Disability Benefits: Assessments

Justin Tomlinson Excerpts

Monday 4th September 2023 Westminster Hall

[Sir Stephen Timms (East Ham) (Lab)]

I am grateful for the chance to speak in the debate, to the Petitions Committee for having arranged it, and to the hon. Member for Carshalton and Wallington (Elliot Colburn) for opening it. He kindly referred to my Select Committee’s report on health assessments for benefits, which was published in April, and my speech will draw on what we said in that report. We also published the Government’s response to the report in June, since when I have been in correspondence with the Minister about some of the key points that arose.

The annex to our report is well worth a look. It is based on a survey of 8,500 people, who told us about their experience of using the system and going through the assessments. They included people with lifelong conditions and people with experience of the use of medical evidence, both of which are topics covered in the petitions.

I will not comment in the debate on the adequacy of the benefits—the Select Committee has an inquiry under way on UK benefit levels that is focused on that—but I must say that over the summer a good deal of concern continued to be raised about the benefits we are talking about not meeting claimants’ extra costs, as they are intended to.

The Government have recognised the need to transform the system, including in their White Paper. I welcome many of the reforms that have been announced—including, to pick up on a point made by the hon. Member for Carshalton and Wallington, in respect of the testing of the use of specialist assessors—but the problem is that they are going to take years to implement. We need to take further action, given the gravity of the problems that we have already heard about in the debate.

A very important recommendation in our report was that assessments should be recorded by default. They should always be recorded, unless the claimant chooses to opt out of having their assessment recorded. The Government have said no to that recommendation, presumably because it would cost a little more, but I really think that is a mistake. All the assessment providers that are contracted by the Department support the recommended change, as do many of the respondents to our survey. It is the only way to get to the bottom of why things go wrong so often.

The hon. Member for Carshalton and Wallington rightly gave the statistics that show that the great majority of appeals against the refusal decisions that come out of assessments are upheld. Surely that shows that something fundamental is wrong. We will get to the bottom of why that is only if assessments are routinely recorded, so that when things go wrong it is possible to look at what actually happened in the assessment and try to learn from the errors to get things right in future.

In his recent letter to me, the Minister said:

“claimants may need to discuss sensitive and personal information at the assessment and may not want this to be recorded”.

Of course, he is quite right about that, which is why we need a proper opt-out for applicants who do not want their assessment to be recorded. Has the Department considered how, if recording by default were introduced, it would be possible to mitigate those risks, which the Minister is right to be concerned about? Has it also looked at what the impact would be on mandatory reconsideration if recording by default were introduced, because I think it would be extremely helpful. If those assessments are not routinely recorded, we will never get the feedback needed to put these serious problems right.

I want to pick up the point about covert assessment, which was raised by both the hon. Member for Carshalton and Wallington and my hon. Friend the Member for Warrington North (Charlotte Nichols). This is a serious and real problem. We called in our report for the Government to

“urgently investigate the use of covert surveillance by assessors”.

Unfortunately, in their response, the Government said no—I am afraid I will be using that word quite a lot in what I have to say today. They said:

“all assessment providers strongly refute the suggestion that they undertake”

covert assessment, but reports of this happening are much too widespread to be ignored, and the Government should look at that.

We are concerned as well about the system for claimants aged 16 to 18. On turning 16 in England and Wales, claimants must move from disability living allowance to PIP through a full-claim process requiring—until recently—a face-to-face assessment, but claimants in Scotland can stay on DLA until the age of 18. The Government’s White Paper acknowledged the need to help with the transition from DLA to PIP, but our conclusion was that young people in receipt of DLA should not be required to claim PIP until the age of 18, and where under-18s decide to claim PIP, they should have light-touch, paper-based assessments until the age of 18.

[Justin Tomlinson (North Swindon) (Con)]

Will the right hon. Member give way?

[Sir Stephen Timms]

I will gladly give way to the former Minister.

[Justin Tomlinson]

It is a difficult and fine balance, because the counter-argument is that the current approach allows people, before they turn 18 and therefore become fully responsible for their own living costs and housing arrangements, to know exactly where they are. So it is not a black and white issue.

[Sir Stephen Timms]

The hon. Member is right: these are often difficult judgments, but I would like to know what discussions the Minister has had with Ministers in Scotland about how things have worked in practice there. I would also like to know what progress the Department has made on plans for 16 to 18-year-olds in work in the severe disability group. I take the point that there are often quite fine judgments to be made, but the unanimous view of the Work and Pensions Committee was that it would be right to move to a system where applicants were not required to move on to PIP until the age of 18.

The Minister will know of concerns that were raised over the summer about pre-application screening questions in the new online PIP application form, which is being developed at the moment, and of the fears being expressed that people will be wrongly put off claiming by those questions, which have not been a feature of the application process before. In winding up, will he say something about those concerns and update us on progress with the online claims system for PIP, which, in principle, is something I very much welcome.

At the moment, claimants have 20 days to return ESA and universal credit forms and a month for PIP forms, and of course they have to send all the supporting evidence in at the same time. Each of those forms runs to tens of pages. The Association of Disabled Professionals told us that this deadline is very difficult to comply with. The deadline starts from the date on the letter, not the date the letter was received. The Association said:

“it is extremely rare for a letter to reach the claimant within five to seven working days of the letter being sent.”

In the pandemic, claimants had three months in which to return the forms. I think there were considerable advantages to that. Mind told us that extending the deadline could

“reduce the need for Mandatory Reconsiderations or Appeals”

by ensuring that the right decision was made first time around. So we recommended a compromise whereby claimants would have two months in which to return forms. Unfortunately, in its response, the Department said no. However, I wonder whether the Minister recognises that the time to return forms is being reduced by delays in getting those forms out to people. We have been hearing that, typically, at least a week—seven of the 20 days—is disappearing before the claimant receives the request.

As we have heard, one of the e-petitions is about considering disability benefit claims on medical advice alone. I am sure the Minister will point out—he will be right to do so—that, as the Work and Pensions Committee heard, GPs and other medical professionals may not know exactly what is needed for a functional assessment. We certainly heard repeatedly that the British Medical Association is absolutely clear that doctors do not want to take on this additional job.

However, the Committee wanted better use of another kind of evidence, which is evidence from family and carers. We heard that the way in which their input is received “is incredibly patchy”, as is whether their input is welcomed or not. The PIP guidance for assessors is explicit that evidence from carers and family should be considered but, anecdotally, it appears quite often that it is not. So we called on the Government to review the guidance, and I am pleased to say that, on this occasion, the Government did respond positively to our recommendation. Will the Minister update us on progress with that review and say when it will be completed?

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[Justin Tomlinson (North Swindon) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell, and to follow the Chair of the Work and Pensions Committee, who is very proactive and thorough in his work. I know from my time as a Minister that the Department takes his views very seriously and constructively. I pay tribute to my hon. Friend the Member for Carshalton and Wallington (Elliot Colburn) for leading the debate, which is of particular interest to many thousands of our constituents, who will be watching it closely, particularly as it comes just ahead of the White Paper.

Before I turn to the assessment process for disabilities, I want to support the point from the hon. Member for Oldham East and Saddleworth (Debbie Abrahams) about supporting the most vulnerable. This is a very complex issue, and there is a huge amount of work to be done. I welcome the fact that the Committee will look in detail at the issue, but there is one very easy fix that would help with all applications. Whether someone is on universal credit or is going through the work capability assessment or PIP process, they should have—if they wish—a named, trusted third party. If, for any reason, they have not returned forms or telephone calls by a certain time, there could be an automatic message to the trusted third party to say, “We haven’t heard back from this person.” In some cases, that may help. There is much more that needs to be done, but I wanted to flag that point.

Turning to the coming White Paper, which this debate is well timed for, there are many lessons that can be learned. We have to be careful about some of the requests we can be tempted to make. If we contrast today’s PIP to DLA—the original legacy benefit—DLA was, in effect, all on the claimants. The forms are still long and complex now, but they were much longer and more complex, and it was all down solely to the claimant. For many people that was fine, but for many others it did not cover all their challenges.

I will come on to the problems with PIP, but there are bits that have worked. For example, the assessment will often tease out things that a claimant may not realise are issues. With PIP, around 32% or 33% of claimants will get the highest rate of support, whereas under DLA it was around 16%. In cash terms, that is around an extra £10 billion a year to support the most vulnerable people in society—a record amount.

We have seen the most marked improvement with people with hidden disabilities. Someone with a mental health condition is now six times more likely to get the highest rate of support than under the old legacy benefits. In many cases, people are aware of their physical health condition and will raise it in their assessment, but the set of questions that are asked then tease out the wider impact in their day-to-day life. That identifies the mental health challenges that people are facing, adding additional points and putting them higher up in the levels of support.

Covid was the trigger for many of our blue sky thinking ideas to become practice very quickly. We had started to engage with stakeholders to talk about the use of telephone and video assessments. There was a nervousness at the time, and we imagined that we would probably have to wait until the White Paper before we could even test the water. However, because of covid, physical assessment centres had to close. We took a decision that we would, in effect, pause those already on benefits, but there were still new people requiring support. We then tested out telephone and video assessments in order to do assessments where there was not sufficient written evidence. They actually proved very popular with stakeholders. I would be interested to know from the Minister how that has progressed since then.

Telephone and video assessments are convenient for people who have issues physically getting to a location. We heard of an example where an assessment centre was not accessible, and there had been a breakdown in communications to warn the claimant in advance of the challenges of getting into the assessment centre. I suspect this point will be echoed by many colleagues today, but these assessments also allow claimants to link up to those with specialist knowledge of their primary health conditions. Pre covid, there were a number of assessors in each assessment centre, and they had to be master of all. They had to have reasonable knowledge of anything that was presented in that geographical location. However, with telephone and video assessments, we could have the motor neurone disease expert based in Dundee doing a video assessment from up there.

[Kerry McCarthy (Bristol East) (Lab)]

That would be particularly useful for people who have fluctuating conditions that may vary from day to day or manifest differently—somebody with ME, for example, can have very different symptoms, experiences and health from another person with the same condition. I endorse the hon. Member’s point; I suppose if I had to ask him a question, I would ask whether he thinks it would be valuable for those people.

[Justin Tomlinson]

Absolutely. It would be valuable twofold. I talk to a lot of the assessors, and I know we are all going to highlight where there are challenges, but something like 95% of claims go through. Satisfaction is still relatively high for those claimants; as I said, we are spending £10 billion. The vast majority of assessors want to get it right first time and want to have that knowledge and support, so if we can allow some assessors to specialise, they can develop their training with charities and health organisations with specific knowledge of the area. That will increase the chance of getting the decision right the first time.

Not everybody presents with one single health condition, so it may be that people would have a hybrid assessment in two parts. There would be a general assessment, which in many cases would pick up things on the mental health side that people did not realise were having an impact on their day-to-day life; there would also be a specific assessment of the primary health condition. As the hon. Member for Bristol East (Kerry McCarthy) so clearly articulates, where people have fluctuating health conditions we really need the knowledge to ensure that we are looking not just at one particular day but, as the guidance says, at the typical impact over a one-year period.

During covid, we had a significantly reduced workforce. All our health assessors have a medical background and then have extensive training, and they were the first port of call for secondments to the NHS to provide the covid jab, so we had an incredibly depleted workforce. That really focused our mind on the volume of assessments. At Work and Pensions oral questions earlier today, I raised a point about whether lessons have been learned on extending the severe conditions criteria. When we looked at it, we estimated that about 250,000 to 300,000 assessments, with a change, could be lifted out of the system every single year. That would speed up the process for those who remain and would obviously be beneficial for those 250,000 to 300,000 people.

At the moment, PIP does not look at individual conditions—it is about the menu of health conditions that have an impact on someone’s daily life—but I think that, in some cases, we can do so. We have shown that with the changes to the special rules for the terminally ill, which will look at health conditions. I will give one example, but no doubt there are many organisations that would lobby for a change in respect of particular health conditions.

Motor neurone disease is a horribly degenerative disease, and there is a pretty clear trajectory once someone has been diagnosed, so I have never understood why on earth we assess people who have it. From the moment they have been diagnosed, we should be able to say, “We expect their condition to go like this,” and then provide an automatic level of support. They would start at the lower level immediately after diagnosis and, as their condition, sadly, deteriorated, they would automatically move on to the highest level. If, sadly, their condition deteriorated more quickly, they would be able to contact the PIP assessors, speak to the MND specialist team, have a light-touch conversation—a GP’s note would probably be sufficient—and be automatically upgraded.

[Wendy Chamberlain (North East Fife) (LD)]

I am grateful that the hon. Member has brought up MND. Does he agree that one thing that the current system must do is prevent delays? Not only do people with the condition sometimes deteriorate more quickly, but the adaptations that local authorities are making, and so on, mean that we are making the process much more difficult on every front for people with MND.

[Justin Tomlinson]

Absolutely, and that was one of the drivers behind our changes to the special rules on terminal illness. From the point of diagnosis, PIP is a gateway benefit that will unlock extra help from local authorities, so it will certainly speed up that process.

Before the Minister panics and thinks that he would need an office akin to Fort Knox because every single health group would lobby him and say, “These rules should apply to our particular health challenge,” let me say that the way around that is to look at the Industrial Injuries Advisory Council, which already operates within the DWP. In effect, that is a separate, independent body of medical and scientific experts with far greater brains than mine. They are the ones who decide which health conditions qualify for industrial injuries benefits. We could apply the same principle and, as medical care and scientific knowledge evolved, they could update the guidance. That could potentially lift 250,000 to 300,000 people out of the process and help some of the most important people. Since the changes on terminal illness came into force, we have seen all pluses and little else. I hope that the Minister’s commitment to trying to pilot initiatives in this area will continue, ahead of the White Paper.

Many colleagues have mentioned the appeals process. There are different ways of looking at the statistics but, by and large, for the vast majority of people who are successful in the appeals process, either at the mandatory reconsideration stage or at the end, that is because of additional evidence that is presented. We have to look at why that additional evidence is being presented so late in the day. There are many things that could be done. The Department could be more proactive in chasing up sources that have supportive evidence. Getting evidence from a GP is a bit of a postcode lottery. Some GPs will reply to a claimant immediately and give chapter and verse; some are much slower. Some will seek to charge. Some do not necessarily have the right information.

Where someone has already gone through a work capability assessment, which is very similar—I know there is potentially a review of whether we should have two separate assessments, but this is the case as it stands today—there will already be a lot of information on a similar system, and we should at least ask the claimant whether they would like us to look at that information. Remember that it is the claimant’s information and we should not do that automatically, but we should ask to bring that information over.

We should be proactive in encouraging claimants to bring a trusted colleague with them to the assessments. That is within the rules, but how assessors allow it is very inconsistent. Some assessors will encourage the colleague to speak. Some will tell them, “No, you’re not being assessed; you are just there to provide moral support.” We need consistent guidelines. In my opinion, they should be allowed to speak. I have sat in on a lot of assessments; a lot of people are understandably overwhelmed, and arguably do not do themselves justice in what they say. Sometimes, when a person has had a condition for so long, they just take it as the norm that, for example, they no longer sleep at night. Their partner who is woken up by their not sleeping at night would probably be better at articulating that. We should be doing that.

We also started testing phoning claimants at the mandatory reconsideration stage and asking them to tell us, in their own words, why they disagreed with the decision. One speaker mentioned earlier that the mandatory reconsideration success rate is only about 11%. My understanding is that when we piloted proactively speaking to the claimant, that figure went up to about 40%; when I talked to assessors doing that at the time, they felt they could go even further. We would invariably find that a claimant’s GP had told them something but they had not provided us with the information, or had not been able to get it, and we could chase the GP on their behalf and get that information.

We also allowed people to be lifted out of the system. In the past, people had in effect to take their chances. They had to wait for the MR, and once they triggered the independent appeal the Department could not come back and say, “Now you have provided us with this evidence, we agree with you and wish to do that,” because they were stuck waiting for the judge, which can be up to a 12-month wait. We changed the rules so we could lift people out, but if people still did not agree with us they had the right to stay in the process. All those measures that can help lift people out of the process would be very welcome.

I also want to highlight the need for us to start signposting support and help. PIP is geared up to identify people’s challenges and then to identify society’s financial contribution towards the impact on their daily lives, but we stop there; we do not signpost people on PIP to additional support that may exist in their communities. I visited many wonderful and innovative mental health pilots across the country—we will all have done loads of visits in the summer recess, seen something and thought, “Gosh!”—but time and again people said to me, “Our problem is that we can’t find enough people to come and test these things out.” Yet the PIP database has the list of all the people who have been identified as having a mental health issue. I am not saying that they should have to do it, but at the very least we should be writing and saying, “Right, you’re in this particular postcode. These are the local charities and organisations, this is the local authority, and these are the local health pilots to do with your primary condition, or menu of conditions, that may be of interest to you.” I think that would be hugely beneficial to many of the people who go through the system.

[Kerry McCarthy]

Recently, I did a Zoom surgery with a constituent who is in receipt of benefits, and she said that what would help her most would be having extra hours of childcare and being able to send her child to nursery for an extra day a week. It could be argued that she could spend her PIP money on buying those extra childcare hours, but it is an expensive business, and she needs her PIP money for other things. Is that—whether there is the potential for that extra support—something the hon. Gentleman has taken into account in terms of signposting? She has been offered somebody who can come into her home and do her cleaning and everything like that, but what she really needs is a bit of respite.

[Justin Tomlinson]

The hon. Lady highlights the point that every single claimant will have their own individual challenges and opportunities. The better the signposting that we give, the bigger the menu of different avenues that can be explored to look at that. That is an important point.

In conclusion, I will make an appeal to the Scottish Government. I regularly met my Scottish counterparts and the Scottish officials, who I must say were absolutely fantastic. As we sought to devolve more and more of the DWP work, our officials and the Scottish officials worked brilliantly. We had very constructive meetings, particularly where the Scottish Government found it challenging to do things as quickly as they had hoped, because it transpires that anything to do with the DWP is a lot more complicated than it seems.

Without a doubt, Scottish colleagues were full of great enthusiasm and ideas, but they sometimes felt that they had to do things differently for the sake of doing things differently. I understand that that helps to strengthen their argument for being their own independent nation—I get that—but these are some of the most vulnerable people in society. I was so frustrated when we made the changes to the special rules for terminal illness—which were, in effect, what the vast majority of stakeholders and health organisations asked for—but the Scottish Government decided, wrongly, to design an even more complicated system than the one that they were rightly seeking to replace. I therefore make this appeal: please continue to work with us constructively, but please do not always dismiss everything as having to be different. Sometimes even we can get it right—even if by accident.

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[David Linden]

Absolutely. I totally understand the hon. Lady’s point, and I am sure she will understand that a lot of the civil servants who were working on the design of the Social Security Scotland system were rightly deployed towards the covid pandemic. Ministers in the Scottish Government have acknowledged that the situation with the ADP waiting list is less than helpful. But I come back to the fundamental point on which I challenge the hon. Member for North Swindon, which is that our systems are about taking the view that the claimant is not on the make. That is the nub of the issue. With the UK Government’s system, there is a scepticism about whether the person sitting at the other end of the table is on the make or on the take, so it is about trying to find a way to catch them out. That is why there is an overturn rate of 68%, for example.

[Justin Tomlinson]

indicated dissent.

[David Linden]

The hon. Gentleman is shaking his head. I am sure he has something to say, so I am happy to give way.

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[Justin Tomlinson]

There is absolutely zilcho in the assessor’s contract to try to lower the success rate of a claimant. That is part of the driver behind our spending an extra £10 billion a year—a record amount. I wish the Scottish Government the very best of luck if they can identify changes; if they do, I encourage the British Government to adopt them. My point was that we should not be different for the sake of being different. We should always put the claimant first.

[David Linden]

With the greatest respect to the hon. Gentleman, he has missed the point. The reality is that this contract is being delivered by the private sector—something to which I have a moral and political objection —with a clear brief to try to find people somehow on the make or on the take. If so, why on earth are the Government giving out a contract where the overturn rate is 68%?

[Justin Tomlinson]

The only thing within a contract that changes what an assessor is paid per assessment is that where there is poor quality, there is in effect a fine on the contract. Under the DLA, the success rate for the highest rate of support was 16%. Under PIP, with the assessors, it is 32% to 33%, hence why we are spending £10 billion a year more.

[David Linden]

The hon. Gentleman is saying what would happen if a contract were found somehow not to be working, but I rather suspect that the Minister will look at the fact that the overturn rate is 68%. I am not the Minister, but that would suggest to me, and to officials, that something is clearly going wrong with the assessment process.

Under the Scottish Government’s approach of abolishing the disability health assessments, person-centred consultations are held only when required. That is all in stark contrast to the frankly draconian measures that are being put in place and pursued by the British Government. I am sure that many people across the House share the view that the job of Government is to support vulnerable people, not to subject them to further hardship and scrutiny. However, there is an overall unwillingness, among both the Labour party and the Conservative party, to invest in social security. As it persists, disabled people continue to experience stress as a result of undergoing health assessments.

I can only hope that a leaf is taken out of the Scottish Government’s book for the sake of disabled people who are at the mercy of the British Government’s austerity agenda. As the Scottish Government use their devolved powers to mitigate against such draconian welfare policies, I am sure they will always ensure that the most vulnerable in our society and communities receive the support that they are entitled to while being treated with the dignity, fairness and respect that they deserve. That is the fundamental point of this debate, because that fairness, dignity and respect are not there, and that needs to change.