In making the case that too many sick and disabled people are being wrongly assessed as Fit for Work, I regularly refer to DWP’s quarterly statistical bulletin ESA: outcomes of Work Capability Assessments. In particular I use Table 1a – which professes to set out the number of people declared Fit for Work and awarded ESA immediately after the completion of the initial Work Capability Assessment – and 3 – which sets out the number of people who appeal Fit for Work decisions and, of those, how many decisions are upheld and overturned. The key point here is that Table 1a was – to my understanding – a barometer of the effectiveness of the initial WCA process, and that alone.
However in September 2013 welfare rights specialist Nick Dilworth suggested to me that Table 1a does not set out the number of people declared Fit for Work and awarded ESA immediately after the completion of the initial Work Capability Assessment. Instead this table already takes into account the outcomes of applicants’ requests for reconsideration – in other words informal appeals to DWP Decision Makers.
As a result, the table implies that more people have been awarded ESA and fewer people have been declared Fit for Work than is actually the case after the initial Work Capability Assessment. Table 1a thus underplays the extent of the failings of the Work Capability Assessment.
I raised this in a letter to Mark Hoban – then the Minister responsible for this issue – on 27 September 2013. The reply from Esther McVey – another Minister at DWP – dated 2 November 2013 confirmed my suspicions, and I subsequently circulated a press release on 13 November 2013.
December 2013 letter to UK Statistics Authority
I then wrote a letter to the UK Statistics Authority on 20 December 2013, and again circulated a press release. I received a reply from the Chair of the UKSA, Sir Andrew Dilnot, on 21 February 2014, in which he says:
We have concluded that the title of Table 1a in the quarterly statistical release Employment and Support Allowance: outcomes of Work Capability Assessments, Great Britain is potentially misleading, as you suggest, and we will be asking DWP statisticians to consider an alternative labelling so as to correct this and to alert users to this issue. The Authority will review compliance with this request as part of following up on our recent statutory assessment of these statistics, and this will therefore inform in part our consequent decision as to whether to confirm the designation of this set of statistics as ‘National Statistics’.
April 2014 Westminster Hall debate
I set out my reaction in a further press release on 24 February 2014, and raised this issue in a debate in the House of Commons ante-chamber Westminster Hall on 9 April 2014. You can read a transcript of the debate here, but I also issued a press release beforehand.
I called on the Minister to revise the format of this bulletin in future so that Table 1a does not take account of reconsiderations and simply sets out the number of people declared Fit for Work and awarded ESA immediately after the completion of the initial Work Capability Assessment. I also called for a separate table for reconsiderations modelled on Table 3 for appeals, and a combined table for reconsiderations and appeals modelled on Table 3. I argued that only once we have these new tables will we get an accurate picture of the effectiveness or failings of the initial WCA process.
While the Minister Mike Penning did make some tenuous commitments to publish such statistics in the future, he suggested this wasn’t necessary in the short term, argued that he didn’t have the power to take decision himself, and gave himself some wriggle-room in terms of what would actually be produced.
April and May 2014 letters to UK Statistics Authority
I raised concerns about all three points in a further letter dated 30 April 2014 to Sir Andrew Dilnot. I argued that ESA claimants have been encouraged to use the reconsideration procedure since October 2008, and thus Mike Penning cannot argue that the publication of reconsideration statistics is not necessary at present – clearly it is.
I also highlighted the recent drop in the number of appeals. For example statistics published in April 2014 suggests that no claimants who applied for ESA in December 2012 and were found Fit for Work subsequently appealed this decision, despite the fact that between October 2008 and July 2011 at least 40% of claimants found Fit for Work chose to do so. Again this point was reinforced by Judge Martin’s evidence. In answer to Q109 he said:
HH Judge Robert Martin: The figures have just fallen away remarkably. In March 2013, in a single month we had something like 37,000 Work Capability Assessment appeals. In March this year, from my enquiries of regional judges, we think probably less than 1,000 is our estimate.
It’s also worth noting that DWP have, in the past, published some limited statistics on reconsiderations in answers to written parliamentary questions – see here for example. This suggests that they have access to the data, but that – as this subsequent answer shows – they’re now choosing not to publish it.
I then wrote a further letter to Sir Andrew Dilnot again on 15 May 2014 following evidence to the Work and Pensions Select Committee on 7 May 2014 from Judge Robert Martin, who is in charge of all ESA appeals, where he emphasised that DWP were reconsidering every case that was appealed prior to mandatory reconsideration coming in.
I received a reply from Sir Andrew dated 13 June 2014. It contains an exchange of emails between his office and the Neil McIvor, the Deputy Head of Profession for Statistics at DWP. Mr McIvor explained that although some data on reconsideration outcomes is available, this is currently indistinguishable from that on cases where a Decision Maker has taken a decision contrary to advice from Atos. He also confirmed that they hope to publish mandatory reconsideration statistics before the end of 2014, and will endeavour to publish pre-mandatory reconsideration statistics as well. While obtaining these commitments in relatively clear terms has taken longer than I might have otherwise hoped for, I welcomed this in a press release on 9 July 2014. I’m also happy to acknowledge that the compilation of reconsideration statistics won’t be entirely straightforward, as the DWP documents I highlight here explain that the data currently published is itself compiled from three separate data sets.
Sir Andrew also said that the relevant Head of Profession has sole responsibility for deciding on the content and timing of statistical releases, that those producing statistics should be protected from political pressures, and that Ministers – like other users – can ask for specific statistics to be published. However he also notes that decisions about the allocation of resources to the publication of statistics rests with the relevant Minister, and states that he would like to see Heads of Profession report to UKSA and UKSA have a role in spending on statistics.
The need for DWP to publish reconsideration statistics was further reinforced by the Work and Pensions Select Committee’s July 2014 report on ESA.
June 2014 House of Commons debate
I secured a further debate on reconsiderations on 16 June 2014, during which I highlighted evidence that former Minister Chris Grayling gave to the Work and Pensions Select Committee in 2012, in which he acknowledged that almost every appeal was being reconsidered. He said in response to Question 6:
It is too early to be certain because, with the timetabling, we started doing the assessments last June. We now do a reconsideration in virtually every case.
He then said in response to Question 16:
We have done it by effectively putting every case that is going to appeal, or where a person is not happy with it, through a reconsideration where we look for additional evidence with the result that, from the very early numbers of appeals we have studied, there is almost no new evidence coming forward at that stage anymore.
In response the Minister simply said:
I would love the data to be published now, but it is not ready. As soon as it is ready, I will publish it. As I said to the Select Committee recently, the statistics are being analysed and they will be published as soon as they become available.
I can assure you I will keep up the pressure on this issue.