Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.

Work capability assessment: is it working?

Alison Gillies describes the main findings and recommendations of the recent Citizens Advice report on the WCA, and looks at the DWP proposals for reform.

Introduction
Citizens Advice briefing
DWP internal review
Conclusion
Notes

Introduction
Using evidence from CABx from the first year of employment and support allowance (ESA), Citizens Advice has produced a briefing on how the work capability assessment (WCA) is working in practice and what impact it is having on ESA claimants. There has also been an internal DWP review of the WCA which has made recommendations for significant changes to the assessment, which have been accepted by the Secretary of State.

Citizens Advice briefing
The Citizens Advice briefing, Not working,[footnote 1] highlights three main areas of concern with the WCA:

1. Seriously ill people are being inappropriately subjected to the WCA. This concern stems largely from the very limited range of 'exemption' categories within the WCA (i.e. claimants who are automatically treated as having limited capability for work or for work-related activity), but also relates to the way information about the claimant's condition is collected and the lack of flexibility within the test.

2. The WCA is not an effective measure of fitness for work. This second area of concern highlights the lack of recognition within the WCA of the impact of generalised pain and exhaustion and the seriousness of the underlying condition.

3. The way the WCA is applied is producing inappropriate outcomes. This last concern is about the way medical assessments are conducted and reiterates existing concerns about the quality of medical assessments for benefits. Particularly highlighted are reports of rushed assessments, inaccurate recording of claimants' answers and poor recognition of mental health problems.

The briefing recommends that there should be a full and independent review of the WCA, not just looking at the individual descriptors but, more fundamentally, asking the following questions:

• Who should be entitled to ESA?
• Is the WCA an effective tool in identifying those people?
• Are the medical assessments accurate?

More specific recommendations include:

• The range of exemption categories should be extended and there should be scope for greater reliance on written evidence to prevent claimants who are seriously unwell from having to undergo a medical.
• There should be greater flexibility for decision-makers, particularly to respond realistically to serious but short-term conditions.
• A 'real-world' test, based on the social model in disability, should be introduced as an additional test of incapacity for claimants who 'fail' the WCA.
• Guidance and training for health care professionals who carry out the medical assessments should be urgently reviewed.
• A variety of research should be undertaken, for example, into the reliability of the WCA.
• Claimants transferred from incapacity benefit and income support to the ESA system should be guaranteed a 'substantial period' on ESA in order to adapt to the more active regime.

DWP internal review
Background
The Health Work and Wellbeing Directorate was commissioned by the DWP to conduct a review of the WCA in 2009 to establish whether the test is achieving its aim of 'correctly identifying an individual's capability for work' and to consider the appropriateness of the WCA's content and how it can be amended to 'better account for an individual's adaptation to their condition'.[footnote 2] Following the report of the review in October 2009, a further, technical review by the Chief Medical Adviser was undertaken and the findings published as an Addendum to the initial report in March 2010.[Footnote 3] The proposed changes to the WCA contained report have been accepted by the Secretary of State, but there is no timetable, as yet, for their implementation

In contrast to Citizens Advice findings, the internal review reported that 'there was broad consensus among the experts that the WCA was performing according to design. The descriptors used in the WCA were indeed reliably identifying individuals according to capability.[Footnote 4] The review does, however, identify ways in which the WCA can be 'improved'. The main themes of the proposed changes are greater emphasis on adaptation to disability and removing 'unnecessary complexities and overlaps'. There is also, particularly in the Addendum, an acknowledgement of the particular difficulties caused by exhaustion and repetition of tasks. There are changes proposed to both the limited capability for work (LCW) test and the limited capability for work-related activity (LCWRA) test.

The main proposals for change are set out below.

Limited capability for work
Adaptation to disability
It is proposed that various activity areas and descriptors are significantly changed to reflect the ability of individuals to adapt to their health problems or disabilities, rather than the nature or extent of health problem or disability itself. For example, it is proposed that the current 'walking' activity ('walking with a walking stick or other aid if such aid is normally used') is changed to 'mobilising unaided by another person with or without a walking stick, manual wheelchair or such other aid if such aid can reasonably be used'.

The 'speech' activity will become 'making self understood through speaking, writing, typing, or other means normally used; unaided by another person'. The 'hearing' activity will become 'understanding communication by both verbal means (such as hearing or lip reading and non-verbal means (such as reading 16 point print) using any aid if reasonably used; unaided by another person'. The 'visual acuity' activity will become 'navigation and maintaining safety, using a guide dog or other aid if normally used'.

Within the 'picking up and moving' descriptors the phrases 'with either hand' and 'with both hands together' will disappear, envisaging a person who can, for example, pick up and move an item by means of wedging it between one limb and their body (such a person would now score no points).

The proposed changes are not only intended to reflect an individual's adaptation to their disability, but also to reflect possible adaptations to the workplace. For example, in the 'sitting and standing' descriptors the test will relate to sitting in an 'adjustable chair'.

Repetition and exhaustion
Changes are proposed to descriptors where exertion is a significant component. These changes are intended to better reflect situations where individuals have fluctuating conditions and / or experience fatigue or exhaustion. For example, in the 'mobilising' (currently 'walking') descriptors points will be given if the claimant's mobilising is sufficiently limited by 'significant discomfort' or exhaustion. In addition, there will be a further option of being unable to 'repeatedly mobilise' within a 'reasonable timescale' (a phrase ripe for disputed interpretation!). The 'significant discomfort or exhaustion' test will also be introduced to the 'standing and sitting' descriptors.

Disappearing descriptors
It is proposed that some activity areas are simply removed from the LCW test. The justification for this is the apparent risk of duplication - the idea that a claimant may score points from more than one activity area for what is essentially the same difficulty ('double scoring' resulting in 'misidentification for the appropriate support'). 'Bending and kneeling' is one such activity. The review describes it as 'an unnecessary requirement for the workplace'.[Footnote 5]

In the mental, cognitive and intellectual function assessment, 'memory and concentration' and 'execution of tasks' descriptors will disappear. The justification for this is that they, and the 'initiating and sustaining personal action' descriptors (which will remain), are essentially measuring the same disability and that they therefore provide a source of double or triple scoring. Similarly the 'dealing with other people' descriptors will disappear.

In the 'sitting and standing' descriptors, there will be a change in emphasis, away from a test of whether an individual can stand for a period of time without needing to sit down, or sit for a period without having to move, to whether they can 'remain at a work station' (either standing or sitting) for a period without having to move away. It will no longer be possible to score 15 points under this heading unless someone is unable to transfer from one seated position to another without the help of another person. This is in contrast to the current test where 15 points are scored for an inability to stand for more than 10 minutes without having to sit down, or sit for 10 minutes without having to move from the chair, or move from sitting to standing without help.

Some individual descriptors will disappear - for example, within the 'reaching' activity, 'cannot put either arm behind back as if to put on a coat or jacket' will go, as will 'cannot turn a star-headed sink tap with either hand' and 'cannot do up/undo buttons', within the 'manual dexterity' activity. These descriptors do not, apparently, reflect activities which are a required function in many workplaces.[Footnote 6] Also in the 'manual dexterity' activity, the inability to perform a function with one hand only will no longer score any points (e.g., 'cannot pick up a £1 coin of equivalent with one hand but not with the other') because 'if an individual is capable of carrying out an activity with one hand, then they have the capability of carrying out the activity'.[Footnote 7]

Downgrading (and upgrading) descriptors
It is proposed that some descriptors be 'downgraded', for example, in the 'mobilising' activity, 'cannot walk up or down two steps' will attract 9 points not 15. In the 'remaining conscious' activity, loss of consciousness at least once a month will score 6 points not 9. Any less frequent loss of consciousness will score no points at all.

In the 'speech' activity (to be recast as 'making self understood through speaking, writing, typing etc.') the test of strangers having great difficulty understanding you is to be upgraded from 9 to 15 points.

Simplification of descriptors
It is proposed that the continence descriptors are simplified. Currently there are three separate activity areas depending on whether the individual with continence problems has a catheter, a stoma, or neither. The changes will result is a much more straightforward set of questions relating to whether the individual experiences incontinence, or leakage from a collecting device, to the extent that they have to clean themselves and change their clothing. If this happens at least once a month they will score 15 points. If they are at risk of it happening if they cannot reach a toilet quickly, they should score 6 points. There is no distinction made between bladder and bowel incontinence. This will be a more generous test for some claimants: at present, for example, a person who experiences bladder incontinence at least once a month only scores 6 points. The change may, however, impact negatively on those with a catheter or stoma who can currently score 15 points if they are unable to deal with it without assistance from another person. This particular difficulty does not seem to be reflected in the proposed new descriptors.

Limited capability for work-related activity
As with the LTW test, some significant changes are proposed for the LCWRA test (in effect, the test of whether the claimant should be in the support group). Some activities are to be removed - maintaining personal hygiene and eating and drinking. New activity areas are to be introduced - 'awareness of hazard', coping with change', 'coping with social engagement' and 'appropriateness of behaviour'.

Other changes to existing descriptors include:

• 'Walking' will change to 'mobilising' and the distance covered will change from 30 metres to 50 metres. Account will be taken of inability to repeat the activity, and of exhaustion.
• 'Rising from sitting and transferring from one seated position to another' will lose the 'rising from sitting' aspect.
• 'Picking up and moving something' will cease to refer to carrying out the activity with either hand and become a measure of whether the activity can be done at all - using whatever means the person can manage (e.g., wedging an item between their arm and body).
• 'Manual dexterity' will change to a different test ('cannot either press a button or turn the pages of a book') ·
• 'Communication' activity is to be simplified and divided into two areas, 'making self understood' and 'understanding communication'.
• The existing three activity areas relating to continence (depending whether the claimant has a catheter, stoma, or neither) are to be simplified into one descriptor which relates to experiencing, at least once a week, incontinence or substantial leaking of a collecting device to such a degree that the person has to clean themselves and change clothing.

The review also proposes that claimants who are likely to receive chemotherapy within the next six months are automatically treated as having limited capability for work-related activity.

Conclusion
To a limited degree, some of the issues raised in the Citizen's Advice report are addressed in the DWP review: specifically, the very limited expansion of the support group, and the acknowledgement of the impact of exhaustion. In general, however, the proposed changes are unlikely to resolve the main problems identified by Citizens Advice but will undoubtedly result in more claimants being refused ESA by making what is already a harsh test even harsher.

Notes
1. CAB briefing, Not working: CAB evidence on the ESA work capability assessment, March 2010 [back to text]
2. Health, Work and Wellbeing Directorate Work Capability Assessment Internal Review - Report of the working group, October 2009 [back to text]
3. Health, Work and Wellbeing Directorate, Addendum Work Capability Assessment Internal Review - Technical review by the Chief Medical Adviser, March 2010 Para. 4.1 [back to text]
4. Health, Work and Wellbeing Directorate, Work Capability Assessment Internal Review - Report of the working group, October 2009 [back to text]
5. Ibid., para. 4.3.1 [back to text]
6. Ibid., para. 4.3.2 [back to text]
7. Ibid., para. 4.3.2 [back to text]

Welfare Rights Bulletin 216 June 2010

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Visit www.cpag.org.uk/welfarerights to see our most recent articles and briefings.