Did Lord Freud give Peers a clear picture of the Work Capability Assessment?

Last week, members of the House of Lords debated the Government's proposals to reform the Welfare System. Since the debate, doubts have been raised over some remarks made by Welfare Reform Minister Lord Freud in regard to the system for Employment and Support Allowance (ESA), the successor to Incapacity Benefit.

His remarks about the Work Capability Assessment (WCA) — the process through which eligibility for ESA is decided — were disputed on Diary of a Benefits Scrounger, focussing on the following remarks:

1. "The assessment was designed to take account of chronic and fluctuating conditions. It is not intended to be a snapshot but looks at what someone can do reliably, repeatedly and safely."

2. "It takes account of the effects of pain and fatigue." 

3. "All available evidence, including that from GPs or specialists, is fully considered by the department's decision-makers."

Were the remarks made by the Minister to Parliament an accurate reflection of the WCA process? 

1. Chronic and Fluctuating conditions:

This is an area where the government appears to have accepted there is a problem that needs to be addressed.

In 2010 an independent review of the WCA process was conducted for the Department by Professor Malcolm Harrington of the University of Birmingham.

His review stated: "Some conditions are more difficult to assess than others. This appears to be the case with more subjective conditions such as mental health or other fluctuating conditions. As a result, some of the descriptors used in the assessment may not adequately measure or reflect the full impact of such conditions on the individual's capability for work."

Professor Harrington also identified "problems in identifying the effects of fluctuating conditions due to the closed questioning used by some assessors. A number of anecdotal reports presented to the review, either in writing or at the seminars, stated that individuals were not allowed or afforded the opportunity to expand their answers, or to describe good and bad days."

His review recommended that further work be conducted on arriving at a better set of descriptors for assessing those with fluctuating conditions. DWP accepted this recommendation and this work is currently under way.

That such work is being carried out suggests that the Government accepted that the initial system did not sufficiently take account of chronic or fluctuating conditions.

However the exact wording of Lord Freud's remarks is that the system was designed to take account of such conditions. The above information doesn't prove it wasn't designed with these conditions in mind, but it does suggest that if it was designed in such a way, it was a design the Government has accepted can be improved upon.

Professor Harrington is due to publish a further report which will include recommendations for how to more effectively assess those with variable conditions before the end of the year.

2. Pain and fatigue

As with chronic conditions the Harrington review flagged up problems.

For instance it stated: "There have also been cases mentioned by individuals and rights groups where the repeatability of a task has not been fully taken into consideration in the assessment. In some cases claimants have not scored against the appropriate descriptor because they can complete the task, even though attempting the task again would not be possible or very difficult due to pain or exhaustion"

The review also included evidence from the MS Society which stated that recognition of symptoms like pain and fatigue was poor.

As with fluctuating conditions the review recommended that descriptors for generalised pain could be re-examined.

Another problem for the Harrington review was that those being assessed were not being given sufficient opportunity to give details of their conditions to assessors.

A recommendation of the review was that the initial ESA50 form should include space for a personalised explanation of a person's limited capability for work. The Government accepted this recommendation.

In a couple of areas the limited capability for work questionnaire form does invite people to give details of how tiredness or pain impinges on their ability to do certain actions.

In terms of the medical assessment the descriptors do not mention fatigue or pain specifically. However the guidance notes on the process published this year state: 

"The approved healthcare professional will consider all the information and exercise clinical judgement to reach an opinion on the nature and severity of the effects of the disabling condition. 

"They will also take full account of factors such as pain, fatigue, stress and of the possible variability of the condition. For example, if the claimant can perform a particular activity only by incurring a considerable degree of pain, they will be classed as being incapable of performing that activity.

"The approved healthcare professional will also consider the effects of the condition on the claimant for the majority of the time, so that the opinion will not be based on a snapshot of their condition on the day of the medical assessment."

So while this does not give any indication of how much weight assessors give to this in practice, it does at least give some indication of what Lord Freud was getting at with his statement.

3. All available evidence?

Again the guidance states that "the decision maker must make a decision by considering all the evidence and applying the law to the facts of each claim."

If a claimant is considered ineligible for ESA by the medical assessment, the guidance does state that other evidence can be considered.

However Professor Harrington's review stated that the medical assessment " has come to form almost all of the assessment", as in two per cent of cases the final decision did not concur with the medical assessment of a person as fit for work.

This was based on data up to June 2010, and DWP have since responded to some of the points raised in Professor Harrington's report, so more up to date data would be useful.

However DWP told us that figures on this are not published so we are unable to say whether there has been any movement from the figure cited by Professor Harrington.

But the information available does suggest that a small proportion of decisions on payments for eligibility are based upon information that is in conflict with the Atos assessment.

But looking back to Lord Freud's remarks, this information does not on its own show that information other than the assessment is not fully considered.

In an interim report published earlier this year, Professor Harrington reported that those making the final decision on ESA applications "are already beginning to feel empowered to make decisions that do not simply 'rubber stamp' Atos recommendations".

However the report also stated: "Unfortunately the charities did not report back the types of positive changes I had seen in Aberdeen and Plymouth".

Conclusion

Much of what Lord Freud told peers last week does have some grounding in official documentation. This does not stop it from being contentious. 

All three points were flagged up as areas of concern by an independent review. However the Government's response to the review suggested changes to the system would be implemented, for example with the ESA50 form.

Though there is a clear possibility of a gap between official guidance and reality on the ground, without further comprehensive analysis of the system it is impossible for us to say his remarks are inaccurate in a way that would necessitate a correction to the Parliamentary record. 

Professor Harrington is due to publish a further report specifically on the how the system responds to people with fluctuating conditions, later this year.

Only when this report is available will we be able to assess how much of a gap exists between the rhetoric and reality exists.