Employment Support Allowance and Work Capability Assessments – written submission form

Employment Support Allowance and Work Capability Assessments – written submission form

Submitted by WOWpetition

(Due to the limitations of WordPress this report is not formatted in exactly the same way as the submission to the Select Committee)

Introduction

  • The failure of the WCA and the application by ATOS has been discussed widely by numerous groups including unions, charities the media and grass roots disability groups. After five years the WCA has systematically shown that it has failed. Over 104,000 individuals signed the WOWpetition, which called for an end to this cruel and inhumane system. We have heard time and time again horrendous case studies in the House of Commons and the media, demonstrating the harmful effects of this system. Four reviews by Harrington and latterly Litchfield have not improved the process.
  • Our submission to this committee will consider “The effectiveness of the WCA in indicating whether claimants are fit for work, especially for those claimants who have mental, progressive or fluctuating illnesses, including comparison with possible alternative models” and “Time-limiting ESA and Appeals”.
  • The process to assess and adjust for impairments suffered by people has historically been based upon a model of disability “fashionable” when the legislation was passed. It is obvious that the model of disability adopted will affect the way ill & disabled people are assessed. The medical model was in vogue in the 1970s and 1980’s with the underlying assumption that people can be cured so that they can comply with societal “norms”. Then in the late 1980’s and early 90’s the social model was accepted as the accepted basis for dealing with ill & disabled people with the definition of disability adopted by the 1995 Disability Discrimination Act being a Social model construct. In the late 1990’s the UK saw the adoption of the bi- psychosocial model which advocated treating the whole body. The psychological component of the bio psychosocial model looks for potential psychological causes for a health problem such as lack of self-control, emotional turmoil, and negative thinking.

The effectiveness of the WCA in indicating whether claimants are fit for work, especially for those claimants who have mental, progressive or fluctuating illnesses, including comparison with possible alternative models.

Table 1:- Models of Disability

Definition: Medical Model Social Model Bio Psychosocial Model
The medical model of disability is a sociopolitical model by which illness or disability, being the result of a physical condition intrinsic to the individual (it is part of that individual’s own body), may reduce the individual’s quality of life, and cause clear disadvantages to the individual. The social model says that disability is caused by the way society is organized, rather than by a person’s impairment or difference. The bio psychosocial approach systematically considers biological,

psychological, and social factors and their complex interactions in understanding health, illness, and health care delivery.

Criticisms:

The medical model looks at what is ‘wrong’ with the person and not what the person needs. It creates low expectations and leads to people losing independence, choice and control in their own lives.[1] The social model fails to take account of individual impairments. “Bio psychosocial” becomes one more disingenuous euphemism for psychosomatic illness[2]
  • Some characterize the progression outlined above as moving from: you are ill/ disabled so we must write you off; to you are ill and disabled and society is to blame for excluding you; to you are not ill & disabled, it is all in your mind.
  • WOWpetition’s position is that the WCA process must provide equality of opportunity. In our opinion the current WCA is built upon the unscientific bio-psychosocial model of disability, which arguably could only ever apply to medical conditions from which there is a realistic chance of recovery. This precludes it from ever being modified to comply with the General Principles, Article 3 of the UNCRPD[3] which states the Equality of Opportunity is a Basic Human Right. WOWpetition seeks a better fairer way to assess ill and disabled people.
The British Medical Association.
  • The British Medical Association called for an end to the WCA in June 2012 stating the WCA ‘system was causing ‘distress’ to thousands of people with long-term health conditions deemed fit for work.’[4] Dr Greg Wood, an employee of ATOS left and becoming a whistleblower on the practices of ATOS following amendments to his reports without the decision makers ever seeing the applicant. He stated in the British Medical Journal:

“The position of the General Medical Council is that doctors should not alter such reports if they think that it would make a report less accurate, or would render it misleading to the body commissioning it—that is, the DWP. I resigned from Atos primarily over this widespread interference with reports, which I felt encroached on my professional autonomy and crossed ethical boundaries.”[5]

  • Dr G Philips writing in the British Medical Journal in Oct 2013, after supporting her patients appeals against ESA attests:

“During the past year I have supported appeals for increasing numbers of patients who have had their employment and support allowance (ESA) stopped. Clearly some of the assessments being performed are substandard. All nine of the patients I have supported have successfully appealed against losing the ESA. In every case the assessor failed to appreciate, acknowledge, and record what should have been obvious. None of my patients deserved the extra anxiety and distress that compounded their existing problems[6]

  • As both the doctors evidence is within the last year highlights the fact that the reviews carried out by Harrington and Litchfield have not improved the WCA. Doctors and whistleblowers are reporting a complete failure in the correlating and management of the WCA.
  • Mental health charities like Rethink and MIND have taken court action against the WCA, highlighting mental health conditions and the failure of the WCA. They also raise the issue of the failure by DWP to act on recommendations around assessing individuals with mental health problems.  Their findings pointed to: £66m in appeals costs last year and 30% of all ‘fit for work’ decisions appealed to date have resulted in the initial decision being overturned;
  • Two thirds of all benefits cases taken to appeal relate to ESA. The Ministry of Justice reports that the over 100,000 cases in the last quarterly report: “was driven by appeals in relation to Employment and Support Allowance, which increased by 86%”. The appeal rate has contributed to a tribunals system case backlog of over 900,000.
  • 200,000 disabled people have only accessed the appropriate ESA WRAG via appeals and reconsiderations (36% of the entire group);
  • Routine reliance on reconsiderations and appeals wasting DWP resources that could be better invested in providing effective employment support for disabled people.[7]
  • Their argument also focused on medical evidence, individuals with mental health problems sometimes haven’t the capacity to gather supporting documentation, time constraints are submitting evidence is also a barrier. They argue the system is a waste of money, causes undue stress, and it should be down to the DWP to obtain necessary information.[8] On the 4th December, 2013, the court dismissed DWP appeal on grounds relating to the Equality Act, which means that the Upper Tribunal Court ruling that people with mental health problems are at a ‘substantial disadvantage’ still stands, and the Judicial Review will proceed. Reasonable adjustments haven’t been made to accommodate individuals in correlating information.7
Citizens Advice
  • In 2010 the CAB produced a report about the reliability of the WCA and asked for an independent evaluation. They stated people with serious illness and disabilities are being found fit for work but are often too ill to work, so unable to claim JSA and are left with no funds. They argued;
  • The Department of Work and Pensions (DWP) should listen to evidence from the health and social care professionals who know you best.
    • The medical evidence required to make your case should be provided free of charge.
    • The companies running the work capability assessments should be held accountable for poor quality assessments or bad customer service.
    • The DWP should continue to pay people ESA while a second opinion is given on their application[9]
  • In January 2014, CAB stated again,

ESA is desperately in need of reform. Far too many sick and disabled people are still being let down by incorrect assessments and long delays. Appeals against bad decisions have cost taxpayers more than £60 million and between October 2012 and September 2013 bureau have helped with 465,602 problems with ESA. A system in which people can be found fit for work without proper medical evidence cannot be fair. It is completely unacceptable that sick and disabled people can face charges of more than £100 for medical evidence to help their claim whilst companies delivering assessments can get away without sanction for not doing their job properly. Ministers must ensure new contracts to deliver work capability assessments have strong punishments and fines for providers who get assessments wrong.[10]

Prof Harrington
  • Harrington on the 12th December 2012 suggested the reviews and the subsequent problems indicated recommendations had not been implemented. He reflected concerns over the assessment process expressed by disability charities, Harrington reported that ‘“a number of the major charities … say that although they have seen some change for the better, it is disappointingly incomplete in coverage and depth. I agree with them”’. In Dec 2013 Harrington stated he had informed Grayling that the WCA wasn’t fit at that stage to be rolled out. ‘He said: “I said [to Grayling] left to my own devices I would prefer to leave it for a year and let’s see what changes we can make for new claimants’. He said ‘well, we’re going to do it’. I said ‘Ok, that’s a political decision. I would have preferred to do a roll-out in the second year [2012].”’ [11]
  • Even ATOS have questioned the WCA when announcing they planned to exit their contract early stating. ‘“In its current form it is not working for claimants, for DWP or for Atos Healthcare.”’[12]

Alternative Models

  • At the WOWpetition debate[13] in the House of Commons on the 27th February, some politicians that spoke didn’t comprehend that at the time of drafting the e-petition the authors did not have the expertise, experience or resources to be able to propose a robust thought out alternative to the WCA. We believe the size of this task is well beyond the ability of independent grass roots campaigns to do in isolation. Surprisingly, comments made by MPs failed to show a common understanding of what the Work Capability Assessment should be delivering. Some portrayed it as a tool to reduce social security payments; some focused on the impact it should have on the poorest members of society. WOWpetition is not campaigning for the withdrawal of the WCA in the expectation that nothing will replace it. The question we are posing is what should the process for providing financial support and giving life opportunities to disabled people look like? We do not accept that a better fairer way to financially support and provide opportunities to ill and disabled people cannot be found.
  • Before we can discuss whether the Work Capability Assessment is “effective” it is necessary to identify its purpose. In the forward to ‘An Independent Review of the Work Capability Assessment – year four’[14] Dr Paul Litchfield defined it thus: ‘The Welfare Reform Act 2007’ established the Work Capability Assessment (WCA) as a means of distinguishing between people who could not work because of health related problems from those who were fit for some work or could, with support, eventually return to the world of work.’ This definition of the purpose of the WCA is identical to that of Professor Michael Harrington in his first review of the Work Capability Assessment in Nov 2010[15].  WOWpetition believes that definition is flawed this is why it believes the WCA needs to be withdrawn and replaced.
  • WOWpetition believes that the process should focus on providing dignity and opportunity for all. A major criticism of the current WCA is that it does not address supply side barriers to employment, especially in relation to invisible illnesses such as mental health conditions or head injuries.
  • The Head Injury Charity, Headway said in response to Dr Litchfield’s 4th Review:

While we welcome some of the recommendations made by Dr Litchfield and call upon the government to accept them without delay, in general this report does not suggest a significant improvement in the way people with brain injury are treated by the WCA process.

  • WOWpetition has  grave reservations how any process scientifically reviewed 4 times that has still not addressed how it fails to ensure significant categories of disabled people are not addressed on their own personal merits, can be refined to deliver equality of opportunity to all.
  • Whilst beneficial to “up-skill” ill and disabled people to better equip them for the workplace the current process does not include either those that are not able to enter or return to the conventional work environment or those that are skilled and experienced but “demand side” barriers to work exclude them from the marketplace. Being different is hardly ever an advantage.
  • WOWpetition argues there has to be a better fairer way to assess ill and disabled people. One such possible model is the “Capabilities and disability: the capabilities framework and the social model of disability” ( Tania Burchardt, London School of Economics, UK) Disability & Society, Vol. 19, No. 7, December 2004).
  • This paper is based in part on the work of Amartya Sen and his “Human Development and Capability Approach”[16]
  • In this paper Burchardt argues:

“One important distinction made by all versions of the social model is between impairment and disability.  Impairment is a condition of the body or mind, such as lacking a limb, being partially sighted, or experiencing depression. It is an attribute of an individual. Disability is the loss or limitation of opportunities to take part in the life of the community on an equal level with others. It arises from the social, economic and physical environment in which people with impairments find themselves.”

  • She goes on to suggest:

“As a capabilities analysis indicates, enhancing disabled people’s employment capabilities requires changing the context in which disabled job seekers operate, not simply trying to alter the job seekers to fit the existing context.”

  • Concluding:

“Both the social model and the capabilities framework are widely misunderstood and treated with suspicion by those rooted in more traditional perspectives—the medical model and neo-liberal economics respectively. The social model could be strengthened by being located within a broader framework; this could also provide a route to acceptance within the rest of academia and policy circles —without compromising the fundamental tenets of the model. Meanwhile the capabilities framework could be enhanced by a more thoroughly developed application to real-life problems of injustice in the developed world: and where better to start than with the inequity of disability?”

  • WOWpetition believe the assessment of ill & disabled people must start by properly assessing needs, capabilities and ambitions of sick and disabled people and then re-engineer opportunities to make the workplace inclusive. Reasonable adjustments must also apply to the accepted working practices in the workplace and not just to access requirements.

 

Time-limiting ESA and Appeals

  • CAB have argued against the new system which left the sick and disabled without any funding should they appeal a decision, without any time constraints placed upon the DWP in waiting times for appeals. “The new mandatory reconsideration for people who want to challenge an assessment is an unnecessary and harmful extra barrier to people who need support. This extra red tape will make an already tough system even harder as many sick and disabled people will be left without any income whilst they challenge decisions.”[17] The one year time for contributory ESA for individuals in the WRAG group has resulted in thousands who are unaccountable, not claiming JSA, or working, simply disappeared, with no accounting mechanism in place to trace them. The plight of the sick and disabled in the UK is exacerbated by the absence of funds whilst appealing, with no time limit on how long the appeal process takes. As previous academic researchers have found, this system is exacerbating poverty within this socio economic group,

Yeo and Moore argue more generally that people with disabilities are more likely to be poor, because of the systemic institutional, environmental and attitudinal barriers encountered in their daily lives, which in turn results in their entrenched social exclusion and their lack of participation in contemporary society.[18]

Conclusion

  • As a first stage WOWpetition proposes that as a matter of urgency that the desired outcomes from the process designed to deliver financial support and opportunities to those disadvantaged by illness or disability, be defined to better reflect the needs, abilities and ambitions of sick and disabled people. The courts have already judged that legislation in the UK must comply with the UNCRPD, specifically the duty to provide equality of opportunity. This process must, in our opinion, be based around that principle.


[2] McLaren N. “The Biopsychosocial Model and Scientific Fraud”. {Paper presented to RANZCP Congress, Christchurch NZ May 2004. Revised: “When does Self-Deception become Culpable?” Chap.8 in McLaren N. “Humanizing Madness: Psychiatry and the cognitive neurosciences” ISBN 978-1-932690-39-2

[5] Wood G. I blew the whistle on the government’s disability assessments. BMJ 2013;347:f5009

[6] Phillips G. Time to put right what is going wrong in the government’s disability assessments. BMJ 2013;347:f6014

[11] Ministers ‘ignored advice on inhumane fit-for-work tests’ http://www.theguardian.com/politics/2013/dec/16/ministers-ignored-advice-fit-for-work-tests

[12] Atos wants to quit £500 million government contract EARLY http://www.mirror.co.uk/news/uk-news/benefits-uk-testing-firm-atos-3168142#ixzz2w2saDmv9

[13] 27 Feb 2014 : Column 423 Backbench Business Welfare Reform (Sick and Disabled People) http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140227/debtext/140227-0001.htm

[16] Introduction to the Human Development and Capability Approach – Freedom and Agency http://idl-bnc.idrc.ca/dspace/bitstream/10625/40248/1/IDL-40248.pdf

[17] ESA system letting down sick and disabled http://www.citizensadvice.org.uk/index/pressoffice/press_index/press_20140125.htm

[18] Disability and Poverty: the need for a more nuanced understanding of implications for development policy and practice. Nora Groce, Maria Kett, Raymond Lang, Jean-Francois Trani Third World Quarterly Vol. 32, Iss. 8, 2011

5 comments on “Employment Support Allowance and Work Capability Assessments – written submission form
  1. tiggysagar says:

    So….where do you actually sign this petition? It’s not at all clear and is far too long for most people to bother reading through before signing.

    • Hi, Petition closed in December having achieved 104k + signatures and we had a debate in the House of Commons on the 27th Feb 2014. We are currently working hard to make sure that the issues the WOWpetition campaigned for are still heard.

  2. Many people aged over 60 are losing or never gaining disability and/or chronic sickness benefits, in or out of work, with or without a small works pensions by all the early retirement of Austerity job cuts.

    The loss of state pension at 60 is a massive £43,000 lost income over 6 years of life, that began from 2013, that is around £137 per week if factor in Pension Credit.

    The Pension Bill was bad enough. The Flat Rate Pension is even worse.
    See if you lost most or all of your state pension
    https://you.38degrees.org.uk/petitions/state-pension-at-60-now

    A new party has started that ensures the end of Austerity and Welfare Reform, with a disabled section already, the Left Unity Party http://leftunity.org/
    Another way to absaolutely be certain of getting disability rights in 2015 onwards for 5 years government.

  3. Thank you for sharing your thoughts. I really appreciate your efforts and I am
    waiting for your further write ups thanks once again.

  4. Today, I went to the beachfront with my children. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.”
    She put the shell to her ear and screamed.
    There was a hermit crab inside and it pinched her ear.
    She never wants to go back! LoL I know this is entirely off
    topic but I had to tell someone!

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