ESA – changes to the Working Capability Assessment descriptors

Following on from the information previously posted on the MEA website (see here www.meassociation.org.uk/?p=4592 ) about changes to the Working Capability Assessment descriptors, the MS Society has made a detailed submission to the House of Lords Merits of Statutory Instruments Committee.

The MEA is working with the MS Society on the group appointed by Professor Malcolm Harrington to review the WCA descriptors relating to fluctuating conditions and we have endorsed this submission.

Full submission:

The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) Amendment Regulations 2011 (S.I.2011 No.228)

MS Society Submission to the House of Lords Merits of Statutory Instruments Committee February 2011

The MS Society is a member of the Disability Benefits Consortium, and supports the DBC's submission to the Committee. We are providing this further submission to highlight some particular problems with the regulations as they relate to the assessment of people with complex and fluctuating conditions like MS.

This submission is supported by Parkinson’s UK, Arthritis Care, ME Association and the National AIDS Trust.

We draw these regulations to the attention of the merits committee, as we believe that they: 1. give rise to issues of public policy likely to be of interest to the House; 2. will imperfectly achieve their policy objectives; and 3. should therefore be annulled.

1. Issues of public policy likely to be of interest to the House The primary legislation (the Welfare Reform Act 2007) provides that claimants are entitled to ESA where they have limited capability for work due to their physical or mental condition, such that it is not reasonable to expect the claimant to work. The policy objective of these regulations is to amend the Employment and Support Allowance Regulations 2008, which set the criteria to determine whether someone has a ‘limited capability for work’.

The regulations make significant changes to these criteria, which could impact on millions of current claimants of Incapacity Benefit due to be reassessed through the WCA from April this year, as well as any new claimants of ESA. The Disability Benefits Consortium (DBC) and the Social Security Advisory Committee (SSAC) have both recommended that these descriptor changes are not introduced.

2. Imperfect achievement of their policy objectives We believe that these regulations will imperfectly achieve their policy objective, of identifying those with a ‘limited capability for work’, for the following reasons:

• Flaws in the process of the review: The review which gave rise to the proposals for change to the WCA was carried out based on very limited evidence of how the assessment was working in practice. The DWP has failed to consult widely on the proposals, despite the enormous impact that these could have on disabled people, and they have been subjected to a far lower level of external consultation and scrutiny than both the Harrington review and SSAC’s review. The DWP roundly rejected the recommendations of SSAC, which showed a very clear lack of support for the regulations, despite SSAC’s recommendations being based on a much wider consultation (with over 160 responses to their call for evidence).

In addition, although the DWP state repeatedly in their response to the SSAC report that the ‘a number of external stakeholders including specialist disability groups were closely involved in the department-led review’, it is well documented that the disability groups involved (many of whom are members of the DBC) unanimously rejected the Government’s proposals, and highlighted that they did not feel that their input had been adequately considered.1

• Regulations are premature: Work is already ongoing as part of Professor Harrington’s second year of the review: Mencap, Mind and the National Autistic Society have already presented recommendations to Harrington’s team on how the descriptors for mental health, learning difficulty and cognitive impairments could be improved. The MS Society is currently chairing a working group2 to develop recommendations to improve the descriptors in relation to fluctuating conditions, and symptoms such as pain and fatigue. The implementation of these regulations now risks diminishing the positive impact of Harrington’s previous and forthcoming recommendations, and diverting limited resources from addressing the Harrington reforms.

Conversely, if the work done as part of the Harrington second year review is fully taken into consideration and implemented, this could mean the descriptors would be radically changed twice within the space of just one year.

This would clearly be extremely unfair on those people being assessed in the interim, and risks a very high level of appeals, and potential judicial review cases, not to mention confusion, anxiety and frustration amongst claimants, professionals carrying out the WCA, and those supporting claimants through ESA applications.

• Shift in focus of descriptors: The descriptors proposed in these regulations seem not to be assessing ‘limited capability for work’, but rather assessing only ‘capability for work’, blurring the distinction between the ‘Limited Capability for Work', and ‘Limited Capability for Work Related Activity', and therefore undermining the Welfare Reform Act’s intention to separate claimants into two distinct groups with different levels of need. There are a number of specific examples within the descriptors themselves which highlight this:

o The original descriptor 15 (Execution of tasks) accounted for the barriers stemming from time taken to complete tasks, rather than someone’s ability to complete tasks at all. This is an extremely important factor in an individual’s employability, particularly for those who suffer from multiple impairments, and symptoms such as fatigue, pain and cognitive problems, all of which are experienced by many people with MS. Someone who takes more than twice the amount of time to complete activities is highly unlikely to be considered ‘fit to work’ by any employer and will thus certainly have a limited (but not no capacity) for work. Yet under the new descriptors, this issue is no longer accounted for.

o The DWP state as justification for their changes to the continence descriptors: ‘an individual whose problems with continence can be managed if they are able to reach a toilet quickly should not be considered unable to do any work’. Once again, this statement neglects that the purpose of the assessment is to identify limited capability and not inability to do any work.

• Improper purpose of the regulations: We are concerned that the DWP are proposing the descriptor changes in order to further reduce access to ESA by making the WCA more stringent, despite the Harrington review’s findings that the current descriptors are flawed and that the system is ‘lacking in empathy’, meaning that in many cases this results in people being wrongly classified as fit to work.

• Failure to address problems with fluctuating conditions: The DWP recognises that the current WCA struggles to accurately assess people with fluctuating conditions, yet it is clear
1 These charities wrote to government ministers on 22 March 2010 and 12 July 2010, and large groups of charities, including many of those originally involved, have written again in 2011. 2 Including Forward ME, Parkinson’s UK, National Aids Trust and Arthritis Care that the proposed descriptors do not adequately address this problem, and in some cases may even exacerbate it. For example:

o In response to the SSAC report, the DWP accepts the rationale that whether an activity is performed ‘reliably, repeatedly and safely’ is a crucial factor in assessing someone’s functional capability. However, they go on to reject the Committee’s recommendation to add in more qualifications like this into the descriptors themselves without giving any explanation as to their reasoning for this.

o The regulations remove all lower-level descriptors in some categories (e.g. removal of the six point descriptors within manual dexterity, and ‘navigating safely’ – which replaces any other reference to sight problems) making it more difficult for people with multiple or fluctuating impairments to qualify. For example, a person with MS could: be unable to write legibly; experience pain using a keyboard for more than a few minutes at a time; intermittently have to use a wheelchair due to fatigue and mobility problems; take twice as long as someone with no cognitive impairment to complete workplace activities due to problems with memory and concentration; manage bowel function through self-catheterisation (which can mean very regular and lengthy toilet breaks); experience slurring of speech such that they feel unable to hold a conversation over telephone; and experience significantly reduced vision (or even temporary blindness) for short periods during relapses. Such an individual clearly has a significantly reduced capacity for work – but could score no points whatsoever under the new regulations, and thus be classed ‘fit to work’.

The DWP state that healthcare professionals conducting WCAs receive training in assessing fluctuating conditions. However, the MS Society is concerned that few disability organisations have been consulted in developing this training, and that our concerns regarding this have not been taken into account. Furthermore, this training would need to be significantly revised to reflect any new assessment, and carried out prior to any new assessment being brought in, to ensure that healthcare professionals carrying out assessments interpret the descriptors appropriately.

Impact of the proposed descriptors This new regulation will make considerable changes to these descriptors resulting in a significant increase in the number of claimants with high levels of impairment and disability being classified as “fit for work” and denied ESA benefit. People with complex and fluctuating conditions, those who suffer from mental health conditions, cognitive impairments, and multiple changeable or lower-level impairments (such as MS) are particularly likely to be improperly assessed under these new descriptors. Many of these people, who should be eligible for at least the Work Related Activity Group of ESA, would be forced by these new descriptors onto Job Seekers Allowance, which is not the appropriate benefit for people with limited capability for work.

Yet the ongoing work of the Harrington review, supported by the DWP, is developing recommendations that could take important steps towards resolving these problems, and is likely to involve yet more wide-reaching changes to the WCA in just a matter of months.

These regulations should therefore be annulled in favour of more timely, better researched, reviewed and consulted upon, evidence-based regulations for changes to the WCA based on Harrington’s recommendations later in the year.

Contact If you would like any further information about the points raised in this submission, please contact Hayley Jordan, Policy and Campaigns Officer, MS Society, on 020 8438 0753 or hjordan@mssociety.org.uk.