Appeals and the work capability assessment

Figures obtained by the Independent this week have shown that the government currently spends almost £40 million on fighting disputes around sickness benefits. Admittedly this is a small amount of money when it comes to the more than £200 billion spent on benefits overall, but it is symptomatic of the complexity and controversy around disability testing.

The majority of people claiming benefits because of an illness or disability that causes them to have a barrier to work, claim Employment and Support Allowance (ESA). In order to receive ESA beyond an initial 13 week period, claimants must undergo a work capability assessment (WCA) which determines their ability to work or not. The assessment examines various physical and mental capabilities against a large set of criteria and the assessor decides if the person is fit for work, has a limited capability for work (meaning they will be able to work with the right support at the right time) or has a limited capability for work related activity (meaning they are unlikely to be able to work even with appropriate support). This is a notoriously challenging and controversial assessment with seemingly highly variable results. Many delegates on training courses I deliver for Turquoise Training believe ESA to be a discretionary benefit, awarded on the individual choice of the assessor. Indeed, the more delegates have worked with recipients of ESA, the more likely they are to believe this.

In fact, the WCA is not discretionary but is a rigid test, mandated by the law and ESA should be paid to anyone who passes. But, while there is no discretion, there is a great deal of judgement in play from the assessor which can lead to variation of outcome. Around 15% of WCAs are challenged by the claimant. Department for Work and Pensions officials look at these challenges (in what is called a mandatory reconsideration) and may decide to overturn any decision previously made by their colleagues. It is fairly unusual for a decision to be overturned. Between 10-15% of mandatory reconsiderations result in an overturned decision. This falls to more like 7% when the decision being disputed was that the person was fit for work.

However, a quarter of those who do not have their reconsideration upheld take the matter further and appeal to the Courts and Tribunal Service. Those that take their case this far will more than likely win their case. Around 60% of cases heard by the tribunal find in favour of the claimant and against the DWP. It is worth noting that the DWP has had two chances to get the decision right before this (the original WCA and the mandatory reconsideration) so any straightforward cases should have been decided correctly already. The cases that get to the courts are frequently more borderline but judges are consistently overturning government decisions. The challenging process of getting to the courts, especially for many sick or disabled people, suggests that many more borderline cases are not reaching this stage and remaining unchallenged.

Further roll out in Universal Credit

So, the WCA is a complex test to administer, with unpredictable results and a costly appeals process. But it is set to remain the standard by which capacity or incapacity for work is decided and will be rolled out to more benefit claimants as Universal Credit (UC) develops further. UC includes payments for people with illness or disabilities through an identical work capability assessment to ESA. There are many people who receive benefits now that include at least some element related to illness or disability who have not had to have this assessed through a WCA. When UC is fully rolled out these people will have to be assessed if they are to continue to be considered as sick or disabled.

As things stand there are around 2.4 million claims to ESA. There are some further 250,000 claims to Housing Benefit, Income Support or old style Incapacity Benefit and Severe Disablement Allowance who receive payments based on disability. They will have to have WCA in order to continue receiving an amount. Added to this are another 125,000 who receive Working Tax Credit with a disability element who have not currently had a WCA but will have to under UC. Even after the new assess,ment, there may not be an actual payment, just an acknowledgement that their health condition will make work more difficult.

So, despite its unpopularity and calls for its repeal, the work capability assessment is going to become ever more prevalent as the primary method for determining fitness or otherwise for work. The primary benefits that disabled people or people too sick to work receive for their basic living costs will all be decided through the WCA. And we can expect those costs of servicing appeals and reconsiderations to rise as more people are caught in the WCA net.