Work Capability Reassessments

Sheila Gilmore Excerpts

Wednesday 5th December 2012 Westminster Hall

[Sheila Gilmore (Edinburgh East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hood. Everybody here is probably familiar with some of the issues relating to the employment and support allowance and the work capability assessment. Between the introduction of the assessment in October 2008 and August 2011, 1.15 million new claimants were assessed and 687,000 were declared fit for work. Of those, 102,500 successfully appealed their decision and were awarded ESA. That means that 9% of all ESA assessments have been overturned. When we look at assessments leading to fit-for-work decisions, the figure rises to 15%. Although the proportion of decisions overturned has started to fall, the overall number still remains extremely high.

Those figures do not include all the incapacity benefit claimants currently being migrated to ESA, a process that started last year and is due to be completed in 2014. The figures published recently cover claims only after appeals have been taken into account—they have been published on a different basis—so we have no data on how many claimants in the migration are originally declared fit for work and then appeal, and how many of those appeals are successful. Although that is not precisely the subject of this debate, I hope that the Minister will see to it that we have more comprehensive and comparable data in future.

The number of incorrect assessments and successful appeals is still high. Like many of my colleagues, I have been considering a number of different aspects of the issue. Earlier this year, I secured a debate here in Westminster Hall on the work capability assessment. On that occasion, I focused on the recommendations for new mental, intellectual and cognitive descriptors drawn up by Mencap, Mind and the National Autistic Society. Although the descriptors are certainly not the only issue that needs addressing, they could have gone a long way to improving the assessment process.

Professor Harrington approved and submitted the descriptors to the Department for Work and Pensions in spring 2011. It is frustrating that officials are only now getting down to assessing properly whether the descriptors would improve the WCA, and we will not get the results of that so-called gold standard review until next summer. There will have been more than two years of delay since the proposals were published.

[John McDonnell (Hayes and Harlington) (Lab)]

I preface my remarks by thanking my hon. Friend for the work that she has done on the issue over a long period. Is her experience the same as mine? The largest number of constituents with whom I deal who have lost their benefits, and those with the most distressing cases, are those with mental health problems and those on the autistic spectrum.

[Sheila Gilmore]

I thank my hon. Friend for his intervention. That is the case. There is a flaw in how the original test was drawn up if it is not accounting properly for those types of condition. That is why it needs to be examined.

[Gloria De Piero (Ashfield) (Lab)]

On that point, one of my constituents, a former careers adviser, had a breakdown that led to depression and panic attacks. He was assessed as fit for work—by a physiotherapist.

[Sheila Gilmore]

I thank my hon. Friend for contributing that example. We must look at such situations carefully.

The process of reviewing the new descriptors is finally under way—although I suspect that we will return to it in due course—so I will concentrate on appeals and the time between assessment and reassessment. One of the most common stories that I hear from constituents is that they are found fit for work, wait several months for an appeal, get ESA and are then called back for a further assessment, sometimes just weeks and often only two or three months later. That is one of the most visible flaws in how the system works.

[Nia Griffith (Llanelli) (Lab)]

Does my hon. Friend agree that not only is the waste of money enormous, given that so many are granted benefit on appeal, but that given all the cuts to citizens advice bureaux, it is difficult for people to get the right support going into a frightening tribunal situation?

[Sheila Gilmore]

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

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

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

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

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

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

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

[Julie Hilling (Bolton West) (Lab)]

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

[Sheila Gilmore]

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

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

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

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

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

[Jim Shannon (Strangford) (DUP)]

I thank the hon. Lady for being a champion of this cause. I have a staff member who looks after nothing else but ESA and DLA appeals, because of the volume of those coming in. That is one of my great concerns. For descriptors, they ask them, “Can you move the box from here to there?” or “Can you hold the pint of milk?” Those descriptors do not apply to blind people, to people with depression or to those with severe mobility and other issues. Does the hon. Lady feel that the Government could look upon this matter more favourably and ensure that people have a report from a general practitioner, the person who medically knows them best of all?

[Sheila Gilmore]

Without a doubt, that is one way that it could be done. The flaws of the system include whether people are able to present information, when it is accepted and how it is used.

It seemed that the former Minister at least was prepared to move in respect of people’s being called back too quickly. I put this issue to the new Minister at the Select Committee on Work and Pensions evidence session held on 21 November, but I did not get a particularly helpful response. The Minister said,

“There is the opportunity for the tribunal to make a recommendation”,

which suggests that the tribunal could do that, but he then said,

“When that recommendation is made, it is something that the decision maker should take into account. I think there is also an issue about at what point of time is the tribunal disputing DWP’s decision.”

Should they be looking at

“the point in time the decision was made, which could be nine months earlier…or is it based on what they saw on the day in the tribunal? So there is a lack of clarity there, but I think we should take a fairly clear view about when reassessments should take place, and it is an area that decision makers should work on.”

The Minister used a lot of words, but did not provide clarity about our making progress on this matter. He was far less clear than his predecessor talking on a television programme. That was disappointing. Perhaps the Minister will provide clarification when responding.

Can the judges suggest a different prognosis time? Are they given guidance as to when they should and should not set prognosis times? Do the Government collect statistical analysis of how often judges take up this option? If they are allowed to do so, they appear to exercise that ability rarely. At what point and how are decision makers brought back into the process once a fit-for-work decision has been overturned? If that happens, could a decision maker at that stage, as opposed to at appeal, suggest a new prognosis time, even if the judge has not taken up the option? What guidance is provided to decision makers in this regard and are there any statistics on it?

I shall pre-empt the Minister by acknowledging that in government my party introduced ESA and the work capability assessment. I do not raise these issues to make political points, but in a genuine attempt to get them dealt with. I have repeatedly stated that I came to this place determined to raise these issues, regardless of who won the election. I first came across many of the issues as I was campaigning for election. I was concerned about a politicised response at the last Work and Pensions oral questions, consisting too much of saying, “You introduced it,” which did not get to the crux of these issues.

It would help if the Minister provided clarity on the following points. Do decision makers set prognosis times for claimants found fit for work? If so, why are those not overturned when this happens to corresponding fit-for-work decisions? Can judges set new prognosis times when they overturn decisions? What role do decision makers have with respect to prognosis times following successful appeals?

Finally, I seek an update on the apparent instruction from the former Minister to civil servants that the time between reassessments should be reduced. A central recommendation of Professor Harrington’s first report was that the WCA should be more compassionate and empathetic, and this will only be achieved once Ministers intervene and stop people being called back for reassessments immediately after successful appeals.

--- Later in debate ---

[Esther McVey]

I will come to that point a little later.

The number of working-age people on ESA and incapacity benefits as of February 2012 was 2.56 million, which is the lowest level since the introduction of IB in 1995. Early estimates to September 2012 suggest that overall the numbers on these benefits are further decreasing and for the first time the data have gone below 2.5 million.

[Sheila Gilmore]

Is the Minister aware of the research that the DWP carried out for some of the early applicants for ESA, which showed that after a year of being found fit for work, 43% were neither on an out-of-work benefit nor in employment? This fall in the number of people on benefit may be the result of their simply getting nothing and disappearing out of the system. Is she concerned by that?

[Esther McVey]

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

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

--- Later in debate ---

[Esther McVey]

As I said, all factors will be taken into account for the individual having an assessment. It is true that a small number of claimants are asked to attend a further work capability assessment as little as three months after a successful appeal, but only after careful consideration of all the available evidence by the decision maker. Our latest data show, however, that that only happens in around 5% of cases. As part of our ongoing commitment to continuous improvement, the process was reviewed, with revised guidance issued to decision makers in February 2011 to ensure that they were actively considering a suitable re-referral date, so that claimants are called back when most appropriate for them.

Following the recommendations from Professor Harrington’s year two review, a regular audit of decision-maker performance is now conducted via the quality assurance framework, whereby checks are made on a sample of ESA and IB reassessment decisions. We also conduct twice yearly calibration exercises at a national level to ensure consistent application of the quality assurance framework. More than 90% of decisions met the required standard each month between February and September 2012. Additionally, due to changes introduced in July 2012, we have improved the process for receiving feedback from the tribunals if the tribunal has overturned the original decision. Judges now have the discretion to include a recommendation of when the next WCA should take place on the tribunal’s decision notice. The decision maker will take account of that recommendation when setting the review date.

I recognise that the number of appeals that the Department receives, as well as the effect on the individuals concerned, is an emotive issue. I also acknowledge that the volume of appeals has increased significantly over recent years, but that, too, is being addressed. I want to ensure that the decision making is right first time around, which was a focus of Professor Harrington’s independent reviews of the WCA. He has made a number of recommendations to support such an approach to decision making. As a result, we have: changed how we communicate with claimants, to explain the process more clearly; put decision makers at the heart of the process; and introduced the quality assessment framework to improve the quality of decisions made. We have also introduced the personalised summary statement and regional mental function champions to improve the quality of face-to-face assessments.

If a claimant disputes a decision, however, we must be able to resolve the dispute within the DWP, whenever possible. If the dispute cannot be resolved within the DWP, we need to ensure that an effective and efficient dispute resolution procedure is in place. The DWP and Her Majesty’s Courts and Tribunals Service are working together to improve the quality of initial decision making to address the high levels of appeals while ensuring that fairness and efficiency are maintained.

[Sheila Gilmore]

Can the Minister address a specific issue? As recently as July, the former Minister appeared to accept that in spite of the changes mentioned he thought that people were being called back too quickly for reassessment. What has been done since July to deal with that?

[Esther McVey]

I thought I had dealt with that a little earlier when discussing the decision makers and how there is the right to look at when they feel it is appropriate to call someone back, whether three, six, 12, 18 or 24 months later. That obviously has to be right for all, whether the person assessed or the system as a whole. As the hon. Lady knows, we have reviewed the process not once, not twice, but three times under Professor Harrington. Each time recommendations have come back, and we have implemented them, so significant changes are under way.

As the hon. Lady mentioned at the start of the debate, we inherited the situation—the system was put in place before this Government—but we are trying to get it right, we have brought in changes and we will continue to do so until all parts of the House and, most importantly, those being assessed, feel we have got it right.

In conclusion, I echo Professor Harrington who has made it quite clear that the work capability assessment, designed as the “first positive step” towards work, is the “right concept” for assessing people who need our support. He also recognised, however, that there was a need to improve it, which is why we accepted and have largely implemented more than 40 recommendations made in his first two reviews.

Following our reforms, twice as many people go into the support group now as when ESA was introduced. The proportion of people with mental health conditions being awarded ESA has risen from 33% to 49%. I know the hon. Member for Edinburgh East asked specifically what was happening in that regard, and I hope that she can take some comfort from how clearly we are looking into the matter and at how the numbers have changed.

In response to the hon. Member for Ashfield (Gloria De Piero), who mentioned one of her constituents and a physiotherapist, the assessment looks at the function and not the condition. Physios are experts in this area and have comprehensive training, especially on mental health. They are only approved and allowed to be assessors if they have the necessary skills.

As for the critics, Professor Harrington made it clear in his third review:

“All they call for is a scrapping of the WCA but with no suggestion of what might replace it”,

and

“to recognise that things are beginning to change positively in the best interests of the individual would be helpful.”

Debates such as this improve the situation.