Work and Pensions Committee
Oral evidence: Employment and Support Allowance and Work Capability Assessments, HC 1212
Wednesday 9 April 2014
Ordered by the House of Commons to be published on 9 April 2014.
Written evidence from witnesses:
Members present: Dame Anne Begg (Chair), Debbie Abrahams, Graham Evans, Sheila Gilmore, Glenda Jackson, Kwasi Kwarteng, Nigel Mills, Anne Marie Morris, Dame Angela Watkinson
Questions 1 - 88
Witnesses: Rachael Holmes, Head of Policy Research, Families, Welfare and Work, Citizens Advice, Tom Pollard, Policy and Campaigns Manager, Social Inclusion and Rights, Mind, Donna O’Brien, Social Policy and Campaigns Advisor, Parkinson’s UK, Anna Bird, Head of Public Policy and Research, Scope, and Joanna Kennedy, Chief Executive, Zacchaeus 2000 Trustgave evidence.
Q1 Chair: I welcome our panel of witnesses for the first oral evidence session of our inquiry into the operation of the work capability assessment and the employment and support allowance. I have to say that we have had an unprecedented number of submissions on this inquiry, so obviously lots of people are very interested in our deliberations today. May I begin by asking you to introduce yourselves for the record, please, starting with you, Rachael?
Rachael Holmes: My name is Rachael Holmes. I am the head of policy for families, welfare and work at Citizens Advice.
Tom Pollard: Tom Pollard. I am the policy and campaigns manager focusing on social inclusion issues at Mind.
Anna Bird: I am Anna Bird, head of research and public policy at Scope.
Donna O'Brien: I am Donna O’Brien. I am social policy and campaigns adviser, Parkinson’s UK.
Joanna Kennedy: I am Joanna Kennedy, chief executive of Zacchaeus 2000 Trust.
Q2 Chair: Thanks very much. You are welcome this morning.
We are going to start with some questions around the effectiveness of the work capability assessment. I wonder if you agree with Dr Litchfield that there should be less emphasis on point scores in the assessment. Do you agree that this part of the assessment should be used to calculate whether the threshold for ESA has been reached? Who wants to start?
Rachael Holmes: I’ll start. At Citizens Advice, we regularly see people who appear to have been put in the wrong group, between the Support Group and the Work-Related Activity Group (WRAG). We feel that we are seeing too many assessments that are going to zero points or 15 points. It feels much too binary. We think there is a case for a more textured assessment.
Q3 Chair: You don’t all have to answer, because we have a big panel, but does anyone have anything different?
Donna O'Brien: Obviously Parkinson’s is a progressive neurological condition. It does seem that people with progressive conditions, who have often had to give up work, have really struggled actually to stay in work. They have done their best to be in work. Once they give up work—possibly on advice from their specialist, because they have had accidents or falls, or because their treatment regime just isn’t conducive to staying in work—and then actually apply for the benefit, they often find that they are in the Work-Related Activity Group, and that is generally because of the points scored—it is not because anybody is really applying some sort of context or asking them about the context of why they came to that position. We often see people who have just not scored enough points for the Support Group, but are now in the WRAG, and obviously they then get a prognosis report of their potential recovery and for a lot of people that is quite insulting. We know this from the research that we have done with the Cystic Fibrosis Trust, the National Rheumatoid Arthritis Society and the MS Society as well. It is something that is common among many people with different progressive conditions.
Q4 Chair: So that is an advantage, in as much as it might get more sensible decisions about who should go in the WRAG or the Support Group, but are there any disadvantages if there is reliance on the points scored to distinguish between those two groups?
Tom Pollard: I guess it would depend on what you replace that with. There is a real issue with the scores, as you could accumulate a huge number of points but not get into the Support Group, because you get into the Support Group only if you meet a certain number of set criteria. You could end up with 20 or 30 points, which would suggest you have got multiple problems over a number of areas—probably quite severe problems—but you would still end up in the Work-Related Activity Group. So there does seem to be a disconnect between the points you score in the system and what that actually means, in terms of the support and expectations that are then provided to you, but I’m not sure what the alternative that Paul Litchfield was suggesting would be and how that would work.
Q5 Chair: I suppose he was saying that the WCA is essentially a benefits entitlement test. It is not sophisticated enough to do the kind of things—the differentiations between the different groups—that you have suggested.
Tom Pollard: I think it is problematic, because it is a benefits entitlement test, but fundamentally what it means to the people we represent is that the result of the assessment leads to different types of support and expectations placed on them. So if you get put in the Work-Related Activity Group, you will be expected to undertake quite a lot of activity. That test is about deciding how much benefit you get per week, and that’s right, but it doesn’t really have any direct connection between what is assessed in the assessment and then what is expected of you once you are on that benefit. If you are going to call it a benefits entitlement test, that’s fine, but you need something else—some other test—to decide what type of support you get and what conditions are going to be placed on you, because at the moment there is a real disconnect between those two.
Anna Bird: That is absolutely right, and from Scope’s point of view, our concern is that it is not just the conditions that might be placed on you, but that there isn’t any test of what employment support a disabled person might need to move into work. The WCA is the only opportunity for that to happen, but actually what isn’t asked is the question, “What support needs do you have and what kind of support would help you move closer to the workplace?” We are proposing a different test that would look a little more broadly at the barriers that people face—not just medical capacity, but also what support needs people have. We need to have that conversation at the point of what is now the WCA.
Q6 Chair: I keep repeating this: the original design of ESA wasn’t assessment; it was an interview with the personal adviser at Jobcentre Plus—it was called WFHRA, or the work-focused health-related assessment, which did just what you say. That was dropped in 2010. Is that what you think would help to make that connection between the WCA, as an eligibility test, and the world of work, which is what someone in the WRAG, after all, needs to be able to discuss with their personal adviser?
Anna Bird: Certainly the WFHRA was one way of having that conversation and starting to bring in some consideration of employment support needs. I think we probably need to do a bit more than that, in terms of looking at the package of support that people need and a more sophisticated and nuanced approach to exactly what that support looks like and how people can access it, making sure it is person-centred, and making sure that people are really at the centre of that process of identifying what support they need and procuring it.
Q7 Chair: Do any of you know why the Government first of all suspended it and then said that they were not going to go ahead with it? Was it due to the matter of cost?
Tom Pollard: My impression was cost, but I don’t know.
Chair: You don’t know, okay. I think Dame Angela wants to come in here.
Q8 Dame Angela Watkinson: I would just like to pick up a point that Donna O’Brien made—that treatment regimes are not always conducive to people staying in work. Would you say a bit more about what you mean by that?
Donna O'Brien: For example, with Parkinson’s, you can be on 60 to 80 tablets a day. You have to get your medication on time, and you are managing that with, say, managing a public-facing role where you are on call, or perhaps serving in a shop. Talking to a colleague from the Cystic Fibrosis Trust yesterday, that is perhaps three hours of nebuliser a day along with, again, a very complex 60 tablets a day-type regime. We are definitely not arguing that somebody with a diagnosis of Parkinson’s can’t work; and it would be the same for any other condition. It is just the fact that, at the point when you feel that you have to give up work, that is one of the factors. There are many factors as to why you have to give up work, such as because your symptoms are becoming quite debilitating or unpredictable. People with Parkinson’s will often freeze to the spot, become extremely rigid, be in a lot of pain or be extremely tired, and their cognition is sometimes impaired or their speech is slurred. Often, people get quite isolated because they don’t like to go out in public any more because they are accused of being drunk. It is Parkinson’s awareness week this week, actually, and these are some of the issues we are trying to get out to people. It’s not just all about a tremor; it’s actually much more complex than that—
Q9 Dame Angela Watkinson: I know, because my mother had it. I wondered if you were referring to how employers make coping with a condition like that possible. People need to have a number of hospital appointments—that sort of thing.
Donna O'Brien: Yes. I think if you have a good, understanding employer, they will obviously talk to you about reasonable adjustments and perhaps reducing your hours, but there will always come a point where you feel you have to give up work and, unfortunately, it’s not just an older person’s condition. There are about 17,000 people of working age, some of whom are in their 20s and 30s, who work for a long time with the condition but then get to this point, and they’re not of pension age, so they have to rely on a benefit that helps them out of work.
Q10 Chair: You managed to do a good selling job of Parkinson’s awareness week as well.
The Government’s response to Dr Litchfield’s suggestion about there being less emphasis on the point scores was that they will review how assessment scores are communicated to claimants. I think that might have started a hare running in the Scottish press earlier this week, certainly in The Herald, which said that the Government were going to abolish the work capability assessment, or something along those lines. I think that story was probably wrong, but is that what you have taken out of either Dr Litchfield’s report or, indeed, the Government’s response? Everyone is shaking their heads, so that was a bit of over-reporting. Is it a good enough response from the Government to say that they are just going to review how the scores are communicated to claimants? It doesn’t say they are going to change the scores, just how claimants are going to find about them.
Joanna Kennedy: Almost nothing about the Government’s response says they are going to change anything. Almost all the responses just say, “We’re reviewing it,” or, “We’re going to look at a different form of interview”—that kind of thing. The Government’s responses neither fully accept the criticisms nor make any serious proposals for dealing with them.
Q11 Nigel Mills: Can we turn to the evidence-based review (EBR) and the alternative assessment that I think your organisations, Mr Pollard and Ms O’Brien, took part in. Can you talk us through the purpose of that process and perhaps why you thought it worth participating in?
Tom Pollard: Professor Harrington, after his first independent review about four years ago, came to Mind, the National Autistic Society and Mencap because he recognised that there was a particular problem with assessing cognitive conditions—anything that was not clearly just a physical condition. He asked us to look at the current descriptors and to propose changes to them, rather than designing a new test. We did that, and our focus within that was on trying to have a better mechanism for taking account of fluctuation. We often felt that those descriptors would look at one thing, such as how severe a condition was or how frequently it occurred, but with complex cognitive conditions it’s often about frequency, severity and duration of the spells of acute disability. So we designed an alternative and gave that to Professor Harrington. It was analysed by an expert panel of health and employment experts. They made changes and ratified it, and Professor Harrington commended that to the Government. Donna can probably talk a bit about the other group that was set up to work on some other descriptors.
Donna O'Brien: That was Parkinson’s UK, MS Society, Crohn’s and Colitis UK, National AIDS Trust, Forward-ME, and, at the time, Arthritis Care. Of those, five charities went on to work with the Government on the EBR. It was the same sort of process as Tom describes—working with Professor Harrington in a steering group to look at these very physically fluctuating conditions, but also, cognitively, in terms of the complexity of these conditions. We were also trying to look at things like pain and fatigue, which are often—I am sure you hear this yourselves—overlooked in the WCA. Again, we came up with a report, and that was really on the very same lines as Tom was saying—recommending looking at the severity and frequency of fluctuations and at the WCA in a much more global sense—because often people, and certainly people with Parkinson’s, will score on the physical side of things, but the cognitive and the mental health side of things gets overlooked, so it is trying to bring those things together.
Tom Pollard: So then those two sets of proposals were amalgamated into one full alternative assessment. The Government agreed to test it. The way they did that was that a set number of people who were going through the WCA were asked if they were willing to participate in a test—to go through an additional WCA on top of their current one. The evidence from both those tests was collected and given to expert panels. People were scored on both tests separately, but then all the evidence, but not the scores, collected during those two assessments was handed to panels of experts—health experts and employment experts—who tried to make a judgment, on that basis, of whether the person was fit for work. Then you could compare their judgment with the original WCA and the alternative version.
Q12 Nigel Mills: And the original WCA came out better.
Tom Pollard: It is complicated. The people going through that were only people who would fall either into the WRAG or fit for work. People who were likely to go into the Support Group were siphoned off, so it was people who were probably borderline. Of the group of people who were tested, 80% were declared fit for work by the current WCA, 70% were declared fit for work by the expert panels and 60% by our version. Our version was clearly more lenient, but that is what you would expect, because we think too many people are getting declared fit for work. On an individual case-by-case basis, the current WCA and the expert panel matched up more often, but there is obviously a problem there in that 10% of people who were being declared as fit for work by the current WCA were being declared as not fit for work by the expert panel, so there is a group of people who are at risk.
There were other learnings. We had quite a different style of assessment; it was more of a semi-structured interview rather than using tick boxes. The claimants and the assessors preferred that approach. For us, there was a much more fundamental learning, which was the way those expert panels were asked to assess fitness for work. For me, that really reveals how the Department understands fitness for work and what the problems with that are. They were asked to think about that in the context of adjustments that could be made to help that person work. That is fine, as most workplaces should make adjustments, but these are quite substantial adjustments. Some 83% of the people they said were fit for work required, on average, two or three of these adjustments. They were things like periods of disability leave, a support worker, home working or a different place of work, and flexible altered hours, so these were quite substantial changes. From our perspective, these are probably the sort of people, because they face additional barriers, who would benefit from the kind of support that the WRAG would bring. From our perspective, it seems that the Department is looking to find a way of declaring someone fit for work, rather than to see what all the barriers are that this person faces and, based on that, what group would be most conducive to them getting back to work. Instead, the focus seems to be, “Can we say this person is fit for work? Is it justifiable to say they are fit for work?” That is just the wrong approach from our perspective.
Donna O'Brien: Just to add to Tom’s explanation, one of the things it is important to bear in mind is that the expert panels did not see the person, and we know from tribunals that oral evidence and people actually seeing the person does change the result. That is something to bear in mind when seeing the expert panels effectively as some sort of gold standard. They were not there and they did not see the person.
Also, something that came out was that where they had an additional, small quality assurance process—where people with more expertise in certain conditions looked at the cases—they found that the expert panels were overlooking some of the real problems that people had. For example, with a bowel disease, somebody who was more expert said that it was not practical to declare that person fit to work, given that they needed urgently to visit the toilet practically all the time. So there were those elements about the expert panels not seeing the person and the fact that if you have people with more expertise, you might get a better result in terms of that process. I think there is some learning there.
Q13 Nigel Mills: As we move into the post-Atos world, what do you think were the key learning points from that process that ought to inform how things are done differently post-Atos? Perhaps there are a couple of really big things that ought to change.
Tom Pollard: I think there is something about the interview style that is problematic at the moment. It has been changed with Personal Independence Payment (PIP), so people sit side by side and they can see what is being written about them. Because there have been so few PIP assessments, we are yet to hear how that is going, but certainly both the assessors and claimants preferred a more conversational style, where you could drill down a bit into what people are saying. What often happens at the moment is that the assessor has to get a yes or no answer to a question. They will ask a question such as, “Do you watch ‘EastEnders’?” The person will say yes, and they will say that that means the person can sit for half an hour and concentrate. Often it is much more complicated than that. The capacity to have a bit more of a detailed discussion and to drill down a little bit more would help.
There is something about having a realistic expectation of what support people will receive if they are declared fit for work. Too often, it is taken in a kind of vacuum, in that it is about declaring someone fit for work in principle, but from our perspective, it should be about what type of support is going to help that person most, and are they going to get that if you declare them fit for work and they go on to JSA and are treated essentially as any other jobseeker. I would say that the people who will need a support worker and periods of disability leave probably will not get that specialised support through JSA. So maybe it is about a bit more of a real-world understanding of what fitness for work means.
Donna O'Brien: I think Atos often focuses on somebody’s typical day and when you have a fluctuating condition, obviously there is no such thing as a typical day. The semi-structured interview picked up on fluctuations much better than the straightforward, “Tell me what you do in the day” and taking, as Tom says, lots of inferences from things, such as if you sit and watch a soap opera, you can sit comfortably for 30 minutes.
Tom Pollard: That is something that Paul Litchfield criticised in his review as well: inferences are often used to get through an assessment quickly. There are examples where people say things like, “I can go to the shops, but only once a week if I am really feeling okay, and even then it is quite a trauma for me,” and it will get recorded as “Can go to the shops.” There is often just not that nuance and detail recorded at the moment.
Q14 Nigel Mills: I suppose the trade-off is between having an assessment that at least looks like it can be consistent, and there is a very consistent set of parameters that people have, versus one that is less structured and therefore perhaps relies more on judgment by the assessor. That is obviously a trade-off. You move from one to another and you start creating different problems. Are you saying that it being more based upon a judgment by the assessor is the better way to go, rather than having the judgment in the end-decision process, where he is supposed to look at the assessment and other evidence as well?
Joanna Kennedy: The drawing of inferences is making a judgment. At the moment, there is far too much judgment in the process, because the drawing of inferences is certainly the biggest single problem we see with the inaccuracy of reports. That is why they are inaccurate: a false judgment is being deduced from a fact. So there was the example that if you watch “EastEnders”, you can sit for half an hour. We had an absolutely classic example of a client who was asked how long it took her to walk to the shops. She said 15 minutes, so it was deduced from that that she can walk 200 metres. In fact, her shops are 40 metres away, but it takes her 15 minutes because she has to stop every five minutes. Those kinds of inferences bedevil the reports. That is what creates the inaccuracies, so it is not judgment against non-judgment.
Tom Pollard: I agree with that. I recognise what you are saying, that there is some kind of trade-off to be made in terms of how much detail you go into. That would be the trade-off. How much time and detail do you go into? Within that, it is less easy to codify and formalise than to attach those small drop-down menus. There is a trade-off, but at the moment we are way too far over to decide which it is and formalise it.
Q15 Sheila Gilmore: Leaving aside some of the broader points about the evidence-based review that I still have some concerns about, you say that some aspects of PIP are better in the way that the interview is carried out. But one of the consequences of that appears to be that things take much longer. We have had both the providers and the DWP telling us at various times that interviews are taking twice as long as they had anticipated. In turn, that has one of two effects. It either increases, it seems to me, the cost of the whole process, or it creates the delays that we are seeing in PIP at the moment, because they are not seeing as many people as they anticipated. Is that an issue that you have considered or had a view on? Has the DWP asked for your opinion in relation to this test, not PIP?
Rachael Holmes: We have seen a lot of evidence of really serious delays. It is supposed to be a 13-week process, but we have clients who have been waiting six months for a work capability assessment for ESA. It is stressful and a long time to wait for a decision, and in some cases the whole process can take up to 18 months in total. We have had examples such as a client who submitted his ESA50 in June, heard nothing and couldn’t get a timetable. His contribution-based ESA will expire in the spring and he has been on the assessment rate the whole time. There are really serious problems with long delays in ESA as well.
Q16 Sheila Gilmore: If changes were to be needed along the lines being suggested, does that have implications, for example for new contracts being entered into? You may not know whether the DWP is considering these things, but Tom, you said you thought this was one of the learning things from this process.
Tom Pollard: I don’t think it necessarily takes a huge amount of time longer. At the moment, the assessors go through in quite a standardised way, picking off these questions. With our design, it allowed going into more detail where it was clear that more detail was needed, but you might be able to skip over other areas, because it is clear there is a not a big issue there. I am not sure it would necessarily take that much longer. Part of the problem is that the reason why the current WCA can be carried out relatively quickly—say 40 minutes or whatever—is because that is the process they are used to taking. It is inevitable that if you introduce changes to that, at first it will take longer and as assessors got used to delivering that style of assessment, it will probably be reduced in time.
These are all the things that the Department has to take into account and it is going to be a judgment at some point between how much time you invest in the process and what results you get. At the moment we still see a lot of people get the wrong result. In the long term, there are lots of other costs to that, in terms of people not getting back to work because they are not getting the right support, or people going into hospital from getting ill because they are getting the wrong decision. So it is not isolated, the cost. You have to take into account all the costs across the whole system.
Joanna Kennedy: Also, on cost, if you get it right first time there is much less cost to the system. It is a benefit. The whole point of these improvements is to ensure that it is right first time, so that there are fewer of these incredibly expensive appeal processes.
Q17 Sheila Gilmore: When the Select Committee did its first report—I was looking at this recently; I wasn’t on the Select Committee at the time—one of the issues raised then was that the WCA is trying almost to do two things. It is trying to be an eligibility test and guidance as to the degree of fitness and how much help people need. Do you think that is still a problem?
Anna Bird: Absolutely. It conflates two things excessively. It conflates the idea of what benefit someone should be on with what support people need to move back into the workplace. That is its fundamental flaw, I think.
Q18 Glenda Jackson: I was going to ask the original questions that Sheila asked, about the length of time the actual face-to face, side-by-side assessment would take. That has been covered, but do you think there would be any advantage in trying to specialise the assessor, inasmuch as there would be people who knew? We are talking about a wide range of progressive illnesses and, obviously, mental health—the variability of episodes taking place in someone’s life. Should the Department be looking at employing specialist assessors for that range, wide though it is—that might be slightly imperfect in certain ways—and not just have a group of assessors who have to assess everybody who comes and sits in the room with them?
Tom Pollard: This is certainly something we have called for. You can see the difficulties of having to have someone specialist for every type of condition involving mental health, first because it is particularly hard to assess—GPs often are not particularly good on mental health; it requires a lot of experience and expertise—but also because about 40% of the case load are claiming primarily for mental health and probably another significant proportion will have mental health problems alongside—
Q19 Glenda Jackson: No, I didn’t mean that. I wasn’t saying, as I thought I made clear, that there should be a specialist for every individual illness, but we are, clearly, talking about a very specific group of people, as far as the basic problems with regard to their illnesses are concerned. I just wonder whether you think it would be possible to have people who, even before they started the assessment, were aware perhaps not in precise detail but of the essential variations that would preclude someone, on the evidence that you have already given, from being able to work from 9 to 5, five days a week, for however many weeks of the year. There would inevitably be the need, on the part of the employer, to be aware of those situations.
Donna O’Brien: As I understand it, Atos, as a principle, will only use doctors to assess somebody with Parkinson’s, but I certainly don’t see that happening in practice; often it is a registered nurse. As Tom was saying, the GPs do not necessarily understand about the condition. I think they get four hours’ training, across their seven years, on Parkinson’s and other neurological conditions. There should definitely be an element of ensuring that somebody has refreshed themselves on the condition before they assess somebody. I recently heard of a case in which a young doctor was googling Parkinson’s in front of the lady who was being assessed, and saying, “Oh, I think it’s something about the brain, isn’t it?”
Q20 Glenda Jackson: I’ve just had a press release, as I announced to the Committee before you arrived, from the BMA, which is saying—I am paraphrasing—the GPs should not be asked to furnish evidence, because they are not experts in everything.
Donna O’Brien: I think it’s a mixture of solutions, and obviously we may come on to medical evidence, but it’s getting that evidence in early from the person who knows—
Q21 Glenda Jackson: You said there were expert panels looking at the evidence that you had put to us and they were not particularly expert in absolutely everything, but surely it would be possible to find people who could specialise. That would not be in the individual illness or condition, but they would be aware of it. They would be outside the general run of assessments. We are looking at a new company coming in to take this over; Atos is not renewing its contract. As Sheila has already said, we are seeing desperately long periods before people are assessed on their claims.
Tom Pollard: We would certainly like to see assessors with particular expertise in mental health broadly, or experience of that, assessing people with mental health problems. The Department claims that because the test is not a medical test or diagnostic test, you don’t need to have someone who is an expert in the condition. I think that’s dubious. It just seems intuitive that someone who has experience in mental health, talking to people with mental health problems and eliciting information from them will be in a better position to do that than someone who is a generalist. There probably is evidence available, in that the mental function champions, who were introduced by Professor Harrington, carry out assessments as well as playing that role. We have asked the Department to give us the data on how their assessments of people with mental health problems differ from those of generalists, and they just refuse to give us that data, so we have never been able to have an open discussion—
Q22 Glenda Jackson: There is no evidence—
Tom Pollard: There probably is evidence—that evidence must exist on the system, but they won’t give it to us. They insist that because it is not a medical test, medical expertise doesn’t matter, which begs the question: why even use doctors to do the test, then? If it’s about carrying out a functional assessment—
Glenda Jackson: Yes, but if we ask questions on a specific illness, as I have had occasion to do in the past, the reply comes back that no such evidence is recorded, so there is that in-built unwillingness, it seems to me, to look. It could be advantageous to pick up the point.
Chair: On that point, I am going to bring in Anne Marie, who has the questions on mental health.
Q23 Anne Marie Morris: I think, from what you said, you don’t consider the WCA to be fit for purpose when talking about mental conditions. You have already given us some thoughts as to what the alternatives might be, in response to Glenda’s questions. I just wonder whether there is anything else, other than the suggestion that Glenda made about specialist assessors, that you think should be done to sort out a more effective process for mental health conditions.
Tom Pollard: We certainly think that there is an issue with evidence, not necessarily from a GP. We recognise that there are problems for GPs, with a big burden of evidence being asked of them. Often, for someone with a mental health problem, that will not be the best person to go to anyway.
In most cases there will be someone who is supporting that person and who will be able to give some evidence about how that person’s condition is over a longer period, whereas the assessment can only really ever look at a snapshot. That evidence is rarely sought by the Department.
People have the option of submitting it themselves, but often they will be charged for it, so that is difficult for people. People may not realise that they need to submit it. They may think, “Obviously, I have a mental health problem. That will get picked up in the assessment.” So it is actually quite rare for someone to have evidence collected on their behalf from someone like their therapist, psychologist, psychiatrist or community psychiatric nurse. There will often be someone who could give that evidence, but it is often not collected.
Mind intervened in a judicial review that is ongoing about this. In the original judgment from the upper tribunal, they agreed that the current process, because it does not make significant efforts to collect evidence on people’s behalf, puts people with mental health problems at a substantial disadvantage.
People with all different types of disabilities struggle with the process, but people with cognitive conditions can have real problems with accurately self-reporting how their condition impacts them—maybe because they lack insight; maybe because they just struggle with social interaction; or maybe because they are just embarrassed about talking about it. There is a particular problem for that group in terms of being able to communicate how their condition impacts on their ability to work. On the whole, the process relies on the person to self-report that; it does not look for other evidence to understand that. We think that that is a fundamental problem at the moment.
Q24 Anne Marie Morris: Okay, so special assessors and the way in which evidence is collected are your two key points. Is there anything else that we have missed?
Tom Pollard: I think people’s ability to engage with the process and the impact that the process has on people have to be taken into account. A survey has been done by the Disability Benefits Consortium, which has six disability charities. Again, I think everyone who goes through the process finds it quite distressing, but for people with cognitive conditions, that can have much longer-term impacts.
There was a survey done by Rethink Mental Illness talking with GPs about what impact they have seen. I think 21% of GPs they surveyed had seen people having suicidal thoughts on the back of the WCA process, so it can have a particularly profound impact. There is something about ensuring that people are communicated with particularly sensitively and avoiding a face-to-face assessment where possible.
There is also a big problem about advocates and support. From our perspective, people tend to get a fairer outcome if they are supported through the process, but increasingly, people find that support hard to get because of cuts to legal aid and local authority cuts, meaning that people cannot get advocates to help them through the process in the same way that perhaps they used to. We would like to see some sort of effort to ensure that people can be supported by someone else through the process.
Q25 Anne Marie Morris: Is there an issue of people with mental health problems coming through the system and no one recognising that they have mental health problems?
Tom Pollard: Yes, there would be under-reporting. At the moment, 40% of the people are claiming primarily for mental health, so that means that either on their sick note or on their application form they have recorded that they are claiming for mental health. But I think other charities can probably confirm that lots of people will have mental health problems as a secondary condition. As Donna was saying with Parkinson’s, someone comes in and it is written down that they have Parkinson’s, so the assessment focuses on the physical condition. But people with long-term conditions often will develop mental health problems alongside. I would imagine that that is often not picked up.
Q26 Anne Marie Morris: This question follows on neatly from a comment you made earlier. Paper-based assessments are used really for only 20% of claimants; 20% is really just paper only. For ESA new claimants, this applies only to claimants for whom the Support Group is the obvious outcome of the assessment. Is appropriate use made of paper-based assessments? More generally, do we use them enough and appropriately, or do we use them too much? What is your sense?
Tom Pollard: I think Citizens Advice or Zacchaeus should answer, because they provide direct advice.
Rachael Holmes: Our sense is that paper-based assessments are often appropriate. They are not always used in the right cases, but they are sometimes. What we would really like to see is more evidence from health and social care professionals earlier in the process, which we think would reduce the need for face-to-face assessments. So it is a bigger change to the process that is needed as part of reconsidering the balance between face-to-face and paper.
Q27 Anne Marie Morris: How would you change the paper-based process to make it more effective to avoid the face-to-face bit?
Rachael Holmes: We have been talking to health and social care professionals and surveying GPs to find out their experience of providing medical evidence to clients. We have discovered that they are in quite a difficult position; a lot of them are being asked to provide evidence and some find that that competes with the core part of their job. A lot of our clients are finding that they are being charged up to £130 for the evidence, which, when you are trying to live on £71 a week, is a pretty huge amount of money. We would like more medical evidence provided free of charge to the claimant, up front, which would then sit alongside the ESA50 that is sent to the health care providers for their initial consideration.
Q28 Anne Marie Morris: In terms of the input from the doctor, do you think that there is any argument for more training for GPs, so that they understand what they are trying to put down on the paper, in that it is not about noting, “You have got Parkinson’s”, but about functionality? I sense there is some resistance from the BMA in terms of that being what GPs should do, but it seems to me that for your argument to work, doctors need to have more of a clue about what they should be doing.
Rachael Holmes: I think that is right, although that must be accompanied by some funding.
Q29 Anne Marie Morris: Fundamentally, you think that GPs should have more training. Clearly, you are right that there are some funding issues.
Rachael Holmes: Yes.
Q30 Anne Marie Morris: Okay.
You both mentioned charging, which seems to be a postcode lottery—some do, some don’t and there is a huge amount of confusion. GPs are outside the NHS if you like, so do you think that there should be some standard so that GPs know what is expected, and that there is a standard charge for that service.
Tom Pollard: Often the reason that the request for evidence goes to a GP is that when Atos request it, the evidence is provided free of charge, but if that request goes to other health care professionals, the evidence is not provided free of charge. That is part of the GP contract, although I do not know the exact details. That is often why those requests go to GPs. In many cases, we do not think that the GP will be the right person to ask. I can understand the BMA’s concern that GPs are being asked to comment on a rounder picture of someone’s functionality, whereas a GP may only see that person to give them their medication for mental health. That patient may go to see someone else to discuss how they are coping with life. That person will have a good rounded picture of how that individual’s condition impacts on their ability to work. The evidence should be sought from those people.
If the person under assessment goes to get the evidence themselves, often that evidence ends up being unsuitable, because, as you have said, it must interact meaningfully with the WCA. If it is left to Atos to seek the evidence, they tend to go to the GP.
Joanna Kennedy: A more fundamental problem is that the claimant has no right to any evidence at all. They can ask as much as they like, but they will not necessarily get that evidence, or in the form that they need it. That is why they have to pay for it, but they can’t. The proposal from Dr Litchfield for a much more improved use of the form from which the DWP can require doctors or professionals to give evidence, and to share that with everyone, is the answer. Otherwise, it is more than a postcode lottery, and what you get, you get; you may not get anything at all.
Glenda Jackson: Would the notes be valuable in that situation?
Chair: Sorry; I have got Sheila and Graham waiting, and I forgot to bring Angela in on mental health, but we will go back to that.
Q31 Sheila Gilmore: There are obviously advantages in paper-based assessments, but one particular problem that I have come across is that of people on the IB migration journey, who have a paper-based assessment and are placed in the Work-Related Activity Group, which has certain financial and other consequences for them. On appealing, or asking for reconsideration, or whatever they do, they discover that not much paper was looked at. Have you encountered that problem? Is that appropriate when, you might argue, it means entry into a slightly less advantageous group? How do you make sure that the paper is there? It is back to that question.
Joanna Kennedy: We don’t think that anyone should be put in the WRAG on a paper-based assessment, because that is not adequate. We think that paper-based assessments could be used much more widely to place people into the Support Group because it saves time and money, but for the reasons that you have indicated, it is not appropriate to put someone in that position of conditionality and financial pressure without a proper assessment.
Q32 Chair: Indeed, a lot of them don’t appeal because they don’t know that they have been put in the WRAG until their money stops a year down the line.
Joanna Kennedy: Absolutely, and then it is too late.
Donna O'Brien: It is definitely common. Certainly with a study we did on cystic fibrosis, Parkinson’s, MS and rheumatoid arthritis we found that a lot of people were being put into the WRAG. We have not got a straight answer on this yet, but a lot of people who have been put into the WRAG, as Sheila says, from incapacity benefit reassessments, have been on incapacity benefit for a long time with a progressive condition. They are not seen by an assessor and the ESA50 form that people fill in is not fit for purpose. It does not ask people about the context and how they have had to give up work, whether they have been hospitalised and the risk to their health. It is not getting the medical evidence early on. Then they are put into the WRAG. Some people are put in the WRAG, which is a return to work group, and their prognosis statement says that they are unlikely to return to work in the longer term.
The Atos handbook says, “Where at assessment you find a substantial degree of functional impairment resulting from a serious medical problem which is chronic or will inevitably deteriorate further, even with optimal treatment”. So why are people—it is in the tens of thousands—with progressive conditions being put into the WRAG on an incapacity benefit reassessment, not even being seen and having been given that prognosis? They should not even be in the WRAG. They should be in the Support Group. It is hard to get all the data about conditions, as we have been talking about. The test is very much about function. If you try to get the data out of the DWP and you try to find out how many people have had that prognosis, they are not answering the questions at the moment. I would really encourage the Committee to press the Department on why people are in the WRAG with the prognosis that they will only ever deteriorate.
Q33 Graham Evans: I want to ask Tom a question. Are you familiar with Clinical Commissioning Groups (CCGs)?
Tom Pollard: Yes.
Q34 Graham Evans: The point you were making about GPs not being in a position to do this—the whole point of CCGs is that they are at the centre. They are able to commission treatment to help people with various conditions, including those you represent. Do you not think that they are perhaps the best people to answer the questions on behalf of the patients because they can then commission treatment to help?
Tom Pollard: I think, with mental health, the best person to ask will be the person who has spent the most time with that person in a clinical context. The fact that GPs also commission their services does not mean that they will be spending time with those specific patients. For most people it will be the community mental health team or someone like that, who not only sees them more often, but sees them in the context of thinking about how that person is supported to live their life rather than just supported with the medical functioning of that condition, or someone like a social worker. Not many people with mental health problems get access to social care, but when they do, that would probably be the most appropriate person because they are looking at the person in a functioning and a social context. We agree with the Department. That is what this should be about and not saying, “This person has bipolar and therefore they should be in this group”. You need to talk to someone who has an understanding of how that person’s condition, which will vary from person to person, impacts on their ability to work. Often it will not be the GP, even though they are commissioning the services.
Q35 Graham Evans: Okay. To use the example of bipolar, I was at a jobs club last week with someone with bipolar who was apparently fit for work. I, personally, did not think she was but she told me that she was fit for work and wanted to get a job. Do you work with Jobcentre Plus and jobs clubs to help people?
Tom Pollard: Yes. We have local Minds around the country. Lots of them do stuff helping people back to work. This is not in any way about us not wanting people to get back to work. The vast majority of people with mental health problems ultimately say that they want to work. They see that as part of their recovery. Our issue is that we do not feel the way the Department is going about it is effective. So focusing on heaping a lot of conditionality on people, from all our experience, does not work. Whereas building a long-term relationship of trust with someone, which is what our local Minds do, does work.
Lots of people will say that they want to get back into work and they feel that they could do that ultimately, but it is about what support they are given to do that. Often, we feel, being in something like the Work-Related Activity Group will be more appropriate than being on JSA, because JSA will entail that person being required from day one to look for work when they probably have some quite significant barriers to overcome before they get to that point.
Too often, people are being told that they are fit to work or, increasingly, put in the WRAG where the conditionality has been massively ramped over the past couple of years. It used to be that, in the WRAG, you were required to engage with interviews about what might help you get back to work and then you decided which of those steps you wanted to take. Much more now, that is mandated on the understanding that you need to push people back to work.
That has counter-productive effects in many cases, because people feel under pressure and stressed. They do not feel like they have the autonomy or the control to help design their journey back to work; they feel like they are being pushed into generalised activities. People end up being further away from work because they are getting more ill, whereas our local services will work with someone over a long time and co-produce a plan to help that person back to work. It will not be about mandating and sanctions; it will be about support and understanding.
Q36 Graham Evans: So you think community-based jobs clubs are a good way of helping people like that?
Tom Pollard: Absolutely. I think there are lots of different ways, and we have seen lots of different approaches to helping people back to work. We are really in favour of helping people back to work, because we know that, on the whole, it is better for people to be in work. It is good for their mental health if the work is appropriate and they have the right support. We just think that this approach is too heavy-handed and based on misplaced assumptions about why people are out of work. It seems to assume that people just lack the motivation and just need a bit of a nudge, and that if you tell them they have to do this, they will do it. Actually, that often has the opposite effect on people.
Chair: As we have gone back to mental health, Dame Angela, you had a question ages ago and I forgot to bring you in when we were talking about mental health. Do you still want to ask it?
Q37 Dame Angela Watkinson: It was about the assessment interviews for people with mental health problems or mental disability. Is it possible for them to have a friend, a family member or a representative with them at interview to help them with their answers? I am thinking particularly of people on the autistic spectrum or who have Down’s syndrome, who may very often overestimate their own capabilities in an attempt to sound helpful and may claim to be able to do things that they would find very difficult.
Tom Pollard: Yes, that is a big problem. There is an in-built assumption in the WCA that people will overplay their condition, but a lot of people will not reveal the extent of their problems, because they have been encouraged to think about their condition in a positive way, because they are embarrassed or because they lack insight. People can take family members and support workers. It does not always happen, and people are not always aware that they can. I think some of the initial problems where we saw people getting turned away because of that—my impression is that that is less of a problem now, but lots of people might not have someone to take with them, which is where having an independent advocate or something would be helpful.
Joanna Kennedy: But even when they take someone, they are not necessarily allowed to speak. Dr Litchfield recommended that the question of guidance on taking people with you should be clarified, because it is not at all clear at the moment. As you say, people do not know that they are entitled to do so, and what they can do when they get there is very far from clear as well.
Dame Angela Watkinson: That is very useful.
Q38 Chair: In respect of the mental health champions that Atos now employs, a straightforward question to you, Tom: have they made a difference?
Tom Pollard: Not obviously. I think it is worth saying at this point that there has been quite a shift in outcomes in WCA. A few years ago, 60% of people going for the WCA were being declared fit for work, and now it is closer to 30%. From our perspective that is welcome, because too many people were being declared fit for work. It is not clear exactly what change has led to that outcome. My impression from talking to one of the previous mental function champions is that when that role was introduced, they had a lot more free rein to go round to different centres and try to improve training and hold events. They had a bit more of an autonomous role, but increasingly they became just someone at the end of the phone that someone who had a problem around mental health could call up for advice, which is fine unless that assessor does not think that they have a problem assessing mental health. It has been a bit of a fudge.
Q39 Chair: But the assessors must be more experienced by now as well, I suppose.
The other question is on paper-based assessments. The constituents I have had who have been IB paper reassessed into the WRAG have all been on upper-rate DLA. Is that being used as a proxy? As Sheila said, there is obviously not a lot of medical information that is being given, but the upper-rate DLA might be used as a proxy. Even that does not explain why they would go into the WRAG. Is that your experience of whether that is a determining factor?
Donna O'Brien: It is not something we have come across.
Q40 Glenda Jackson: This is about the delivery of the work capability assessment. Rachael, you argue that the contracts for the new providers of the WCA need to be “significantly amended and tightened” to ensure that the quality of the WCA is improved and delays are reduced. Which of the specific areas of the contractual arrangements need to be amended, and in what way, so that that can be delivered?
Rachael Holmes: We think that there needs to be much more emphasis on the quality and depth of the assessments. It is hard to know without seeing the exact details of the contracts, but we have already discussed quite a lot about it being a bit of a tick-box culture and that really needs to change. We think we need fines for failure to adhere on the part of the providers and we need the Department to impose them in a way that we do not feel it is doing at the moment.
Q41 Glenda Jackson: Could you be specific on what adherence means, if fines are to be imposed?
Rachael Holmes: For example, we talked a bit about the delays in the process. It feels like the crunch point there often is with people waiting for work capability assessments. There need to be much stricter rules around the pace with which those appointments are being arranged and people are having their assessments, so the providers need proper capacity to deal with the 40,000 cases a month.
Q42 Glenda Jackson: This leads into a previous question. When you say proper capacity, they are all gathered up in this: the delays between a claim for ESA and attending the WCA, for example. Have you any ideas for how these delays can be prevented in the first place? What are the specific areas that the new provider will have to look at and improve? Is it simply more staff? That is what I am trying to get at.
Rachael Holmes: It is hard to say without seeing the detail of the contracts. We would be happy to help to work on the relevant sections on accuracy and capacity, but it does feel like it is staff numbers and the quality of the assessments as over the quantity. There are just too many stories about clients having really short assessments that are producing the wrong answers after waiting six months for them. It is a balance, as we discussed, but it has really got to improve.
Q43 Glenda Jackson: Let us say that they still go for the tick-box thing. Is it a balance between what is on that sheet of paper? Or is it on the expertise of the assessors? Or is it the time allowed for each individual? Or is it, as I have already said, simply more staff doing the assessing?
Rachael Holmes: I think we need all these things. This system is really broken. We have seen 100,000 people about ESA in the last quarter. It is the biggest issue—out of everything, from housing to employment rights to logbook loans—that people are bringing into Citizens Advice. It feels as though the whole process needs a lot more investment.
Q44 Glenda Jackson: Does anyone want to chip in on that?
Joanna Kennedy: I would like to say something about fines. This connects with the Low commission, which reported on the advice sector and the enormous difficulties it faces because of the cuts in legal aid and cuts to local authorities. There is no support left for people who have to face these appeals, and the level of appeals against this process is completely unacceptable. There is no other area of life where there could be so many successful appeals against decisions without any consequences.
The Low commission actually recommended that the Department should face sanctions for the number of successful appeals, but somebody should. If you impose sanctions in the contract—you decide what is an acceptable level of successful appeals, and then, if they go beyond that, they get penalised—then they have got to construct their service in a way that will ensure that that does not happen.
Q45 Graham Evans: Can you remind the Committee what the number of successful appeals is?
Joanna Kennedy: It varies. I think currently 43% are successful. It was 38% and it goes up and down. There is no other area of law or decision making where 43%—
Q46 Graham Evans: Do you have a figure—that is 43% of how many?
Joanna Kennedy: I do not know how many appeals. I think 600,000, or something like that.
Q47 Glenda Jackson: You specifically, Joanna, referred to assessors taking insufficient account of whether an activity can be carried out “safely, repeatedly, reliably, painlessly and in a timely manner”. Those things are stipulated in the regulations as relevant considerations. Would the WCA be significantly improved if the DWP insisted that assessors applied those criteria?
Joanna Kennedy: Absolutely, because the successful appeals are just applying those criteria—they are not applying anything different. The tribunal is applying exactly the same descriptors as the original assessment and saying that they have not been properly applied. A way of getting them to apply them properly would make an enormous difference. If sanctions are thought to improve behaviour at one end of the equation, perhaps they might improve it at the other end.
Q48 Glenda Jackson: This question is for you all. We are certainly looking at a new provider. How can the inherent delays in the system, between ESA and WCA, which seem to be growing and growing, be reduced? What ideas would you put forward?
Joanna Kennedy: More paper-based assessments for the Support Group is one very big way in which they can do it. It is probably also about having more resources. We do not know the detail about how they resource it.
Glenda Jackson: I think we do.
Joanna Kennedy: Well, yes.
Donna O'Brien: You would expect me to say this, but there should be fewer pointless reassessments of those with progressive conditions who are not getting better. Even in the Support Group, I have cases of people with advanced Parkinson’s who are assessed every year.
Q49 Glenda Jackson: There has been a proposal that for certain conditions the assessment should be only every five years or whatever. Would you like to see that introduced across the whole range?
Donna O'Brien: In the WRAG as well. If people get a prognosis report in the WRAG, not only do some of them get that “unlikely to return to work” report, but others will get a prognosis that they will be better in 12 or 18 months. Let us start seeing something sensible applied in terms of the WRAG and prognosis reports, because you are not going to see many of these people getting better.
When we have asked the Department what evidence they are using to declare whether these people are going to be recovering in that period of time, they have not been able to give us an answer about how often Atos is seeking medical evidence. We know that the medical evidence is often being sidelined. Instead of repeatedly haranguing people who have a progressive condition to prove that they are still unfit to work, you could get that tranche of people out of the system.
Anna Bird: From Scope’s perspective, we can talk about delays, decisions that have been overturned and appeals, but that all points to the fact that the system isn’t working. The whole design of the WCA is problematic for us. We can look at tweaks to the system and the descriptors, and changes to the way we implement delivery, but actually we need much more fundamental reform.
The measure of success that we should be looking at is work outcomes for disabled people. If we look at that, it is very clear that the WCA is not delivering what it should be doing, which is that it should be the gateway to employment support for disabled people—the beginning of a journey.
Q50 Glenda Jackson: What are the fundamental reforms?
Anna Bird: We put in our written submission a suggestion that we design a distance-from-work test that takes account of two things. It should look really broadly at the barriers to work faced by disabled people, looking at not just medical capacity but the much more broad social and environmental factors that affect disabled people’s distance from work. It should also look at the person’s support needs—the support that can be put in place so that disabled people can make the journey from where they are back into the workplace.
The test needs to be much more person-centred and should be thinking in a much more tailored way about what support people need. We think that it must also look at how it can lead into a system of support in a much more sophisticated way. People are currently channelled into very blunt-instrument boxes of the Work programme or Work Choice. That does not really provide the tailored support that people need.
Perhaps there should be something that looks a bit more like personal budgets wherein people are given some kind of financial measure of what support they need and more control of the support that they can put in place in order to make the changes that they need.
Q51 Graham Evans: Excuse me, Chair, but isn’t that just the same as PIP?
Chair: No, this is very different from PIP.
Anna Bird: It is very different from PIP in that this is about looking specifically at employment support and at people needing to move back into the workplace.
Q52 Glenda Jackson: I was going to ask Tom one more question on this.
I was very interested in what you were saying about who would be most effective in defining someone with mental health problems—not necessarily their GP. I know from conversations with my own GPs that they are up for that. Would you argue for one of the fundamental changes to be perhaps to look outside the box of medical experts, or professionals—we are told doctors, but we all know it is very often nurses who make the assessment—to people you have already referred to, such as someone in social services or who is delivering community mental health work, across the board?
Tom Pollard: We would certainly want to see those people being asked about evidence, to get a more rounded picture. I do not know whether you would have enough of those people for them to be able to take over the assessment process, or whether they would want to, if they went for the process. That is a problem—the capacity to carry out the assessments—but on the whole I fundamentally agree with what Anna just said about this system being much less congested if people were getting back to work.
The way in which I would see the sort of shift that Anna is describing is in a shift from, rather than carrying out a test, saying, “We found you capable of doing some things. Therefore, we are going to mandate you to do some things, because that’s what will get you back to work.” I would split that on its head and say, “We found you faced x, y and z barriers to working, and we have also found that this type of support would help you. Therefore, we’re going to help you to overcome those barriers”—a much more supportive and personalised process, rather than this very heavy-handed mandation, which is what happens at the moment.
Q53 Debbie Abrahams: Does the panel have evidence that, in the actual assessment, people with not only the same conditions, but the same progression of the condition, have got different scores?
Donna O'Brien: Yes. I think that was in our evidence from the four charities. There is definitely evidence of people with progressive conditions improving. We asked a parliamentary question about four conditions. You could see that people were being moved between Support Group and WRAG, and from WRAG to fit to work. There are certainly cases of people with Parkinson’s who I have been helping now since 2010 or 2011 and who are repeatedly put into the WRAG, but with different point scores. That really shows you that it is just a snapshot assessment, because people’s function might have definitely not improved—their condition over those four years has deteriorated—but it is how they are on the day. Therefore, the points are according to the tick-box process, and what if you are a little better today? We definitely have evidence of that.
Q54 Debbie Abrahams: For other conditions, which may not necessarily be progressive or future-weighted, but with the same extent, is there any evidence?
Anna Bird: I could not tell you about the evidence. From our perspective, it is perhaps possible that disabled people ought to be put in different groups, because what we should be looking at is the reality of their lives and how likely it is that they could go into work. The factors that influence that are not just about their condition, but also about the environment in which they live, their housing situation and their care and support needs. All those things need to be taken account of and, if you do so, you might find that for someone with the same condition, the same diagnosis, that is not the relevant factor.
Q55 Debbie Abrahams: We also received written evidence suggesting that the Department may be using statistical norms to have a certain percentage of people who are fine to be within a particular group. I am trying to understand whether there is any evidence to suggest that.
In the same way, some people are saying that, although there are no targets around sanctions, there is evidence that that is happening and so, for a particular month, there will be a percentage of people who are sanctioned. I am just asking if you have any evidence of that nature.
Joanna Kennedy: There was a doctor whistleblower, was there not, who had been employed by Atos but left, because he disapproved of the regime? He did not say that. He said that what was happening was that they were being told to use a very broad-brush approach to conditions and to descriptors. That was his main complaint. I do not think he said anything about—
Tom Pollard: What he said was that Atos will look at what a normal rate is for assessors to put people in different groups, and if someone is falling significantly outside that norm, it will be flagged up as an issue. It is difficult to tell, but that could create a culture where people feel that there are supposed to be people in certain groups. It is not the same as a formal target, but it might have that impact.
Debbie Abrahams: That is great. Thank you.
Q56 Sheila Gilmore: I wanted to ask about mandatory reconsideration. Not, at this stage, about what happens to people financially, but, in general, are there advantages to having a reconsideration part of the process?
Joanna Kennedy: From the perspective of our clients at the moment, they cannot see any advantage at all because it is taking so long. You say leaving aside the financial considerations, but you cannot leave those aside. To our clients, that feels like a cynical barrier preventing them from appealing. It looks as though it is just a discouragement. Take their money away, take an unlimited amount of time to do the mandatory consideration and, with any luck, they will give up and they will not appeal. That is what it feels like to clients.
Q57 Sheila Gilmore: In terms of an appeal process, if those other considerations did not exist, are there advantages to having a step before you go through a formal appeal?
Joanna Kennedy: There would be, yes, if it was done promptly and properly so as to reduce the number of appeals. In theory, it is a good idea.
Rachael Holmes: In principle, it is not a bad idea, and it makes sense. Appeals are very time-consuming and stressful, not to mention expensive for everyone involved. The principle of mandatory reconsideration is okay by us, but—it is a big but—it is just not working in practice.
Q58 Sheila Gilmore: Have you got experience yet of how long reconsiderations are taking? Ministers have been asked several times whether they would consider setting a time limit. How long are reconsiderations taking?
Joanna Kennedy: We do not know, because most of them have not been done yet, in our experience. This only came in relatively recently, and we have got a lot of people waiting. We do not know how long they are going to have to wait.
Rachael Holmes: We are conducting some primary research on this at the moment to find out more from clients about their experiences of mandatory reconsideration. We do not have that yet, but we would be happy to share it in May or June when it is completed.
Q59 Sheila Gilmore: Do you think it would be helpful to have a target time?
Rachael Holmes: Yes.
Q60 Sheila Gilmore: Are there disadvantages in having a target time?
Tom Pollard: Again, it is difficult to discuss it without the context of the financial situation. If people were continuing to get the assessment rate and reconsideration could happen quicker than an appeal was likely to happen, that would be fine. The fundamental problem is that during that reconsideration, people are not getting support so a time limit becomes a bigger concern in that context.
Joanna Kennedy: Apart from the financial impact of the change, it is also very stressful for people to require them to apply for JSA when they are not fit for work and they know they are not fit for work. They are being required to say they are fit for work when they are not. It is absurd, but it is also very, very stressful. It is exacerbating all these conditions being put in that situation.
Q61 Sheila Gilmore: Have any of you had experience of people being told that they cannot apply for JSA?
Joanna Kennedy: Yes, lots of clients. Because they cannot bring themselves to lie about their condition, they go to the Jobcentre and say, “This is my situation, and this is what I can and cannot do,” and they are told, “Well, you cannot have JSA then.”
Rachael Holmes: I have got a specific example of that from a client in Watford who had severe depression and other mental health problems. She was refused ESA and she asked for a mandatory reconsideration. She was told to apply for JSA instead, but the personal adviser at Jobcentre Plus said, “You will not possibly be able to meet the conditions for getting JSA. It is not possible for you to attend interviews because of your mental health condition.” She came to us because she has exhausted the support of her social network and she was asking for food vouchers. It was a real Hobson’s choice, as I think our Sheffield bureau wrote in their evidence.
Q62 Sheila Gilmore: Ministers have assured the Committee. I raised a debate about this a few months ago, and the then Minister—I think it was Mark Hoban—assured me that a lesser form of conditionality would be applied to people in those circumstances. Are your clients being told this when they apply for JSA?
Anna Bird: Our experience through our helpline is that people are very concerned about the level of conditionality that they will be exposed to. I do not know whether they are being told about that, but, clearly, that remains their fear. There is serious concern about signing the Claimant Commitment and the risk that that poses in terms of the decision that might be made about their claim, because it implies fitness for work.
Tom Pollard: Also, if Jobcentre Plus advisers were genuinely capable of taking all of someone’s conditions and barriers into account and adapting conditionality on that basis, why have the WCA? It begs the question that if they are capable of performing that role, why do we not just let them set the conditionality regime? Why do we have to have these bands? My answer would be that they are clearly not capable. Atos struggled with the assessments. Some Jobcentre Plus advisers are very good—lots of them do a good job—but they will not be able to tailor it to that extent.
Q63 Sheila Gilmore: But the response that I have had on several occasions is, “This is what should be happening at local level.” Ministers are saying that that is the policy, so where is the problem?
Joanna Kennedy: We are having people turned away. We have had several people turned away, and we have to help them go back and apply.
Q64 Chair: Could it be that they come to your organisation only when there is a problem, and that most personal advisers are au fait with what Sheila and Ministers have said, and that they are given the right advice and are signing on for JSA, but without the normal conditionality? Of course, there will be some getting it wrong, and as a result their clients are coming to you. Could that explain the mismatch between what the Minister is saying and what you are experiencing?
Tom Pollard: I think there is an issue of engagement, in our experience of Jobcentre Plus. We are about to release some data soon. Basically, we asked 500 people who are in the WRAG and some of the people on the Work Programme, although many of them were getting support through Jobcentre Plus, about how much Jobcentre Plus was able to adapt conditionality to take account of their barriers and condition, and most people said not at all. They were asked to do things that they felt were inappropriate and that they struggled to engage with. They felt they were just pushed into generic job search activities, and it was not adapted to their condition.
So we have seen no evidence, either in the Work Programme or in Jobcentre Plus, that people are getting the conditionality that really takes account of their barriers. Again, it comes down to this fundamental misunderstanding of why people are out of work. The whole system seems to assume that it is down to people simply not wanting to work, and if you just push them a bit harder they get back to work. Time and again, both from the services that we have on the ground that do work in terms of getting people back to work, and from hearing direct from people, that is not the case. What their barriers are with things around needing adaptations in work; needing employers that understand their condition more; and needing help in overcoming issues around competence and social exclusion will not be overcome by mandating them to go to a CV writing class.
Joanna Kennedy: The fundamental condition of JSA is that you must be available to work. They cannot relax that aspect. There are degrees of conditionality, but they cannot relax that fundamental principle, so these people are being told to go through a fiction.
Rachael Holmes: There is also an issue about use of public funds. We close an ESA claim and open a JSA claim, probably for two weeks. We have an initial interview, close it, and then start again on ESA. Apart from all of the principled arguments, our calculations suggest that just the bit with the JSA claim costs the taxpayer about £163. There is a real question about a process that creates that kind of cost for no real purpose, and is unfair on the client as well.
Q65 Sheila Gilmore: There has been a high rate of successful appeals. Graham made the point that not everybody appeals; if you calculate it across all applications, it is not as many as it sounds. But, for those who appeal it is high. The first step the Tribunal Service took was to do something called a drop-down menu where they gave very short reasons, which did not give a lot of information. Professor Harrington said that if the tribunals gave better reasons and those reasons were communicated, there could be a learning curve back to the beginning and you would not get so many of the same types of appeal going forward. Since then, there is apparently a pilot of more extensive reason-giving. Have you had any experience of how that is working or are you not really in a position to tell?
Joanna Kennedy: We do not see that. I would just like to say on numbers by the way, I have been doing the maths and I think it is about 400,000 appeals against the work capability assessment last year.
Q66 Graham Evans: Successful appeals?
Joanna Kennedy: No, 400,000 appeals, of which 43% were successful, so several hundreds of thousands of appeals have been successful, which is absurd. It is just common sense, isn’t it, that if there is this number of successful appeals, the learning from those appeals should be fed back? With the initial pilots, a large proportion of the judges didn’t fill out the form, and anyway, the drop-box menu was completely inadequate to capture their views. What is happening now, I do not know, because we do not see that bit.
Q67 Sheila Gilmore: Perhaps that is a question for the DWP and/or the Tribunal Service, because, again, Ministers have stated—Justice Ministers—that there is a new and better pilot. Everybody seems to agree that it would be a good idea for that to be happening; whether it is actually happening is the point. You may not have experience of that.
Rachael Holmes: Our understating is that the dropdown-box model is not working well because the top line is about saying, “I have overturned the decision on the basis of the appellant’s testimony,” which frankly does not tell you a lot about the real change that has been made. If there is another pilot, that ought to give us some more useful intelligence, if it if a slightly fuller assessment.
Tom Pollard: I agree with that. I think that evidence was misused somewhat by the Department, when they claimed that because most judges were saying that the oral evidence of the appellant was the main reason, that meant that other reasons were not important. Actually, if I was a judge and someone before me was giving compelling evidence, I would probably put that as the most important reason why I changed the decision, but there might have also been written evidence and other evidence on the table that made up the decision. To claim that because, having been allowed to pick only one reason, they picked that reason it shows there is not a problem with the other reasons is pretty spurious.
Donna O'Brien: What about tribunals making a judgment about the substantial risks to the individual’s health? It is a little-used criteria under the ESA regulations about judging that there is a risk to health, so that person should be in the Support Group or the Work-Related Activity Group. Certainly in our experience, a lot of tribunals apply that criteria to the individuals who are there with Parkinson’s. It is one that could be used early on. Again, it comes back to the context. The ESA50 form is not asking people about the context in which they have given up work, their progressive conditions or the treatments they are having to endure and so on. If all of that evidence was picked up earlier on and Atos were more willing to apply that criteria, instead of just looking at the tick-box WCA, you might not get as many people going to tribunals and winning them.
Q68 Sheila Gilmore: Surely the way that law develops in other fields is that as decisions are made on appeal they become important further down the road. Even if somebody says, “It was oral evidence,” what was it in that oral evidence that was different from what came out before?
Joanna Kennedy: If anything was different. Quite often it is not any different, it is just that the tribunal applies the proper judgment to the oral evidence that has not been applied at the assessment. Could I make just one other point about the numbers? Forty-three percent of appeals are successful, but 69% of appeals where someone is represented are successful. Represented does not mean by lawyers, because of course there is no legal aid for this, but represented by anyone. If everybody who appealed was represented, there would be a much higher success rate, so the numbers are much higher. Of course, there are lots of people who would like to appeal and would appeal successfully, but cannot because they do not have the proper advice because there is not any advice available.
Q69 Chair: There have been huge backlogs at the tribunal stage, but obviously no new claims are going into the Tribunal Service at the moment because it is all going through mandatory reconsideration. Does that mean that the tribunals are busy reducing the backlogs, so that when people come out of the mandatory reconsideration stage and end up at the tribunal, they might be a bit quicker? There is a lot of shaking of heads.
Rachael Holmes: I hope so, but I don’t know.
Q70 Chair: You don’t know, rather than it’s not happening? Nobody knows?
Joanna Kennedy: There will still be delays.
Q71 Dame Angela Watkinson: I have questions about the time-limiting of contributory ESA for those in the Work-Related Activity Group. Do you think that 365 days is an appropriate time limit? When claimants who were on contributory ESA and are placed in the WRAG reach their time limit are they moving into work? Is there any evidence that they are finding work at the end of that period?
Rachael Holmes: We cannot see any justification for a 365-day period. It is not clear why the Government have chosen that length of time.
Q72 Dame Angela Watkinson: You think it is too short or too long? Inappropriate, in any case?
Joanna Kennedy: Inappropriate, in any case. There is no justification for it at all. The person still has the condition that they had and they have still contributed.
Q73 Dame Angela Watkinson: Could it be that their condition might have changed?
Joanna Kennedy: If their condition changes they will move group. If their condition changes they have a duty to report it. If you continue to claim when your condition has changed, that is fraud.
Anna Bird: Again, it is a conflation of benefits and employment support. The reality is that, in the journey back into work, 365 days does not really tell you very much about how much further along the journey an individual is. We really need to figure out what we are trying to do. Are we trying to sort out someone’s financial support or trying to get someone back to work? Those two things are not the same. Again and again we come up against this problem—the two don’t seem to work together.
Q74 Dame Angela Watkinson: If, after a whole year, somebody hasn’t moved into work, do you take that as an indication that they were in the wrong group to start with, or is it that they are applying for jobs and not getting them? Is there any tracking of people who have come to the end of their contributory ESA period in order to know, if they are not moving into work, what are the reasons?
Rachael Holmes: We have not looked at it.
Tom Pollard: In general, people in the WRAG who go on to things such as the Work -Programme or Jobcentre Plus support have mostly not got back into work. Work Programme rates are some 5% and that is after a good few years of the Work programme. People stay on the Work Programme for two years. On the whole, people who are not on contributory ESA stay in the WRAG a lot longer than a year and there is no evidence to suggest that, after a year, that is when they get work.
Donna O'Brien: May I point out the contradiction with the prognosis reports? Everybody in the WRAG gets this prognosis crystal-ball report from Atos about when they are likely to return to work and, as we have been discussing, we can’t find any evidence of why they are choosing that, other than that it is on their computerised menu that it might be 12 or 18 months or two years. So if the prognosis is that somebody might return to work in two years, that immediately tells you there’s no reason their WRAG ESA should be time-limited to a year. There’s a contradiction there. If your prognosis is that that person is unlikely to return to work, which many in the WRAG do get, that is even more frustrating and insulting for somebody because they know that, with a progressive condition, they are not getting any better yet their contributory benefits are going to be time-limited. Certainly with cases of Parkinson’s, these are people who have worked for 40 or even 50 years, who have not had a day’s sick leave and feel very—
Q75 Chair: Should not the computer be flagging up that you can’t be in the WRAG if your prognosis is that you’re never going to get better?
Donna O'Brien: That is exactly our evidence. We cannot understand why such people are in that group. If that is the prognosis, they should be in the Support Group.
Q76 Dame Angela Watkinson: This comes back to more accuracy in the initial assessment.
Donna O'Brien: Yes.
Q77 Dame Angela Watkinson: I have two final questions for Citizens Advice. First, you conducted an online survey on the impact of the time limit on contributory ESA. What were the key findings? Secondly, conditionality requirements under Universal Credit will change for claimants of what is currently ESA, both during the assessment phase and while they await the outcome of their appeal. What are your concerns about the possible impact of that?
Rachael Holmes: Our online survey really showed clear evidence that people will be more dependent on their partners and will suffer more financial hardship as a result of the time-limiting of contributory ESA. On Universal Credit, we have three main concerns. On your specific question about the conditionality rules, Tom made the point earlier about how the onus is likely to move to Jobcentre Plus staff to do a kind of quasi work capability assessment to set a temporary conditionality level for the claimant. That is very worrying, because it feels like a lot of responsibility and it is very difficult to get right in those circumstances. Our work on mandatory reconsiderations that we are doing at the moment might give us some clues about where the Department might be going with that and what would make sense.
More generally on Universal Credit, we are very concerned that it will be harder for disabled people to make work pay and we are doing some more work in that area. The key problem is that there is no equivalent of the severe disability premium in income-related benefits. Our third concern on Universal Credit, on the basis of some pilots that we have done, is people’s readiness to move to things like online claiming and four-weekly payments. We found that nine out of 10 people weren’t ready and I suspect those issues are particularly acute for disabled people.
Q78 Chair: Universal Credit is not ready either.
Tom Pollard: On Universal Credit, I agree with all that. Again, the concern is that the constant movement seems to be towards assuming a high level of conditionality unless you can prove that for some reason you should not have the high level of conditionality. That betrays an assumption that the only way they can move into work is if you push them. Whereas, I would say put it the other way round. Why not have a low level of conditionality, since there is no real evidence that it is effective with disability, and only increase it at the point where it is clear the person is simply unwilling to engage? Why start with the assumption that they are unwilling to engage? Then move from there. We are finding that that high level of conditionality means that people do not feel there is any autonomy in the process, they do not believe they have any say over it and they feel under a high amount of stress, because they are worried about being sanctioned. Often they are sanctioned because they get ill, cannot turn up for an appointment and they lose their benefit. Why increase that level of stress when it is not helping people back to work? Why not start from the opposite assumption and introduce conditionality only at the point where it is clear that the person does not want to engage?
Q79 Chair: Do you have any evidence of what is happening to people who are on contributory ESA after a year, when they do not qualify for income-related ESA, because they have a working partner or a pension or savings? Are they continuing to sign on and have to deal with conditionality, or are they just dropping out of the system? What is the incentive for them to keep signing on if they are not getting any cash? The only thing I could think of is national insurance credits towards their pension. Has anybody got any evidence?
Donna O'Brien: If they want to keep the NI credits going, they obviously do. But certainly in the cases of progressive conditions, again what we are finding is that if people are in the WRAG and go to the Jobcentre Plus, the adviser tends to be quite sympathetic and advises them to appeal, or says: “Come back in a few months and tidy up your CV,” and so on. They are people who we deal with who have certainly been in the WRAG repeatedly for a number of years now and have not had their payments since April 2012. They just languish there. There do not feel able to work, so they would not be pushing themselves to get back into work. Nobody else is going to be pushing them to get back into work, because they have had quite a sensitive interview with the Jobcentre Plus. When we have asked whether people with Parkinson’s and other conditions are getting on to the Work Programme, the Government are not collecting that data, so we do not really know. It is not part of the big plan, the time-limiting. Certainly it isn’t from the evidence we have heard.
Chair: Any evidence that they are just dropping out of the system? You don’t know. I think we have exhausted our questions, is there anything that you want to ask?
Q80 Nigel Mills: Clearly, our report is looking at the future of this assessment. It is quite an opportune time, presuming that the new contractor will want to do it differently. If you could give one recommendation to the Department and whoever takes it on to make it better, what would that be?
Joanna Kennedy: Use more medical evidence. Collect other evidence apart from that in the assessment. Follow Professor Litchfield’s recommendations about the use of the ES113 to collect proper, rounded evidence from all appropriate sources.
Donna O'Brien: I completely agree. If you ask anybody with Parkinson’s, they say, “How come the evidence of my neurologist, Parkinson’s nurse, and OT physiotherapist is all overruled by an Atos assessor?” So please use more medical evidence.
Anna Bird: We would agree with that.
Tom Pollard: That is a short-term fix, but longer term we need to have a rethink about how the whole system interacts with back-to-work support.
Rachael Holmes: Yes. It is about listening to health and social care professionals more, getting upstream in the process and providing the evidence free of charge to claimants.
Chair: Dame Angela has another question.
Q81 Dame Angela Watkinson: What about the calibre and training of assessors in the first place? If more accurate decisions were made at the initial assessment, we would naturally avoid a huge amount of appeals.
Joanna Kennedy: Absolutely. It is a little bit difficult to tell whether the failure of the assessment process comes from the calibre of those doing it or the direction given by the policy: this direction to use a broad-brush approach and potentially to use targets. It is difficult to tell. A better quality of assessment, for sure, is what is needed. What causes that poor quality is more difficult.
Chair: See what happens when we finish before the bell starts ringing.
Joanna Kennedy: Sorry, could I just say as well that the poor quality of the assessment has been recognised in four reports—all Professor Harrington’s reports and Litchfield—particularly the issue about making inappropriate inferences and so on? It has been raised time after time in the reports and the Department has shown no signs of responding to the core problem of this poor-quality assessment. That leads one to suppose that it is a matter of policy rather than a matter of the capacity of the people who are doing it. We worry that just changing Atos for Capita or some other organisation will not make any difference at all unless there is a change in approach and policy.
Q82 Nigel Mills: That leads me on to my question. Do you think it will be possible for any contractor, no matter how good, to have the confidence of claimants that the system is fair, or is that impossible and the only way forward is to bring this back in-house and at least have it in the public sector?
Tom Pollard: I think it is going to be really hard to get people’s confidence back. People do generally feel a lack of confidence in this system and I think changing the contractor will not necessarily change that. I think, as we have been with PIP, we are very open to working with providers to try to help them do things better. I think there have been improvements under PIP. It will be interesting to see how much better people’s experiences are of that, but it is an uphill battle because people have so little faith in the WCA and the surrounding system as well.
Q83 Sheila Gilmore: Can you separate, or should we try to bring together better, what we are trying to do here with the WCA and employment training and so on? We will end up doing two separate reports in a sense, with one about employment. Can you see a way of making that more seamless?
Anna Bird: That is fundamental. I have said this already, but the only way of measuring the success of the WCA in meaningful terms is to look at job outcomes in the end. So I think that is really important. We need to see the WCA in the context of the wider employment support system. I would commend that, absolutely.
Tom Pollard: Otherwise, what does that assessment of what group somebody should be in mean, if you are not relating it to what support and requirements are then placed on them? Too often, the Department tries to make this about an objective assessment of who should be in those three groups, but those three groups cannot be objective without the context of what it means to be on JSA, or in the WRAG, or in the Support Group.
Q84 Chair: Would it be better if they slimmed down the WCA or replaced it with a straightforward, simple, cheap eligibility for benefit test, which can be done a lot of the time on paper, based on doctors’ assessments, and spend the money instead on a second assessment on barriers to work and identifying help to get back into work to separate these things out? We have got the expensive assessment, but the evidence you have given says that it is really just giving eligibility for income replacement benefit. But the thing that is really important and would make a difference to people’s ability to getting into work doesn’t exist.
Anna Bird: Absolutely. Let us get back to the facts. Do people want to work? Can they work? Nine in 10 have worked. We need to make that possible and the way to do that is to focus on the support that is available for them and look at that in the context of their lives. If we can do that, then the system will be improved.
Q85 Chair: So that would be the radical solution?
Rachael Holmes: Yes.
Donna O'Brien: It is important not to lump everybody in. It doesn’t distinguish between people who are chronically ill and the context of where they have got to in their journey in work. People have the potential and should be encouraged and supported into work. That is the real problem with the system. Because it is all based on function it does not distinguish between the very different challenges that different people have with different illnesses and conditions.
Chair: I have said in the past that there is an underlying assumption that everybody will get better and everyone will get back into work. But that is not going to be possible for people with deteriorating conditions. We have now exhausted all our questions, unless Graham wants to come back in. I knew he would.
Q86 Graham Evans: Rachael, did you say that nine out of 10 disabled people have an issue with accessing online?
Rachael Holmes: No, I said our wider findings on Universal Credit were that nine out of 10 people would need support to make a claim in the way that the Department envisages—
Q87 Graham Evans: Online?
Rachael Holmes: Yes, online or help might be needed with household budgeting to cope with four-weekly payments, or help with access to basic banking. It is a range of factors.
Q88 Graham Evans: It was not just disabled people?
Rachael Holmes: No. It is everybody. But I was saying that I suspect there is a big issue here.
Chair: Thank you very much for coming along this morning. It was extremely useful and it sets off our inquiry on a good footing with some suggestions there from you. So thank you very much.
Oral evidence: Employment and Support Allowance and Work Capability Assessments, HC 1212 32