THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA) IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS, PART 1


THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA), RESPONSIBLE FOR ENDLESS HARASSMENT OF SICK AND DISABLED IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NEW ZEALAND WELFARE REFORMS

 

Contents:

A). INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
P). APPENDIX

 

A) INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)

It was only weeks before Christmas last year, when in November 2014 the Department of Work and Pensions (DWP) in the United Kingdom (UK) published the fifth and last ‘Independent Review of the Work Capability Assessment’. The Reviewer who conducted his second review of the highly controversial, now widely discredited Work Capability Assessment (WCA), was Dr Paul Litchfield, who is a member of the so-called ‘Fit For Work Coalition’, and who has been Chief Medical Officer for ‘BT Group plc’ (British Telecom) for over 14 years. On his ‘LinkedIn’ profile he is quoted as having a main professional interest in occupational mental health. Dr Litchfield did also conduct the fourth review of the same WCA a year earlier. In the 5th and final review he is described as an occupational physician. Following his predecessor Professor Malcolm Harrington, he was clearly a different kind of appointment as a professional with an established “corporate” business background. Dr Litchfield’s involvement with ‘Fit For Work’ and BT drew criticism from some stake holders and in the public, but he also received more favourable consideration by other stake holders.

The WCA was introduced during 2008 following the passing of the Welfare Reform Act 2007. The functional kind of assessment was intended to help determine eligibility to the Employment Support Allowance (ESA), and it is a further development from earlier assessments that were used to establish the functional and work capability of sick and incapacitated. The WCA has received strong criticism from the time of its inception. A key role in the development and evaluation of the UK’s medical assessments was played by Professor Mansel Aylward, now Director at the so-called ‘Centre for Psychosocial and Disability Research’, a special Department at Cardiff University In Wales. He did for many years also work closely with ‘UnumProvident’, a major health and disability insurer, who did during his former role as Chief Medical Adviser at the DWP also have significant input into welfare reforms in the UK. Mansel Aylward terminated his role at the DWP in 2005, and did from already 2004 head “research” at the mentioned Centre at Cardiff, which was for years being “sponsored” by UnumProvident. It was Dr Aylward who once created the stringent so-called ‘All Work Test’. He was also heavily involved in development of the equally controversial ‘Personal Capability Assessment’ (PCA), both of which preceded the further developed WCA. It can be said, that Professor Mansel Aylward had significant input into the development of all UK work capability assessments, indirectly also into the now used WCA.

Professor Aylward did furthermore lead the Corporate Medical Group on the UK Government’s Welfare Reform initiatives, and made a major “contribution” in establishing the new postgraduate diploma for doctors in Disability Assessment Medicine. Hence he has over many years represented a strong influence on the way welfare reforms affecting sick, impaired and thus disabled persons were formulated and implemented in the UK. Mansel Aylward has over the years written and co-authored a number of publications, many based on studying and interpreting statistical and other reports, some of which have been questioned in regards to their actual medical scientific value and reliability. He has been accused of re-interpreting the so-called “biopsychosocial model” for diagnosis and treatment.

The WCA itself was introduced as a means to apply a new approach and focus in the way persons with chronic, serious health conditions, and with longer term, or permanent, physical and mental impairments, would be assessed for their capability to perform certain functional activities. With that came also the presumption that the same assessment could determine who could potentially and hypothetically perform various work related types of activities. The assessment is presented and administered by the DWP, and the Department expects the contracted assessment ‘Provider’ (until March 2015 still ‘Atos Healthcare’), to follow, use and apply it, while conducting interviews and examinations of DWP clients that are referred to them. The assessor employs approved Health Care Professionals (HCPs) who conduct the commonly called “fit for work” tests. They are expected to adhere to the guidelines set out in a ‘Revised WCA Handbook’ (the most current one appears to be Version 6, from 19 March 2013), and to act as so-called “Specialist Disability Analysts”, which is a different role to the one ordinary health care professionals perform in diagnosis and treatment.

At the initial stage a kind of assessment is conducted on paper during a “Filework” stage, usually based on a Med 3 certificate (“Fit note”) from a claimant’s general practitioner (GP). If a face to face assessment is required, clients will first be sent a self assessment form called ESA 50 (‘Limited Capability for Work Questionnaire’), or in some cases an ESA 50A form, to fill out. They may be asked to provide further medical certificates and other relevant records. “Medical” assessments under the WCA are supposed to determine whether a person has a limited capability for work, or even a limited capability for work related activity, or whether there is after all a full capability to perform work. Depending on a points score based on relevant descriptors for both physical and mental function abilities, a person will as a result of the WCA be either put into the ‘Support Group’ (for those with severe functional limitation, or with special circumstances), or into the ‘Work Related Activity Group’ (WRAG) (for those less severely incapacitated). If persons may after all be found “fit for work”, they will be put into the category of ordinary jobseekers, and will have to apply for the ‘Jobseeker’s Allowance’ (JSA). This is though not decided upon by the HCP at Atos, or the soon to follow new assessor, but by a so-called ‘Decision Maker’ (DM) at the DWP. The HCP of the assessment Provider (presently Atos) will send a functional assessment report called ESA 85 to the DM to base their decision on. Legally the HCP acts only as an “advisor”. On page 60 (see 3.1.6, second section) of the ‘Revised WCA Handbook’ (fr. 19 March 2013) it states that the Decision Makers are not medically qualified! On the bottom of page 60 (3.1.6.1) it also says: the use of medical terminology should be avoided. This raises concerns about how cases are decided on, where complex medical conditions exist.

As mentioned, the WCA is initially done on paper, and if a face to face assessment is considered necessary, the HCP will notify DWP, or rather the Jobcentre Plus Office of this, who will then make arrangements for a referral of the “claimant” to attend an examination centre. At the actual assessment a specially structured interview will be conducted, aimed at establishing the physical and mental functional capabilities – rather than the disabilities of a person. The HCP of the assessor (Atos) is instructed to first read all presented medical records and other relevant documents, and will then conduct an “effective” interview, during which she/he is expected to also “listen between the lines”. This is generally followed by a physical examination. As there are usually set time limits for the assessment, this places pressures on HCP staff. While HCPs have to record all medical conditions and a concise medical history, the whole examination or assessment is in its form only marginally “medical”. A strong focus is put on the “social and occupational history” and “the typical day” of a “customer”. The assessing HCP is also instructed to carefully “observe” the behaviour of the person they interview and examine. On page 112 of the ‘Revised WCA Handbook’ (under 3.5.1) the HCP is advised: The HCP must have a high level of suspicion about the presence of any mental function issue and must carefully explore mental health symptoms that may be overtly “provided” by the claimant! At least 15 points need to be scored during such a WCA for the claimant and “customer” to meet the “limited capability for work” criteria for ESA. To qualify for the Support Group a claimant must be severely incapacitated, e.g. score at least one of the highest points (15) scoring descriptors for 16 “activities” (see Appendix 1 from page 150 in the WCA Handbook). Only those meeting Support Group criteria will be exempted from work expectations. Those who only meet the criteria for “limited capability for work” will by the DM at DWP be put into the Work Related Activity Group, which usually means there are conditional work expectations.

While the WCA was initially only meant to be applied to new applicants for – and claimants of – the newly established ESA benefits, the DWP did in 2010 decide and announce that they would from 2011 onwards also re-assess virtually all existing Incapacity Benefit (IB) recipients (about 2.5 million). This made it abundantly clear that the new approach to test “work capability” was not simply a new measure for new beneficiaries, it was intended to fundamentally and generally shift the goal posts in relation to medical and work capability assessments and with that for benefit eligibility. Without doubt the aim was to reduce benefit entitlements by substantially tightening the criteria for being accepted as incapacitated to perform work. The draconian nature of the WCA (same as its predecessors) should lead to hundreds of thousands of formerly considered “disabled” to lose that status, and to be re-categorised as being “fit for work”, no matter whether there was any realistic chance of them finding real jobs, let alone perform and keep such employment on the open market.

Since its introduction the WCA has experienced a number of changes, because it was found to give insufficient considerations to mental health sufferers, because some descriptors for limitations on activities lacked sufficient clarity, because the DWP decided to review certain provisions themselves, because annual reviews suggested improvements, and because substantial public criticism and pressure (particularly from disability advocacy and support groups, but also the British Medical Association and other stakeholders) forced the government to further amend Regulations and change processes. See ‘Appendix 1’‘The Support Group Descriptors’ (from page 150 onwards, in the ‘Revised WCA Handbook’ issue 2013) for details how tightly the criteria has been set for activities and descriptors in use. But all these changes, mostly brought in very reluctantly, did not abolish or replace the excessively strict and tight criteria used by way of descriptors within the WCA itself. Most changes only affected parts of the WCA processes. The DWP and UK governments insisted on continuing with using the WCA to achieve the originally stated and sought outcomes, which in hindsight though appear to provide remarkably little true and effective “assistance” for the affected, to enable them to access and maintain sustainable employment.

While the WCA is used only in the United Kingdom, the underlying changes in approaches towards medical and work capability assessments, brought about by a well known group of certain key “experts”, and suggested and supported also by a vested interests holding health and disability insurer by the name of UnumProvident, who had effective influence on political decision-makers, have over recent years also played a significant role in shaping welfare reforms in New Zealand. Some of these “experts”, such as Professor Mansel Aylward, even visited government officials, professional medical organisation leaders, and lobbied strongly for the adoption of similar approaches and processes in Australia and New Zealand. It is this evident cooperation between “advisors” in the UK and like minded “experts” and “decision makers” here in New Zealand and Australia, which should be of concern, as with the WCA having lost all credibility and justification, the “experts” that developed and promoted it, deserve to come under intense scrutiny, same as their “research” and claimed “findings”.

Reference – Wikipedia: The ‘Work Capability Assessment’ (WCA)
http://en.wikipedia.org/wiki/Work_Capability_Assessment

 

 

B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs

The DWP has for the purpose of ‘Training and Development’ of Health Care Professionals (HCPs), that are employed or commissioned by the Provider (so far Atos Healthcare) of contracted assessment services, published a handbook. An updated version is called the ‘Revised WCA Handbook’, dated 19 March 2013. It contains important and essential guidelines for the HCPs when conducting assessments, and also shows on what information and processes the DWP Decision Makers rely and base their decisions on claimants’ benefit entitlements on. It contains the list of activities and descriptors that qualify a person for the so-called ‘Support Group’ under the ESA, where persons are exempted from work expectations. Going through the 16 “activities” reveals that the criteria to meet is set extremely tightly, it is draconian, harsh and unreasonable. The handbook is found on the internet and can be downloaded as a PDF. Look up the following links/websites for details:

‘Department for Work and Pensions’:
https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

Link to the down-loadable revised, 6th and final version of the ‘Hand Book’ for health care professionals authorised to conduct WCA assessments (from 2013):
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252637/wca-handbook.pdf

On page 11 it states the following:

“The handbook provides guidance on Employment and Support Allowance procedures and also recognises that these form the foundation of experience to progress to the generation of Evidence Based reports utilising the LiMA application. This handbook will make considerable reference to the LiMA application throughout as all ESA reports will be completed using the LiMA application except in exceptional circumstances. Much of the work carried out by Atos Healthcare, including ESA and DLA, is completed using the LIMA system. LiMA (Logic Integrated Medical Assessment) is an evidence based computer programme which allows the practitioner to document evidence gathering and supports the evaluation of data and provision of advice on levels of disability using logic based on evidence based medicine protocols. We will also use this system to provide advice for decision makers for Revised WCA assessments.“

On page 21 it says under ‘1.6 The role of the Atos Healthcare HCP’:

“In carrying out this function, ESA approved HCPs act as specialist disability analysts. The role of the disability analyst is different from the more familiar clinical role of reaching a diagnosis and arranging treatment. For the disability analyst, a precise diagnosis is of secondary importance. The primary function is to make an assessment of how a person’s day to day life is affected by disability, and to relate this to the legislative requirements.“

On page 46 under ‘3.1 The Medical Assessment’ it states:

 

The medical assessment process as a whole differs in many respects from traditional history taking and examination as carried out in the general practice and hospital setting. It entails bringing together information gained from questionnaires, history, observation, medical evidence and examination in order to reach an accurate assessment of the disability of a claimant and so to provide the information and the opinion which the Decision Maker requires. It is a complex procedure, involving careful consideration of history, observed behaviour, examination, logical reasoning and justification of advice.”

The revised Handbook reveals that there have over the last few years only really been some moderate “improvements” to the ‘WCA’ since its introduction. Activities that are looked at to assess work capability are still set at very basic and restrictive levels, same as the descriptors used to tightly classify the level of incapacity. The criteria applied to assess functional capabilities or lack thereof remains extremely rigid, so that only very serious, long lasting, permanent or terminal disease, illness and physical or mental impairments will be viewed as causing sufficient degrees of disability, so that persons will be categorised as having only “limited capability for work”, or “limited capability for work related activities”.

There is still insufficient consideration for people with complex mental health conditions, or with various comorbidities (physical, mental and psychological), and especially for those with fluctuating conditions. Simply using this points system, does not allow for sufficient recognition of complex medical and psycho-social aspects that may be covered by the WCA in its only slightly altered form. It is also of concern that a face to face interview, a physical and possible other examination, in a limited time frame, will likely miss important aspects and details to consider, despite of the assessors being expected to carefully look at all documented medical records. Observation may offer some insights worth noting, but it seems irresponsible, to reduce any input by a client’s own medical practitioner and/or specialist, by using a largely functional assessment, that only has a marginal focus on the still important medical side of things. The assessments also totally ignores the realistic chances any person assessed as “fit for work” under the “limited capability for work” category may have to obtain paid employment on the open market. When “manual dexterity” is being assessed based on the question, whether a person can push a button, turn pages of a book, or to some humble degree perhaps use a mouse or even keyboard, or when a person’s “mobility” is assessed based on the question whether she/he is able to move (with or without an aid) 50, 100 or 200 metres without any interruption, or when a person may not be able to move between two seated positions without assistance, then this does in my view tell me nothing convincing, that this is a form of assessment useful to establish actual work ability on the existing employment market. But a person able to do the mentioned, or to lift a half litre carton of milk, would be considered to have a “limited capability for work”.

The same applies to questions how a person is coping with a “typical” day’s activities, which are again designed to look at whether a person can only perform extremely basic level activities to qualify for referral to the ‘Support Group’. Within a well equipped and familiar home a person may be able to cope relatively well with doing basic chores, but that will again mean very little in regards to how such a person would cope in a work place, like an office, a work-shop, at an assembly line, at a customer service point or whatsoever.

The assessment remains overly focused on claimants having to “prove” their disability, and appears to only have the aim to single out the extremely, most impaired and disabled from the perhaps more moderately impaired and disabled, in order to reduce benefit entitlements, and thus save the DWP and UK government COSTS. As those considered fit for some work will have expectations placed on them, or otherwise face lower benefits, it is the logical conclusion that the purpose behind this exercise is to reduce claims and costs, although the whole exercise has by now proved to be an abject failure. The WCA does nothing to bring about social and environmental changes, like such that employers would be expected to cooperate, same as society as a whole, to change their attitude towards, and the treatment of those with serious sickness and physical, mental and psychological disabilities. Simply replacing “sick notes” with “fit notes”, changing the official focus from “disability” to “capability” does not create more suitable jobs, better employment and pay conditions for the people that are supposed to be supported. Such are ideologically driven, cosmetic and bureaucratic changes that have not delivered the outcomes they were meant to deliver.

I recommend that readers have a thorough read of the ‘Revised Hand Book’ to get a grip of what this WCA is all about, when applied in practice! It will open the eyes of those that have little knowledge of what the WCA and applied processes actually mean and look like.

 

C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS

For years now the DWP has worked with the contracted Provider Atos Healthcare to use and apply the WCA in assessments of new, potential and existing claimants of benefits, while gradually phasing in the ESA. Atos Healthcare has gained an appalling reputation, but while some serious failures can rightly be blamed on that Provider, it must also be accepted, that Atos has generally only been doing the job for the DWP, as the law and processes expect them to. The ultimate responsibility for major failures in applying the seriously flawed WCA should lie with the DWP and UK governments. Nevertheless, Atos deserves to be looked at and to also be criticised for delivering unconvincing, poor services that cost some persons their remaining well-being, yes their lives. It should not surprise any informed persons that Atos decided to opt out early from a long term contract with the DWP, given the total loss of faith in their delivery. The following contains essential, revealing information about Atos Healthcare, still the Provider of WCA assessment services in the UK:

ATOS Healthcare, the provider that asked for an early exit from a contract with DWP:
Their corporate website:
http://www.atoshealthcare.com/

They state rather clearly on their website:

ESA Claimants

“Atos Healthcare carries out disability assessments on behalf of the Department for Work and Pensions (DWP). If you are claiming benefits as a result of a disability or injury, you may be required by the DWP to have an assessment with a qualified health care professional as part of your claim process. Atos Healthcare conducts disability assessments, using criteria set out by government, and provides the DWP with independent advice which is used by a DWP Decision Maker, along with any other information they have received, to decide on your entitlement to benefit. These benefits include: Employment Support Allowance, Disability Living Allowance, and Industrial Injuries Disablement Benefit. We also conduct assessments for Veterans UK.”

They also stress:

‘We do not decide your entitlement’

“We cannot give you advice or provide an opinion on the outcome of your claim. Our role is to carry out an assessment and provide this to the DWP in the form of a report. The DWP Decision Maker may use other information when considering your entitlement to benefit. We are not usually informed of the outcome of individual decisions and we have no targets related to decisions made.”

See: http://www.atoshealthcare.com/claimants

They also make clear:

‘What to expect’

“The assessment is not like a medical examination you may have with your GP or at a hospital which is to diagnose your condition and treat it. The assessment carried out by Atos Healthcare is focused on how you are affected by your physical and/or mental health condition in daily life; this is called a functional assessment. The healthcare professional will be interested in what you are able to do and how you do it, whether your condition varies daily, or over a period of time, and how this affects your ability to undertake the tasks of daily living.”

See: http://www.atoshealthcare.com/claimants/before_your_assessment

 

With Atos having sought an early termination of their contract as assessor, the DWP not long ago announced a new contract with a new Provider, who is though by many considered to be equally ill suited to deliver better outcomes, that is at least by the affected and their representative disability support groups. It is questionable, whether any other private sector Provider such as ‘MAXIMUS UK’ will perform at a higher and better level than Atos, as they will have their hands tied with a contract paying them a set amount for service delivery, out of which they will of course also wish to make a sound profit.

What we have had now for decades, is the replacement of once perceived “over bureaucratic” state service delivery agencies or departments, with corporate business service providers, who are generally providing the same services, with admittedly some variations here and there. But with a profit margin needing to be met by private, or public shareholder owned corporate businesses, there will be limits to what can be delivered, and as history has shown in many cases in Europe and elsewhere, a tendency to streamlining, rationing, using of short-cuts and other “cost effective” measures, will often also compromise the quality of services being delivered, no matter how well the intentions behind outsourcing.

 

See the following information on MAXIMUS UK:

MAXIMUS UK – the newly contracted service provider to work with the WCA:
https://www.maximusuk.co.uk/health-programmes/independent-health-assessments

Own concluding comments on MAXIMUS:

This US originated corporate style business does on their website unsurprisingly present many “simple” and “positive” short messages, accompanied by glossy visual imagery. They reveal only little in detail – or of substance – of what they will actually offer. They claim to provide both speedy, automated system based assessments, same as reviews, reconsiderations and appeals. This sounds bizarre, as one would expect that reviews and appeals would ultimately be handled by an independent outside body, not the provider of the assessments. This raises questions about fairness and transparency.

We get “packaged” services that require human input that will cost, and like with any outsourced providers, they will have to make their calculations how much of their resources can actually be put into each client and the staff that are supposed to “serve” and “assist” them. I do not see how such services can and will do a better, more effective and more successful job in putting sick and disabled into jobs, that in most cases already the fitter and healthier workers compete for. To bear in mind also is the fact, that the WCA will be the same test that Atos Healthcare was expected to work with, and that MAXIMUS will have to work with. Using the same “test” for “work capability” means little of substance will change, and outcomes are not likely to be much different to what Atos delivered.

The DWP will of course have set a budget under a contract that includes clear outcome and target expectations when negotiating and agreeing with MAXIMUS.

Rationing of limited, available resources for the delivery of largely computer driven “services” will be the true day to day experience the affected end-users will generally have, and they either accept the limited “help” they will actually get (mostly verbal advice and referrals), and do the rest themselves. If they cannot do this, they will be facing the same hurdles and problems that people already have without such types of services.

The question arises again, how will sick and incapacitated persons, that may under the existing WCA still be assessed as being “fit for work”, cope with the demands and stress of day to day routines that work and preparation for work naturally brings. As many – if not most – will not cope, the “achievements” may only be very temporary, and only lead to in and out of work rotations, and to further marginalisation within the precarious society we have.

The news about MAXIMUS UK taking over from Atos has generated much debate and criticism. See the following reports on the DWP taking on MAXIMUS as a new Provider for the WCA service delivery.

Criticism of MAXIMUS UK being chosen to conduct the WCA:

dns DISABILITY NEWS SERVICE’ report on their website (31 Oct. 2014):
‘ESA claimants set for leap ‘from frying-pan into fire’ as Maximus wins WCA contract’
http://disabilitynewsservice.com/2014/10/maximus-wins-wca-contract/

DPAC’ report on their website:
‚Secrets & Lies: Maximus the new leader of the inhumans?’
http://dpac.uk.net/2014/10/secrets-lies-maximus-the-new-leader-of-the-inhumans/

The ‚Black Triangle Campaign’ sent an open letter to Ian Duncan Smith, Secretary in charge of DWP (12 Nov. 2014):
http://blacktrianglecampaign.org/2014/11/12/open-letter-to-iain-duncan-smith-maximus-contract/

 

D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP

Under the above chapters repeated reference was made to the DWP’s “Decision Makers”. This key role is held by staff members within the Department that are not medically qualified, but appear to have an understanding of medical and work capability assessment processes. It is of some concern that they are not expected to be familiar with medical terminology, and yet will decide on claimants’ work capability and benefit entitlements. It has besides of incompetency or mistakes made by the Provider’s HCPs also been a serious issue, how DMs made wrong and inappropriate decisions, based on “recommendations” or advice from assessors. Like in New Zealand with the ‘Regional Health Advisors’, ‘Regional Disability Advisors’ and also ‘Designated Doctors’ used by Work and Income (WINZ), responsibilities are split. HCPs only serve as “advisors”, and DMs in the UK make the decisions based on their advice. There is some information available on the internet that explains the position and responsibilities of such DMs. The following links lead to what is provided by the DWP:

Decision Maker” at DWP, Freedom of Information request 2066/2013 (fr. 02 May 2013):
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/209374/FOI.2066._pub_summary_template.pdf

Decision Maker” at DWP, relevant, important staff guides:
https://www.gov.uk/government/collections/decision-makers-guide-staff-guide

DMG Vol 8 CH 41: ESA conditions of entitlement:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/373219/dmgch41.pdf

DMG Vol 8 CH 42: Limited capability for work and limited capability for work-related activity:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/388570/dmgch42.pdf

Also of interest may be this guide for DMs:
https://www.gov.uk/government/publications/decision-makers-guide-vol-10-benefits-for-incapacity-disability-maternity-and-bereavement-staff-guide

 

E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT

As already mentioned under the ‘Introduction’ under ‘A).’ in November 2014 a final Review was completed on the WCA, and then published by the DWP. This Review followed four earlier ones, as so required under statutory law in the UK. This Review is the last one that was required under law, and while it makes further recommendations to improve the WCA, there appears to be no clear certainty that the recommendations made earlier, and the new ones, will all be fully implemented over time. To this date many earlier recommendations have only been partially implemented, or are “in progress”, some have not been accepted by DWP. This last Review mentions on page 19 (see under ‘Recommendations from previous reviews’, paras 18 + 19) that ‘Citizen Advice Scotland’ (CAS) requested or suggested that ongoing, further scrutiny of the WCA related recommendations and their implementation should follow, but there is apparently insufficient legal requirement for this.

Indeed the ‘Work and Pensions Select Committee’ of the UK House of Commons is quoted as having in 2014 called for a fundamental redesign of the structure of ESA outcomes (see page 2). This is a call for major changes, which need further clarification.

The 5th and Final Review of the WCA can be found on the internet. The ‘Department for Work and Pensions’ publication is titled the following, and is found via the link provided:

‘An Independent Review of the Work Capability Assessment – year five’, Dr Paul Litchfield, November 2014:
http://www.dsdni.gov.uk/an-independent-review-of-the-wca-year5.pdf

 

By way of carefully selected, important extracts from the full text – I present the following:

 

Foreword (see pages 2 and 3)

“This is the fifth, and final, independent review of the Work Capability Assessment (WCA) as established by the Welfare Reform Act 2007. It is the second review that I have carried out and the three previous reviews were conducted by Professor Malcolm Harrington. The WCA is intended to distinguish between people who cannot work because of health related problems and those who are fit for some work or who could, with support, eventually return to the world of work. It has been operational since 2008 but has been subject to multiple changes in both form and interpretation, some resulting from independent review recommendations. Despite the passage of a considerable period of time, the assessment remains highly controversial and the subject of much criticism. Indeed, the Work and Pensions Select Committee has recently called for a “fundamental redesign of the structure of ESA outcomes”. 1

“Mental health has also remained an area of particular focus for me. Almost half the people going through this system have a mental health problem as their primary condition and when comorbidities are included the number rises to two thirds. This is not particularly surprising given the prevalence of mental illness in our society but the scale of the issue indicates that mental health should be front and centre in any discussion about the WCA; that has not always been the case in the past.”

“Last year I concentrated particularly on the Work-Related Activity Group (WRAG) and this year I therefore turned my attention to the other main outcome area, the Support Group. The number of people falling into this category has been rising rapidly and while at the inception of the WCA approximately 10% of new applications were assigned to the Support Group, that proportion has now risen to almost 50%.2 I have tried to understand the drivers behind this change but, necessarily in a review such as this, I have mainly identified lines of enquiry to be pursued rather than concrete answers. An area that has caused me particular concern is the large number of young people under 25 that are assigned to the Support Group, mainly as a consequence of mental health problems. I would suggest that this is an issue that goes much wider than the WCA and which has long term implications for the employability of what could become a “lost generation”.”

“In thinking about the future, I have looked at systems in some other countries. The UK must have a system which is optimal for this country but there may well be learning from other places that can be built upon. It appears to me that we have taken the WCA about as far as it can sensibly go in terms of modification and adjustment.”

 

Extract from the “Executive Summary” (see page 4)

“1. The Work Capability Assessment (WCA) is designed to determine eligibility for Employment and Support Allowance (ESA). It is a functional assessment based on the premise that eligibility should not be determined by the description of a person’s disability or health condition but by how their ability to function is affected, which may vary considerably between individuals. … “

“3. In conducting this Review, it has become apparent that despite these changes and some undoubted improvements, there remains an overwhelming negative perception of the WCA’s effectiveness amongst people undergoing an assessment and individuals or organisations providing support to them.

 

Further extract from the Review:

Key findings and themes from this review

“● Evolution of the WCA – The scale and scope of the many changes to the WCA since its introduction may have had unintended consequences and further developments have occurred since the previous Independent Review. Mandatory reconsideration was introduced in 2013 and a step which might have been expected to receive a favourable reception has become associated with much negative perception. A number of factors appear to have contributed to this. The Evidence Based Review tested the WCA against a set of alternative descriptors. The methodology used was not ideal in scientific terms but it is, nevertheless, a useful piece of work that has improved the understanding of both the content of the WCA and the way in which it is applied. Overall, the published conclusion that there is no strong case for replacing the WCA with the alternatives tested is supported. There is learning about the use of semi-structured interviews and more complex issues relating to sensitivity and specificity that should be taken into account in the design of any future assessment. Overall, the sense is that the WCA has never really had time to bed down and each change serves to resurrect public interest and may serve to reinforce what are generally negative perceptions.

Support Group – Since its introduction in 2008, there have been significant changes in outcomes for individuals going through the WCA. In 2009 63% of people first assessed were found fit for work with 26% assigned to the WRAG and a further 10% placed in the Support Group.3 By 2013 these outcomes had shifted significantly with 47% of people making a new claim entering Support Group with only 34% being found fit for work. There have been a number of drivers for this shift and some are likely to be transient but the change is remarkable and, in particular, the growing number of young people being placed in the Support Group is of concern. The main driver for the increase appears to be the use of Regulation 35 (2) (b), where an individual is considered to constitute a substantial risk of harm. This category has increased substantially in both numerical and proportionate terms – some 38% of new Support Group cases now enter on those grounds.4 Surprisingly, two thirds of these decisions are made on a papers only basis. The issues warrant further investigation to ensure that the application of the WCA is meeting the policy intent and that individuals are placed in the most appropriate group.

Perceptions – The previous review highlighted the importance of the WCA not only being fair but also being perceived as such across a wide spectrum of opinion. Effective communication is key to improving this perception of fairness, both for people going through the WCA and for staff administering the system. This Review has sought to capture views from a wider range of stakeholders through the analysis of social media trends, as well as seeking feedback from the those members of staff within the DWP, working on ESA. Analysis of social media confirms that perceptions of the WCA remain overwhelmingly negative. The degree of negativity is perhaps telling given it is more than six years since the introduction of the WCA. One might have expected that views would have softened as people became used to the new system and saw that efforts were being made to improve it but that would seem not to be the case. Particular concerns about the level of information provided by the DWP in advance of a WCA were raised. The reliance on traditional writtencommunications works to the disadvantage of the DWP and an investment in better quality multi-media resources appears indicated.

Decision Making + processes – Decision Makers have rightly been empowered to make decisions on eligibility for benefit but the high and rising overturn rate of Healthcare Professional recommendations was commented on last year. The overturn rate in moving people into the Support Group is not as high as it was for the Work Related Activity Group but there is again an almost total lack of movement in the opposite direction; it is implausible that in any system changes would only occur in one direction if a balanced view was being taken. When a person is awarded ESA the duration of their award is also set and this may be for as short a period as 3 months or as long as 3 years. Frequently setting short re-referral periods for those so severely incapacitated as to be allocated to the Support Group appears counter-intuitive and using the Support Group for young people with acute, and generally self-limiting, conditions may cause more harm than good.

Groups meriting special attention – There are 1.4m people in the UK with a learning disability and only a small proportion of those of working age are in employment.5 A great deal of feedback was received concerning the barriers that individuals with a learning disability face with the WCA process. This includes difficulties with DWP standard communications, which are written in a way that many find impossible to comprehend without support. The introduction of Easy Read communications would go some way to overcoming these difficulties. The face-to-face assessment is also a particular challenge for many people with a learning disability given the common propensity to interpret questions literally, give responses that they think will please and overstate their capability. Vulnerability can be situational as well as intrinsic to the person. The Review has looked at those leaving the armed forces, those spending extended periods in hospital and those being liberated from prison. Each group faces its own barriers to interacting with the WCA process and have in common non-standard health record arrangements.

Future of the WCA – As well as looking back, it is appropriate for the last statutory independent review to look ahead. The report by the Work and Pensions Select Committee published in July 2014 calls for a ‘fundamental redesign of the structure of ESA outcomes’.6 The Reviewer has been asked to contribute to this debate in relation to the structure of work capability assessments and their application in determining eligibility for benefits. If it is decided to undertake a fundamental redesign of the WCA, there are a number of key principles that the Department should take into account:

 

o Any assessment should not only be fair but be perceived as such
o There must be clarity of purpose – determining benefit eligibility and supporting employment outcomes may not be compatible objectives
o Residual elements of the medical model of disability should be eradicated in favour of a biopsychosocial model
o Departmental staff should be at the heart of the assessment and should drive information requirements
o Any revised assessment should exploit information already provided to the DWP, rather than duplicating effort and incurring unnecessary expense
o Decision Makers and HCPs should see a representative range of cases and have appropriate training in the capability impact of common conditions”

 

Further information contained in the Fifth Review:

The Reviewer also reflects on and summarises past changes that were made upon earlier Reviews, which are referred to and described in the 5th Review. He was for the ‘Fourth Independent Review’ assisted by an appointed ‘Independent Scrutiny Group’, which provided “oversight”, “challenge” and “support” to Dr Litchfield. That group was appointed by the Secretary of State for the DWP (see page 12 of the Review). Of the 49 recommendations that resulted from the reviews in years 1 to 3 under Professor Harrington, the Fourth Independent Review found that the DWP had only accepted 35 of those in full and ten “in principle”. Of the ones fully accepted only 29 recommendations had been fully implemented, 3 partially implemented and 3 were in progress. Of the ones accepted “in principle” 5 appeared to have been fully implemented, 2 partially implemented and 3 were in progress. 37 further recommendations were made in the Fourth Independent Review (see page 18).

Details on the implementation of previous recommendations can be found from page 19 on, under the heading ‘Recommendations from years one to three’, and from page 20 onwards under the heading ‘Recommendations from year four’. It shows that a fair number of recommendations have not been fully implemented, some going back to year 2 and 3 of the Independent Reviews. In para 27 it says re year four recommendations: “There are also a number of recommendations where DWP has demonstrated encouraging progress, though they cannot yet be considered fully implemented.” Under para 30 the Reviewer even states: “There are some recommendations where progress appears to have stalled, or it appears that DWP will not be implementing them as originally envisaged.”

On pages 21 and 22 to 25 the Fifth Review describes how a newly introduced “mandatory reconsideration process” appears to have significantly reduced appeals against DWP decisions on ESA, based on WCAs. It is unclear whether such appeals have simply been deferred, and there are evident new problems with that process itself. It has been described as taking too long and causing stress on the clients seeking reconsiderations of decisions. Also was there substantial criticism that the ESA payments are not continued during the process, forcing people to apply for JSA (see page 25 – 26). An ‘Evidence Based Review’ recommended by the former Reviewer Professor Harrington presented rather mixed results (pages 26 to 29). The DWP put out a response to the Evidence Based Review findings in March 2014, and it is quoted in the Review with:

“DWP will explore practical improvements to the assessment process in light of the EBR findings, in particular the feasibility of healthcare professionals using prompts from a semi-structured topic guide for WCA discussions. DWP will also explore the scope to further review healthcare professional training and guidance on considering and recording fluctuation during assessment discussions without placing undue burden on claimants. On the whole, the EBR results do not suggest that changes to the descriptors would improve the effectiveness of the WCA.” (page 30).

That does in short mean nothing much more than a bit more “tinkering” around the edges of the WCA process. The Reviewer makes 7 further recommendations for possible improvements of the WCA, particularly in regards to considerations by policy officials and operational staff prior to further material changes, in regards to mandatory reconsiderations, to better communication, and better use of feedback to improve quality in decision making, and also in regards to work more on developing semi-structured interviews (see pages 31 and 32 of the Review for details).

Under Chapter 3, and from page 33 on, the Reviewer reports specifically on the ‘Support Group’ and how there has since late 2013 been a marked trend of persons being placed into the ‘Support Group’, following DWP decisions upon a WCA. Under para 8 on page 34 the Review states: “There have been significant changes in outcomes following a WCA since its implementation. In 2009 63% of people were found fit for work with 26% being assigned to the WRAG and a further 10% to the Support Group.23 The WRAG outcome has been the most stable with a small reduction to 18% in 2013. However, the proportion of people found fit for work has dropped significantly to 34% and that for the Support Group has increased markedly to 47%. Allocation to the Support Group is now the most likely outcome of the WCA for new claims by a considerable margin.”

It is presumed that a spike in the Support Group clientele may be due to DWP processing a backlog of applications for ESA and necessary WCAs. The Reviewer expresses concern over the noticeable increase of new applicants or claimants to ESA aged 16 to 24 and also 25+ being assigned to the Support Group. He notes with further insight into the statistics that there is a greater number of persons being placed in the ‘Support Group’ under Regulation 35 (2) (b ), where there is deemed to be a substantial risk to the mental or physical health of any person (see para 13, page 36). A high number of these individuals were analysed as suffering a mental health condition, some of whom were considered at risk of suicide and self harm. The Reviewer appears to consider that the shift since 2009 reflects a change in which manner the Regulation is being used by HCPs, Decision Makers and/or the Tribunal Service. Only 34 percent of the people, who were placed in the ‘Support Group’ as a result of “Mental and Physical risk”, were so, following a face to face assessment. The Reviewer asks how about two thirds could be assessed as “not fit for work” on that basis through an assessment on the papers. Under ‘Young People’ (page 35) the Reviewer expresses his extreme concern about the fact that 49 percent of young people making a claim for ESA were in 2013 being put into the ‘Support Group’, with no work expectations.

One may wonder about the true independence of Dr Litchfield as Reviewer when looking at his remarks there, as the WCA had for years been considered as too unreliable, as giving insufficient consideration to mental health conditions and as being very rigid, harsh, unfair, yes inappropriate. Here he is defending the WCA, and questioning a change in assessment outcomes, which may actually be due to the realisation by the claimants’ own GPs, and then the assessment Provider’s HCPs and consequently DWP’s DMs, that there are more deserving cases of persons that should be placed into the ‘Support Group’, given their incapacity due to complex, fluctuating and vulnerability causing mental health conditions.

On page 41 of the Review he makes the following recommendation in this regards:

“The Reviewer therefore recommends that:
The Department investigates the substantial increase in the proportion of Support Group outcomes as a matter of urgency to determine whether the WCA is being applied correctly.
o In particular, the use of Regulation 35 (2) (b ) should be subject to close scrutiny with a particular focus on decisions made on a papers only basis.
o The drivers for the high rate of young people (16-24) being assigned to the Support Group should be examined not only to ensure that benefit decisions are correct but also to help provide the type of support that will avoid the creation of a “lost generation”.”

Then Dr Litchfiled does under Chapter 4 report on the “Perceptions” of the WCA, which have remained rather negative. The review gathered information on the perceptions of the WCA in the wider public and also amongst DWP staff, besides of those by people being assessed and those representing them. Strangely he talks about “effective communication” as a “key to improving the perception of fairness”. This suggests it is in his view not so much the WCA and processes followed, it is poor “communication” that is to blame for negative public perception. DWP communications to claimants were being examined as part of the Review. Also were “social media” content on Twitter and Facebook looked at. The analysis of “social media” for perception of the WCA was overwhelmingly negative. DWP staff were generally satisfied with staff training, but a “perceived need for additional follow-up support” was evident, and “differing levels of confidence in the effectiveness of the assessment” was noted between staff groups. Hence the Reviewer appears to recommend the bundling of necessary future changes, same as the review of mechanisms in place to monitor levels of understanding amongst staff, and improved advance communication (also from the Provider) about the WCA, and that the DWP work with the new Provider to improve the range, quality and content of online resources relating to the WCA.

Chapter 5 covers the decision making within DWP on ESA applications and WCA assessments. Dr Litchfield reflects on some issues with re-referral periods for the claimants in the Support Group and the Work Related Activity Group. The Reviewer generally supports the use of varying re-referral periods, of different duration, but appears to recommend a more careful and appropriate approach, which does not always seem to be applied. He suggests DWP should review some of their practice in this area.

Under Chapter 6 Dr Litchfield looks more closely at groups meriting special attention, such as persons suffering mental health conditions, and in particular those with learning disabilities. He describes difficulties these groups experience, including a few other special groups of persons, when facing a WCA, starting with the completing of the ESA 50 questionnaire, but also with presenting needed medical and other documentation, and how to deal with a face to face interview with a HCP of the Provider (to this date still Atos). 8 recommendations for improvements are made on pages 64 to 65.

I will not bother covering Chapter 7, which covers special aspects that apply to how the WCA is being used in Northern Ireland. Of more concern to me is Chapter 8 about The future direction of the Work Capability Assessment. Under The changing landscape the Reviewer raises concerns about whether the WCA is, as a replacement of the earlier ‘Personal Capability Assessment’, while using a more functional assessment of capability, still fit for the remainder of this new century. He describes the changes in the nature of work, the disappearance of many physically demanding jobs and the new technologies offering different forms of employment. Also mentioned is the change in the workforce over recent decades, partly due to changes in demographics. He mentions public health improvements, but also the rise in the incidence of mental health conditions.

Dr Litchfield considers that the current assessment model, though founded on capability rather than diagnosis, retains a strong medical flavour. “Modern thinking favours a biopsychosocial model of disability, which considers not just capability but also other factors such as skills and readiness for the labour market”, he writes. He continues on page 80: “Integrating these various factors is more complex than a simple capability assessment, such as the WCA, but the power of modern computing facilitates the integration of multiple sources of data quickly and cheaply. The WCA is often viewed as being machine driven but the assessment is one that could easily be conducted using pencil and paper. We would therefore seem to have the worst of both worlds at the moment with a perception of automation without the benefits of comprehensive data analysis to inform decisions. The Reviewer expresses concerns about the lack of information sharing.

Then he goes over to look at international experiences and practices, which may be of some interest, but his comments should perhaps also be of concern, given the apparently very one sided, rather superficial understanding, especially in regards to what has been done and is happening here in New Zealand. While there are many similarities in the way sick and incapacitated on benefits are being assessed and now “supported” into potential employment or training, there are indeed also some fundamental differences between the systemic approaches now used here in New Zealand, and those presently used in the UK. The following is a further extract from the Review, starting from page 81:

 

International approaches” (see pages 81 – 82)

15. The demographic issues outlined above are by no means unique to the UK. The Review has therefore examined the approach taken in some other parts of the world to support people of working age who have incapacitating health conditions and disabilities.

16. There have been a number of common developments in recent years. Many countries have moved from systems based on health conditions and disabilities to ones that assess functional capability. In parallel there has been a shift from the use of people’s own doctors as the “gatekeepers” to benefit eligibility and towards the use of independent assessors. Some countries have separated the issues of benefit eligibility from work capability and gear assessment of the latter towards the definition of adjustments that might allow reintegration into the workforce. It is beyond the scope of a review such as this to provide a detailed analysis of different social security systems but the Reviewer found developments in the Netherlands, Denmark, Australia and New Zealand of particular interest.

17. In the Netherlands, most people’s capacity for work is assessed by an insurance company using a ‘Functional Capability Checklist’, which is based on an individual’s capability and not health condition or disability. The examining doctor assesses the probable duration of incapacity as well as the likelihood of recovery. If the individual is found to have some prospect of employment, an ergonomist will review appropriate jobs and make a calculation of salaries to determine if loss of earnings is significant enough to award benefit, on either a temporary or permanent basis.

18. Denmark has a system which maps closest to a pure biopsychosocial model of disability. Eligibility for benefit is assessed against a ‘Resource Profile’ which consists of 12 components addressing an individual’s education and work history, cognitive and mental fitness and social circumstance. Only one component of the profile is health-related. This principle of taking a wider range of factors than simply functional capability is already applied in Northern Ireland through the Job Readiness Indicator tool referred to in Chapter 7. Systems such as this have been considered overly complex in the past but developments in information technology make their operational use practicable.

19. Australia has had some success with focussing its assessment on identifying and overcoming barriers to work in its dual role as assessing eligibility for benefit and referring individuals to service providers. An assessment of functional impairment is made against ‘Impairment Tables’ and individuals point-scored against a range of descriptors that include physical exertion, stamina, mental health function and functioning related to substance abuse. The assessment is then used to identify barriers to work an individual may face and refer for appropriate support.

20. New Zealand has taken a fundamental approach which the Reviewer was able to explore in some detail with the assistance of the New Zealand Government. Reforms have recently been introduced with the aim of simplifying the benefits system. There are many similarities with the UK system but also some key differences. The new system amalgamates sickness benefit and several other benefits with unemployment benefit as Jobseeker Support. A self-assessment focusses on the type of work an individual could undertake currently or in the future and the support they might require to do so. There are differing levels of obligation (analogous to UK conditionality) but benefit payments do not differ. A case management approach is taken to assist people into work with specific additional support for those with mental health problems. Independent capability assessments may be undertaken but are sited at the very end of the process, if required at all, and relatively few had been undertaken at the time of writing.

21. The New Zealand reforms are at an early stage of implementation and it is not yet possible to determine their impact. However, the approach of uncoupling levels of benefit eligibility from work capability and focussing on overcoming barriers to employment has appeal and merits further exploration.

„Principles for any redesign“

22. The WCA has now been the subject of five independent reviews as well as, perhaps unprecedented, external scrutiny. The Independent Reviews have concluded that broadly it fulfils its remit but that it is far from perfect and there has been considerable scope for improvement.

23. The EBR has examined the current descriptors against an alternative set and has highlighted a number of strengths and some weaknesses. Substantial changes have been made to the assessment since its introduction and those may, at least in part, explain the significant shift in outcomes described in Chapter 3; it is unclear whether those outcomes now reflect policy intent. There have been many changes in the world of work, an evolution of thinking in relation to work related benefits and a step change in the capacity to handle complex information since the WCA was designed. The Work and Pensions Select Committee has called for “a fundamental redesign” and it is questionable whether that can be achieved by further tailoring of the current tool.

24. It may therefore be that policy makers will choose to initiate a comprehensive overhaul of the system. If so, it would seem prudent to look more widely than the WCA and to revisit the basic assumptions for ESA so that any assessment is properly aligned to what is required of it. Consideration should then be given to whether an assessment of functional capability is the most appropriate means of determining eligibility for benefit or whether that decision is better uncoupled from activity geared to helping disadvantaged people finding employment. The Reviewer would counsel in the strongest terms that sufficient time and suitable expertise be allocated to design, develop and test any new assessment as part of drawing on the learning from the WCA.

25. If it is decided to undertake a fundamental redesign of the WCA, the Reviewer would recommend that there are a number of key principles that the Department should take into account.

26. As has been stated in this review and its predecessor, there is an overriding requirement for any assessment not only to be fair but to be perceived as such. That perception must be broadly shared by those experiencing the process, those administering it and society at large. There remains widespread disquiet about the WCA and the way that any replacement is designed will be critical to building trust in it. The Department should therefore give careful consideration to how this would be best achieved but transparency and consultation will be critical.”*

* Please read the original Review to see what Dr Litchfield recommends for that case from para 27 onwards!

 

Also note the following revealing bit of information in Annex 4 to the Review:

Annex 4: Acknowledgments:

Extract:

1. Although this has been my second review of the Work Capability Assessment (WCA), I have had a great deal more to learn about its application and I am most grateful to all those who have graciously given their time to help me.”

10. I would also like to thank officials at the Ministry of Social Development in New Zealand – particularly Sacha O’Dea, Anne Hawker and Dr David Bratt – for providing invaluable insight into the challenges they are facing and the reforms being made into how incapacity for work is assessed. “

****Please read the rest of the full Review and recommendations by Dr Litchfield!****

 

F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE

On having read most of the Review, it is clear that since the introduction of the WCA there had been a number of changes proposed and in a fair few cases also made. The Fifth Review has in Chapter 2, ‘The development of the Work Capability Assessment since 2008’ from page 18 to 22 covered previous recommendations that resulted from earlier Reviews, and looked at which had been accepted by the DWP in full, and which in principle. I looked at the ones which have been partially implemented, which have in some cases been fully implemented, and which have not been implemented. Some are described as being “in progress”; some recommendations have been superseded by recommendations in Review Four. It appears that some recommendations have to this date not been implemented.

Further information re each outstanding recommendation that was made under Reviews in years one to three can be found under Annex 2 (see page 90), listing them individually, and showing the progress or lack thereof. Annex 3 lists recommendations from the Review in year four (see pages 94 to 103), which have only been partly implemented, some not at all.

Detailed new recommendations have been made in the Review for year five, and they are individually listed as bullet points on the following pages:
Chapter 2, Page 31 to 32: 7 recommendations
Chapter 3, Page 41: 1 recommendation (with 2 sub bullet points, listed as 3 in Annex 1)
Chapter 4, Page 47: 5 recommendations
Chapter 5, Page 54 to 55: 5 recommendations
Chapter 6, Page 64 to 65: 8 recommendations
Chapter 7, Page 77: 5 recommendations
Chapter 8, Page 84 to 85: 6 recommendations (not listed in Annex 1 as suggested for WCA redesign)

Total recommendations counted: 37

As some of these appear to have been broken down differently, they show as only 33 total recommendations, as they are listed in Annex 1 (see from page 86 onwards).

 

Going through the various recommendations listed in the Annexes 2 and 3, it shows, that most of the still outstanding ones, and of the recent (year four) ones listed there, have either only been partially implemented, or are still “in progress”. Only a few have been fully implemented, and some (including important ones) have not been implemented at all. It appears the DWP and also the UK government have been dragging their feet when challenged with further improving the WCA. The valid question though is and remains: Can the WCA be sufficiently improved, to be applied reliably in all cases, and at the same time be perceived as a fair way of assessing sick and disabled persons?

My personal view is, and it appears that it is the view of a majority of the affected, and many in the UK public, that it cannot. The WCA is not fit for purpose, has never been so, and the changes or “improvements” that may have been made, do even in the eyes of the Reviewer now question, whether the WCA and the process in place do still fulfil the “policy intent”.

Having a functional assessment like the WCA, that is as restrictive and harsh, by using selected activities and associated descriptors, that only classify sick and disabled, when they can barely move or mobilise (with even reasonable aids), when they cannot lift half a litre of milk, and when they can only change from one seated position to another with another person’s support, to be considered “not fit for work”, is draconian, inhumane and mean. Considering persons “fit for work”, when they can lift a half a litre of milk, when they can walk a minimal distance, when they can push a phone button, when they can do other very basic activities, and extremely simple tasks, is completely unreasonable, as there are virtually NO realistic employment opportunities for individuals that can just do that, or a little bit more.

All changes and support will not enable most such persons categorised as “fit for work” to compete with the considered “more healthy” and “able bodied” on the open job market. And still today the WCA is not fit for appropriately assessing many with mental health conditions, that fluctuate, and that may not appear as severe as expected, as many with such supposedly “moderate” or “common mental health conditions” will also not realistically be able to cope with the expectations that come with jobs being offered on the competitive job-market. The very fact that the WCA had to be changed as often as it has been, or rather the process while using it, shows that it is seriously flawed, and does not stand up to scrutiny.

It is essential that a different method of assessing sick and disabled for work capability is introduced and followed, which also still considers medical aspects, as it is impossible to exclude medical diagnosis and treatment from the process. A functional assessment must continue to give sufficient consideration to the assessed person’s GP’s reports and recommendations, which should be combined with other considerations, and the assessed person must be given sufficient respect and allowed fair and reasonable input into the process, as otherwise the “social” will be missing from the “biopsychosocial model” now so often propagated. Also without employers, and society as a whole, recognising and accepting their responsibilities towards the incapacitated, the disabled and long term ill, there will be little improvement in the situation of the persons that are supposed to be “supported”.

The whole history of the disastrous results of the WCA being applied over the years only reveals, that the “policy intent” is primarily a cost saving exercise, and little else, and even that has failed, given the large percentages and numbers of appeals and now also sought mandatory reconsiderations of decisions. Therefore the WCA must be abolished and replaced. If the WCA and associated measures would truly be designed to “support” people with disabilities into sustainable work, they would very different to the ones in use in the UK. It is true that many disabled would like to work, but many could have tried so under previous kinds of benefits and systems. The actual major problem is not the persons’ lack of motivation or alleged “malingering” or exaggerating conditions, the major problem and challenges are the lack of suitable jobs, the lack of supportive, accommodating employers, the lack of work environments where disabled people can work safely and be respected and appreciated, for the work they realistically can do. With a highly competitive job market, designed to favour the fittest of the fittest, mentally and physically, with less security and often insufficient pay to cover basic living expenses of workers, it may rather be the environmental conditions that prevail, that make it impossible for most disabled to find work, that is those that actually can do regular, somehow more or less demanding work.

Also is it absurd to overly marginalise the medical aspects when conducting assessments, as it happens to be physical and mental health conditions, besides of injury and disability due to loss of limbs and such, that are generally the cause for impaired function and incapacity. No matter what redefining of language, reformulated approaches and restructuring of work capability assessment tests may happen, to achieve certain outcomes. There will be physical, mental, psychological, and environmental and other limitations to what can be achieved. It would be more respectful and humane to simply accept that various persons need benefit support, and additional support, to perhaps find suitable employment, and it may make more sense to provide real incentives to the individuals concerned, and employers and other stake holders, to provide the conditions that can bring better outcomes. The WCA simply puts pressures on the weakest in society, by re-categorising them and laying endless new expectations onto them, which will be enforced through sanctions. This is not a productive and constructive approach to get disadvantaged persons into employment.

Governments that use such assessments as the WCA, and similar measures to pressure sick and disabled to try and find work, and to do all to keep them, and to even force them to stay in jobs when they are not well, are dishonest. Such measures are NOT about “helping” people, they are about shifting the goal posts and reducing welfare dependence and costs with whatever ruthless means. The drive and “policy intent” is simply to reset the criteria, to tighten it and nothing much else, whether there realistically are the jobs necessary or not.

The peculiar references to assessment practices and processes in New Zealand that are made in the Review will be addressed further below, as they do at least partly appear to be based on some misinformation. The limited number of references and comments Dr Litchfield has made in his review imply, that he only got the New Zealand Government’s and the Ministry of Social Development’s Principal Health and Disability Advisors’ position presented to him. It appears he did not bother to consult disabled persons’ support groups, beneficiary advocates and possibly also not members of the New Zealand medical professions on the welfare reforms. I will discuss this matter in the following chapter(s).

 

 

G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA:

It appears to be rather selectively presented and accepted information and advice that the last Reviewer of the WCA in the UK, Dr Litchfield, obtained from the New Zealand Government and senior Advisors of the Ministry of Social Development. There are some apparent inaccuracies, there is a lack of other important, relevant information not mentioned, and there appears to be a degree of misunderstanding of the way reforms in New Zealand have been introduced and are being applied. Firstly we need to look again at the Review:

See again the extracts from ‘Chapter 8’ on page 82 of the Independent Review:

20. New Zealand has taken a fundamental approach which the Reviewer was able to explore in some detail with the assistance of the New Zealand Government. Reforms have recently been introduced with the aim of simplifying the benefits system. There are many similarities with the UK system but also some key differences. The new system amalgamates sickness benefit and several other benefits with unemployment benefit as Jobseeker Support. A self-assessment focusses on the type of work an individual could undertake currently or in the future and the support they might require to do so. There are differing levels of obligation (analogous to UK conditionality) but benefit payments do not differ. A case management approach is taken to assist people into work with specific additional support for those with mental health problems. Independent capability assessments may be undertaken but are sited at the very end of the process, if required at all, and relatively few had been undertaken at the time of writing.

21. The New Zealand reforms are at an early stage of implementation and it is not yet possible to determine their impact. However, the approach of uncoupling levels of benefit eligibility from work capability and focussing on overcoming barriers to employment has appeal and merits further exploration.”

Also please reflect on this additional information presented at the end of the Review:

Annex 4: Acknowledgments:

Extract:

“1. Although
this has been my second review of the Work Capability Assessment (WCA), I have had a great deal more to learn about its application and I am most grateful to all those who have graciously given their time to help me.”

“10. I would also like to thank officials at the Ministry of Social Development in New Zealand – particularly Sacha O’Dea, Anne Hawker and Dr David Bratt – for providing invaluable insight into the challenges they are facing and the reforms being made into how incapacity for work is assessed. “

Dr Litchfield’s apparent failure to fully understand the New Zealand system

It always requires a bit of gathering of essential, relevant information, and analysis and study to fully understand systems used and applied in other countries. Even with having done such research and study, which often relies on certain official records and documents, and position statements and other data presented by public officials that are consulted, there is always a risk of only seeing part of the whole picture, and of misunderstanding complexities and details. I fear this has happened with “advice” the Independent Reviewer of the WCA received from New Zealand.

The question arises, what “invaluable insight” did our well known Principal Health Advisor Dr David Bratt, together with the usually hardly ever heard from, or noticed Principal Disability Advisor Ann Hawker, give to the Reviewer, Dr Litchfield?

What we have so far had delivered in New Zealand does not seem anything much more convincing and “ground breaking”, as the “reforms” here (from 2012/13) were largely taking over very similar, if not identical approaches, that were adopted with “reforms” previously introduced in the UK. One major, noticeable difference may be Dr David Bratt’s extra emphasis, that the benefit is supposedly as harmful as “a debilitating drug” (see his many presentations stating that, and also selectively quoting Drs Aylward and Waddell and others, who set the agenda and tone for reforms in the UK):
‘Ready, Steady, Crook – Are we killing our patients with kindness?’ (see pages 13, 20, 21, 35)
http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf

 

Special features or aspects of the NZ system, in comparison to the UK system

In order to look at the more serious aspects of what differences there are between the UK and New Zealand, I can list the following:

1. “Simplifying the benefits system”

It is correct that there has been a “simplifying” of the benefit system in New Zealand, but while there has been a merger of the former ‘Sickness Benefit’ with the former ‘Unemployment Benefit’, and also the inclusion of some former ‘Domestic Purpose Benefit’ recipients into the new ‘Jobseeker Support’ category, there are still other types of benefits. One important benefit that exists for those severely and permanently (for at least 2 year) incapacitated is the ‘Supported Living Payment’ benefit category, formerly known as the ‘Invalid’s Benefit’. Dr Litchfield may know about it, but failed to make any mention of this, while it is actually a rather important benefit that is so far still being maintained here in New Zealand. It also includes persons that may need to care for an incapacitated person, but such “carers” may themselves need to face “work ability” and other assessments. Sick and disabled with medical conditions, injuries and incapacities of a less severe or temporary kind are included in the ‘Jobseeker Support’ category, but can be deferred from work test obligations, similar as the ‘Work Related Activity Group’ under the ESA in the UK may be. But in New Zealand, ALL persons on benefits can be assessed for work ability, or expected to attend work preparation measures, at any time, if so considered as being justified.

Now there may be the temptation to compare the Supported Living Payment benefit with the ‘Support Group’ under the ESA in the UK. That would not be quite appropriate, as there is still a somewhat less restrictive, not as rigid and harsh way applied when assessing persons that may be entitled to this benefit. Also have many persons that received this benefit since before the last major welfare reforms, that took effect mid July 2013, remained on it, and only in some cases been re-assessed. While the general approach by the Ministry of Social Development’s (MSD’s) department called Work and Income (WINZ), the agency comparable to the DWP in the UK, is to now rather look at what people can do, than what they cannot, there is NO one clear set of guidelines or “descriptors” for activities, that is used for assessing sick and disabled here. This means, there is at least not a publicly known “test”, for how the individual persons that may qualify for this benefit are being assessed. The ‘Supported Living Payment’ recipients are likely to face more re-assessments and re-examinations over time, but there has to date not been a clear, general move to have all recipients re-assessed for their eligibility to that support.

2. Assessment regime and criteria

As mentioned above, the truly fundamental difference between the way work capability is being assessed in the UK, compared to here in New Zealand, is the one, that we do in New Zealand not have one clearly defined, structured, point scoring assessment such as the WCA. There is NO such one official document, no clear “test” at all being used. Despite of initial promises we have since the reforms were implemented since mid 2013 had NO clear communications at all from WINZ, the Ministry of Social Development (MSD) or the government, about what the exact criteria is, for assessing persons for their work capability. This is a very serious matter, as it leaves a huge degree of discretion to assessors that MSD and WINZ may use, and also to the “Advisors” and “Case Managers” making final recommendations and decisions on a case by case basis. It was the unreasonable degree and level of discretions the Chief Executive (and his/her staff) now have, which was during the submission process to the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’ (presented in September 2012) raised as a major concern by the ‘Legislative Advisory Committee’. See their submission via this link:
http://lac.org.nz/assets/submissions/Submission-on-Social-Security-Benefit-Categories-and-Work-Focus-Amendment-Bill.pdf
This means there is a lack of clarity and transparency in the whole assessment process!

3. Benefit entitlements or eligibility

What Dr Litchfield has made no mention of is the fact, that it is simply not quite correct to say, that there is no difference between benefit payments. It is not true, as the ‘Supported Living Payment’ is actually set at a somewhat higher rate than the ‘Jobseeker Support’ benefit payment. Already before the reforms were the ‘Sickness Benefit’ (paid for only short to medium term sick and disabled, not able to do full time work) and the ‘Unemployment Benefit’ set at the same rather low levels. So there has been no change between the beneficiaries now receiving ‘Jobseeker Support’, whether fully healthy and able to look for work, or those temporarily “deferred” from work and training expectations, due to health and disability. It is also not correct that benefit eligibility is “uncoupled” from work ability and resulting expectations. There are severe sanctions in place if a benefit claimant fails to fulfil obligations, which include working with contracted service providers. So if a work capability is established, there will sooner or later be an expectation that a client will look for work or at least do training, which may happen through contracted employment referral and training service providers. If a person refuses to cooperate, sanctions will be enforced, such as halving or fully stopping benefit payments. That can hardly be seen as “uncoupling” benefit receipt from work ability. Perhaps have a look at the information found via the following link:
http://www.workandincome.govt.nz/individuals/brochures/benefit-rates-april-2014.html

4. Requests for review and appeals on medical grounds

Also important to note is the fact, that in New Zealand, a WINZ client has the right to seek a review of any decision made, also where she/he may feel to have been assessed as “fit for work” by a “case manager”, on health grounds. The request for review will go to WINZ, and usually to the branch office manager. This may to some degree resemble the now in the UK used “mandatory reconsideration” process. Once another look was taken and a decision reviewed, the client can, if still unhappy with a decision following such a request, under certain circumstances appeal to a ‘Medical Appeal Board’, now in the statute called ‘Medical Board’ (MAB). This appeal body is rather different to the “Tribunal Services” in the UK, there coming under the ‘Courts and Tribunals Judiciary’. An appeal against a decision made by WINZ on health grounds, or relating to decisions on ability to work, can only go to the mentioned Board, which is actually not part of the judiciary at all. It is a panel of doctors and other appointed health and disability professionals, mostly so-called “Designated Doctors”, appointed by a “Coordinator” employed by the MSD itself. They take a fresh look at a person’s health and disability situation, and review decisions made. Only if a decision made by such a rather less “independent” Board gives reason to be challenged under law, is there the difficult to pursue option of filing for judicial review before a High Court here. A beneficiary may qualify for legal aid for such a civil proceeding, but first a lawyer needs to be found, who can also present a statement that proves a likelihood of success of such proceeding, as otherwise legal aid will not be granted at all. As legal aid nowadays hardly covers a legal representative’s costs, the chance of finding one is extremely difficult for a start. And if a proceeding commences, then MSD will most likely offer a “settlement” out of court, and deal with the case in discretion. The MABs are known to have appointed panel members that tend to raise questions about independence and objectivity. See these links:
http://www.workandincome.govt.nz/individuals/brochures/a-guide-to-medical-appeals-board-hearings.html ; http://www.legislation.govt.nz/act/public/1964/0136/latest/DLM5487423.html

5. Decisions on benefit entitlement based on work ability and medical conditions

While in the UK a ‘Decision Maker’ at the DWP makes a final decision about an applicant’s eligibility to claim the ESA, in New Zealand it is the ordinary ‘Case Manager’ at WINZ, who makes the formal and legal decision, under the authority of the Chief Executive. Case Managers decide who may be entitled to claim a benefit on health or other grounds. Like in the UK they mostly rely on “recommendations” made by here employed ‘Regional Health Advisors’ (RHAs) and ‘Regional Disability Advisors’ (RDAs), based at Regional Offices of MSD and WINZ, when making their decisions. But they do not make decisions based directly on reports and recommendations from an outside examiner, e.g. a ‘Designated Doctor’ or another contracted assessor. There is sometimes an involvement of ‘Designated Doctors’, who are actually “mentored”, “trained” and “supervised” by the Principal Health Advisor (PHA), Dr David Bratt, and their recommendations will go directly to the RHA or RDA. The latter will though mostly accept these and pass their further recommendation on to the Case Manager handling an application or re-assessment of a WINZ client. ‘Designated Doctors’ are supposed to act “independently” when examining and assessing sick and disabled clients, but they are commissioned and paid by MSD. There is now also the occasional use of separate, contracted ‘Work Ability Assessors’ (mostly physiotherapists, occupational therapists, and some psychologists), but their recommendations and reports appear to also go through the hands of RHAs and RDAs, who may in some cases consult with the PHA and PDA for further advice or clarifications. Hence in New Zealand there is not one major outsourced assessor, and there are also these internal Work and Income NZ Health and Disability “Advisors” who Case Managers receive “recommendations” from!

6. Case management approach and supposed “specific additional support”

Dr Litchfield does in his report comment: A case management approach is taken to assist people into work with specific additional support for those with mental health problems.” This claim is misleading, and only in part correct. So far this additional support, especially in the case of those with mental health problems, consists primarily only of “more intense case management”, and very little else. There is now a use of some newly contracted outside service providers to deliver “mental health employment services”, but they are facing difficult challenges, as they are paid set fees to deliver expected outcomes, which may not be achievable, if referred clients are not capable to live up to certain expectations. There are similar services for single parents on benefits, and some others with other health problems or “barriers”. But the emphasis is on achieving a set percentage of successful, at least temporarily lasting job referrals, with a very limited focus on “additional support” of a medical or psychological kind. If a provider does not achieve enough placements of clients into lasting employment, they will not get paid enough fees, which may mean they become economically nonviable. That means there is also significant pressure to “perform”, which can lead to clients facing risks of being referred into jobs, where they may not actually be well placed and hence cannot cope. These services are still in the testing phase, and there has been very little, even conflicting information, on their level of success. Lack of transparency and of evaluation information on the welfare reforms here are a major issue!

7. Overcoming barriers to employment

Like in the UK, the “barriers” that may be established and looked at here in New Zealand are usually only the ones that the affected sick and disabled beneficiary may face her-/himself, due her/his illness and incapacity. There is NO real expectation that can be put into employers, and that can be enforced, for them to fulfill a social duty to employ sick and disabled, and only limited incentives (if any) appear to be given. So the expectations and pressures are primarily placed on the client in receipt of a benefit, with a limited capability to work. Obligations can include seeking and participating in certain treatments, to attend support groups, to attend “courses” aimed at helping people apply for jobs, and to conduct job search efforts, and the likes. Again, if such obligations are not met, there will be severe sanctions that will be enforced, which is one way of “motivating” people through fear, not really by giving positive incentives to them to look at and use any supposed “capabilities”. If found “fit” for some work then there will be expectations, and case managers at WINZ are also expected to meet targets when working on placing such persons into employment. In an interview with Radio New Zealand National, MSDs ‘Director of Welfare Reform’ commented that they would usually not even tell employers of “barriers” their sick and disable clients may have, e.g. mental health conditions, which appears like they are taking irresponsible risks:
http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2592666/winz-expands-scheme-to-support-unemployed-with-illness-issues

8. Work Capability Assessments by different types of service providers

Unlike in the UK, New Zealand’s ‘Work and Income’ department does not use one major contracted assessment provider, like Atos Healthcare or MAXIMUS. Instead they have for many years maintained a pool of ‘Designated Doctors’ to provide second opinions, where there may have been a perceived need for such. Either a client’s own GP may have suggested a second opinion may be recommended, or WINZ Case Managers themselves may (usually after consulting with a RHA or RDA) decide to have a client with health conditions and/or disability referred for an extra examination by such a doctor, who is generally a GP. Since 2008 MSD have been actively training these doctors, officially only to “better understand” the WINZ systems and their “needs”, but there is anecdotal evidence that this reached levels of trying to influence such doctors. Dr Bratt and his RHAs and RDAs have been expressing certain expectations, which show for instance in the “presentations” Dr Bratt has used. Nowadays WINZ have around 300 “Designated Doctors”, and once they had many more. As the involvement of such additional assessors was still perceived as not meeting WINZ’s expectations in some cases, they have as part of recent welfare reforms (since 2013) started to contract a range of smaller, regional ‘Work Ability Assessment’ providers, who are commissioned on a case by case basis. They employ mostly physiotherapists, occupational therapists, some nurses, also the odd psychologist, and may now be asked to also provide an “independent” assessment for work capability for certain individual clients. But like ‘Designated Doctors’ they are bound by contracts with MSD, which again contain specific expectations, which are though not publicly available, as such information may be deemed “commercially sensitive”, and will therefore not be made available under the ‘Official Information Act’. As this is also a very new measure, there is still little or no information available on how they work. A number of links to other posts of interest may shine light on what they are about:
https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-b/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-c/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-d/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-e/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/24/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-f/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/25/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-parts-g-and-h/
https://nzsocialjusticeblog2013.wordpress.com/2014/06/26/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-i/

9. The lack of accountability assessors have in New Zealand

Few people outside of New Zealand will know of the complex legal framework that covers the registration and accountability of health practitioners in this country. One needs to understand the relevant provisions in the ‘Health Practitioners
Competence Assurance Act 2003’
, the ‘Health and Disability Commissioner Act 1994’, possibly also the ‘Health Information Privacy Code 1994’ and various other legal provisions, and how they are all inter-connected, and basically only leave the end consumer of health and disability services the option to lay complaints about any misconduct and failures by practitioners with the Health and Disability Commissioner. That Commissioner issues, oversees and “enforces” the so-called ‘Code of Health and Disability Services Consumers’ Rights’, but that means rather little here, as again, that Commissioner has very much discretion to take certain actions, or to (very often) take no action. Hence when last year the Office of the Commissioner received over 1,700 complaints, only just over a hundred were “formally” investigated. Even if misconduct is found and established, then the actions the Commissioner takes is usually limited to warnings or advice on how to remedy failures by conducting further training and such. The Commissioner does also only deal with complaints about practitioners acting as third party assessors, if face to face assessments and other conditions applied. And even then, the Commissioner will usually not bother getting involved, and simply refer the complainant to address any issues with the agency that commissioned the practitioner to do the assessment, e.g. WINZ or ACC. The New Zealand specific ‘Accident Compensation Act 2001’ also has special, unique provisions, and it provides for compensation to be paid even to persons suffering from medical misadventure, while the practitioners responsible cannot be sued for damages here. So assessors will usually have little to be concerned about, as they can make poor, flawed recommendations and will mostly face no serious sanctions or major consequences.
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/
See the relevant legislation found under these links:
http://www.legislation.govt.nz/act/public/2003/0048/latest/DLM203312.html
http://www.legislation.govt.nz/act/public/1994/0088/latest/DLM333584.html
http://www.legislation.govt.nz/act/public/2001/0049/latest/DLM99494.html

10. The special role by the Accident Compensation Corporation (ACC)

There is here also a separation between responsibilities state agencies have for supporting sick, injured and various types of disabled persons. While persons with congenital diseases, with illness and disability that did not result from an accident of any sort are reliant on the Ministry of Social Development’s WINZ department, those that suffer accidents tend to be looked after by ACC. The no fault accident compensation scheme in place here provides compensation payments for lost income (at a certain percentage), and does also offer some additional support, same as in particular cases clear expectations, for claimants to participate in rehabilitation. ACC use assessments that may fulfil a similar purpose as ones such as the PCA and now WCA used in the UK, but they do so with a slightly different approach and agenda. Some examples of what assessments they use will be presented further below in this post. There are though some claimants, who may be re-categorised by ACC as having a limited capability to work, and then get “exited” by that corporation to apply for WINZ benefits, should they fail to find and access employment that may be expected of them.

Conclusions

From the various points mentioned above, it becomes clear, that there are some significant differences between the systems and approaches used in the UK and in New Zealand. One very major difference between the way sick and disabled on benefits, or applying for benefit, are now being assessed here in New Zealand, when compared to the UK, is the absence of a formal, clearly structured, points-based “Work Capability Assessment”! Despite of all its flaws and deficiencies, there is one only advantage it has: It provides a basic level of clarity by listing certain activities and associated descriptors to conduct assessments. It may lack clarity in other respects, but from a legal point if view, it is “clear” enough to be challenged at Tribunal. Also very different is the way appeals can be made, and when looking at the somewhat favourable references and comments the WCA Reviewer Dr Litchfield has made in his report, this should raise alarm bells in the UK. It appears that the Reviewer considers it worthwhile to perhaps take up similar approaches to the ones used in New Zealand, and integrate these into the UK system. That would mean, having assessments that are lacking transparency and clarity, and that are also difficult to challenge, as it would be more problematic to appeal decisions made by Decision Makers. The UK would fare better with not following the New Zealand model or system, given it is so vague, and that it leaves so much in respect of diagnosis, assessing and decision making up to extremely unreasonable degrees of discretion, all very much left to the very agency that commissions the work capability assessments and pays benefits. It appears that there is already a level of formal and also less formal exchange of information in this area happening between the New Zealand Government and UK authorities and agencies.

Perhaps it is exactly the stated aspects of the New Zealand system that has impressed the UK Reviewer so much, as that approach is so open to flagrant abuse through using endless “discretion”? At the same time it bears a rather low risk of adverse consequences for the assessors and decision makers; because it deals with each case by case, so legal requests for reviews and appeals have little chances to overturn decisions against clearly set standards or established systems and processes, which do not exist here. Yes, decisions can be reviewed and changed, but that will only be done under discretion, case by case. The excessive amount of discretion that exists here in New Zealand, which the ‘Legislative Advisory Committee’ lamented in their submission on the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill’ in 2012, seems to be appealing to the Reviewer, and will probably also do so to the DWP. It may be for the very “murkiness” of the assessment and decision making processes in place here now, that there have been few if any public challenges and discussions about the legality and fairness of it all. And if WINZ or their “Advisors” get it seriously wrong, they can always use the same discretion, to review cases internally, thus limiting costs, and avoiding litigation AND the setting of legal precedents that may curtail their powers and freedoms to act for future cases.

PLEASE ALSO READ THE SEPARATE PART 2 OF THIS COMPREHENSIVE POST:

https://nzsocialjusticeblog2013.wordpress.com/2015/01/28/the-discredited-indefensible-work-capability-assessment-wca-in-the-uk-and-what-its-demise-must-mean-for-nz-welfare-reforms-part-2/

Also feel free to download this PDF file with a better readable copy of the whole post:
The discredited WCA in the UK, its demise and what it means for NZ, QFJ, NZSJB, 05.02.2015

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