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BRIEFING PAPER

Number CBP 07182, 18 September 2015

The Work Capability Assessment for Employment and Support Allowance

By Elizabeth Parkin

Inside: 1. Overview of ESA and the

WCA 2. The assessment process 3. Reconsideration and appeals

process 4. Medical assessments 5. Terminology

Number CBP 07182, 18 September 2015 2

Contents Summary 3

1. Overview of ESA and the WCA 4 1.1 The financial structure of ESA 5 1.2 Budget announcement: aligning ESA rate with JSA 7

The Welfare Reform and Work Bill 7 Comment 7

1.3 Contributory ESA 9 1.4 Income-related ESA 9 1.5 Reassessment 9

2. The assessment process 12 2.1 Stages in the ESA assessment process 12 2.2 Methods of assessment 16

Audio recording of face-to-face assessments 18 2.3 Limited Capability for Work 18 2.4 Limited Capability for Work-Related Activity 20

3. Reconsideration and appeals process 22 3.1 Mandatory Reconsideration 22 3.2 Appeals 24 3.3 Reapplying for ESA 25

4. Medical assessments 26

5. Terminology 28

Cover page image copyright: UK Parliament/Mark Crick image

3 The Work Capability Assessment for Employment and Support Allowance

Summary The Work Capability Assessment (WCA) and Employment and Support Allowance (ESA) were introduced in October 2008. ESA provides financial support for people with a health condition or illness that prevents them from working. The WCA assesses a claimant’s capability for work.

The WCA was developed in consultation with medical and other experts alongside specialist disability groups. It looks at an individual’s physical and mental capabilities and concentrates on the functional effects of an individual’s condition rather than the condition itself. It looks at an individual’s ability to work, taking into account the modern workplace and developments in healthcare.

ESA claimants are assessed during the first 13 weeks of their claim (or longer if necessary) to determine whether they have a “limited capability for work”, in which case they are placed in the “Work Related Activity Group”. If claimants are also found to have “limited capability for work-related activity”, they are placed in the “Support Group”. ESA is paid at an assessment rate during this time. Claimants not placed in the Work Related Activity Group or the Support Group are deemed “fit for work”.

This note outlines the end to end Work Capability Assessment process. It looks at the methods of assessment and the criteria for decision-making based on an individual’s functional capability. It also examines recent changes to the assessment, including changes to the reconsideration and appeals process, and new regulations for repeat claims. The note also outlines the arrangements for the DWP medical services contract.

The note does not examine comments and criticisms of the WCA.

Number CBP 07182, 18 September 2015 4

1. Overview of ESA and the WCA The Work Capability Assessment (WCA) and Employment and Support Allowance (ESA) were introduced in October 2008. ESA provides financial support for people with a health condition or disability that prevents them from working. In August 2014, there were 2.2m people in receipt of ESA.1

ESA was initially introduced for new claims only in 2008, and then reassessment of existing Incapacity Benefit, Severe Disablement Allowance and Income Support (for claims on grounds of illness or incapacity) claimants began in 2010. For further information on the reassessment process, see Library note SN06855 on Incapacity benefits reassessments.

The DWP provides the following summary of the function and aims of the Work Capability Assessment:

• The assessment:

• was developed in consultation with medical and other experts alongside specialist disability groups

• looks at an individual’s physical and mental capabilities and concentrates on the functional effects of an individual’s condition rather than the condition itself

• looks at an individual’s ability to work, taking into account the modern workplace and developments in healthcare

• is based on evidence which shows that work can benefit individuals with health conditions and disabilities and may even help recovery2

ESA claimants are assessed during the first 13 weeks of their claim (or longer if necessary) to determine whether they have a “limited capability for work”, in which case they are placed in the “Work Related Activity Group”. If claimants are also found to have “limited capability for work-related activity” they are placed in the “Support Group”. ESA is paid at an “assessment rate” during this time. Claimants not placed in the Work Related Activity Group or the Support Group are deemed “fit for work”.

Support Group:

Claimants in the support group are identified as having the most severe functional impairment. Their conditions means they have limited capability for work and limited capability for work-related activity. They receive a higher rate of benefit and there is no conditionality on their benefit, i.e. they are not required to undertake work-related activities in order to remain eligible for the benefit. However, claimants in this group can elect to take part in employment support on a voluntary basis if they choose.

Work Related Activity Group (WRAG): 1 DWP, Tabulation Tool: Employment and Support Allowance, Payment Type time

series 2 Gov.uk, Welfare reform: Improving the Work Capability Assessment, 27 March 2015

5 The Work Capability Assessment for Employment and Support Allowance

People in this group have been identified as able to prepare themselves for employment with support. They are been identified by the DWP as having limited capability for work, but able to take part in work-related activity. The DWP considers that people in this group should be able to return to work in due course.3

For people in the WRAG group, access to the full rate of benefit may be conditional on participation in Work Focused Interviews and mandatory “work-related activity”, such as work experience, training programmes or participation in the Work Programme. Claimants are not however expected to apply for jobs or undergo medical treatment.4

Claimants are not required to take part in work-related activity if they:

• are a lone parent and have a child under the age of 3; or • receive Carer’s Allowance or a carer premium.5

Claimants placed in either the Support Group or WRAG will, where appropriate, receive a back-dated payment of the component to which they are entitled, payable from the fourteenth week of their claim.

Fit for Work

Those who are assessed as “fit for work” are not eligible for ESA, although they may challenge the decisions and, pending an appeal to the Tribunal, be paid at the assessment rate. However, a new regulation introduced in March 2015 provided that ESA payments pending appeal will not be made to claimants previously found fit for work who are found not to have limited capability for work on their repeat claim, unless their condition has got significantly worse or they have a new health condition.6

Claimants may be eligible to make a claim for Jobseeker’s Allowance (JSA) – see section 3.1. Claimants should be notified over the telephone and in writing about alternative benefits available.

1.1 The financial structure of ESA There are two types of ESA: contributory ESA, which is not means-tested, and income-related ESA, which is means tested.

The 2015/16 rates for ESA are below:7

3 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196 4 Disability Rights UK, Employment and support allowance overview [last accessed 9

April 2015 5 Disability Rights UK, Employment and support allowance overview [last accessed 9

April 2015] 6 Explanatory Memorandum to Employment and Support Allowance (Repeat

Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (SI 2015/437)

7 Gov.uk, Proposed benefit and pension rates 2015 to 2016

Number CBP 07182, 18 September 2015 6

Contributory ESA

Assessment phase

Under 25 £57.90

25 or over £73.10

Main phase

Basic Allowance £73.10

Work-related activity component £29.05

Support component £36.20

Income-related ESA

Personal allowances Assessment phase

Main phase

Single Under 25 £57.90 £73.10

25 or over £73.10 £73.10

Lone parent Under 18 £57.90 £73.10

18 or over £73.10 £73.10

Couple Both under 18

£57.90 £114.85

Both 18 or over

£114.85 £114.85

Components

Work-related activity - £29.05

Support - £36.20

Premiums

Carer £34.60 £34.60

Severe disability £61.85 £61.85

7 The Work Capability Assessment for Employment and Support Allowance

Enhanced disability £15.75 £15.75

1.2 Budget announcement: aligning ESA rate with JSA

In his Budget speech the Chancellor referred to the “perverse incentive” whereby ESA claimants in the WRAG received more money than claimants of Jobseeker’s Allowance “but get nothing like the help to find suitable employment,” noting that while the JSA caseload had fallen by 700,000 since 2010, over the same period the numbers on incapacity benefits including ESA had fallen by just 90,000, despite 61% of claimants in the WRAG saying they wanted to work.8 The Government proposed to align ESA rates for those in the WRAG with JSA (currently £73.10 for people aged 25 and over) for new claims from April 2017, while providing “new funding for additional support to help claimants return to work.”9 This would “ensure the right incentives and support are in place for those closer to the labour market to help them make this transition when they are ready.”10 ESA claimants in the Support Group are unaffected. Savings of £640 million a year are expected by 2020-21.

The Welfare Reform and Work Bill Clause 13 of the Welfare Reform and Work Bill 2015 amends the Welfare Reform Act 2007 to remove provision for the payment of the ESA Work-Related Activity Component, in both contributory and income-related ESA. Income-related ESA is to be replaced by Universal Credit. Clause 14 abolishes the corresponding Limited Capability for Work element in UC.

Regulations will include provision for claimants already in receipt of the ESA WRAC (or the UC Limited Capability for Work element) at April 2017 to continue to receive it. There will also be protection for Incapacity Benefit, Severe Disability Allowance and Income Support claimants who at that point have not yet had their awards converted to ESA, and who are subsequently placed in the WRAG.

The Explanatory notes do not say whether transitional protection will also extend to ESA claimants in the Support Group who move to the Work-Related Activity Group as a result of a reassessment after April 2017.

Comment Responding to the announcement in the Budget, Rob Holland, Parliamentary Lead at Royal Mencap Society and Co-Chair of the Disability Benefits Consortium, said they were “deeply concerned” about the proposal to abolish the Work-Related Activity Component for new claims. He added:

8 HC Deb 8 July 2015 c333 9 Ibid. 10 Summer Budget 2015, HC 264 2015-16, para 41

Number CBP 07182, 18 September 2015 8

Cutting this essential payment to the bare minimum will prevent people seeking work effectively and fly in the face of the Government’s aim to halve the disability employment gap.

Many disabled people have been put in this group because they have long term health conditions which prevent them from working for a certain amount of time. Those who are in this group will often only receive it for a limited time only.

Putting pressure on the incomes of disabled people at a time when they need the extra money because they’re too unwell to work can make it less likely they would be fit enough to work in the future.

The cut will hit households with a disabled person hard – a third of whom are living below the poverty line. Furthermore official Government figures show that the number of disabled people living in poverty has increased by 300,000 over the last year.

The cut must also be seen in the context of other cuts and freezes to support for disabled people, their families and carers such as housing benefit, tax credits and social care.11

Paul Farmer, Chief Executive of Mind, said they were “extremely disappointed” at the ESA announcement, which would “make people’s lives even more difficult and will do nothing to help them return to work.” He added:

“People being supported by ESA receive a higher rate than those on JSA because they face additional barriers as a result of their illness or disability, and typically take longer to move into work. Almost 60 per cent of people on JSA move off the benefit within 6 months, while almost 60 per cent of people in the WRAG need this support for at least two years. It is unrealistic to expect people to survive on £73 a week for this length of time. We’re concerned that the impact of these changes will be felt by our overstretched NHS services, as these cuts hit individual’s mental health as well as their pockets.”

“It is insulting and misguided to imply that ill and disabled people on ESA will be more likely to move into work if their benefits are cut. The vast majority of people with mental health problems want to work but face significant barriers as a result of the impact of their condition and the stigma they often face from employers."12

The Institute for Fiscal Studies comments that abolishing the addition for ESA WRAG claimants strengthens the incentive for claimants to try to get into the ESA Support Group,13 a point also made by Ben Baumberg of the University of Kent, who argues that it could thereby discourage claimants from risking work. He also states that removal of the addition could lead to an increase in the proportion of claimants placed in the Support Group on the grounds that being put in the WRAG would be a risk to their health.14

11 DBC responds to the budget, Disability Benefits Consortium press release, 9 July

2015 12 Budget benefit cut ‘insulting and misguided’, Mind press release, 8 July 2015 13 Andrew Hood, Benefit changes and distributional analysis, IFS presentation, 9 July

2015 14 Ben Baumberg, Why the Budget’s cut to ESA may backfire, Rethinking Incapacity

blog, 8 July 2015

9 The Work Capability Assessment for Employment and Support Allowance

The abolition of the Limited Capability for Work element in Universal Credit also means that, for adults, only those in the Support Group will receive additional support for disability with their UC award.15

1.3 Contributory ESA Claimants are eligible for contributory-ESA if, among other criteria, they have paid sufficient National Insurance contributions.

As a result of provisions in the Welfare Reform Act 2012, receipt of contributory ESA for claimants in the Work-Related Activity Group is now limited to 365 days. Those still on benefit at that point may then claim income-related (i.e. means-tested) ESA, but they may not be entitled to any benefit if they or their partner have other income, or capital above a certain level. The time limit will affect those “migrated” to ESA from Incapacity Benefit, in addition to those claiming ESA. Contributory ESA is not time-limited for claimants in the Support Group.

For further information, see the Library note on Time limiting of contributory Employment and Support Allowance.

1.4 Income-related ESA Entitlement to income-related ESA is means-tested, meaning it depends on the household’s income and/or capital (savings and other assets).

Claimants do not have to have paid National Insurance contributions to be eligible for income-related ESA. An individual may qualify for income-related ESA even if they do not qualify for contributory ESA.

Where appropriate, an individual may be able to get their contributory ESA supplemented with income-related ESA. Income-related ESA is not subject to a time-limit, provided that claimants still meet the eligibility criteria.

Income-related ESA is one of the benefits that will be replaced by Universal Credit, but the precise timetable for the roll-out of Universal Credit is uncertain.

1.5 Reassessment Claimants in both the Support Group and Work Related Activity Group are periodically reassessed to determine whether they still remain eligible for ESA, and whether their functional ability has improved or worsened since their last assessment. Some claimants may not require a face-to-face assessment, and may be assessed on the basis of their ESA50 form.

DWP decision makers decide when claimants will be called for reassessment, the frequency of which depends largely on the prognosis given by the health professional at the previous assessment. However,

15 UC claimants in the WRAG may still however benefit from the higher work

allowance for those with a “limited capability for work.” See Commons Briefing papers SN06548, Draft Universal Credit Regulations 2013, section 6, for information on support for disabled people in UC

Number CBP 07182, 18 September 2015 10

reassessment can take place sooner if the DWP believes there has been a significant change in the claimant’s health condition or disability.16

DWP’s Technical guide to the Work Capability Assessment (ESA214, January 2013) states:

Future Work Capability Assessments

The Work Capability Assessment will continue to be applied at regular intervals during the life of an award to ensure the conditions for entitlement are maintained.

The timing of further assessments is determined by the Jobcentre Plus decision maker. To assist the decision maker, the approved healthcare professional includes advice on the assessment report about when it is likely the claimant will be able to return to work. However, the assessment can be applied sooner if the decision maker considers there has been a significant change in the claimant’s health condition or disability.

In the Work and Pensions Committee’s report on Employment and Support Allowance and Work Capability Assessments (July 2014), the Committee considered the rules on the frequency of reassessments. The Committee found that reassessments were occurring too frequently, which is an issue that has been raised repeatedly by claimants, representative groups and by the independents reviews. The Committee stated that “it is disappointing that so little progress has been made” and recommended that the DWP implements the recommendations of the independent reviews on the frequency of reassessments:

29. The issue of the timing and frequency of reassessments has been raised repeatedly by claimants, representative groups and by the independent reviewers.[45] It is disappointing that so little progress has been made. Dr Litchfield recommended that DWP consider a new reassessment period of five years for claimants in the Support Group "for people who have very severe incapacity resulting from brain disorders that are degenerative or which will not realistically improve." DWP's acceptance of this very limited specific recommendation was qualified by reference to it being "subject to the outcome of further scoping work".

30. Professor Harrington believed that the frequency of reassessments was "illogical" and that the system did not take sufficient account of individual conditions. He believed that, with people with conditions such as Parkinson's, "you might as well leave it for quite a long period of time" before they are reassessed because "unfortunately, the chances are that the person will have deteriorated in that length of time". He acknowledged that the WCA was not a "diagnosis-based assessment", but argued that "for certain diagnoses, such as Motor Neurone Disease, you know what the outcome is going to be, so the clinician has to take that into account, even though they do not use diagnosis alone as the basis for the assessment". The Minister told us that the frequency of reassessments is "something else we are looking at at the moment."

31. In our 2011 report, we also pointed out that a number of claimants were being reassessed shortly after a successful appeal outcome. Dr Litchfield recommended that DWP consider

16 DWP, Employment and Support Allowance: the Work Capability Assessment,

detailed guide, 1 January 2013

11 The Work Capability Assessment for Employment and Support Allowance

introducing a minimum period between a successful appeal and being called for reassessment. The Government agreed to consider the appropriate minimum period.

32. We acknowledge that reassessments are a necessary feature of the ESA system, to ensure that claimants remain in the correct benefit group with the right level of conditionality placed on them. However, reassessments are occurring too frequently, particularly for claimants with progressive conditions and ones which are unlikely to change. They also often take place too soon after successful appeals. Unnecessary reassessments are distressing for the claimant and a waste of public money. We recommend that DWP implements the recommendations of the independent reviewers on reassessment intervals without further delay, and that it looks again at whether its current reassessment criteria are in the best interests of claimants and are a good use of public funds. A speedy decision on this would assist the new contractor to plan its work.17

In October 2014, the DWP issued new guidance about reassessments following a successful appeal. The guidance states that the DWP decision-maker should “apply the recommendation of the First-tier Tribunal as to when the next WCA should take place, from the date of the original decision unless the First-tier Tribunal specifies otherwise”. It also provides that there should be a minimum of 8 months between a successful appeal hearing and a subsequent WCA unless the First-tier Tribunal has recommended a longer review period. These changes were in line with the recommendations of Dr Litchfield’s year four independent review of the WCA.18

17 Work and Pensions Committee, Employment and Support Allowance and Work

Capability Assessments, 16 July 2014, HC 302 2014-15, paras 29-32 18 DWP, Memo DMG 27/14: SECOND OR SUBSEQUENT REFERRALS FOR THE WCA –

ESA, October 2014

Number CBP 07182, 18 September 2015 12

2. The assessment process

2.1 Stages in the ESA assessment process The WCA assessment process is composed of a series of stages, some of which must be completed within strict deadlines. In brief, once the DWP receives an individual’s claim, an ESA50 questionnaire is issued which must be completed and returned by the claimant within 28 days. The ESA50 is considered by a healthcare professional employed by the DWP Medical Services contractor, to assess whether ESA can be awarded without the claimant having to attend a face-to-face assessment. If a face-to-face assessment is required, the healthcare professional assesses the claimant’s ability to perform certain functions against set criteria. The claimant’s file is then sent to the DWP for a decision-maker to decide whether they are entitled to ESA. If a claimant wishes to dispute an ESA decision, they must contact the DWP to ask for Mandatory Reconsideration. If the claimant disputes the outcome of Mandatory Reconsideration, they may subsequently lodge an appeal with HM Courts and Tribunal Service (HMCTS).

The diagram overleaf sets out the ESA new claims claimant journey19:

19 DWP, Employment and Support Allowance: outcomes of Work Capability

Assessments, Great Britain, Background Information, 27th March 2014

13 The Work Capability Assessment for Employment and Support Allowance

The DWP, in its written evidence to the Work and Pensions Select Committee 2014 inquiry on ESA and the WCA, provided an outline of the stages of the assessment process.

[References below to Atos show now read MAXIMUS, following a change in contract – see section 4]

Stages in the ESA assessment process20

Stage Activity Comments

DWP receives claim

Claimant contacts DWP to claim ESA

The majority of claims are taken over the phone. If claimant meets all the conditions of entitlement, an award is made.

Reasonable adjustments can be made i.e paper forms.

Basic rate of ESA (equivalent to JSA) is put in payment

Claimant enters the assessment phase and is required to provide up to

It is during the assessment phase the WCA takes

20 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196

Number CBP 07182, 18 September 2015 14

date medical evidence – known as “Statement of fitness for work” in order to continue receiving the Basic Rate of ESA. Basic Rate ESA is payable until the outcome of the WCA is known, which was expected to be around 13 weeks.

place to determine whether the claimant actually has LCW or LCWRA the relevant rate of benefit if then awarded. .

Claimant receives a letter

The letter informs the claimant that they will receive a questionnaire and encourages them to provide any additional medical evidence

This process was recommended by Professor Harrington

Health Assessment Provider reports their advice to DWP

ESA50 Limited Capability for Work questionnaire issued by Atos Healthcare

The claimant should receive it within 28 days of making their initial claim and they then have another 28 days in which to return this form to Atos. Claimants are asked to provide further information about their disabilities and health conditions, with particular reference to how these affect their ability to function

Form ESA 50A is issued to those who are terminally ill. And are fast tracked to the Support Group.

ESA50 returned to Atos

HCP will consider if there is enough evidence to meet Support Group (LCWRA) criteria and if so they will make a recommendation to the Decision Maker without requiring the claimant to attend for a face to face assessment [referred to as scrutiny]. In re-referrals or IBR [Incapacity Benefit Reassessment] the HCP [healthcare professional] scrutinises to see if they can accept WRAG [work-related activity group] and SG [support group] without a face to face

No face to face assessment is required for those placed in the SG at this stage. The WCA activities and descriptors are shown at Annex 1

15 The Work Capability Assessment for Employment and Support Allowance

assessment.

Atos invites claimant to attend a face to face assessment

Majority of claimants attend a face to face assessment the first time they claim

Assessment conducted by HCP

Either at face to face assessment or the scrutiny process the HCP assesses the claimant against the prescribed criteria and provides specialist medical advice on how the condition affects the claimant’s ability to perform certain functions.

Atos Healthcare reports their advice to DWP

Decision Making – DWP

A DWP Decision Maker will review the file received from Atos and decide whether the claimant is entitled to ESA.

HCPs do not decide benefit entitlement, they merely provide advice

DM phones the claimant if they are minded to find the claimant “fit for work”

This differs for those who are IB reassessed, the call is made to all claimants

After considering all of the evidence the DM will contact the claimant to provide another opportunity to discuss whether there is any additional medical evidence that has not been considered. At least two attempts are made by the DM to contact the claimant And advice about alternative benefits is given

This part of the journey has been improved following Professor Harrington’s independent review of the WCA.

Those entitled to ESA are sent a letter confirming their entitlement

Those found to have limited capability for work will be placed in the WRAG and will receive an additional payment (work related activity compenent, £28.45 p/w) payable from Week 14 of their claim Those found to have limited capability for work related activity will receive the higher rate of benefit (Support component,

Where the WCA decision takes place after week 14 – arrears of benefit are backdated. For those who are entitled to ESA different levels of conditionality requirements are in place. This is decribed in below detail under Labour Market

Number CBP 07182, 18 September 2015 16

£34.80 p/w) payable from Week 14 of their claim

requirements and support for those entitled to ESA.

Where appropriate the claimant receives a disallowance notification

This disallowance notification includes a summary of the decision maker’s reasoning for the decision. It also advises the claimant on what to do if they think the decision is incorrect. The next steps depend on the choice made by the claimant

From 28 November 2013, the Decision Maker completes a WCA outcome template for those who are not entitled to ESA and emails this information to the local Jobcentre to help the discussion between the claimant and the Personal Adviser.

Appeal (in certain cases): process from 28 October 2013

Mandatory reconsideration of decisions prior to appeal

Following receipt of a decision which someone disputes, they will have to request that DWP conducts a ‘mandatory reconsideration’ before an appeal lodged with HMCTS will be accepted.

ESA is not be payable during mandatory reconsideration. However claimants are if eligible able to claim alternative benefits, such as JSA

Direct lodgement of appeal with HMCTS

People wishing to appeal a mandatory reconsideration with which they disagree will be required to submit their appeal directly to HMCTS

ESA is payable re-warded and payable at the Basic Rate Mandatory Reconsideration and appeals is discussed in more detail in the next few paragraphs

2.2 Methods of assessment ESA can either be awarded on the basis of information provided on paper alone, including the ESA50 questionnaire and information in the claimant’s file, or after a face-to-face assessment. The majority of claimants will be required to attend a face-to-face assessment.

The first stage assessment occurs when a MAXIMUS healthcare professional reviews a claimant’s ESA50 questionnaire and any additional evidence provided. The ESA50 asks claimants to provide details about their disabilities and health conditions, with particular reference to how these impact on their ability to function. Claimants are encouraged to send any medical report that they have with the questionnaire and healthcare professionals can also seek further

17 The Work Capability Assessment for Employment and Support Allowance

evidence from the claimant’s GP or other relevant health professional named on the ESA50.

For claimants who are applying for ESA only on the grounds that they are either awaiting, receiving or recovering from chemotherapy or radiotherapy cancer treatment, there are ‘light touch’ procedures in place and the whole questionnaire does not need to be completed.21

The healthcare professional assesses whether they can advise the decision maker to award ESA without having to make further enquiries, or if further medical evidence should be obtained. There are some situations in which claimants are automatically entitled treated as having limited capability for work. This is sometimes called being “exempt”. This includes, among other exemptions, claimants who are terminally ill and their death can reasonably be expected within six months, who are receiving chemotherapy or radiotherapy treatment for cancer, recovering from such treatment or are likely to receive such treatment within six months, and who are pregnant and there is a serious risk to their and the baby’s health if they do not refrain from work.22

The healthcare professional assesses whether the claimant should attend a face-to-face assessment, if “Limited Capability for Work” or “Limited Capability for Work-Related Activity” cannot be awarded on the basis of the information already provided. Claimants cannot be assessed as being fit for work without attending a face-to-face assessment.23

As with other benefits, decisions on limited capability for work, and limited capability for work-related activity, are made not by medical practitioners but by DWP “decision-makers”, who should consider all the available evidence. Healthcare professionals used a computer system to help structure discussions at the face to face assessment, to build a picture of the claimant’s functional capabilities, and to generate the final assessment report (the ESA85) containing the findings, advice and recommendations for the DWP Decision Maker.24 The Healthcare professionals is able to make recommendations based on the evidence available to them, but it is ultimately for the DWP decision-makers to make decisions about eligibility for benefits.

The DWP has introduced the “Decision Assurance Call” to discuss the proposed decision with a claimant before the final decision is made.25 The call gives claimants the opportunity to provide further evidence, before the final decision is made.

21 DWP, Employment and Support Allowance: the Work Capability Assessment,

detailed guide, 1 January 2013, page 13 22 For the full list of exemptions, see DWP, Employment and Support Allowance: the

Work Capability Assessment, detailed guide, 1 January 2013, page 11 23 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196 24 For further information on how assessments are conducted, see p8 of the Citizens

Advice report, Right first time? An indicative study of the accuracy of ESA work capability assessment reports, January 2012

25 Work and Pensions Select Committee, Employment and Support Allowance and Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196

Number CBP 07182, 18 September 2015 18

Audio recording of face-to-face assessments DWP conducted a pilot of audio recording face-to-face assessments, in line with a recommendation make by Professor Harrington in the first independent review of the WCA to carry out a pilot to “determine whether such an approach is helpful for claimants and improves the quality of assessments.”26

Despite low numbers of requests for audio-recording, DWP makes an audio recording service available to those claimants who request it in advance of the assessment. Requests should be accommodated where possible. Claimants can ask for an audio-recording of their assessment, either by using the service offered by DWP or by using their own recording equipment so long as they comply with certain conditions.

However, claimants do not have a legal right to an audio recorded assessment and DWP does not have a legal obligation to provide an audio recording service or equipment.27

2.3 Limited Capability for Work To be eligible for Employment and Support Allowance, a claimant must, among other things, have a “limited capability for work”. This means that the person’s capability for work is limited by their physical or mental condition, and the limitation is such that it is not reasonable to require them to work.

The questionnaire asks a number of questions about physical activities, and about “mental, cognitive and intellectual” functions.

The activities relevant to the physical assessment:

• Mobilising unaided • Standing and sitting • Reaching • Picking up and moving or transferring by the use of the upper

body and arms • Manual dexterity • Making self understood • Understanding communication • Navigation and maintaining safety • Continence • Consciousness during waking moments

The activities relevant to the mental, cognitive and intellectual function assessment:

• Learning tasks • Awareness of everyday hazards • Initiating and completing personal action • Coping with change • Getting about

26 Gov.uk, Employment and Support Allowance - Work Capability Assessment: Audio

Recording of face-to-face assessments [last accessed 9 April 2015] 27 Gov.uk, Employment and Support Allowance - Work Capability Assessment: Audio

Recording of face-to-face assessments [last accessed 7 April 2015]

19 The Work Capability Assessment for Employment and Support Allowance

• Coping with social engagement • Appropriateness of behaviour with other people28

For each activity, there is a list of “descriptors” which describe the extent to which the person can undertake the activity. For example, under “Reaching” there are four descriptors:

Descriptor Points

(a) Cannot raise either arm as if to put something in the top pocket of a coat or jacket.

15

(b) Cannot raise either arm to top of head as if to put on a hat.

9

(c) Cannot raise either arm above head height as if to reach for something.

6

(d) None of the above apply. 0

The descriptors have associated scores, ranging from 0 to 15. A person with a top score of 15 in any one activity automatically passes the test. People scoring less than 15 in any activity can add up the score they have for other activities (physical, or mental, cognitive and intellectual) to reach the threshold of 15 points needed to pass the test. If claimants cannot carry out the activity reliably, repeated and safely, they are awarded the appropriate points.

The list of activities was revised substantially from 28 March 2011, as a result of the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011.29

Those who do not score sufficient points for “limited capability for work” can still pass the test in certain “exceptional circumstances”. This includes claimants who:

• Give medical evidence that they have a severe uncontrolled or uncontrollable life-threatening disease, and there is reasonable cause for the disease not to be controlled by a recognisable therapeutic procedure;

• Have a condition where would be a serious risk to the mental or physical health of any person were they found not to have limited capability for work30

28 DWP, Employment and Support Allowance: the Work Capability Assessment,

detailed guide, 1 January 2013, page 9 29 SI 2011/228 30 DWP, Employment and Support Allowance: the Work Capability Assessment,

detailed guide, 1 January 2013, page 11

Number CBP 07182, 18 September 2015 20

2.4 Limited Capability for Work-Related Activity

The second part of the WCA determines whether the claimant can be placed in the ESA “Support Group” because the effect of their condition is so severe that it would be unreasonable to expect them to engage in work-related activity.

The circumstances where a person can be automatically treated as having “limited capability for work related activity” are limited, for example someone who is suffering from a terminal illness and death can reasonably be expected within six months, or they suffer from a disablement and there would be a substantial risk to the mental or physical health of any person if they were found not to have limited capability for work-related activity. From January 2013, automatic eligibility for the Support Group is also given to claimants who are awaiting, receiving or recovering from cancer treatment by way of radiotherapy and/or chemotherapy.

There are a further sixteen activities which are assessed to determine if a claimant who has limited capability for work also has limited capability for work-related activity.The test involves consideration of a wide range of physical and mental/cognitive functions. If a person satisfies at least one of the “descriptors”, they are placed in the ESA Support Group. If they satisfy none, they are placed in the Work Related Activity Group.

The descriptors are grouped under 16 headings:

• Mobilising unaided • Transferring from one seated position to another • Reaching • Picking up and moving things • Manual dexterity • Making yourself understood • Understanding communication • Continence • Learning tasks • Awareness of hazard • Initiating and completing personal action • Coping with change • Coping with social engagement • Appropriateness of behaviour with other people • Conveying food or drink to the mouth. • Chewing or swallowing food or drink For example, the following descriptor applies to the “Transferring from one seated position to another” activity:

Transferring from one seated position to another.

Cannot move between one seated position and another seated position located next to one another without receiving physical assistance from another person.

21 The Work Capability Assessment for Employment and Support Allowance

The full list of activities and descriptors for both limited capability for work and limited capability for work-related activity are set out in DWP guide Employment and Support Allowance: the Work Capability Assessment (January 2013).

Number CBP 07182, 18 September 2015 22

3. Reconsideration and appeals process

From the 28 October 2013, the process for ESA claimants who wish to dispute a decision has changed.

3.1 Mandatory Reconsideration Claimants must now, as a first step, ask the Department for Work and Pensions to reconsider and revise a decision. This stage is called “Mandatory Reconsideration”. A claimant cannot now lodge an appeal with HM Courts and Tribunals Service (HMCTS) until the Mandatory Reconsideration process has been undertaken and completed.

There are timeframes for requesting a Mandatory Reconsideration. A claimant has one month in which to request Mandatory Reconsideration of an ESA decision, and then an additional one month to supply supplementary evidence, if appropriate. ESA is not payable during this period. However, if an appeal is lodged subsequently then benefit is backdated for this period, as long as a claimant has provided a Statement of Fitness for work from their doctor which confirms that they remain unable to work.31

During Mandatory Reconsideration, a different DWP decision-maker will consider the existing information and ask for additional evidence if necessary. The decision-maker can change the original decision if there are reasons and evidence for doing so.32

There is currently no statutory time-limit for DWP to complete the Mandatory Reconsideration process. In its evidence to the Work and Pension Committee, the DWP said:

Due to the complexities of some of the decisions there is no statutory time limit for completing the MR process. The Department is monitoring this however, and will consider making proposals for an internal indicator for decision-makers administering reconsiderations in due course in order to monitor performance.33

In March 2015, Parliamentary under Secretary of State for Work and Pensions, Lord Freud, said that the Government intends to introduce a clearance time target for Mandatory Reconsideration for ESA from April 2016 and will publish information on clearance times:

Baroness King of Bow: To ask Her Majesty’s Government what is the average clearance time for Personal Independence Payment mandatory reconsiderations.

31 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196 32 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196 33 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196

23 The Work Capability Assessment for Employment and Support Allowance

Lord Freud: The Department for Work and Pensions does not have a clearance time target nor does it have information about average clearance times.

It plans to introduce a clearance time target for all benefits, starting with ESA from April 2016.

It plans to incorporate information on mandatory reconsideration clearance times into the relevant existing regular statistical publications. However, before decisions are made DWP statisticians need to make sure that the data is accurate and fit for purpose. When a decision has been made and as each publication is ready, we will pre-announce the improvements in accordance with the UKSA [UK Statistics Authority] release protocols.34

There are different options as regards help with living costs for a person challenging a fit for work decision.

A claim for Jobseeker’s Allowance (JSA) may be made pending the ESA reconsideration decision, and this should not jeopardise the reconsideration or any subsequent appeal. To get JSA, a person has to sign on as available and seeking work, and must be prepared to accept any reasonable offer of work, even though the reconsideration/appeal is pending. A JSA claimant with a health condition or disability may however be allowed to restrict their availability for work if it is reasonable in light of their condition.

If the person has claimed JSA and the DWP upholds its original ESA decision on reconsideration, the person can claim ESA again at the assessment rate if they subsequently go on to appeal. However, they will need to ask to claim ESA again (rather than JSA) and to provide “fit notes” from their GP until the appeal decision is made.

If the person doesn’t claim another benefit during the mandatory reconsideration period and the DWP upholds its original decision, ESA will be reinstated (at the assessment rate) if the person subsequently goes on to appeal. Again, the person will have to provide “fit notes.” If the person can provide fit notes covering the mandatory reconsideration period, they can get backdated ESA for this period too.

It is up to the individual challenging the ESA decision to decide whether to claim JSA pending the mandatory reconsideration (MR) or to wait until the appeal stage to receive ESA again. An article in the February 2014 edition of the Child Poverty Action Group’s Welfare Rights Bulletin, “Benefit during an employment and support allowance dispute”, comments:

Whether it is better to claim JSA during a MR of an ESA decision will depend on the individual circumstances of claimants, and in particular their ability to financially survive for a limited (but indeterminate) period without ESA and JSA. If a claimant opts to claim JSA s/he needs to be aware of the rules about making a claim and satisfying the labour market conditions. If s/h does not claim JSA, the above points about facilitating a speedy MR should be borne in mind. In either case, it will be important for claimants to proactively ensure

34 PQ HL5873 [on Personal Independence Payment], 26 March 2015

Number CBP 07182, 18 September 2015 24

that their entitlement to HB [Housing Benefit] and CTR [Council Tax reduction] is safeguarded and that ESA is restored (including any arrears) once the MR is completed.35

Claimants who are placed in the Work-Related Activity Group, and who ask for reconsideration on the basis they should be in the Support Group are paid ESA with the WRAG component during this time.

3.2 Appeals If a claimant wishes to dispute a Mandatory Reconsideration decision, they can exercise their right to appeal to an independent tribunal. Appeals must be lodged directly to HMCTS within one month of the date of the Mandatory Reconsideration decision letter.

When HMCTS notifies DWP that an appeal has been lodged, the DWP will reinstate payment of the ESA assessment rate, subject to receiving fit notes. A new regulation introduced in March 2015 provided that ESA payments pending appeal will not be made to claimants previously found fit for work who are found not to have limited capability for work on their repeat claim, unless they have a new condition or their existing condition has significantly worsened since the previous decision.36

During the appeal process, DWP can at any time revise its decision under appeal. If the decision-maker decides to revise the decision in the claimant's favour, the appeal will come to an end. DWP also has a right to object to an appeal, such as in circumstances where it does not have enough information to identify the decision, give grounds for appeal, where the Department considers the appeal to be unreasonably late, to have no likelihood of succeeding, or is beyond the jurisdiction of the Tribunal.37

HMCTS is currently introducing “summary reasons” for all Tribunal decisions, to ensure feedback is given to DWP to inform and improve the accuracy of their decision-making process:

The Department is using the feedback to broaden its understanding as to why its decisions are upheld or overturned, and to identify areas where the approach to decision-making can be strengthened as part its continuous improvement work.38

Claimants who are unhappy with a First-tier Tribunal’s decision can appeal to the Upper Tribunal, but only if the First-tier Tribunal made an error of law. The fact that a person disagrees with a Tribunal’s decision is not sufficient grounds in itself for an appeal to be heard by the Upper Tribunal. Those dissatisfied with a decision of the Upper Tribunal may be able to appeal further to the Court of Appeal (or Court of Session in Scotland). 35 David Simmons, “Benefit during an employment and support allowance dispute”,

Welfare Rights Bulletin, 233, February 2014, page 5 36 Explanatory Memorandum to Employment and Support Allowance (Repeat

Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (SI 2015/437)

37 Work and Pensions Select Committee, Employment and Support Allowance and Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196

38 Work and Pensions Select Committee, Employment and Support Allowance and Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, Ev 17 WCA0196

25 The Work Capability Assessment for Employment and Support Allowance

3.3 Reapplying for ESA Where a person has been found fit for work, it is possible for them to make a fresh claim for ESA and be paid ESA at the “assessment rate” pending another WCA provided they can submit fit notes from their doctor and either –

• They have a different condition from before; or • Their condition has significantly worsened since the previous

decision.

It also used to be possible to submit a fresh claim for ESA – and be paid ESA again at the assessment rate pending a WCA – even if the person’s condition had not changed, provided it was more than six months since the previous decision.

However, from 30 March 2015 claimant’s whose condition has not changed making a fresh claim for ESA following a fit for work decision will no longer be treated as having a limited capability for work (and cannot therefore be paid ESA at the assessment rate) pending a WCA, regardless of the period of time which has elapsed since the previous decision. The new rules will not however apply to people whose ESA stopped as a result of them failing to return the ESA50 questionnaire or failing to attend a WCA, who will still be able to submit a fresh claim for the same condition and be paid at the assessment rate pending the full WCA, provided it is at least six months from the original decision.39

The Explanatory Memorandum to the Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 stated:

Making these changes will end an unintended consequence where claimants can make repeated claims to ESA despite no significant deterioration in their health condition to ensure these claimants get the appropriate help and support to return to work through claiming Jobseeker’s Allowance (JSA).40

39 See DWP DMG memo 10/15: Repeat assessments and pending appeal awards 40 Explanatory Memorandum to Employment and Support Allowance (Repeat

Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (SI /2015/437)

Number CBP 07182, 18 September 2015 26

4. Medical assessments Atos Healthcare was appointed the main provider for delivering DWP medical assessment services in 2005 and held the contract until February 2015. MAXIMUS Health and Human Services Ltd took on responsibility for delivering health assessments, including the WCA, from 1 March 2015.

It was sometimes suggested that Atos “Healthcare Professionals” (HCPs) received additional bonuses or incentive payments for recommending that claimants were declared “fit for work”. The report by the Work and Pensions Committee on The role of incapacity benefit reassessment in helping claimants into employment published in July 2011 reported that the DWP disputed these allegations:

DWP has made clear that this is not the case: "the result of the assessment has no bearing on Atos Healthcare targets or remuneration"; and that the Medical Services Agreement "does not include any provisions either from the Department or from Atos Healthcare to incentivise health care professionals to find claimants undergoing the WCA fit for work".

However, the Committee’s 2014 report on ESA and the WCA described that a witness (who is a disability rights campaigner) explained how assessors felt under pressure to produce assessment results in line with expected norms:

even though targets do not technically exist, “statistical norms” arising from regional and national comparisons of assessment outcomes produced by individual assessors may have the effect of giving assessors the impression that they are required to produce outcomes that meet an expected pattern. Assessors whose outcomes lie outside the norms may become subject to 100% audit of their assessments.41

The Committee put these concerns to Atos, who “acknowledged that this monitoring system is in place but confirmed that they have ‘no targets whatsoever’”.42

In July 2013, DWP itself expressed concerns about Atos’ performance and standards. It stated that there had been “a reduction in the quality of written reports which are produced by Atos following assessments”, and that it would “apply all appropriate contractual remedies to ensure quality and value”.43 There was also a large backlog of assessments under Atos, which the Work and Pensions Committee reported on:

DWP told us that there were 700,000 cases referred to Atos which were awaiting WCAs being completed: 390,000 were new ESA claimants; 230,000 were existing ESA claimants awaiting reassessment; and 80,000 were Incapacity Benefit claimants

41 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, para 69 42 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, para 70 43 HL Deb 22 July cWS151-52

27 The Work Capability Assessment for Employment and Support Allowance

awaiting reassessment for ESA. The IB migration was due to be completed by April 2014 but this target had been missed.44

In March 2014, the Government announced that after negotiations with Atos, it had reached a mutual agreement for Atos to exit the contract to deliver health-related assessments before the contract was due to end in August 2015.

MAXIMUS was awarded the contract to deliver health-related assessments for a period of three years, with the option to extend twice by a further year. Their service commenced on 1 March 2015. MAXIMUS was already a main Work programme provider and was recently awarded a contract to run the DWP’s new Fit for Work service.45

The Government has stated that the awarding of a new contract is part of a “concerted drive to ensure that people who need an assessment get the best possible service”. As part of this, MAXIMUS will employ a significant number of additional healthcare professionals to undertake assessments and move towards clearing the backlog. MAXIMUS will also increase the number of specialists who carry out assessments, including specialists in mental health. They will also spend more time with claimants prior to their assessment to fully explain the process and will provide Disability Awareness training for all staff. To ensure a smooth transition between Atos and MAXIMUS, most of the Atos assessor healthcare professionals will transfer to MAXIMUS, and will also use the existing Atos infrastructure. 46

In its response to the Work and Pensions Committee in November 2014, the DWP said that the new contract with Maximus required it to undertake 1 million WCAs in 2015/16, and 1.2 million WCAs a year in 2016/17 and 2017/18. It added: “It will be for the Department to control the flow of work to Maximus until the work outstanding reduces to an optimum level.”47

There is currently no target for how quickly Maximus must undertake assessments. However, the contract allows for the DWP and Maximus to agree a target for “clearance times.” Paragraph 4.3 of Schedule 2.2 of the contract (on “Performance Levels”) states:

4.3 The Parties shall work together to agree an appropriate clearance time target (in respect of the time required to process and complete an assessment) at such a time that the Authority believes this is required.48

There is no indication of when a target might be agreed.

44 Work and Pensions Select Committee, Employment and Support Allowance and

Work Capability Assessments, 23 July 2014, HC 302-I 2014-15, para 72 45 HC Deb 30 Oct 2014 c32-33WS 46 Gov.uk, MAXIMUS appointed to carry out health assessments for the Department

for Work and Pensions, 30 October 2014 47 Cm 8967, response to recommendation 15 48 Health and Disability Assessment Services (HDAS) Contract with Maximus, Schedule

2.2 (on Performance Levels), paragraph 4.3. [this was published on Contracts Finder in November 2014]

Number CBP 07182, 18 September 2015 28

5. Terminology Approved Healthcare Professional: A healthcare professional (registered doctor, nurse or physiotherapist), who has been approved by the Department for Work and Pensions’ Chief Medical Adviser.

Decision maker: The person who decides on behalf of the Secretary of State if a claimant is entitled to benefit.

Disability: Limitation of ability in each activity area.

Work Capability Assessment: The process of gathering information and evidence, which may include a face to face assessment, in order to determine whether a claimant has limited capability for work, and if so, whether they have limited capability for work–related activity.

Personal adviser: A trained adviser who will give the claimant help and advice with identifying realistic job goals and any additional support that may be required. The adviser may work for Jobcentre Plus or for a private provider e.g. an organisation contracted by Jobcentre Plus to deliver this part of the service.

Limited capability for work: The extent to which a claimant’s health condition or disability affects their capability for work.

Limited capability for work-related activity: The extent to which a claimant’s health condition or disability affects their capability for work-related activity.

Work-Related Activity Group: Claimants identified for this group will take part in work-focused interviews with a personal adviser, and have access to a range of support to help them prepare for suitable work.

Support Group: If the effects of a claimant’s health condition or disability are so severe that it would be unreasonable to expect them to prepare for work, they will join the Support Group. These claimants will receive the higher rate of Employment and Support Allowance and do not have to take part in any work-related activity as a condition of receiving benefit (although they can volunteer to do so).49

49 Department for Work and Pensions, Employment and Support Allowance: the Work

Capability Assessment: detailed guide, 1 January 2013

BRIEFING PAPER Number CBP 07182, 18 September 2015

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