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An Independent Review
of the Work Capability
Assessment
Professor Malcolm Harrington
November 2010
Presented to Parliament pursuant to Section 10 of the Welfare Reform Act 2007 London: The Stationery Office £19.
An Independent Review
of the Work Capability
Assessment
Professor Malcolm Harrington
November 2010
Contents
- Foreword
- Executive Summary
- Key findings
- Key recommendations
- A programme of work for year two
- Costs and benefits
- Chapter 1: The review outline
- Chapter 2: The evidence for a Work Capability Assessment
- Chapter 3: The Work Capability Assessment: process and numbers........................
- Chapter 4: Experiences of the Work Capability Assessment
- Chapter 5: The Atos assessment
- Chapter 6: The decision making process
- Chapter 7: Appeals....................................................................................................
- Chapter 8: A programme of work for year two
- Conclusion
- Annex A: List of recommendations
- Annex B: Acknowledgements
Foreword
Being a member of society brings with it certain responsibilities. In general, citizens
of that society are expected to earn their own living and, through taxes, to pay for the
infrastructure of that society. At the same time, civilised society has a responsibility
to its citizens. One of those duties is the provision of financial and other support for
people of working age who are unable to earn a living for themselves.
Early examples of such state aid in the UK came in the form of the Workman’s
Compensation Acts in the late 19th^ Century. The introduction of National Insurance
in 1911 and subsequent modifications in social security legislation have resulted in a
complex system of benefits for various sections of the population – including those
who are unable to work because of health-related problems.
Incapacity benefits are a major cost to the UK economy and, as Dame Carol Black
states in her review of the health of Britain’s working age population “the sheer scale
of the numbers of people on incapacity benefits represents an historical failure of
health care and employment support to address the needs of the working age
population of Britain.” The Black Review can be seen as part of a broader move to
reconsider welfare in all its aspects and reform of the welfare system has been
mooted by all the major political parties in recent years.
The Welfare Reform Act of 2007 laid out plans to replace current procedures with
new measures – in particular Employment and Support Allowance (ESA) would
replace incapacity benefits. The ESA proposals included a Work Capability
Assessment (WCA) which was a logical and planned development from previous
assessment procedures. The WCA was designed to distinguish people who could
not work due to health-related problems from people who were fit for some work or –
with additional support – could eventually return to the world of work. Included in the
The claimant needs to feel that they have been fairly treated and thoroughly
assessed. They need to know that the object of the whole exercise is accurately to
assign them to a work or a work-related activity group but also to ensure that those
who cannot work receive the full support of the state.
Work is, by and large, good for people. The benefits of work generally outweigh
the risks of work and undoubtedly outweigh the appallingly harmful effects of
worklessness. If the WCA works well, it should enable many people to re-enter the
world of work in which they regain their self esteem and improve their general health,
whilst the money saved by the state in benefits could be more appropriately focused
on those who need it most.
Professor Malcolm Harrington November 2010
Executive Summary
- We know that, for the vast majority of people, work is good for you. Similarly, we know that many disabled people or people with a health condition want to work. As a civilised society, we need to enable as many people as possible to take advantage of the positive aspects of work while at the same time providing support for people who cannot work.
- The Work Capability Assessment (WCA) was designed to focus on a person’s capability rather than their incapacity. It distinguishes between those people who could work; those people who could work at some point with the right support (the Work-Related Activity Group); and those people cannot work (the Support Group). In essence, the WCA was designed to be a first positive step towards work for most people.
- However, I have found that the WCA is not working as well as it should. There are clear and consistent criticisms of the whole system and much negativity surrounding the process. There is strong evidence that the system can be impersonal and mechanistic, that the process lacks transparency and that a lack of communication between the various parties involved contributes to poor decision making and a high rate of appeals.
- I do not believe that the system is broken or beyond repair. I am proposing a substantial series of recommendations to improve the fairness and effectiveness of the WCA. If adopted, I believe these recommendations can have a positive impact on the process – making it fairer and more effective, changing perceptions so the WCA is seen as a positive first step towards work, and reducing the rate of appeals. I also set out a future programme of work indicating areas that subsequent reviews should examine.
Key findings
- The review has considered a wide range of evidence to reach its conclusions. Over 400 responses were received to a Call for Evidence and the review met with around 100 key organisations including disability organisations, providers, representative groups, unions and employers. Data was also gathered from DWP/Jobcentre Plus, Atos and the First-tier Tribunal to assist with the review.
- This evidence has consistently and regularly highlighted problems with each stage of the WCA process, which limit both the assessment’s fairness and effectiveness. The key findings are:
Claimants’ interactions with both Jobcentre Plus and Atos are often impersonal, mechanistic and lack clarity. As a consequence, many people who are found fit for work feel an injustice has been done and are more likely to appeal, rather than being receptive to other support available;
Better communication and feedback between Jobcentre Plus, Atos and the First-tier Tribunal to improve the quality of decision making on all sides.
A programme of work for year two
- This review is the first of five annual Independent Reviews into the WCA. It has examined the whole WCA process from end-to-end in a short timescale. As a result, some questions have remained unanswered and some pieces of work have remained uncompleted. The review has set out a proposed programme of work to look in more detail at these issues during the second review.
- This programme focuses on: the descriptors, particularly in assessing fluctuating conditions; what happens to people who go through the WCA; and assessing whether the WCA could also provide a more rounded picture of a person’s readiness to work.
- The review has already set up a task group to look at the mental, intellectual and cognitive descriptors and they will report back in late-November. The Independent Reviewer will assess this report and after consulting with a wide range of experts will make recommendations to Ministers.
- In year two the review should also monitor the implementation of those recommendations in the year one report which have been adopted by the Government.
Costs and benefits
- The recommendations of this review, if adopted, will improve the fairness and effectiveness of the whole WCA process. Some will have up-front costs associated with them, for example additional training for Decision Makers to create a cadre of skilled professionals who are better equipped to weigh-up decisions independently.
- However, seen in the wider context, these changes are likely to be cost saving in the medium-term by decreasing the rate of appeals and ensuring that the correct decision is made in the first instance.
- This will enable the WCA to become a positive first step on the way back towards work for most people and ensure that state support is truly focused on those who cannot work.
Chapter 1: The review outline
The Work Capability Assessment
- The Work Capability Assessment (WCA) was introduced in October 2008. It assesses an individual’s entitlement to Employment and Support Allowance (ESA), a benefit that provides support to people due to disability or ill-health.
- The WCA intends objectively to evaluate a persons’ capability for work so that appropriate support can be provided to help them back to work or, if they cannot work, unconditional support is provided.
- The Welfare Reform Act 2007 legislated for the introduction of the WCA. This law provides the basis for the Independent Review. Section 10 states that: “The Secretary of State for Work and Pensions shall lay before Parliament an independent report on the operation of the assessment annually for the first five years after those sections come into force.”
- This is the first Independent Review of the WCA. It aims to provide a thorough examination of the system, provide recommendations for changes to the current process and set out a future programme of work indicating areas that the subsequent reports may wish to examine.
The review
- On 29 June 2010, the Secretary of State for Work and Pensions appointed Professor Malcolm Harrington, an occupational health specialist, to carry out the first Independent Review of the WCA.
The terms of reference for the review:
To provide the Secretary of State for Work and Pensions with an independent report evaluating the operation of the assessments of limited capability for work and limited capability for work-related activity;
To evaluate ESA claimants’ experience of taking part in the assessments
To evaluate the perceptions of healthcare professionals and other staff involved in carrying out the assessments;
To evaluate the effectiveness of the limited capability for work assessment in correctly identifying those claimants who are currently unfit for work as a result of ill-health or disability; and
To evaluate the effectiveness of the limited capability for work-related activity assessment in correctly identifying those claimants whose disability is such that they are currently unfit to undertake any form of work-related activity.
Fairness and effectiveness
- The review examined whether the WCA is fair and effective and if it is not, how it could be improved so that it becomes fairer and more effective. To do so, the review examined the evidence behind the WCA. This is detailed in Chapter 2. The review then examined if the WCA is working according to its design: whether it is accurately and fairly assessing people for benefit. This is detailed in Chapters 3 to 7.
- Fairness can mean different things to different people, so it is important to be clear what the review is considering. The review took time to investigate other decision making processes and research around fairness or organisational justice to understand how fairness can best be applied to the WCA.
- Literature on decision making sets out two distinct types of justice that can affect customer satisfaction and acceptance of decisions: distributive justice and procedural justice. Distributive justice relates to whether the outcome obtained is fair and procedural justice relates to the fairness of decision making procedures and the treatment individuals receive from decision making authorities. For the WCA this means it is important for the correct decision to be made (distributive justice) and the way the decision is obtained also needs to be fair (procedural justice).
- Research has established that individuals will be more satisfied with their outcomes when the procedures used in the decision making process are deemed to be fair.^1 “individuals cared as much for how they were treated as they did for what they received.” 2 Interpersonal aspects are also important, including whether the reasons for the decision are clearly explained and whether those responsible for the decision treat the affected individual with dignity and respect.^3
- If people feel that they have been treated fairly during the process, have been listened to and have had their decision explained, they are more likely to accept the outcome, even if it is unfavourable. However, the opposite is also true. If procedures are not seen to be fair and individuals are not treated with respect, they are less likely to accept their outcome and more likely to perceive an injustice has been committed. Further research has shown that a lack of procedural justice can lead people to feel embittered and for some this can lead to psychological distress with affects on physical and mental health. 4
(^1) “Procedural justice: A psychological analysis.”, Thibaut and Walker, 1975 (^2) “Justice in the Workplace: from theory to practice”, Byrne and Cropanzano, 2001 (^3) “An integrative framework for explaining reactions to decision: interactive effects of outcomes and procedures”, Brockner and Wiesenfeld, 1996, 4 Psychological Bulletin “Chronic Embitterment and Organisational Justice”, Sensky, 2010, Psychotherapy and Psychosomatics ; “Posttraumatic Embitterment Disorder”, Linden, 2003, Psychotherapy and Psychosomatics
- These ideas of fairness and justice are important influences in the review’s understanding of how the WCA should work. It is clear that the process by which WCA decisions are reached is crucial to ensuring the fairness of the overall assessment. Individuals need to be treated with respect, need to be listened to and be able to get their case across, and they need to understand and recognise the reasons behind the decision that is reached.
The process
- The review took an open and collaborative approach to gathering information for this report. Over 400 responses were received to a Call for Evidence and the review met with around 100 key organisations. Many sources of data and evidence were interrogated to ensure that information, data and opinions expressed could be cross-checked and challenged.
Call for Evidence A considerable amount of information was gathered through a Call for Evidence. This exercise enabled anyone with an interest to submit their views and any evidence that they may have that related to the WCA. The Call for Evidence was launched on 28th^ July 2010 and closed on the 10th September 2010, although considerable leeway was afforded organisations and individuals who could not meet the deadlines involved. During this time, over 400 responses were supplied from a wide cross section of individuals, representative groups, unions, employers, employment support providers and healthcare professionals (HCPs).
Stakeholder meetings and seminars Professor Harrington met with around 100 stakeholders through a series of one-to-one meetings, group meetings and seminars. At each, stakeholders and interested groups were given the opportunity to provide evidence to the review. A continuing dialogue with larger groups was opened at the beginning of the review to help guide the areas for investigation.
Examination of all parts of the process Professor Harrington visited and spent time examining all parts of the WCA process including visits to: seven Jobcentre Plus sites; four Atos Medical Examination Centres, sitting in on four Atos assessments; several First-tier Tribunals; and employment providers Ingeus and A4e. Visits to Atos included some visits that were unannounced, where the Independent Reviewer turned up without prior warning. To ensure access to all available information, Professor Harrington maintained a dialogue with senior officials from DWP and Jobcentre Plus, as well as senior managers at Atos Healthcare and senior Tribunal Judges.
Chapter 2: The evidence for a Work
Capability Assessment
Work and health
- The relationship between work and health has long been known. It is reflected widely throughout history from ancient philosophy, to cultural expressions such as in Voltaire’s Candide: “Work saves us from three great evils: boredom, vice and need” to more modern interpretations, such as Sigmund Freud’s: “love and work are the cornerstones of our humanness.”
- More recently our understanding of the importance of work for individuals who become unemployed due to ill-health or a disability has increased. Studies of the unemployed versus the employed have dispelled the myth that you can only gain the rewards of work if you are fully fit. The harmful effects of worklessness, not least in exacerbating health inequalities, are now well understood. And it is also abundantly clear that the vast majority of people who fall out of work due to ill- health or a disability want to work or get back to work.
- As a civilised society we should support people who can work to do so whilst providing the necessary support to those who need it most. To do this, there needs to be a clear assessment of work capability to determine who can work and who requires unconditional support. The Work Capability Assessment (WCA) has been designed as this assessment tool. In this section, the review examines the evidence that underpins this approach and the impact of previous benefit regimes on the development of the WCA.
The importance of work
- The evidence of the positive effects of work and the negative effects of worklessness for the individual is clear. Work gives people purpose and identity, an income and the means to move out of poverty, and provides social contacts and support. There are positive effects for an individual’s family and community, by encouraging social inclusion and contribution, and for the taxpayer it reduces the benefits bill and increases the wealth of the nation. 5
5 “Is work good for your health and well being?” , Waddell and Burton, 2006; “Working for a healthier
tomorrow”, A Review by Dame Carol Black, 2008; “Realising Ambitions, Better employment support for people with a mental health condition”, A Review by Rachel Perkins, 2009; “Fair Society, Healthy Lives”, A Review by Professor Sir Michael Marmot, 2010
“I can now get out and about and meet people. I have my own money and can pay my own rent instead of being on benefits. My health has improved and I am a new person.”^6
- Conversely, once out of work, it is likely that an individual’s health will worsen with increased risks of physical and mental health conditions, suicide and even premature death. For an individual’s family, worklessness can lead to poverty, social exclusion and have a scarring effect on their children’s employment and life chances. For the country, the costs of working-age ill-health are estimated to be over £100 billion. 7
“My job was my life, I felt my life was destroyed.”^8
“I lost self confidence and got depressed. I wanted to work, but it seemed no one was interested and I just got worse and worse.” 9
- It must be made clear to all sections of society that being out of work is bad for an individual’s health. Therefore, we must address the question of what constitutes ill-health or disability of sufficient severity to preclude work. Could an individual work while being unwell? Should consideration be given to job modifications, in the short or long term at that stage? If the worker has to take time off, should consideration be given to an early return to work with job modifications?
- These are not examples of harsh or rough justice for the sick. All the evidence shows that the longer an individual is off sick, the less likely it is that they will return to work.
- Carol Black highlighted these issues in her seminal report on the health of the working age population. There is lots of evidence that an individual does not need to be 100 per cent well to work. However, perceptions remain that this is not the case: “Too many people think that work is bad for health, that work should be avoided when they are unwell…. These misconceptions are reinforced by family and friends.”^10 In fact delaying a return to work until fully fit can lead an individual to move further away from the labour market, leaving them at greater risk of long-term worklessness and the negative consequences for them and their family.
(^6) Adapted from Remploy case study (^7) Waddell and Burton, op cit; Black Review, op cit; Marmot Review, op cit (^8) Perkins Review, op cit (^9) Adapted from Remploy case study (^10) Black Review, op cit
An evidence based assessment
- There is strong evidence to underpin an approach that seeks to help most people back towards work while providing support for those who cannot work.
- Therefore there is a need for an evidenced based assessment system to help people stay close to work and get back to work. For those who go on to claim sickness benefits, it is vital that the benefit system fairly and accurately identifies those who could work, to provide back-to-work support, while providing unconditional support for those who cannot work. Doing this can prevent short term unemployment turning into long term incapacity and the negative effects this has on an individual’s life chances. Such a system requires an impartial evidenced based assessment that seeks to understand an individual’s capability to work.
- Previous assessments and benefit regimes lacked a focus on the positive effects of work and the interactions between recovery and work. They relied upon a medical model that took a binary approach to incapacity, considering the curing of incapacity as the only route back towards work. This approach helped to reinforce the myth that you have to be fully fit to work.
- Often such approaches were strengthened by the attitude of employers and societal views of sickness and disability that focused on an individual’s impairment rather than them as a person. Historically, even some disability organisations held such paternalistic views, seeing impairments as “a tragedy that must be eradicated at any price.”^18 We have come a long way, but such views persist in some sections of society, maintaining that disabled people are different and must be segregated because they can’t cope.
- As a result, many people were written off onto inactive benefits. As Figure 1 shows, there has been a significant increase in the incapacity benefits caseload, with the number more than doubling since the late 1970s.
(^18) Baroness Jane Campbell in “Disability Politics”, Campbell and Oliver, 1996
Figure 1 – Incapacity benefits caseload over time
0
500
1,
1,
2,
2,
3,
1978/791980/811982/831984/851986/871988/891990/911992/931994/951996/971998/992000/012002/032004/052006/072008/
Number of claimants (000s)….
Source: DWP Forecasting Data
- This has led many people to become detached from the labour market with the negative spiral of consequences for them and their families, including worsening health and reducing the chance of returning to work. In some areas and for some families, worklessness has become the norm, leading to high levels of social deprivation, poverty and social exclusion.
- However, recent evidence shows that while incapacity benefits claimants are genuinely sick or disabled, many “retain (some) capacity for (some) work”. Waddell and Aylward note that less than a quarter of incapacity benefits claimants believe that they could not do any work at all.^19 By failing to focus on the centrality of work to people’s lives, previous benefit regimes have seen too many individuals drift from unemployment to inactivity, leaving them unable to fulfil their potential, causing needless financial hardship, and damaging the communities in which people live.
Employment and Support Allowance
- The launch of Employment and Support Allowance (ESA) in October 2008 can be seen as an attempt to rebalance this approach and ensure that people, where possible, were not written off onto inactivity. The WCA was launched alongside ESA, intended as both an assessment for benefit entitlement and as the first, positive step back towards work for most people.
(^19) Waddell and Aylward, op cit