20 June 2023 – Universal Credit and Disability

Summary of the All-Party Parliamentary Group for Universal Credit Tuesday 20 June 2023 

APPG for Universal Credit Co-Chairs: Debbie Abrahams MP and Nigel Mills MP 

Speakers:  Dominic Milne, Legal Rights Officer, Disability Benefits Consortium, Jamie Thunder, Policy, and Public Affairs Officer, Z2K (Zacchaeus 2000 Trust)  

Topic: Universal Credit and Disability  

Minutes 

Introductory remarks by Nigel Mills MP

• Nigel Mills introduced himself and formally welcomed Debbie Abrahams MP, who co-chairs the APPG. 
• Introduction of the speakers: Dominic Milne, Legal Rights Officer from the Disability Benefits Consortium and Jamie Thunder, Policy and Public Affairs Officer from Z2K (Zacchaeus 2000 Trust)  

Dominic Milne, Disability Benefits Consortium

• Thank you for inviting me to speak today. I’m representing the Disability Benefits Consortium and also work for RNIB. 
• The Work Capability Assessment (WCA) has not been good for the disabled.
• The application of the criteria has alienated thousands of disabled people and served to disentitle them from income essential to their needs.
• This has resulted in their being subject to unrealistic work conditionality and, in many cases, unfair undeserved sanctions on their income.
• We consider this to be the case because of problems with accessing the WCA; the assessment process; decision-making; the application of the activities; and the application of the ‘substantial risk’ rule.
• There have been many issues with accessing the Work Capability Assessment over the past decade, particularly around the face-to-face assessment process.
• Some of these problems have been addressed in recent years, largely as a response to the pandemic, such as telephone and now video assessments (and a greater willing to carry out paper-based assessments).
• Maximus have endeavoured to improve access through consultation with stakeholders, but problems still sadly do exist, not least with the distribution of the UC50 form, a blockage that appears to regularly occur with the work coach.
• UC50 and ESA50 forms are still extremely difficult to complete for many claimants.
• Cases taking an extremely long time (some well in excess of a year), causing significant distress and hardship. 
• New style ESA claims are temporarily lapsing, as the WCA outcome determines ongoing entitlement. 
• Maximus have acknowledged that this is a major problem and have committed to prioritising these cases, but that unfortunately comes at a cost for others. 
• A Disability News Service article from last year reported on a Zeeta Osborn, from Hastings. Zeeta was assessed as having Limited Capability for Work (LCW) two years ago. Her original assessment (two years previously) looked only at her mental distress in the wake of her mother’s death but did not examine the impact of her scoliosis. This had worsened since meaning she was unable to work due to “excruciating constant pain” in her back, legs and arms, which meant she may well now have an entitlement to Limited Capability for Work-Related Activity (LCWRA).
• Zeeta contacted her work coach to request a new WCA and was told by the DWP that they were not currently offering repeat assessments to those already receiving UC and is only booking assessments for new claimants.

• This was confirmed on her UC online journal by DNS, stating that the DWP “are still working on new claims and the reassessments will not be taking place for the foreseeable future”.
• No LCWRA means no extra money and it also means inappropriate work conditionality applies. Failure to comply, or an inability to comply, with work conditionality results in sanctions (which are very frequently applied incorrectly and regularly removed on challenge). 
• The bottom line here is that the WCA failed Zeeta, and many other like her, by not providing at least a reasonably prompt WCA. 
• There are also problems with the assessment process, renowned for it’s problems and inaccuracies. Recent DWP audit results show that just 80 per of assessments carried out by Maximus were considered to have “fully conformed” to the company’s professional standards.
• Another 4.8 per cent of Maximus assessments – just inside the contractual requirement of five per cent – were found to have failed to meet “key requirements”.
• Mind’s research in March 2023 (ii) highlighted that 62% of people with mental health problems who experienced WCA assessments were left feeling their mental health had declined and 36% felt their PIP assessor did not understand their mental health problems. 
• Here are some quotes from RNIB customers on assessments: 
• “The Assessor seemed to have limited understanding of sight loss.  She asked me if I could drive and I said I could, but obviously not since I have been registered SSI/blind.  She asked me how did I know if I couldn’t drive if I hadn’t tried?  I explained that a consultant had registered me SSI and advised me that I was legally allowed to drive.”
• ”I felt that despite what you told them they did not believe you.”
• “I was surprised at the lack of knowledge around the assessment, and it felt like my assessment was for PIP and not for the ESA… the assessor misinterpreted my use of Braille and focused on my education even though I am 53 years old.” 

• Assessors tend to use ad hoc observation to make findings, ask irrelevant questions which both upset and confuse many claimants, are not specialised enough in the area they are assessing and ignore reliable and well-informed evidence given to them at assessments. 
• There are problems with decision-making. Government figures from October 2013 to March 2022 show that 26% of claimants who raised an Mandatory Reconsideration (MR) after the WCA went on to complete an appeal.
• Of the 100,000 appeals completed, 34% had the DWP decision upheld at hearing while the remaining 66% were ruled in favour of the claimant.
• In relation to the three-month period of January to March 2023, Ministry of Justice figures show that of the disposals made by the SSCS tribunal, 62% were overturned in favour of the claimant – this overturn rate varied by benefit type, with PIP at 68 per cent, DLA 59 per cent, ESA 50 per cent, and Universal Credit 53 per cent. 
• Information on WCA taken from Hansard in 2019 shows that the 2017 inquiry by the Work and Pensions Committee and disability charities received more than 3,000 letters from claimants who had experienced the assessment process. 
• 68% of those suffering from injury were found fit for work; 59% of those living with connective tissue diseases and 40% of those with mental or behaviour disorders were also found fit for work. 
• More than 100 people reported that they or someone they cared for had experienced suicidal feelings as a result of the assessment process. 
• Others highlighted a mismatch between what they had told assessors about their conditions and the content included in the assessor’s written report. 
• Here is an example of another case study: MJ suffered with sight loss, depression and anxiety. The medical evidence she had available from an occupational physician was extremely conclusive. MJ was refused LWC at her WCA and refused again at MR. They endured months of enforced work-seeking from a work coach with little or no understanding of her problems. We went to appeal with exactly the same medical evidence – the panel asked her five questions in a hearing lasting about ten minutes and immediately awarded LCWRA from the relevant date, three months after her first fit notes were provided. 
• But what happens to all those people whose assessment and/or decision was seriously flawed? Or who did not get representation?
• There are some general issues with the nature of the WCA activities. The test is intrinsically abstract in its construction and has little relevance to either work capability or work-seeking capability.
• Despite the intended application of the terms ‘repeatedly’ and ‘most of the time’, snapshot decisions are made regularly, which invariably do not take into account fluctuating conditions, or have any true reflection of the claimant’s reality.
• There are also issues with the implementation of the substantial risk rule. The claimant is suffering from a specific illness, disease or disablement by reason of which there would be a substantial risk to the physical or mental health of any person were the claimant found not to have limited capability for work and work-related activity. But this is not considered by decision makers anywhere nearly as often as it should be, a fact which is bailed out by the number of times it is implemented by appeal tribunals. 
• In summary, the WCA has sadly been failing huge numbers of disabled people, subjecting them to incorrect decisions, financial hardship through non-qualification and unfair and inappropriate work-seeking conditionality.
• Here is an extract from a report from Kings College in March 2023 – just before the publication of the white paper. 
• “The Work Capability Assessment (WCA) has long been criticised for its poor ability to accurately or meaningfully assess a person’s capacity for work. Moreover, it is a highly distressing experience for those going through the process, exacerbating mental health problems and in some cases being linked to suicides.”
• “We suggest that a more holistic assessment of work capacity – a different kind of conversation, that considers not only the (fluctuating) effects of health issues but also the range of personal, social and economic circumstances impacting an individual – might offer a less distressing and ultimately more productive approach to understanding work capability. 
• “Such a shift would reduce the need to focus on a state of medicalised incapacity and open up space in encounters for a more empowering focus on capacity, capabilities, aspirations, and what types of work are (or might be) possible, given the right kinds of contextualised and personalised support.”
• So what happens next? We still have 2 more years of the WCA, assuming it is scrapped as planned. No fundamental change is likely to the WCA in that time but guidance in the application of the WCA should be tailored to follow the new direction alluded to in the white paper that makes more allowance for the disabled in terms of conditionality. 
• We then have prospect of the new health element – using PIP qualification as a means of entitlement to the new health element of UC?
• DBC members are still weighing up exactly where we stand collectively on the matter, but the common feeling is that the introduction of the health element is fraught with danger and will lead to unwarranted disentitlement for many claimants who are not in a position to either work or satisfy work-seeking conditionality. 530,000 claimants currently receive LCWRA on ESA or UC but no PIP. These current claimants will be transitionally protected – at least initially – but what happens to the next 530,000 claimants who follow the same pattern?
• The WCA determines levels of conditionality in terms of work search and rights of appeal. The scrapping of the WCA effectively removes this and potentially leaves all conditionality decisions to a work coach. 
• This is an extremely worrying and precarious state of affairs (particularly in light of the very high numbers of unjust and incorrect sanctions applied to claimants). 
• What happens to all those waiting an inordinate amount of time for a PIP decision? And to those subject to a poor and inaccurate PIP decision?
• A final case study: FC applied for PIP on 02/09/2020. He was refused and given zero points. He went to Mandatory Reconsideration: zero points. He went to appeal: zero points. The appeal decision was set aside at the upper tribunal in late 2022. FC returned to first tier tribunal on 08/03/23  and by chance there was an eye specialist on the panel. Maximum PIP awards were made for 18 years from the original date. 
• What would have happened to FC if on UC during this time? Would he get backdating on the new health element?
• Thank you very much for your time. 

Jamie Thunder, Z2K 

• Good morning and thank you for the invitation to participate in this important session today. My name’s Jamie Thunder, and I’m the Policy & Public Affairs Officer at Z2K.
• Z2K, for anyone who doesn’t know us, is an anti-poverty charity that provides specialist advice, advocacy and representation about benefits and housing to people in London. In 2022, we supported over 1,000 people, and just in terms of money into people’s bank accounts in that year alone, secured people £1.3m in benefits, much of which relates to disability benefits, both within Universal Credit and within Personal Independence Payment. We also use the insights from our casework to campaign for changes in policy and practice.
• We’re also members of the Disability Benefits Consortium, so it’s great to have heard from Dominic just now. We recognise the issues he raised around the WCA and I’ll be reiterating some of those points in my presentation. 
• There are two main issues I’d like to talk about today, which could both have a significant and negative impact on seriously ill or disabled people claiming Universal Credit.
• The first is the Health and Disability White Paper, published in March. Some parts of the White Paper recognise genuine problems with the current system, like the number of assessments and the financial risk to someone receiving additional Universal Credit entering work. But the way the Department plans to do this raises serious risks.
• The ‘headline’ proposal in the White Paper was to scrap the Work Capability Assessment within Universal Credit, otherwise known as the WCA. The WCA currently has two roles: it governs access to additional amounts of Universal Credit, and it determines what conditionality group you are placed in, and therefore the extent to which you are at risk of sanctions.
• Under the proposals, the financial role of the WCA will be replaced by a new element of Universal Credit called the Health Element. You’ll receive this if you get Universal Credit’s Standard Allowance, and any amount of Personal Independence Payment (PIP), or instead of getting PIP meet one of a very narrow set of exceptions.
• This will make getting PIP even more important. But we know that there are significant problems with PIP criteria, assessments, and decision-making. DWP consistently loses or concedes 80% of appeals lodged against PIP decisions, and the majority of Tribunal decisions against DWP are based on information the Department already holds. 
• It is also very easy to instantly lose your entitlement to PIP at reassessment – either by not returning the form, not attending the assessment, or not being scored enough points. There is too much “should” in the system, and too few safeguards against people who do not or cannot meet those requirements, or against a poor assessment or a flawed decision being made. And there are people who are entitled to PIP but can’t face yet another intrusive and demeaning interaction with DWP so just don’t apply.
• Making PIP decisions even more high-stakes is no answer, especially while the assessment and decision-making system continues to let seriously ill and disabled people down – which was the recent conclusion of the Work and Pensions Select Committee, on which I know both chairs here today sit.
• And even with far better decision-making, there are people who simply cannot get PIP under the current rules but are not able to work – under the proposals, they would have to manage on the extremely low levels of basic benefits. For example, to get PIP your health condition or disability needs to have affected you for 3 months and be likely to continue for a further 9. That rules out many short-term health conditions, or ones with uncertain prospects for recovery.
• A small number of people, who receive PIP but are considered fit for work, or for work-related activity, and they will gain from this change. But they will be far outweighed by the people wrongly denied the Health Element because they are wrongly denied PIP, they can’t face the application, or who simply don’t qualify.
• The conditionality role of the WCA will effectively be devolved to the more than ten thousand work coaches in Jobcentres. This is important – although the formal WCA will be scrapped, someone will still make a decision about your capability to work.  It will be a Jobcentre staff member, and form part of your claimant commitment, which you have to sign to receive your benefits. We are deeply concerned about the risks of this. 
• Jobcentre staff are not experts in health, disability and work, and DWP’s own research has found that a substantial number of people already report that their claimant commitment is not achievable. Other research has shown very wide variability in how Work Coaches’ approach to setting Claimant Commitments, including how they take health and disability into account.
• And because it is technically an agreement rather than a decision, there may be no route to challenge an unreasonable requirement in a claimant commitment that someone has been effectively forced into signing. Together, this raises the frightening prospect of seriously ill and disabled people being sanctioned for failing to meet conditions they could not possibly achieve.
• These plans need a lot more thought – the lack of detail in the White Paper has caused a lot of uncertainty and concern among disabled people. The best way to develop that detail is in full consultation with people with lived experience of serious health conditions and disabilities, which is how they should be making these proposals in the first place.
• The second issue I’d like to talk about is the “managed migration” of legacy claimants on to Universal Credit, particularly people currently claiming Employment Support Allowance, or ESA, the vast majority of whom have been in the Support Group, the group furthest from work, for several years. The Department’s current position is that you will be sent a Migration Notice giving you three months to make a claim for Universal Credit. You might be able to request an extension to that deadline, but at some point, if you have not successfully made a claim, your benefits will be stopped. 
• That will mean you lose any entitlement to any of your legacy benefits, including Housing Benefit – the Department effectively washes its hands of you. If you make a future claim to Universal Credit, it will be treated as a new claim. It won’t be backdated to when your legacy claim ended, and you will have lost entitlement to Transitional Protection. And if this happens before the end of the WCA, you might need to go through a new WCA for Universal Credit.
• This is another example of the ‘should’ in the system. It is a decision by the Department to transfer people on to Universal Credit, and it is the Department that should take responsibility for handling this safely – it should not be placing that risk on seriously ill and disabled claimants themselves. 
• And once someone is on Universal Credit, they will be subject to its default payment structure of a single monthly payment to a household, with housing costs paid directly to the claimant. This is supposed to mirror work – although it doesn’t mirror much low-paid work, and there is even less logic if someone is not well enough to work. A far better approach would be to give people the choice at the start of their claim of how they would like it to operate. 
• To summarise, before any more weight is put on PIP decisions, DWP needs to fix its broken system. We are planning some work with experts by experience to develop ways in which this could be done, and we want government to take this into account. We also need urgent confirmation from government that it won’t rely on the figleaf of the Claimant Commitment being theoretically jointly agreed as the main safeguard against seriously ill and disabled people being given impossible tasks, and then being sanctioned for not doing them.
• And we need Government to commit to taking responsibility for the migration of seriously ill and disabled people to Universal Credit, not cutting off the entirety of someone’s benefits if they don’t make a claim – even as a last resort.
• These steps would go some way towards reducing the risk of these reforms, and doing so publicly would help to reassure seriously ill and disabled people and begin to restore the deeply broken trust they have in the Department.
• Very happily welcome suggestions on the best way to seek these reassurances and any support the APPG members can offer – happy to support with drafting briefings, letters and questions.
• Thank you for the opportunity to speak today and looking I’m looking forward to the discussion.