This House of Commons Library debate pack briefing has been prepared for a debate entitled "Work Capability Assessments". It will take place in Westminster Hall at 2.30pm on Wednesday 13th December 2017 and will be led by David Linden MP.Jump to full report >>
This debate pack contains background information, parliamentary material, press articles, and further reading suggestions which Members may find useful in preparation for this debate.
The Work Capability Assessment (WCA) was introduced when Employment and Support Allowance replaced incapacity benefits for new claims from October 2008. It initially applied to new claims only, but from late 2010 the Department of Work and Pensions began reassessing the remaining incapacity benefit claimants for ESA using the WCA. The WCA now determines whether people on Universal Credit get an additional amount for ill health or disability, and what requirements are placed on them as regards looking for, or preparing for, work.
When a person first claims Employment and Support Allowance, they can receive ESA provided they submit "fit notes" from their GP indicating that they are unfit to work. To continue to receive ESA, the claimant must however undergo a Work Capability Assessment (WCA). This determines whether the claimant satisfies the conditions for ESA and, if so, which ESA group they are placed in. This should take place in the first 13 weeks of the claim, but can take much longer.
Unless they are terminally-ill – in which case their claim may be fast-tracked – claimants are sent a capability for work questionnaire (ESA50) by the Health Assessment Advisory Service. This is operated by MAXIMUS, which holds the contract to undertake assessments for the Department for Work and Pensions. The ESA50 asks about the claimant's disabilities and health conditions, and how they affect what they can do. The completed form must be returned within a specified time.
The ESA50 is considered by a Healthcare Professional (HCP) employed by MAXIMUS. The HCP can decide at this stage that they have enough information to recommend an award of ESA in the Support Group, but most claimants will be asked to attend a face to face meeting. Failure to attend may result in the person being deemed "Fit for Work." MAXIMUS may agree to an assessment in the claimant's home, if they can't travel to an assessment centre because of their medical condition.
The assessment process is explained in more detail at the Health Assessment Advisory Service website.
The Work Capability Assessment doesn't focus on the individual's health condition, but instead on how it affects their ability to undertake a range of activities related to physical, mental, cognitive and intellectual functions. The WCA determines whether a claimant has "limited capability for work" and, if so, whether they also have "limited capability for work related-activity." The specific tests are set out in regulations. DWP also produces a WCA Handbook for Healthcare Professionals, and a shorter Guide to the WCA for claimants.
There are three possible outcomes following a WCA:
The MAXIMUS HCP produces a report for the DWP recommending whether the claimant meets the conditions for ESA and, if so, whether they should be assigned to the WRAG or to the SG.
The decision on whether to award ESA, and in which group, is however made by a DWP Decision Maker. The Decision Maker should consider all the available evidence, including the ESA50 form, any accompanying evidence provided by the claimant, and any additional evidence provided by their doctor, in addition to the HCP's report. The Decision Maker doesn't have to follow the HCP's recommendation.
If the HCP recommends an award of ESA, their report will also state when it might be appropriate to reassess the claimant. In October 2016 the Government announced that it intended to exempt some ESA claimants with the most severe health conditions and disabilities from future reassessments. On 29 September 2017, the Department for Work and Pensions announced the criteria for "switching off" ESA reassessments. Further information can be found in Commons Library briefing CBP-7820, ESA and PIP reassessments.
People unhappy with an ESA decision claim can challenge the decision in the usual way – by Mandatory Reconsideration and appeal. Strict time limits apply. There is no time limit for DWP to undertake ESA Mandatory Reconsiderations, but "straightforward" cases should take around 14 days.
With the introduction of Universal Credit, the Coalition Government said that it intended to rationalise means-tested support for disabled people and would abolish the existing disability premiums and additions. It proposed replacing the current system of multiple, overlapping disability additions for benefit and tax credit claimants with a simpler system, where means-tested additions for disabled people would be payable at two rates only. For adults, eligibility would be determined by the Work Capability Assessment.
However, abolition of the UC limited capability for work element for new claims from April 2017 (and the equivalent Work-Related Activity Component in ESA) means that only those found to have a “limited capability for work-related activity” – i.e. those who would previously been places in the ESA Support Group – will receive an additional amount in their Universal Credit. For further information see Commons Library briefing CBP-7649, Abolition of the ESA Work-Related Activity Component.
The WCA is based on the principle that a health condition or disability should not automatically be regarded as a barrier to work and work itself can have benefits. It has been controversial from the outset.
Welfare rights and disability organisations have voiced concerns about aspects of the test and about the way it has been applied. There has been particular concern about how the test takes account of mental health problems and fluctuating conditions, and about the conduct of medical examinations undertaken by Atos (who have been subsequently replaced by Maximus) Health Care Professionals (HCPs) on behalf of the DWP.
Changes have been made to the WCA following internal reviews, and the Government has also accepted most of the recommendations made by the five annual independent reviews (the first three by Professor Malcolm Harrington, and the last two by Dr Paul Litchfield). However, despite changes made to the WCA since its introduction, it still attracts strong criticism. Problems highlighted by disability and welfare rights organisations include, amongst other things:
In its July 2014 report on Employment and Support Allowance and Work Capability Assessments, the Work and Pensions Committee concluded:
The Committee recommended a fundamental redesign of the ESA process, including a reassessment of the application and effectiveness of the WCA descriptors to make them more responsive, particularly for claimants with progressive and fluctuating conditions, and those with mental, cognitive and behavioural difficulties. It also recommended that DWP should reintroduce an assessment of health-related employment barriers into the redesigned ESA process.
In its response to the Committee in November 2014, the Coalition Government said that while it recognised that there was scope for improvements to the WCA and accompanying processes, in light of the reviews already taken and changes already agreed, it did not agree that the WCA was a, “flawed mechanism” for assessing a person’s functional capacity.
However, in a speech given on 24 August 2015, the then Secretary of State for Work and Pensions, Iain Duncan Smith, signalled possible future reforms to both ESA and the Work Capability Assessment, suggesting that the WCA should be reformed to focus, “on what a claimant can do and the support they'll need - and not just on what they can't do.”
Some commentators have suggested reforming the Work Capability Assessment to take account of how a person’s functional impairments affect their ability to work, given who they are. They argue that a broader “real world assessment”, taking into account factors such as skills and qualifications, experience, and age, is possible and would better reflect everyday realities than the existing WCA (see for example Ben Baumberg et al, Rethinking the Work Capability Assessment, Demos, March 2015). Ministers have however questioned whether such a test could be applied fairly.
On 29 September 2017 the current Work and Pensions Committee launched a new inquiry on how the assessment processes for both Employment Support Allowance and Personal Independence Payments are handled by Department for Work and Pensions contractors ATOS, Capita and Maximus, and how the application, assessment and appeals processes for these two benefits are working.
The Committee welcomed written submissions by 10 November 2017 on a series of questions including:
Assessors and assessments
- Do contractor assessors possess sufficient expertise to carry out assessments for people with a wide range of health conditions?
- Is Department of Work and Pensions quality control for contractors sufficient and effective?
- Should the options for reforming the Work Capability Assessment mooted in the Government’s Improving Lives green paper be taken forward?
- What examples of best practice in assessing eligibility for benefits are available internationally, and how transferrable are they to ESA and/or PIP?
Mandatory Reconsideration and appeal
- Why do claimants seek to overturn initial assessment outcomes for ESA and/or PIP?
- Why are levels of disputed decisions higher for PIP than for ESA?
- Is the Mandatory Reconsideration (MR) process working well for claimants of ESA and/or PIP?
- What accounts for the rate of overturned decisions at appeal for PIP and/or ESA?
- Are there lessons that could be learned from the ESA MR and appeal process for PIP and vice-versa?
- What changes could be made earlier in the process to ensure fewer claimants feel they need to appeal?
- Do prospective claimants currently understand the purpose of the assessment?
- How could claimants be helped to better understand the assessment process?
- Are some groups of claimants particularly likely to encounter problems with their assessments – and if so, how can this be addressed?
- Should the assessment processes for PIP and ESA be more closely integrated? How else might the processes be streamlined for claimants?
On 21 November the Committee said that the public response to its call for evidence had been “overwhelming”, with over 2,800 individual submissions to the web forum (the usual number being 50-100) and a further 450 pieces of written evidence. The written submissions can be viewed on the Committee’s web pages.
On 22 November the Committee held an evidence session at which they heard evidence from claimants and from representatives of frontline advisors and advocacy groups.
A further evidence session took place on 6 December at which the Committee heard evidence from representatives of the assessment providers, including Maximus.
An additional evidence session is scheduled for 11 December, which will involve representatives of disability charities.
Commons Debate packs CDP-2017-0254
Authors: Andrew Mackley; Steven Kennedy; Richard Keen