisions
overturned at tribunal—this figure rises to 70-80% when
the claimant has representation.
40. When appealing a decision claimants are automatically
assigned the lower rate of ESA.
41. The loss of income for those on the higher
rate of IB made it more difficult to appeal.
42. A DWP-led review[50]
of the WCA led to The Employment and Support Allowance (Limited
Capability for Work and Limited Capability for Work-Related Activity
(Amendment) Regulations 2011.
43. This review, and an addendum[51]
by the DWP's Chief Medical Adviser, recommended a number of changes
which will increase the number of claimants placed in the Support
Group by 0.5%, but increase the number found fit for work by 5%.
44. The resulting changes will mean that: "For
example, an individual may no longer be entitled to ESA if they
cannot walk but can successfully use a manual wheelchair to mobilise.
This is expected to increase the numbers of customers assessed
as capable of work".
45. These changes[52]
are intended to increase the number of claimants found fit for
work by 5%, creating a new implicit target.
46. An independent[53]
review of the WCA by Malcolm Harrington, published in November
2010, found serious flaws in the way it was functioning and called
for major improvements.
47. The review highlighted the lack of empathy
built into the WCA, the fact that decision-makers were reduced
to rubber-stamping the output produced by the Atos-run computerized
test, that there was a lack of transparency about the test, and
that the test was failing to properly assess some conditions;
proposed a set of recommendations to remedy these flaws.
48. The Government has promised to implement
these recommendations, some politicians, charity workers and academics
think the roll-out is going ahead too fast
49. The process of re-testing IB claimants has
already begun at the rate of 11,000 people a week, with no sign
that the Harrington recommendations will be implemented.
THE WORK-RELATED
ACTIVITY GROUP,
LIMITED CAPABILITY
FOR WORK
AND CONDITIONALITY
50. Beyond the immediate issue of the WCA, the
work-related activity group is symptomatic of the deeper problem
in ESA.
51. The Work Capability Assessment (WCA), and
the Work-Focused Health-Related Assessment (WFHRA). can assign
people to the WRAG, where ESA is conditional on work-related activity,
and the Support Group, where the benefit is paid at a higher rate
and without conditions.
52. The decision on where claimants are assigned
is, ostensibly, made by a DWP decision-maker.
53. The Welfare Reform Act 2007 carries the message
that all ESA claimants must have a limited capability for work.
Work-related activity is, by definition, activity that is related
to work. If claimants are judged unable to work, it is not reasonable
to expect work-by-proxy.
54. People assessed to have limited capability
for work are placed in the Work-Related Activity Group, and those
assessed to have limited capability for work-related activity
are assigned to the Support Group.
55. Limited capability for work is assessed solely
by their ability to perform narrowly defined activities, which
is both unfair and unrealistic. The level of each activity is
measured by points which must reach a set total for entitlement
to benefit.
56. Chapter 42 of the DWP Decision Makers' Guide[54]
states, when discussing limited capability for work, that: "It
does not provide that a claimant with a variable condition that
incapacitates them for part of each day has LCW throughout the
whole of every day".
57. The WRAG is not clearly defined in terms
of purpose as a "rehabilitation" group and many claimants
placed in the group are unlikely to be "rehabilitated".
58. The WRAG is often thought of as the "group
for those who will eventually be fit for work" and the Support
Group for those who "will never be fit for work".
59. Chris Grayling, Minister of Employment, noted
during the 9th sitting of the Welfare Reform Bill Committee that:
"People in the work-related activity group are judged to
have some potential to return to work, either now or in future,
and they have an obligation to take part in work preparation activities"
[55]
60. An obligation to take part in work-preparation
activities is illogical and insidious when imposed on those who
are unable to cope with them.
61. Given the documented problems with the WCA,
assuming that claimants have been correctly distributed across
groups seems tenuous.
62. The ESA system itself seems confused on this
point, as claimants who are distributed to the Support Group have
been sent Atos forms following this decision, beginning the process
anew.
63. There are documented cases of a Support Group
claimants being automatically re-assessed, and being wrongly moved
to the WRAG as a result. This would seem to be a hidden conditionality
in what is ostensibly an unconditional benefit.
64. Reviewing claimants in the Support Group
is unhelpful to the claimant due to the stress caused, but is
also a waste of resources and time for the claimant and the taxpayer.
65. Most people distributed to the Support Group
will have clearly defined medical conditions that will not improve
and, in many cases, are likely to progress. As such, reviews are
unnecessary bureaucratic procedures.
66. The Department of Work and Pensions Impact
Assessment[56]
on time-limiting ESA tells us that: "It was never intended
that ESA for those in the Work Related Activity Group (WRAG) should
be paid for an unlimited period to people who, by definition,
are expected to move towards the workplace with help and support.
Government intervention is required to help ensure that ESA is
paid for a temporary period for those placed in the WRAG, thereby
encouraging a return to work and stopping people being trapped
on benefits for a lifetime".
67. People who have been assigned to the WRAG
include those who are too mentally ill, learning disabled, chronically
sick or physically impaired to be realistically assessed as being
able to work in the foreseeable future.
68. Very many severely disabled people who will
never be fit for work wrongly assigned to WRAG.
69. The Work-Related Activity Group seems spectacularly
unfit for purpose, as the group is dependent on work-related activity
being available for its members.
70. Given that these claimants will have limited
capability for work, it seems unlikely that potential employers
will be convinced by their capability, especially given the continuing
structural weakness in the labour market.
71. A DWP working paper found that: "some
aspects of the design of the system and the support available
were initially designed for conditions of labour market growth".[57]
This means that the system will struggle to support people into
work in the current economic climate.
72. Thus the conditionality imposed in this case
is not suitable, especially for those with variable conditions.
That is, the misapplication of financial penalties is a likely
but very unfair outcome for those whose symptoms change markedly
in severity over a period of weeks and months.
73. This combination of problems seems to raise
objections to the very concept of conditionality in this benefit.
74. The Work-Related Activity Group also covers
too narrow a criteria, with many former IB claimants being found
fit to work and thus denied the support that they need. Most IB
claimants will have a real illness or disability, even if the
WCA "proves" that they are capable of work.
75. Shifting such people onto JSA, alongside
healthy JSA claimants, is deeply unfair, given that employers
will choose the healthy worker over the ill or disabled. In this
case, a person deemed fit to work by the WCA will become trapped
by the conditionality of the JSA, and at the same time be denied
access to the employment support promised by the ESA.
76. A report[58]
commissioned by the Department of Work and Pensions found that
staff involved with ESA were concerned about process issues, such
as delays and IT problems, and more substantive issues such as
the allocation of customers to particular claim outcome group
(WRAG or Support Group).
77. A report[59]
commissioned by the Department for Work and Pensions found that
advisers felt that the scope for helping many claimants in WRAG
back to work was limited.
78. The same report concluded that providers
were targeting adviser resources explicitly on those closer to
the labour market, so that even those in WRAG are given limited
support unless they are very close to being fit for work.
79. A report[60]
commissioned by the Department for Work and Pensions found that
there are risks attached to the significant involvement of for-profit
organisations.
80. They are likely to follow profit maximisation
strategies shaped by contract.
81. Incentives and this may not necessarily deliver
what is best for clients, especially for those with greater barriers.
82. A report[61]
commissioned by the Department for Work and Pensions found that
several US interventions on "back-to-work" schemes for
disability benefit claimants have shown no impacts on caseload
size.
83. The Department for Work and Pensions knew
about all the potential problems with ESA before it was implemented.[62],[63]
They also knew what worked in terms of supporting people facing
disability barriers[64],[65]
into employment where possible and caseload reduction.[66]
Why did they proceed with disregard for the evidence?
April 2011
41 Library Standard Note, The Work Capability Assessment
for Employment and Support Allowance, SN/SP/5850. Back
42
Gentleman, Amelia, 2011. "The medical was an absolute joke",
The Guardian, 23 February. Back
43
Information Directorate, Fraud and Error in the Benefit System::
April 2009 to March 2010, Department of Work and Pensions, 2010. Back
44
Gentleman, Amelia, 2011. Work Capability Assessment is assessed,
and found lacking, The Guardian, 7 March. Back
45
Interim results of the Work Capability Assessments for IB reassessment
trial areas, Department for Work and Pensions. Back
46
Employment and Support Allowance: Findings from a face-to-face
survey of customers, 2010, DWP Research Report No 717. Back
47
Employment and Support Allowance: Customer and staff experiences
of the face-to-face Work Capability Assessment and Work-Focused
Health-Related Assessment, 2010, DWP Research Report No 719. Back
48
Ibid. Back
49
Gentleman, Amelia, 2011. New disability test "is a complete
mess", says expert, The Guardian, 22 February. Back
50
Work Capability Assessment Internal Review, Department of Work
and Pensions, October 2009 Back
51
Addendum: Work Capability Assessment Internal Review, Department
of Work and Pensions, March 2010. Back
52
The Employment and Support Allowance (Limited Capability for Work
and Limited Capability for Work-Related Activity (Amendment) Regulations
2011 Impact Assessment, Department of Work and Pensions, 2011. Back
53
Professor Malcolm Harrington, An Independent Review of the Work
Capability Assessment, London: The Stationary Office, November
2010. Back
54
Decision Makers' Guide, Volume 8 Amendment 6 - Employment and
Support Allowance, Chapter 42 - Limited Capability for Work and
Limited Capability for Work-Related Activity, Department of Work
and Pensions, February 2011. Back
55
PBC (Bill 154) 2010-11, c 384-385. Back
56
Time-limiting Contributory Employment and Support Allowance to
one year for those in the Work-Related Activity Group Impact Assessment,
Department for Work and Pensions, February 2011. Back
57
Early effects of the economic downturn on the Welfare to Work
System in deprived areas, 2010, DWP Working Paper No 83. Back
58
Employment and Support Allowance: Early implementation experiences
of customers and staff, 2010, DWP Research Report No 631. Back
59
Ibid. Back
60
Contracting out welfare-to-work in the USA: delivery lessons,
2007, 2010, DWP Research Report No 466. Back
61
Programmes to promote employment for disabled people: Lessons
from the United States, 2008, DWP Research Report No. 548 Back
62
The profile of exits from incapacity-related benefits over time,
2004, DWP Working Paper No. 17. Back
63
Welfare to work in the United States: New York's experience of
the prime provider model, 2009, DWP Research Report No 614. Back
64
Pathways to Work: the experiences of existing customers Findings
from a survey of existing incapacity benefits customers in the
first seven pilot areas, 2008, DWP Research Report No 527. Back
65
The impact of Pathways to Work, 2007, DWP Research Report No 435. Back
66
The impact of Pathways on benefit receipt in the expansion areas,
2009, DWP Research Report No 552. Back
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