Work Capability Assessment

Sheila Gilmore Excerpts

Tuesday 13th March 2012 Westminster Hall

[Sheila Gilmore (Edinburgh East) (Lab)]

It is a pleasure, Mr Crausby, to serve under your chairmanship. I hope that the Minister is not tired of hearing from me this morning. During this debate on the employment and support allowance, and the independent review of the work capability assessment, I want to concentrate on the recommendations for new mental, intellectual and cognitive function descriptors, which is a fairly narrow part of the overall picture. Before the Minister jumps up to remind me, I am well aware that the work capability assessment was introduced by the previous Government, and I hope that I would say exactly the same now if my party were in power.

We must not forget that the issue is about people, such as my constituent with mental health problems who has twice scored nil points on a work capability assessment, and who was twice placed in a support group after appeal, having waited seven months and nine months respectively for those appeals. He is currently awaiting the outcome of his third assessment, and the stress of that has affected his recovery.

The issue is a narrow one, but with 35% of the people going through work capability assessments being recorded as having a mental or behavioural condition as their primary condition, it is the largest single group of employment and support allowance claimants, so it is of considerable significance. The Scottish Association for Mental Health, using Government data, says that 43.9% of incapacity benefit claimants who are undergoing reassessment have mental health problems, and in Scotland the figure is 46% of claimants. Getting the assessment right is critical.

In his first review in November 2010, Professor Harrington acknowledged that inadequacies in the descriptors for mental, intellectual and cognitive function were likely to play a substantial role in the high rate of successful appeals. In September 2010, three organisations—Mind, Mencap and the National Autistic Society—were asked to provide recommendations on refining the descriptors. They presented initial recommendations to an independent scrutiny group in December 2010, and both groups jointly submitted their report to the independent review in April 2011.

Following two written parliamentary questions and some initial reluctance to publish, the Minister was good enough to place a copy of the document in the Library on 1 December 2011. Professor Harrington endorsed the report and its recommendations in his second independent review, which was published in November 2011. Parallel with that, there was an internal review by the Department for Work and Pensions, and as a result the descriptors were changed in March 2011.

In the report prepared for Professor Harrington, the charities reaffirmed the importance of getting the descriptors right, and said:

“Some of the problems...are probably attributable to procedural or training factors. However...it is inconceivable that the descriptors do not contribute substantially to this unacceptably high error rate in decisions.”

It concluded that the internal review had not resolved the concerns, and it noted specifically that measuring just one of the relevant aspects of an applicant’s condition, or trying to include more than one aspect on a single linear scale are part of the problem. Although that makes the assessment quicker and easier to carry out, it fails to take account of the multiple features of impairment, and how they interact.

The document explains that the existing assessment does not take systematic and consistent account of the frequency of particular problems, or their severity. If a problem or difficulty is likely to occur infrequently, it could have a very different effect on potential for employment compared with the situation when the problem occurs several times a day.

How will the proposed new descriptors vary? First, the Department for Work and Pensions has been asked to consider reversing the previous reduction in the number of descriptors from 10 to seven. That was done in the internal review. The charities’ view is that by doing that

“Features which have been combined in this way represent separate impairments and…need to be considered separately to ensure a comprehensive assessment.”

Secondly, the proposed descriptors are multi-dimensional. Let me give a brief example:

“Michael experiences frequent spells of anxiety when he finds it…difficult to engage socially with almost all people. These episodes reoccur on average once a month, and tend to last for a few days at a time, after which Michael is usually able to bring them under control with some basic techniques from a short spell of cognitive behavioural therapy which his family paid for.”

It is considered that he is likely to score no points under the current descriptors, two of which relate to social contact. The first is:

“Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual”.

That covers engagement with anyone, and scores 15 points on the current descriptors. The second is:

“Engagement in social contact”—

with someone unfamiliar to the claimant—

“is always precluded due to difficulty relating to others or significant distress”.

The word “always” appears in both those current descriptors, and the report’s writers suggest that that is not taken into account in the complexity and difference in that individual’s situation.

[Cathy Jamieson (Kilmarnock and Loudoun) (Lab/Co-op)]

Does my hon. Friend agree that the problems tend to be compounded when people have to appeal, particularly as appeals require advocates who have some knowledge of mental health issues? They are few and far between, and services are stretched at the moment.

[Sheila Gilmore]

They are indeed, and the issues involve both the still considerable waiting times for appeal, and the fact that appeals may be specialised. We know that those who are represented have a different outcome from those who are not.

[Dr Eilidh Whiteford (Banff and Buchan) (SNP)]

I am grateful to the hon. Lady not just for giving way, but for her persistence in pressing the issue, particularly in parliamentary questions to obtain information. A key recommendation in the Harrington review that relates to this debate and particularly the point she is making is that each and every assessment centre should have a mental, cognitive and intellectual champion. Only two assessment centres in Scotland have one, although all centres were supposed to have champions by this time last year. Does the hon. Lady share my concern about that?

[Sheila Gilmore]

I do share that concern, and the recommendation, which the Government indicated initially that they would accept, was that there would be such champions in all assessment centres. I appreciate that some centres are small and isolated, but two in the whole of Scotland is low, and it will be difficult for them to make a significant impression on the system.

[Gloria De Piero (Ashfield) (Lab)]

A distressing case recently at my surgery was a constituent who was in tears and crying hysterically because she believed that she had been placed in the wrong work-related activity group. She is appealing, but the appeal process in Nottingham takes an average of 56 weeks. She is really struggling in that group—she is asked to carry out role play and interviews when she believes that she is in the wrong group. I thank my hon. Friend for raising the issue, and hope that she will press the Minister to address my constituent’s case.

[Sheila Gilmore]

I thank my hon. Friend for her helpful intervention.

On the current descriptors, Michael would be unlikely to score any points. Because of the multi-dimensional nature of the proposed descriptors different aspects are looked at, including the severity of an applicant's difficulties with social engagement, the degree to which that varies between familiar and unfamiliar people, and how frequently that occurs. Those separate factors are scored, and are then multiplied together, with final points being allocated accordingly. The view in the report is that someone such as Michael would be expected to be awarded around nine points rather than none.

The purpose of the proposed descriptors is to account better for fluctuations in impairment that are commonplace in such illnesses, and the amount of support a person might need to overcome their impairment. They are structured in such a way that they could be used as the direct basis for the questions and would be better understood by the claimant.

Those were the recommendations in the report, but what about the Government’s response? As Professor Harrington made clear when he passed his report to the Government, he endorsed the proposals when writing his second review. To date, however, the Department for Work and Pensions has decided not to introduce the new descriptors, arguing either that there is insufficient evidence that the current descriptors are not working—that seems surprising given that that point was made in Professor Harrington’s first review and was accepted by the Government—or that the new ones would work better. In response, the Government said that the Department would “consider” a gold standard review that would take place in the first half of 2012.

The charities that are involved in these matters accept that more research is needed, but in the run-up to this debate they expressed their concern that no gold standard review has yet been initiated. Will the Minister confirm whether such a review will take place, and if so, when? Have DWP officials met with Professor Harrington, Mind, Mencap and the National Autistic Society regarding the establishment of such a review?

The charities have also expressed concern that a number of civil servants on the employment and support allowance team have recently moved on and have not yet been replaced. As a result, the DWP claims to have insufficient staff to initiate the review. Will the Minister ensure that staff are allocated to the ESA team to carry out the gold standard review? If the DWP is unable to provide staff to carry out that review, the charities have suggested that such work could be contracted out to an independent organisation. If that were to happen, would the Minister accept the findings of that review?

The Government accepted a suggestion about revising the ESA50 questionnaire that people fill in when making an initial application, and the idea was to reconsider and adapt, although not change substantially, the wording of the existing descriptors. Will the Minister tell us what progress has been made on that?

More broadly, my fear is that the Minister might use the cover of the gold standard review to kick the proposals into the longish grass because looking at a better way of assessing mental, intellectual and cognitive functions would shine a light on the whole work capability assessment process. That was illustrated by the Minister’s response to an oral question from my hon. Friend the Member for North Tyneside (Mrs Glindon) on 24 October 2011. She asked whether the Government would be implementing the recommendations in the report and the Minister replied:

“The challenge facing us is that the recommendations will involve a complete change of the work capability assessment, not simply for mental health issues, but for physical issues, and is therefore a multi-year project. We are considering whether we can incorporate elements of the recommendations into the current approach much more quickly.”—[Official Report, 24 October 2011; Vol. 534, c. 8.]

Perhaps that is the crux of the matter. The Minister appears to be saying that a substantial change of approach is needed to the whole way that assessment is carried out for issues of physical as well as mental health. The longer the process takes, however, the more people are at risk of being wrongly assessed as fit for work, with all the stress and emotional turmoil that that causes. That is not a small matter for the DWP given the high rate of appeal and the cost and effort involved.

In conclusion, I urge the Minister to press on with the gold standard review for mental, intellectual and cognitive function. In doing so, however, he should not shy away from confronting the real issues that exist with other aspects of the work capability assessment.

--- Later in debate ---

[Chris Grayling]

In relation to mental health champions, let me explain some of the things that we have done for mental health patients. We have a pool of about 60 specialists who provide advice within the Atos network, and their skills are available to every centre, either in person or by phone. Professor Harrington has looked at how we implemented that change, and he praised it because he thinks that it was done well and effectively. We think that we have delivered that expertise, as does Professor Harrington who is an independent assessor and can say whether or not his recommendation has been implemented properly, which in his view it has been.

If I find evidence that we are not getting things right, we are open to change. As I have said from the start, this programme does not have a financial target and is about saving lives, not saving money. If we are successful in moving people back into work it will, of course, reduce the cost to the welfare state, but it will do so in a right and positive way that will help people such as the woman whom I described, who I hope will return, step by step, to the workplace. The alternative is for her to spend the rest of her life on benefits suffering from depression at home, and no one benefits from that.

That is the spirit in which we have approached all this. We tried very hard to ensure that we got it right with the internal review. There was no particular reason for me to implement the internal review. It was set up by the previous Government. The findings were put together by the previous Government. It would have been easy just to say no, but the advice was that it would increase the size of the support group, and that is what has happened. I regard that as a positive step. I always said, and said on a number of occasions in the House, that I was happy to see the dividing line between the work-related activity group and the support group move a bit in the direction of caution, because we are trying to get this right and I do not want people in the wrong place. There will never be a perfect system—I wish there would be—but we shall try to get this right.

I will move on to the recommendations of the work carried out by the charities. I commissioned that myself. I asked the charities to come back with recommended changes to the descriptors. I very much wanted, and do want, to get this right. The problem is straightforward: they did not actually do what they were asked to do. They were asked to make recommendations about further ways to improve the descriptors that would allow us further to ensure that the assessment process for people with mental health challenges was accurate, effective and reflected their needs and potential. That is not what happened.

The charities came back with a recommended system that would have involved tearing up the whole work capability assessment for mental, fluctuating and physical conditions and starting again from scratch, redoing all our computer systems and all the training for every member of staff in the entire network. That was not just a tweak; it was a comprehensive change to the whole thing, based on no actual evidence. The charities did not come forward with tangible evidence. They simply said, “We think it would work better this way.” They may or may not be right, but that is quite a big step to take just on the basis of a set of recommendations from a group of charities that had been proved wrong in the internal review process.

[Sheila Gilmore]

The recommendations from the charities were put to an independent scrutiny panel that had a large number of people with considerable expertise, so will the Minister agree that it is not true to say that they were simply the recommendations of a group of charities?

[Chris Grayling]

That is the case, but what we lack and what we intend now to get is hard evidence to determine whether this is right. Given that the charities were wrong the first time round, I am very reluctant to tear up the whole thing and redo all the computer systems—a vast amount of change; probably a two or three-year project—only to discover that that does not make a difference.

Alongside this, we have been doing work on fluctuating conditions. These are the two particularly challenging areas. Fluctuating conditions can represent a real challenge in the assessment process, because someone who is fine one day may not be fine the next. There are a range of fluctuating conditions and, again, I want to be careful to ensure that we get this as right as we can. In a moment, I will touch on some of the changes that we have made. I just want to explain first where the issue arises with the new set of recommendations.

The working group on fluctuating conditions reported at the end of last year. We intend this year to do that gold standard work, which in effect involves applying the new systems recommended by both groups to a set group of cases to understand what the difference would have been. If we discover that there is very little variation between what they are recommending and the existing system, there will be no point in changing it. If we discover big changes, we will want to understand why. I am perfectly open to making changes in the future if I think that that will make a significant difference. I will state again that we are not trying to force into work people who should not be there. We are not trying to get this wrong, but at the same time this is not about a simple change. It is not about introducing mental health champions throughout the network, improving the quality of the telephony process, ensuring that our staff are better trained or strengthening the reconsideration process. It is about tearing the whole thing up and starting again. That is quite a big step and a very long step to take.

We shall do the gold standard work. We have already done the initial scoping work. It is very important that that is completed. I am very open to making changes, but I will not make changes on the hoof without clear evidence that they will make a difference. The hard evidence that was there for the internal review, which I based my judgment on, proved to be right, whereas the external advice, based on what the charities thought, proved to be wrong, so we have to be very careful.

[Sheila Gilmore]

I thank the Minister for taking another intervention. Obviously, there have been many changes in the system and changes initiated after Harrington 1 as well. Is there a reason why the Minister thinks that the change in the descriptors has resulted in more people being put into the support group?

[Chris Grayling]

The general view of the team who worked on the internal review was that the assessors were better placed with a broader base and less specific descriptors in relation to mental health. People should bear in mind that both the assessors and the subsequent tribunals and decision makers have to operate to a pretty tight template around the descriptors as set in law. By creating additional flexibility within the descriptors, we end up with more people being put into the support group than was previously the case, and that is indeed what happened.

I thought that there was good and sensible thinking in the way that the charities brought forward their ideas. We made some pretty rapid changes. We have continued to adapt the ESA50. We have adapted our training, so that some of the issues that they have highlighted are built more clearly into it. We have also invited all the charities—some have taken this up—to work with decision makers, to contribute to the training process for decision makers.

Probably the biggest change that we made to the whole process was to de-emphasise slightly the role of the assessment itself. One of the criticisms levelled at the whole WCA process before we took over was that it was much too formulaic, with far too little flexibility. Of course, one of the reasons for the appeals issue was that a vast amount of new evidence came forward only at the appeal stage. As a result of Professor Harrington’s report, we tried to create a more holistic process, so we actively ask people for evidence from their specialists up front.

Our decision makers have the discretion to look for additional evidence at the point at which they reach their view, based on the evidence that has been submitted by the individual themselves, the ESA50 and the outcome of the work capability assessment. Likewise, we now actively encourage people to supply new evidence at the reconsideration stage. It is now almost universally the case that we see most if not all of the evidence before it leaves Jobcentre Plus. That has to be the right thing to do.

We have tried to build the learning from the work done by the mental health group and by the fluctuating conditions group into the decision making that is already happening. We have not parked this on the sidelines and said that we will come back to it at a later date. I can explain my problem using the analogy that I used in the Select Committee. It is rather like taking one’s car in for a service. When we come back at the end of the day, it looks great. The people who did the service have done a brilliant job, but they have turned it into a boat. That is not a lot of use if we have to drive it on the road. That, in a nutshell, is the position that I am in. The charities made a recommendation. If they had recommended some tweaks to the descriptors, we would have done that by now, but they did not; they recommended a total transformation of the whole process, including redoing everything for physical health conditions as well—all the descriptors for them—a new scoring system and a new computer system. It would be and will be, if we do it, a monumental task.

We are therefore putting together the mental health work and the fluctuating conditions work. We are looking at the consequences of the approach, through the gold standard review, in a way that the previous Government did, and rightly so. It involves taking a selection of cases, applying the new methodology and understanding what the difference would be. However, we are not sitting on our hands in the meantime. We are not just saying, “Well, that work has been done. Maybe we’ll get round to it at some point in the future.” We have used that as the basis for changes across the way that we interact with people through the assessment process, because we genuinely want to get it right.

I have said on many occasions that this is about helping people who are potentially able to return to work to do so. That is the right thing to do. We will not always get the decision making right, whatever we do. Even if we implement everything that the charities are recommending, we still will not have a system that is perfect in all circumstances. That is why we have the appeal process. We are not talking about putting people into a position whereby they are doing an activity that is damaging to them. We are, step by step, helping people to get back into a process whereby they can apply for jobs and get into work—sometimes quite gently.

[Sheila Gilmore]

Will the Minister clarify, if the gold standard review has now started, whether he has any anticipated time scale for its concluding?

[Chris Grayling]

I have not instantly, but it is certainly my intention that we will complete it within the next few months, as we said that we would. I think that it is necessary to understand the impact. Above all, I want to get this right. Our objective has only ever been to find the right number of people we can help back to work, not any number of people. That is a human goal, not a financial one.

Question put and agreed to.