Migration to ESA

ESA 46

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 [1] (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 [2]

12. the drive to reform IB has led to implicit targets for caseload reduction, with expected savings of £1bn 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 [3] 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 £1bn 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 [4] between MPs on the Work and Pensions Select Committee and claimants who were part of the pilot [5] 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. 15 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. [6] [7] 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 [8] 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," [9]

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 [10] 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 [11] 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 [12] are intended to increase the number of claimants found fit for work by 5%, creating a new implicit target.

46. an independent [13] 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 [14] 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."   [15]

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 [16] 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." [17] 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 [18] 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 [19] 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 [20] 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 [21] 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. [22] [23] They also knew what worked in terms of supporting people facing disability barriers [24] [25] into employment where possible and caseload reduction [26] . Why did they proceed with disregard for the evidence?

April 2011


[1] Library Standard Note, The Work Capability Assessment for Employment and Support Allowance , SN/SP/5850

[2] Gentleman, Amelia, 2011. ‘The medical was an absolute joke’, The Guardian, 23 rd February

[3] Information Directorate, Fraud and Error in the Benefit System:: April 2009 to March 2010, Department of Work and Pensions, 2010

[4] Gentleman, Amelia, 2011. Work Capability Assessment is assessed, and found lacking, The Guardian, 7 th March

[5] Interim results of the Work Capability Assessments for IB reassessment trial areas, Department for Work and Pensions

[6] Employment and Support Allowance: Findings from a face-to-face survey of customers, 2010, DWP Research Report No. 717

[7] 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

[8] Ibid.

[9] Gentleman, Amelia, 2011. New disability test ‘is a complete mess’, says expert, The Guardian, 22 nd February

[10] Work Capability Assessment Internal Review, Department of Work and Pensions, October 2009

[11] Addendum: Work Capability Assessment Internal Review, Department of Work and Pensions, March 2010

[12] 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

[13] Professor Malcolm Harrington, An Independent Review of the Work Capability Assessment, London: The Stationary Office, November 2010

[14] 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

[15] PBC (Bill 154) 2010 – 2011, c384-385

[16] 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

[17] Early effects of the economic downturn on the Welfare to Work System in deprived areas, 2010, DWP Working Paper No. 83

[18] Employment and Support Allowance: Early implementation experiences of customers and staff, 2010, DWP Research Report No. 631

[19] Ibid.

[20] Contracting out welfare-to-work in the USA: delivery lessons, 2007, 2010, DWP Research Report No. 466

[21] Programmes to promote employment for disabled people: Lessons from the United States, 2008, DWP Research Report No. 548

[22] The profile of exits from incapacity-related benefits over time, 2004, DWP Working Paper No. 17

[23] Welfare to work in the United States: New York’s experience of the prime provider model , 2009, DWP Research Report No. 614

[24] 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

[25] The impact of Pathways to Work, 2007, DWP Research Report No. 435

[26] The impact of Pathways on benefit receipt in the expansion areas, 2009, DWP Research Report No. 552