Skip to main content

Work Capability Assessment

Volume 579: debated on Wednesday 9 April 2014

Sheila Gilmore (Edinburgh East) (Lab): It is a pleasure to serve under your chairmanship, Mr Weir. My debate this afternoon is about an aspect of employment and support allowance. Since March 2012, I have managed to secure four debates on different aspects of employment and support allowance and the work capability assessment that underpins it. This is the fifth. Last week, I led a wide-ranging debate on the migration of incapacity benefit claimants on to employment and support allowance, but today I want to focus on something much more limited—the statistics that the Government publish on the number of decisions to refuse employment and support allowance that are subsequently successfully challenged. Before I do so, it might be useful to set out the journey of a typical ESA claimant, both before and after recent changes, to put this issue in context.

The claim process will generally start with a telephone call to Jobcentre Plus. Cases are passed to the Department for Work and Pensions contractor—currently Atos—which sends claimants a form to fill in. It is known as the ESA50 form. After that is returned, Atos can call in a claimant for a face-to-face assessment or submit advice to the Department on the basis of the evidence already available. The decision is made not by the contractor, but by someone in the DWP called a decision maker, who will either award the claimant ESA or declare them fit for work.

The claimant may think that the decision is wrong, either because it is a fit-for-work decision and they feel that they are not fit for work, or because of the group in which they have been placed. Even if they secure the benefit, they can be placed in one of two groups: the work-related activity group or the support group. They have different levels of conditionality and different financial implications, so that is another issue that people obviously have concerns about.

Up until October 2013, people in the situation that I have described had two options: they could lodge a written appeal to Her Majesty’s Courts and Tribunals Service or ask the decision maker to reconsider the original decision. Since October, however, a claimant who objects to the decision on their case has to go through reconsideration first. Only if the decision maker upholds the original decision is the appeal route available. That change, referred to as mandatory reconsideration, was one of the provisions of the Welfare Reform Act 2012. For the purposes of today’s debate, I want to distinguish very clearly between what we might describe as the formal appeals to judges and the informal appeals to DWP civil servants who deal with mandatory reconsideration.

The Minister will no doubt be aware that one of my central concerns about ESA has been and is that too many sick and disabled people are wrongly being assessed as fit for work. In making that argument, I regularly refer to the quarterly statistical bulletin that the DWP prepares. It is called “Employment and Support Allowance: outcomes of Work Capability Assessments”, and two tables in it are of particular use to those of us who are monitoring and watching what is happening. Table 1a professes to set out the number of new claimants—people who are claiming ESA for the first time, not those who have previously been on incapacity benefit—who are either declared fit for work or awarded ESA immediately after the completion of an initial work capability assessment. Table 3 sets out the number of new claimants who appeal fit-for-work decisions and, of those decisions, how many are upheld or overturned.

In the most recent bulletin, published on 27 March, the two tables told us that between the introduction of ESA in October 2008 and December 2012, 1.89 million new claimants were assessed and 949,000 were declared fit for work. Of those—the fit-for-work group—339,700 appealed the decision and 125,600 were successful and were awarded ESA as the outcome of the appeal. In percentage terms, 36% of fit-for-work decisions were appealed and 13% of fit-for-work decisions were successfully appealed. Of the appeals that were made, 37% were successful. Eventually, we reach a figure of 7% of all decisions being successfully appealed. There appear to be signs that where people are represented at appeals, a higher proportion of appellants are successful.

The key point that I am trying to make is that I and many others had long assumed that the data in table 3 included both informal appeals to civil servants—those were always available, even before mandatory reconsideration—and formal appeals to judges. If that were the case, we would be able to work out an overall overturn rate and form a view on the effectiveness of the initial work capability assessment process. If that was felt not to be performing as well as it might, we would be able to support the case for improvements. In September last year, Nick Dilworth, a welfare rights specialist, contacted me to suggest that that might not be the case. He suggested that table 1a—the first table, which appears to be about decisions as they were first made—took account of the outcomes of applicants’ requests for reconsideration, or in other words their informal appeals. He suggested that table 3 looked only at appeals to tribunals, which is the formal stage of the process.

I raised that issue in a letter to the hon. Member for Fareham (Mr Hoban), who was then the Minister responsible for ESA, on 27 September 2013. The reply I received, dated 2 November 2013, from the Minister of State, Department for Work and Pensions, the right hon. Member for Wirral West (Esther McVey), suggested that I was correct and that table 1a included decisions on which there had been a reconsideration and an individual had been awarded the benefit. Table 1a is the initial decision as made by the DWP decision maker on the strength of the recommendation from Atos. Table 3 is only formal appeals.

I subsequently wrote to the UK Statistics Authority on 20 December 2013, and I received a reply from the chair, Sir Andrew Dilnot, on 21 February this year. He said:

“We have concluded that the title of Table 1a in the quarterly statistical release Employment and Support Allowance: outcomes of Work Capability Assessments, Great Britain is potentially misleading, as you suggest.”

As a result, we now know that table 1a does not give an accurate picture of the number of people declared fit for work and awarded ESA immediately after the initial work capability assessment, and table 3 does not include all forms of appeal.

Why is that important, and what might it not be showing? To use a simplified hypothetical example, imagine that 100 people claimed ESA, of which 50 were awarded benefit and 50 were declared fit for work. If we were subsequently told that 25 of those who had been declared fit for work successfully appealed their decision, we could say that the assessment process was getting one in four of the decisions wrong. If we then found out that of the 50 who had initially been awarded ESA, 25 got the benefit only after an informal appeal or mandatory reassessment, we would have to say that the assessment process was, in fact, getting one in two decisions wrong. Its level of performance would be significantly worse than we had previously thought. I use those figures for the purpose of debate, and I am not suggesting that the performance of the WCA is that bad in reality.

The fact is that without statistics on the number of successful reconsiderations, we simply do not know. That is particularly pertinent given that statistical bulletins published recently suggest that the number of successful appeals has fallen significantly in recent years. In 2009 there were 41,000 successful appeals, in 2010 there were 37,000 and in 2011 there were 28,900. In 2012, apparently, there were only 7,400, although the dates mean that at that stage, many of the processes might not have been completed. That may reflect improvements to the WCA, which mean that fewer people are incorrectly assessed as fit for work. The Government regularly claim to have implemented all the recommendations of the four independent reviews, although I would take issue with that if I had longer.

The Minister might well want to portray the drop as a positive consequence, but it could reflect delays in the claim process. The statistics identify how many people who started a claim in a particular year subsequently lodged an appeal and received a decision. It is not inconceivable that someone applying for ESA in late 2012 could still be awaiting the outcome of an appeal when the statistics are compiled.

The other possibility is that the drop in appeal numbers could suggest that the WCA process is still producing as many incorrect decisions as it was before, but that those are being addressed through requests for reconsideration. However, because there are no separate statistics published on reconsiderations, we just do not know. It is becoming much more of an issue than it was when a reconsideration was optional, rather than mandatory. People have to go through mandatory reconsideration if they want to contest the decision, which increases the number of reconsiderations and could skew the statistics even more. It might look as if the WCA is performing better than it actually is.

Why are overturned decisions a problem? If people eventually get the benefit they are entitled to, is there a problem? I think there are several problems. First, it is distressing for someone to be found fit for work when they know that they are not. It opens up the prospect of having to claim jobseeker’s allowance, under which claimants face the prospect of being sanctioned if they do not apply for a certain amount of jobs every week. Claimants are increasingly expected to spend a fixed number of hours looking for jobs and to take reasonable offers. While that might be appropriate for someone who is genuinely fit for work, it is understandable that someone who is not would be worried about having to put themselves through the process. Ministers have said on several occasions that staff should amend the conditionality that people are subject to if they have requested reconsideration of an ESA refusal, but in a number of cases that message does not seem to have found its way to Jobcentre Plus offices. The Work and Pensions Committee, of which I am a member, has already received some written and oral evidence from witnesses suggesting that that is the case. They are encountering people found fit for work and going through the mandatory reconsideration process who have gone to the jobcentre to claim JSA because they no longer get ESA. They have been told that they are not fit, so cannot claim JSA. That is still happening.

Secondly, the distress resulting from the process could lead to deterioration in people’s mental health. Claimants with pre-existing mental health conditions and those who apply without them become stressed during the process. There is a risk that people who might have successfully overturned their fit-for-work decision simply give up at some point in the process. I have met a number of constituents with mental health issues who end up in that position, often in the context of their asking about access to a food bank or what they will do when they cannot get any benefit. While no system will ever be perfect, there should be a legitimate expectation that the decision is right first time. Everyone says that that is what they want, and there is no lack of suggestions on how it could be achieved. I have raised some in previous Adjournment debates, and I know that colleagues have, too. I am sure that the Minister will be interested to look at the information that has come to the Select Committee in written submissions to the current inquiry. They contain many suggested improvements.

Now that we have mandatory reconsideration and a lot more people going through the process, it is important that the Minister considers a change to how statistics are reported, and specifically to the WCA outcomes bulletin. First—this is a simple change—Sir Andrew Dilnot suggests in his letter of 21 February that table 1a should be relabelled to make it clear that it already accounts for reconsiderations. Specifically, he said:

“The Authority will review compliance with this request as part of following up on our recent statutory assessment of these statistics, and this will therefore inform in part our consequent decision as to whether to confirm the designation of this set of statistics as ‘National Statistics’.”

I hope that the Minister will simply say that he will be doing that; he has had Sir Andrew’s letter for nearly two months.

That simply labels things better, so people understand better what they are reading. Over and above that, I would submit that the format of the bulletin should be revised, so that the first table excludes not just appeals but reconsiderations, and simply sets out the number of people declared fit for work and awarded ESA immediately after the completion of the initial work capability assessment.

Effectively, there would be three tables: one for the people who are found fit for work initially, or initial decisions; one for reconsiderations; and one for formal appeals. What exactly is happening would be clear, and it would enable people to tell how each part of the process works. I am sure that the Department will have management information from which such tables could be constructed.

In conclusion, until the changes are made, the crucial statistical bulletin will continue to present informal appeals as being part of the initial process when that is not the case. The bulletin could understate the total number of overturns and overstate the effectiveness of and improvement in the WCA. Only once those changes have been made and we have separate figures for the outcomes of the initial process, the informal appeals and the formal appeals will we be able to produce an overall overturn rate and paint a more robust picture of the work capability assessment.

Now is a particularly important time for doing that and getting it right. The provider who has been providing such tests on behalf of and making recommendations to the DWP since the outset will be changing in, potentially, less than a year. Now is when the Department will be going out to procure a new provider for the tests. Hopefully, a new provider will be more successful in many aspects, one of which obviously is getting it right first time. A change to how the statistics are presented would assist the Department, the Select Committee, Parliament generally, members of the public who are interested in the matter and all the campaigning groups, who want to see a better system, in judging whether that has been achieved. That, in itself, will not change the system, but it will provide us with the data from which we can make those judgments.

As usual, it is a pleasure to serve under your chairmanship this afternoon, Mr Weir. I congratulate the hon. Member for Edinburgh East (Sheila Gilmore) on securing this short debate.

I have looked extensively at some of the correspondence that the hon. Lady has had with Sir Andrew Dilnot, who runs the UK Statistics Authority. She had let me see a copy of her speech—she has stuck rigidly to the letter of it—so that I could do some research. I was slightly surprised, as I believe that Sir Andrew has answered, in his letters to her, many of the questions that she raised today. However, I will try to elaborate on that a bit.

Mandatory reconsiderations were brought in for reasons that I think we would all agree with: to ensure that we get the decisions right before we go down the enormously costly and lengthy route of tribunals and appeals—costly to the taxpayer and to the individual. A mandatory reconsideration can produce the right decision earlier.

We have debated at length as to how we can get a shorter distance, so that we can get the right decision through. Tribunals and appeals are enormously stressful for claimants, and sometimes the length of time is unnecessary. If we can get the decision appraised before it goes down the tribunal route, which we are doing with mandatory reconsiderations, we can save a lot of time, and it would be unnecessary to go through the tribunal. It still leaves an opportunity for the individual, should they wish, to go through the appeals and tribunal process, but if we can get the decision right, there will be no need to do so, which I am sure is what we would all like to see.

The issue about reconsideration of the statistics, which is the main thrust of the hon. Lady’s speech, was something that I thought Sir Andrew Dilnot’s letters to her, copies of which I have seen, have extensively answered, particularly the one of 21 February 2014. She quoted extensively from the letter, but some other quotes from that letter are relevant. He stated,

“since the publication of the statistics is up to 10 months behind the application reference point, we expect it to take some time for the effects of such procedural changes to flow through into the published statistics.”

He went on to say that departmental statisticians

“will consider your request for more detailed presentations of the statistics”.

That is exactly what the letter said. He went on to look at that.

The hon. Lady will know, as will the Chair of the Work and Pensions Committee, who is in the Chamber, that it is not possible for a Minister to instruct his departmental statisticians to do statistics in a certain way. We can look at something—that is exactly what we are doing—but I cannot instruct the statisticians to produce statistics in the way that the hon. Lady has asked. I think there is some merit in what she is asking to be done, but it will be for Sir Andrew Dilnot and his team and my statisticians to work together on that. I know that the hon. Lady corresponds extensively with Sir Andrew Dilnot and I am sure that he will confirm what I have said.

It is important that the statistics are right; all hon. Members would want that. The rationale behind mandatory reconsideration was to get the whole thing right. Sir Andrew Dilnot stated in his letter of 21 February that it was too early to have the sort of statistics that the hon. Lady mentioned. I am more than happy—and I have—in the light of the letters that I have seen, and in the light of the hon. Lady’s requests in correspondence with Sir Andrew Dilnot, and his comments, to ask my statisticians to look at this to see whether what she has asked for is possible. But I stress again that, as a Minister of the Crown, I cannot instruct statisticians in my Department to do what she asked. It was for them to make sure that we have a robust situation, but I can imagine the controversy that there would be in the House if a Minister was speaking in the House and it became public knowledge that statisticians had been instructed by a Minister to do things in a certain way.

I can understand why it would be a matter of concern if a Minister told statisticians not to record something, but surely a Minister will have a view about the form of statistics and the kind of information to be published; and presumably, these are bits of management information which are there anyway.

Certainly, Ministers have a view on lots of things, but there is a difference between having a view and instructing departmental statisticians to do their statistics in a certain way. I have asked whether I have the powers to do so, should I wish to do so, and I understand, having received advice, that I do not. It is for my statisticians to work on producing statistics on mandatory reconsideration in a way that is as informative as possible, working with the UK Statistics Authority.

Regarding the clarification of that point, and with regard to the very narrow title of this afternoon’s debate, I honestly thought that Sir Andrew Dilnot had answered the questions that the hon. Lady has asked in this debate, which is why I reiterate that I was slightly surprised that we had the debate. The hon. Lady knows that my door is always open. We could have openly discussed this matter, if she had had anything to clarify. I know that Sir Andrew Dilnot’s officials are listening to this debate and want to work with her.

At the moment the information is not ready. It is not in the format that she is asking for. As soon as it is ready it will be published. It may not be in the perfect format that the hon. Lady is looking for. I have asked for this matter to be reviewed, and Sir Andrew Dilnot is doing the same thing, and I look forward to the response. However, I cannot instruct the statisticians to do so and I would not do so.

I was not suggesting that a lot of the data would already be there, but we are expecting far more such decisions to be taken. It is important to start planning for that, as I am sure the Minister would agree.

That is exactly what the statisticians are planning for. Actually, with mandatory reconsideration we were trying to see whether we could get the decisions right before they went to appeal. It is early days yet—it is a bit like the early days with the personal independence payment, which we were discussing only this morning, where the early data reveal that the number of cases going to appeal is a lot less than expected. It does appear that the mandatory reconsideration work is working, but when the statistics come forward that will be for everybody to know.

I know that those in Sir Andrew Dilnot’s office are listening to this debate and I am sure that they will correspond with the hon. Lady on the points that I have raised in the debate and on points raised by her as well.

Question put and agreed to.

Sitting adjourned.