ESA: Changes to the Working Capability Assessment descriptors

March 3, 2011


The MEA is part of a working group set up by Professor Malcolm Harrington to review the ESA Working Capability Assessment in relation to fluctuating medical conditions.

The MEA is firmly opposed to the decision to change the descriptors before this group has reported and we are working with our parliamentary colleagues to try and get this legislation annulled.

This is a further update to the information provided in the last MEA posting:

https://meassociation.org.uk/?p=4723

Information regarding the forthcoming House of Lords debate to annul the legislation, which will come into force on 28 March:

Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations 2011(SI 2011/228)

Date laid: 16 February 2011

Parliamentary Procedure: negative

Summary: It is clear that DWP see the implementation of the Employment and Support Allowance (ESA) and the Work Capability Assessment (WCA) that underpins it as an evolving programme. In line with best practice they have reviewed the initial performance of the WCA and, having found that it is not working as well as expected, are keen to revise it, which is laudable. However, many of those involved in the consultation process, including those with considerable expertise, are expressing strong views that the current Regulations are premature and that piecemeal change will cause more harm than good. First, because there is insufficient data from the initial trial of the migration of Invalidity Benefit claimants to ESA to be clear whether the changes proposed will be an improvement. Second, there are concerns that the WCA system has not bedded in fully and the operation of the system needs to achieve greater consistency before further changes are added. Third, that the current changes may not maintain the distinctions set out in the Act between the two levels of capability and may over-estimate many individuals' actual ability to work. And lastly, there are serious concerns about the effect on already vulnerable people from repeatedly changing the WCA eligibility descriptors. The House may wish to seek further information from DWP on the rationale for putting forward these Regulations now.

These Regulations are drawn to the special attention of the House on the grounds that they give rise to issues of public policy likely to be of interest to the House and may imperfectly achieve the policy objective.

More detailed information can be found in the 23rd Report of the House of Lords Merits of Statutory Instruments Committee, which was published on 3 March. Click HERE to download the full 31-page report.

6 thoughts on “ESA: Changes to the Working Capability Assessment descriptors”

  1. This is the submission from The MS Society, with whom we are on a working group set up by Professor Harrington – along with Parkinson’s UK, Arthritis Care and the National Aids Trust – which is considering the WCA descriptors as they affect people with complex and fluctuating medical conditions. This is highly detailed and complex work and this particular working group has yet to report. It is working to an agreed timetable. The next meeting is at the National AIDS Trust tomorrow (Friday, 4 March).

    Submission from the MS Society

    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.

    * 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 group17 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 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.

    February 2011

  2. Well done guys, and the MS Society in particular.

    Been waiting for this coalition for some time now. It is terrific that all these representative groups have banded together like this – long may it continue.

    Now, where’s the sufferers petition please?

    How about some pertinent stories of those of us who have received NIL POINTS at assessment and been awarded in excess of 15 at appeal?

    Or of the multitude being forced to appeal?

    Or of the multitude that feel they cannot face further hardship and deteriorating health, while appealing, or are so confused at the process of appeal, that they surrender to the inevitable?

    Get me a petition, or a plan, or a campaign, and I will sign.

    Just show me the way, or perhaps we sufferers should do it again ourselves….

    1. Firestormm

      Funny you should mention the need for pertinent stories about those who have received nil points at assessment and then been awarded in excess of 15 at appeal.

      We received an email from ‘Wendy’ yesterday, and she’s given us permission to post the relevant paragraph here:

      I’ve been reading the WCA reactions. I thought I would drop you a line. I’m sure you have lots horror stories re the WCA to pool if you need case studies. But I thought I would let you know that I had my tribunal yesterday for ESA. The appeal was upheld, they made the decision on the medical evidence submitted, They didn’t even question me. I literally went in and straight back out. A complete waste of time, money and very distressing. So 0 points had become 46…??? It was a 10 month wait. Thank god, I’m doing so much better now.

  3. And this just in from another lady, who prefers not to be named:

    Having appealed last year and had the decision upheld my husband attended the tribunal on my behalf as I was too ill to attend. He spent the whole day before preparing and highlighting the discrepancies in their various letters and reports.

    This information was given to a clerk prior to him entering the room. After a lot of questioning, they finally overturned the decision – a year after I first applied! I’m afraid I’m not entirely clear on what grounds it was overturned, but it wasn’t on a points basis. It was relating to a specific clause in their legislation pertaining to an inability to work without risking injury to myself or others.

    Apparently I will have to go for another medical assessment in six months time… but for the meantime I am very happy.

  4. The report of the working party on WCA descriptors for fluctuating conditions such as ME/CFS has now been completed.

    The 66-page report containing a substantial number of recommendations was signed off at the last meeting of the working party on Thursday 28 April and sent to Professor Harrington and the Department for Work and Pensions for their consideration.

    The ME Association was representing all the ME/CFS groups that belong to the Countess of Mar’s Forward ME Group.

  5. The truth is that the DWP has no intention of paying out ESA to all those who are genuinely unable to enter employment. We know, and they know, and we know they know and … that in the medium term no one with substantial health issues is going to considered as “capable of work” by any employer. Most of us will not be able to hang on to the jobs we have.

    Pay ESA to all those who will not be able to work for health reasons, and no money at all would be saved. Indeed I’ll bet that the total number of those on this sort of sickness benefit would not be reduced.

    So what can charities do? At the moment they are pointing out that the system does not do what it pretends it is trying to do – i.e. assess everyone’s abilities and put those who are really unsuitable for employment on to ESA. This is pointless (see above), except that it makes us feel that Something Is Being Done, even when it isn’t.

    They can try to make the case for the problems of their own members. In the case of a limited “pot”, any increase in payments to the members of Charity A will probably be accompanied by a decrease in payments to those belonging to Charity B. Competitive suffering!

    They can accept that the conditions being described as leaving people “able to work” are simply not true, and then try to make them fair and relatively transparent, accepting that they will then be much harsher. Then at least we would know where we stand. Of course, lots of other people would know where we stood as well which would, eventually, expose the system for what it is.

    My own belief is that the system will continue to be opaque, and to generate a large number of appeals, whilst the LiMA system continues to be almost the sole basis for the decision-making process at DWP level. A look at an outdated version of the training manual (on issuu.com) has convinced me of what I suspected before. Its internal logic makes virtually all the decisions which count – ATOS employees can trap you into bad answers, but a slip of the mouse on a dropdown menu will do the job just as well.

    The questions and the acceptable answers are decided by the program. The person filling it in is told that answers which do not come from the list of acceptable answers will be ignored.

    The logic behind this system (which claims to be “Evidence-Based Medicine”) is produced by a complex set of rules which ATOS and the DWP have managed to hide behind a veil of “commercial confidentiality.”

    If this “logic” system is going to be over-turned on appeal, then it is inefficient to allow it to rule unchecked. Even if it works, we are being judged by evidence we are not allowed to hear. Human rights anyone?

    I think that all the charities should try to find a way to get the AI rules which lie behind the LiMA coding exposed. We might not like what we found, but at least we would know.

    Let’s fight for the right to see the enemy.

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