Migration to ESA

ESA 19

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 twenty 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 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 31st March 2011 we have represented 157 claimants at a first tier tribunal hearing [1] 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 PCA

9. Particular difficulties may arise for claimants who are currently exempt from the PCA. [2] 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 0 points under the physical criteria and 8 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, [3] 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 government has agreed to implement the recommendations of Professor Harrington’s first review of the WCA [4] 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’ - 9 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’. [5] 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 my 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

· 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 9 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 6 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 6 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.


[1] Excluding hearings which did not reach a decision.

[2] Social Security (Incapacity for Work)(General) Regulations 1995. Reg.10.

[3] ESA Reg 38(2).

[4] An Independent Review of the Work Capability Assessment, Prof. Malcolm Harrington. Nov 2010

[5] ESA Reg. 34, C1/95(IB), CSIB/17/96, CIB/14587/96 etc.