Work-related Activity Group

Sheila Gilmore Excerpts

Tuesday 3rd February 2015 Westminster Hall

[Dame Anne Begg (Aberdeen South) (Lab)]

One of the conclusions that my hon. Friend and I reached as part of the Select Committee on Work and Pensions inquiry was that the work-related activity group was too wide and trying to do two contradictory things: to give support to people who are not fit for work without being in the support group; and at the same time to move those who might be fit for work closer to work. Those two different aspects of the WRAG meant that it became the default for everyone who either was now not fit for work, or definitely could not work in future. The group is too wide and too unwieldy.

[Sheila Gilmore]

I thank my hon. Friend, the Chair of the Select Committee, for that contribution. I will come on to this in more detail later, time permitting, because the situation we are in now is important. If we end up with a default group and people in it for a long time, one of the questions that has to be asked is, how much further have we progressed from where we started?

One of the problems seems to be that different rules or practices from those for people previously on incapacity benefit are being applied to new claimants. The new claimants who go into the support group may be placed there without a face-to-face assessment. In some situations people are having a paper-based assessment and, if people go into the support group, that might seem acceptable. The WRAG, however, has a detrimental effect on income and circumstances, which I will come on to, so if people go into that group because of a paper-based assessment, they will not have had the opportunity to explain more fully their particular circumstances. That might seem a rather strange thing to say, given the debate about there being too many assessments—I have been part of that myself in my Adjournment debates—but it is important that we get things right.

The Select Committee called for the rules to be aligned, so that no claimants could be placed into the WRAG without having an opportunity to explain their particular conditions and their impact to an assessor, but the Government in their response of November last year refused to accept that recommendation. I hope that the Minister has had further thought and might want to reconsider.

Between 2008 and 2014 about 30% of new claimants with Parkinson’s or multiple sclerosis were placed in the WRAG. Of those, some 5,000 were given the prognosis that they were unlikely to return to work in the longer term. The Select Committee recommended that all claimants with such a prognosis be allocated to the support group, not the WRAG, but the Government’s response was disappointing, stating that “with the right support”—which I will go on to say is not there—

“that person might be able to return to…work”.

The Government also consider that individuals might be able to adapt to their condition or that advances in treatment might become available. If someone goes into the support group, however, regular reassessments are carried out, so even if claimants were able to adapt successfully or treatments became available, that would be picked up. On its own, therefore, that is not a good enough reason for placing people in the WRAG.

That leads me on to the quality of support. When ESA was first introduced, the intention was that Jobcentre Plus would provide the support, but since 2010 the number of disability employment advisers has declined, meaning many ESA claimants receive no more than two face-to-face interviews per year or, in the experience of some of my constituents, sometimes fewer. Many are now referred to the Work programme, with numbers increasing significantly following the October 2012 decision to expand the range of people referred from those thought able to return to work within three months to those thought able to return within 12 months. Concerns about the Work programme are well documented, but it is particularly inappropriate for those incorrectly placed in the WRAG.

A constituent of mine was placed in the WRAG and referred to Work programme contractor A4E, but her only activity was to search for jobs on the internet, despite the fact that she has complex regional pain syndrome and would have been unable to take up any job offered. She was given little help with how her particular condition might be alleviated or supported, or about what contact she would require with employers to make that happen. Rather, the result was that her treatment was disrupted and her condition exacerbated. Indeed, recent analysis, quoted in the Select Committee report, found that only 5% of claimants from the WRAG who were placed in the Work programme have moved into sustained work since 2011, against a target of 16.5%.

A few months ago, an evidence-based review of the work capability assessment, the test for deciding whether people are eligible for benefit and which group they go into, examined whether different descriptors would work. Part of the process was to ask expert panels to look at the WCA outcomes. Interestingly, they identified that, of the claimants who were found fit for work, 83% would require, on average, two or three adjustments to be able to undertake employment, 50% would require flexible working hours, and 24% would require a support worker. That was a review of fit-for-work assessments; those requirements are likely to be even more necessary for those in the work-related activity group. Such support just is not happening through the Work programme.

I do not have a particular view on whether support should be provided through Jobcentre Plus or a contractor or other provider, but in addressing these concerns it is important that provision is not forced upon people who cannot benefit from it, and that those who can receive it get it in a form that is applicable to their needs and local circumstances. In that respect, I strongly support the devolution of responsibility and finance for the Work programme to local authorities, as many specialist local providers offer a much more effective and personalised service to those with health problems or disabilities.

As my hon. Friend the Chair of the Select Committee pointed out, there is a major flaw at the heart of the system, which explains some of the problems. The work capability assessment is trying to be a test of both eligibility for financial support and how close people are to being able to work. At the outset, there was in fact a further assessment called the work-focused health-related assessment, which was intended to explore the difficulties and obstacles that people would face in returning to work—that is, after eligibility for benefit had been determined, issues such as the obstacles to and distance from employment would be looked at.

In July 2010, the work-focused health-related assessment was suspended for two years on the grounds that it had not delivered the intended outcomes, although it seemed somewhat early to make that judgment as it was barely 18 months since the introduction of the benefit as a whole. In 2013, it was suspended for a further three years to await evaluation of the Work programme and universal credit.

[Dame Anne Begg]

The WFHRA, as it came to be known, was actually suspended before any existing incapacity benefit claimants had even been migrated on to ESA. It was that group in particular that would have benefited from some kind of assessment of their current and future barriers to work.

[Sheila Gilmore]

My hon. Friend is correct. There is no sign whatever that any evaluation was made that showed that it was not working. Do we need something better than the WCA to measure the obstacles and propose support measures? The answer must be yes. Does that necessarily mean two tests? I do not know—perhaps, or perhaps not—but it should be looked into properly so that we can decide how to deal with the issue. Scope, a leading charity in this field, has suggested replacing the WCA as a whole with a distance-from-work assessment to assess support needs rather than medical capacity.

The third issue that I want to address is the fact that the Government have both reduced the value of ESA payments to those in the WRAG and placed restrictions on its receipt that have significantly changed the character of the benefit. Although the value of payments to people in the support group has been uprated by inflation in both 2014-15 and 2015-16, payments to those in the WRAG have been subject to uprating by only 1%. Those in the WRAG are subject to the overall household benefit cap, whereas those in the support group are not. The Government justifies those differences on the basis that people in the WRAG are better placed to move towards the labour market, but I do not think that that is how the original architects of ESA would have envisioned the WRAG working. Under incapacity benefit, most of these people would have been given unconditional support, so it is wrong that the fact that they now receive some level of support with a view to an eventual return to work is being used as a stick to push them to get a job sooner than they are able.

The sorts of changes I have described have fed into the media perception that people in the WRAG are in reality fit for work. For example, on 1 April 2013, the Daily Mail ran a story under the headline “Just one in eight on sickness benefit is truly too ill to work”. It reported that of nearly 1.5 million new claims assessed for ESA since 2008, 837,000 were found fit for work and 232,000 were

“deemed by doctors to be too unwell to do any sort of work”—

that is, they were in the support group. It then said that

“a further 367,300 were judged able to do some level of work”,

which was clearly a reference to the WRAG and implied that such claimants were not truly too ill to work. Actually, the whole point of the test is to say that at this point in time they are deemed unfit for work.

A related change was the decision to time-limit the receipt of contributory ESA to one year for those in the WRAG, on the basis that they are likely to get better anyway and so will be in less need of the benefit than people in the support group. However, in contrast to incapacity benefit, ESA was designed with regular reassessments in mind, so were there to be any improvement and therefore lost of entitlement, that should be determined through the process of reassessment, rather than an arbitrary one-year time limit. Such a limit particularly affects people who have been in work for much of their life and therefore made their contributions, but who may, for example, have a working partner—possibly earning only part-time wages—and so reach a position in which they receive no payments whatever.

Another issue is that the letters that people receive to tell them about changes in their circumstances are very unclear. One former incapacity benefit claimant came to my surgery last year after he had received a cryptic letter from the DWP. He understood it as saying that he would continue to receive benefit, but became concerned several months later when he learned that his benefits were due to stop in a few months’ time. It turned out that he had been placed in the WRAG but was time-barred from appealing the decision. I hope that the Government’s proposed review of all ESA-related communications will address such issues. My experience is that people are still receiving letters that are hard to interpret. They tell them that there has been a change in circumstances and perhaps that there will be a slight change in the amount of money that they will receive, but they do not make it clear why, which of the ESA groups they are in, and the overall implications. It is important that people are given the information that they need in order to take the appropriate action.

In conclusion, it is worth quoting the Select Committee again, which concluded:

“The WRAG is by far the most problematic of the three ESA outcome groups.”

I know that it is likely that many of the policy changes that I have mentioned have been driven by financial considerations, and I do not necessarily expect the Government to change all their positions in the remaining few months of the Parliament. Nevertheless, I would like to think that these matters are under consideration and that there is a real attempt to overcome some of the problems and issues that I have mentioned. For example, good communication should not be beyond the bounds of possibility, even in the dying days of this Parliament. That could save money in the end, because if people understood what they were being told they would be much more likely to take the appropriate steps.

It is profoundly unfair that people in the WRAG seem to be shouldering a disproportionate burden in reducing the deficit, and I hope that whichever party or parties are in government after the election take a different approach. No claimants should be placed in the WRAG without a face-to-face assessment, and only those able to benefit should be referred to the Work programme, if it continues—I hope that it can be improved considerably, or devolved so that we can use the specialist providers with which we have all had contact and that do such a good job. Ministers must acknowledge that those in the WRAG are currently too ill or disabled to work.

[The Minister for Disabled People (Mr Mark Harper)]

It is a pleasure to serve under your chairmanship, Mr Sanders. I congratulate the hon. Member for Edinburgh East (Sheila Gilmore) on securing the debate and raising these important matters. I will come to her point about communication later, but there is common ground there, and I hope to update her on that. We may not agree about some of the policy changes, but it is very welcome that we agree that we should communicate clearly and put in place plans to improve communication.

I think that the hon. Lady acknowledged this in her speech, but to be clear, the policy intent of the work-related activity group, as well as that of employment and support allowance more generally, remains as it was when it was introduced by the Labour Government in 2008: to help people to return to work wherever that is possible. We know that there are generally health benefits from working and work-related activity.

The hon. Lady mentioned people with progressive conditions. I touched on this issue when Dr Litchfield published his final report. If they are arguing that the diagnosis of a progressive condition such as Parkinson’s or multiple sclerosis effectively means that someone should go into the support group, with the assumption being that they will probably never work again, some of the groups that represent those people should think about that, because it has a lot of consequences for how we treat people with progressive conditions. It kind of sends a message to employers that if someone gets diagnosed with one of those diseases, they should just be sacked because they cannot contribute anymore, even though some of those conditions are progressive over a long period of time. We have to think about how we treat people with those conditions.

Clearly, there will be a point in a progressive condition when someone is perhaps not able to work, and perhaps not able to work again, but we should not assume that the diagnosis of a progressive condition automatically means that someone in the support group is never able to return to work. That would send out some unhelpful messages that those groups—when they are not arguing about whether people qualify for benefits—do not themselves argue. They argue that people should be able to remain in the workplace while they can, and should be properly supported in that.

[Sheila Gilmore]

I point out to the Minister that the reason why people are claiming this benefit at all is that they have fallen out of the work force. Often they have been through a period with their former employer in which they were trying to stay in the work force. We are not necessarily dealing with people who will find it easy to work under any circumstances.

[Mr Harper]

I accept that point, but employers vary in their ability to deal with people with health conditions and disabilities. Some are better than others. For example, we know that some employers retain almost everyone in their organisation who develops a mental health problem, because the employers can deal with that effectively. Some employers, however, are not good at dealing with that. The only point I was making was that the diagnosis of a progressive condition should not mean that we automatically assume that the person will go into the support group. The other thing is that there are many conditions in which the symptoms fluctuate. It may be that someone has to have a more flexible work regime—sometimes they can work and sometimes they cannot. All I am saying is that it can be a little more complex, and a progressive condition should not automatically trigger a diagnosis-based referral to the support group.

[Mr Harper]

I accept that point. There are of course people in the support group who do permitted work. I think that the hon. Member for Edinburgh East was arguing that it was somehow inappropriate for those diagnosed with progressive conditions to be put in the work-related activity group and expected to undertake some form of work-related activity. I was simply making the point that it does not follow that putting someone with a progressive condition in the WRAG is inappropriate, and that they should automatically be in the support group. That was the only point I was trying to make.

The hon. Member for Edinburgh East made a good and sensible point—she raised this at my Select Committee appearance last week, and I promised that I would respond to her—on some of the communication. Letters that say to people that they are not expected to return to work—I cannot remember whether it said “indefinitely” or “ever”—are not very well worded. We are looking at all our communication. We have a freeze on IT changes until we do the cutover from Atos to Maximus, but once that is out of the way, we will change the wording on the assessor recommendation. The hon. Lady made a good and reasonable point in the Select Committee session last week; the wording as set out does not accurately reflect the position.

The hon. Lady also raised the point about the work capability assessment generally. We will respond to Dr Litchfield’s report in due course, but he said that the WCA was not a perfect assessment, and I would not pretend that it was. He also made the point, however, that there is not a magic alternative assessment that can be pulled off the shelf. As the hon. Lady knows—I think she remarked on this in her speech—a number of experts looked at whether there was an alternative way of assessing people’s need for benefits and for support to move into the workplace, and there was not a magic solution there either. That demonstrated that the WCA is a pretty good assessment. I would not pretend that it is perfect, but it is probably the best that there is. One thing Dr Litchfield suggested is that we give the WCA a period of stability, so that it can settle down, rather than continuing to make changes to it on a permanent revolution basis.

The hon. Lady also discussed whether we should be able to refer people to the work-related activity group without a face-to-face assessment. As we said in our response to the report—I think this blends the two slightly contradictory points that she made—we should not have unnecessary face-to-face assessments. Decisions are made on the basis of the papers without a face-to-face assessment only if the decision maker believes that the information in front of them is clear and provides sufficient evidence to make a decision. The person about whom that decision is being made will not always agree with the outcome, which is why they can apply for a mandatory reconsideration, and if they do not agree with that, they can appeal.

In cases where the decision maker is clear that there is sufficient evidence to make a decision, having an unnecessary face-to-face assessment—an assessment that, in other cases, the hon. Lady is not a fan of—is not an enormous step forward. She will know from the statistics we publish that the average length of time to complete a mandatory reconsideration is 13 days, and we complete three quarters of them in 30 days; that is not an enormous barrier put in the way of someone having their case looked at again and then being able to appeal the decision if they think they need to.

[Sheila Gilmore]

I have certainly come across cases where the decision made on a paper-based assessment turned out not to have used all possible sources of information. That did not come to light until a later date, and that is one of my concerns about the process. People can be placed in a detrimental position, both financially and in terms of the conditionality they are expected to follow.

[Mr Harper]

I think the hon. Lady’s point, which is perfectly good, is that we need to ensure that we make accurate decisions using all the information, that we get the information in the first place, and that we have properly explained to the claimant what information we need. She is right that we should make those decisions accurately, but that does not in itself suggest that making those decisions on the papers is wrong where there is sufficient evidence to do so. Saying that everyone has to have a face-to-face assessment when there is sufficient evidence is not a good argument. The fact that there are some cases where someone might not have made a good decision does not in itself invalidate the system. It is inevitable; however brilliant the system, there will always be cases where someone does not agree with the outcome, and is successful either on a mandatory reconsideration or on an appeal.

The hon. Lady referred to the communications that we send out. In Dr Litchfield’s fourth review, he recommended that we look at all the key ESA letters and forms to ensure that they are in plain English. The main ESA50 form has been reviewed and will be issued later this month. The decision letters are on a later time frame. The ESA260 form, which notifies someone of the decision in the first place, was revised last October. I looked specifically at the point on contribution-based ESA and the time limit because I know she is concerned about that. If someone is getting contribution-based ESA, it is clear that that is what they are getting. It is clear that that is time-limited, and that the time limit does not apply if they are in the support group. We are starting to do that work, as Dr Litchfield recommended, to improve our communications. There is more to do on that, and the hon. Lady is right to highlight that.

On the Work programme, which the hon. Lady referred to, it matters what time period one looks at. It is perfectly fair to say that in the first year of the Work programme, only one in 24 of the people claiming ESA moved into work, but up to the end of June last year, one in 10 ESA claimants had had at least three months of work within the first 12 months of being on the Work programme, which is a considerable improvement on its initial period and above the minimum performance level of one in 14. We want to improve the one in 10 figure, but she should acknowledge that the Work programme has improved its performance for this group of claimants. It has got a lot better, but we want to continue to improve it.

On the specific case that the hon. Lady referred to, an employer should have dealt with adaptations and hours of work through reasonable adjustments. On the issue to do with support workers, people can get support through the Access to Work programme. It is about ensuring that someone who goes through the Work programme has—