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  • Writer's picturePhilip J Connolly

Transforming Support and Creating Uncertainty and Inconsistency

In my most recent exchange of letters with the Prime Minister the Minister for Disabled People responded and welcomed the opportunity to reiterate the Government's determination to support disabled people. I therefore expect the Prime Minister to more than match our own determination to meet with him and for him to meet with us. Mr Sunak will I am sure wish to learn why the Government's offer of support is still open to question. Below we set out the uncertainties and inconsistencies raised by the recent DWP white paper. Since the WCA and PIP regulations were passed millions of people support their loved ones through the assessment process or have done so on the Government's watch. They will want the Prime Minister to find the time to meet with us.

For anyone reading the Government's White Paper on Health and Disability, the most striking proposal was the one to scrap the Work Capability Assessment (WCA), but so far any expected celebrations have been muted.

The White Paper proposes an extra Health Element within Universal Credit (UC) to replace the current Limited Capability for Work (LCW) and Limited Capability for Work Related Activity (LCWRA) elements. There would no longer be any need for a WCA assessment in UC, as the extra element will be paid to UC recipients who also get Personal Independence Payment (PIP). This removes duplication and needless reassessments. There would be exceptional protection for some people receiving cancer treatment or risks in pregnancy.

The consequences of the reform could be immense, and a relaxation of benefit reassessment requirements will please everyone with any experience of the current system (as will the reduction in work for assessment company Maximus ). However, the proposals as set out seem incomplete and ill thought through. They fail to take account of the differences between long term disability and short/medium term incapacity for work, and are narrowly focused on a simple fix to Universal Credit, without considering the consequences in other areas.

Many disabled people reliant on benefits already live in a constant state of anxiety and uncertainty about the WCA assessment and its consequences. A claimant who fails the WCA could face inappropriate work requirements and the risk of sanctions. They can be repeatedly called for reassessments and have a long wait for decisions, which may be incorrect and need to be challenged. Then there's the even longer wait for an appeal hearing, with an extended period on a reduced income. Currently almost two thirds of WCA appeals are eventually successful (62% for ESA and 55% for UC).

Scrapping the discredited WCA is of course welcome, but the White Paper is silent about a number of problems that this proposal throws up, and perhaps a better title would be Creating Uncertainty.

  • The WCA was never an effective method of assessing an individual's ability to engage in real world employment, but a decision about LCWRA would put a person in the support group and largely protect them from the threat of sanctions. Decisions about conditionality may in future be made by on a discretionary basis by work coaches and not subject to robust challenge and appeal.

  • How will so-called New Style, contributory Employment & Support Allowance (ESA) be assessed when the WCA is scrapped?

  • What will happen to those UC recipients who have been assessed as having LCW or LCWRA but who are not on PIP?

  • The WCA has the ability to depart from the strict formula and allow entitlement in exceptional circumstances where there would be a substantial risk to the claimant or another person if they were found not to pass the test. PIP has no such discretion. Will there still be an exceptional circumstances rules for cases where there is a substantial risk?

So these proposals are at a very early stage, and there are still many unanswered questions.

But there other problems with the proposals in the White Paper. Perhaps it should have been titled Ignoring Inconsistency?

It has long been the DWP's position that the assessments for PIP and for ESA are very different. The WCA assess fitness for work. PIP assess the impact of a person's disability on their ability to get about and to live independently. Incapacity and Disability are not necessarily the same thing.

There are some overlaps - both assessments use a benchmark of 50 metres for assessing walking difficulties, both consider the ability to get around outdoors and cross the road safely, but the same evidence can lead to different outcomes for each benefit.

For more about the different purposes of sickness and disability benefits, do read this blog from Professor Paul Spicker. It explains the issue much better than I ever could

People with long memories will remember debates about the design of Universal Credit, and the Government's refusal to include any equivalent of a Disability Premium in the new benefit, or allow any element of passporting so that entitlement to PIP could automatically bring entitlement to an extra element of UC. The Government insisted they were different benefits for different purposes. There had to be two separate assessments. Using PIP entitlement as a passport to work related support flies in the face of this, and seems to be based on administrative convenience more than any examination of the evidence.

The DWP has always held this position inconsistently. Benefit advisors will tell you that it is not uncommon to see a WCA examination report included by the DWP in their response to a PIP appeal, implying that the assessment will be of use in deciding entitlement to PIP. However, when a PIP appellant is in receipt of UC or ESA the appeal paperwork will routinely use this standard paragraph

"Although Mr X is entitled to Universal Credit (UC), this doesn't bring automatic entitlement to PIP, which is assessed separately and under different criteria. UC assesses fitness to work. This factor isn't relevant to the PIP qualifying criteria."

The importance of clear rules

Another worrying element of the White Paper is the section with the deceptively friendly title Personalising Support. This concerns how work coaches will decide what conditionality will apply to a person's UC claim. Under the WCA assessment people with LCW have to do work preparation only, and those with LCWRA have no work-related requirements. In plain English they do not have so many requirements put on their claim and so are at greatly reduced risk of inappropriate sanctions.

The White Paper says "In place of the WCA, we propose to introduce a new personalised health conditionality approach that will provide more personalised levels of conditionality and employment support, with the aim of helping people to reach their potential and live a more independent life."

It is worth quoting the next few paragraphs in full, not for any real information, but more for what it doesn't say

"We will use this opportunity to build greater levels of trust between DWP and the people who use our services, by reducing the assessment burden that people currently face. We want to introduce a more tailored approach, to allow work coaches to build a relationship with an individual and determine what, if any, work-related activities an individual can participate in. This also means that where work or work-related-activity is not possible or appropriate for someone, they will not be expected to participate in these activities to receive their benefit entitlement.

Our new approach will mean both voluntary and mandatory work-related requirements may be set for health and disability benefit claimants, where this is appropriate, with requirements added at a pace that is appropriate for the individual."

There is no mention of what criteria the work coach will apply to make their decision, nor of what training and guidance they will receive. Importantly there is also no mention of the decision making process and what procedures will apply to challenge a decision you disagree with. The rules for the WCA are set out in Regulations and decisions are appealable to an independent Appeal Tribunal. It would be a retrograde step if decisions about conditionality and potential sanctions in UC were to be made in such an opaque manner.


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