The legislation that introduced ESA also requires the Government to commission independent reviews of the WCA during its first five years of operation. In 2010 Ministers appointed occupational health specialist Professor Malcolm Harrington and he has since made a series of recommendations in three reports. While some improvements have been made, I would dispute the Government’s claim that they have implemented all of Harrington’s recommendations. For example:
- Professor Harrington recommended that Decision Makers should call applicants if they are placed in the WRAG or found fit for work and send them a short paragraph justifying their decision (see this written answer from 18 January 2012 to Tom Greatrex). Unfortunately, as the new independent reviewer Dr Paul Litchfield highlights in his report, this has been scaled back so that those placed in the WRAG group only get a call in advance of their first Work-Focussed Interview at Jobcentre Plus. This means that claimants may not be aware they have to participate in work-related activity until after it is too late to appeal. For more on this example see here. In a letter fated 11 September 2013, former Minister Mark Hoban had highlighted this practice as a means of compensating for the poor quality of DWP letters – clearly this defence is no longer available to him.
- In a 2013 a group of Court of Appeal judges found that the Government had failed to implement what they described as Professor Harrington’s ‘evidence seeking recommendation’ – whereby Decision Makers would actively consider whether they should seek out further medical evidence when dealing with applications from people with mental health conditions – and were thus in breach of the Equality Act.
This gap between the Government’s rhetoric and the reality was demonstrated when Paul Farmer, Chief Executive of Mind, resigned from a Committee supporting Professor Harrington’s review.
Fourth Independent Review
Responsibility for the fourth review was handed to Dr Paul Litchfield. He issued a call for evidence and I made a submission in August 2013, which you can read it in full here.
In the introduction to his report he made clear that his terms of reference didn’t restrict him in any way, but in the foreward he said:
I felt that the core of the WCA in which DWP Decision Makers operate should be my main focus for this year.
This meant that whole swathes of the WCA process were not addressed. Issues not covered include the use of regulations 29 and 35 – whereby claimants are awarded ESA if they would pose a risk to themselves or others if they weren’t – and the experience of those placed in the WRAG – including the use of sanctions.
Dr Litchfield also attracted some criticism for suggesting that the WCA is a “reasonable and pragmatic” test for eligibility for benefit and has been designed with considerable “rigour”, and his emphasis on the benefits of the simplicity of the system over real world experience. Some concern was raised in response to his suggestion that Decision Makers were awarding too many people ESA in spite of Atos advice – something that I also highlight here.
While I have my reservations about the issues not addressed in Dr Litchfield’s report, I think this is probably more down to DWP recruiting him to work on this for only two days per month, and I don’t agree with those who have accused him of bias or not acting independently.
Implementing previous recommendations
Dr Litchfield does make sensible recommendations and these are highlighted in the relevant section of my website. He also argues that most of the recommendations from Professor Harrington’s reviews have been implemented, although he criticises the lack of clear evaluation on the part of DWP. More broadly he says:
Departmental piloting appears to have had a strong focus on testing whether changes would be operationally practical but a weaker emphasis on whether they would result in the changes for which they were recommended.
Although Dr Litchfield doesn’t acknowledge this specifically, I believe this is particularly relevant to Professor Harrington’s recommendation on audio recordings of assessments. In their response from March 2014 the Government acknowledge this criticism but don’t then commit to redoing any previous inadequate work.
Dr Litchfield also calls on DWP to share information about claimant’s functional capabilities with Work Programme providers, but the Government only went so far as to ‘accept the recommendation subject to the outcome of further
work on feasibility’.