Work capability assessments, delays and coronavirus

Jessica Strode looks at some legal issues regarding work capability assessments during the coronavirus pandemic.

Work capability assessments (WCAs) are used to assess claimants’ capability for work and work-related activity. A recommendation from a WCA is incorporated into a decision on the amount of benefit a claimant is entitled to (universal credit or employment and support allowance (ESA)) and the conditionality the individual will be subject to during her/ his claim.

Face-to-face WCAs have been suspended since 17 March 20201DWP press releases, ‘Face-to-face health assessments for benefits suspended amid coronavirus outbreak’, 16 March 2020, and ‘Face-to-face assessment suspension continues for health and disability benefits’, 6 July 2020, available at gov.uk and telephone and paper-based2DWP press release, ‘Face-to-face assessment suspension continues for health and disability benefits’, 6 July 2020, available at gov.uk WCAs have been in place instead. Telephone WCAs were initially optional for claimants, however since 2 November 2020, failure to take part in a telephone WCA without good cause can result in a loss of benefit.3DWP, Touchbase, 6 November 2020

Not all claimants have been regarded as suitable for a telephone WCA. Centre for Health and Disability Assessments guidance stated telephone assessments were not appropriate for individuals including those ‘requiring interpreters (including British Sign Language)’, ‘with hearing difficulties unable to use a phone’ or ‘with mental health problems with impaired insight’.4Provided in response to whatdotheyknow.com request, ref FOI2020 14504 In addition, only a support group or limited capability for work and work related activity (LCWRA) recommendation outcome could, until February 2021, result from a telephone WCA.5Provided in response to whatdotheyknow.com request, ref FOI2020 14504 This meant if no support group or LCWRA outcome could be recommended, it was as if no WCA had taken place.

From 5 February 2021,6DWP, Touchbase, 5 February 2021 it has been possible for any outcome recommendation including limited capability for work (LCW), LCWRA and no LCW/fit-for-work recommendations to be made from a telephone WCA. Where a first telephone WCA was inconclusive, a claimant may now be called for a second telephone WCA. Fewer claimants should also be deemed unsuitable for a telephone WCA and may be called for a first telephone WCA.

CPAG has received numerous reports of claimants either being refused a telephone WCA at all or, following an inconclusive WCA, being told to ‘wait for a face-to-face assessment’.
The concentration on telephone WCAs and the apparent default in many cases that if an individual is either regarded as not appropriate for a telephone WCA or, if a telephone WCA has been inconclusive, the claimant must ‘wait for a face-to-face assessment’ overlooks the requirement to consider a paper-based assessment.

Under regulation 41 of the Universal Credit Regulations 2013 (the ‘UC Regulations’), the Secretary of State has the power to carry out an assessment to establish a claimant’s capability for work and work-related activity (similar rules apply in ESA). Under regulation 44, the claimant ‘may’, so also ‘may not’, be called ‘to attend a medical examination’ to inform that assessment. A face-to-face assessment is not therefore always required.7See also DWP, Advice for Decision Makers, Chapter G1: Work capability assessment

Where a claimant took part in an ‘inconclusive’ WCA before February 2021 (ie, where it was not possible to make an LCWRA recommendation), guidance 8Centre for Health and Disability Assessments, CHDA COVID-19 Filework Process, provided in response to whatdotheyknow.com request, ref FOI2020 14504made clear it remained open to the healthcare professional to carry out a ‘paper-based assessment’ including the healthcare professional actively gathering further evidence to enable this to happen.

‘Healthcare professionals will only give a support group/LCWRA recommendation outcome from the assessment. Cases that do not meet this will be paused and await resumption of face-to-face assessments or until we can gather the evidence needed for a paper-based assessment.’

From 25 March 2021, regulations amend regulation 44 of the UC Regulations (and the ESA rules) to expand the Secretary of State’s discretion to carry out, or not, a medical examination, to include medical examinations ‘in person, by telephone or by video’.9The Social Security (Claims and Payments, Employment and Support Allowance, Personal Independence Payment and Universal Credit) (Telephone and Video Assessment) (Amendment) Regulations 2021, No.230 This does not affect claimants’ ability to ask to be assessed on their paperwork– ie, not by medical examination and the power to ‘gather the evidence needed for a paper-based assessment’ still exists.

Requiring a face-to-face WCA in all cases where a telephone assessment is not suitable or is inconclusive fetters the discretion available under regulation 44 of the UC Regulations (and similar ESA rules) to assess capability for work without a medical examination. As such, it fails to follow both policy10DWP press release, ‘Face-to-face assessment suspension continues for health and disability benefits’, 6 July 2020, available at gov.uk and guidance,11Provided in response to whatdotheyknow.com request, ref FOI2020 14504 which make clear paper-based WCAs are available as an alternative.

There is also have a duty to consider all claims for benefit within a ‘reasonable time’.12R (C and W) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) A WCA finding is incorporated into a decision on entitlement made under section 8 of the Social Security Act 1998 under which the Secretary of State shall ‘decide any claim for a relevant benefit’. The duty to make a decision within a reasonable time applies to section 8 of Social Security Act 1998. What counts as a reasonable time depends on all the circumstances, including the impact on the claimant.13R (C and W) v Secretary of State for Work and Pensions [2015] EWHC 1607 (Admin) Failure to assess an individual’s capability for work within a reasonable time (using the paper evidence available or by carrying out a telephone WCA/second telephone WCA), where this causes financial hardship and/or inappropriate benefit conditionality with the risk of an inappropriate benefit sanction as result, may (depending on the facts) render any delay in deciding an individual’s claim (amount and conditionality) ‘unreasonable’ and therefore unlawful.

Where an individual has been deemed not appropriate for a telephone WCA (eg, because of ‘hearing difficulties’ or ‘mental health problems’), failure to carry out a paper-based assessment, including gathering further evidence where needed, may (depending on the facts) amount to a failure to make reasonable adjustments in the provision of a service or public function contrary to section 20 of the Equality Act 2010. Failure to comply with the section 20 duty constitutes discrimination under section 21 of that Act.

It is recognised that people with disabilities and health conditions (‘disabilities’) that result in LCRWA have costs arising out of those disabilities which require a higher award of benefit. As such, provision is made for payment of an LCRWA element to meet these costs and avoid the discriminatory impact of treating those with and without disabilities which result in LCWRA the same. Claimants who are waiting for their capability for work to be assessed are treated as not having LCW until such time as they are assessed. Arguably, this fails to treat claimants with disabilities differently14Thlimmenos v Greece (Application no.34369/97) established that failure to treat a person differently may amount to discrimination. to those without disability and may constitute indirect discrimination contrary to both the Equality Act and Article 14 of the European Convention on Human Rights (in exercise of their Article 1 Protocol 1 right to enjoyment of property). However, this argument is as yet untested.

If your client has been told s/he must ‘wait for face-to-face assessment’ and does not wish to do so, s/he should challenge this by highlighting the legal power for the DWP to assess without a face-to-face WCA and ask to be assessed on her/his paperwork. S/he will need to demonstrate descriptor by descriptor how her/his paperwork shows s/he has LCW or, usually, support group/LCWRA.

If this is unsuccessful, please use the judicial review pre-action template available at cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/work-capability-assessments to challenge the delay and indirect discrimination.

Face-to-face assessments are then due to resume from May 2021, initially only for claimants the DWP is ‘unable to fully assess by other channels’.15gov.uk/government/news/face-to-face-assessments-to-resume-for-health-and-disability-benefits