Appealing a ‘Fit for Work’ decision

The Work Capability Assessment is used by the government to decide who is ‘Fit for Work’, and who can claim Employment and Support Allowance.

These tests have been controversial, and a committee of MPs has recommended that they should be fundamentally redesigned. It said they were too complex and too stressful for people taking them, with outcomes that were too simplistic.

On BBC Question time, Ken Loach said:

“We know that the Government knows it’s wrong, because if you appeal against the assessment, you will almost certainly win.”

Ken Loach, 27 October 2016

That’s not quite true, and it depends on what you count as an appeal.

If you make a formal “appeal” on a Work Capability Assessment decision, it's right that you're more likely to win than lose. The most recent data suggests that about three-fifths of appeals are successful.

The number of cases that actually make it to appeal has fallen substantially over the past few years. A higher proportion of appeals are successfully overturning the initial decision, but fewer cases are making it to that stage.

If you include “mandatory reconsiderations”, the stage required before formal appeals can be made and where the case is looked at again, the chances of overturning an initial decision look less good.

Mandatory reconsideration

Before they can formally appeal a WCA decision, people have to apply for what’s called a ‘mandatory reconsideration’, where the Department for Work and Pensions looks at their case again.

Out of all Work Capability Assessments that were completed and had an outcome recorded between October 2013 and December 2015, 13% were disputed and went to mandatory reconsideration.

Out of all the cases that got a mandatory reconsideration, about 10% got revised. A small number of these went on to appeal, thought to be because claimants don’t agree with the revised group they are put in. 

66% weren’t revised and didn’t go any further.

About 22% weren’t revised and went on to complete an appeal (DWP told us that they don't know the number that went on to appeal, only the number that completed their appeal).

1% of mandatory reconsiderations weren’t cleared; 1% were withdrawn.

So if we look at all challenges to WCA decisions, including mandatory reconsiderations and appeals, the chances of overturning an initial decision look less good, according to these figures.

About 23% of initial decisions that were challenged eventually led to a decision being overturned—so just under a quarter—compared to the three-fifths of those that make it to the appeal stage.

It seems that, based on current trends, appeals are more likely to overturn a decision than mandatory reconsiderations.

This data only counts appeals completed, so it may exclude ones still in progress.  

Change over time

The number of appeals against ‘Fit for Work’ judgements fell significantly in around 2013. Numbers of appeals have remained low since then.

Various reasons have been offered as to why this is, and we’re still looking for a definitive answer.

Mandatory reconsiderations were introduced in October 2013 and are thought to have contributed at least in part to the low number of appeals since 2013. 

A range of respondents to an independent advisory committee to the government said that they were concerned that extra waiting time and additional complexity introduced by mandatory considerations was discouraging people from appealing a ‘fit for work’ decision. They said this was particularly the case for “vulnerable claimants”.

This doesn’t seem to explain the decline before mandatory reconsiderations came into place.

The committee’s report suggested that the decline beforehand may have been “driven by a decline in the number of people who have been determined as fit for work”.

Disability Rights UK told us that the interpretation of test regulations also became stricter and was likely to have made a difference to the number of fit for work assessments, challenges and appeals that were made.

Note

Information on how to appeal a decision is available from Disability Rights UK, or the government’s online guide to Employment and Support Allowance.

Correction 8 November 2016

We have removed the graphs from this article. The fourth graph contained an error. It said that it showed the proportion of all fit for work assessments that were successfully appealed. In fact, it showed the proportion of all fit for work assessments that led to an appeal outcome. We also felt the graphs created confusion, given the complexity of the system.

We also incorrectly concluded that the number of appeals (measured by the date the claim for ESA was made) had started to fall in the start of 2013, which didn’t account for the time lag between the start of an ESA claim, the 13 week assessment period (which can sometimes take longer) and the time when the appeal was made. The bulk of the fall came in the spring and summer of 2013. 

We also added in more detail about the outcomes of mandatory reconsiderations.