Written evidence submitted by Citizens
Advice
INTRODUCTION
The Citizens Advice service consists of the national
charity, Citizens Advice, and a network of local bureaux—all
of which are independent charities. Together we help people resolve
their money, benefits, employment and other problems. We provide
free, impartial and confidential advice, and we use our evidence
to influence policy makers, to improve the lives of our clients.
In 2009—10, Citizens Advice Bureaux in England
and Wales advised 2.1 million clients on 7.1 million problems
- an 18% increase from the previous year. We advised on 209,641
enquiries about Incapacity Benefits, including 147,286 on ESA.
Bureaux in Burnley have monitored enquiries from clients being
reassessed on the pilot process, and we have designed an "ESA
diary" for clients to describe their experiences. We are
therefore well-placed to comment on the subject of this inquiry.
THE DEPARTMENT'S
COMMUNICATIONS TO
CUSTOMERS
DWP consulted stakeholders at each stage of the process,
and the resulting customer journey shows evidence of this. Citizens
Advice Bureaux in the trial area handled relatively few enquiries
from anxious clients, suggesting that the telephoning of claimants
at key stages in the journey was helpful and reassuring.
We do have concerns, however, about claimants who
don't have telephones. Vulnerable people, such as those with mental
health problems or learning difficulties, are disproportionately
unlikely to have telephones.
We understand from one claimant who doesn't have
a telephone that the letter from DWP gives an 0845 number for
customers without a telephone. When the claimant rang it, the
person who answered knew nothing about the arrangements of the
trial, and offered no further help.
It is important that procedures are put in place
to ensure that people who are hard to reach do not miss out on
help and support that they are likely to need with the assessment
process.
We also have concerns about the communication of
the decision, and information on appeals, which we develop below.
THE WORK
CAPABILITY ASSESSMENT
The process
A full assessment is made up of several stages:
— Collection
of evidence from the claimant about how their condition/disability
affects their ability to function. Face to face assessments by
HCPs are an inefficient and expensive way to do this.
— Verification
of the claimant's condition/impairment and its level of severity.
We believe that there should be greater reference to the client's
medical records, especially when there have been investigations
by a consultant.
— A decision
as to whether what the claimant says about their level of functioning
fits with what is known about that condition/impairment. The DWP
Disability and Carers Service has built up a detailed database
which describes the likely effects on functioning of a given level
of condition/impairment.
The assessment and its descriptors
We consider that any assessment tool based purely
on a functional assessment cannot fairly assess whether someone
should be awarded sickness benefit. With a functional assessment,
wherever the threshold is set, there will be people who meet the
criteria for benefit but who could work - such as Professor Stephen
Hawkins. Conversely, there will be people who don't meet the functional
criteria, but who cannot work.
A man in his late fifties who has done manual work
all his life, has a physiological age of 80 years, struggles to
walk more than 60 metres because of heart problems and emphysema,
and is unlikely to live to draw a state pension, will be found
fit for work.
A CAB in the South East saw a client who had to
stop work as a cleaner because of severe breathlessness caused
by emphysema. After his statutory sick pay ran out, he applied
for ESA but was found fit for work. The bureau helped him to appeal
this decision, and noted that the worry of appealing was exacerbating
his breathlessness. Five months later - while the appeal was still
pending - his son rang to tell the bureau that his father had
died: the cause of death was a heart attack and emphysema.
The new regulations which came into force in April
will restrict still further the number of descriptors under which
people in this situation can qualify. They are likely to score
points only under the walking descriptor, whereas at present they
would probably score points under the walking, standing and bending
descriptors.
A client of a Yorkshire bureau had cancer. He
had had his oesophagus and part of his stomach removed, and was
initially placed in the Support Group under the special rules.
After six months, he was sent for an assessment
and placed in the Work Related Activity Group. He was awarded
nine points because he was unable to walk more than 100 metres
and six points for not being able to stand for more than 30 minutes
without needing to sit down. The bureau helped him to appeal,
as his doctors still considered him terminally ill, but the decision
maker refused to change the decision. The client died shortly
afterwards, leaving his family feeling very angry that he was
put through this stress in the last few weeks of his life.
Under the new regulations this man would have been
found fit for work, as he would have scored no points for his
limited ability to stand, and so would not have attained the necessary
15 points to be allocated to the Support Group.
As a result of the first year review, led by Professor
Harrington, work has started on refining the mental, intellectual
and cognitive descriptors for the WCA. The Professor has also
asked Citizens Advice to report on whether the assessment could
and should incorporate more "real world" elements, following
our arguments for a "real world" test (see our report
Not Working[8]).
Citizens Advice believes that the new regulations should be suspended
until Professor Harrington reports back at the end of the second
review year, and DWP have acted on his findings.
Customers' experiences of the process
CAB clients report varied experiences of the manner
and politeness of Healthcare Professionals (HCPs), but we consistently
hear descriptions of the poor delivery of the assessment, including
concentration on the computer rather than eye contact with the
claimant; closed questions; lack of time given to answer fully;
and repetition of "just answer yes or no." In these
conditions, it is impossible to take an accurate history that
reflects variability, or general pain.
A CAB in the South West saw a client who was a
barrister, but was unable to practise because of cancer and lymphoma.
She described the assessment as like an "interrogation"
led by a computer, held in a bleak assessment centre, by unprofessional
HCPs. The HCP moved the client's legs which caused her great pain,
even though she had forewarned the assessor that this would happen.
The client said she was shocked by the way claimants were treated
and sent a complaint to Atos.
This does not encourage clients to talk about sensitive
topics:
One bureau described a client with learning difficulties
who went for an assessment. He was awarded some points for physical
limitations, but none for his learning difficulties and was found
fit for work. One of the key reasons given was that he had found
his way to the assessment centre on his own. When the CAB adviser
asked him about this, he explained that he had got up very early,
taken the bus to the town centre and then kept asking passers-by.
He couldn't follow instructions, so he would show the letter,
walk in the direction they pointed, then ask again until he arrived
at his destination. This man was very sensitive about his learning
difficulties and had developed strategies for hiding them. The
closed question "Did you come on your own?" clearly
failed to elucidate this information. (CAB evidence enabled the
decision to be overturned).
The accuracy of medical reports
Citizens Advice has had long-standing concerns about
the lack of accuracy in Atos reports. We have several years of
evidence, including some extraordinarily inaccurate assessments.
It is alleged that our evidence is selective and not representative,
but CAB welfare rights workers consider this is a systemic problem.
To assess the extent to which these problems are
systemic, Citizens Advice is surveying clients identified in advance
of their assessments. Before the assessment, they agree to ask
for their report afterwards. Once they have received their report,
they check the accuracy of the record and the basis on which they
were, or were not, found fit for work. Initial results confirm
that there are significant mistakes in a majority of the reports,
and serious errors in some.
Recommendation: We would
like to see the reliability of the WCA tests independently measured,
using the standard measures of the accuracy of any diagnostic
or classificatory test (its false positives and false negatives),
and research into the most accurate methods of assessment.
The role of UNUM
We are concerned about the apparent conflict of interest
between UNUM's role in the internal review governing entitlement
to ESA, and their commercial interests as a leading provider of
health insurance. There is clear potential for a financial motivation
in undermining the benefit payable by the state, when someone
is too ill to work.
THE DECISION-MAKING
PROCESS
In our report Not working, one of our key
recommendations was the need for a thorough consideration - and
re-consideration - by the DWP decision maker (DM), not simply
a rubber stamping of the Atos recommendation. We are very pleased
that this concern was taken seriously by both Jobcentre Plus and
Professor Harrington, and there is now some movement on the issue.
We hear from welfare rights workers that when strong evidence
is presented, decisions are sometimes - though far from always
- reconsidered in the client's favour, without going to a tribunal.
In the recent trial of the process for the reassessment
of Incapacity Benefit (IB) claimants, claimants were encouraged
to send medical evidence with their ESA50 forms. DMs were also
encouraged to take account of other evidence than that provided
by Atos. We welcome these steps, which we see as significant improvements.
Ideally, we would like to see medical evidence - or evidence
from other relevant professionals - sought in all cases.
We are concerned, however, that it is the claimant's
responsibility to produce such evidence. Some clients are unable
to get such evidence because GPs frequently charge for the information.
Someone receiving £65 per week for all their living expenses
will not be able to pay £30 for a letter. A two tier system
will emerge if those who can afford to pay for medical evidence
are more likely to be found eligible for ESA.
THE APPEALS
PROCESS
In the recent trial, before the DM made the formal
decision to find someone fit for work, they rang the claimant
to discuss the assessment, to ask if the claimant disagreed with
the conclusions about their level of functioning, and if so, whether
they were likely to provide further supporting evidence. This
call - named "touchpoint 13" - has the potential to
be very positive, and to save claimants the stress of an appeal
and tribunal hearing. However, we believe that safeguards are
necessary to ensure that these calls do not become a mechanism
to persuade someone that it isn't worth appealing when they have
a strong case.
If someone does have a good case for appeal, they
stand a much better chance if they are represented. A client,
or even a health professional, can often find it difficult to
know what will be relevant:
An adviser from a CAB in Yorkshire saw a client
who came to the bureau, astounded after losing her appeal at tribunal.
She was too ill to attend the hearing, but had sent very strong
letters from her GP, her consultant and her physiotherapist, all
of whom had said very clearly that in their opinion, she could
not work. The reason she had lost was that neither she nor the
health professionals had realised that the tribunal did not need
their opinion on whether she could work. The legal issue was whether
she had been awarded the right number of points on the various
descriptors, which the letters did not address.
The DWP has had to provide additional funding to
the Tribunals Service to manage extra demand since the introduction
of ESA in 2008, and the number of appeals is likely to increase
again in the next few years because of:
— the
IB reassessment process;
— the
time limit of one year for ESA(CB) for those in the WRAG;
— the
introduction of a large financial difference between the Support
Group and WRAG, when the Welfare Reform Bill is enacted; and
— the
introduction of face to face assessments for PIP.
We are very concerned that support through legal
aid will no longer be available, so there will be a huge cutback
in welfare rights workers. We believe that many more people will
face the wrong decision, as a result of these cuts. There is likely
to be more strain on the appeals service, and judges and doctors
will be asked to spend more time helping unadvised and unrepresented
clients.
EVIDENCE OF
DIFFERENT OUTCOMES
FOR VARIOUS
CLIENT GROUPS
Research shows that claimants who move off benefits
and re-enter work generally experience improvements in income,
health and well being. However, it is vital that someone is not
forced into taking a job that makes their condition worse.
A client had his ESA stopped after being assessed
and found fit for work. He had a congenital hip problem but had
worked all his life as a plasterer. After a serious fall, he was
in a great deal of pain and could not do his old job. His wife
worked, but they struggled to manage financially since he had
stopped work, and they couldn't manage with the loss of his ESA
as well. He felt he had no option but to take a job working in
a supermarket, despite this work causing him severe pain and a
resulting change in personality that nearly broke his marriage
of over 30 years. He won his tribunal, but was very angry that
the benefits system failed to support him when he most needed
it, after having paid contributions all his life.
Others who have their benefits stopped may be faced
with having no job at all. Research not only demonstrates the
benefits of good work, it also demonstrates that:
"those who move off benefits but do not enter
work are more likely to report a deterioration in health and well
being"[9]
Limiting of ESA(CB) for those in the WRAG to one
year
A number of people will not be eligible for income-based
ESA after one year on contribution-based ESA, either because of
savings, or because of other income in the household. This could
typically be a drop in household income from, say, £500 per
week when the main earner was in work, to £150 per week if
a partner is in low-paid or part-time work. We are concerned that
many more people will find themselves in the position of choosing
between a totally unsuitable job which aggravates their condition,
or having no income of their own and struggling financially. Many
of these will be people who have worked and paid contributions
all their working lives, but whose life expectancy means that
they will not live long enough to draw a retirement pension.
We are currently conducting a survey on our website,
of people who are claiming ESA(CB), are placed in the WRAG group,
and have a partner who works, or have savings over £16,000.
One very clear message already coming through, is that people
feel betrayed because, after working for many years and paying
their contributions, the system will not help them when they need
it. Some respondents with mental health problems express their
feelings of hopelessness if their benefit stops, and some say
that they will end their lives. Most respondents are very worried
about how they will cope:
One woman dictated her response to her daughter
to send in: she and her husband both worked until she lost her
sight. She is now unable to cope with all the everyday tasks unaided,
and she is unable to leave the house safely on her own. Since
she had to give up her job, they have struggled to manage financially,
as her husband's wages pay the mortgage and all the household
bills, while her ESA pays for their family's food and other expenses.
Since she heard that her ESA is likely to be stopped, she says
she has not stopped crying, as she thinks there is no way they
can manage financially and they will lose their home.
Many of those found fit for work will not be able
to look for work
We are also concerned for those who are found fit
for work. The new descriptors for the WCA have been brought in
with reference to a modern office environment, but with no reference
to how someone could actually look for work. A person
who can walk only 50 to 100 meters, has difficulty standing for
long, and receives just £65 per week to live on, will have
considerable difficulty getting to the jobcentre to sign on, getting
to the library to do a job search, and getting to interviews -
especially as they are likely to be reliant on public transport.
While, in principle, reasonable adjustments have to be made, we
fear that, in practice, many such claimants will find themselves
sanctioned.
We think it is vital, as Professor Harrington has
recommended, that research is rapidly undertaken to find out what
happens to people who are found fit for work, or have their benefit
stopped at the end of a year in the WRAG. We also think this research
should examine whether people actually move further away from
support and help - especially those who are not entitled to JSA
- and are therefore less likely to move into work.
IMPLICATIONS FOR
THE NATIONAL
ROLL-OUT
OF THE
REASSESSMENT
We strongly recommend that the new WCA descriptors
are not applied, at least until Professor Harrington has reported
back at the end of his second year review.
We are already seeing some signs that shortcuts will
be taken with the process, as the system struggles to manage the
high volume of reassessments: the telephone call to new ESA claimants
who are going to be found fit for work, is not being made
by a decision maker. This means that the caller therefore simply
explains the decision, without offering an informed discussion
about whether the client may have other evidence. As outlined
above, this is much more likely to result in pressure to drop
an appeal and claim JSA, even if the client has a good case to
take to appeal.
April 2011
8 http://www.citizensadvice.org.uk/not_working Back
9
Waddell and Burton (2006) Is work good for your health and
wellbeing? Back
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