Atos Work Capability Assessments

Sheila Gilmore Excerpts

Thursday 17th January 2013 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

It is important that we acknowledge that we now have to look at how this test is working. After all, it is not good enough for us just to trade insults and say that the previous Government left people to rot, because the system was actually introduced by the previous Tory Government. We could therefore pass these comments backwards and forwards, but the important thing is to ensure that if we are going to test people, we get it right.

[Bob Blackman]

I share that view, and I was coming on to discuss some of the issues raised in my constituency about the tests and some reforms that we could reasonably request the Minister and Atos to implement.

My constituency has a relatively low unemployment rate, but I have received a succession of complaints from constituents who have been put through the work capability assessments and clearly believe they have been treated unfairly—I agree with many of them. My hon. Friend the Member for Stafford (Jeremy Lefroy) described how he visited his constituents at home, and I have had a similar opportunity to visit some of my constituents at home to see the position they are in and the lives they lead. These people are and should be entitled to full disability benefits, yet they have been denied them.

I want to discuss one specific example, that of a constituent who came to see me in late 2011 to make a complaint against her employer. She suffered from a degenerative spinal condition and struggled to stand for long periods of time. She had asked her employer to split her two eight-hour shifts into three four-hour shifts so that she would be able to continue to work. After some discussion, her employer eventually consented to changing her shift pattern. The point is that this woman was committed to work for as long possible and in a job that she could clearly do. After receiving higher rate mobility allowance and lower rate care allowance for several years, my constituent had her claim reviewed as part of these reforms. Following an Atos work capability test, all her benefits were suspended and she spent the following year appealing the decision. She got full support from me and my office, and I am delighted to say that after the appeal process and a successful tribunal she had her benefits fully restored. Of course, the pain and suffering for a full year was outrageous.

It is worth pointing out some of the medical conditions from which my constituent suffered. She has had a disc removed from her spine, and I understand that its removal caused a mid-posterior annular tear. Those conditions have brought a lifetime of mobility problems and associated side effects, amounting to a debilitating spinal injury. When we add that information to my previous comments about her keenness to work, we see that this is not someone who seeks fraudulently to claim benefits; she seeks only what she is entitled to. At the original work capability assessment my constituent was assessed by a physiotherapist. I have no doubt that the physiotherapist was reputable and qualified, but as an assessor they were clearly not sufficiently qualified to understand the complex medical needs of my constituent. Having had the opportunity to review some of the cases brought to me, I can say that it is clear that Atos and its employees do not have the required expertise.

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[Guto Bebb (Aberconwy) (Con)]

I was not expecting to be called to speak, Mr Deputy Speaker, but I shall say a few words.

The debate has been very valuable and there has been cross-party consensus, which shows that there is a great deal of concern about how Atos is performing against its contract. That is not to say that all the language used today is acceptable, and I feel that some of the constructive changes that have been implemented have been ignored. For example, when I was on the Welfare Reform Bill Committee, one of the key issues of concern for me was how the work capability assessments would deal with cancer patients. It is a fact that more cancer patients now qualify for unconditional support than ever before, yet we have had no mention of that. In the midst of making constructive and, in many cases, justified criticisms of Atos, it is important that Members are careful not to frighten people listening to this debate who might be cancer patients and might feel that they have no hope whatever of a fair hearing from Atos. I also want to highlight the fact that more people—double the number from two years ago—now qualify for unconditional support.

Those two points—about cancer patients and the number of people getting unconditional support—are important reasons why the proposal made by some Opposition Members that we should simply throw the whole system out and start again is dangerous. It does not take into account some of the constructive changes that have been implemented.

[Sheila Gilmore]

I do not deny that there have been some improvements—although one speaker said that they had happened at a glacial pace, which was probably a fair comment—but we must bear it in mind that the unconditional support is not available without the person being re-subjected to an assessment. One complaint is about the frequency of reassessment, even for people whose conditions are so serious that they have been put in the support group but who sometimes, a year later, still have to come back and go through the whole process again.

[Guto Bebb]

The hon. Lady’s point is important, because although we all subscribe to the principle of a review, when a condition has been assessed as demanding unconditional long-term support there is a question about whether an annual review is justified. That is an issue that a constituency MP who takes case work seriously would not ignore, so I take her point on board.

There are a couple of aspects that I welcome, but about which I still have concerns. One is the way in which the system deals with patients who suffer from mental health problems. Mental health services are often the Cinderella service of the NHS, but when it comes to people who have difficulty accessing work and feeling confident to do so, the way that Atos deals with such patients has been less than acceptable. I understand that the Department and Atos are putting in 60 champions, but given the number of issues that I have seen in my own constituency, I question whether 60 will be sufficient for the whole of the United Kingdom. The way in which we deal with people with mental health problems is not acceptable in the health service and it is not acceptable at this point in time in Atos, even though the problem has been recognised and work is being done to try to deal with it.

The other matter, which has been touched on by several hon. Members, is the issue of people with chronic long-term illnesses. The problem that I have seen in my constituency surgeries is that quite often somebody may turn up at an assessment centre and on that particular day would be capable of a certain type of work, but the situation could be completely different the following day. The problem with the system that we have put together is that it does not take into account those long-term chronic conditions that could result in somebody occasionally being able to take on work, but not on a long-term basis. That is another weakness in the system.

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[Heather Wheeler]

I do get that point; I am saying that the champions ought to be there when the interviews are taking place. I find the juxtaposition astonishing—according to Professor Harrington’s report, people need that extra bit of care. I find it interesting that we have just heard that there will be 60 champions in the country. Patently and obviously, that is not enough. Perhaps the Minister will advise us that that number represents a pilot and, notwithstanding what we are saying in this debate, it will be increased in short order.

[Sheila Gilmore]

In Scotland, there are mental health champions in only Edinburgh and Glasgow. This is not a pilot; the Minister has previously said that he has implemented Harrington as far as mental health champions are concerned.

[Heather Wheeler]

I am sure the Minister has heard every word that the hon. Lady said.

I finish on two final points because time is short and many people want to speak. People have mentioned the tick-box nature of the interview; my constituents find it hugely frustrating that they cannot expand on an answer. After all this time, perhaps the interview process could be tweaked to allow that. My last point is about the absolute frustration of GPs and consultants who feel that no account whatever is taken of the fact that they take their time to write the letters. That is desperately frustrating and a huge waste of public money.

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[Sheila Gilmore (Edinburgh East) (Lab)]

Like everybody else, I thank my right hon. Friend the Member for Oldham West and Royton (Mr Meacher) for securing this debate and the Backbench Business Committee for agreeing to it. Clearly, we could have done with double the time or even more. Most of us could probably speak for at least an hour on these issues.

Getting the system right is hugely important for individuals. People have spoken about the effects on people’s mental state and their well-being, but I will mention some of the financial effects, which the last speaker began to touch on, for people who go into the work-related activity group. If that decision is not right, those people lose their contributory benefits after a year. The people who suffer the most from that are those who have a working partner—that partner may only work part time—and who have built up some savings, because they cease to get any benefit. If they want to get their national insurance credits, they still have to go through the assessment or they will not get the credits that will help them in the future with their pension. They may not be getting any money, but they are still going through the assessments.

Depending on the prognosis that is given in the recommendation—we are told it is not a “decision”—by Atos, many of the people in the work-related activity group will be mandated into the Work programme. That happens if the prognosis is that they might be fit within six months, but we are told that that will shortly be increased to 12 months. That means they could experience sanctions if things go wrong with the Work programme. If something goes wrong, perhaps because they have a learning disability or a mental health problem, and they do not turn up or are deemed not to be co-operating, they could be sanctioned. I have a constituent in that position who was sanctioned for six months for that reason. The people in that group are the ones who are most affected by having only a 1% increase in benefits for the next three years, although it must be said that people in the support group are in large part also affected, contrary to what has been said.

Getting it wrong can mean that people slip off benefits altogether. Research commissioned by the previous Government, which I understand is not being continued by this Government—the Minister might reassure us on that—found that 43% of those found fit for work were neither in work nor in receipt of an out-of-work benefit a year later. We must ask where they are. What is happening to them? We should know and we should care. It is not good enough for Minister to say, “We have reduced the number of people on out-of-work benefits,” and to imply that those people are happily in work when that is almost certainly not the case.

The Minister will probably say that things are improving, but the work on the descriptors shows that the pace is glacial. In November 2011, Professor Harrington suggested that new descriptors be tested. The Government said then that they would look at the suggestion in early 2012. The current position is that the testing has only recently begun, and we will be lucky if we get a full response and report on it by autumn 2013, which is nearly two years since Professor Harrison made that suggestion.

Another problem—this has already been touched on by others—is that some people are falling into a hidden trap. They are found fit for work, but are told that they cannot sign on for JSA, which is the only benefit for which they are eligible, because they are not fit for work and hold a medical certificate. Potentially, people in that situation get no benefit. I am not sure whether Ministers are even aware of that procedural issue.

On appeals, finally, after a lot of pushing, tribunal judges are giving limited information on their reasons, but it is not good enough—it is too general. But that information is being used by Ministers, and it was used by Atos in a briefing that I presume was sent to all MPs, to say that all is well, because it was found that Atos was found to be at fault in only 0.5% of cases. That is very misleading, because people are winning their appeals on the basis of new oral evidence.

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[Stephen Timms (East Ham) (Lab)]

We have a heard a large number—26, I believe—of extraordinarily powerful speeches in the debate. There is no doubt that the current WCA arrangements are causing immense problems and anxiety for people for whom all hon. Members want anxiety to be minimised.

In opening the debate, my right hon. Friend the Member for Oldham West and Royton (Mr Meacher) mentioned the distress, indignation, fear and anger that have been caused. His assertion was amply supported by contributions from both sides of the House. We should not allow the system to continue. It needs fast and fundamental reform. I put it to the Minister—this struck me as I am sure it did him—that calls for such reform have come from both sides of the House, which does not often happen. It certainly happened today.

Part of the background to the debate is that a very small proportion of people who are placed by the WCA in the work-related activity group of ESA are getting into work. The invitation to tender for the Work programme said that the minimum performance standard would be that 5.5% of new applicants for ESA get into sustained job outcomes within one year, but the data published in November show that the proportion was 1%. The Work programme has performed terribly for the group of people we have spoken about in this debate.

What has gone wrong? The structure of the employment and support allowance is right. In the 1980s—my hon. Friend the Member for Edinburgh East (Sheila Gilmore) was absolutely right to remind the hon. Member for Harrow East (Bob Blackman) of this—thousands of people were encouraged to move from unemployment benefit to invalidity benefit in order to reduce headline unemployment. People who worked in benefit offices at that time have explained to me how staff were given incentives to encourage people to make that shift. Once they had gone on to invalidity benefit, later incapacity benefit, that was it—they were abandoned. No further support beyond the cash benefit was provided. It was only in 1997 that that began to change. It was recognised that the vast majority of people in receipt of incapacity benefit would prefer to be in employment, if they could be. Starting with the new deal for disabled people and later with pathways to work, new ideas were developed. Nothing previously had been done to practically support people with serious health impairments into work. The approach can be summarised as: work for those who were in a position to work, and support for those who were not.

Out of that experience was drawn the design of the employment and support allowance. From that, the work capability assessment was designed to allocate people into the three groups: fit for work, work-related activity group, and support group. That is the right structure and architecture for the benefit, but it is the assessment—the topic of this debate—that is now in doubt. The key problem is that very soon after the election, the Government announced that they would reassess the entire incapacity benefit case load on a very fast timetable. At that time, the WCA had been introduced less than two years previously. Problems were still being ironed out and the organisation had not properly bedded down, yet on to this still developing system was placed the enormous burden of reassessment. Atos tells us it carried out 1 million work capability assessments last year. The load has just been too much, resulting in the problems that we have heard about, and which have been expressed so impressively in this debate.

The Minister will be aware of a good deal of concern among disability rights organisations about the Employment and Support Allowance (Amendment) Regulations 2012. They were laid before Parliament just before Christmas on 17 December, and come into force on 28 January. They include the changes that will allow people recovering from cancer to go more frequently into the support group—a welcome change that was referred to by the hon. Member for Aberconwy (Guto Bebb). He said that the changes had already happened, but in fact they will take place on 28 January. A lot of people are worried that the regulations appear to give Atos permission to take account of non-existent, imaginary adaptations or medication in the assessment, and introduce a false distinction between physical and mental impairments. There is a lot of concern and I am sure the Minister is aware of it. Will he be able to say anything to address it?

The Government have recognised that the WCA needs modification. However, as we have heard from a number of speakers, they have gone about the task in an extraordinarily leisurely way, which has been described as “glacial” by a number of Members. I hope that the Minister can encourage us and tell us that the Department will now get a move on. I want to put to him a number of specific points. When will the changes to the descriptors for fluctuating conditions and mental health conditions, which were recommended months ago by the disability organisations, be implemented? He answered a question that I tabled last week on this, and there still seems to be a terrible, lackadaisical approach. He said:

“The Evidence Based Review (EBR) remains a priority for the Department and work is continuing at pace. The final report is due in 2013.”—[Official Report, 7 January 2013; Vol. 556, c. 180W.]

That was the first alarm signal, because his predecessor, in an answer on 25 June 2012, had told me that the final report would be due in spring 2013. Now the Minister is saying it will be in 2013. My hon. Friend the Member for Edinburgh East suggested that it will not be until autumn 2013. If that is right, that is another six-month delay. We really need to get a move on.

In his reply to me last week, the Minister said:

“We have undertaken extensive work with these charities throughout the summer”—

that was an answer last week, and the summer was the season before last. What happened in autumn?—

“to ensure that the ‘alternative’ WCA assessment combines recommendations from both the mental functioning and fluctuating conditions groups, and that the descriptors are suitable for testing.”—[Official Report, 7 January 2013; Vol. 556, c. 181-82W.]

The mental health descriptors were signed off by the charities in March last year. I really hope that the Minister will get the Department to get a move on and not just try these things out, which is what the evidence-based review—when it finally happens—will do, but introduce the changes that are clearly so urgently needed.

On progressive conditions, does it make sense to push everybody with a progressive condition, such as Parkinson’s disease, through regular reassessments when we all know that those conditions are only going to move in one direction and get worse. My hon. Friend the Member for Llanelli (Nia Griffith) made that point in an intervention. The Minister answered a question from me recently about this. He said:

“Around 360 people with Parkinson’s disease in the Work Related Activity Group have undergone a repeat assessment following their initial assessment…Of these, around 20 people…were found Fit for Work at their first repeat assessment.”—[Official Report, 15 January 2013; Vol. 556, c. 725W.]

No doubt some of them will have appealed and had their appeals upheld. Is it really worth putting 360 people with Parkinson’s disease through reassessments in order to find that perhaps 20 should be fit for work—although, as I say, a number of those would no doubt have been overturned? I also asked how much the reassessments were costing. As a number of Members pointed out, the Minister simply will not answer any questions about cost, on the grounds of commercial confidentiality. This is public money, and we need to know where this money is going and how it is being spent.

We need to make better provision for people to be able to supply their own supporting medical information in their assessment—a point made by my right hon. Friend the Member for Oldham West and Royton in opening the debate, and by the hon. Member for Stafford (Jeremy Lefroy) and my hon. Friend the Member for Bridgend (Mrs Moon). The application form should be amended to invite people’s own supporting medical information, and Atos assessors need to be more open to being informed by that information.

Atos assessors should be told why previous assessments were overturned on appeal—a point raised with me by Atos itself some months ago. We have heard how often people have won their appeal, gone back to Atos and immediately been found fit for work again. Part of the problem is that Atos was never told why a person’s appeal was upheld. I believe that changes are in hand or perhaps have been introduced to assess that problem. My hon. Friend the Member for Airdrie and Shotts (Pamela Nash), however, was among those who referred to the seriousness of this revolving door problem. It needs to be addressed. I was also troubled by what she said about the difficulties people had getting their assessments recorded. That was supposed to have been sorted out, but her comments, and those of others, suggest otherwise.

[Sheila Gilmore]

Is my right hon. Friend aware that although tribunal judges are giving brief statements of reasons, these are not enough to help the decision makers or Atos understand?

[Stephen Timms]

My hon. Friend makes a telling point. That information needs to be provided.

The architecture of ESA is sound, but the assessment system is clearly not up to the load it is being asked to bear. That is why we need fundamental and much faster reform, with a much greater sense of urgency than we have seen from Ministers so far.

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[Mr Hoban]

The hon. Gentleman says that I am a Minister, but the judges are independent—one of the strengths of our system. I hope that the judges have heard the comments that have been made—not only in this debate, but in other debates—about the need for more detail. To get the system right we need better feedback from the judges, but let us not forget that where we ask judges for the reason for an overturn, in a large proportion of cases they say it is the presentation of fresh evidence. They are very explicit in saying that the primary reason for overturn in only 0.3% of cases is the Atos assessment.

[Sheila Gilmore]

I am grateful to the Minister for giving way, because this is an important point, especially as it has been briefed on so often. What I want to know—the Minister has to ask this question too—is this. I suspect that the question of overturns is simply one of some fairly simple error in the form, but according to the same judges, in 40% of cases they made their decision because they disagreed with the presentation of the case. That still suggests something wrong with the initial assessments—whether because the people concerned did not present them well or because the Atos assessors rushed them through. In 40% of cases the judges came to a different decision.

[Mr Hoban]

Just because the statistics do not suit the hon. Lady’s argument does not mean that they are wrong. A lot of this debate is about constituency casework and experience. Sometimes we also need to look at the overall stats and figures behind this issue to put those cases in context, which is why I made the point about the overturn rate.

It has been suggested that GPs should make the assessment. The British Medical Association has been prayed in aid. Let me quote what the BMA said about that idea:

“However, it is not part of the GP’s role to provide any opinion…on the patient’s capability to work as part of this process. It is vital that these two roles are kept separate and that GPs are not asked to provide an opinion on their patient for the purpose of receiving the Employment and Support Allowance; doing so could damage the doctor-patient relationship.”

It has also been said that the work capability assessment does not take full account of mental health conditions. Let me say a bit about that important issue. We have sought to improve the process and the support for the health care professionals who are undertaking the assessments. All Atos health care professionals receive specific and additional training in assessing mental health conditions—