House of Commons - Employment and Support Allowance and Work Capability Assessments

Employment and Support Allowance and Work Capability Assessments - Work and Pensions Committee Contents

3 Improving the claims process: DWP's role

Simplifying the process

18. Dr Litchfield considered the process for claiming ESA as part of his fourth review of the WCA. He recommended that, in the medium term, DWP carry out an impact assessment into changing the process so that DWP, and not the assessment provider, issues the ESA50 and decides whether a paper-based assessment can be completed or whether obtaining more evidence is necessary, either through a face-to-face assessment or seeking further documentary evidence. Where a paper-based assessment was judged to be sufficient, DWP would not then need to refer the case to the assessment provider.[23]

19. Dr Litchfield believed that the current system was "over-complex" and that "stripping out some of that complexity would help in speeding things up." This would also improve the process, because the DWP decision-maker would then be at the "front end", which would "reinforce the injunction that they are in control".[24] Dr Litchfield also suggested that changing the system in this way would avoid a "potential conflict of interests" that may arise from the provider of face-to-face assessments also making the decision about whether a claimant needed to be assessed face-to-face, for which it receives a payment.[25] DWP has agreed to carry out the impact assessment recommended by Dr Litchfield.[26] When we asked the Minister whether he considered it important to make a decision about whether to adopt this change before the new contract was drawn up, he told us "A lot of this will be in the contract."[27]

COLLECTING SUPPORTING EVIDENCE FOR CLAIMS

20. As part of this revised process, DWP would make the decision about whether further evidence was necessary and how best to obtain this. Currently, when a HCP assesses the ESA50 and any additional evidence initially provided by the claimant, they can decide to seek further evidence from the healthcare professional named on the ESA50 where they consider that "there is a clear possibility that an examination [face-to-face assessment] may be avoided".[28] We have heard evidence that they primarily seek this evidence from GPs, even though, as Mind pointed out, a claimant's GP may not always have the best insight into the effect of the claimant's condition on their functionality.[29] Aside from this, responsibility primarily lies with the claimant to obtain supporting evidence if they want it considered as part of the process. Claimants can have a number of problems obtaining this evidence, including health professionals charging for it, or even refusing to provide it.[30]

21. DWP has frequently stated that the claimant presenting further evidence at the tribunal stage is one of the key reasons for so many decisions being overturned on appeal.[31] When we put it to the Minister that DWP being more proactive in seeking the evidence at an earlier stage would address this problem, his view was that, whilst DWP would "help the claimant as much as possible […] at the end of the day the claimant is doing what it says on the tin; they are claiming a benefit."[32] We also heard that it not always clear to either claimants or care professionals what types of additional information would be useful and relevant to DWP and the assessors in coming to a decision.[33] The Minister accepted that "there is some work to be done" to make sure professionals know what evidence will be most helpful.[34]

PAPER-BASED ASSESSMENTS

22. Dr Litchfield believed that putting DWP at the forefront of the process in the way he suggested would increase the number of paper-based decisions, which would also result in "speeding things up".[35] In 2012, almost 62% of the new ESA claimants placed in the Support Group were assessed on paper only and around 68% of the decisions to place reassessed IB claimants in the Support Group were made without a face-to-face assessment.[36] A number of witnesses would like to see an increase in the amount of Support Group decisions which are made on paper.[37] Zacchaeus 2000 Trust (Z2K) pointed out that face-to-face assessments are distressing for claimants, and that more paper decisions where possible would save money and reduce the delays for face-to-face assessments.[38]

PAPER-BASED ASSESSMENTS AND THE WRAG

23. New ESA claimants can only be placed in the Support Group on a paper-based assessment; it is not possible for them to be placed in the WRAG without a face-to-face assessment. However, IB claimants being reassessed for ESA can be placed in either the Support Group or the WRAG without a face-to-face assessment. Between autumn 2010 (when the trials of IB reassessment began) and March 2013, 214,000 IB claimants were reassessed and placed in the WRAG without a face-to-face assessment.[39]

24. Z2K did not consider it to be "adequate" for claimants to be placed in the WRAG on the basis of a paper-based assessment. Parkinson's UK also criticised this process because it meant that the decision was not being made on the basis of evidence about the claimant's current state of health.[40] Iain Walsh from DWP explained that the rationale for the distinction between the use of paper-based assessments for IB reassessments and ESA new claims was that there "will be more written evidence available and relevant" about an IB claimant because of their existing claim. He did however emphasise that claimants would only be placed in the WRAG on the basis of paper-based assessment "when it is proper to do so".[41]

25. The current ESA process is too long and complex. We agree with Dr Litchfield that it would be improved if DWP itself, and not the assessment provider, issued the ESA50 and decided whether a face-to-face assessment and/or additional evidence was necessary. This would both speed up the process and put the DWP decision-maker at the heart of the process. We recommend that this change be implemented when the new provider starts delivering the WCA.

26. As part of this new process we recommend that DWP decision-makers (DMs) proactively seek additional evidence, from both health and social care professionals, rather than placing the onus to do this on claimants (although claimants should retain the right to submit evidence with their ESA50 if they wish to do so). DMs are best placed to know whether additional evidence is necessary, whereas claimants may not know what evidence would be most useful or from whom to seek it, and may not be able to afford the significant charges which some GPs and other professionals require. Although this change may lengthen the decision-making period and may incur some additional public expense, this is likely to be balanced by a reduction in the number of appeals, which are expensive, time-consuming and stressful for claimants. DWP should also make clear guidance available to both professionals and claimants on what evidence is most useful in the process. This guidance should explain that supporting evidence needs to set out how a condition affects a claimant's functional capacity. DWP might also wish to explore options for providing training on this for GPs and other professionals.

27. We also recommend that DMs give much more careful consideration to whether a claimant can be placed in the Support Group without having to undergo a face-to-face assessment. Paper-based decisions are quicker, cheaper and less stressful for claimants, and may well be possible for a greater number of claims than is currently the case. However, we do not believe that paper-based assessments are appropriate for placing people in the WRAG, as can currently happen with IB reassessments (but not ESA new claims), because moving a claimant to a lower level of benefit should be based on the widest available evidence, particularly given the additional job-search conditionality which arises from being in the WRAG. We recommend that DWP change this policy urgently so that IB claimants are not placed in the WRAG without a face-to-face assessment.

Frequency of reassessments

28. ESA claimants are reassessed at regular intervals, either on paper or face-to-face. DWP considers that reassessing claimants is important in order to

[…] ensure that they are receiving the support they need for their current capabilities and needs, and determine whether the impact of their health condition or disability has improved or worsened, and whether they have adapted to their condition.

The DWP DM decides when the claimant will be called for reassessment, and the "frequency of these repeat assessments will depend on the prognosis given by the health care professional at the previous assessment."[42] HCPs can give the following prognoses: 3 months; 6 months; 12 months; 18 months; within 2 years; and in the longer term.[43] According to DWP, the prognosis of when a claimant should next be recalled for a reassessment is not an indicator of when a claimant is expected to be fit for work.[44]

29. The issue of the timing and frequency of reassessments has been raised repeatedly by claimants, representative groups and by the independent reviewers.[45] It is disappointing that so little progress has been made. Dr Litchfield recommended that DWP consider a new reassessment period of five years for claimants in the Support Group "for people who have very severe incapacity resulting from brain disorders that are degenerative or which will not realistically improve." DWP's acceptance of this very limited specific recommendation was qualified by reference to it being "subject to the outcome of further scoping work".[46]

30. Professor Harrington believed that the frequency of reassessments was "illogical" and that the system did not take sufficient account of individual conditions. He believed that, with people with conditions such as Parkinson's, "you might as well leave it for quite a long period of time" before they are reassessed because "unfortunately, the chances are that the person will have deteriorated in that length of time". He acknowledged that the WCA was not a "diagnosis-based assessment", but argued that "for certain diagnoses, such as Motor Neurone Disease, you know what the outcome is going to be, so the clinician has to take that into account, even though they do not use diagnosis alone as the basis for the assessment".[47] The Minister told us that the frequency of reassessments is "something else we are looking at at the moment."[48]

31. In our 2011 report, we also pointed out that a number of claimants were being reassessed shortly after a successful appeal outcome.[49] Dr Litchfield recommended that DWP consider introducing a minimum period between a successful appeal and being called for reassessment. The Government agreed to consider the appropriate minimum period.[50]

32. We acknowledge that reassessments are a necessary feature of the ESA system, to ensure that claimants remain in the correct benefit group with the right level of conditionality placed on them. However, reassessments are occurring too frequently, particularly for claimants with progressive conditions and ones which are unlikely to change. They also often take place too soon after successful appeals. Unnecessary reassessments are distressing for the claimant and a waste of public money. We recommend that DWP implements the recommendations of the independent reviewers on reassessment intervals without further delay, and that it looks again at whether its current reassessment criteria are in the best interests of claimants and are a good use of public funds. A speedy decision on this would assist the new contractor to plan its work.

Communication with claimants

33. A number of witnesses criticised the way in which DWP and Atos communicated with them as being unclear and confusing. Advice Plymouth told us that claimants were "confused by the array of terminology which the DWP use when confirming which group they have been allocated to".[51] Dr Litchfield recommended that all ESA-related letters and forms be "comprehensively reviewed" to ensure that they meet "Plain English standard" and that "decision letters set out clearly what the outcome means for the person concerned". DWP has accepted this recommendation.[52]

34. Jason Feeney from DWP told us that "there is an awful lot of difficulty in terms of communication with such a broad range of people". He said that DWP was continually "updating" and "trying to review the letters" but pointed out that the legal basis for the decision has to be set out.[53] The Minister commented "I think that we would all agree that we can try to use more user-friendly language, but it is a very technical benefit, and that is part of the problem." He believed that "the language that we are using in our letters has improved" but acknowledged that "it is not perfect, and we need to make sure that we improve it more."[54]

35. DWP pointed out that one of the ways it has improved communication with claimants is by introducing the "Decision Assurance Call". Instead of the claimant only being informed about the outcome of their claim in a letter, they first receive a telephone call from the DM who has dealt with their claim. These calls were an important part of the communication process as they offered an opportunity for decision-makers to explain the reasons behind the decision and to ask the claimant whether there was more information that needed to be taken into account. These calls were now reaching 85% of claimants compared to 35% last year. [55]

36. We welcome DWP's acceptance of Dr Litchfield's recommendation that all ESA-related forms and letters should be reviewed. We recommend that DWP improve the way it communicates with claimants, both in writing and in telephone calls. It should ensure that forms, including the ESA50, and letters are user-friendly and in plain English; the language used should be clear, with explanations of the more technical terms; and confusing legal explanations should be in footnotes or annexes rather than the main text. The terms "limited capability for work" (for those placed in the WRAG) and "limited capability for work-related activity" (for those placed in the Support Group) are very confusing for claimants. We recommend that DWP finds more meaningful terminology to use in explaining decisions on ESA claims to claimants.

COMMUNICATING WITH CONTRIBUTION-BASED ESA WRAG CLAIMANTS

37. Since 30 April 2012, contribution-based ESA claimants placed in the WRAG have been able to claim the benefit for a maximum of 365 days (including time spent in the assessment phase while the claim is being processed). There is no time-limit on claimants in the Support Group or on income-based ESA in the WRAG.[56] We expressed concerns about the implications for claimants of the Government's decision to restrict ESA in this way in our 2011 report.[57]

38. Witnesses in this inquiry identified that contribution-based ESA claimants placed in the WRAG often failed to appreciate what this meant in terms of their benefit coming to an end or the options for challenging the decision.[58] Claimants have a month to request mandatory reconsideration and then to appeal;[59] but if these claimants do not understand that their benefit will come to an end, they may not realise until it is too late that they could have appealed to be placed in the Support Group instead. Citizen's Advice believed that, if the Department persisted with this time-limit, its consequences should be clearly communicated to claimants, including information on the right to appeal.[60]

39. Communication with contribution-based ESA claimants placed in the WRAG is particularly important because they need to understand that their ESA will terminate after a year. The consequences for claimants of the 12 month time-limit and the options available to request mandatory reconsideration of the WRAG decision and to apply for income-based ESA at the end of the time-limit should be clearly set out. We recommend that DWP ensure that these claimants receive specific and clear information on the implications of this claim outcome, including when the time-limit starts and when it will end, both in the decision letter and in the Decision Assurance telephone call.

Appropriateness of the WRAG for people with long-term conditions

40. A number of witnesses were concerned that claimants with progressive conditions, and a prognosis that they were unlikely to see a change in their functional ability in the longer term, were being inappropriately placed in the WRAG. Between October 2008 and September 2013, 11,800 new ESA claimants and 73,100 IB claimants assessed for ESA were placed in the WRAG with a prognosis of "two years or more".[61] DWP has explained that "a prognosis of two years or more is defined as unlikely in the longer term."[62]

41. As noted above, Atos HCPs give "prognosis period advice" about when they think a claimant should be recalled for reassessment, based on "when there would be reason to expect a change in the claimant's functional abilities".[63] A number of organisations representing those with progressive conditions point out that DWP guidance recommends that claimants should be given the prognosis of a change being unlikely in the longer term where the assessor finds "a substantial degree of functional impairment resulting from a serious medical problem which is chronic or will inevitably deteriorate further, even with optimal treatment."[64]

42. Donna O'Brien from Parkinson's UK questioned why people with progressive conditions were being put into the WRAG on the basis of this prognosis. She argued that anyone with a long-term prognosis should be placed in the Support Group.[65] Parkinson's UK, along with a number of other organisations representing people with progressive conditions, believed that these prognosis statements were "totally contradictory to the purpose of the WRAG", given that this group was for claimants capable of work-related activity, and who are expected to be fit for work in the future.[66] DWP has told us that it is looking into this issue.[67]

43. More than 80,000 new ESA claimants and IB claimants undergoing reassessment, many of them with progressive conditions, have been placed in the WRAG since ESA was introduced, with a prognosis statement that a change in their functional abilities is unlikely in the longer term. The purpose of the WRAG is to provide work-related support for people who are expected to be fit for work in the short to medium term. Work-related conditionality accompanies this designation. We believe that it is wholly inappropriate to place people in the WRAG if they have a condition which is unlikely to improve and which makes their prospect of returning to work remote. We therefore recommend that DWP changes its practice so that claimants with this prognosis are allocated to the Support Group and not to the WRAG.

23 Dr Litchfield, An Independent Review of the Work Capability Assessment - year four, December 2013, Chapter 6, para 30 Back

24 Q274 Back

25 Q275 Back

26 Government's response to the year four independent review of the Work Capability Assessment, March 2014, Annex A, recommendation 26 Back

27 Q486 Back

28 Training and Development: ESA Filework Guidelines (for Health Care Professionals), June 2012, p 17. Atos is also required to request further evidence from the named medical professional in certain circumstances, including where there is reference to self-harm or suicide on the ESA50 - see p 18 for details. The guidance also states that further evidence "should not be requested simply to confirm that an examination is required or to obtain further information to assist the examining HCP." Back

29 Q30 Back

30 See for example Z2K (WCA0019) para 41; and Centre for Mental Health, Hafal, Mental Health Foundation, Mind, Rethink Mental Illness, Royal College of Psychiatrists, Scottish Association for Mental Health, (WCA0142) para 19. The current policy on seeking further evidence is subject to an ongoing judicial review, with ESA claimants arguing that DWP should always seek further medical evidence for an ESA claim from those with a mental health condition, and as a minimum, DWP should always consider doing so - see 2013 UK UT 259 AAC and [2013] EWCA Civ 1565 for further details. Back

31 See for example Qq478 and 489; see also oral evidence taken on 29 October 2012 from DWP witnesses on the DWP Annual Report and Accounts, Q104; and evidence taken on 21 November 2012 from DWP witnesses on ESA Q62. Back

32 Q515 Back

33 Diverse Cymru (WCA0133); Oxfordshire Welfare Rights (WCA0068) para 4 Back

34 Q516 Back