Missing WCA appeals

Following discussions last week, I’ve come back to the question of what has happened to all the people who have lost their entitlement to Employment and Support Allowance after being found ‘fit for work’, and who have appealed the decision.

A year ago, the Tribunals Service was reporting a backlog of 220,000 cases relating to ‘social security and child support’.   It was ‘running to catch up’ (evidence  to the Work and Pensions Committee on 7th May).  In the last quarter of 2013, this had dropped to 155,000.

There has been a spectacular drop in the number of appeals, from possibly 37,000 in the month of March 2013 to less than 1,000 in March 2014. Part of this is due to a drop in the rate of assessment, but much of the change may be down to a change in rules last October, requiring cases first to go to ‘mandatory consideration’, then to be separately lodged with the Tribunals Service.

There are considerable delays.  The DWP is taking 9 weeks on average, the Tribunals Service 20 weeks, so the whole process (if all goes well) takes on average 29 weeks.    The Work and Pensions Committee heard evidence that this two-stage process may be a deterrrent, leading claimants to drop out – and Judge Robert Martin, the chair of the Social Entitlement Chamber, expressed concern that this was ‘unsupervised territory’ where the Tribunal has no say or influence.

How many people are being affected?  The Unemployment Movement suggests that about half the current waiting list, 75,000, are ESA cases – but this does not include people going through the first stage reconsideration.  About 10% of cases are withdrawn after being lodged with the Tribunals Service.  In 2012, the UK Statistics Authority asked the DWP to “investigate the feasibility of presenting in the releases a time series of the number of outstanding appeals.”   The DWP hasn’t done it but it has announced, tantalisingly:

DWP statisticians have identified a processing error with appeals data for the period June to December 2013 in the January 2014 and March 2014 publication.  …  A revision will be made to correct these figures in conjunction with the next release in June 2014. …  In the interim, please treat data with caution.

The revision may have something to do with the current investigataion into these issues by the Work and Pensions Committee.  I can’t claim to understand clearly what’s been happening with the numbers here, but it’s troubling to find that the DWP and the Tribunals Service don’t know either.

Scrapping the category of 'work related activity'

A rather garbled report in the Guardian suggests that Iain Duncan Smith is considering ‘disbanding’ the Work Related Activity Group on Employment and Support Allowance.   I don’t think I know what this means.  ESA begins with an assessment which determines that it is not reasonable to expect the claimant to work.  Some of these people are placed in the ‘support’ group, where they are not required to undergo further tests.  The rest are assumed to be liable to undertake ‘work related activity’.   The last Labour government, which introduced the reform of incapacity benefits, had said that they were going to introduce regulations to define who should be in the Work Related Activity Group, but they never did, and the coalition government has not filled the gap.

Pushing most people on ESA into work-related activity makes little sense.   It’s certainly true that many people with disabilities can work, but ESA is a benefit for incapacity, not a benefit for disability.  The whole point of ESA is that it is for people who can’t work and can’t reasonably be expected to.   People in the WRAG are not being kept from work by little obstacles; they are people who can’t be expected to work.  Possibly some of them may be able to work in the future, but that’s open to argument; the most work-related activity can reasonably do in such situations is to maintain some sort of connection with the world of work.  It’s not surprising, then, to read that the WRAG is pretty ineffective in encouraging people to get back to work; that’s not what it’s there for.  Equally, it’s predictable that “hundreds of millions of pounds are being tied up in administration of the benefit, including the work capability assessment and appeals process”,  without positive results.  That’s what happens if you put  hundreds of thousands of people indiscriminately through elaborate administrative rituals.

If the Guardian is right, and Iain Duncan Smith actually plans to move all ESA claimants on to JSA,  the proposal is daft – flooding the job market and JSA administration with people who can barely function is not going to help anyone.  If however reforming the WRAG was to mean that most ESA claimants weren’t in it, that would make perfectly good sense.  The category should be reserved to people currently suffering from incapacity who stand to benefit from work-related support.

Update, 4th December:  The Court of Appeal has upheld an appeal by claimants with psychiatric problems, that the process of assessment is inappropriate and that the DWP has the responsibility to obtain appropriate medical evidence about people’s condition.  A statement by Rethink is here.

Further update, 23rd July 2014:  The House of Commons Work and Pensions Committee has reviewed the Work Capacity Assessment.  They find – like everyone else – that the WRAG just doesn’t mean anything, and the divisions don’t work.

New figures on the Work Programme

The DWP has released a slew of new figures on the Work Programme, taking the story up to March.  The main statistical release is lengthy, and difficult to interpret;  the headline figure is that job outcomes, and outcome payments, have improved to something like 11-13% of referrals, depending on the gloss that’s put on it.  There is helpful coverage from a Financial Times blog.  Some newspapers – who are usually the Government’s supporters – have been fairly scathing: the Daily Mail complains that this has costed £40,000 a job,  the Telegraph that this has been worse than doing nothing.

There is also an informative (and shorter) Excel spreadsheet which lists the actual numbers of ‘Job Outcome Payments’.  The payments fall due when a claimant has been in work for 3 or 6 months, depending on the category.  In the spreadsheet, it emerges that there have been 139,000 payments.  However, more than 132,000 of them were in three categories: JSA 18 to 24, JSA 25 and over, and JSA early entrants.  The rest – less than 7000 nationally – were mainly on ESA or transferred from Incapacity Benefit.

The progress relating to those groups generally falls below the target figures at which providers get paid.  The longer report explains that while results for year 2 have been better than for year 1, “In this second financial year (April 2012 – March 2013) the contractual performance level for the JSA 18 to 24, JSA 25 and over and ESA new customers Payment Groups were 31.9%, 27.3% and 5.3% respectively. This was against a Minimum Performance Level of 33%, 27.5% and 16.5% for each group respectively.” That might sound as if the programme is coming close to targets, but the situation is worse than that; the figures relating to ESA, including people who have volunteered to be supported into work, show an almost complete failure to make a positive contribution in relation to people who might be considered more difficult to place.

The capacity to prepare for work

The Telegraph, which serves as the vicar of Iain Duncan Smith on earth,  is trailing a new DWP report.  It will talk about a million people who are stuck on benefits despite have been formally assessed as being “capable of preparing for or looking for work”.  There is however no formal assessment made of whether people are capable of preparation for work.  In the absence of the regulations that were promised to cover the circumstances, the DWP refers all claimants who have limited capacity for work to undertake some preparation for work, unless they are assessed as being in the ‘support’ group.  The nature of the assessment is not about capacity to prepare; it is that they are not fit for work, and it is not reasonable to expect them to work.     The category of people who are expected to prepare for work routinely includes, for example, people who have had strokes, people with degenerative diseases and people with serious psychiatric illness.    It’s true that some may be ‘stuck’, but it’s not necessarily the benefits that are the problem.

Who should do 'work-related activity'?

Martine White has been assessed as requiring to undertake ‘work related activity’ in order to continue receiving Employment and Support Allowance.   Ms White was born with disabilities from thalidomide.  She explains:  “It is impossible. I can’t walk properly, I can’t stand, I can’t pick things up, I get dizzy with the brain tumour and I’m blind in one eye and deaf in both ears. It is depressing. What am I going to do?”   Many people will blame Atos, the firm undertaking the assessments, but they are doing what they have been commissioned to do.  This one is down to the government.

People receive ESA because it is not reasonable to expect them to work – at least, that is what the law says.  Their entitlement is assessed by a points scheme.  Then some are assigned to the ‘support group’, where they will receive support, and others are  required to undertake work-related activity.

When the last Labour  government laid out this scheme, they promised that there would be regulations to identify who would be asked to undertake work-related activity.  But they did not do so, and nor did the coalition government when they reviewed the regulations.  They have relied instead on the assumption  that everyone who is not specifically identified as belonging to the support group must be liable for work related activity – even though it is accepted that it is not reasonable to ask them to work.  That position has still to be tested in court.

Mandatory work for sick people

The Telegraph reported two weeks ago – I commented on it then – that the government was considering extending work tests for sick people. Yesterday the DWP announced “voluntary” work placements, but added: “As well as voluntary work experience, in some situations, having taken into account an individual’s circumstances, a Jobcentre Plus adviser or Work Programme provider may feel that an appropriate mandatory work placement – which must be of benefit to the community – would be helpful.” Sanctions will also apply to those who refuse to take part in work-related activity, whatever that is – there are still no regulations to define the circumstances where such activity might be deemed to be appropriate.

The minister, Mark Hoban, explained: “People on sickness benefits who do all they can to improve their chances of moving back in to a job have nothing to worry about; they will get their benefits and we will do all we can to help. But in the small number of cases where people refuse to stick to their part of the bargain, it’s only right there are consequences.” So there it is; people on ESA who are too sick to work, who meet the requirements of the work capacity assessment, who it is not reasonable to expect to work – those are the qualifying conditions – are going to be required to work nevertheless.

Work tests for sick people

The Telegraph (again) reports that the government is considering subjecting people to work tests when they are sick for short periods. The benefits system used to make a distinction between sickness for less than 28 weeks, which got Sickness Benefit or Statutory Sick Pay, and longer periods, which were covered by Invalidity and then Incapacity Benefit. That distinction has gradually disappeared, and now everyone moves directly on to Employment and Support Allowance after SSP. But that also means that many people on ESA have relatively short periods of sickness. People sick for three months are now tested for their capacity to work. The government is now concerned about those who are on benefit for longer periods – and the way to get them is to intervene earlier. That means that they are proposing to examine those who are sick for short periods.

The problem with examining everyone who is sick is, of course, that it is going to generate a huge amount of administrative interference. Half of those people can be expected to return to work after sickness regardless; the other half are mainly those who it is “not reasonable” to expect to work. All of them are liable to be subject to work tests.

People found fit for work

In February I reviewed the figures for ESA assessments. At that time, 1,023,000 people had been reassessed, and 622,000 (61%) had been found fit for work. However, many of those found fit for work, whose appeals had been heard, had appealed successfully. Today new figures have been published that put the numbers found fit for work at 34% of those reassessed. The DWP press release gives a slightly higher figure, for the last three months available.

This does not mean that the decisions are now all right, but it does mean that they are not as wildly off-beam as they were at this time last year.

Further note, November 7th: The Independent has run with a more negative view of these figures, pointing to the supposition that 75% of claimants may be able in time to return to work. That is not necessarily contentious; most people with mental illnesses, for example, can reasonably hope that their illness will not incapacitate them forever, and many people with disabling conditions would not like to suppose that they will never work again. The central criterion for receiving Employment and Support Allowance in the leigslation is that people are entitled when it is not reasonable to expect them to work now. What’s troubling about the way that the legislation is being implemented is that people are being subjected to work tests even when it’s accepted that those tests cannot be reasonably applied.

A review of rules for cancer sufferers

The government has announced that people undergoing chemotherapy or radiology for cancer will now be exempt from the Work Capacity Assessment. I have made the case for this change four times in this blog (see e.g. the entry for 19th January and May 2nd) and am heartened to see sense prevail. Can we hope now for an exemption for people with severe developmental impairments?

Submission to the Social Security Advisory Committee

The Social Security Advisory Committee has invited comments about the new draft regulations, with a deadline of 27th July. Details of the consultation are here. My submission is available here.

These are the main points I have raised:

  • Couples. There are gaps in the definitions which require filling, including specification of relationships and identification of transitions.
  • Periodicity. The frequent references to days and weeks, e.g. in qualifying conditions, work requirements and sanctions, need to be reviewed to be consistent with monthly operation
  • Discretion. Wherever discretion is to be exercised, there need to be appropriate mechanisms for review and redress.
  • Sickness while unemployed. The allowance made for everyday sickness – that is, periods of sickness that do not amount to “limited capacity for work” – is too low.
  • Limited capacity for work related activity. We are still waiting for regulations that might clarify how this is defined.
  • Work search. The proposed requirement to engage in work search for 35 hours each week is not meaningfully related to the process of job-seeking and inconsistent with effective administration.
  • Contributory benefits. Regulations governing contributory entitlements need to be reviewed for consistency with the new mode of operation – filling gaps, reviewing periods and making consistent requirements.