Work Capability Assessments

Mark Hoban Excerpts

Friday 6th September 2013 Commons Chamber

[The Minister of State, Department for Work and Pensions (Mr Mark Hoban)]

I thank the hon. Member for Edinburgh East (Sheila Gilmore) for raising the issue of the reconsideration of work capability assessments and for letting me see a copy of her speech in advance, which I hope will enable me to answer the points that she has raised. She may not be satisfied, and doubtless she will come back again if that is the case.

The hon. Lady is interested in how the new mandatory reconsideration process will affect ESA claimants who are found fit for work. In this regard, I intend to address her main concerns on the length of time a mandatory reconsideration will take and the availability of JSA to those people who are found fit for work. Before I consider those concerns, it is important to give the issue some context and explain why we have introduced mandatory reconsideration.

To put the matter at its simplest, the current disputes process does not work for benefits in general or ESA in particular. The introduction of the ESA in 2008, and particularly the conversion of incapacity benefit awards to ESA, has—as the House will know—resulted in a high volume of appeals, with more than 500,000 last year.

The Government have taken a series of steps to improve the WCA process but we accept that people will appeal. The Government do not believe that it is acceptable to write people off to a lifetime on benefits because they have a health condition or impairment. Many people with health conditions are able to sustain and progress in employment. Evidence points to the negative impacts of being without work and suggests that work is generally good for people regardless of whether they are disabled or not.

The Department therefore needs to ensure that people currently receiving incapacity benefit and ESA are supported in preparing for a return to work where some form of employment is a possibility. Claimants are being reassessed using the WCA. This is based on the principle that a health condition or impairment should not automatically be regarded as a barrier to work. It has been designed to be a more accurate reflection of an individual’s capability for work, taking account of modern workplaces, health care and legislation.

The volumes of appeals are placing some strain on the appeals system. We also recognise that the process can put pressure on claimants too. That is why a claimant can ask for a decision to be reconsidered. It was intended that people would ask for this reconsideration in the first instance if they felt their decision was wrong. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer; more time consuming and more stressful for claimants and their families; and, for a significant number of appellants, unnecessary. I say unnecessary because a significant number of decisions are overturned on appeal because of new evidence presented at the tribunal—more than 55% in recent months. This is mainly oral evidence, which accounts for 70%, but also includes written evidence that has not been considered by the decision maker.

I hope that hon. Members will agree that we need a process that enables this evidence to be seen or heard by the decision maker at the earliest opportunity. Mandatory reconsideration does just that. Another decision maker will review the original decision, requesting extra information or evidence as required via a telephone discussion. If this means a decision can be revised, there is no reason for an appeal—an outcome that is better for the individual, the Department and the Tribunals Service. We hope that, because of the robust nature of the reconsideration and the improved communication, the process will result in either decisions being changed or claimants making an informed decision not to escalate their dispute to an appeal tribunal.

[Sheila Gilmore]

The Minister’s argument about the appeals process often relates to whether evidence is available in the first place. However, a number of my constituents and those of a lot of my colleagues say that such information is not requested in the first instance, at the time of the WCA, more and more of which are done through paper-based applications, as I am sure he is aware. If people were asked for that information, it would not have to be looked at later.

[Mr Hoban]

The hon. Lady has looked into this matter in detail, and I am sure she will recollect my comments about where we seek further medical information from health care professionals, as nominated by the appellants themselves. The problem is straightforward. Too often, either the information is not supplied by the health care professionals from whom we have sought additional medical evidence or it is supplied too late to be taken into account. Where we seek medical evidence, there is a broader responsibility on those from whom we seek it to respond in a timely manner. That, too, would help the process.

Let me turn to the concerns raised by the hon. Lady. The first was the time it will take for a reconsideration. Although we are not introducing a statutory time limit for decision makers, I assure the House that we will have a process geared to timely decision making. Anything less would be frankly unacceptable. We owe it to claimants not to delay their right to exercise their right of appeal. However, the time taken will depend on whether the claimant intends to provide new evidence—obtaining it could take some time, as I said in connection with the first request for further medical evidence—and whether the decision maker needs to seek further advice on that evidence from Atos. If there is nothing new for the decision maker to consider, he or she can get on and make that decision.

However, the key is quality, not speed. There would be no benefit to anyone in rushing the process, effectively forcing an appeal and then having it allowed at a hearing some time later. The new process is aimed at getting decisions right, not simply passing disputes to the tribunal to resolve. Equally, however, it is in no one’s interest for this to be an open-ended procedure. We will monitor the introduction of the change for the first six months. In April 2014, we will look at the times taken and consider whether we have enough information to introduce realistic internal targets.

During the mandatory reconsideration phase, when someone is fit for work and not in work, they will be entitled to jobseeker’s allowance. I accept that someone seeking a reconsideration is likely to protest to the jobcentre that they are not fit for work. However, that does not rule out entitlement to jobseeker’s allowance. That is the case even where the claimant presents a fit note. Disability employment advisers, trained by specialist staff from the Department, will work with those who identify themselves as having a health condition or disability. They will take into account individual circumstances, including any advice given by the claimant’s doctor, and will consider placing limitations on a client’s availability or modifying their conditionality. There is nothing new about this.

The hon. Lady also expressed concerns about claimants being sanctioned while on JSA. Let me address that point. To reiterate, the modified conditionality militates against a sanction being imposed. If the adviser has agreed to modify conditionality, it would be perverse if they then took a heavy-handed approach. As I have previously informed the House—let me take the opportunity to repeat this—there are no sanction targets. It was this Government who removed the sanction targets—they were in place under the previous Government. We continue to monitor to ensure that sanctions are applied consistently and only where appropriate. The hon. Lady asked what would happen if a claimant were subject to a sanction. She will know—I think she might have served on the Delegated Legislation Committee that dealt with this—that a claimant can still apply for hardship payments.

A health condition or impairment should not automatically be regarded as a barrier to work; in fact, there are many people who juggle work and a health condition. Such claimants might be disputing their decision, but at that time they have been through an assessment process and are, in the eyes of the law, fit for work. The appropriate benefit is jobseeker’s allowance, and it is appropriate that we apply conditionality that is tailored to claimants’ needs so that we can move them closer to the labour market and, we hope, back to work.

It has been suggested that we should pay employment and support allowance during that period because of the standard of decision making on ESA, as evidenced by the number of decisions overturned on appeal. Let me just remind the hon. Lady of the statistics that demonstrate the quality of the decisions made. Between October 2008 and February 2012, around 800,000—about 15%—of those decisions that found the claimant fit for work were overturned on appeal. She will know, having looked into this, that a significant proportion of decisions are overturned at tribunal because of oral or written evidence being presented at the tribunal that has not been discussed with or seen by the decision maker. It is that new evidence that is the reason for the overturning of a decision. As I stated earlier, we hope that mandatory reconsideration will allow that new evidence to be discussed at an earlier stage, leading to a decision being revised if necessary. We need to try to accelerate the process so that we can get the decision right first time and as soon as possible.

[Sheila Gilmore]

Given that the Minister has conceded that there were substantial failings in the initial WCA process, and that steps have been taken to retrain staff, to bring in outside staff to give further advice and to bring in other providers, surely this is not simply a problem of new evidence being presented to the tribunal. Is there not a flaw in the system?

[Mr Hoban]

No, I do not agree with that. If the hon. Lady goes back to the statement that my noble Friend Lord Freud made in the other place in July, she will see that that is not the case. There was an issue with the quality of the recording of the assessments, but not necessarily with the quality of the assessments themselves. That is a very different matter.

We are not complacent. That is demonstrated by the tough way in which we have responded to Atos’s failings. There is always room for improvement, and much is happening. The hon. Lady will be familiar with the recommendations made by Professor Harrington in his three reports. They included proposals for improving the ESA forms to encourage claimants to provide their own evidence, for better contact between decision makers and claimants at the decision-making stage, and for enhanced training and guidance for decision makers. There was also a proposal for a simpler and more empathetic process to be adopted for the assessment of cancer sufferers, with more claimants being placed in the support group, the better to reflect their difficult circumstances. We are also learning from the tribunal decisions made as part of our summary reasons pilot. I am confident that accuracy will continue to improve and that the proportion of decisions overturned will continue to be reduced.

[Sheila Gilmore]

Will the Minister give way?

[Mr Hoban]

I was about to conclude my speech, but I will give way once more as I am a generous man.

[Sheila Gilmore]

I understand the Minister’s concern about information and about ensuring that the process is carried out timeously. One suggestion that has emerged from the discussions is that the time for submitting the ESA50 could be extended from four to six weeks, which would give people more chance to get the necessary information together.

[Mr Hoban]

I thought that the hon. Lady’s motivation was to accelerate the process, to ensure that the right decisions were made as quickly as possible. Now she seems to be advocating delay by adding an extra two weeks to the process. I am not sure that that would be in the interests of claimants, as they would face a longer assessment phase that would take them further away from the market if they were fit for work. I question whether it is the right approach to lengthen the process rather than to improve it by making it shorter and more effective, where possible. As I was saying, getting the decision right first time has always been our priority.

In conclusion, the aim of the modifications that we have introduced is to get the decision right first time, but if claimants believe that we have not done that in their case, we need a step to put things right before we end up at a tribunal. Mandatory reconsideration will offer claimants that opportunity. It seeks to address two concerns: the length of the appeals process and the fact that new evidence can be brought forward which has an impact on a decision. It is in the best interests of claimants to introduce that new step. Mandatory reconsideration will help to ensure that the right decision is reached as quickly as possible.

The Government are committed to supporting those who are unable to work owing to health conditions or disability, but we believe that those who are able to work should receive help into employment to enable them to realise their aspiration to independence and to support themselves and their families. We also believe that those who are unable to work should receive the support to which they are entitled, and it will be in the best interests of everyone involved in the process if we can reach decisions in those cases more quickly, without compromising their quality.

Question put and agreed to.