RNIB Group response to the fourth annual review of the Work Capability Assessment led by Dr Paul Litchfield
August 2013
Introduction
The Royal National Institute of Blind People Group includes our associate charities including Action for Blind People and the National Library for the Blind. We have been engaged with seeking improvements to the WCA since 2009.
This response is informed by a survey of the experiences of blind and partially sighted people carried out both by ourselves and secondly conducted in partnership with the Disabilities Benefits Consortium.
In appendix A we briefly summarise the previous surveys we have presented in previous reviews of the WCA and would ask that this evidence is taken accumulatively (along with this submission) as evidence of the faults with the WCA.
Expert opinion
In producing this response we have also worked closely with experts in the medical nature and consequences of sight loss, specifically the Royal College of Ophthalmologists (RCOphth) and also legal experts in the framing and interpretation of the regulations governing the WCA - specifically solicitors at the Public Law Project.
We are aware that the President of the Royal College has expressed concern to the Government over the deficiencies in both the descriptors and the guidance and questioned the appropriateness of the descriptors for assessing blind and partially sighted people.
In addition Ravi Low -Beers a solicitor of the Public Law Project is currently looking at the application of the WCA to blind and partially sighted people and whilst illness has prevented us adding his opinion at this stage we hope this will prove possible before too long.
Question 1
The WCA seeks to identify and differentiate between claimants whose condition(s) means they are:
· a) unable to undertake any form of work related activity (Support Group);
· b) currently unable to work due to illness or disability (Work Related Activity Group); and
· c) fit for work.
What evidence and examples can you provide as to the effectiveness of the WCA in doing this? In your opinion, what are the strengths and weaknesses of the WCA identification process?
Answer:
Notes on use of data
DWP provided RNIB with statistics following a Freedom of Information Act (FOI) request for an ad hoc analysis relating to ESA claimants who are blind or partially sighted. The data is consistent with that in the Official Statistics publication, released on 23 July 2013 (DWP, 2013). The statistics provided apply to claims for the periods from October 2008 to between May 2012 and February 2013
DWP administrative data has a category 'Diseases of the Eye and Adnexa'. As this includes some acute medical conditions that do not cause vision impairment, ESA claimants with these acute conditions are excluded from our analysis. Throughout this response, claimants with Diseases of the Eye and Adnexa with conditions that are associated with vision impairment (as detailed in appendix B) will be referred to as the BPS group.
We also observed that figures for the "blindness and low vision" sub-group, when taken alone, produces slightly different results to the wider BPS group. Since this is one of the largest of the sub-groups, and is likely to contain a high proportion of claimants that are registered as blind (severely sight impaired), we also make comparisons to this sub-group throughout.
Blind and Partially Sighted (BPS) claimants put forward for WCA
Between October 2008 and November 2012 a total of 13,800 blind and partially sighted claimants undertook - or were scheduled to undertake - an initial Work Capability Assessment
o 38% of BPS claimants (5,250) were in the 'blindness and low vision' sub-group
o 29% of BPS claimants (4,030) had their claim closed before assessment had taken place
Initial WCA outcomes
Between October 2008 and February 2013, initial WCA assessments were completed for just under 9,000 (8,920) BPS claimants. Just under half (47%) were found Fit for Work, just under a third (37%) were allocated to the Work Related Activity Group (WRAG) and the remaining 16% were allocated to the Support Group.
The largest sub-group of the 8,920 BPS claimants (3,800) were those with Blindness and Low Vision representing 43% of the total. The second largest sub-group (2,570) were claimants with 'Other Disorders of the Eye and Adnexa' representing 29%. The third and fourth largest sub-groups were claimants with 'Other Cataract' (1,110) and 'Glaucoma' (680) representing 12% and 8% respectively (percentages are rounded).
The outcomes were:
· Work Related Activity Group (WRAG):
o 25% all claimants
o 37% BPS claimants
o 45% claimants with 'Blindness and Low Vision'
· Support Group:
o 18% all claimants
o 16% BPS claimants
o 25% claimants with 'blindness and low vision'
· Fit for Work:
o 57% all claimants
o 47% BPS claimants
o 30% BPS claimants with 'blindness and low vision'
Fit for Work (FFW) appeals
During the period October 2008 and May 2012 a total of 3,740 BPS claimants appealed against their Fit for Work decision. Appeal outcomes information is available for only 1,390 of these claimants, representing just over a third (37%). For the remaining 2,350 there is 'no completed appeals information at this date'.
Of the 1,390 claimants whose appeal outcome is known, just under two thirds (64%) had their initial decision upheld and just over one third (36%) had the initial decision overturned.
Because the numbers in some of the sub-groups are so small, it is not possible to detect any meaningful differences in terms of appeal outcomes. The two sub-groups with the highest proportion whose initial decision was overturned represent only 20 claimants in total.
However, it is worth noting that of the 390 BPS claimants in the Blindness and Low Vision sub-group whose appeal had achieved a decision, 44% had their initial decision overturned.
For those whose appeal outcome is known, the outcomes were:
· Initial FFW decision overturned:
o 37% of all claimants
o 36% BPS claimants
o 44% BPS claimants with 'blindness and low vision
This data shows that a significant proportion of blind and partially sighted people that are found fit for work on the initial functional assessment appealed against the decision, and a significant proportion of those appeals were upheld. This would seem to indicate that the work capability assessment is ineffective at differentiating whether blind and partially sighted claimants are fit for work.
The RNIB group of charities, including Action for Blind People, worked with 721 blind and partially sighted people of working age in the last year to access welfare advice with respect to ESA. During the same period we also had 12,563 unique visits to our website pages on ESA from people seeking information and advice on the benefit and the assessment for it.
The record of the welfare to work industry in matching those found fit for work to vacancies may also be connected to our conclusion that the wrong people are being found fit for work. On the 30th of July 2013 the Department for Work and Pensions published data that showed there had been 690 referrals for people with non-acute eye conditions, 650 attachments and only 20 job outcomes recorded. The figure was just ten for for the sub-category blindness and low vision. This data was for the first twenty-two months of operation for the Work Programme (third reference in the bibliography)
The data coupled with our experiences in supporting these people tells us that the high proportion of blind and partially sighted people being found either fit for work or able to undertake some form of work related activity does not reflect the reality of the customers and clients we are in regular contact with. A consequence of the Work Capability Assessment in its current form is that blind and partially sighted people are losing their benefits and being told that they are now Jobseekers or must attend work-related activities. For most this is irrelevant and unhelpful.
In summary a greater proportion of people in the blindness and low vision sub set of the diseases of the eye and adnexa are having their original decision overturned - nine in every twenty compared to seven in twenty for all claimants.
We therefore believe that in its current form the WCA cannot differentiate between blind and partially sighted claimants whose sight loss means they are unable to work, undertake work related activity, or are fit for work.
Question 2
A number of changes have been made to the WCA since its introduction in 2008. Do you think these changes have made a difference to the effectiveness of the identification process and, if so, how?
Firstly whilst we accept that there have been changes to the WCA since its inception these changes have largely not been designed to improve the treatment of blind and partially sighted people. The ongoing experience of our advice and legal rights teams suggest the problems we identified at the outset are still real and damaging to the lives of blind and partially sighted people.
A survey of Independent Living Advisors in our associate charity Action for Blind People revealed that over the last year they had been involved in 44 appeal cases in which the tribunal overturned the original decision with a further 12 cases ongoing. These appeals included instances of both people being found fit for work being subsequently placed in the Work Related Activity (WRA) Group and those placed in the WRA Group being placed in the support group, upon appeal. One particularly distressing case involved a client who scored zero points at initial assessment but who then went on to score 24 points at appeal. The tribunal awarded 15 points on the basis she could not understand a simple message reading 16 point print and 9 points for not being able to navigate around unfamiliar places.
In addition to these cases our own legal rights team have dealt with a further 77 cases and over 80% of these were successful in their application for ESA, with our advice and/or representation at appeal.
Question 3
There have been three Independent Reviews of the WCA since 2010. Do you have evidence that the WCA as a whole has changed as a result of the reviews? If so, please detail.
In responding to this question we have looked at the most recent statistical release from DWP for evidence that Professor Harrington's recommendations have led to an improvement in the assessment of people with sensory impairments. The most recent release is that contained in "Employment and Support Allowance outcomes of Work Capability Assessments Great Britain" published by DWP on the 23rd of July 2013. Figure J of page 16 from that report shows the percentage of completed assessed caseloads for those attaining 15 points and being assigned to the Work Related Activity Group. The trend line for sensory impairment functionality from November 2010 (when the Government responded to Professor Harrington's first report) to November 2012 (when it responded to his third report) shows a decline in the proportion referred to the WRA Group from close to 7% to close to 3%. This small percentage difference suggests a very marginal and even negative consequence of the Professor Harrington's recommendations in so far as they have impacted upon people with a sight impairment.
Question 4
A significant proportion of people applying for ESA have mental health conditions. What evidence do you have that mental health conditions are or are not given appropriate consideration during the WCA process?
Answer
Whilst we are not an organisation that represents people whose primary condition is a mental health condition many of our clients do have a secondary mental health condition too. We are certainly aware that the assessment is poorly assessing mental health conditions and indeed the whole process appears to be adding to the anxieties and stress of people already adjusting their lives to the challenges of sight loss. The following responses were received in response to a call for people's experience of undergoing a WCA or being called for assessment.
"As a visually impaired person with a very restricted field of view I am worried that the process will not adequately reflect the effects of this and so will produce an unfair result for me, leading to loss of income and a protracted and stressful appeal process." Mr Keith Sadler of Norwich
"The assessment process made me feel like a fraud and a cheat. I've never been made to feel do ashamed of my disability and my time on ESA was one of the lowest points of my life." Mrs Val Humphries of Droitwich
Question 5
There is a perception that the WCA is too heavily weighted towards a medical model. Do you believe this is the case? Do you think that the WCA takes suitable and sufficient account of the psycho-social factors that influence capability for work (this is not about the likelihood of finding work) – if not how do you think this should change?
Answer
Yes, the WCA is too heavily weighted towards a medical model of disability. The WCA is based upon assumptions that remove the assessment from a range of psycho-social factors. Foremost amongst these is that all employers have made all reasonable adjustments despite the fact that equalities legislation means that this is unlikely to happen unless employers receive an application from a disabled person or actually recruit the person. It further assumes that all employers have an enlightened attitude to their employment despite Government funded research to the contrary. DWP Report 298, (2002) found that 93% of employers surveyed would find it difficult or impossible to employ a blind or partially sighted person.