Tuesday 20 November 2012

Third Harrington review of the Work Capability Assessment

The third independent review of the Work Capability Assessment [PDF] by Professor Harrington has been released today. I am not particularly impressed with it, particularly Harrington's criticism of those who have campaigned against the current welfare reform.
The WCA continues to be portrayed in an extremely negative light, often fuelled by adverse media coverage, representative groups and political points scoring. Whilst the Review continues to hear examples of individuals who have been poorly treated by the WCA process, DWP can be reasonably pleased with what they have achieved. Some recognition of the considerable work to date would give a more balanced picture and DWP needs to be more proactive in communicating this. [Emphasis mine.]
I don't know what world Harrington inhabits but that "adverse media coverage" was brought about by relentless campaigning from those who are directly affected in horrendous ways - "representative groups" and the only "political points scoring" we've made has been nearly universally against all three main parties. We have had a very hard time getting people within those parties to see the problem at all. Calling for the DWP to get better PR is not the solution.

Right in the foreward I was struck by his comments about tribunal judges.
Recommendations on the training of professionals in DWP Operations, Atos Healthcare and the Tribunals have produced some limited progress. In particular, it is regrettable that the First-tier Tribunal has effectively distanced itself from the rest of the WCA. Feedback from the Judges to the Decision Makers has, at last, started in a rudimentary way. However, much, much more is needed if we are to see a real dialogue between the Judges and the Decision Makers. This must happen on cases where there is a difference of opinion on what category is appropriate for that case based on the same set of evidence. For the First-tier Tribunal to suggest that the WCA Independent Review has no remit to consider the appeal stage of the process is illogical and untenable in my view. [Emphasis mine.]
Harrington is calling for feedback from tribunal judges to the Atos assessors and the DWP decision makers over why they reached different decisions to those made by the DWP. However the comments that Robert Devereux DWP private secretary made before the Public Accounts Committee on the 19th appear to be directly quoting the paragraph above out of context and instead criticised the tribunal judges for reaching a different decision. His thought appears to be that if looking at the same evidence then the decision should also be the same, without considering that the original decision makers might have been wrong. What Devereux and Harrington both seem to have missed is that Atos and the DWP have often failed to look at the evidence at all and the face-to-face assessment is not likely to find anything that strays from the Lima computer system's checklist. There have been many cases where Atos and DWP staff have refused to look at evidence from healthcare professionals or refused to wait for evidence, and many more cases where evidence has been lost in the system somewhere between health care professional and decision maker.

One of Harrington's conclusions stood out to me:
The Work Capability Assessment (WCA) remains a valid concept for assessing benefit claimants’ eligibility for Employment and Support Allowance (ESA). Whilst the WCA continues to garner considerable – and sometimes, but not always, justifiable – criticism the Independent Reviewer has not seen or heard any compelling arguments or evidence that the whole system should be scrapped. Instead it needs to be made fairer and more effective by improving both the process and the technical descriptors used to assess eligibility.
I know a lot of people would disagree with that, but I think this is a lost battle and the public will continue to support assessments in this way. I took a little more hope from his recognition that we do need change.
A number of the major charities in this year’s call for evidence say that although they have seen some change for the better, it is disappointingly incomplete in coverage and depth. I agree with them. Changing such a large and complex process and such a controversial assessment takes time – it is happening.

So far as the descriptors are concerned, progress has been positive but slow. We are close to a new and much improved set of provisions for cancer treatment. For the mental, intellectual and cognitive conditions descriptors and for the fluctuating condition descriptors, work is underway for a formal review of new proposals from a number of charities to compare them with the existing descriptors. This work will continue into 2013 and I have been asked to chair the expert independent steering group overseeing the quality and validity of the evidence-based review. It is important to wait for the results of this before rushing to conclusions about how to change the descriptors.
We know from earlier this year that the DWP have been testing new descriptors and I hope that there will be progress on these so that serious conditions affecting ability to function which are currently missed will be noted in future. Also note in the paragraph above that Harrington is to continue working with the DWP on this aspect.

I am concerned that cancer treatment has been singled out as needing special attention once again. Cancer is very bad and unpleasant and everyone knows someone who has had it, that's why it is politically dangerous to send patients on chemotherapy to work. However many other conditions are equally serious and yet not so media-friendly and are therefore treated differently. The Work Capability Assessment is supposed to be about assessing the impact of the condition on ability to function, not what treatment is being received.


Harrington made a number of recommendations to the DWP. I am pleased that the first is for decision makers to consider the need for further documentary evidence. Whether they will do this or not is another question but as I said before the gathering of evidence is a big problem.
It is essential that all relevant medical and allied evidence about the claimant is available to the DWP Decision Maker at the earliest possible stage in the assessment process. If this can be achieved then Tribunals will be based on Judges and Medical Members considering the same body of evidence as the Decision Maker did.
Less pleasing is his second recommendation:
DWP Operations need to find an appropriate balance between better quality decisions that are carefully considered and ‘right first time’ and the achievement of appropriate benchmarks at a local level.
Now I could be wrong here, but that looks very much like a target.

The third recommendation is that the DWP should try to get more feedback from tribunals as to why decisions are overturned. This seems reasonable as it could affect change in the decisions made to start with. The fourth recommendation is that the DWP must highlight improvements, and be open about problems. As I said before, better PR for the DWP is not the answer. I'm open to hearing about improvements made but not if they are used to distract from problems that remain unsolved.

I'll leave you with this comment from Harrington.
Considerable disquiet remains, and this cannot be ignored
You're damn right it can't!


  1. Re. the first quote, it reminds me so much of the response I got from the BBC when I complained about one of their BBC1 hate-fests. It basically accused me of doing the bidding of campaigners. It's amusing that anyone should think that disability-rights campaigning is remotely organised or powerful, as opposed to consisting of a bunch of very knackered people and the occasional ally, but it mainly just makes me angry.

    Painting themselves as the victim is often the first tactic bullies use when their behaviour is exposed, and it's one of the most stunningly revolting things anyone can do. How dare they act as if we're the problem? How dare they act as if we're deliberately making things difficult by having the gall to fight for our lives? I find the people involved in these shenanigans actually physically repulsive, which puts them in the company of no-one bar a couple of rapists I've encountered. I want to make a really nasty joke at this point, but I'm going to resist the temptation.

    Blood on their hands.

  2. This report is the best that the Government can buy!

    There is really isn't any modification that can be put in place to resolve the WCA issues. From the base level up it has been implemented with the intention of removing 500,000 claimants. If this was really an independant report then anybody with the slightest credibility would be repeating that issue in report after report.

    That said, there is nothing within this report that is not already addressed by the remaining sections of the Social Security Administrations Act 1992 or the Social Security Act 1998. (The remaining parts that where not butchered by the WRA's that is).

    As an example the Secretary of State already required decision makers to record a summary of the reasons for their decisions. However the current IBR and ESA teams have been so poorly trained that they do not even know the basics of the Decision Makers Guide never mind the laws which their decisions are based upon.

    Prof Harrington was made aware of a very serious legal issue with the migration process (Which he chose to ignore).

    Basically under the Social Security Act 1998, 'revisions' (alterations to previous decisions) where replaced by reconsiderations and supersessions. However forgot to repeal or ammend this in respect of income support or incapacity benefit in the Welfare Reform Acts. (Apart from the 1st and 2nd tier tribunals) What this effectively means is that the termination of existing awards as the result of migration to ESA have been in err of law. At last count this runs at approx' £13Billion fraud by the DWP.

    To show this is not just pie in the sky, I have been invited to no less than 6 WCA's and have had 2 BF223ESA's issued, I have not attended any of the WCA's or completed a single BF223ESA form, yet I am still in reciept of Income support paid as incapacity benefit.

    The two points in law I have sucessfully challenged with so far are.

    1. Data Protection Act (I have never signed an ESA50) and refuse to do so in respect of the wording of the Declaration.

    2. Right of Supersession under the Social Security Act 1998 (Basically they no longer have anybody qualified to carry out said supersession as the departments have been all but phased out.

    There is also another issue, should somebody fail to attend a WCA, because they cannot count the existing benefit as whole under the WRA, they have to class it as partial, then Chapter 14, Section 19 (3) of the Social Security Act 1998 (and its ammendments)only allows them to terminate ESA and then have to repeat the invitation again under the WRA. IBR have been interpreting this in err of law, even if you set aside the right of supersession they cannot use that section of law to terminate an existing award made under the SSA1998 as the request for an assessment relates to ESA, not for an example Incapacity Benefit.

    In respect of the DPA issue, previously it had been argued that ATOS Healthcare was a data processor on behalf of the DWP. However the Information Commissioner takes a different point of view.

    If an organisation "Offers an opinion which on the balance of probabilities will alter a later decision". Then they are defined as a Data controller (I have paraphrased the non quoted parts)

    Which means by law, to share a claimants information with ATOS Healthcares assessment centres, a signature of authority must be given (I cannot be coerced or not clearly explained). In otherwords claimants have to be clearly informed that they have the right to refuse to give DPA authority and this cannot count against them on their claim.

    Anybody who has read the declaration on the current ESA50 will be aware that this is not explained. It is also not explained that they do not have to give this authority indefinately.

    So I happily remain a thorn in the side for the DWP and ATOS, as well as pointing out the flaws in Prof Harringtons Paid for report.