Disabled People against Cuts

Submission to the Work and Pensions Committee Inquiry into

ESA and WCA 21//1!

Who "e are#
DPAC is a grass roots $ampaign body% It "as &ormed by a group o& disabled people a&ter the &irst
mass protest against the austerity $uts and their impa$t on disabled people held on the rd
'$tober in (irmingham 2)1)* England% It "as led by disabled people under the name o& +he
Disabled Peoples, Protest% DPAC has o-er 2)*))) members . supporters and an outrea$h o& o-er
!/*))) disabled people% DPAC "orks "ith many anti0$uts groups* 1ni-ersities* Disabled Peoples,
'rgani2ations* and 1nions
Prepared and submitted by Disabled People against Cuts 3DPAC4 5ar$h 2)1!
mail6dpa$%uk%net """%dpa$%uk%net t"itter# 6Dis7PP87Protest
Introdu$tion
1. This document contains the Disabled People Against Cuts (DPAC) submission to the
Work and Pensions Committee call for evidence on ESA and WCA dated !"#"!$
2. This submission contains a number of areas of ESA and WCA that %e believe
demonstrate %h& the ESA s&stem is fundamentall& fla%ed both in concept and
implementation and should be scrapped %ith immediate effect'
3. All of the statistical claims made in this document have links provided to verifiable
sources
WCA Des$riptors
4. The WCA descriptors are the criteria used to assess %hether a claimant has limited
capabilit& for %ork( in other %ords %hether a claimant falls %ithin the eligibilit& criteria for
claiming ESA( or not'
5. The descriptors define a set of functions related to %ork tasks( %hich( if the claimant
can perform to an ade)uate standard( the claimant is considered able to perform some
paid %ork and therefore not eligible to receive the ESA *enefit'
6. +o%ever %e believe that the criteria for ESA eligibilit& are disingenuous' The& take
into account onl& functional abilit&( ,-T the abilit& to hold do%n a .ob in practical terms'
7. The& do not consider such issues as/
0s the claimant able to %ork for suitable number of hours a %eek
0s the claimant able to travel a reasonable distance to and from a .ob(
consistentl&( ever& da&'
0s the claimant robust enough to hold do%n a .ob( %ithout taking an unreasonable
amount of sick leave
The cumulative effects of ph&sical stress on claimants %ith ph&sical health
conditions %hich induce fatigue s&mptons
The cumulative effects of mental"emotional stress on claimants %ith mental health
conditions
The ph&sical"emotional"mental stress of seeking a .ob
8. ,or does it consider %hat ph&sical discomfort or pain( or emotional or mental pain the
claimant ma& encounter %hile emplo&ed'
9. The WCA does not represent a finding on %hether or not the claimant is emplo&able
or %hether the claimant %ill be able to find %ork'
+he 9:ap9 bet"een ESA and ;SA Criteria
10. While the WCA is commonl& called a 1fit for %ork2 test( it does not actuall& test
%hether a claimant is fit for (ie capable of doing) %ork'
11. The WCA tests %hether claimants have the abilit& to perform certain limited %ork
related functions as defined b& the WCA Descriptors
12. Whereas the criteria for eligibilit& for the alternative benefit 3obseekers Allo%ance
include the clauses that a claimant must be/
be able and available for work
be actively seeking work
13. Thus is stands to reason that there are man& %ho %ill be found ineligible for ESA
but not able to meet the practical re)uirements being able to find and hold do%n a
.ob and are thus ineligible for both benefits'
14. We do not kno% ho% man& claimants have found themselves in this position( as
the government do not monitor this( and provide no statistics from %hich %e can
e4ptrapolate or estimate a number( but %e believe that there %ill be a significant
number of Disabled claimants %ho fall into this trap and are denied income from
either ESA or 3SA '
<ealth Care Pro&essionals per&orming the WCA
15. The ma.orit& of +ealthcare Professionals that perform Work Capabilit&
Assessments on claimants are ,urses( Ph&siotherapists and -ccupational
Therapists( %ith a lesser number of Doctors and 15ental 6unction Champions2
16. While %e do not dispute that these +ealth Care Professionals are )ualified and
have e4perience as ,urses( Ph&siotherapists( -ccupational Therapists( etc( %e do
dispute that this is sufficent to .udge a persons7 capabilit& to %ork( given the
panopol& of condition t&pes that an& +ealthcare professional %ill be re)uired to
assess'
17. The range of condition t&pes that an +CP %ill be presented %ith include/
Stable Ph&sical Conditions
6luctuating Ph&sical Conditions
5ental +ealth Conditions (ranging from mild to e4tremel& severe)
*ehavioral Conditions
Cognitive Conditions
8earning Conditions
Autism Spectrum Disorders
Degenerative Conditions
Ph&sical Conditions %here the claimant is e4pected to return to full health
Terminal Conditions
18. 0n addition it is not uncommon for claimants to simultaneousl& have multiple
condition t&pes such as a mental and ph&sical health condition'
WCA and mental health
19. 6rom the start( the descriptors %ere recognised as inade)uate at capturing the
level and the comple4it& of mental illnesses( and the problems faced b& claimants
in making a claim or an appeal %ere alread& recognised b& 3udge 5artin in his
99:;99< =eport/
20. Mental health issues are a continuing source of problems in terms of making
claims and assessing the impact of mental health issues on disability. In some
cases mental health issues were not fully addressed or given due weight.
21. 6ollo%ing Professor +arrington>s recommendations( DWP accepted to amend the
descriptors to better capture mental health issues and to introduce Atos 5ental
6unction Champions in each assessment Centre to ?spread best practice amongst
Atos healthcare professionals in mental( intellectual and cognitive' Although it has
led to an increase of claimants %ith mental health issues being a%arded ESA( and
especiall& being placed in the Support @roup( the statistics tell a different stor&'
22. -fficial DWP figures confirm that in the 99: )uarter from 3une to August( t%o
months before Emplo&ment A Support Allo%ance %as introduced( !B#(9B9
claimants took up a claim for incapacit& benefits( around a third of them (BC(D#9)
on the grounds of mental and behavioural problems'
23. *& the end of the ,ovember 9! )uarter( the number of claimants taking up or
being transferred on to Emplo&ment A Support Allo%ance had spiralled to #!C(<B9
claims %ith nearl& !$9(999 of them (!#B(<<9) making a claim on the grounds of
mental and behavioural problems ; nearl& # times as man& as four &ears
previousl&( but also representing a higher proportion in the total number of claims
($$E against #DE)'
24. 0n the ,ovember 9! )uarter( B(<B9 of the claimants %ho took up a claim ESA
on mental health grounds had been on the allo%ance on one or more previous
occasions' These figures sho% a perpetual c&cle of claimants and reclaiming(
those %ith mental health problems being b& far the most susceptible to making a
re;claim'
ESA $laimants "ith mental illness are disproportionally san$tioned
25. The latest DWP statistics on Emplo&ment and Support Allo%ance published in
3anuar& 9!$ sho% in Table D the -utcomes at initial functional assessment split
into 0nternational Classification of Diseases'
26. The total number of ESA claimants is :#$(B99 (W=A@ $CD($99 F S@ #CD(!99)( of
%hich ##<(99 (W=A@ !<#(!99 F S@ !$C(!99) of them fall under the Categor&
Mental and behavioural disorders. 0t means that this group of claimants accounts
for $9E of all illnesses( but because !<#(!99 (BDE) have been placed in the
W=A@( proportionall&( this group is alread& more e4posed to sanctions than an&
other groups'
27. A recent response to a 6-0 re)uest confirms that claimants %ith mental health
issues are not onl& sanctioned disproportionall&( but also e4posed t%ice to more
sanctions and hit harder than an& other groups'
28. Even before the introduction of the stricter sanction regime( there %ere alread& a
higher number of claimants %ith mental health issues being sanctioned' *ut the
latest figures disclosed sho% that B(<$9 claimants %ith mental health issues %ere
sanctioned out of !9(!9 ESA sanctioned claimants (B:E) in 9!#'
29. The figure in 9! %as B$E %hen these claimants onl& account for $9E of all
illnesses' Since -ctober 9!!( on average the rate of sanctions for claimants %ith
mental and behavioural conditions has been e4actl& one third (##E) higher than
for other claimants( as the graph sho%s
!
'
30. This is a trend( for %hich the CitiGens Advice *ureau had alread& provided
anecdoctal evidence(
31. Bureau experience is that vulnerable clients (e.g. those with mental health
problems or minor learning difficulties are disproportionately sanctioned.
(http/""%%%'citiGensadvice'org'uk"citiGensHadviceHbureau4HfoodbankHsurve&) but
%hich is no% confirmed b& DWP statistics'
32. This has to be seen in the conte4t of the number of people %ith mental health
issues placed onto the Work Programme' The latest Work Programme statistics
(9
th
5arch 9!$) sho% that this group constitutes the ma.orit& of ESA claimants
on the Work Programme (CBE)( although as noted previousl& the& account for
onl& $9E of illnesses'
33. ,ot onl& are a disproportionate number being placed in the W=A@( but an
additional disproportionate number are being put onto the Work Programme(
1
This graph was compiled by Dr David Webster, Honorary Senior Research Fellow,
Urban Studies, University o !lasgow, based on the "gures released by DW#$
compared %ith ESA claimants %ith other illnesses or disabilities' The .ob
outcomes for this group( as sho%n b& the latest statistics( are ver& poor/ onl& $(E
of the !#!($:9 claimants referred to the programme in this group have a .ob
outcome'
34. ,ot onl& is the WCA failing people %ith mental health issues b& putting a
disproportionate number of them in the W=A@ on a shorter prognosis( and a
disproportionate number of them onto the Work Programme( resulting in ver& poor
.ob outcomes( but it also seems that because of the nature of their illnesses( the&
are the claimants having most difficult& adhering to the conditionalit& regime( or
that the& are seen b& 3ob Centre staff as eas& targets for sanctions as
documented b& the CA*( leading to a disproportionate number of them being
sanctioned %hen compared to other ESA claimants'
35. Iltimatel&( the& %ould be the ver& people %hose health is likel& to %orsen as a
result of the failings of the WCA and of the conse)uences of having been put into
the W=A@'
WCA Appeals
36. The latest figures published b& +er 5a.esties7 Courts A Tribunals Service in 5arch
9!$ sho% a dramatic reduction in the number of Social Securit& A Child Support
appeals lodged directl& %ith Tribunals' This is the result of the introduction of
Mandatory !econsiderations %hich is a DWP internal dispute resolution process(
aimed at reducing the number of appeals directl& lodged %ith Tribunals'
37. These 5andator& =econsiderations have had a substantial effect on the number
of appeals lodged against an ESA decision' -nl& #(<C< ESA appeals %ere
received bet%een -ctober and December 9!# compared %ith !!!(:!D in the first
)uarter of 9!#"9!$ and DC($BC in the second )uarter'
38. The number of ESA appeals 7cleared at hearings7 in the third )uarter of 9!#"!$
has significantl& increased %ith :#(9 being heard( of %hich $BE %ere in the
claimant>s favour' This is the highest success rate for claimants ever recorded'
This compares %ith B:(DC in the same )uarter of 9!"9!# %hen the success
rate %as $E' The overall number of cleared ESA Tribunal hearings in 9!"9!#
%as $(#DB %ith an average success rate of $#E'
39. The drastic reduction in the number of appeals lodged directl& %ith Tribunals
makes it even more urgent for the government to publish statistics on the number
of ESA decisions %hich have been overturned in claimants>favour through
mandator& reconsiderations'
40. *enefit claimants are the onl& group to be denied direct access to a Tribunal and
therefore to 3ustice( although the fees introduced for Emplo&ment Tribunals also
had the effect of substantiall& reducing the number of claims
WCA and 8egal Aid
41. -n ! April 9!#( the 8egal Aid Sentencing and Punishment of -ffenders Act
(?8ASP->) came into effect'
42. Clause !B of Part of Schedule ! of this Act e4cludes all welfare benefit issues'
43. Welfare benefit cases no longer )ualif& for advice or assistance under the 8egal
+elp scheme( not even for initial advice to identif& .usticiable issues under social
securit& la%( or to provide a triage role to steer cases a%a& from tribunal and
ensure that benefit claims are processed correctl&'
44. The @overnment>s vie% is that as these are matters of ?administrative .ustice>
issues in %hich decision making( ad.udication and dispute resolution s&stems are
accessible to claimants acting on their o%n( and that given the underl&ing issues
are financial( the& should be of minimal priorit& for public funding'
45. The government also sa&s that legal aid is/
46. "still available for civil legal services provided in relation to an appeal on a point of
law to the #pper $ribunal% the &ourt of 'ppeal or the (upreme &ourt relating to a
benefit% allowance% payment% credit or pension) (Point !BD)
47. *ut as 3udge =obert 5artin points out in his response to the 5inistr& of 3ustice
Consultation Paper on 8egal Aid (page :( paragraph $9)/
48. *'n appeal against the tribunals decision in a welfare benefits case lies to the
#pper $ribunal but only for error of law +.. $hese limitations of further "appeal)
are often not appreciated by parties without ,egal -elp% who may fruitlessly seek
to appeal further simply because dissatisfied with the outcome
49. Although the government sa&s that claimants can represent themselves( at a time
%hen the IJ>s social securit& s&stem faces arguabl& the biggest upheaval since
the introduction of the Welfare State( the @overnment should have recognised that
the need for advice on %elfare benefits has never been greater'
50. 0t should also have recognised the comple4it& of the benefit changes affecting
disabled people'
51. Disabled people make up a disproportionate proportion of B: per cent of those
%ho receive legal aid for %elfare benefits cases'
52. The @overnment7s o%n E)ualities 0mpact Assessment (page C$( paragraph D'#C)
notes that/
53. Kthe proposals have the potential to disproportionately affect female clients% B'M.
clients% and ill or disabled people% when compared with the population' $his is as
a result of those groups being overrepresented as users of civil legal aid services.
54. The removal of 8egal Aid for benefit claimants needs to be seen in the conte4t of
cuts to legal aid funding %ith L#9m cut from the annual Lbn legal aid budget
and the closures of !99 of CitiGen Advice *ureau offices %hich used to support the
most people %ith access to legal advice and representation'
55. According to the government7s o%n assessment( around C99(999 people %ill lose
access to advice and legal representation( %hen CA* advisers estimate the
success rate at ESA appeal %here someone receives specialist CA* advice and is
represented is around :9 per cent'
WCA 5andatory =e$onsideration
56. 0n -ctober 9!#( DWP has introduced changes to the appeals s&stemM a claimant
%ishing to appeal a fit for %ork decision %ill no longer be able to submit their
appeal to DWP( %hich %ould lodge the appeal %ith +5CTS (tribunals) on behalf of
the claimant'
57. There %ill no% be a first step kno%n as 5andator& =econsideration %hich is an
internal DWP process'
58. This has serious implications for claimants/
59. As admitted in the government response( there are no timescale for completion of
the 5andator& =econsideration process( as sho%n in the response to this
6reedom of 0nformation =e)uest'
60. 0f someone>s claim has been disallo%ed completel&( the& %ill not receive pa&ment
pending 5andator& =econsideration as %as the case previousl& %hen somebod&
%as allo%ed to appeal the same decision' DWP is suggesting that claimants
should claim other benefits( such as 3obseeker>s Allo%ance( but there is evidence
that some people are being refused 3SA on the basis that the& cannot( because of
health issues fulfill all the conditions attached to this benefit'
61. 0f DWP refuses to =econsider the case( the claimant %ill not be allo%ed to
proceed to appeal
Stress and An>iety pla$ed on ESA Claimants
62. The WCA is inherentl& stressful for claimants( because of the uncertaint& of such a
notoriousl& unreliable s&stem %here there are fre)uent media reports of incorrect
decisions'
63. Claimants are forced to %ait long durations trapped in a bureaucrac& that sho%s
no compassion( not kno%ing if the& %ill be .udged 1fit for %ork2 and re)uired to
seek %ork( %hether or not their medical condition makes that possible'
64. Claimants are understandabl& fearful that their benefits %ill be stopped( at the end
of a process that the& have no control over'
65. This is particularl& harmful to claimants %ith 5ental +ealth Conditions( especiall&
those in the class of an4iet& disorders as described in DS5;0N '
66. Nideo testimon& about the stress that claimants are sub.ected to is given in this
evidence session to the Scottish Parliament on the WCA