Migration to ESA

ESA 37

Written evidence submitted by Citizens Advice


The Citizens Advice service consists of the national charity, Citizens Advice, and a network of local bureaux – all of which are independent charities. Together we help people resolve their money, benefits, employment and other problems. We provide free, impartial and confidential advice, and we use our evidence to influence policy makers, to improve the lives of our clients.

In 2009/10, Citizens Advice Bureaux in England and Wales advised 2.1 million clients on 7.1 million problems – an 18 per cent increase from the previous year. We advised on 209,641 enquiries about incapacity benefits, including 147,286 on ESA. Bureaux in Burnley have monitored enquiries from clients being reassessed on the pilot process, and we have designed an ‘ESA diary’ for clients to describe their experiences. We are therefore well-placed to comment on the subject of this inquiry.

The Department’s    communications to customers

DWP consulted stakeholders at each stage of the process, and the resulting customer journey shows evidence of this. Citizens Advice Bureaux in the trial area handled relatively few enquiries from anxious clients, suggesting that the telephoning of claimants at key stages in the journey was helpful and reassuring.

We do have concerns, however, about claimants who don’t have telephones. Vulnerable people, such as those with mental health problems or learning difficulties, are disproportionately unlikely to have telephones.

We understand from one claimant who doesn’t have a telephone that the letter from DWP gives an 0845 number for customers without a telephone. When the claimant rang it, the person who answered knew nothing about the arrangements of the trial, and offered no further help.

It is important that procedures are put in place to ensure that people who are hard to reach do not miss out on help and support that they are likely to need with the assessment process.

We also have concerns about the communication of the decision, and information on appeals, which we develop below.

The Work Capability Assessment

The process

A full assessment is made up of several stages:

§ Collection of evidence from the claimant about how their condition/disability affects their ability to function. Face to face assessments by HCPs are an inefficient and expensive way to do this.

§ Verification of the claimant’s condition/impairment and its level of severity. We believe that there should be greater reference to the client’s medical records, especially when there have been investigations by a consultant.

§ A decision as to whether what the claimant says about their level of functioning fits with what is known about that condition/impairment. The DWP Disability and Carers Service has built up a detailed database which describes the likely effects on functioning of a given level of condition/impairment.

The assessment and its descriptors

We consider that any assessment tool based purely on a functional assessment cannot fairly assess whether someone should be awarded sickness benefit. With a functional assessment, wherever the threshold is set, there will be people who meet the criteria for benefit but who could work – such as Professor Stephen Hawkins. Conversely, there will be people who don’t meet the functional criteria, but who cannot work.

A man in his late fifties who has done manual work all his life, has a physiological age of 80 years, struggles to walk more than 60 metres because of heart problems and emphysema, and is unlikely to live to draw a state pension, will be found fit for work.

A CAB in the South East saw a client who had to stop work as a cleaner because of severe breathlessness caused by emphysema. After his statutory sick pay ran out, he applied for ESA but was found fit for work. The bureau helped him to appeal this decision, and noted that the worry of appealing was exacerbating his breathlessness. Five months later - while the appeal was still pending - his son rang to tell the bureau that his father had died: the cause of death was a heart attack and emphysema.

The new regulations which came into force in April will restrict still further the number of descriptors under which people in this situation can qualify. They are likely to score points only under the walking descriptor, whereas at present they would probably score points under the walking, standing and bending descriptors.

A client of a Yorkshire bureau had cancer. He had had his oesophagus and part of his stomach removed, and was initially placed in the support group under the special rules.

After six months, he was sent for an assessment and placed in the work related activity group. He was awarded 9 points because he was unable to walk more than 100 metres and 6 points for not being able to stand for more than 30 minutes without needing to sit down. The bureau helped him to appeal, as his doctors still considered him terminally ill, but the decision maker refused to change the decision. The client died shortly afterwards, leaving his family feeling very angry that he was put through this stress in the last few weeks of his life.

Under the new regulations this man would have been found fit for work, as he would have scored no points for his limited ability to stand, and so would not have attained the necessary 15 points to be allocated to the support group.

As a result of the first year review, led by Professor Harrington, work has started on refining the mental, intellectual and cognitive descriptors for the WCA. The Professor has also asked Citizens Advice to report on whether the assessment could and should incorporate more "real world" elements, following our arguments for a "real world" test (see our report Not Working [1] ). Citizens Advice believes that the new regulations should be suspended until Professor Harrington reports back at the end of the second review year, and DWP have acted on his findings.

Customers’ experiences of the process

CAB clients report varied experiences of the manner and politeness of healthcare professionals (HCPs), but we consistently hear descriptions of the poor delivery of the assessment, including concentration on the computer rather than eye contact with the claimant; closed questions; lack of time given to answer fully; and repetition of ‘ just answer yes or no.’ In these conditions, it is impossible to take an accurate history that reflects variability, or general pain.

A CAB in the South West saw a client who was a barrister, but was unable to practise because of cancer and lymphoma. She described the assessment as like an "interrogation" led by a computer, held in a bleak assessment centre, by unprofessional HCPs. The HCP moved the client’s legs which caused her great pain, even though she had forewarned the assessor that this would happen. The client said she was shocked by the way claimants were treated and sent a complaint to ATOS.

This does not encourage clients to talk about sensitive topics:

One bureau described a client with learning difficulties who went for an assessment. He was awarded some points for physical limitations, but none for his learning difficulties and was found fit for work. One of the key reasons given was that he had found his way to the assessment centre on his own. When the CAB adviser asked him about this, he explained that he had got up very early, taken the bus to the town centre and then kept asking passers-by. He couldn’t follow instructions, so he would show the letter, walk in the direction they pointed, then ask again until he arrived at his destination. This man was very sensitive about his learning difficulties and had developed strategies for hiding them. The closed question "Did you come on your own?" clearly failed to elucidate this information. (CAB evidence enabled the decision to be overturned).

The accuracy of medical reports

Citizens Advice has had long-standing concerns about the lack of accuracy in ATOS reports. We have several years of evidence, including some extraordinarily inaccurate assessments. It is alleged that our evidence is selective and not representative, but CAB welfare rights workers consider this is a systemic problem.

To assess the extent to which these problems are systemic, Citizens Advice is surveying clients identified in advance of their assessments. Before the assessment, they agree to ask for their report afterwards. Once they have received their report, they check the accuracy of the record and the basis on which they were, or were not, found fit for work. Initial results confirm that there are significant mistakes in a majority of the reports, and serious errors in some.

Recommendation: We would like to see the reliability of the WCA tests independently measured, using the standard measures of the accuracy of any diagnostic or classificatory test (its false positives and false negatives), and research into the most accurate methods of assessment.

The role of UNUM

We are concerned about the apparent conflict of interest between UNUM’s role in the internal review governing entitlement to ESA, and their commercial interests as a leading provider of health insurance. There is clear potential for a financial motivation in undermining the benefit payable by the state, when someone is too ill to work.

The decision-making process

In our report Not working, one of our key recommendations was the need for a thorough consideration – and re-consideration - by the DWP decision maker (DM), not simply a rubber stamping of the ATOS recommendation. We are very pleased that this concern was taken seriously by both Jobcentre Plus and Professor Harrington, and there is now some movement on the issue. We hear from welfare rights workers that when strong evidence is presented, decisions are sometimes – though far from always - reconsidered in the client’s favour, without going to a tribunal.

In the recent trial of the process for the reassessment of incapacity benefit (IB) claimants, claimants were encouraged to send medical evidence with their ESA50 forms. DMs were also encouraged to take account of other evidence than that provided by ATOS. We welcome these steps, which we see as significant improvements. Ideally, we would like to see medical evidence - or evidence from other relevant professionals - sought in all cases.

We are concerned, however, that it is the claimant’s responsibility to produce such evidence. Some clients are unable to get such evidence because GPs frequently charge for the information. Someone receiving £65 /week for all their living expenses will not be able to pay £30 for a letter. A two tier system will emerge if those who can afford to pay for medical evidence are more likely to be found eligible for ESA.

The appeals process

In the recent trial, before the DM made the formal decision to find someone fit for work, they rang the claimant to discuss the assessment, to ask if the claimant disagreed with the conclusions about their level of functioning, and if so, whether they were likely to provide further supporting evidence. This call - named "touchpoint 13" - has the potential to be very positive, and to save claimants the stress of an appeal and tribunal hearing. However, we believe that safeguards are necessary to ensure that these calls do not become a mechanism to persuade someone that it isn’t worth appealing when they have a strong case.

If someone does have a good case for appeal, they stand a much better chance if they are represented. A client, or even a health professional, can often find it difficult to know what will be relevant:

An adviser from a CAB in Yorkshire saw a client who came to the bureau, astounded after losing her appeal at tribunal. She was too ill to attend the hearing, but had sent very strong letters from her GP, her consultant and her physiotherapist, all of whom had said very clearly that in their opinion, she could not work. The reason she had lost was that neither she nor the health professionals had realised that the tribunal did not need their opinion on whether she could work. The legal issue was whether she had been awarded the right number of points on the various descriptors, which the letters did not address.

The DWP has had to provide additional funding to the Tribunals Service to manage extra demand since the introduction of ESA in 2008, and the number of appeals is likely to increase again in the next few years because of:

§ the IB reassessment process

§ the time limit of one year for ESA(CB) for those in the WRAG

§ the introduction of a large financial difference between the support group and WRAG, when the welfare reform bill is enacted

§ the introduction of face to face assessments for PIP

We are very concerned that support through legal aid will no longer be available, so there will be a huge cutback in welfare rights workers. We believe that many more people will face the wrong decision, as a result of these cuts. There is likely to be more strain on the appeals service, and judges and doctors will be asked to spend more time helping unadvised and unrepresented clients.

Evidence of different outcomes for various client groups

Research shows that claimants who move off benefits and re-enter work generally experience improvements in income, health and well being. However, it is vital that someone is not forced into taking a job that makes their condition worse.

A client had his ESA stopped after being assessed and found fit for work. He had a congenital hip problem but had worked all his life as a plasterer. After a serious fall, he was in a great deal of pain and could not do his old job. His wife worked, but they struggled to manage financially since he had stopped work, and they couldn’t manage with the loss of his ESA as well. He felt he had no option but to take a job working in a supermarket, despite this work causing him severe pain and a resulting change in personality that nearly broke his marriage of over 30 years. He won his tribunal, but was very angry that the benefits system failed to support him when he most needed it, after having paid contributions all his life.

Others who have their benefits stopped may be faced with having no job at all. Research not only demonstrates the benefits of good work, it also demonstrates that:

"those who move off benefits but do not enter work are more likely to report a deterioration in health and well being" [2]

Limiting of ESA(CB) for those in the WRAG to one year

A number of people will not be eligible for income-based ESA after one year on contribution-based ESA, either because of savings, or because of other income in the household. This could typically be a drop in household income from, say, £500/week when the main earner was in work, to £150/week if a partner is in low-paid or part-time work. We are concerned that many more people will find themselves in the position of choosing between a totally unsuitable job which aggravates their condition, or having no income of their own and struggling financially. Many of these will be people who have worked and paid contributions all their working lives, but whose life expectancy means that they will not live long enough to draw a retirement pension.

We are currently conducting a survey on our website, of people who are claiming ESA(CB), are placed in the WRAG group, and have a partner who works, or have savings over £16,000. One very clear message already coming through, is that people feel betrayed because, after working for many years and paying their contributions, the system will not help them when they need it. Some respondents with mental health problems express their feelings of hopelessness if their benefit stops, and some say that they will end their lives. Most respondents are very worried about how they will cope:

One woman dictated her response to her daughter to send in: she and her husband both worked until she lost her sight. She is now unable to cope with all the everyday tasks unaided, and she is unable to leave the house safely on her own. Since she had to give up her job, they have struggled to manage financially, as her husband’s wages pay the mortgage and all the household bills, while her ESA pays for their family’s food and other expenses. Since she heard that her ESA is likely to be stopped, she says she has not stopped crying, as she thinks there is no way they can manage financially and they will lose their home.

Many of those found fit for work will not be able to look for work

We are also concerned for those who are found fit for work. The new descriptors for the WCA have been brought in with reference to a modern office environment, but with no reference to how someone could actually look for work. A person who can walk only 50 to 100 meters, has difficulty standing for long, and receives just £65 /week to live on, will have considerable difficulty getting to the jobcentre to sign on, getting to the library to do a job search, and getting to interviews – especially as they are likely to be reliant on public transport. While, in principle, reasonable adjustments have to be made, we fear that, in practice, many such claimants will find themselves sanctioned.

We think it is vital, as Professor Harrington has recommended, that research is rapidly undertaken to find out what happens to people who are found fit for work, or have their benefit stopped at the end of a year in the WRAG. We also think this research should examine whether people actually move further away from support and help – especially those who are not entitled to JSA - and are therefore less likely to move into work.

Implications for the national roll-out of the reassessment

We strongly recommend that the new WCA descriptors are not applied, at least until Professor Harrington has reported back at the end of his second year review.

We are already seeing some signs that shortcuts will be taken with the process, as the system struggles to manage the high volume of reassessments: the telephone call to new ESA claimants who are going to be found fit for work, is not being made by a decision maker. This means that the caller therefore simply explains the decision, without offering an informed discussion about whether the client may have other evidence. As outlined above, this is much more likely to result in pressure to drop an appeal and claim JSA, even if the client has a good case to take to appeal.

April 2011

[1] http://www.citizensadvice.org.uk/not_working

[2] Waddell and Burton (2006) Is work good for your health and wellbeing?