What is incapacity?

The Work Capability Assessment is ineffective, unpopular and bears little relation to reality, argues Ben Baumberg. In this essay, he makes the case for a real-world incapacity test.

Our incapacity benefits system is broken. The assessment process for the main out-of-work benefit for disabled people, Employment and Support Allowance (ESA), has been repeatedly condemned by politicians, major charities, doctors and disabled people themselves. It has the highest level of successful appeals in the benefits system, overwhelmingly for people who weren’t even half-way to winning their original faulty decision, rather than borderline cases.

Disabled people repeatedly tell of their outright fear of the ‘brown envelope’ from the DWP about the assessments; there have been several anecdotal accusations that the assessment process has contributed to suicides. The situation has deteriorated so badly that the private company that runs the assessments, Atos, has asked to terminate its £100m contract early partly on the grounds that their staff receive death threats, while the Government is struggling to twist the arms of other companies to replace them.

How has it come to this? Initially the blame was placed squarely on Atos – or as they are repeatedly described, ‘the French company Atos’ – on the grounds of outright incompetence. Gradually, however, the fire has moved onto the assessment itself, known as the ‘Work Capability Assessment’ or WCA, and unequivocally the responsibility of elected politicians.

None of the major parties can escape responsibility here; it was Labour that introduced the WCA in 2008, and the Coalition who rolled it out to the majority of claimants. Numerous disabled people’s organisations have since been calling for the abolition of the WCA, and this aspiration increasingly appears to be becoming a consensus among political parties that do not have the ability to implement it – most recently in June 2014 becoming a commitment of the SNP if Scotland becomes an independent nation, and with both the Labour Party and the Lib Dem conference (although not its leadership) calling for reform.

But committing to abolish something is easy. The challenge is to figure out what to replace it with. In this short piece – which kicks off a three-year ESRC research project on incapacity assessment, working with Demos – I want to argue that the problem with the WCA is deeper than it looks, and that the answer lies in fundamentally rethinking what incapacity assessments are meant to do.

The true nature of incapacity

At heart, the WCA is a simple test, albeit a simple test in a bewildering complex framework. The WCA consists of a list of different impairments, with a person scoring a certain number of incapacity points for each impairment they have. So for example: if you cannot pick up a one litre carton of liquid, then you get nine points. If you have an involuntary episode of lost/altered consciousness at least once a month (but less than weekly), then you get six points. If you have both of these impairments then you get fifteen points, which is the cut-off for being entitled to ESA; if you only have one of these impairments then (despite being ‘genuinely’ impaired) you are fit-for-work. (There is then a further set of criteria to see if you are put in the ‘Work-Related Activity Group’ of ESA, with means-testing after a year, or the ‘Support Group’, with no conditionality attached – and while I do not go into detail here, this distinction has also been highly contentious).

Much of the criticism of the WCA has focused on the undoubted problems in how this basic framework has been implemented. Partly this involves a series of administrative failures, and partly it is because the WCA deals badly with certain impairments, particularly pain, fatigue, mental health conditions and fluctuating impairments. These criticisms must be tempered, though, by the realisation that the WCA has improved over time. Indeed, whereas only 35 per cent of initial claimants were found eligible for ESA back in 2009 (before appeals), this has more than doubled to nearly 75 per cent of initial claims in Autumn 2013 – which is unlikely to be wholly due to changes in the sorts of people applying, and more likely seems to be due to policy shifts following very specific suggestions made by official reviews, Select Committee reports, and disability charities.

But the deeper problem is with the framework itself. This is simply not a test of whether you are able to work. Few impairments are so severe that you can’t do any jobs whatsoever, because in the LSE-founder Sidney Webb’s timeless words in 1912, ‘incapable of any work whatsoever’ can only mean ‘literally unconscious or asleep’ . Instead, the issue is whether those impairments interfere with your ability to do your job, and this, critically, depends on what jobs involve. The WCA criteria may vaguely have been set with work in mind, but at no stage does it consider what any actual job might require – it is better considered a test of deservingness (in the form of severity of impairments) than a real test of incapacity.

Moreover, there is what can be called the ‘Stephen Hawking effect’; some severely-impaired people can still work, particularly if they are extremely talented and have impairments that don’t prevent them outright from doing their particular job. But most people with Stephen Hawking’s impairments are not Stephen Hawking. Likewise, an impairment that is unproblematic for a 25-year old graduate in the South-East may be an insurmountable barrier to work for a 63-year old man with no qualifications in Methyr Tydfil. For these reasons, many disabled people and disability charities have called for a ‘real-world assessment’ to replace the WCA – that is, in the real world, and given your impairments, is there a job that you could realistically do? Citizens’ Advice have called for just such a test, the Labour Party have said they would implement it, and the DWP’s official reviewer of the WCA, Malcolm Harrington, gave it serious consideration in his annual review in 2010.

Real-world ‘real-world incapacity’

This could be the end of the story: the existing system is based on a false conception of incapacity; but both people in power (politicians and civil servants) and the people affected (disabled people themselves) have realised the problems and settled on a better alternative. Yet life is not that simple, and there are at least two critical difficulties with real-world assessment that need to be overcome before it can become a reality. Firstly, and perhaps surprisingly, our knowledge about real-world incapacity in Britain is nigh-on non-existent. After considering whether a real-world incapacity assessment was viable, the official WCA reviewer Malcolm Harrington concluded that the report they had asked for was:

…unable to offer clear, evidence based advice on what a real world test might look like. For example, the outline of a more diagnostic assessment lacked the necessary detail and evidence base; while the proposal for a more realistic assessment of ability for work lacked any information on what objective, measurable and fair criteria could be used to assess ‘employability’.

This does not mean that these tests are impossible. In the Netherlands, for example, claimants have an assessment by a labour market expert after their medical assessment, to see what jobs they could plausibly do. (Indeed, this is only a few short – but important – steps away from the second assessments that we used to have in the British system; and informally many of those involved in the British system have used real-world criteria in the past). The starting point for my project is therefore to begin to provide the evidence needed for policy, including how some disabled people find it harder to find jobs they can do, and looking at how incapacity tests operate internationally.

There is a second issue though, which is most clearly brought out by looking at the much-repeated line from Chris Grayling MP (then Minister of State for Employment) in 2011 that “the one thing I am absolutely unreservedly and implacably opposed to in all of this is a real world test. Either somebody is fit for work or they are not…” On one level this statement is simply wrong; whether someone is fit for work depends on the demands of the jobs that they can realistically get. However, Chris Grayling was actually making a different point, as the rest of the quote makes clear:

…and what I am not prepared to do is to countenance a situation where we are saying: “You are fit for work, but you should not be on JSA because there is high unemployment in your area.” …What I do not think we could possibly countenance is the situation where we are saying, “Because of circumstances in the labour market in your area, we will treat you differently.” I think that would be a huge mistake.

The problem here is political rather than conceptual – that it does not seem fair and right that the same people in different areas are treated differently. Such concerns are by no means restricted to Conservative Ministers; I have heard similar issues voiced across the political spectrum. There is also the issue of public perceptions of the ‘genuineness’ of incapacity claims, with repeated media headlines accusing incapacity claimants of being predominantly ungenuine, and with the average person thinking that over one-quarter of disability benefit claims are ‘false’; and we simply do not know what the public would make of an explicitly real-world test. Alongside Demos, I am therefore investigating what policy elites, the key groups concerned (disabled people and unemployed people) and the general public think that incapacity assessment should involve, to consider the legitimacy as well as the delivery of real-world assessments.

Finally, it is worth stressing that a system that relies on a perfect assessment is setting itself up to fail. Medicine is an inexact science, and doctors consistently have to deal with wider society’s false hopes of what they can achieve. For example, some proposals for overhauling the WCA (such as by the Scottish Expert Working Group on Welfare in 2014) rely on putting everything in the hands of the medical profession, without addressing the challenges medical professionals face or the basis of the test.

In reality, some disabled people will always wrongly fail their ESA medical – although with a better assessment the numbers can at least be far fewer than at present. The benefits beyond ESA (and in particular JSA) therefore need to be ‘safe places’ for disabled people to receive appropriate support that recognises the challenges they face, and some of the fears of disabled people are because this is not the case at present.

Disability policy beyond the WCA

To be clear: I do not want to suggest that a real-world replacement for the WCA would magically create a perfect incapacity benefit. Administratively the system is working poorly (delays were headline news as this piece was written); it is difficult to defend the capriciousness of a system that requires people to wait an indefinite amount of time before they can appeal; the Work Programme has been performing poorly for disabled people; and so on. And beyond that, there are a large number of other cuts affecting disabled people, including the closure of the Independent Living Fund and cuts to social care budgets as well as the wider reductions in welfare state spending; we simply cannot understand the situation of disabled people without considering these changes simultaneously.

Still, there are no other single failures that are as striking as the WCA. A system that is pivotal to large numbers of people – there are nearly a million assessments per year – is, with no exaggeration, on the edge of collapse. My argument is that the root cause of the WCA’s problem is that it simply does not assess fitness for work; it is a test that seems contrary to common logic to the people who experience it, and is thereby destined to face major challenges, particularly at times when the system is becoming less generous.

The path to replace the WCA by a more human and more effective real-world system may be slow, and there are many short-term fixes that can be done in the meantime, but in the long-run this is the path that we must take. The destination is clear; the challenge now is to figure out how to put it into practice, and to preserve the will to implement it.