R65: Disability Alliance response to The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) Amendment Regulations 2011
10th September 2010
(A) General comment
We believe that the current Work Capability Assessment (WCA) does not adequately reflect the impact of impairments on disabled people’s day to day living resulting in:
- disabled people receiving inadequate benefits;
- disabled people being unable to access appropriate support to find work;
- considerable costs to Government through a high rate of (successful) appeals demonstrating the ineffectiveness of the WCA.
The changes wrought by the proposed amendment regulations are unlikely to resolve these issues, and could well result in the problems increasing.
DA is specifically concerned with the substantial changes made in Part 1 of the WCA to the activities with respect to lower limb function and sensory impairments:
Standing and sitting
Bending or kneeling
In each case the changes have been wrought to take account of adaptation: ‘By accounting for any aids and adaptations which an individual may successfully and reasonably use to mitigate the disabling impact of their condition, their actual capability can be identified.’ 1
Consequently (to simplify): ‘walking’ has been replaced by ‘mobilising’; ‘standing’ and ‘sitting in a chair’ have been conflated to ‘remain(ing) at a work station, either standing unassisted… or sitting…’, the activity of bending and kneeling has been removed; ‘speech’ has been replaced by ‘making self understood…’; ‘hearing’ by ‘understanding communication by both verbal means… and non-verbal means …’ and ‘vision’ by ‘navigation and maintaining safety…’.
As a consequence of these changes, if implemented, even greater numbers of disabled people will be likely to fail to accrue enough points in a WCA to retain entitlement to ESA. More disabled people will be unable to find appropriate work and consequently be unable to avoid living in poverty. People potentially likely to fail to accrue enough WCA points will include claimants with paraplegia, severe sight impairments and/or deafness.
DA does not believe that this was the policy intention behind ESA when it was introduced. The Green Paper at the time stated:
‘For example, blind people are currently consigned to the exempt group, although most blind people are capable of, and indeed wish to, undertake appropriate work, with appropriate support where necessary. Our proposals will correct this anomaly.’ 2
The concern expressed in the above paragraph is that blind people had been placed in the exempt group (with respect to the ‘Personal Capability Assessment’), which can be roughly correlated to the ESA support group (in that there is no further conditionality attached to the receipt of the benefit). Thus the WCA ‘limited capability for work-related activity’ assessment did not contain descriptors on visual impairment from the onset. Consequently blind people claiming ESA would normally find themselves placed in the work-related activity group, a place where they could seek ‘appropriate work, with appropriate support’. DA does not believe that the policy intention was to exclude blind people from ESA, nor to ensure that their use of the benefit was temporary, otherwise provision for this would surely have been included in the original regulations.
ESA was intended to be a system flexible enough to allow people to move towards work in a manner appropriate to their needs. The key difference between ESA and the benefits that it replaced is the concept of ‘limited capability for work’. This was intended to be more flexible than simply dividing people up into two groups: those capable of work and those incapable of work. The proposed changes to Part 1 of the WCA damage the integrity of the concept of ‘limited capability for work’ even further than its current limited use. The result of the proposals that people with such significant impairments as blindness, deafness or paraplegia are deemed fully able to work without additional system support is both highly unrealistic and contrary to DA’s understanding of the original WCA intentions.
The regulations are also being proposed at a time of considerable economic uncertainty and fears over job losses and limited employment opportunities for all citizens; for disabled people these risks are far higher. Disabled people are less likely to be in work and more likely to require benefits or greater support to attain/retain employment.
The new Government’s commitment to ensuring the impact of its broader proposals is fully assessed has also been shown to be limited. The coalition agreement includes an intention to review all employment law. If the review weakens the Disability Discrimination Act responsibilities of employers to make ‘Reasonable Adjustments’ to enable disabled employees to take-up or maintain a position, the benefits system will need to be even better performing to ensure disabled people can access appropriate support and finances than it is currently occurring under the existing WCA. DA fears that the current proposals would weight the WCA even further against support being accessible to disabled people at times of need.
1Internal Review of the Work Capability Assessment (October 2009); Para 3(2)
2A new deal for welfare; Empowering people to work (January 2006); Para 22
(B) Specific comments on descriptors
Activity (1): Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid can reasonably be used
We recognise that assessing an individual’s ability to walk does not necessarily provide the most appropriate measure of their capability for work but feel that the wording ‘if such aid can reasonably be used’ could cause problems in assessment in relation to manual wheelchair use.
1. This test could apply to those who do not ever use a wheelchair and who have not considered using one. It would be decided by a decision maker, based on potentially basic or inaccurate (as current WCA experiences and appeals demonstrate) information from a very short medical assessment. There may be practical problems in deciding the criteria for considering that ‘such aid can reasonably be used’ which would result in even greater numbers of appeals on this issue. DA is very concerned at the current backlog of appeals – which is having an impact in some areas on other benefit appeals (for example, one DA member organisation has suggested that the wait for a DLA appeal in Essex is now 6-8 months due to WCA appeals taking priority). Appeals are also extremely expensive and, at a time of national budget cuts, DA believes operating a more effective WCA would demonstrate greater commitment to both efficacy and resources.
2. The wording does not consider whether wheelchairs would in fact be available to those not normally using them. If they were not available this would not be a reasonable test.
We would suggest that the wording of the activity be
‘Mobilising unaided by another person with or without a walking stick, or other aid if such aid can reasonably be used or manual wheelchair if used.’
DA is also concerned that even for people used to using a wheelchair, many workplaces remain inaccessible – and it may not be reasonable to adapt the premises for some smaller and even medium-sized employers/businesses. DA is disappointed that DWP has not worked more closely with employers to develop proposals for the WCA that not only reflect people’s potential ability to work, but also the availability of appropriate employment for disabled people.
Activity (5): Manual dexterity
(re: turning a star-headed tap)
The Explanatory Memo to the SSAC at point 2.10 states that ‘Descriptors which do not represent a significant limitation of functional capability in relation to the workplace – such as turning a star-headed tap – have been removed.’ The descriptors about a star-headed tap are in Activity 6 of the existing regulations: para (a), which referred to both hands, and para (g) which referred to either hand.
As many workplaces still have washrooms and toilets that are equipped with star-headed taps, it is inaccurate to suggest that these descriptors do not represent a significant limitation of functional capability in relation to the workplace. Removing the descriptor would make it far tougher for the WCA to accurately register some disabled people’s manual dexterity capabilities. We would suggest that the descriptors about a star-headed tap in Activity 6, Manual Dexterity, para (a) and (g) are preserved.
Activity (10): Consciousness during waking moments
The existing descriptor 11(c) has been removed:
‘At least twice in the six months immediately preceding the assessment, has had an involuntary episode of lost or altered consciousness, resulting in significantly disrupted awareness or concentration.’
The previous descriptor has also been reduced from 9 to 6 points.
The Explanatory Memo to the SSAC at point 2.14 states that ‘The changes recognize the fact that loss of consciousness is either significantly regular to warrant entitlement to benefit on the basis of this single activity, or are relatively managed and controlled, and therefore do not play a significant role in limiting capability for work’
In the Internal Review of the WCA it was also stated that:
‘… if this is an individual’s only disability, then such an event four times a year would not present a significant limitation to their functional capability’ (Para 4.3.5, page 36).
However, the extent to which someone’s functional capability is limited by lost or altered consciousness is not simply determined by the frequency of the events. Other factors that need to be taken into account are:
- The severity and nature of the loss or change of consciousness;
- The period of recovery;
- The possibility for events to have potentially dire consequences for the disabled person or potential colleagues;
- If injuries have been sustained during previous episodes; and
- If a pattern to events exists (especially if episodes could be linked to stressful issues like entering work).
Two people who each have four events per year could have radically different limitations to their functional capability, dependent on the above factors.
DA believes that the existing descriptors take this into account more closely and should be preserved.
The words ‘without warning’ have also been included in the new descriptors. If these words are retained, the reference should be to ‘without adequate warning’, which can be duly acted upon (either by the claimant, one of their colleagues or through other appropriate and available assistance).
DA also supports the detailed responses of MENCAP and the National Autistic Society, both of which focus on Part 2 of the Schedule.