Work Capability Assessments

Sheila Gilmore Excerpts

Friday 6th September 2013 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

I welcome this opportunity to raise an important aspect of employment and support allowance and the work capability assessment. This is my fourth Adjournment debate on the subject. In each debate, I have started by highlighting the scale of the problems with the benefit. Although many people who listen to or read this debate will be familiar with the procession of figures, it is important to put them on the record again.

Between the introduction of the assessment in October 2008 and May 2012, 1.47 million new claimants were assessed and 846,800 were declared fit for work. Of those, 332,300 appealed the decision and 123,700 were successful and were awarded employment and support allowance. That means that nearly one in 10 of the assessments has been overturned. Although the proportion of the assessments that are overturned has started to fall a little, the overall number remains very high. Those are the figures for new claims. They do not include the regular reassessments of those who are already on ESA, nor do they cover all the incapacity benefit claimants who are being migrated to ESA—a process that is due to be completed in 2014.

I will briefly summarise the progress, or lack of it, with regard to the other concerns that I have raised in the past 18 months. In May last year, I argued in favour of a new set of mental health descriptors that had been drawn up by Mencap, Mind and the National Autistic Society. An evidence-based review was commissioned to evaluate those descriptors and I understand that the report is due to be published imminently. In December, I highlighted the fact that claimants were regularly being called back for reassessments just months after their previous claims had been granted on appeal. I regret that that is not being properly addressed by Ministers. I continue to meet constituents who are still on that stressful and unnecessary merry-go-round.

Just before the summer recess, I secured a commitment from the Minister that claimants would be informed that they could have their assessment recorded, and that the time limits that were preventing that from happening would be dropped. I continue to urge the Minister, when assessing whether audio recordings improve the quality of assessments, to consider the rate of successful appeals, rather than just the demand among claimants for audio assessments.

Before I move on to the specific issue that I want to cover today, I must highlight the announcement that the Minister made on 22 July. He admitted that some Atos reports were so poor that staff were being retrained and additional providers brought in. Given that the Government now acknowledge that there are major problems with the assessment process, it is even more important that we ensure that financial support is available to those who are wrongly found fit for work. That is what I want to focus on today.

To put the matter into context, as soon as a claimant contacts the Department for Work and Pensions to claim ESA, they are paid it at what is known as the assessment rate, which is equivalent to jobseeker’s allowance. That lasts until they go through the first assessment and a decision is made on their claim. If they are declared fit for work and believe the decision is wrong, they can ask the decision maker, who is a DWP official, to reconsider it before they lodge a formal written appeal with HM Courts and Tribunals Service. I want to focus on that in-between period, which is referred to as reconsideration but is effectively an informal appeal.

Although claimants are not automatically paid ESA at the assessment rate during that in-between period, they are entitled to it and can apply for it if they know about it. That entitlement continues if the decision remains unchanged and the claimant decides to appeal. However, following the passage of the Welfare Reform Act 2012 and subsequent regulations, that is set to change. Claimants will have to apply for reconsideration before they can lodge an appeal, and they will no longer be entitled to ESA at the assessment rate during that period.

The Minister’s colleague Lord Freud admitted in the other place on 13 February that, as a result of that change, there would be a “gap in payment”. Initially, that might not appear problematic. Claimants will be told that they can simply apply for jobseeker’s allowance instead while their reconsideration request is being considered, then go back to claiming ESA at the assessment rate if they go to formal appeal. Leaving aside all the procedures involved in doing that, there is a serious problem for people in that position in claiming JSA. It comes with a great degree of conditionality. In particular, claimants have to be available for and actively seeking work. They must attend regular work-focused interviews, undertake job searches and make a minimum number of applications every week. That in itself may prove tiring or stressful, and it could exacerbate people’s existing physical or mental conditions. More importantly, those who apply and fail to meet those conditions can be sanctioned or refused benefit altogether. I have encountered situations where Jobcentre Plus has advised claimants that they cannot claim JSA because they are not fit for work, for example because they have a fit note—what used to be called a sick note—from their doctor.

Conditionality is not new, but the new mandatory reconsideration stage will interact with it to have an adverse effect on people who are ill or disabled and have to apply temporarily for JSA while their ESA claim is undergoing reconsideration. The state will effectively be telling those people that they are too fit to claim ESA but too sick or disabled to claim JSA—a veritable trap.

Although mandatory reconsideration has yet to come into full effect, my constituent Ms Rose Burgess already faces that predicament in a related situation. She suffers from arthritis and depression, and she applied for ESA earlier this year. She underwent a face-to-face assessment and was declared fit for work. She appealed, and the judge upheld the DWP’s original decision. However, when she then claimed jobseeker’s allowance, she was told she was ineligible because she had a fit note from her GP. She was not entitled to ESA, and she was told that she was not entitled to JSA either. Her condition has since deteriorated further and she has now reapplied for ESA and is awaiting the application of her fresh application, but her example shows how easy it already is for people to slip into the limbo between ESA and JSA, even without the mandatory reconsideration period.

Similarly, another constituent who suffers from back problems was claiming JSA. His problem flared up when he was due to attend his work-focused interview. When he arrived at his jobcentre and explained that he would be unable to manage to climb up the stairs to where the interview would take place, he was told that his claim would be ended because he was not fit for work. He raised the matter vigorously and the situation was rectified fairly quickly, but that example demonstrates the emphasis placed by jobcentres on JSA claimants being fit and available for work.

For people whose claim to ESA is marginal and whose health problems are not too great—some people might believe that is what I am describing—a brief period on JSA might be just about manageable. However, Camberwell Myalgic Encephalomyelitis Support Group has told me that it currently works with many people who score zero points on their initial assessment, but who, after appeal, are placed in the support group. The appeal shows that they have serious health conditions, but they might find themselves in that position. The Camberwell group says that many of those whom it helps find that they cannot physically get to a jobcentre on certain days, as is required under JSA.

The scale of the problem that people are likely to face is exacerbated because there is less discretion on sanctions than previously. A leaked memo from Walthamstow Jobcentre Plus showed earlier this year that a targets culture appears to have emerged on sanctioning, whether or not Ministers have explicitly sanctioned it. At the very least, we must consider reintroducing a degree of flexibility in the sanctions regime when we are dealing with people who have health problems.

In the other place, Lord Freud referred to other sources of income that people could access during that period, but I am not clear what he meant by that. I expect that most claimants are similarly at a loss. I would be grateful to the Minister if he could explain what other sources of income people could access.

One way to limit the impact of the gap in payment would be for the Government to set a statutory time limit on how long the Department for Work and Pensions can take to complete a reconsideration. However, they have deliberately omitted to do so. On 13 February, Lord Freud stated that “a number of respondents” to the Government’s consultation

“suggested that there should be a time limit on the reconsideration process…we are not making any statutory provision for this. Some cases are more complex and require additional time—particularly, for example, where extra medical evidence needs to be sought. However, we recognise the concern here and are considering the scope for internal targets.”—[Official Report, House of Lords, 13 February 2013; Vol. 743, c. 744-45.]

I fear that non-binding and non-public internal targets simply will not be adequate, especially given the pressure that the much-reduced Department for Work and Pensions staff are under. As a result, it is possible that people who will eventually be deemed entitled to support will be left without income for a protracted period.

I raised the issue with the Minister at the Select Committee on Work and Pensions on 21 November 2012, and asked about it again at Work and Pensions questions on both 11 March and 20 May 2013. On the last occasion, he emphasised that, if people do not claim JSA, their ESA claim would be backdated should they appeal and have their fit-for-work decision overturned. However, in many cases, the damage will have been done. With no income during that period, people run the risk of becoming destitute. Many will have to rely on already stretched food banks. Some will be driven into the hands of payday lenders, amassing debts they will struggle to repay even if benefits are subsequently reinstated.

The Minister can do a number of things to address the problem. At a minimum, it would be helpful if he provided the House with information, first to confirm exactly when the new system of mandatory reconsiderations will begin. Secondly, he could give the House information on what alternative sources of income people have if they cannot claim either ESA or JSA. Thirdly, he could tell us what internal targets he will introduce on the time taken for mandatory reconsiderations.

Several changes would help at least to alleviate the worst effects of this policy. One example would be to reintroduce a degree of flexibility into the sanctions system, so that ESA claimants declared fit for work and having their claim reconsidered are not subject to normal JSA sanctions. Alternatively, the Minister could put a statutory limit on the time DWP can take to conclude the reconsideration process. But the one thing that would resolve this issue entirely would be to amend the regulations to allow ESA claimants to continue to receive ESA at the assessment rate during the reconsideration period. Otherwise many people who the state will later conclude should not be available for work will be required to claim a benefit that explicitly requires that they should be. Many people will end up without any support from the state, being too fit for ESA, but too sick or disabled for JSA.

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

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

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

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

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

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

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

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

[Sheila Gilmore]

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

[Mr Hoban]

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

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

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

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

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

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

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

[Sheila Gilmore]

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

[Mr Hoban]

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

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

[Sheila Gilmore]

Will the Minister give way?

[Mr Hoban]

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

[Sheila Gilmore]

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

[Mr Hoban]

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

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

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

Question put and agreed to.