United Kingdom Disabled People’s Council response to Independent Review of WCA.

This is available as a Microsoft Word document by clicking on the link below. I have reproduced the full document here for those who do not have Word.

UKDPC Response to WCA Harrington Inquiry

10/09/2010


UKDPC has provided a formal response to the Independent Review into the Work Capability Assessment (WCA). Professor Malcom Harrington has been commissioned to lead and undertake the inquiry.

The Department for Work and Pensions has commissioned this independent review of the Work Capability Assessment, as required by section 10 of the Welfare Reform Act 2007.

Specifically, our response is on how the Work Capability Assessment (WCA) operates. This includes evaluating how the WCA assesses limited capability for work and limited capability for work-related activity.

Dear Sir or Madam,

Attached is the submission of the United Kingdom Disabled People’s Council to the Independent Review into the Work Capability Assessment undertaken by Professor Malcom Harrington.

Should there be an opportunity to present oral evidence to the enquiry at a later stage we would like to be asked to do so.

Yours Faithfully,

Jaspal Dhani

CEO UKDPC

The Work Capability Assessment: A call for evidence

28 July 2010

Background

The Department for Work and Pensions has commissioned Professor Malcolm Harrington to undertake an independent review of the Work Capability Assessment, as required by section 10 of the Welfare Reform Act 2007. This call for evidence will be one of several methods used to gather information. Evidence submitted will be used to create a final independent report, which will be laid before Parliament.

This call for evidence is aimed at organisations and individuals who have information that is relevant to how the Work Capability Assessment (WCA) is operating. This includes evaluating how the WCA assesses limited capability for work and limited capability for work-related activity.

It will be used to inform the view of the independent reviewer. The independent reviewer will then make recommendations to the Secretary of State, which will be laid before Parliament in the form of a report. As an independent review, the Secretary of State is not required to enact any or all of the recommendations, and any recommendations may subject to further assessment by DWP.

This consultation applies to England, Wales and Scotland.

General Introduction re WCA

  1. Currently a total of 2.6 million people receive an incapacity benefit of some kind and the government’s stated aim is to reduce this number by 1 million. However there is no clear or transparent rational behind this number and little transparency over who is deemed to be fit for work.

  1. Prior to the launch of ESA it was expected that 50% of claimants would be found fit for work yet since it’s launch 66% of claimants have been classed as fit for work (however see paragraph on appeals)

  1. ESA is described as a short term benefit which is available to people while they seek work which it is stated is likely for most people to be within 2 years of making a new claim.( The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) Amendment Regulations 2011). This poses the question of whether any real awareness of long term disability and it’s impact on claimants, as opposed to ’shorter term’ illness exists within the WCA.

  2. The WCA is inflexible in many ways making it difficult for claimants to be assigned to the correct group in many cases. There is further inflexibility in so far as claimants should be able to decide for themselves which group to be in at any moment in time, and changing from one group to another should be made easy. Particularly for fluctuating impairments some recognition of changes in someone’s condition should be built into the WCA and group assignment.

  3. In spite of the recommended changes to the WCA most of the functions measured in the WCA remain based entirely upon physical ability to carry out tasks such as being able to raise arms above shoulder height or lift items of a particular weight. This could mean that a disabled person who is nevertheless capable of working in a non-physical work environment may be wrongly excluded from the support needed to seek work, or wrongly identified as not being fit for work.

  4. However we feel that disabled people themselves are the best placed to decide for themselves if they are able to seek work rather then being assessed through a series of limited physical tests.

  5. While some abilities of memory and learning and the ability to mix socially within a workplace setting will now also be considered these again seem to be limited in how they are applied to claimants. We have reservations that the problems many disabled people who have mental health conditions, neuro-diverse conditions or learning difficulties face will not be adequately identified within the WCA. This is because we do not feel that a short WCA can be used to adequately gauge someone’s response to working in a particular environment which may result in stress and anxiety to an individual. Thus in such a short and medically focussed assessment there is a likelihood that someone could be found fit to work when in fact they would not be able to engage in work.

  6. Specific weaknesses in the WCA include:

  7. The insistence (Chapter 42 of DMG: page 12) that “No customer will be found not to have limited capability for work without either having a medical examination or having been offered one.” One interpretation is that no persons will be declared fit for work without “proof”. However, the sentence also suggests that all cases regardless of how serious or progressive the disability will be assessed through the WCA in spite of adequate alternative documentary evidence. This suggests that expert evidence from the relevant medical professionals will be discounted during the questionnaire stage.

  8. There is continuing lack of clarity regarding the consideration of written medical evidence from GPs, hospital consultants and other medical professionals during the medical assessment.

  9. There is a general lack of information on what the medical assessment will entail.

  10. Claimants have found problems caused by the scheduling of the work-focused health-related assessment on the same day as the medical assessment, without consideration for conditions causing fatigue

  11. There is a lack of clarity regarding the scoring system for the work-focused health –related assessment. Various activities have descriptor “marks” up to 15. To be considered to have limited work capability requires the claimant to have one 15-point disability, or a range totaling above 15 points. The DMG does not provide the justification or reasoning for the assignation of scores to specific disabilities. Thus a number of issues with no direct comparison, either medically or in terms of work, are arbitrarily awarded the same score.  The further scoring scheme to prove limited capability for work-related activity is redundant as all these disabilities would be flagged up in written medical evidence.

  12. The scoring scheme seems weighted against claimants with various mental health problems in that the descriptors of limited work capability focus on the physical ability to accomplish a given task. The tick-box assessment could thus overlook serious mental health problems.

  13. Another worry is the status of those waiting for the result of their appeal, as there exists a notable lack of clarity on this issue. As 70% of appeals made with representation are successful, this is especially worrying, with the possibility of people being wrongly assessed and then placed on an interim benefit whilst awaiting appeal.

  14. The above problems with the WCA raises the issue of the fitness-for-purpose of the ESA Work-Related Activity Group (conditional) and Support Group (unconditional). Given the list of problems mentioned above we are concerned that many disabled people may continue not be allocated to the correct group.

  15. We are unsure and there is no clarification as to when those in the support group will be re-assessed to see if they have become fit for work. Reviewing claimants in the Support Group is unhelpful to the claimant due to the stress caused, but is also a waste of resources and time for the claimant and the taxpayer. Most people distributed to the Support Group will have clearly defined medical conditions that will not improve and, in many cases, are likely to progress. As such, reviews are unnecessary bureaucratic procedures.

  16. The work-related activity group suggest that there will be work-related activity available for its members. Given that these claimants will have limited capability for work, and at a time when the labour market is in recession with far fewer job vacancies then people seeking work it seems unlikely that potential employers will be convinced by their capability. Thus the conditionality imposed in this case is unfair especially for those with fluctuating conditions. The application of financial sanctions on benefits is an unfair outcome for those whose symptoms may change in severity over a very short period of time.

  17. The work-related activity group also covers too narrow a criteria, with many former IB claimants being found fit to work and thus denied the support that they need. Most IB claimants will have a real illness or disability, even if the WCA “proves” that they are capable of work. These disabled people will not be in a position to compete against non-disabled people in the labour market and will instead be pushed further into poverty, thus undermining the declared aim of the reforms which is to help to lift those most disadvantaged out of poverty.

  18. The final argument is that the assessment process is stressful, and those experiencing this stress may be in poor health. Between last October and December, 22,618 people consulted Citizens Advice offices about ESA, the vast majority of them with concerns about the work capability assessment. There is also a large backlog of appeals against work capability assessment decisions. A stressful process will risk aggravating underlying health conditions, and especially so for a number of mental health conditions.

Questions asked in the consultation

  • Question 1a: How effectively does the WCA correctly identify those claimants whose condition is such that they are unable to undertake any form of work related activity (the support group?)

  1. In spite of the recommended changes to the WCA most of the functions measured in the WCA remain based entirely upon physical ability to carry out tasks such as being able to raise arms above shoulder height or lift items of a particular weight. This could mean that a disabled person who is nevertheless capable of working in a non-physical work environment may be wrongly excluded from the support needed to seek work, or wrongly identified as not being fit for work.

  2. However we feel that disabled people themselves are the best placed to decide for themselves if they are able to seek work rather then being assessed through a series of limited physical tests.

  3. While some abilities of memory and learning and the ability to mix socially within a workplace setting will now also be considered these again seem to be limited in how they are applied to claimants. We have reservations that the problems many disabled people who have mental health conditions, neuro-diverse conditions or learning difficulties face will not be adequately identified within the WCA. This is because we do not feel that a short WCA can be used to adequately gauge someone’s response to working in a particular environment which may result in stress and anxiety to an individual. Thus in such a short and medically focussed assessment there is a likelihood that someone could be found fit to work when in fact they would not be able to engage in work.

  • Question 1b: How effectively does the WCA correctly identify those claimants whose condition is such that they are currently unable to work due to illness or disability (the limited capability for work group?)

  1. For any disabled person with a long term condition we feel that the WCA only provides a snapshot of their ability to work and that greater reliance upon the longer-term records of their own GPs and consultants should be taken into consideration together with the test outcomes. The nature of these tests seems to be very much an exercise at ticking boxes without any more in-depth analysis of abilities and disabilities being considered.

  2. We are also concerned that such a short WCA does not identify or make allowances for the impact of fluctuating conditions on a person’s ability to work in spite of the changes recommended in the internal review of WCA.

  • Question 1c: What are the main characteristics that should identify claimants for each group, where these may differ from the current assessment?

  1. We feel it is vital that disabled people themselves are able to be involved in making such decisions based on their own expertise of their abilities and disabilities. These characteristics would therefore vary between individuals even if they had the same impairments since how disabled people may be affected by any set of impairment related factors can differ widely.

  • Question 2: What evidence is there to suggest that any issues with the operation of the WCA are as a result of the policy design, and what evidence is there to suggest that they are as a result of the delivery?

  1. The policy design is inflexible and does not meet the needs of individuals. It is based solely on a very limited range of tasks and abilities which requires those conducting the WCA simply to tick various boxes rather than making more in-depth assessments of individual’s abilities and disabilities.

Appeals

  1. A House of Lords debate earlier this year noted that between April 2009 and March 2010 the ESA appeal number quadrupled to 46,500 in March 20101. A total of 126,800 appeals in one year which represents more than 37% of appeals for all benefits. Of equal concern is the fact that 40% of the decisions that people were fit for work were overturned, rising to 70% when people had representation.

  1. The numbers of people successfully appealing against these decisions would suggest that there has been inappropriate group allocation with many disabled people being declared fit for work when they are not.

  2. That such a high proportion of appeals is successful is not only a worrying indicator that the WCA  is not working effectively, but also that the seriously ill, or less articulate who are less likely to appeal, may have genuine cases that do not reach appeal. Further, disabled people who may not be able to physically access representation as a result of their impairments have their chances of success at appeal almost halved.

  1. Concerns have been raised that the ‘health professionals’ who conduct these assessments are not necessarily medically qualified doctors and therefore may well lack the skills necessary to carry out such assessments. These disabilities may be hidden and may include specific mental health problems which often even medically qualified doctors are unable to respond to adequately. Therefore people should only be deemed fit for work by their own doctors and consultants or another impairment specific experts. Symptoms may vary from day-to-day and on a case-by-case basis.

  2. There is a lack of public information on the medical knowledge that approved healthcare professionals will need to demonstrate, and a lack of requirements for healthcare professionals to demonstrate any adequate understanding of the effects of disability and illness when seeking approval.

  3. This missing expertise from WCA has led to well-reported cases of seriously ill people being found fit for work and others deemed by the occupational health sector of Atos healthcare as unfit for work and at the same time examined by other Atos healthcare workers through the WCA and the same people found fit for work. It is difficult to know how this could be the case and be justified.

  1. Little consideration seems to be paid within the WCA to evidence from GPs and consultants which is of grave concern in relation to disabled people with complex and fluctuating conditions.

  2. Further there is an inadequate system of exemptions for claimants with chronic disability and illness, or mental health conditions even, when supported by medical evidence.

  3. Although some minor changes have been recommended so that those undergoing cancer treatment and some of those with more severe mental health problems will no longer be subjected to a WCA the number of appeals upheld ( 40% rising to 70% when people had representation) would suggest that the WCA is not working effectively in any way.

  • Question 3: What is the best way to ensure that the effect of fluctuating conditions is reflected in the recommendation of the WCA?

  1. It is impossible to measure the effect of a fluctuating condition in a one-off assessment on a particular day. How this affects someone on their worst day has to be taken into account since this is what is likely to affect their ability to work. Further the impact on someone with a fluctuating condition, such as IBD, ME, of factors such as tiredness and exhaustion need to be factored into any WCA. Simply to consider whether they can complete a simplistic physical task does not in any way reflect whether work could be maintained in a work place setting for any length of time.

  2. The WCA assessment further does not in any adequate way address fluctuating conditions which cannot adequately be assessed by a snapshot on one particular day and cannot be based upon simple physical ability to carry out tasks, but need to be assessed using long term information provided by doctors and consultants. Nor does the assessment of such conditions take into account variations in mental health conditions or the effects of extreme fatigue and exhaustion that often accompanies such conditions.

Question 4: What is the best way to ensure that the effect of multiple conditions is reflected in the recommendation of the WCA? Are there specific conditions that should be regarded as contributing to or adding additional weight to others, where both are present?

  1. The cumulative effects of any multiple conditions must be considered so that an overall picture can be presented of someone’s true ability to work. Obviously if someone has a minor physical disability but there main problems are related to a mental health condition then this must be fully reflected in any WCA. The condition that is most likely to affect their ability to work should be given the greatest degree of importance.

  • Question 5: What is the best way to give adequate weighting to additional (or initial) evidence outside of that gathered through the WCA? How can any changes be achieved without placing a burden on GPs and health care professionals, and without compromising their relationship with their patients?

  1. Anyone with an impairment would normally be already known to their GP and any consultant that they have therefore there should not be any additional burden to them in asking for information to support the disabled person’s WCA. Since the WCA is a short snapshot interview it is vital however that adequate reports and information are available and taken into full consideration from GPs and consultants.

  • Question 6: Is there any evidence to show that there have been particular problems with the WCA for any specific groups? These groups may include, but are not limited to, men and women, people from black and minority ethnic backgrounds, or people from differing age groups.

  1. There have been well documented cases where those with mental health conditions and those suffering from cancer have been found fit to work however these issues will now hopefully be resolved due to the new guidelines which are to be introduced.12

  • Question 7: Do you have any suggestions for how the WCA process could be improved to better assign people with health conditions to the most appropriate part of the benefits system?

  1. This should be dependent upon disabled people’s own choices and knowledge of their own impairments and abilities. There should be full support, without any sanctions, available both to those who want to work and to those who feel they are unable to for whatever reasons.

Conditionality and Sanctions

  1. While we would support real help for disabled people who want to work to be able to do so we are concerned that the threats of conditionality and sanctions result in additional stress and pressure on disabled people. For anyone with a fluctuating impairment in the support group there should be no conditions attached to their work search and no threat of sanctioning benefits for any disabled person. It is difficult enough for many disabled people to enter the labour market without any threat of sanctions if they don’t, or if they fail to succeed.

  1. We are further concerned about the statement within the reforms proposed in Welfare for the 21st Century which suggests that if someone is able to work for a few hours a week they should then be pushed to work more hours. While it has always been recognised within the IB rules that some form of permitted work may be beneficial to the well being of claimants which we would support we cannot support the notion that if someone is able to work for some hours then they should be forced to then work more. We feel it is essential that it is the disabled person who makes these decisions about how long it is possible, and if it is possible for them to work.

Review Process

  1. The review process to be tested out in 2 pilot sites also raises a number of concerns, all paperwork for these test areas will be made by hand and none of the computer systems to be used later after February 2011 will have been tested to see whether they are fit for purpose. Further, at the same time that DWP say they expect an extra 30,000 of existing IB claimants to be making new JSA claims – after being refused ESA at the beginning of March 2011- 84,000 staff at Job Centre plus will lose their jobs. How will these new claims be processed and what safeguards will be in place to ensure any disabled person will be able to access any benefits within a reasonable length of time?

  1. From February it is planned to migrate 10,000 IB claimants a week using completely untested DWP software. This will be 75 times the number of claimants being assessed in the trial areas per week. Claimants will also be subject to a number of ‘touch points’ during their migration process however what these might be is not made clear at all.

  1. The leaked document further says that ‘The outcome of the reassessment process may ultimately affect customers claims for Disability Allowance yet does not enlarge on this statement in any way. We would seek an assurance from Ministers that DLA claims will not be affected by this migration process.

Payment by results

  1. We are concerned that since payments to get disabled people off IB and onto JSA will be paid by results, this may well lead to ‘parking and creaming’ so that those disabled people who may wish to work but have the most severe disabilities and the most complex problems in securing employment will not be seen as being as cost-effective to support as those who have more minor impairments.

Additional Comments

  1. If the government has a real commitment to encourage disabled people to engage in meaningful employment then it is essential that any assessment of capability to work is supported by additional structural changes to enable participation. There seems to be an underlying assumption within the WCA that disabled people are the ones putting in place barriers to their working. The true situation of how society’s barriers disadvantage and prevent disabled people from working are not addressed in any way. The fact that only 15% of adults with autism, and only 35% of those with a mental health condition, are in employment cannot be deemed to be as result of their behaviours but must be seen to be attitudinal on the part of employers. Workplaces remain physically inaccessible in too many cases regardless of the DDA. Unless these factors are tackled adequately all that will result from disabled people being forced onto JSA will be increased poverty and continuing marginalisation for them.

  1. Further cuts to social care funding which is almost entirely now restricted to funding to meet substantial and critical needs may prevent disabled people being able to get out of bed and actually go to work even if they are deemed to be fit for work. These are the very real barriers that are faced by disabled people who may wish to work and must be addressed and paid for by the government if they are serious in saying that ‘these reforms are not just about getting people who are able into a job. These reforms are the first steps towards tackling one of the key drivers of poverty and breaking the intergenerational cycle of worklessness and disadvantage.’

  1. There are a number of examples where people have been found unfit for work by Atos’ workplace tests, and then found fit for work by the WCA, also undertaken by Atos.

  1. For example Such cases include that of Mr Stephen Moore-Ratcliffe, from Haworth, Yorks, who had a brain tumour. As a result of his operation to remove the tumour he was unable to sleep, had weakness in one side of his body, and had fits. His GP said he was unfit for work, yet, following a 15-minute medical assessment he was declared fit. This meant his benefits were cut from £178 to £114. He could no longer cope, and attempted to overdose on medication.

  1. Campaigning website ‘Where’s the Benefit’ has a story dated August 11 2010, which details a woman who failed her employers health test, ruling she was not fit for work, then applied for ESA, but was found to be fit for work. More interestingly the company who undertook both assessments was ATOS healthcare. This is a serious problem, and is of great concern to us.

  1. Further there is the case of a person suffering from complete renal failure, who has to undertake dialysis, is left suffering pain if they sit still, feel weak due to lack of appetite, yet has been found fit to work.

  1. We have had discussions with a number of people who are concerned to hear about the proposed changes to the Employment and Support Allowance for working age people.

  2. Although changes to the criteria would free up money for the government – there has been no direct approach to people who would be affected by these changes – many of them heard by accident. If you are making changes that affect disabled people you should directly contact disabled individuals and disabled person’s organisations to hear their views as such policy decisions can have a substantial impact on their quality of life and ability to live independently.

  3. A primary concern is that it will be harder to get the correct number of “points” as the DWP have:

i) Reduced the number of points per activity for many criteria (for example, unable to walk for more than 100 metres – 9 points, will change to unable to “mobilise” for 200 metres – 6 points),

ii) Significantly changed criteria (for example, unable to attach / empty a drainage bag/ stoma pouch without assistance – 15 points, becomes “loses control of bladder / bowels or has leakage from drainage bag/ stoma at least once a month – 15 pts) or

iii) taken criteria away completely (for example the whole maintaining personal hygiene category and many mental health examples).

  1. It is clear that, with the changes, some people who are so disabled that they are entitled to higher rate DLA won’t be entitled to the ESA despite the regular assistance the Government has conceded that they need by the fact that they receive this rate of DLA.

  1. The changes made do reflect what difficulties people would have in the workplace, but they don’t reflect the basic difficulties that people would experience in their day to day lives even before they could consider going out to work. The removal of the sections that dealt with being able to wash oneself, turn a tap, do up buttons, feed oneself and to be able to use the toilet / empty appliances without assistance means that Atos might say that someone is fit for work even if they are unable to wash and dress to be ready for work.

  1. The new criteria are not comparable so do not necessarily “pick up” those people who would have qualified under the current criteria, particularly if the assessor chooses to interpret criteria literally (such as if someone is able to make an X on a piece of paper and saying that this is proof of having enough dexterity to “make a meaningful mark”).

  2. The report does mention the recognition that employers are reluctant to take on a disabled person but it does not deal with the issues faced by disabled people who need significant contributions from Access to Work and how limiting and bureaucratic this scheme is, both for employers and for employees. The fact that employers may have to contribute or that items can be refused funding as they could be seen as a “business benefit” means that employers are financially penalised for taking on new employees who are disabled, or whose existing employees become disabled.

  3. There is little recognition of the other barriers that disabled people experience, such as a lack of accessible transport, the fact that applying for flexible working isn’t a right, and the fact that being able to use the fallback of a “reasonable adjustments” negates the need to provide fully accessible and inclusive buildings, services and information. There is no point having criteria concerning “mobilising” in a wheelchair, “understanding a message” – by reading large print, or “using an appropriate keyboard and mouse” when, in reality, the accessible buildings, 16pt large print and accessible information technology are rarities – not the standard.

  4. There is also no recognition of the financial burdens that people encounter due to being disabled. They have to pay for care packages, aids and adaptations in the home, even mobility aids. Many disabled people still aren’t entitled to free prescriptions / medical care, and by tightening up the criteria this would worsen the problem. Disabled people may have higher housing costs with limited opportunity to move due to restrictions in accessible property, the need for an extra bedroom for a care worker and non portability of care packages – tightening the ESA criteria will lead to increased financial hardship without extra benefits or opportunities for disabled people.

  5. The reduction in funding to Social Services departments, and the change in Independent Living Fund eligibility, means that ever smaller care packages are being awarded to an ever shrinking number of eligible people who are in need of care and disability benefits such as DLA or the disability premiums of means tested benefits have to be used for paying for basic care privately. This is the very reason why the “work task only” basis of the new criteria will miss out whole swathes of disabled people, who neither get the basic assistance required from social services, nor will they qualify for the benefits which they could put towards paying for this care. This is not conducive to the proposals for getting more disabled people into work. Only the provision of more support will enable any disabled person a chance at having the opportunities that most non-disabled people have.

  6. According to a Guardian Article, some 30 plus organisations have written to you highlighting overwhelming evidence that the tests can be unfair and inaccurate. We also believe this to be the case.

Closing date for responses

The closing date for responses is 10 September 2010.

How to Respond

You can download the call for evidence and find out more information about responding to this consultation from the DWP website link below.

More information

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One thought on “United Kingdom Disabled People’s Council response to Independent Review of WCA.

  1. Pingback: UK Disabled People’s Council response to the WCA – some key points. « Mind In Flux

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