Migration to ESA

ESA 58

Written evidence submitted by RSI Action

Summary

 

RSI Action has a number of concerns relating to ESA, and submitted evidence to the Work and Pensions Select Committee in September 2009. Since then we have been further concerned at the WCA changes proposed by DWP, and by further experiences of working with disabled benefit claimants.

The evidence and recommendations below relate to the specific issues which the committee are investigating, and include recommendations to improve both processes within DWP and their sub-contractors, and also within the Tribunal system.

RSI Action

 

RSI Action is a national charity (Registered Charity No. 1114977) focused on Repetitive Strain Injury conditions (RSI), which are frequently caused by work activities, and can result in a significant degradation in the capacity for work. RSI Action is a member of the Disability Benefit Consortium.

Evidence

 

The Department’s communications to customers going through the assessment and whether the information, guidance and advice provided by the Department and Jobcentre Plus is effective in supporting customers through the process.

1 No specific comment on this issue, although some of the points raised in other sections may have an impact on the Department’s communication and guidance (e.g. with respect to reliability repeatability and safety, and the details of WCA descriptors).

The Work Capability Assessment (WCA) including: the assessment criteria; the service provided by Atos staff; the suitability of assessment centres; and customers’ overall experience of the process.

2 RSI Action and other disability charities have repeatedly asked ministers and officials to include the consideration of reliability, repeatability and safety within the wording of the WCA Regulations, and within the wording of the WCA application form (ESA50). DWP Minister Lord Freud stated in the House of Lords debate to annul the WCA Regs (SI 228 2011) on 16th March 2011: "It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity." Although similar statements have been made by both ministers and officials from both the present government and the previous government, claimants and their advisers find that in reality this is often not the case.

3 Since the wording of most descriptors is for a single action or activity, and there is no guidance to the claimant that their ability to undertake the descriptor "reliably, repeatedly and safely" should be taken into account, claimants feel obliged to complete the WCA application form (ESA50) just considering a single action, without the consequences of pain or further disability.

4 We recommend that both the WCA Regulations and the WCA application form (ESA50) should specifically include the requirement to consider reliability, repeatability and safety when considering if the descriptors can be undertaken.

   

5 Some of the descriptors are completely absent from the WCA application form (ESA50), and others are missing important parts of the descriptor criteria. For example in the 2008 WCA regulations, scheduled 2 part 1, manual dexterity descriptor 6(a) "cannot turn a star-headed sink tap with either hand" is not included in the ESA 50. There are over 40 descriptors which are either missing completely from the ESA50, or where key aspects of the criteria are missing.

6 We recommend that all ESA applicants are provided with complete information on the WCA descriptors.

The decision-making process and how it could be improved to ensure that customers are confident that the outcome of their assessment is a fair and transparent reflection of their capacity for work. 

7 DWP have no mechanism for capturing the claimants view of his/her capacity to undertake the WCA descriptors. In fact as mentioned above many of the descriptors are not included in the questions within the ESA 50 (WCA application form). DWP does record the ATOS HCP recommendation on each descriptor, and also the decision-makers (DM) view on each descriptor. Consequently lacks the ability to check for descriptors where the HCP and DM decisions are frequently at variance with the applicant, and consequently investigate if there is a systematic problem or misunderstanding caused the variance.

8 We recommend that DWP should record the ESA applicant’s view on capacity to undertake WCA descriptors, and to identify any systematic differences between the Atos and the applicant’s assessment.

The appeals process, including the time taken for the appeals process to be completed; and whether customers who decide to appeal the outcome of their assessment have all the necessary guidance, information and advice to support them through the process.

9 We have encountered tribunals where the tribunal member has assessed the ability to walk 100m by asking the applicant if he could walk to a building visible from the tribunal room. However the tribunal room was 5 floors up, there was no ground, roads, or trees visible, just parts of large high rise buildings. The applicant had no means of assessing how far away the building was, or the scale of the landscape.

10 We recommend that tribunal’s should only ask questions where it is reasonable to expect the applicant to have the information or knowledge to provide an accurate response.

11 We have found significant delays involved in ESA tribunals which appear to result from some of the procedures adopted by tribunals. In one case, the first tier tribunal heard and disallowed the ESA case in mid September 2010, but over 30 weeks later we are still awaiting the necessary paperwork from the first tier tribunal to appeal to the upper tribunal. Two-days after the hearing we received the decision notice, advising that the first step for permission to appeal was to apply to the first tier tribunal for a statement of reasons (no mention in th tribunal bundle of a record of proceedings). We immediately applied, and received statement of reasons in mid-January 2011. However it referred to 20 pages of the case bundle which neither the applicant or the representative had been provided with, which we now know to be the record of proceedings. We immediately applied for the record of proceedings, which arrived at the end of February, however it was 20 pages of handwritten manuscript most of which was illegible. We immediately asked for a typed copy, which has not yet been received. Consequently in this case, more than six months after the first tier tribunal, the applicant is still unable the submit to grounds for appeal to the upper tribunal, furthermore the Tribunal service have not advised when they will be able to comply with our request for a legible record of proceedings, and the applicant has been denied ESA benefit since November 2009.

12 We recommend that tribunal’s should be required to make the statement of reasons, and the record of proceedings available to the claimant within 1 month of the request, and that the information provided to the claimant with the decision notice, should advise the claimant (and representative) that there are two documents they may wish to request (statement of reasons and record proceedings), so that both can be requested at the same time and both be provided within a single 1 month period. A one-month time limit would be compatible with the time limit which is allowed for the claimant to provide a case for appeal to the tribunal.

13 We understand that medical members of tribunal’s are not required by the Ministry of Justice to hold a GMC licence (although they are required to be registered by the GMC). Licensing for doctors was introduced in 2005 to ensure that doctors are up to date with their practice and knowledge, and are still suitable to continue their work as a doctor. The GMC are required to establish a system for relicensing (known as revalidation), but the responsibility of legislation determining which doctors must be licensed is delegated to primary or secondary legislation applicable to the work that the doctor is undertaking. In the case of medical members of tribunal’s, this is the responsibility of the Ministry of Justice. We understand that the Ministry of Justice has decided that medical members of tribunal’s are not required to be licensed. Whilst they will be registered, in many cases this will be a record of their academic achievements several decades earlier, and provide little if any confidence of their current medical experience and capability. Since medical members of tribunals have significant influence on determining disability benefits, it is reasonable that society and the individual claimants expect medical members to medically competence and up to date with their knowledge.

14 We recommend that medical members of tribunal’s should be required to be licensed by the GMC and therefore subject to medical revalidation.

The outcome of the migration process and the different paths taken by the various client groups: those moved to Jobseeker’s Allowance, including the support provided to find work and the impact of the labour market on employment prospects; those found fit for work who may be entitled to no further benefits; those placed in the Work Related Activity Group of the ESA, including the likely impact of the Department’s decision to time-limit contribution-based ESA to a year; and those placed in the Support Group.

15 We believe that time limiting contribution-based ESA to one year is both unfair and unnecessary. Some disabilities may be overcome, and enable some form of return to work after 12 months, but others may take much longer. Particularly where a worker has had 20 or 30 years contributing to society and the world of work, and then becomes disabled (possibly through illness or a work-related accident), it is unfair to limit his ESA to 12 months, if his incapacity is such that medically qualifies.

16 We recommend that if the provision in the Welfare Reform Bill 2011 to time-limit contribution based ESA becomes legislation, then provision should be made to monitor those cases which are time-limited, to determine the impact of this measure.

17 The DWP have no mechanism of identifying if ESA applicants who have been refused ESA benefit and found fit for work, have indeed been able to find and sustain work. Feedback from cases that have been moved from ESA to JSA should help to validate the current ESA criteria or identify corrective action.

18 We recommend that DWP monitor cases that are refused ESA and found fit for work, to either validate current ESA criteria or identify corrective action.

The time-scale for the national roll-out for the migration process, including the Department’s capacity to introduce changes identified as necessary in the Aberdeen and Burnley trials.

19 No specific comment on this issue.

Recommendations

 

· We recommend that both the WCA Regulations and the WCA application form (ESA50) should specifically include the requirement to consider reliability, repeatability and safety when considering if the descriptors can be undertaken.

· We recommend that all ESA applicants are provided with complete information on the WCA descriptors.

· We recommend that DWP should record the ESA applicant’s view on capacity to undertake WCA descriptors, and to identify any systematic differences between the Atos and the applicant’s assessment.

· We recommend that tribunal’s should only ask questions where it is reasonable to expect the applicant to have the information or knowledge to provide an accurate response.

· We recommend that tribunal’s should be required to make the statement of reasons, and the record of proceedings available to the claimant within 1 month of the request, and that the information provided to the claimant with the decision notice, should advise the claimant (and representative) that there are two documents they may wish to request (statement of reasons and record proceedings), so that both can be requested at the same time and both be provided within a single 1 month period. A one-month time limit would be compatible with the time limit which is allowed for the claimant to provide a case for appeal to the tribunal.

· We recommend that medical members of tribunal’s should be required to be licensed by the GMC and therefore subject to medical revalidation.

· We recommend that if the provision in the Welfare Reform Bill 2011 to time-limit contribution based ESA becomes legislation, then provision should be made to monitor those cases which are time-limited, to determine the impact of this measure.

· We recommend that DWP monitor cases that are refused ESA and found fit for work, to either validate current ESA criteria or identify corrective action.

April 2011