Work Capability Reassessments

Julie Hilling Excerpts

Wednesday 5th December 2012 Westminster Hall

[Sheila Gilmore]

My hon. Friend raises an important point. There is evidence that people who are represented are more likely to be successful than those who are unable to get representation.

That is the context for the issue of reassessment: the high volume of appeals means that people must wait long periods for a hearing and a decision. In answer to a written question last month, the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant) said:

“During the period 1 April to 30 June 2012 (the latest period for which data has been published) the average time taken from receipt of an ESA appeal by the SSCS Tribunal to disposal was 19 weeks”.—[Official Report, 19 November 2012; Vol. 553, c. 307W.]

However, that 19 weeks is not the average waiting time for an individual making an appeal but merely the average time it takes the Tribunals Service to process the appeal after it receives the papers. Before it even receives the papers, an appeal must be lodged with the DWP, the relevant decision maker has to perform a series of checks and the Department must prepare and submit its response.

There is no time limit for DWP to prepare its response to an appeal. In a written answer to a question from me in February this year, the then Justice Minister, the hon. Member for Huntingdon (Mr Djanogly), indicated that between June 2010 and May 2011, the average time it took from the submission of an appeal to DWP to receipt of the papers by the Tribunals Service was 8.1 weeks. If we add that to the average of 19 weeks, we are looking at about 27 weeks. Over and above that, individuals will have submitted an application and undergone an assessment. In 2011, they had to wait seven weeks for the result of that assessment, although I know from talking to my colleagues that many people encounter much longer waits.

What does all that mean in practice? I raised an example during Prime Minister’s questions on 2 March last year. A constituent of mine had a young adult son who was severely autistic but had been found fit for work, and who appealed successfully. The process took 10 months, and he was told that he would have to be reassessed in six months. I do not think that the Prime Minister understood the question that I was asking; he gave me an answer about disability living allowance rather than employment and support allowance.

Before the Minister says, “That was then; that was 2011, and we have made so many improvements that it isn’t happening any more,” only two weeks ago, I visited a constituent whom I had not met before who told me a similar story of having applied, being refused and appealing, and who within a relatively short time had to go through another assessment.

[Julie Hilling (Bolton West) (Lab)]

My hon. Friend is being generous with her time. Does she agree that it seems to be utter nonsense? There is a lack of understanding. If people have progressive illnesses or permanent conditions, they will not be any more fit for work in a few months’ time. It seems to be one of the absolute immoralities of the system that people who cannot ever work continue to be called back for reassessments.

[Sheila Gilmore]

That leads me neatly into my next point. I followed up with a written question, and the then Minister of State for the Department of Work and Pensions—now Lord Chancellor and Secretary of State for Justice—set out the official line, which is that the period between assessments is known as a prognosis time and is determined by the decision maker at the time when they decide whether someone is fit for work or should be given ESA. The clock starts ticking on the date of the original decision.

My immediate question is why someone found fit for work would be given a prognosis time in the first place. Hon. Members might think that that would not be necessary, because the assumption is that the person will be moving on to jobseeker’s allowance. The only reason that I can envisage for that is that prognosis times are, in effect, a precautionary measure in the event that if a claimant successfully appeals, as so many do, and is awarded ESA, a prognosis time is ready. But if the decision maker’s original determination that the claimant was fit for work is overturned, why should we put any faith in the corresponding determination on what the prognosis time should be? If the decision on a claimant’s being fit for work was wrong, surely one imagines that the decision on the prognosis time would be wrong.

It would make much more sense for those who are declared fit for work to be given no prognosis time and, in the event of a successful appeal, for the judges to be given a responsibility for settling the matter when making their new decision. If that is not thought possible, the prognosis times should only kick in after a successful appeal and should not start from the time of the original decision, because that is putting people on a rapid roundabout.

During the summer, my hopes were raised that the Government might have seen the contradictions in the current arrangements. In an interview for the BBC “Panorama” documentary in July 2011, the then Minister—now Lord Chancellor and Secretary of State for Justice—said,

“It’s been apparent to me in the last few months that we were calling people back too regularly and I’ve instructed the officials that operate the system to actually make sure that we leave a much more sensible gap in between the two.”

--- Later in debate ---

[Esther McVey]

Of course, that would concern me; it would be of concern to anyone. Everybody will be followed up and duly represented and given sufficient support. However, we would have to look into those numbers. Those who are on benefit get the support they need, in contrast to previous approaches through which they were abandoned to a lifetime on benefits. Those who have been found fit for work now claim JSA, an active benefit with a proven track record of getting people into work, as the falling unemployment figures have shown.

On the cases raised this evening, it is important to note that if someone appeals against a disallowance decision, the tribunal considers the evidence, the law and the claimant’s circumstances at the time of that decision. If the appeal is upheld and the claimants are awarded ESA, they are quite rightly required to attend a further work capability assessment in the same way as any other ESA claimant—the timing of the reassessment is the issue. It is not true that the time frame set for the work capability assessment remains fixed by the original decision maker when the fit-for-work decision was made. If an appeal has been upheld, the date for the next WCA is decided afresh by a decision maker; re-referral dates chosen can be three, six, 12, 18 or 24 months later, depending on when it is considered most appropriate for claimants to have their next contact with the Department.

[Julie Hilling]

What concerns me is those people who will always have such a condition or who have a progressive condition, meaning that they will only get worse. What about them? To continue to reassess them and put them through that stress feels absolutely wrong—I cannot think of a better word—

[John McDonnell]

Cruel.

[Julie Hilling]

Cruel, yes. Why are we doing that to that group of people who will never get better?

[Esther McVey]

I completely take on board the hon. Lady’s point. Part of the decision maker’s process is that all the available information will be considered, including: any recommendations made by the tribunal; any factors the tribunal took into account in reaching its decision; the health care professional’s advice from the previous assessment; and any medical evidence submitted after the appeal was made. Other considerations will include the type of limited capability for work, whether the limited capability is likely to change for better or worse and how likely any surgery or other significant improvement is.