Tag: incapacity

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.

Improving lives? This will do the opposite.

The benefits system has been immeasurably damaged by the obsession with work as an answer to every problem. People who are sick have been forced to declare that they are actively seeking work; others have been put under pressure to find work where there is none, or in situations where their disadvantages rule them out. Some have been sanctioned for non-compliance; more have been disentitled. People who work do not necessarily have the income they need or the rewards or opportunities that work is assumed to bring in its train.

The DWP Green Paper, Improving Lives, is just awful. It complains about the inactivity of the most sick and most vulnerable.  It does not accept that some people need to be excused from the labour market: “1.5 million people now in the Support Group … get little by way of practical support from Jobcentres to help them into work.”   It does not seem to understand that pressure to work will unavoidably be seen as a threat to the security of people’s income while they are ill – because that’s what it is. It proposes to extend to those for whom working is least viable the kind of regime that has so signally failed for people in the ‘work related activity group’. If people who are sick cannot find ways to engage with the labour market, why should we imagine that people who are  sick and vulnerable should fare any better?

ESA is supposed to be a sickness benefit

The Secretary of State for Work and Pensions has announced that a new consultation will appear on Monday about the workings of  Employment and Support Allowance.   His complaint seems to be that too many people are being allocated into the ‘support’ group, where they are not expected to undertake work related activity.  The defence of that position is that work is good for people with disabilities and we should be encouraging people with disabilities to engage with the labour market.

This misses the point of ESA completely.  ESA is not a disability benefit; it’s a long-term sickness benefit.  Sickness benefits are there to excuse people from the labour market.  These are the terms of the statute, the Welfare Reform Act 2007.  Section 1(3) explains that the benefit is for people who have limited capability for work, and continues in 1(4):

(4) For the purposes of this Part, a person has limited capability for work if—
(a) his capability for work is limited by his physical or mental condition, and
(b) the limitation is such that it is not reasonable to require him to work.

This has to be emphasised, because successive governments seem not to understand the laws they have passed.  Employment and Support Allowance is awarded when it is not reasonable to require people to work.    Offering people support to help them overcome barriers may be reasonable, but expecting them to work is not.  Requiring people to undertake work related activity – and sanctioning them when they do not – undermines the purpose of the benefit.

Whether people are too ill to work is a different question from whether they have a disability.  People are not necessarily disabled because they have serious circulatory problems, or digestive problems, or respiratory problems, or acute mental illness – few people with those conditions would think of themselves as ‘disabled’ –  but we may well reasonably consider that while they are sick, they should be excused from any requirement to work, and that has been part of the benefits system for more than a century.   Offering benefit without the pressure to work is not writing people off – it is leaving them with some choice, some support, and some dignity.  Pushing them out to work while they are ill undermines all of that.

Benefits for people with mental illnesses

I helped out today at a consultation event arranged by SAMH, the Scottish Association for Mental Health.  Their latest report focuses on Personal Independence Payment, and the experiences of people with mental illness claiming the benefit.  The report is based on comments from claimants, who felt disbelieved and stigmatised, and had no trust in the process.  The people I spoke to today had been treated as if their benefits were all to be judged on their capacity to work, and as their capacity to work was judged by their ability to do things physically, they weren’t entitled.  Assessors seemed not to understand, one participant explained eloquently,  that an invitation to explain what things were like at the very worst was equivalent to a request to revisit hell.

Mental illness poses a whole series of issues for benefits, which are not ideally covered by an emphasis either on disability or on long-term illness.   What should benefits for people with mental illness look like?  The benefits have to cover lots of possible contingencies – among them,

  • meeting income needs
  • offering social protection/insurance
  • support for carers
  • income smoothing
  • support while out of work
  • social inclusion
  • compensation for long-term low incomes and disadvantage
  • support for rehabilitation
  • facilitating employment
  • promoting engagement with medical services
  • protective income while in hospital
  • providing social care

As usual, most of these objectives have little do with the world of work – getting people into the labour market has only a limited role, as it does in lots of other benefits.

There is some limited reason to think that people with mental illnesses face higher costs, too, but the basic case for benefits is not based on extra costs.  Alf Morris MP, defending the introduction of Attendance Allowance, argued that the purpose of such benefits was to invest people with dignity.

“It is not only a question of finance we are discussing, but also the dignity of disabled people. … This provision must be seen as only part – a very minor part – of an entirely new financial deal for the severely disabled. … This is only one stage towards improving the financial status, and therefore the dignity, of every one of our severely disabled fellow citizens.”

That is as valid now as it ever was.

Questions are raised about the validity of the WCA

I’m intrigued, but not convinced, by Jonathan Hume’s analysis of the Work Capability Assessment in the new edition of Radical Statistics.  He identifies a significant bias against claimants in poorer and less healthy areas. “Counter-intuitively”, he writes,

healthier areas were finding claimants fit for work less frequently and placing claimants into the Support Group  more frequently. This is the opposite of what would be expected of an accurate test of disability.

I’m not sure that his expectations are right.  The numbers he’s been processing are not about what happens to people with disabilities, but what happens after claims for Employment and Support Allowance, which is a long-term incapacity benefit.  In areas of higher employment, there should be fewer people of working age with disabilities (because people with disabilities tend to suffer lower long term incomes and can’t afford to live in the more salubrious areas), but the disabilities which do lead to ESA claims will tend to be more serious, because people with lesser disabilities have more opportunities for employment than they do in poorer areas.

What he does establish, however, is that there are unexplained variations between areas, and clear biases in the outcomes of WCAs – for example, that more people are placed in the Support Group when more WCAs are done.   The WCA was developed on the basis of a population-based assessment, and if it’s producing inconsistent results at the level of the population, that does raise questions about its validity.

The government climbs down on assessments

Heaven rejoices in the the sinner who repents, and the decision to suspend some of the absurd assessments for claimants of Employment and Support Allowance has to be welcome.  Damian Green, the Secretary of State, has acknowledged that repeated assessments of people with long-term conditions are ‘pointless’, coincidentally  a word I’ve also used.   Repeated assessments will still be made for the ‘vast majority’ of claimants, but any movement is an improvement.

I’ve made the case for doing something like this more than once, including an argument picked up earlier this year by the Daily Mirror,  and it would pleasing to think that public comments might have had some effect – but as we all know, they never do.  The most I can ever claim, as the Scottish Government announced after my submissions on the welfare fund, is that my analysis agrees with theirs.

These people told the authorities they were ill, and weren’t believed.

The DWP has released figures on the deaths of people claiming ESA and related benefits between December 2011 and February 2014.  There has been a lot of comment about them on the Net.  I’m not sure I can make clear sense of them – it’s far from clear, for example,  how much overlap there might be between different categories.  The most striking figures seem to be that

  • 81,140 people died  while on ESA, Incapacity Benefit or Severe Disablement Allowance.  It’s difficult to make much of the gross figure, because people on long-term sickness benefits are ill, and very much more ill than the rest of the population.
  • 7,200 people who died had been assessed as being in the Work Related Activity Group.  There are no real criteria for selection for the WRAG – it’s a residual group of people who have been assessed as having a limited capacity to work but who don’t get in to the support group because they have very serious limitations or terminal illness.  One has to question the wisdom, however, of treating people as requiring work-related support when they are ill enough to be close to death.
  • 2,380 people died within two weeks of being assessed as Fit for Work on ESA, and 1340 died within two weeks of their appeal against a Fit for Work decision being decided.    The figures miss out those between the two states, including those whose appeals have not yet been heard; this is certainly an underestimate of the misjudgments.

People die for all sorts of reasons, but these were all people who told the DWP  that they were too ill to work, and weren’t believed.  Is it really more important to weed out weaker claims than it is to offer safe, secure social protection?

IDS threatens Employment and Support Allowance, again

It’s been widely announced that Iain Duncan Smith is about to deliver a “major speech” about getting people who are disabled back to work: see e.g. the Mail and the Guardian. Normally I’d wait for the speech, but IDS is a serial self-publicist, so it’s fairly certain that  the reports (and the quotations from the undelivered speech) are based on a formal release of the text.   The main points seem to be that

  • it is possible for ESA claimants to work
  • a million claimants could be ‘put back to work’
  • some people could work part time
  • people are ‘languishing’ on ESA
  • lots of people go back to work from Jobseekers Allowance, relatively few from ESA
  • we have a ‘sicknote culture’
  • the current test “decides whether people are too sick to ever work”
  • people on ESA are to be required to look for work.

This is not exactly new stuff; it sounds a lot like Peter Lilley’s arguments for introducing Incapacity Benefit in 1995.  Since then, tests and assessments have been tightened, other heavily incapacitated people have been reclassified to claim this benefit rather than the benefits they got before, hundreds of thousands of claimants have been reassessed (and many ejected), and most claimants have been required to make themselves work ready even if they can’t actually work.

It is possible for ESA claimants to work.  The express statutory purpose of the benefit, and of the current assessments, is to determine whether or not it is reasonable to expect people to work. It may be possible – after all, sick people had to work in prisoner-of-war camps, and some of them even built a railroad –  but it isn’t reasonable.

A million claimants could be ‘put back to work’.   From surveys, up to a million claimants do say they’d like to work, if only they can get better.  That doesn’t mean they’re up for road-mending or the board rooms of international finance now.  They’ve been tested, by rather strict criteria, and what’s been established by the assessments is that it’s not reasonable to ask them.

Some people could work part time.  Some could, and the old rules for Incapacity Benefit allowed for some therapeutic work.  That doesn’t mean that the recipients are ready to engage with the labour market.  That’s why the pilot programme, Pathways to Work, was such an abysmal failure.

People are ‘languishing’ on ESA.  ESA is a long-term sickness benefit – short term sickness is largely dealt with through Statutory Sick Pay.  So yes, people are on the benefit for the long haul. We might say with equal or greater justice that older people  are ‘languishing’ on state pensions.

Lots of people go back to work from JSA, relatively few from ESA.  This is the same as the last point.  People with long term, debilitating sicknesses are not going to get back to work in the same way as people who are unemployed.

We have a ‘sicknote culture’.  The benefits are not in general given on the basis of sick notes, and haven’t been for years.

The current test “decides whether people are too sick to ever work”.  It doesn’t.  The controversy about the current test is that it’s been applied harshly and inappropriately to people who are very ill.  The tests have been revised repeatedly, with big changes under both Conservatives and Labour, to emphasise people’s capacity to work.

People on ESA are to be required to look for work.  This is back to the first point.  These are people who it’s not reasonable to expect to work.  The announcement implies that they’re going to be forced to apply for jobs regardless.

There is another, more general point about the reporting.  This is not about disability as such; it’s about people being unable to work.  Some people who are disabled can and do work; some people are not disabled and can’t.  ESA is a long term sickness benefit.  It goes for example to people who have complications with pregnancy, to  people whose employers fire them for getting ill, to people with debilitating mental illness, to people with terminal illnesses, to people recovering from stroke, and so on.  As a teacher, I’m covered for lengthy illness, so I’m all right – but if you don’t have private insurance, pray you don’t get ill.

The problems with ESA get worse

The front page of the i newspaper reports that “Sick and disabled benefits stopped for missing appointments”.  It’s not exactly news – the trend has been growing over a period of several months, and yesterday the BBC commented about the ‘shocking’ increase in sanctions  – but it’s welcome that the media seem to be waking up to what’s going on.

Over the past couple of weeks, I’ve been helping the Scottish Federation of Housing Associations prepare their response to the Fifth Independent Review  of ESA and the Work Capacity Assessment.  It’s a dispiriting exercise, and the title explains why:  the fact that it’s taken four previous reviews to get to where we are offers little hope that a fifth exercise will make things any better. (The SFHA response is available here.)

If anything, things are getting worse.  The accumulation of misjudgment, mismanagement, delay and the accumulation of unheard appeals adds to the general sense of chaos.  There are particular problems with decisions that people are fit for work when they’re not, and for people who are expected to engage in work related activity when they’re clearly unfit.  Bad decisions tend, unfortunately, to lead to sanctions, as people fail to comply with rules that they have little or no hope of being able to comply with.

ESA assessments: the system is broken

Information from a range of sources suggests that the system for assessing entitlement to Employment and Support Allowance has broken down.  The most obvious immediate problem is the withdrawal of Atos from the system, leading directly to a backlog of 712,000 assessments.   Quite apart from that, however, is the revelation that in addition to  the  extensive numbers of decisions overturned on appeal, there are also many more being overturned after reconsideration by the DWP.  Ilegal has put together information from several sources – the Tribunals Service, a statement in the House of Commons about internal reconsideration in 2010 and 2011 and a further response to a Freedom of Information request covering 2012 and 2013.  There are gaps in the data, which makes it difficult for me to verify their figures, and there needs to be more information about what is being appealed in what circumstances, but Ilegal claims that the tally comes to well over half a million incorrect decisions over the past five years.   The Guardian reports that, with the introduction of ‘mandatory reconsideration’ before appeals are possible, ‘thousands’ of claims are being held in limbo – from the scale of the problems, that could be hundreds of thousands.

This shows the futility – and overweening presumption – of trying to run a benefits system for millions of people by trying to make difficult, personal assessments of their physical capacity.  Much of this could have been done more simply, effectively and quickly if the government had been prepared to accept some pragmatic compromises.  I’ve made, in the past, some modest proposals for simplifying the system, such as accepting medical evidence of certain conditions like cancer or congenital learning disabilities as sufficient for admission to the ‘support group’. The scale of the problem now means this needs to go much further.   The benefits system should accept certification from hospital consultants and  exempt certain large categories of disability such as stroke or degenerative diseases.   Sickness benefit should be restored for relatively short-term issues like pregnancy.  Independent assessment should be reserved for cases where there are  reasons for doubt.