Changing the Work Capability Assessment

It’s been announced, in various fora, that the government will propose in a forthcoming White Paper to abolish or reform the Work Capability Assessment.  This is the pro-forma points system used to determine whether or not a person has limited or no capability for work.

The  government’s priorities lie in ‘supporting’ people into work, rather than determining whether or not it is reasonable for people to work – which is supposed to be the legal test.  We can probably all agree that the WCA is not a good test.  It is slow, bureaucratic and rather bad at identifying what people’s circumstances actually are.  Torsten Bell has suggested, on Twitter, that the actual plan is to replace the WCA with the test for PIP – a different kind of test, but still one which has little to do with capacity.

Calling for reform doesn’t imply, as some might think, that the process of certification should go back to GPs, who have quite enough on their plate already.  In my 2017 book, What’s wrong with social security benefits?, I made a series of proposals about how the WCA could be refomed. Here’s an extract.

As things stand, nearly everyone who claims is being assessed.  …  Although repeated checks on people with long-term conditions have now been acknowledged to be ‘pointless’, most of the assessments that remain are little better.   They either confirm the obvious or they duplicate information that is already held.  Some assessments are necessary: many people with disabilities cannot say whether they are disabled or not, and have no idea whether or not their disability fits the criteria for benefits. Any general rule, no matter how sensitively it is administered, is going to have to deal with some grey areas.  But the same approach does not have to apply to everyone.
First, it is possible to identify certain conditions which should imply automatic entitlement, offering benefits on minimal or secondary evidence – either accepting on sight that the person has a qualifying disability (double amputation, severe disfigurement) or passporting benefits on the basis of provision by other agencies (congenital disability, blindness).
Second, there are conditions which will have led to prolonged long term contact with health services, and certification from a consultant is sufficient to establish that the condition is there without requiring further detailed examination of personal circumstances. Examples are terminal illness, multiple sclerosis, MND, malignant neoplasms or brittle bones.
Third, there are conditions where existing services in long-term contact with the individual are far better placed to judge the impact of a condition than an independent assessor could be, and it would be appropriate to accept medical certification. Examples are continued psychosis, epilepsy, dementia and learning disability.
Only after these three categories are considered is it appropriate to think in terms of further individual assessment. The points scheme currently used in a range of benefits was initially developed from work to establish the range and severity of disabilities in the UK. That research validated the approach through a range of tests, but it pointed to an important conclusion: that once the primary disabilities had been identified, it was very rare for further disabilities to make any notable difference to the findings, and that information served no useful purpose. It follows that it is neither appropriate nor necessary to ask most claimants whether they can go to the toilet unaided.  The question is embarrassing and the information obtained is for the most part irrelevant. The assessment process should begin by asking people to identify their most important disabilities, ask questions about those, and go further only in marginal or complex circumstances.
Finally, there will be a residual category of people who are not adequately dealt with by any of the four stages above, and who will require or ask for a more thorough comprehensive assessment. This category should be small.

Asking an artificial intelligence to write an essay on social policy

I wanted to see what ChatGPT would make of a social policy essay, so I asked a starter question:

What is a welfare state, and is Britain one?

A welfare state is a government that provides a range of social services and benefits to its citizens, including healthcare, education, social security, and other forms of assistance, in order to ensure that they have a basic standard of living and access to basic necessities. The idea behind a welfare state is to create a safety net for individuals who may not be able to provide for themselves due to age, disability, unemployment, or other factors.

Britain is generally considered to be a welfare state, as it has a long history of providing a range of social services and benefits to its citizens. The British welfare state was created after World War II, with the introduction of the National Health Service (NHS) in 1948 and the creation of the welfare state in 1949. Since then, Britain has continued to expand its welfare state, with the introduction of additional social services and benefits over time.

However, the level of support provided by the British welfare state has been subject to some controversy in recent years, with some arguing that it is too generous and discourages people from seeking work, while others argue that it is not generous enough and leaves vulnerable people without adequate support.

There are some mistakes in this.

  1.  Provision in many welfare states isn’t  made by the government.
  2. Just about every country in the world provides some health care and some education.  More than 150 countries now have some kind of national scheme for cash support.
  3. The welfare state needs more than a ‘safety net’.  Safety net provision, or ‘residual’ welfare, was the model for the Poor Laws centuries before the welfare state was thought of.  That also reflects on the comment that Britain has a ‘long history’ of this – it does, but the welfare state was founded after the second world war.
  4. The NHS Act was in 1946, and the welfare state was introduced formally on 7th July 1948.

Steve Mckay, from the University of Lincoln, got ChatGPT to refine the answer.

A welfare state is a political and economic system that prioritizes the provision of social welfare programs and services to its citizens. These programs and services aim to ensure that all individuals have access to basic necessities, such as healthcare, education, housing, and income support, regardless of their socioeconomic status. The welfare state is often seen as a means of promoting social equality, reducing poverty, and promoting economic stability.

Britain has a long history of welfare state provision, beginning with the introduction of the National Insurance Act in 1911. However, it was not until the post-World War II period that the British welfare state took its modern form. During this period, the Labour government introduced a range of social welfare programs, including the National Health Service (NHS), social housing, and a comprehensive system of social security benefits.

Since then, the British welfare state has undergone significant changes, reflecting broader economic and political shifts. The 1980s saw the rise of neoliberalism and a growing emphasis on market-oriented policies, which resulted in the privatization of some public services and the scaling back of certain welfare programs. In the 1990s and 2000s, the Labour government introduced a range of initiatives aimed at reducing poverty and social exclusion, such as the introduction of tax credits and the Sure Start program for early years education.

However, the 2008 financial crisis and subsequent period of austerity saw significant cuts to social welfare spending, resulting in reduced access to certain programs and services. This has been particularly felt by those who are most in need, such as disabled people and low-income families. Critics argue that this erosion of the welfare state has undermined social equality and resulted in growing levels of poverty and inequality.

Despite these challenges, Britain remains a welfare state, albeit one that is undergoing significant transformation. The provision of social welfare programs and services remains a central feature of British society, and there continues to be significant public support for the welfare state. However, the effectiveness of these programs and services in addressing issues such as poverty and inequality remains a matter of debate. Some argue that the welfare state is inadequate and requires significant reform, while others believe that it is a vital mechanism for promoting social justice and economic stability.

I’m not sure quite how he did it, but this version is a lot better than the one I asked for.  The welfare state is now described as a system; it’s tied to a range of principles, including citizenship, equality and being there for everyone; and it’s subject to key tests, including poverty, social justice and economic stability.

Despite that improvement, this still doesn’t add up to an undergraduate essay.  An essay in social science is primarily an exercise in processing information.   The first step is to select material, bringing together information.  At the most basic level, a piece which brings together information from several sources requires more skill (and more work) than one which takes all its information from one source.

The next step is to get the selected material in order.  Referencing is again crucial, because a student  who goes through the material by covering everything said in one book, followed by everything said in another, is showing less skill than someone who can take material from disparate sources and put it in order.

Third comes evaluation.  Again at the most basic level, commenting on the material which has been selected and ordered  is a way of showing one understands it.  But evaluation that is not based on evidence and argument  is nothing more than an opinion, and markers cannot legitimately mark a piece up or down just because they happen to like or dislike what has been said.   The test, yet again, is a test of skill in handling the material.

The AI falls short of this at every point, for two reasons.  The first is that it doesn’t sift and sort information in its own right: it gets words in order, but there is no material here to sort, and none to evaluate.  The second is that it has not provided any referenced material.   Referencing is a crucial part of the exercise, at every stage.  It reveals how much material has gone in to the selection; it distinguishes material that has been sifted and sorted by the student from ordering that is carted whole from a single source; and it distinguishes the student’s critical commentary and understanding from what came from the sources.  Without that evidence of understanding, there is nothing to mark.

 

News from Maine: a “welfare magnet”?

The state of Maine, in an article I’ve just read, has ‘an international reputation as a welfare magnet’, a claim that might surprise the European countries  which have taken in hundreds of thousands of people.   There were no fewer than – do sit down if you find you need air and smelling salts – 400 unauthorised migrants who came to Maine last month.  I don’t have comparable figures for January, but I do have them for December, from the EU’s Frontex agency.  Here they are, in a table reporting unauthorised crossings into the EU and the UK. They seem to be a little larger than Maine’s figures, despite its ‘international reputation’.

The article on Maine conveys the author’s sense of disapproval at the existence of the people it calls ‘illegals’.  (My own view on that term is here.) The writer tells us:

The 400 foreign nationals who crashed the southern border and headed for Maine last month include 63 families with an average of 2 children each, most of whom will soon be enrolled in local public schools if they aren’t already. In addition, another 151 of the border-crashers who arrived in January are individuals without spouses or children.

So one of the principal items of concern seems to be that people are travelling with children who will need schooling.  Even more daring, there is talk of providing free basic health care to people who have very low resources:

this radical proposal … would make Maine the first state to offer Medicaid benefits to all adult residents who are in the country illegally.

The Federal rules, under  Obamacare , are restrictive by European standards – it is difficult for migrants even to get access to the ‘marketplace’ for health insurance – but Minnesota explicitly exempts refugees from the 5-year waiting period that otherwise applies to non-citizens.

The proposal to extend basic health care, or ‘MaineCare’, is described here.   Maine already makes that provision for children, and California and New York have extended provision for older people.  The opponents of the proposal to extend basic health care have tabled legislation ‘to protect Maine taxpayers’. Perhaps they might like to consider the advantages of becoming a ‘magnet’ for the citizens of the future.

 

Misreading the SDGs

Although I’ve been booked in for an online conference on the Sustainable Development Goals, I’ve found hardly anything in it I can relate to.  A large part of the problem rests with the SDGs themselves.  There are simply too many tests, and too many priorities.  Wildavsky, in Speaking truth to power,  complains that long lists of targets become “mechanisms for avoiding rather than making choices”.  The Economist commented, when the SDGs were first announced, that “a set of 169 commandments means, in practice, no priorities at all.”

A second problem rests in the voluntary nature of the SDGs.  Governments have been left to decide for themselves what they are going to choose from the pick-and-mix in front of them.  In this respect, the process looks a lot like the ‘open method of coordination’ in the European Union – an excuse to carry on with whatever they were doing before.

The third problem, however, rests in the injection of that word, ‘sustainability’. The agenda of the conference I was booked in for seems to be devoted entirely to sustainability – nature, climate change and the planet – and says virtually nothing about development.  As so often happens, the discussion of the needs of the global south has been been diverted into a discussion of the priorities of the developed world.

Overpayments – challenged through judicial review

An important case has been decided against the Department for Work and Pensions, calling into question at least three long-standing, major elements in social security law. R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin), which can be read here, concerns the operation of the relatively recent overpayments policy, which makes it possible for the DWP to reclaim overpaid benefit despite the fact that the claimant has done nothing wrong and may have had no reason to suppose that the payment was not legitimate.   (This pernicious rule has, regrettably, been replicated in the Scottish Parliament’s recent law on social security.)

The first concerns the DWP’s use of discretion.  For decades – at least since the 1960s – the DWP and its predecessors have limited its use of discretion by the development of national rules, intended to ensure that there is no inconsistency between judgments made in different parts of the country.  (See  M Hill, 1969, The exercise of discretion in the NAB, Public Administration, 47(1) 75‑90; J Bradshaw, 1981, From discretion to rules, in M Adler, S Asquith, Discretion and welfare, Heinemann.)  The court, in this case, emphasised that notwithstanding that principle, the DWP always had a duty to make an individual assessment in the particular case that presented itself – explaining how its discretion would be exercised, rather than choosing not to exercise it.

The second element concerns the publication of guidance.  Since 1980, when I started teaching welfare rights, I’ve visited  social security offices irregularly – the last time was in 2019 – and like many old-timers in this field, I’ve been required to sign the Official Secrets Act, because (for example) publication of the fact that social security officers are sometimes asked to use screens with impossibly small print might threaten the security of the nation.  The Supplementary Benefit rules were contained in a loose-leaf binder, and then a set of binders, called the A code, and that was superseded by even fatter guidance documents called the S manual, also treated as an official secret.  This case cites a previous judgment, which says this, in terms:

It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, as public law requires it to be exercised, consistently from case to case but adaptably to the facts of individual cases. If – as seems to be the situation here – such a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer.

The third major point concerns the appeals procedure.  The present procedure requires claimants to ask first for Mandatory Reconsideration, and then to appeal to a tribunal.  After that, the claimant’s options have been held to be exhausted.  This case makes it abolustely clear that this is not, and cannot be, the end of the road.  A DWP official had written to the claimant:

“Regarding your request to have your overpayment waived, as I have stated previously the routes for you to challenge an overpayment with Universal Credit are Mandatory Reconsiderations and a tribunal following an upheld Mandatory Reconsideration.  Neither myself or anyone working for Universal Credit can reconsider your overpayment as you have exhausted all appeal routes with us. The legislation you have quoted does not apply directly to the processes that we have here.”

That response is described here as ‘manifestly unlawful’ (para 73).

I regret that so few social security cases come to judicial review.  If they did, I think it likely that other important rules – including the requirement to seek mandatory reconsideration and the imposition of sanctions without the possibility of a hearing – would also be found to be unlawful.

Scotland needs a revising chamber

The UK government has decided to nullify the law recently passed by the Scottish Parliament, which aims to simplify the process of self-identifying oneself as being in a different gender from one’s sex at birth.  I don’t propose at this stage to discuss the principle of self-identification – I may return to that later.  I do think, however, that the legislative process is important for clarifying the constitutional place  of Scotland within the UK.

To begin at the beginning, the UK parliament is a sovereign body.  That does not mean that it is in control; it means that the UK parliament is the source of authority for all laws passed within the UK.  This is very different from a federal government, in which powers and authority are delegated from the member states – David Cameron’s claim, after the 2014 referendum, that Scotland would be the most powerful devolved parliament in the world, is simply asinine.  The idea of ‘devolution’ depends on the principle that devolved governments have to be authorised to do things by the central government.  That summarises the current status of Scotland.

Second, the UK parliament retains the right to legislate, not just for the UK as a whole, but specifically for Scotland.  That is the basis of the ‘Sewell motions’, which have been passed at the behest of a Scotish Government that otherwise cannot fit the legislation into its busy timetable.

Third, there is no legislative area which is reserved to Scotland.  The authority of the Scottish Parliament is wholly dependent, in law, on the continued authority of the UK parliament.  The UK government has taken advantage of this to intervene in the affairs of Scottish local authorities, which are part of the services devolved to the Scottish Parliament.

And then, finally, there is s.35 of the 1998 Scotland Act, which states:

If a Bill contains provisions … which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

That is what is happening now.  There has been talk of legal action to object to the use of s. 35, but I think it highly unlikely that such an action will succeed; the Supreme Court has already taken a dim view of attempts to expand the powers of the Scottish Parliament.

Professor Aileen McHarg has been cited as saying that there are alternatives to the use of s.35.  These alternatives include

  • amending the Equality Act 2010 to take account of the Scottish legislation,
  • introducing a bill to overrule the Scottish law
  • and taking the Scottish Parliament to court for exceeding its powers.

The first two would take far more parliamentary time, and in the meantime any potential conflict with equality law would not be resolved.  The problem with the third option is that, simply put, the Scottish Parliament hasn’t exceeded its powers.

This is not just about legality, however; it’s also about politics.  This legislation is controversial, but it offers nothing like the challenge to the devolution settlement implicitly represented by the (untested) Scotland (Referendums) Act 2020.  The UK government has been looking for ways to curb the enthusiasm of the Scottish government, and gender recognition looks like a plausible target.

The position of the Scottish government has however been undermined, in my view, by the process it has followed.  Amendments to the legislation were rejected outright: those included several attempts to assert the relevance of the 2010 Equality Act, protection of single-sex spaces and to include impact assessments. These were all met with the questionable, often repeated assertion that there was no impact on the application of UK equality law that required consideration.  Of course the legislation aimed to alter the categorisation of protected equalities: that, surely, was the point.

The government of Scotland, as currently constituted, is principally based on the unitary authority of the Scottish Parliament.  There is no other mechanism by which laws can be scrutinised and revised, except for reference to the UK parliament.  If the Scottish government wants to be able to argue that it should be left alone to make decisions relating to Scottish law and government, and that any intervention by UK authorities is unreasonable, it has to be able to demonstrate that appropriate safeguards are in place.  It cannot do so within the current institutional framework.   Scotland needs a revising chamber.

Nigeria needs to spend more on social support

I was alarmed to read a report in the Nigerian Observer, which told me that the World Bank was pressing Nigeria to ‘reduce the poverty net’.

If structural reforms are not implemented, Nigeria’s future looks bleak, per capita income will plateau, Nigerians will not have a full-time job by 2030 and if the employment rate does not improve, 23 million more Nigerians will live in extreme poverty by 2030,” according to the [World Bank’s] chief economist.

The report goes on to list the kinds of reforms that are being looked for: support for the private sector, ‘unlocking’ private investment, introducing ‘critical’ macroeconomic and structural reforms.  That, on the face of the matter, looks like a call for ‘structural adjustment’ and a return to the ‘Washington Consensus’, which emphasised liberalisation, privatisation and fiscal discipline.  Structural adjustment was not an unmitigated disaster – its effects were mixed – but it did lead to substantial hardship  and in some cases created positive obstacles to development.  One might have hoped it had been left behind in the 1990s.

As it turns out, however, this is not what the World Bank has been saying at all.  The Bank’s Nigeria Public Finance Review bemoans the chaotic arrangements that characterise many of Nigeria’s current policies, but the central theme is very different: Nigeria needs to devote far more of its resources to  public expenditure, and it needs particularly to expand its systems of social support.  Yes, it calls for ‘fiscal adjustment for better and sustainable results’, but it also argues that ‘Nigeria’s social spending is too low, both in levels and as a share of budget resources’; that education and health provision is not enough to raise human capital; and that government and the states need to raise revenue substantially to pay for it.  Nigeria has been shaping up to become one of the world’s largest poor countries – ‘the world’s second-largest poor population after India’. The World Bank’s policies have been misjudged at times, but this is not one of those times.

How much should income be cut by?

The government claims to be concerned about ‘inflation-busting’ settlements.  Public sector wages have generally ‘risen’ by 2.7%; private sector wages by 6.9%.  Many benefits (not all) have ‘risen’ in line with inflation.

I have put ‘risen’ in inverted commas because incomes have not risen at all.  As a simple matter of maths, a rise ‘in line with’ inflation is not an increase in income; it is a reduction.

Initial income 100
Inflation 10.7%
Value of income after inflation 89.30
Increase of:
2.7% (recent public sector awards) 91.71
6.9% (recent private sector awards) 95.46
7% (NHS in Scotland) 95.55
10.7% (‘in line with’ inflation)
 98.56
12.32% (break even) 100
19% (the claim made by the RCN) 106.27

Increasing benefits ‘in line with inflation’ implies a cut in real income. It would take an increase of 12.32% before that did not happen.  And the supposedly unaffordable claim by the RCN for 19% is actually a request for an increase in real terms of 6.27%.  Since 2010, the real wages of nurses have fallen by 8%.  The RCN claim would not restore that level of income.

A trial for rape

If I’ve been inactive during the last week, it’s not least because I’ve been otherwise engaged.  I’ve been on the jury for a trial in the High Court, where a man was accused of rape.  I am not at liberty to reveal any part of the jury’s discussions, but I can comment on the law.

The law relating to rape was restated in Scotland in the Sexual Offences (Scotland) Act 2009.  Section 1 begins in these terms:

If a person (“A”), with A’s penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

There are several elements in this. The most important are

  • the identity of the person,
  • the act of penetration,
  • consent,
  • intention, and
  • the ‘reasonable belief’ of the perpetrator.

The case was found to be ‘not proven’: a  verdict available in Scottish law that is treated in practice as equivalent to acquittal, but which is distinctly not the same as ‘not guilty’.   There is a presumption of innocence, and it is for the prosecution to establish the case. That must extend to every aspect of the crime, and in this case it did not.

I’ve commented previously on some of the problems with the law relating to rape, particularly the focus on consent.  This case has made me aware of another.  The statute adds the rider of a ‘reasonable belief’ in consent to a whole slew of sexual offences, including rape, exposure, voyeurism and drugging people.  “Even the devil”, the legal proverb runs, “knows not the mind of man.” Rape and most other sexual offences should be a matter of strict liability: what matters is how people behave.