Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011

Countess of Mar Excerpts

Wednesday 16th March 2011 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, the DWP is in the middle of doing a very large jig-saw. The picture on the box is of a lot of people scurrying to work. In one corner older people are still going out to work, and in another corner people with disabilities are going about their business with the replacement DLA. But at the moment the pieces of the jig-saw are all jumbled up on the table, perhaps with the Minister frantically trying to find the straight edges. Are these regulations the pieces with the straight edges or not? I am very grateful to my noble friend Lord Kirkwood for giving us the opportunity to discuss these regulations because there are some disturbingly divergent views, as we have heard most movingly this evening.

The Merits Committee has said that the regulations may imperfectly achieve their policy objective, which is not something that it says at all frequently. In particular, it encourages the House to seek further information from the DWP on the rationale for putting these regulations forward now. It will not be disappointed, as all noble Lords have raised this matter. This is a recurring theme in all the evidence that we have been sent, from the CAB to the disability benefits consortium.

There is puzzlement that the DWP wants to bring in these changes now for several reasons. The principal reasons are: that the data from the migration trials from incapacity benefit in Aberdeen and Burnley have not yet been evaluated; that we are expecting more changes to the descriptors and to the work capability assessment as a whole once Professor Harrington has published his second-year review; and that the bar is thought by some groups to have been raised so high that there is now hardly any difference between those in the employment group of ESA, which comprises the limited capability for work people, and the support group, which is the limited capability for work-related activity people.

The Social Security Advisory Committee is more forthright because looking at DWP regulations and commenting on them is its job. It says, as we have heard, that apart from a few changes which it welcomes, the department should not proceed with the remaining proposed changes to the descriptors in the WCA until they have been reconsidered in the light of the findings of the Harrington report into the WCA and the migration trial of IB claimants. Why is it that the DWP believes that the changes to many of the descriptors are improvements, when the disability and other lobby groups say, as we have heard this evening, the exact opposite; namely, that the changes represent a tightening of the screw, making it harder for claimants to claim ESA?

I believe that the answer may lie in the different interpretations of the purpose of the work capability assessment. It was set up to replace the personal capability assessment as a test of a person’s capability for work rather than their incapacity. As Professor Harrington says in his review,

“the WCA was designed to be a first positive step towards work for most people”.

However, he also says that it is not working as well as it should, which is borne out by the fact that 40 per cent of appeals against a decision that an individual is capable of work are currently upheld. This surely shows that something is seriously wrong with the assessment. In particular, Professor Harrington says that there are clear and consistent criticisms of the whole system and much negativity surrounding the process.

The wider interpretation of the purpose of the WCA is not just whether it looks at someone’s theoretical capability of work but whether it works in the real world of work. This is where the Social Security Advisory Committee report and the lobby groups diverge quite strongly from the DWP. The SSAC tries to be fair. I think that it is worth quoting two sentences from the report in full, which states:

“The Committee recognises that the assessment of capability for work is a contentious and emotive issue and has always advocated a positive approach to the assessment of capability that looks at what the individual is able to do and their adaptation to their health condition or disability, rather than focusing solely on what a health condition or disability prevents the individual from doing. However, the Committee also recognises the complexity of many individual cases and the significance of the factors that may determine capability in the real world but which cannot be easily measured by a test that scores functional capability”.

I would contend that this is why there are such divergent views between the SSAC, the Merits Committee and the lobby groups on one side and the DWP on the other. The DWP is obviously not prepared to wait until the migration trials have been evaluated to change the descriptors or for Professor Harrington’s task group to report on the mental, intellectual and cognitive descriptors, which will report to the Minister later this year.

However, there is a way forward, bearing in mind that the recommendations from Professor Harrington’s first report have been accepted in full by the Minister—here I echo my noble friend Lord Kirkwood. There are five recommendations, which can be summarised as follows: that more empathy should be built into the process, with JCP managing and supporting the claimant; that the transparency of the Atos assessment should be improved; that there should be better understanding by Atos of mental disabilities; that decision-makers should be better empowered; and that there should be better communication of feedback between Jobcentre Plus, Atos and the First-tier Tribunal to improve the quality of decision-making on all sides.

Professor Harrington’s full report is very instructive on all these matters. For example, he says that the language and logic used in the LiMA computer system,

“is not very intuitive or accessible to claimants who receive their final report”.

He goes on to say:

“The Atos Training and Development handbook encourages”,

healthcare professionals,

“to use open questioning and not to rely on the LiMA system”.

However, in practice this hardly ever happens. He also sheds light on the fact that claimants are expecting a medical examination, which looks at their illness or impairment, rather than an assessment of their functional capability. It does not help when the Atos healthcare professional conducting the assessment does not look at the claimant at all, but rather at the screen, nor does it help when the healthcare professional has poor knowledge of some of the less common health conditions, such as Parkinson's disease. Another key part of Professor Harrington's report was that the Jobcentre Plus decision-makers rarely make a decision that disagrees with the evidence provided by the Atos assessment because they lack the confidence to do so. In other words, the decision-makers are often just decision stampers.

The DWP says it is working to implement these recommendations as quickly as possible. I think the whole House would like to know how the department is getting on with this implementation, because this is not just an extremely important matter but, I believe, the key to the whole reputation of the work capability assessment when the migration from incapacity benefit is rolled out nationwide. Therefore, I would be grateful if the Minister would tell us what steps are being taken to implement the current Harrington proposals.

The Merits Committee report is, as usual, an absolute model of clarity. It states, as has been stated already today, why it is so important that the work capability assessment is got right. Those who are deemed to be fit for work and are on JSA will receive £65.45 a week, those who are found to have limited capability for work, and therefore on the work-related activity group of ESA, will receive up to £91.40, while those in the support group of ESA will receive up to £96.85. The difference in the levels is substantial.

Before I finish, I unequivocally welcome the change in Regulation 35 which allows claimants awaiting chemotherapy to be placed in the support group. However, in general, it is difficult not to agree with the SSAC's view that, in removing some of the subtleties in the descriptors, about which we have heard so graphically today,

“the test's relevance to the real world has not been enhanced”.

[The Countess of Mar]

My Lords, I am grateful to the noble Lord, Lord Kirkwood, for tabling this prayer today, and I echo his core concerns. I declare my interest as chairman of Forward-ME and that one member of Forward-ME is a member of Professor Harrington's task group looking at fluctuating conditions.

There has always been a problem with the descriptors for the work capability assessment, particularly for people with mental illnesses and for those with what are termed “fluctuating conditions”. During the progress of the Welfare Reform Bill four years ago, I raised concerns about the ability of Atos medical staff to discern the difficulties encountered by people with ME/CFS when, on the day of the assessment—which is not, as some claimants think, a medical examination—those being assessed might have been able to perform a number of tasks on a one-off basis but they were frequently unable to repeat the tasks on a consistent basis. There seemed to be no room for detailing pain, muscle weakness, fatigue and other disabling symptoms that occur intermittently and often severely. As a result, the assessor has awarded very few points and the decision-maker has then considered them fit for work. In every case that I have encountered, people with ME/CFS who have appealed to the medical tribunal have succeeded in their appeals and their benefits have been reinstated.

When Professor Harrington published his An Independent Review of the Work Capability Assessment last November, the hopes of ME/CFS sufferers were raised. Other noble Lords have quoted from his report, and I am sure that the Minister knows it off by heart, so I will not repeat it all. The Secretary of State for the Department for Work and Pensions, as others have said, accepted all of Professor Harrington's recommendations on behalf of the Government. Under “A programme for work for year two” in that report, Professor Harrington wrote:

“This programme focuses on: the descriptors, particularly in assessing fluctuating conditions”.

He had already set up a task group to look at mental, intellectual and cognitive descriptors, and I am aware that that group has reported to him. In the new year the task group to review the descriptors for fluctuating conditions started work. They are due to report to Professor Harrington in April this year. I understand that the mental conditions report will be published in the summer and that for fluctuating conditions in the autumn.

I am aware that the internal review of the operation of the regulations was required by statute. I am also aware that all of the disability organisations involved disowned the report, which they say was flawed. They rejected the recommendations because of, among other things, the negative effect that they would have on disabled people and their families. As other noble Lords have mentioned, the Social Security Advisory Committee was unhappy with the part of the regulations that relate to the descriptors. It recommended that they be deferred until Professor Harrington's independent review of the WCA was complete and the evidence of the outcome of the trial of migration of incapacity benefit claimants to employment support allowance or jobseeker’s allowance was available. As we have heard, the House of Lords Merits of Statutory Instruments Committee accepted that the internal review found that the performance of the WCA was not working satisfactorily and it commended the DWP for wanting to revise it. However, the committee also highlighted some of the flaws in the current statutory instrument. These have already been discussed.

Like the noble Lord, Lord Kirkwood, and the noble Baroness, Lady Thomas of Winchester, I am pleased that the regulation that applies to claimants undergoing or likely to undergo chemotherapy is to be amended, as well as that which applies to drug or alcohol rehabilitation claimants. However, in the light of the conclusions of several reports and the views of a great many experts in mental health and fluctuating illnesses, and the fact that Professor Harrington has been asked to review the descriptors for both these conditions and will be reporting on both by the autumn, I cannot understand why the Government insist on making changes which all the experts, except the DWP, regard as draconian and premature.

We keep hearing about the Prime Minister’s ambition that we should all be happy, and that any government measures should include a happiness score. Has the Minister measured the happiness of the thousands of claimants who are terrified that their benefits are going to be severely reduced, who will go through months filled with anxiety and apprehension as they wait in an ever-lengthening queue to appeal to a first-tier tribunal, or who become totally demoralised because they are forced to apply for jobs knowing that no employer will take them on? Has he calculated the cost of the increased financial burden that will fall on the Department for Constitutional Affairs, which will have to cope with the anticipated increase in the number of appeals following decisions that are likely to be seen as unreasonable?

In order to improve the fairness and effectiveness of the WCA, Professor Harrington recommended building empathy into the process, better training for decision makers, accounting for the particular difficulties in assessing mental, intellectual and cognitive impairments, and empowering and investing in decision makers so that they are able to take the right decision. Would the Minister kindly tell the House whether these recommendations have been implemented?

How are decision makers to come to the “right decision” if they are not given all the information because of the limitations of the descriptors to be used according to these regulations? Are they free to ignore the Atos report if the claimant’s statement and any accompanying medical evidence conflicts directly with the findings of the Atos doctor? I am particularly concerned about people with ME/CFS who have frequently been denigrated and who feel defeated by a system that refuses to recognise their illness. The additional stress these regulations will impose on them will not help to improve their condition. Like many others, I am deeply unhappy about these changes. They are going to prove hugely costly, both financially and emotionally, to claimants and I suspect to the DCA, but then that is another department, is it not? Why can the DWP not wait until Professor Harrington reports later this year? Why the urgency?

--- Later in debate ---

This Government are committed to continuously improving the work capability assessment to ensure that it is as fair and as accurate as possible. I reassure the noble Lord, Lord Kirkwood, that we are also committed to working closely with disability groups in that process. I also reassure the noble Lord, Lord Low, who made the same point. The regulations that we are debating today are the first step on that continuous journey.

[The Countess of Mar]

The noble Lord said that the department worked with disability groups. Why have those groups unanimously dissociated themselves from the internal report?

[Lord Freud]

My Lords, I am pleased to answer that question. I am rather surprised by the actions of the groups. I have seen a lot of correspondence and a lot of internal work. There was very full engagement by both sides, and a lot of correspondence about fine-tuning the regulations. At the end of the process there seemed to be real agreement. Therefore I am genuinely surprised that, after the passage of some months, the consensus seems to have been significantly eroded. Income elements may have come to the fore, whereas the technical analysis that was the subject of the interplay between the department and the groups was perhaps easier to get to grips with.

I will go back to describing the system. The wider system that we inherited, after the measures that the internal reviews described, contained flaws that we as a new Government have looked to put right as quickly as possible. In June we launched the first of the five annual independent reviews of the work capability assessment—the first of the reviews that this House legislated for. It was carried out by Professor Malcolm Harrington, a highly respected occupational physician. He reported last November. He did not consider that the work capability assessment was broken but felt that it was not working as well as it should and made a series of recommendations to improve its fairness and effectiveness. We have fully endorsed his review, as the noble Baroness, Lady Thomas, pointed out, and we have committed to implementing his recommendations as quickly as possible.

The first key element of those recommendations—I am borrowing, again, from the description of the noble Baroness, Lady Thomas—is that we empower Jobcentre Plus decision-makers to make the right decision. They will have clear responsibility for the decisions they make and will be given the support that they need to ensure that those decisions are independent and considered. I hope that that is one of the reassurances for which the noble Lord, Lord Kirkwood, was looking.

The second recommendation is to ensure that individuals are treated with compassion by clearly explaining everything to them, helping them to fully understand the process they will go through and ensuring that they know that they can provide additional evidence, including medical evidence, for consideration at any time. I hope that that is the second of the reassurances for which the noble Lord, Lord Kirkwood, was looking.

The third major change is to improve the transparency of the Atos assessment by ensuring the audio recording of assessments in the Atos pilot. The other element involving the Atos process is that we will account for the particular difficulties in assessing mental health conditions by ensuring that Atos employs “mental health champions” at every centre.

Nearly all these changes will be in place for the start of the reassessment, with the remainder completed in time for the summer. We have also appointed Professor Harrington to conduct the second independent review. He will now examine the assessment in more detail, particularly focusing on mental health descriptors and fluctuating conditions.

I shall now respond to the questions of the noble Baroness, Lady Finlay, on fluctuating conditions. The fact that conditions fluctuate is now embedded in the descriptors. We just want to make sure in this next piece of work that we get that absolutely right. We look forward to Professor Harrington’s recommendations following the second review in due course.

The regulations before us today are part of this improvement process. They come from the internal review undertaken and fully supported by the previous Government. That review suggested a number of changes to clarify and improve the technical descriptors; noble Lords have made these points so I will go through them quickly. The changes include placing individuals awaiting or between courses of chemotherapy in the support group; expanding the support group to cover people with certain communication problems and severe disability due to mental health conditions; greater provision for individuals who are in residential rehabilitation due to drug or alcohol misuse; ensuring the descriptors take account of someone’s adaptation to a condition or disability; and simplifying the language of the descriptors to ensure fair, consistent and transparent applications. These changes will improve the work capability assessment. They will increase the number of people with severe disabilities who are provided with unconditional support in the support group. They will ensure that we do not deny employment support to individuals who, with our help, can get back to work.

The internal review consulted a range of experts and groups and, as I described just now, tried to reach consensus. Significant concerns were expressed by the groups around the descriptors. I will not go into those because I am short of time, but I can respond to the noble Countess, Lady Mar, on fluctuating conditions. It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.

The Department for Work and Pensions has undertaken rigorous testing of these changes to understand their effects. The department modelled the impact of the changes on data from almost 60,000 assessments, and a panel of experts was brought together to examine the changes in significant detail. Where any issues were identified during this process, further refinements were made to the descriptors. From this analysis we expect the changes to increase the number of new claimants who are put in the support group, specifically, those who are awaiting or are between courses of chemotherapy, and some whose limited capability relates to certain mental functions and communication difficulties.

I have run out of time, but I hope that the House will indulge me for two more minutes as this is really important. We are committed to the principle of continuous review and refinement of the work capability assessment. As part of that principle, we have reviewed in detail the working of the work capability assessment and consulted in depth with specialist disability groups to improve the assessment. The addendum to the original report shows how far such concerns were taken on board in these regulations. We are committed to taking Professor Harrington’s review to improve the sensitivity of the process. Of the 17 recommendations that he made, we will have 15 in place in time for April and the other two in a couple of months. I hope that that is a final reassurance for the noble Lord, Lord Kirkwood, and the noble Countess, Lady Mar.

The changes that we are making in the regulations will improve the work capability assessment. They will expand the support group to cover people with severe disability due to mental health conditions and communication problems. They will ensure that the descriptors take account of someone’s adaptation to a condition or disability and accepting these regulations means that we can make these important improvements now. We remain committed to the principle of continuous improvement to the work capability assessment. I trust that the noble Lord, Lord Kirkwood, will feel able to withdraw his Prayer to Annul these important regulations.