Whither the WCA?

 

Simon Osborne considers prospects for reform and other change to the work capability assessment.

The work capability assessment (WCA) is the subject of some of the most intense and angry debate in the field of welfare reform. On the one hand, the government and the DWP continue to assert that it is fit for purpose (ie, as the test of whether someone is too ill to work), and that the process of official review and reform continues to make the adjustments necessary to correct any defects.

On the other hand, the level of public disquiet about the assessment is rising, with not only opposition MPs but also claimants, doctors and representative groups calling for more radical reform or even a complete scrapping of the WCA, and with increasing media exposure. At the time of writing, legal challenge provided another source of potential substantial change. Thus the prospects for changes to the assessment need to be con-sidered both in the context of official plans and in the wider context of public disquiet and action in the courts. Arguably, the WCA is in for rougher handling than either ministers or the DWP would contemplate.

From the outset, the WCA has been the subject of an official process of review and reform. Former Work and Pensions Minister Chris Grayling often said that he would alter the test as much as necessary in order to make it fit and proper. Broadly speaking, there are two strands to this process: an annual independent review (the so-called ‘Harrington’ review, after Professor Malcolm Harrington who has conducted the first three such reviews) and, alongside that, DWP-led reviews, often drawing on the Harrington reviews.

The independent ‘Harrington’ reviews have involved the scrutiny of the WCA by an appointed independent leader of the process (ie, Professor Harrington) who annually has issued calls for evidence, come up with recommendations and then worked with the DWP in an attempt to secure meaningful implementation of the recommendations. Under section 10 of the Welfare Reform Act 2007, five such independent reviews are required. Thus far, Professor Harrington has issued reports for years one and two (in November 2010 and November 2011 respectively) and at time of writing had issued a call for evidence for year three (with the report scheduled for the end of the year).

Broadly speaking, the Harrington reviews have thus far largely recommended broad changes to the process and DWP culture, rather than substantial change to the activities and points in the assessment. Thus the first report called for a reassertion of confidence and capability in decision makers, so that they ceased merely to ‘rubber stamp’ Atos medical reports, and instead put themselves ‘at the heart’ of the decision-making process. Greater use of telephony and the introduction of mental health ‘champions’ into assessment centres was also recommended. In year two, a process of reconsideration of mental health and sensory descriptors in the assessment was started (in conjunction with some disability organisations) although nothing has yet emerged in the sense of concrete proposals, not least because of evident resistance in government and in the DWP (see ‘DWP-led review’ below).

Included among the topics for inclusion in the year three report are communications, face-to-face working and (again) the nature and qualify of decision making. The year three independent review will be the last led by Professor Harrington. At time of writing, a replacement had not been appointed.

The degree of success of the independent review process has proved a moot point. Professor Harrington has commented that based on his own liaison with the DWP, there has been some degree of success in changing decision-maker culture – ie, so that they have become more willing to question Atos medical reports and on occasion make a different decision than that indicated in the medical reports. For example, Professor Harrington said in his year two report that he had found that the WCA was ‘the right concept’, and that now it had ‘noticeably changed for the better’.1 M Harrington, An Independent Review of the Work Capability Assessment – year two, DWP, November 2011

But disability charities and others have regularly reported that such success has been patchy at best, and now seems to be evaporating. That view has been substantiated by recent official research which shows that many decision makers now feel that their control over the decision is decreasing again, that the Atos report is still the main piece of evidence and that they only question around one in 40 of Atos reports.2 L Adams, K Oldfield, C Riley, Decision Making on Employment and Support Allowance Claims, DWP Research Report No.788, July 2012 Elsewhere, mental health champions are understood to be present only in regional centres – ie, not in all assessment centres. The experience of the author of this article is that many welfare rights representatives nationally feel that telephony is often an unhelpful process, with claimants often experiencing the telephone calls merely as a justification of the forthcoming decision rather than as a helpful discussion.

Alongside the Harrington reviews are changes to the WCA that arise from work within the DWP (although sometimes drawing on the Harrington reviews). The most obvious example of this is the wide-ranging changes to the descriptors in the WCA that were introduced on 28 March 2011. In brief, those changes made many changes to the descriptors that overall made the test more difficult to satisfy, but also introduced some modest expansion to exemptions and to support group membership, particularly with regard to claimants receiving chemotherapy. Perhaps unsurprisingly in the light of such change, recent statistics show that in new claims for employment and support allowance (ESA) some 45 per cent pass the WCA (ie, a minority albeit a large one) but that support group membership has expanded from around 10 per cent to 26 per cent. Similarly, appeal success rate (ie, from the claimant perspective of getting a WCA failure reversed) is now at 42 per cent – albeit that remains a very high overall rate, bearing in mind that the success rate with representation (see ‘Public disquiet’ below) and at oral hearings will be higher.3 Quarterly Tribunals Statistics, 1 April–30 June 2012, Table 1.2d, via

There may be further such wide-ranging changes, and spring 2014 seems a likely time. However, tension has arisen here regarding the mental health descriptors, in particular between the Department and disability groups. The latter, including in their work with Professor Harrington, have been calling for a degree of change there which, up till now at least, the government has been unwilling to contemplate. MIND chief executive Paul Farmer resigned from the scrutiny panel set up by Professor Harrington in April, saying that the WCA was not fit for purpose and that there was insufficient recognition of the need for fundamental change (his replacement is Simon Gillespie, Chief Executive of the MS Society). At time of writing, the government was committed to introducing some change in this field but not on the scale called for by the charities, which Minister Chris Grayling felt would change the assessment too much. Grayling (prior to his departure for another job in the government) told MPs in September that, ‘We are now working with the charities to road test all this work...we are still on track to complete the gold standard review in the spring.’ Hansard, 4 September 2012, column 42WH

In the meantime, more modest reform has continued, in the form of plans for further adjustment to the rules on support group membership – this time to include those receiving oral chemotherapy and radiology (following work with Macmillan Cancer Support). New rules will also remove the requirement that treatment must be continuous for a period of more than six months. However, an element of decision maker discretion will be introduced, with the ‘light touch’ gathering of evidence about the effects of the treatment before a decision is made. The Department estimates that the change will mean an additional 600 people per year being put in the support group. It says that it intends to implement the proposals by early 2013.4 Work Capability Assessment’ – government response to an informal consultation on accounting for the effects of cancer treatments, DWP, September 2012

In the meantime, public disquiet about the WCA has been growing. Complaints, about the harshness of test and the way is applied, have come not only from claimants and their representatives, but also from doctors and MPs.

At their annual conference in May, GPs in Scotland called for the WCA to be scrapped. Of the assessments, the GPs said they are ‘inadequate computer-based assessments that have little regard to the nature or complexity of the needs of long-term sick or disabled persons’, and should be replaced with ‘a rigorous and safe system that does not cause avoidable harm to some of the weakest and most vulnerable in society’.5 ‘GPs call for work capability assessments to be scrapped’, BMA Scotland press release, 23 May 2012The Royal College of Psychiatrists has joined with MIND and several other mental health organisations in saying (regarding the year three Harrington review) that reform of the WCA has not gone far enough the in light of continuing poor claimant experience and high appeal success rate.6 The WCA, a Call for Evidence: year three independent review comments, MIND and others, September 2012, via

Atos, the private (and profit-making) company awarded the contract by the then Labour government for carrying out assessments (a contract extended by the current government), has been criticised by the National Audit Office (NAO) for not offering value for money and underperforming. The NAO was reported as saying that the DWP was failing to seek adequate financial redress for underperformance. Disability charity Scope commented that the WCA was deeply flawed, and without fundamental changes would continue to have a devastating effect on disabled people’s lives. Citizens Advice commented that ESA was the fastest growing advice issue in bureaux and that its own advisers estimated their success rate at appeal was around 80 per cent. The Independent, 17 August 2012; ‘Citizens Advice calls for financial penalties on Atos’, Citizens Advice press release, 17 August 2012 It has been revealed that more than 40 examiners working for Atos have been reported for medical misconduct, and in August The Independent newspaper reported knowledge of ‘dozens of stories which adds weight to the suggestion that the WCA is not fit for purpose’ and Disabled People Against Cuts held a vigil outside Atos UK head office.7 The Independent, 29 August 2012Atos training for its assessors was the subject of a critical Channel 4 Dispatches programme on 30 July, which included the suggestion (rigorously denied by ministers) that there were pass/failure targets.

In a Westminster Hall debate in September, opposition MPs lined up to report the harsh experiences of constituents with the WCA, and called for fundamental change.8 Hansard, Westminster Hall debate for 4 September 2012MPs reflected that the claimant success rate at appeal when represented was reportedly very high (up to 90 per cent) and said that indicated deep-seated problems with the assessment and with decision making. Anne Begg MP, Chair of the Work and Pensions Select Committee, said that the WCA was ‘disastrous’ and could not be fixed by ‘a few tweaks here and there’. But departing Work and Pensions Minister Chris Grayling replied that the Harrington review had never indicated that the WCA was not fit for purpose, and that although the disability charities’ demands for reform amounted to ‘a comprehensive reorganisation of the whole system’, some of them would be taken forward.

As with the forerunner of the WCA (the personal capability assessment, or PCA), caselaw from the Upper Tribunal and beyond is clarifying the meaning of individual descriptors in the assessment. Most of this does not have signif-icance for the future of the WCA as such.

However, a forthcoming judicial review regarding people with mental health problems may have a more general impact. The WCA – or rather, the process which it entails – is currently the subject of action before the courts regarding claimants with mental health problems. The Public Law Project has been granted permission to challenge by way of judicial review the (alleged) breach of the Equality Act 2010 in that, at the outset of each ESA claim by someone with a mental health condition, there is no automatic gathering of independent medical evidence as part of the process. This, so the argument goes, constitutes a failure under the Act to make reasonable adjustments so as to avoid placing people with mental health problems at a substantial disadvantage. At time of writing, a hearing and subsequent decision were awaited.

In addition, a few cases before the Upper Tribunal of a more general nature may affect the application of the WCA and use of Atos medical reports. Regarding the subjection of incapacity benefits claimants to the WCA on transfer of their claim to one for ESA, Bulletin readers will already be aware of an argument that the process is flawed in that claimants are not properly notified of the process (see Bulletin 224) – ie, so that unless and until they are properly notified about the WCA, it may not be applied at all in such cases. It is understood that in at least one case (file number CSE/269/2012 – no decision at the time of writing), this argument is now before the Upper Tribunal, and other cases may arise. Also, there is now to be a three-judge panel of the Upper Tribunal to consider the issue of joined DLA/ESA appeals, including the use of disputed Atos reports in them, in order to resolve the conflict between the decisions in PJ v SSWP (ESA) [2011] UKUT 224 and the more recent WS v SSWP (DLA) [2012] UKUT 202. A hearing is schedule for 13 November 2012.

Without doubt, the WCA is likely to change in the near future. That much is indicated by the ongoing process of official review and reform, which has already delivered an overhaul of the descriptors and modest expansion of the support group. It seems that this will also result in some further changes (possibly next spring) to the assessment regarding people with mental health problems, although that may fall well short of what disability charities have called for.

But there is now a tension between the modest provisions of official reform and the much more radical demands made by claimants, their representatives and some doctors and MPs. Such is the level of public and press disquiet that it may well be doubted if more radical change can continue to be eschewed – and legal challenges could make several dents in the official armour in any case. Overall, the WCA is not only under review, it is under attack: if the latter continues, it seems increasingly doubtful that it can continue in its present form.

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