Simon Osborne and Carri Swann consider the plans in the government’s Health and Disability White Paper to scrap the work capability assessment (WCA) and replace current rules on limited capability for work and work-related activity.
Introduction
Transforming Support: the Health and Disability White Paper was published on 15 March 2023.
1 (‘White Paper’) The centrepiece of the plans regarding the benefit system is the projected scrapping of the WCA – which would be one of the most dramatic changes to benefit for incapacity for work for many years. Alongside this are plans for the replacement of the limited capability for work (LCW) and limited capability for work and work-related activity (LCWRA) elements in universal credit (UC) with a ‘health element’, with entitlement depending on entitlement to personal independence payment (PIP).
The result would be just one health/disability assessment used for benefit – ie, that used for PIP. However, PIP and UC would remain separate benefits (there are no plans to merge them).
These are plans for the future, rather than legal changes now. The plans will require substantive new legislation, and (even if implemented) would not start to be implemented until 2026/27 at the earliest, with the main roll-out not before 2029.
The benefit plans in the White Paper may be summarised as follows:
•legislate to remove the WCA;
•remove the concept and status of LCW and/or LCWRA for benefit purposes;
•remove the element in UC for people with LCW/LCWRA status and replace it with a new UC ‘health element’ (paid at the same level as the LCWRA, irrespective of the level of the PIP award) – in essence, available only to UC recipients who also get PIP;
•introduce ‘more personalised levels of conditionality’ – in other words, with the end of LCW/LCWRA statuses, open up all UC claimants to work-related requirements and let work coaches decide what these should be.
The official intent
The White Paper places great emphasis on improving work incentives and work-related support for people with disabilities and health conditions. It says that the government learned from the preceding green paper consultation in 2021 that many such people wanted to work and could work, with the right support. Further, with regard to benefits:
‘We know that the health and disability benefits system can itself be a barrier to employment because it focuses on what people cannot do, instead of what they can. The current assessment process means you need to be found to have limited capability for work and limited capability to prepare for work to get additional income-related support for a disability or health condition.’
2White Paper, Executive SummaryIt says that the planned changes are because ‘we want to give people confidence to try work, so that those who are able to can progress in or towards work, without the worry of being reassessed or losing their benefits’.
3White Paper, para 144A problem with this is that people currently worried about losing their LCW/LCWRA status if they try work may be equally worried about losing their PIP, on which their new UC ‘health element’ would depend. You can in theory/law get PIP while in work, but your ability to hold down a job, travel to work and do the tasks involved in your work are all taken into account in a PIP assessment and regularly used as reasons for refusing or withdrawing PIP. The Social Security Advisory Committee recognised this in August 2022 and suggested mitigations which have not been taken up in the White Paper.
4Social Security Advisory Committee, Out of Work Disability Benefit Reform, August 2022, available at More specifically, as a White Paper, the plans are inevitably broad brush. In responses to the plans, not much love has been shown for the WCA. But scrapping the WCA gives rise to a number of concerns and questions. Further detail will be needed in order to resolve them.
What about employment and support allowance?
Having LCW (ie, by passing the test in the current WCA) is a basic condition of entitlement to employment and support allowance (ESA). Eventually, the means-tested form of ESA (income-related ESA) will be replaced by UC. But what about the non-means-tested form, contributory ESA (which, as ‘new-style’ ESA, is a formal part of the UC system)? The White Paper is not very forthcoming: ‘We remain committed to retaining a health and sickness contributory benefit in the future system.’
5White Paper, para 150 Following suit, the DWP has said that ’the UK government is committed to maintaining a contributory health and disability benefit. We are currently reviewing options on how this can be incorporated alongside the reforms set out in the White Paper.’
6Questions and answers from DWP Operational Stakeholder Engagement Forum (OSEF) conference call, 22 March 2023What about those not entitled to PIP?
Many people who can currently qualify for the LCWRA element in UC cannot get PIP. The WCA and the PIP assessment measure different things: the WCA looks for difficulties that would affect somebody’s ability to participate in the workforce, while the PIP assessment looks at the day-to-day tasks they do at home, their mobility and their ability to go out. There is some overlap, but the tests are both formally and substantially separate.
The White Paper says, of those who currently pass the WCA but do not get PIP: ‘…we will carefully consider whether they meet the PIP assessment and eligibility criteria. As we develop our reform proposals, we will consider how disabled people and people with health conditions who need additional financial support may receive it.’
7White Paper, para 152What will happen in Scotland?
In Scotland, PIP is being replaced by adult disability payment (ADP). The DWP has said: ‘The UC health element will apply to claimants in Scotland on a comparable basis to those in England and Wales. The Department will seek to avoid additional assessments where possible and will work closely with the Scottish government as the policy and administration of ADP develops.’
8Questions and answers from OSEF conference call, 22 March 2023Substantial risk, pregnancy and cancer treatment
Under current LCW/LCWRA rules, claimants may pass the WCA in various circumstances without having to score points for specific disabilities. These circumstances include where there is a ‘substantial risk’ to health if the WCA were otherwise failed, where the claimant is pregnant and where they are undergoing (or are due to start or have recently undergone) cancer treatment. How will such provisions be reflected in a world without the WCA?
The White Paper says:
‘We are committed to protecting those claimants who are currently treated as LCWRA due to pregnancy risk or because they are about to receive, receiving or recovering from treatment for cancer by way of chemotherapy or radiotherapy. We will provide explicit provision to allow these claimants to access the new UC health top-up, even when they are not in receipt of PIP.’
9White Paper, para 153However, the White Paper says nothing about preserving the ‘substantial risk’ rules. ‘Substantial risk’ has typically functioned as a safety net for people with mental health conditions, including anxiety, and others (for example, with heart conditions) who cannot show that they satisfy the main WCA points thresholds. In August 2022, there were around 300,000 claimants getting ESA due to ‘substantial risk’
10questions-statements.parliament.uk/written-questions/detail/2023-03-27/174376 (there are no equivalent stats available regarding UC). Someone able to get LCWRA status because of a substantial risk to health might have limited chances of getting PIP, but to date there has been no substantive official statement.
What about work-related conditionality?
Currently, having LCW/LCWRA under the WCA provides some statutory limits to the amount of work-related conditionality a claimant can be required to undertake. The White Paper clearly indicates that with the scrapping of LCW/LCWRA status would come much more work coach discretion over someone’s work-related requirements.
The White Paper says that ‘our new approach will mean both voluntary and mandatory work-related requirements may be set for health and disability benefit claimants, where this is appropriate.’
11White Paper, para 161This means the end of automatic assignment to the ‘no work-related requirements group’ or ‘work preparation (only)’ group. There would no longer be a medically qualified assessor involved in the decision about what work-related requirements would be ‘appropriate’.
12You might have had a separate assessment for PIP, but getting PIP will not passport you for special protection from work-related requirements in the way that it will passport you to the health element. The White Paper also includes references to an ‘Employment and Health Discussion’ carried out by a ‘healthcare professional’ for UC, but makes it clear that this ‘is not an assessment and does not impact conditionality’ (para 104).This increase in the discretionary power given to work coaches has again been signalled in a written answer in parliament:
‘Our new approach will provide more personalised levels of conditionality and employment support, with the aim of helping people to reach their potential and live a more independent life. This more tailored approach will allow work coaches to build a relationship with an individual and determine what, if any, work-related activities an individual can participate in.
‘We will take time to carefully consider how best to implement these changes and take a test and learn approach with the new system before introducing it, to ensure it provides the taxpayer with value for money and is accessible and effective in delivering for our service users.’
13Some will not be reassured by this. CPAG’s Early Warning System
14 receives regular reports of inappropriate conditionality for people with a health condition or disability who do not have the protection of LCW/LCWRA status – eg, because they are still waiting for their WCA decision.
What about the UC work allowance?
In UC, work allowance rules in effect provide a partial earnings disregard. The rules refer to LCW. What will become of that? The White Paper is silent on that question.