Work Capability Assessment - getting better?

A recent case dealt with by Disability Rights UK’s Tribunal Support Unit highlights several of the current issues affecting disabled benefit claimants.

Our client was a woman who has long-term depression and anxiety. Despite health problems she had been in work for much of her life, but experienced several periods when her condition worsened and she was forced to claim benefits for a while. Her current period of ill-health had lasted a couple of years, during which she had claimed ESA, but she was starting to feel better and had some hopes of being able to return to work in the not too distant future, when she was called in for a work capability assessment (WCA).

The ATOS healthcare professional (HCP) who examined her clearly had little or no experience of dealing with mental health issues. The HCP did assess her as scoring 6 points for difficulties in coping with social engagement, but gave her no other points, meaning she had her ESA withdrawn. This was despite having provided a fairly clear and full account of the difficulties she faced on a day to day basis, most of which was noted in the examination report but virtually ignored in assigning points.

Our client appealed, and was fortunate enough to have the support of her GP, who provided her with a detailed report that dealt with all the areas where her condition was relevant to the descriptors. Despite this clear evidence, the DWP’s reconsideration of the case simply concluded that the HCP’s report was detailed and should be accepted.

The appeal took a year to come to hearing. There was nothing unusual or complicated about the case, the delay was simply down to the appeals system creaking under the pressure of so many appeals – most of them ESA appeals. In 2010/11 there were 179,000 ESA/IB appeals alone. Eventually the case was listed, but at this point our client ran into another problem faced by many appellants – trying to find a representative.

She approached her local CAB but although they do appeals, they were unable to provide a rep in this case due to being over-stretched and lacking the resources. Luckily, the volunteer adviser who dealt with the case knew of the Tribunal Support Unit and emailed us, not expecting that we would be able to help, but not willing to simply turn the client away without any help.

We were able to take the case on, and met the client at the CAB. It was quickly clear that the client had a good case, she would struggle with most of the activities in the mental functions section of the WCA, and seemed to be a long way from being ready to go back to work. We arranged to meet at the tribunal, although I felt that she might not be able to face the hearing even with her husband’s support.

Our client made it to the hearing, and after a quick chat in the waiting room, we went in to the tribunal room. The hearing lasted less than five minutes – the tribunal judge told us as soon as we sat down that having read the papers it was obvious she should score more than 15 points, and that they had decided to award 9 points for our client’s difficulties going out alone. So the client went home knowing she had got her full ESA back, including arrears.

Sadly, there is nothing to set this case apart from thousands of others. The HCP seemed to know little or nothing about the health condition, despite the Government suggesting it has accepted all of the WCA review recommendations including on mental health. The client explained how her condition affected her, but the HCP awarded points that bore little relation to the problems experienced by the client. The DWP “reconsidered” the decision, but ignored the detailed opinion of the GP in favour of a report based on a 30 minute interview that didn’t reflect most of what the HCP was told. What was frankly a run of the mill case took a year to come to hearing and the client struggled to find a rep.

None of this would be at all unfamiliar to any welfare rights adviser.  We’ve all seen similar cases time after time, and many of the problems are likely to get worse. There is no sign that the standard of WCA examinations is improving – any decline in the number of successful appeals is most likely due to changes to the points system designed to make it harder to qualify for benefit. The Government is going to force claimants to ask for a reconsideration before they can appeal – slowing the process down even further with no reason to think the standard of decisions will improve. Planned cuts to Legal Aid and Council cuts will make it even harder to find representation – up to half the CABx in the country are apparently at risk of closure.

This case worked out happily for the client, although her health suffered during the year she was waiting. She can now hope to start moving in the right direction again. For many other claimants things don’t look so positive, and things are worryingly likely to get worse before they get any better.

Disability Awareness Week at South Thames College

A couple of week's ago I spent half a day at South Thames College in Wandsworth, London, speaking to hairdressing and NVQ Sports students about disability rights. It was part of the College’s Disability Awareness Week, something I wish all colleges did. The week was organised with the Time to Change campaign.

Being a post 16 education policy adviser at Disability Rights UK means I spend most of my time reading or writing up reports, and as resources are tight I usually correspond with students through our online networks. It was such a treat to actually go out to a college and meet with students.

I used to be a teacher, many years ago and I even taught in a college in Nottingham for a term. So not only was it great to get into the college to spread the word about Disability Rights UK and disability equality but it was lovely for me to be back in the education environment.

I couldn’t have been given two more different classes to talk to! The hairdressing class was made up of predominantly women, most of whom spoke English as a second language. In fact the class was a joint hairdressing and English language class. Whilst the Sports class were predominantly young men, who on first impression seemed like they’d be happier on the football pitch than in a classroom.

I was so impressed though by all of the students’ respect and interest in the subject of disability rights. They asked lots of very relevant questions, getting a good discussion going about what disability is, why some disabled people may be reluctant to disclose their disability, society’s attitude towards disability, why reasonable adjustments are made and what types of adjustments can be made in hairdressing and sports classes. We even focused on what they would do when leaving college; looking at reasonable adjustments in hair dressing salons and for sports teams and facilities.

Of course the talks were also a great opportunity to promote Disability Rights UK services, like our student helpline and publications (details below). The next day our two helpline advisors also attended the college to give talks and run a stall at the college’s lunch time exhibition. This was a great opportunity to recruit more students to our online disabled student network who help us with research and providing us with case studies.

In fact if you’re interested in being part of our online disabled student network please email me at Natalie.salmon@disabilityrightsuk.org

As promised here are the details of our helpline and website:

Student Helpline: 0800 328 5050

The Helpline is open: Tuesday 11:30 - 1:30 and Thursday 1:30 - 3:30

At all other times you can email our advisors on: skill4disabledstudents@disabilityrightsuk.org

Our publications can be found here:   http://www.disabilityalliance.org/skillpublications.htm

Natalie Salmon

No more defending the indefensible

“It is perhaps ironic that many of us spent the 1970s criticising the welfare state, only to find that these arguments were built upon and taken much further by a government determined to reduce state expenditure. Consequently we spent the 1980s defending what we had previously attacked. In sum, we defended the indefensible and I do not propose to spend the 1990s doing the same”

Mike Oliver Speaking out: disabled people and state welfare 1991

The animating principle of disability rights in the UK – and internationally - can be described as follows:  people with impairments or health conditions are denied the opportunities and support to enjoy the rights and assume the responsibilities of citizenship.  The object of public policy should therefore be remove barriers, provide support and create the opportunities which allow people with impairments or health conditions to take control of their own lives and to participate fully as equal citizens.   This is the principle which has underpinned the gradual accumulation of disability equality law, the development of policy and programmes to support independent living and initiatives such as Access to Work in the UK.  It is the principle on which the United Nations Convention on the Rights of Persons with Disabilities, which the UK ratified in 2009, is built.  Of central importance is the recognition that for many disabled people equality and independence demands more than just an ‘open door’ - significant numbers require the financial and practical support to pass through it.   The Minister for Disabled People, Maria Miller, appears to acknowledge this in the foreword to ‘Fulfilling Potential’ when she says of independent living “This does not necessarily mean disabled people doing everything for themselves, but it does mean that any practical assistance people need should be based on their own choices and aspirations.” 

Yet this is not, nor has it ever been, the animating principle when it comes to disability in the context of the welfare state.  In this context disability is an administrative category of need, presumed to place people temporarily or permanently beyond the responsibilities of citizenship by virtue of illness, injury or other forms of incapacity.  The objective of public policy is to insure people and to look after them through financial transfers or care, in lieu of their inability to look after themselves.  Entitlement to such support is at the discretion of national and local government, based on complex, medically focused and costly systems of eligibility and processes of assessment.   The past two decades have witnessed ever tighter eligibility criteria in response to rising demand, depleting resources and shifting social attitudes, coupled with the increased employment of conditionality and sanctions and a major focus on combating fraud.  This has intensified in the context of the austerity measures being implemented following the 2010 Spending Review. 

As a consequence, the same Department of Work and Pensions which houses the Office for Disability Issues and which has been in the vanguard of promoting independent living, presides over welfare reforms which distinguish ‘genuine disabled people’ from those who are considered able to work.  The idea that ‘genuine disabled people’ are those who cannot be expected to look after themselves and are therefore incapable of independent living has a powerful grip on the public psyche and as a consequence undermines disabled people’s claims to self-determination, equality and inclusion.  As Matthew Taylor, Chief Executive of the RSA recently argued “Defenders of generous social entitlements reasonably argue that such entitlements are necessary to provide people with the means to live in dignity and with some control over their lives, but most of us tend to feel that dignity and freedom lie in self-respect and independence, virtues not always associated with the bureaucratic benevolence of the state.”  

A recent YouGov survey for Prospect magazine[1] appears to confirm this: 69% agreed with the statement that “Our welfare system has created a culture of dependency.  People should take more responsibility for their lives and families.”  Some have taken heart at the Survey’s findings in relation to support for disabled people: whereas between 40-45 % of the public supported lowering taxes to cut support for unemployed people on benefits and for unmarried single parents, only 11% supported this measure in relation to supporting disabled people via Disability Living Allowance.   But we should be very cautious about celebrating this.  Does it reveal widespread public support for independent living, or – given the overall view expressed by the public – suggest that a great many of the 89% of the public who opposed cuts to disability benefits believe disabled people to be incapable of assuming responsibility for their own lives?   I err towards the latter conclusion, and suggest it represents attitudes which the human rights campaigner Abina Parshad-Griffin once described beautifully as ‘malevolent benevolence’.  

The persistence of such social attitudes and the barrier they present to progress on disability rights is precisely why Article 8 of the United Nations Convention on the Rights of Persons with Disabilities places such emphasis upon changing public attitudes through promoting the ‘capabilities and contributions of persons with disabilities’.   Yet the terms of the present political and public discourse regarding disability do nothing to support such public awareness and understanding.  So, for example, government and influential parts of the media urge the public to question the authenticity of those claiming disability benefits.  This has for a number of years now been employed to soften public opinion to applying greater conditionality to disabled people and to moving greater numbers onto less generous out of work benefits, blurring messages about fraud and eligibility.  Since the emergency budget of 2010, this strategy has been extended to cover other areas of support, including Disability Living Allowance and Housing Benefit.  The effect created is public suspicion, sometimes manifesting as hostility, not public receptiveness to the rights of disabled people – let alone recognition of the value of the state supporting disabled people’s capabilities and contributions.   

At the same time, disability activists have sought to protect benefit entitlements by emphasising disabled people’s incapacities and vulnerability.  An earlier example of this resulted in registered blind people being automatically exempted from work-related activities up until the mid-2000s.  Today disability campaigners celebrate having secured exemptions for people with terminal illness while Atos, which is contracted to conduct the Work Capability Assessment, is hounded for determining that some people with long-term health conditions are fit to work.  Yet from a disability rights perspective we would label as discrimination either group being denied or sacked from a job by an employer on the basis that it considered that their impairment or health condition rendered them de facto unfit to work.  Similarly, following the recent announcement regarding the closure of Remploy factories, some disability activists and trade unions suggested that those who faced redundancy were de facto unable to work in mainstream employment, with the GMB Union describing the closures ‘an assault on the most vulnerable in society’.  Does this conflicting discourse help to explain why in the 15 years since the first Disability Discrimination Act became law, the employment rate of disabled people has increased only marginally, stubbornly refusing to pass the 50% mark and sitting way below this level for people with learning disabilities and people with mental health problems, despite much of that period witnessing unbroken economic growth and almost full employment?     

The welfare state – and public discourse surrounding it - is so dominant in British life that its very design shapes public perceptions of its clients. As presently configured it is frequently the enemy, not the ally of independent living and of disability rights more generally.  Its design does not promote the ‘capabilities and contributions of disabled people’ because for the welfare state – as with dominant ideas around dignity and freedom – accessing its support requires people to exhibit precisely the opposite characteristics.  The terms of the debate about welfare reform make dependence a precondition of receiving support and define independence precisely as ‘doing everything for oneself’. As a consequence, people who require state support in the form of benefits and services have little choice but to avoid exhibiting individual agency or potential as doing so invites only suspicion, hostility and re-assessment.  The welfare state offers compensation where it should promote capabilities.  It invokes derision and suspicion where it should build confidence and foster more positive attitudes and expectations.  And it is enormously wasteful, both of public money and people’s lives.  Many disabled people face more red-tape in seeking the support to live an ordinary life than the average small business.  Despite this, history is repeating itself for the reasons Mike Oliver highlighted at the close of the 1980’s.  Faced with dependency-creating supports or nothing at all, disabled people have had to continue to ‘defend the indefensible.’ 

It is tempting, in the light of the Welfare Reform Bill and wider reforms and spending decisions, to ‘batten down the hatches’ and adopt only the politics of opposition.  This would be a mistake.  History shows us that the greatest successes of the disability movement have come from innovation and vision, not reactive opposition.  Away from the white heat of  the Welfare Reform Bill wider debates are emerging about ‘21^st Century Welfare’, about the  relationship between citizen, State and society, about fairness and responsibility and about the sustainability of approaches to care and support in our ageing society.  Disabled people have a leading role to play in these debates.  As Jenny Morris recently concluded: “it’s no good continuing to fight our battles within the context of the intellectual and political space which the disability movement has very effectively carved out over the last 20-30 years. Instead we have to carry those concepts and ideas into the wider arena of not only social policy but also economic policy”

Disabled people should be advancing new models of welfare and public service reforms, not confining themselves to defending existing models.  And these new models will require a far deeper and more far reaching reform, not only of the services and benefits themselves, but of the assumptions and principles underpinning them if we are ever to come close to achieving the goals of the UNCRPD.   It will require nothing less than a fundamental shift from a social welfare state to what we might term a ‘social development state’, which invests in and helps develop and maintain individual freedoms and capabilities and through doing so encourages and supports contribution and reciprocity.   

In my next blog I will begin to flesh out what the ‘social development state’ might look like in practice and the arguments that might help it win public and political support. 

Neil Crowther

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[1] YouGov survey for Prospect magazine, March 2012

A right to independent living has never made more sense

On 1 March the Joint Committee on Human Rights, launched its report of the year-long enquiry into article 19, the Right to Independent Living. Why, when the UK has been considered a world leader in this field, did I as a member of the committee, call for the Inquiry as a matter of urgency?

In too many parts of the world, including Europe, disabled people cannot exercise the same freedoms to live with safely and dignity. In many cases they are obliged to live In institutions or situations, isolated and excluded from the main community, making their circumstances extremely vulnerable.

Thankfully, such practice no longer characterised the general situation in the UK. Successive governments have worked alongside disabled people over the past three decades to build a framework of independent living support, necessary to bring disabled people out from behind closed doors and participating as active citizens. The Equality Act, Direct Payments, the ILF And the Right to Control, have combined to create circumstances possible for equality and human rights to mean something real to disabled people. Basic rights; a right to family life, freedom to come and go without asking permission, privacy. All these fundamental rights that UK citizens take for granted, many of us simply dreamt of.

The UK has become a world leader in public policy and legislation which has begun to place more power in the hands of disabled people to assume control over their own lives and to be included in all areas of life.  This has been transformative for many – including myself - offering life opportunities thought impossible only two generations ago.  

Independent living has not come without investment, cross government collaboration and cross-party support. Alarmingly, the past few years have witnessed a storm of national and local public policy and spending decisions directly associated with disabled people’s opportunities to live independently and to be included in the community.   Hence the Joint Parliamentary Committee on Human Rights (JCHR) agreed it was an important moment to take stock of the progress the UK is making in implementing Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).  Article 19 requires that the UK Government, and the devolved administrations, take steps to ensure that disabled people enjoy equal rights to others to choose where and with who to live, that they are not obliged to live in a particular living arrangement and are not segregated or isolated from the wider community. 

Worryingly, we found little evidence of Article 19 having been given due consideration in decisions which taken together will transform, for good or ill, the enjoyment of the right to independent living in the UK.  This includes measures to reform Disability Living Allowance and Housing Benefit, the decision to close the Independent Living Fund, local authority’s restricting eligibility for social care to ‘critical or substantial’ only. In addition changes to the operation of the Public Sector Equality Duty in England which, unlike its predecessor the Disability Equality Duty, no longer requires public authorities to involve disabled people. As the last 30 years of progress on independent living was largely due to involving disabled people in the solutions to their dependency and exclusion, this was raised as a significant setback.

This lack of regard to the Convention, coupled with the potentially retrogressive impact of these reforms, risks placing the UK in breach of its international obligations.   Disabled people who gave evidence to us expressed real fears about the future.    People who live in their own homes and hold down jobs, fear having to give up work and move into residential institutions.  Couples fear that they will be forced to live apart because they will lose the support that enables them to live together.  Young disabled people who have their own place with support from personal assistants fear having to move back to live with their parents, abandoning university degrees and hopes for securing paid employment.

As the evidence sessions progressed, I was struck by the absence of systematic government identification of these risks. 

It is for this reason that we recommend today, that the Government matches the commitment it has made in relation to the UN Convention on the Rights of the Child to give due consideration to the UNCRPD when making new policy and legislation.  We also recommend that disabled people should be fully involved in decisions affecting their lives, including in articulating a new national Disability Strategy.

We have concluded that there are inadequate legal safeguards to protect and promote the right to independent living.   We reject the reasoning of the Law Commission which counselled against the inclusion of independent living as a key outcome in reformed community care statute, and believe the goals of Article 19 – to ensure people have choice and control and do not become isolated or segregated from the wider community – are entirely consistent with what a modern social care statute should aim to achieve.  But living independently and being included in the community engages a broader range of actors than adult social care, including housing, planning and leisure departments, employment agencies and education bodies.   Hence we also recommend active consideration be given to a freestanding law to protect and promote the right to independent living. 

In times of austerity we should be doing everything in our power to make smart spending decisions and policy which optimise positive social and economic outcomes.  Ensuring that disabled people and their families can live independently and be included in the community is good economics at a time when we should be striving to minimise avoidable ill-health, premature institutionalisation and welfare dependency. 

Independent living has never made more sense.

Baroness Jane Campbell.