The first annual review into the performance of the ESA Work Capability Assessment by the independent reviewer Professor Malcolm Harrington has been published, and calls the operation of the WCA by DWP and their contractor ATOS Origin into serious question; but did the review itself address everything it should have? As an ESA claimant and one of those who made submissions in response to Professor Harrington’s call for evidence I read the report with considerable interest and many of the conclusions and recommendations are an acknowledgement of the concerns expressed repeatedly by the disability community over the last two years or so, however detailed examination reveals some serious issues with the review. This article focuses on those issues, but that should not be taken to mean an outright condemnation of the report.
The issues with the report fall into three groups: concerns not addressed at all, concerns reported but not addressed or not adequately addressed in the recommendations and concerns with recommendations that appear to preserve or even exacerbate the problem rather than challenge it. Rather than deal with the concerns in thematic groups the ordering of the report has been retained for ease of cross-referencing.
Professor Harrington lists a number of organisations which he met with to discuss the situation: disability charities, unions, DWP, JCP, ATOS Origin, but how much direct contact he had with individual disabled people trying to negotiate the system is not clearly indicated. It is unclear whether the review passes the litmus test of ‘Nothing About Us, Without Us’.
In his introduction Professor Harrington refers to Dame Carol Black’s report ‘Working for a Healthier Tomorrow’, describing it as part of the wider context within which the WCA has been introduced. Unfortunately Dame Carol’s report is fatally flawed by failing to acknowledge the widespread disablist bigotry experienced by disabled people in the workplace, the ultimate reason that forces many of us to access the benefits system and keeps us there, no matter our desire to work. There is no indication within the current review that Professor Harrington truly understands the sheer volume of discrimination experienced by disabled people both in finding work and in retaining it. Without that understanding, Professor Harrington lacks the perspective to view the WCA system and its outcomes from within the context experienced by disabled people.
Slightly later in his introduction Professor Harrington states ‘In addition, some conditions are more subjective and evidently more difficult to assess.’ Most disabled people would regard this statement as blatantly obvious, it is not unusual for disabled people to go through decades of medical treatment without a clear diagnosis, yet it appears that the impossibility of simply pigeon-holing disabled people according to some simple schema comes as a startling shock to DWP, ATOS Origin, and to Professor Harrington. Having identified the problem, Professor Harrington then fails to follow through to the logical conclusion that a computerised assessment system, as used by ATOS, is clearly not fit for purpose, because it cannot make an individual assessment of need and necessarily relies on a limited set of pre-programmed rules. It is worth noting with regard to this that both the Disability Discrimination Act and the new Equalities Act are built around, and define in law, the absolute necessity of dealing with each person’s disability on an individual rather than procedural basis.
Professor Harrington’s introduction closes with a paean to the benefit of work which can be summed up in its opening sentence: ‘Work is, by and large, good for people.’ This claim is repeated as the opening statement of the immediately following executive summary and at regular intervals throughout the review. Unfortunately the WCA is not dealing with a ‘by and large’ population of claimants, it is dealing with a population of people who universally experience difficulty in working because of their disabilities or illnesses and in many cases will find working adversely affecting their health. Professor Harrington’s repeated references to the benefits of work, which also raises serious concerns in other areas dealt with later, without similar acknowledgement of the universal difficulties faced by the disabled claimant population in accessing and accomplishing that work, raises serious concerns about the neutrality of his position.
The Executive Summary states ‘The Work Capability Assessment (WCA) was designed to focus on a person’s capability rather than their incapacity’ and Professor Harrington clearly accepts this point as unreservedly a good thing. Yet capability and incapacity may often be diametrically opposed. To use my own situation as an example, I am capable of work that many people might label ‘rocket science’, yet doing that work results in rapidly rising pain levels, which in turn interferes severely with my ability to work at that level and ultimately prevents me from working at all. It is difficult to accomplish much while curled in a foetal position on the floor as a result of the levels of pain working has engendered. Any assessment which does not focus on both my capability and my incapacity will necessarily fail me.
Included in the review’s recommendations is a need to institute ‘champions’ in each assessment centre to mentor staff in dealing with mental, intellectual and cognitive health issues, an area where clear failings has been identified. However the review itself identifies that claimants from many other areas of disability, in essence all but people with SVIs, or who are wheelchair users or amputees and fall within the traditionally recognized definition of ‘disabled’ are experiencing similar difficulties in conducting an educated dialogue with the ATOS assessors, and the failures in education lie with the assessors, not the claimants. What goes for mental, intellectual and cognitive health issues, also goes for invisible disabilities, for fatigue and pain based disabilities, for anything which cannot be physically waved in the face of an assessor. Appointing mentors for mental, intellectual and cognitive health issues is essential, but must not stop there, and the need to educate ATOS staff around basic disability issues raises serious concerns with respect to the basic adequacy of the ATOS training regime.
Professor Harrington states that a focus for his second report will be the descriptors used in the assessment system, particularly with regard to the coverage of fluctuating conditions. However there is no indication that this is intended to do anything other than tweak the descriptors, no indication that the basic suitability of fixed descriptors against an infinitely variable range of disability will be seriously questioned. This represents a lost opportunity of significant proportions.
Chapter 1: The Review Outline
The first concern which needs to be addressed is the startlingly late appointment of Professor Harrington to perform the review. This did not occur until 29th June, 2010, with the review due by November, a seriously problematical amount of time in which to produce a report of the quality and depth the subject required. A further, related, concern for many disabled people subject to the WCA will have been the appointment of an occupational health specialist to conduct the review. The only contact many of us will have had with occupational health physicians will have been with the hired guns who wrote the medical reports to back up companies which had decided our disabilities made us too much trouble to continue employing. No matter the independence and good intentions of Professor Harrington, our past experience with openly disablist behaviour by other members of his discipline will compromise the perceived independence of his report. Someone from within the disability movement, perhaps one of the past EHRC Disability Commissioners, would have been a far better choice by having the credentials to be taken seriously by both government and disabled people.
Similar concerns exists with the panel appointed by the Secretary of State to oversee, advise and challenge Professor Harrington, which includes one senior GP, two Occupational Health professionals who work for major employers, and only one representative from a Disabled Peoples Organisation. One of the Occupational Health professionals also represented the CBI, a particularly puzzling, if not troubling, appointment.
The report clearly identifies the concerns of disabled people that their answers are being frequently ignored, distorted or downright falsified by ATOS assessors, Professor Harrington himself states “It is clear that the process by which WCA decisions are reached is crucial to ensuring the fairness of the overall assessment. Individuals need to be treated with respect, need to be listened to and be able to get their case across,” yet methods to address these concerns are signally absent from his recommendations. The suggestion of a trial of recording interviews and consideration of providing an executive summary of the WCA to the claimant might be argued to address this, but the structure of the recommendation seems to suggest that Professor Harrington has concluded the concerns expressed are largely not factually correct, that disabled claimants do not understand the structure of the assessment and that they will be forced to acknowledge this if presented with clear evidence of what was said and how the process was conducted.
But what if the evidence from the trial shows instead that the problem does lie with the assessors, as the disability community believes? A whole year of additional distorted reports will have resulted, never mind the distorted reports that have gone before. How will the people subjected to those distorted reports find justice?
Equally Professor Harrington reports the concerns of disabled people that assessors are extremely reluctant to allow them to fully explain their situation and why it limits their ability to work, trying to force them into yes/no answers that have no place in any intelligent discussion of disability, and attempt to hurry the assessment to a conclusion in order to allow them to complete both it and their report in the allocated 46-49 minutes, something which apparently concerns even the assessors themselves, yet there are no related recommendations whatsoever. Are we to assume therefore that Professor Harrington does not believe it is important to the assessment process that we are entitled to fully explain our situation and likewise accepts unreservedly the use of the
Chapter 2: The Evidence for a WCA
Chapter 2 opens with several pages extolling the virtues of work and demonising the health risks of being out of work, an attitude summed up in the statement “It must be made clear to all sections of society that being out of work is bad for an individual’s health.” This level of diktat is inappropriate in any independent review, particularly a review looking at a specific population of disabled people for whom being in work is entirely likely to have deleterious consequences. There may indeed be benefits from being in work in the general case, but we are not dealing with the general case and Professor Harrington appears to have forgotten this. Ill-considered generalisations about the ability or not of disabled people to work, further distorted into mindless bigotry by the yellow press, are leading to a significant rise in negative perceptions of disabled people from the non-disabled populace and disabled people are experiencing an all-too-necessary increase in their general fear of abuse as a result. To see ill-considered generalisations of this type repeated in this review, with an exhortation that everyone must believe them, is distressing in the extreme. At best this is a further example of Professor Harrington being unable to perceive the situation from the perspective of the individual disabled person.
Professor Harrington goes on to conclude Chapter 2 by arguing that the case for the benefit of work and the appropriate nature of ESA and the WCA is therefore proven. Yet nowhere in the chapter has he even discussed a dissenting opinion. A debate in which only one opinion is allowed is no debate at all, an argument to which no challenge is permitted is no kind of proof, scientific or otherwise. Work will benefit many disabled people claiming ESA, it will absolutely not benefit all and whether ESA and WCA are the most appropriate methods has not even been addressed, never mind pursued to a conclusion. And that is without even discussing whether WCA outcomes are matched by the availability of work and the willingness of employers to hire disabled people.
Chapter 3: Assessment: Process and Numbers
The report acknowledges that a large percentage of claimants fail to complete the WCA process, but fails to address several issues relating to this. Unaddressed, in fact not even acknowledged, is the deliberate and intentional use of ESA by the DWP as a holding pattern for benefit claimants who become temporarily too ill to actively look for work on JSA or who become unemployed for narrowly specific health reasons that do not limit their general employability. These claimants form a significant cohort of withdrawn claims and WCA attendees who can be largely guaranteed to fail the WCA, their existence serving to distort the wider statistics around ESA when combined with those claimants with significantly limiting long term disabilities. Failure to identify this cohort and classify them separately in the provided statistics compromises the value and function of those statistics.
Other issues leading to prematurely terminated claims include the intimidating nature of the ESA50 form, which is discussed later, and the widespread concern among disabled people that many claims are being abandoned because of the contempt with which disabled people perceive themselves to be treated by the process. The use of these statistics of abandoned and rejected claims by both the DWP and the yellow press to imply that ESA claimants are universally workshy (an example of collective bigotry that amounts to a deliberate and sustained campaign aimed at inciting disability hatred amongst the general populace, and confirmed to be working by the BBC’s recent survey) makes this an area of clear concern for disabled people, whether claimants or not, and further contributes to abandoned claims, but Professor Harrington glosses over it as an area with conflicting data, ATOS claiming there is no problem, respondents to the review that there is. The conflicting data may prevent conclusions from being firmly drawn, but should not have prevented the recognition that this is an area of extreme concern to the disability community, requiring corrective action to be taken
Chapter 4: Experiences of the WCA
Professor Harrington dismisses concerns expressed about the fairness of the process by disabled claimants as ‘misconceptions’. I find his attitude here very troubling. At best it is dismissive, there seems no attempt to understand why the concerns are so persistent, nor whether they may in fact represent a genuine discontinuity in his understanding resulting from an inability to consider the situation from the viewpoint of a disabled claimant. Statements made by the assessor during my own assessment would seem to validate these supposed ‘misconceptions’ as fact, not fiction, nor failure to understand. Professor Harrington worries that these ‘misconceptions’ may become commonplace. They already are, and that information is readily available on any disability discussion board.
Professor Harrington makes the bald statement that there is no evidence that ATOS are being incentivized to rule a certain percentage of claimants as fit to be placed on JSA and dismisses opinions otherwise as misconceptions, yet there are many anecdotal reports of assessors being pressurized to declare more disabled claimants as fit for work. Even Danny Alexander, MP, before accepting a position in the government as Secretary of State for
Even if the ATOS contract does not include incentives, the possibility exists that ATOS assessors may be incentivized for internal, company reasons or even because of the perceptions of their immediate supervisors as to what the company really wants; the review even acknowledges later that any assessor whose results differ from the local average will be audited, which clear incentivizes individual auditors to converge their results on an average, no matter the actual situation of the claimants they see. These concerns cannot be dismissed in a sentence, particularly when to dismiss them contradicts evidence elsewhere in the report, they must be addressed and explained away, any less suggests a contempt for our concerns and calls the reliability of the statement into question. Rhydian Fôn James’ Guardian article on the review also points out the existence of an implicit cost goal for DWP and ATOS, the need for the WCA to generate at least £250m in savings just to break even against its own costs.
Professor Harrington goes on to state that disabled benefit claimants should not fear being found fit for work and placed on JSA because DWP personnel are committed to helping disabled people and the procedures in place for disabled claimants of JSA should alleviate the concerns of those who find themselves transferred onto it. Having been a disabled claimant of JSA until February this year, before the DWP decided that JSA was completely unable to cope with my disability, I can assure Professor Harrington (as I did in my submission to the review) that the many frontline DWP personnel I dealt with, including DEAs, were near universally clueless about disability, the only exceptions being themselves disabled, and that their concept of appropriate support for a disabled claimant was to try and force me into minimum wage positions from the outset, no matter that I am a highly skilled engineer with extensive experience, an attitude that amounts to institutional disablism. It took a complaint to ministerial level to actually get them to look at my disability on an individual basis, not treat me as identical to all of their other non-disabled claimants. Other disabled people, from all across the country, report near-identical experiences. DWP and JSA are part of the problem, not part of the solution.
DWP’s sub-contractors are actually worse, even specialist disability charities such as the Shaw Trust and RBLI are widely reported to be operating from inaccessible premises, no matter the access requirements of their entire client base, while the non-disability specialist agencies lack even the most basic knowledge and understanding of disability issues, such as the legal requirements on them in relation to access and data protection. Meanwhile their overall tone in written communications can best be described as threatening (something which the report does acknowledge), not a manner likely to be productive with the many disabled people who have problems in dealing with authority or stressful situations. JSA is not fit for purpose with respect to disabled claimants.
Problems with the ESA50 form required to be completed by all ESA claimants are acknowledged in the report, but appear to have little understanding of the difficulties disabled people experience with it. The form is tens of pages of questions asking for the most intimate detail of how disability affects our lives as disabled people, yet appears to have been designed by someone completely unaware that many disabled people will find the form intimidating to the point of preferring to terminate their claim, that several decades of complex and occasionally contradictory symptoms cannot easily be fitted into a two inch high box, and that many disabled people will find a paper form difficult if not impossible to deal with due to the nature of their disabilities. Parts of the problem are easily dealt with by ensuring that an electronic version of the form is both available and publicised, but no such recommendations are made. Some of Professor Harrington’s statements in relation to the form are themselves problematical, he talks about people trying to put entries against as many questions as possible and of being coached to do so by advocacy organisations as though these are problems. Why does he consider it a problem for someone to identify every area in which their disability affects them? I was surprised by how widespread the effects of my disability were when I sat down to think about it in the systematic manner that the form enforces? Is there really something wrong in realising that your physical disability may affect you psychologically and acknowledging this? Is it really so wrong to complete the form from a position of knowledge rather than ignorance? (My WCA assessor certainly appeared to think so).
Equally Professor Harrington reports a statement by a tribunal president that “Many claimants give careful and detailed descriptions [in the ESA50] but this evidence is never referred to in the ATOS HCP report. Nor is it drawn upon by the decision-maker. It seems to be air-brushed out of the information gathering process”, yet in the immediately following recommendations section no recommendations are made to enforce the consideration by DWP and ATOS of the sole opportunity that claimants have to make a considered and systematic report on the nature of their disability.
Chapter 5: The ATOS Assessment
Chapter 5 relates that ATOS employ some 1250 assessors and that in the last year they have stopped using 25 of them for cause. Professor Harrington appears not to realise that an effective dismissal rate of 1 in 50 professional staff per annum is symptomatic of an organisation with a very serious problem.
Having discussed a wide range of misreporting by assessors, the review then dismisses them with the statement “In part these concerns reflect the difference between a medical examination, which focuses on diagnosis, and the ATOS assessment, which looks at a person’s functional capability.” Yet all of the misreporting detailed is directly or potentially relevant to functional capacity.
Professor Harrington acknowledges that the very limited training of ATOS assessors is an area of great concern for disabled people. Many disabled people have combinations of medical conditions that have taken specialists many years to reach a diagnosis over, others are without a specific diagnosis even after decades of investigation, but are recognised as genuinely disabled by the specialists who have spent years working with them. How is someone without a background in disability medicine, with barely 8 days of training, meant to be able to give a superior assessment of capability to work in comparison to a specialist with years of experience of both discipline and patient? To quote my own pain management specialist: ‘It is nearly impossible to get a doctor from another discipline to adequately acknowledge how disabling pain can be’. How can I trust the judgement of someone with 8 days training in the face of that? How can any disabled person trust it? How can Professor Harrington fail to address it in his recommendations?
Chapter 6: The Decision Making Process.
This chapter is perhaps the strongest of the review, identifying major weaknesses in the balance of the assessment process that mean it is not working as defined and outlining corrective action. Unfortunately the needs of the assessment process may run counter to historical social forces.
Professor Harrington acknowledges that the system is designed to provide for DWP decision makers to consider all of the evidence available and to overrule ATOS reports when needed, but that the decision makers themselves have identified that they are uncomfortable overruling decisions by ATOS medical staff ‘because they’re doctors’ and states that their training should be bolstered to support them in this. However this fails to address a widespread societal problem relating to the historical perception of the doctor-patient relationship. The perception of doctors as godlike figures of wisdom is still regrettably common and cannot be overcome simply by a day or two of extra training, yet the system as designed depends on precisely that.
The report also acknowledges that a high percentage of disabled people are apparently unaware that they are able to present medical evidence with the ESA50 and at the WCA itself, not simply at the appeal stage, while those who do present it frequently believe that it is simply being ignored by the ATOS assessors. The ability to present medical evidence is simply not being made known to disabled claimants, yet there are no recommendations to change this. Equally the failure of ATOS assessors to address medical evidence contrary to their conclusions in their reports to the DWP is clearly an area in need of urgent attention. It would not be unreasonable to consider the suppression of contrary medical opinions, particularly as part of a quasi-legal process, to be a serious breach of professional ethics.
Chapter 7: Appeals
In discussing appeals Professor Harrington implies that many appeals are filed because of ignorance of the assessment process on the part of claimants. This may be true in some cases, but cannot explain the very high rare of successful appeals: over 30% of decisions are being appealed, 40% of those are being upheld. Any quality department in any business would be horrified by a 12% reject rate and heads would roll if it was not fixed, The report acknowledges the high rate of appeals and hopes that they will be reduced by the additional training to be provided to assessors and the additional communication to take place with claimants, but the real problem here is not the rate of appeal, but the rate of success appeal. 4 out of 10 assessments taken to appeal are being judged to be incorrect. Imagine the outcry if a similar situation happened in the Criminal and Appeal Courts, yet the report simply glosses over this by hoping additional training will fix it.
I cannot help but be extremely concerned by Professor Harrington’s recommendation that appeal tribunals should be reminded of the benefit of work. It is impossible to construe this as anything less than an attempt to undermine the independence of the tribunal system. Is work beneficial? In general, yes; but tribunals are not dealing with the general case, they are dealing with the specific, and for many disabled people, forced into the appeals system by the failures of the WCA, work means pain, distress and the likely worsening of their conditions. An attempt to bolster the case for work without parallel reminders that this is not generally applicable to the population of disabled people who find themselves arguing their case for justice before a tribunal distorts and brings into clear question the fairness and impartiality of the appeals process. This appears to be a case of Professor Harrington thinking solely as an occupational health physician, hanging doggedly onto one of that discipline’s sacred Shibboleths come what may, and forgetting his responsibility to approach the context of the review impartially and with due regard for the needs of both the people operating the system and those who find themselves struggling to navigate it.
Chapter 8: A Programme of Work For Year 2
The approach for Year 2 necessarily draws on the conclusions discussed above, repeating the same flaws already identified. That is not to say that there is no value in the work proposed, simply that it fails to address major areas of concern. A major focus for the year is looking at the descriptors used in the process, but nowhere is there any discussion of considering whether the use of descriptors is actually appropriate, nor is any review definitively proposed outside of the area of mental, cognitive and intellectual impairments, even though identical concerns over descriptors are acknowledged by the review to exist for fluctuating and pain and fatigue based impairments. The possibility of looking at these is raised, but no more than that.
The conclusions repeat the tired assertion that work is universally good for you and the WCA the way to get the disabled population into work. There is no real evidence of independence of thought here, simply someone who believes the problem and the solution are precisely as the government has outlined and merely wants to smooth the process. That not all disabled people can work is barely acknowledged, that the
Completely missing from Professor Harrington’s assessment is any reference of the physical suitability of DWP and ATOS premises and those of their training contractors, an issue that is frequently raised on disability discussion boards (and an issue which I for one included in my submission to the review). People have arrived for WCA and other ATOS or DWP operated assessments and meetings to find offices without on-site disabled parking, offices that are inaccessible to wheelchair users, offices that have failed to provide needed adjustments in seating and other areas. If the basic building stock is not fit for purpose, then how many disabled claimants are deciding that if the system treats their most basic needs with this contempt then they have no hope of a fair hearing and give up their claim? I know that I very nearly did. Access is not a luxury, for many of us it is an essential, our right to it is enshrined in law and failure to provide it can throw us into days, weeks, or even months of exacerbated symptoms.
Fit for Purpose?
There is clear value in parts of Professor Harrington’s report, he has identified major failings in the operation of the WCA system, but he has done it from what is largely an establishment viewpoint and has signally failed to address the needs and concerns of the disabled people who find themselves at the sharp end of the system’s decision-making process, even in cases where he has identified and reported on those concerns. The failings in the review may result from its rushed nature, but that explains rather than excuses. To sum up the report: D-, must do better next year, and, unfortunately, the personal opinions in relation to work expressed throughout the report mean that I think we may have the wrong man for the job.
And, as always, looking at ESA and the WCA only addresses a small part of the difficulty of moving disabled people into work. The active and deliberate disablism that forced many of us out of the workplace in the first place and that continues to deny us positions within it will not magically disappear by forcing hundreds of thousands of disabled people onto JSA, it will simply obfuscate the intolerance we face and draw a polite curtain across the existence of that den of bigotry at the heart of British industry.