Another element of ESA is that existing claimants are – in theory – required to undergo periodic reassessment to check if their condition has changed (for better or for worse). Again I support this practice in principle, but would contend that in reality, people were being called back too regularly, and not enough people with progressive conditions – people who, in other words, won’t get better – were being reassessed on paper (i.e. without a face-to-face assessment).
Regularity of reassessments
I was particularly concerned about the regularity of reassessment. Often people were being called back just months after their previous claim had been granted after appeal. For example a constituent approached me in 2010 with concerns for her young adult son. He is severely autistic. He had been found Fit for Work and although he successfully appealed, this process took 10 months, by which time he was told he would have to be re-assessed after another 6 months. I asked David Cameron about this at PMQs in March 2011. Unfortunately he didn’t understand the question and gave a bit of a non-answer. This answer to my colleague Lisa Nandy on 10 September 2011 indicates that DWP Decision Makers are meant to determine a successful appellant’s ‘prognosis time’.
Then in an interview for a BBC Panorama documentary in July 2012, Chris Grayling said:
It’s been apparent to me in the last few months that we were calling people back too regularly and I’ve instructed the officials that operate the system to actually make sure that we leave a much more sensible in between the two.
I put this issue to Mr Grayling’s successor – Mark Hoban – at a DWP Select Committee evidence session on 21 November 2012. Unfortunately he didn’t give a clear response so I pursued this with a Westminster Hall debate on 5 December. The Minister replying, Esther McVey, said:
It is not true that the time frame set for the work capability assessment remains fixed by the original decision maker when the fit-for-work decision was made. If an appeal has been upheld, the date for the next WCA is decided afresh by a decision maker; re-referral dates chosen can be three, six, 12, 18 or 24 months later, depending on when it is considered most appropriate for claimants to have their next contact with the Department.
She also said:
It is true that a small number of claimants are asked to attend a further work capability assessment as little as three months after a successful appeal, but only after careful consideration of all the available evidence by the decision maker. Our latest data show, however, that that only happens in around 5% of cases. As part of our ongoing commitment to continuous improvement, the process was reviewed, with revised guidance issued to decision makers in February 2011 to ensure that they were actively considering a suitable re-referral date, so that claimants are called back when most appropriate for them.
Additionally, due to changes introduced in July 2012, we have improved the process for receiving feedback from the tribunals if the tribunal has overturned the original decision. Judges now have the discretion to include a recommendation of when the next WCA should take place on the tribunal’s decision notice. The decision maker will take account of that recommendation when setting the review date.
However when I asked her for an update on Chris Grayling’s pledge she didn’t have much to offer:
Sheila Gilmore: Can the Minister address a specific issue? As recently as July, the former Minister appeared to accept that in spite of the changes mentioned he thought that people were being called back too quickly for reassessment. What has been done since July to deal with that?
Esther McVey: I thought I had dealt with that a little earlier when discussing the decision makers and how there is the right to look at when they feel it is appropriate to call someone back, whether three, six, 12, 18 or 24 months later.
I thus wrote a follow up letter to the Minister seeking a copy of the Decision Maker guidance issued in 2011 and full statistics on what proportion of successful appellants are given particular prognosis periods and how often judges take up the opportunity to recommend a prognosis period. I also asked for a proper update on implementing Chris Grayling’s commitment.
I received a reply from Mark Hoban dated 4 February. In it Mr Hoban claimed that his department don’t collect figures on prognosis periods (although he then suggested that 5% of cases won on appeal are given periods of three months, somewhat contradicting himself) or how often judges make recommendations on this. He defended the use of three month prognosis periods on the basis of a lack of feedback from judges – something I cover in more depth elsewhere. Finally he suggested that all Grayling’s assertion on the Panorama documentary amounted to was telling civil servants to follow their own guidance – not particularly impressive.
In chapter four of the fourth independent review of the WCA, Dr Paul Litchfield recommended that a minimum recall period be introduce (in other words a cooling off period). The Government’s responded saying:
DWP will consider the most appropriate minimum period between successful appeal and the recall notice. Once policy considerations have concluded we will amend, if appropriate, DM guidance to ensure clarity of policy and consistency of practice.
In chapter seven Dr Litchfield also recommended that prognosis periods for claimants with brain disorders should be extended to five years, and in response the Government said:
Accept subject to the outcome of further scoping work. DWP will ask Dr Litchfield to examine the Support Group criteria as part of the fifth independent review and consider what specific criteria might be applied to address this recommendation.
While this is welcome it seems odd that this recommendation doesn’t extend to other degenerative conditions such as rheumatoid arthritis. This is a an area where I think Dr Litchfield could and should have gone further.
The Work and Pensions Select Committee also highlighted the issues around regularity of assessment in their July 2014 report, and in a debate on the performance of the Department for Work and Pensions on 30 June 2014, I said:
On Saturday morning I spoke to a constituent who cares for her daughter who has severe learning disabilities. She said to me, “My daughter is 25. She’s not going to get better. She’s not going to change, so why is she constantly being reassessed for employment and support allowance? What is all that about?”
The issue that I want to raise is not just the stress caused to my constituent and her mother, but the extra expense and time involved. In debate after debate, I and others have suggested that one of the simple changes that could be made, which would be humane and would save money, is not to carry out constant reassessment. Even that minor change has not been accepted by Minister after Minister who has been responsible for people with disabilities.
The need to implement and go beyond Dr Litchfield’s recommendations was also highlighted in the submission to the fifth independent review of the WCA by a group of charities representing people with progressive conditions.
Stopping periodic reassessments
In addition to concerns about the regularity with which people were being called back and the lack of paper reassessments, it seems bizarre to persist with reassessing existing claimants when the assessment process for new claimants and those being migrated from Incapacity Benefit remains so troublesome.
On Monday 24 February 2014 the website Benefits and Work published a leaked internal DWP memo that suggests DWP Ministers now finally acknowledge this – it instructed staff to stop calling existing claimants for periodic reassessments. A subsequent statement on Atos’ website confirms this, and Benefits in Work then published further details suggesting all claimants due for a reassessment will simply have their date put back by two years.
In some sense this is a welcome development. However as I emphasised in The Independent, this has come about as a result of incompetence on the part of Ministers, rather than an enlightened change of policy. I’ve reproduced my quote in full below:
Labour MP Sheila Gilmore has also been campaigning for more effective reassessments since the first negative reports appeared.
She told The Independent: “For many individuals it will be a relief not to be called back for reassessment every year, or even more often. Some people winning appeals find themselves recalled for reassessment within a few weeks of winning their appeal. But this is not a planned reaction to the problem of too frequent reassessments, but a panic reaction to a crisis causing unacceptable delays for people claiming both ESA and PIP. A panic reaction that Ministers failed to announce to MPs yesterday, despite being asked several questions about the delays from MPs. A panic reaction that claimants wouldn’t have ‘officially’ known about since it wasn’t made public and so many people will continue to worry in anticipation of being asked in for a reassessment.
Ms Gilmore raised concerns that Atos would still carry out assessments for PIP in spite of the issues with the Work Capability Assessment. She added “It is clear that ATOS is not coping with all that it has taken on. My question to the Minister yesterday was why when concerns about ATOS capacity and quality were clear last year, they were awarded a new contract for PIP. It is a different assessment but the organisation clearly hasn’t got the capacity. Over frequency of reassessments is something I have raised in previous debates with Ministers, and something which many campaigners have been raising for a long time, not only because of the stress to individuals but the extra costs involved. It would be good to think that the Government had finally accepted this argument – but this sort of panic measure is no substitute for looking properly at the way the test is structured and administered.”
Benefits and Work also highlight the fact that DWP Ministers were answering questions in the House of Commons on the day this development emerged – 24 February – and despite being asked explicitly what they were doing to address delays in the ESA claims process, they failed to reveal this change of policy. I raised this in a point of order on 26 February, and again in a debate on welfare reform on 27 February, saying:
The Government have been adamant until now that they had to carry out frequent reassessments of people, and they would not stop even when cases were clear cut. “Oh no, we have to do these reassessments”, we were told, but now they are suddenly in a panic because the assessors cannot cope, and it is, “Actually we don’t need to do these reassessments after all, but we won’t bother telling people that they might not be called up in the next few months. We won’t even bother telling MPs.” The Minister was here on Monday for Work and Pensions questions, and he never breathed a word about it.
Although Disabilities Minister Mike Penning acknowledged the change, he argued that it was relatively minor , and didn’t merit raising in the Commons three days earlier. Here’s what he said in response to my colleague Kate Green:
Kate Green: My point is on the WCA, and I hope that the Minister will address the question that I and my hon. Friend the Member for Edinburgh East (Sheila Gilmore) raised about the suspension of reassessment of ESA claimants for the next two years. Will he tell us why the Department appears to have decided not to inform claimants or Members of Parliament about that?
Mike Penning: If we were to inform claimants and Members of Parliament about the minutiae of every single change in policy, we would be here a lot longer. As most Members know, I am not hugely party political, but I must point out that the previous Administration did not offer that level of information either. That is not how Governments work. We are trying to deal with the delays, and to ensure that people get what they are entitled to as quickly as possible and that nobody will be worse off while we are doing that. We are, however, in the middle of a really difficult negotiation with Atos over the WCA.
Interestingly Benefits and Work later carried a statement from DWP suggesting that the Minister was wrong to suggest this was a policy decision, describing instead as an issue of process.