How can we assess work capability in the ‘real world’?
This is a guest post by Elina Rigler, who has a background in research and – together with own experiences of the benefit system – this led her to try to understand how we ended up with the current assessment model. I’ve found her ideas really important and thought-provoking (not that I always agree!), and I’m really glad to be able to share them via the blog.
The Work Capability Assessment (WCA) determining someone’s eligibility for Employment and Support Allowance (ESA) has been surrounded by controversy ever since it was introduced in 2008. For some time now, claimants themselves, disability organisations and academics such as Ekklesia and Scope have been calling for the WCA to be scrapped and replaced by a ‘real-world assessment’ (RWA). It is not always clear, however, what is meant by a RWA, and what factors should be included in such an assessment.
One view – including the Rethinking the WCA report by Ben – is that incapacity for work “is intrinsically linked to employability”; hence, a RWA should take into account an individual’s age, education, work experience and other non-medical factors, while ignoring local labour demand. But a RWA can also be interpreted more narrowly to refer to the level of functional ability required in the modern workplace – i.e. it should take account of the nature of jobs and the adjustments generally available in the workplace, but ignore wider personal circumstances.
In other words, the question is whether the main problem with the WCA is (i) that it focuses on the claimant’s functional limitations rather than their wider ability to get a job, or (ii) that it fails to assess the kind of level of functionality required in real jobs.
What is interesting is that this is not a new issue, but was already raised during the parliamentary debates leading up to the introduction of standardised functional assessments in 1995. The issue has never been resolved; and for more than 20 years, successive governments have been tinkering with the ‘fit for work’ test, while failing to address the more fundamental flaws in the assessment model.
The Incapacity for Work Act 1994
The scene was set for the current controversy in the 1990s when the All Work Test (AWT), a points-based functional assessment, was brought in to determine eligibility for Incapacity Benefit (IB), the new out-of-work disability benefit replacing Invalidity Benefit (IVB). The main justification for this reform was that the number of IVB claims had been steadily increasing over the years, and it was argued that a more affordable and sustainable system was needed. Peter Lilley, then Secretary of State for Social Security, stressed that it was important to target those who were genuinely incapable of work, while those who were fit enough to do at least some type of work should receive the more appropriate benefit, Job Seekers Allowance (JSA), and be helped to find suitable employment.
Eligibility for IVB was decided mainly by GPs, who considered not only the person’s state of health but also factors such as age, education, and skills when determining their fitness for work. This old system was deemed too lax and subjective, and the AWT was introduced to provide a more rigorous and objective assessment of capacity for work. The new test, which was carried out by specially trained Benefit Agency doctors, ignored all non-medical factors, assessing the claimant’s general ability to perform physical and mental functions (e.g. walking, lifting, hearing, coping with pressure and interacting with others), and not their fitness for any specific occupations.
In the old system, the “overriding consideration” had been “one of reasonableness”, i.e. the claimant’s capacity for work had been measured against jobs which “exists in the real world”, though not necessarily available in the local area. Now the critical question was whether the claimant met the threshold of 15 points required to pass the AWT.
MPs and peers opposing the introduction of the functional assessment argued that it was too formulaic and the cut-off point was arbitrary. For example, Baroness Hollis protested that the AWT was a tick-box test “which bears as much relationship to the capacity for work as an MOT certificate does to the ability of a driver to pass the driving test”. She stated that such a mechanical assessment “may test for disability”, but being unable to measure pain, fatigue, and stress, “it certainly does not test for sickness”. Lord Swinfen agreed that people should be only considered capable of work which is realistically within their grasp. He made the eminently sensible point that
it should be the requirements of an average employer which is the yardstick; most employers nowadays expect a flexible, reliable and adaptable workforce. People who could only work for an ideal, altruistic employers, who is willing for staff to work when they feel up to it, should not be regarded as capable of work… Individuals may be able to perform a specific function, but it does not necessarily follow therefore that they are capable of work.
Some parliamentarians also questioned the assumption that a standardised test would be fairer or more accurate than a discretionary one. For example, Baroness Hollis objected to the GP’s role being marginalised in the new system, arguing that only the GP knew the patient’s history and entire situation, and was therefore in a position to make “a proper qualitative judgement”. Likewise, the legal expert, Nick Wikeley, observed that the new test would “remain subjective”, but focus “on a narrower area of inquiry”.
A number of critics were especially concerned about the decision to exclude all non-medical factors from the test. For instance, the Labour MP Keith Bradley complained that the one-dimensional functional assessment omitted other factors relevant to incapacity, such as “age, education, work experience and skills”. “It is nothing short of cruel”, he added, “that people found to be capable of work on functional grounds should be expected to find employment when there is no work for them to do”.
Why real-world factors were rejected in the 1990s
Ultimately, the proposal to include wider, non-medical factors in the test was rejected on the grounds that such an assessment would fail to distinguish between unemployment and incapacity for work. William Hague, then minister for Social Security and Disabled people, argued that
Non-medical activities, such as education, skills and experience, may affect the ability to get a job, but they are not a cause of medical incapacity. It is the medical condition that distinguishes the long-term sick from the unemployed. To include non-medical factors in the assessment would reintroduce the problems of the current system. It would mean that incapacity benefit would be paid to people because they are unemployed rather than incapable of work.
Baroness Cumberlege objected to the unfairness of the discretionary IVB assessment:
The current system is subjective, and, despite its objective of “reasonable work”, often produces unreasonable outcomes…This blurring of employability and incapacity also leads to unfairness: two people with precisely the same degree of incapacity may be treated differently because one has retrained and the other has not, although both are equally capable of retraining. That is both unfair and nonsensical: someone who cannot work because he does not have the appropriate skills requires training, not a benefit for sick and disabled people.
Despite Government’s reassurances that the AWT would provide a fair and objective assessment of incapacity, opponents of the Bill maintained that the new test was “wrong in principle, unworkable in practice”, anticipating the criticisms that would be levelled at the WCA 15 years later.
Plus ça change? The same debates in recent years
It is noteworthy that the same complaints have been made about the functional assessments over and over again (e.g. compare this to this). One of the most common criticisms (e.g. in 1998 , 2006 and 2010) has been that the mechanistic tick-box test is not able to adequately assess those with mental illness and other fluctuating conditions or to recognise the effects of pain and fatigue. The assessment process also continues to be something of a lottery: its outcome often depends on whether the claimant is lucky enough to be assessed by a sympathetic Health Care Professional or to have their claim processed by a decision maker who is willing to exercise a degree of common sense and discretion, instead of totting up the descriptor points mechanically.
And every now and again the issue of a real-world assessment has raised its head again. For instance, the following exchanges, which took place during the Work and Pensions Select Committee’s inquiry into the IB reassessment in 2011, echoed the 1994-5 debates:
Anne Begg (Chair of the Committee) voiced her concern that “the WCA does not ask questions about real life chances” of someone getting a job, or “take into account labour market conditions in the area, educational ability or ability to retrain”, while the then Employment Minister Chris Grayling declared himself “absolutely, unreservedly and implacably” opposed to introducing such a real-world test, stating that it would do “a huge disservice to those people – some of whom have health problems – who are on JSA”.
At this point, Dr Gunnyeon (DWP Chief Medical Advisor) pointed out that many people didn’t think of it as being about employability, but about whether “the assessment is really properly determining people’s suitability for work”. Right at the end of the session, Anne Begg got to the heart of the matter, stating that: “Employers are reluctant to employ disabled people”, and therefore “they are always going to be disadvantaged in the labour market”. Grayling glossed over this inconvenient truth, giving a typical ministerial response involving empty rhetoric (“breaking down barriers”), and an anecdote about one disabled claimant who had found a job.
The confusion about the meaning of ‘real-world assessment’ seems to remain. Moreover, policy makers seem to assume that since there may be good reasons for excluding non-medical factors from the assessment, they can continue to ignore the fact that the current WCA does not assess people’s fitness for the type of jobs that exist anywhere in the labour market.
The time for tinkering is over
It should be obvious by now why the WCA is not working, and, more to the point, why such an assessment will never work. The decision to exclude all non-medical factors from the assessment may be understandable; the problem is that, contrary to DWP’s claims, the ‘fit for work’ test has never reflected “activities and functional capability that a reasonable employer would expect of his workforce”.
It may also be that “real-world incapacity is intrinsically linked to employability”. But then the old questions remain: What employability factors should be taken into account; and how they should be weighted in the assessment? How to combine the benefits of a standardised test (e.g. consistency) with those of a more discretionary approach (e.g. personalisation)? And, above all, how to implement such a system without discriminating against some groups of claimants, especially those on JSA?
Despite this, it should be possible to replace the WCA with some form of real-world assessment – at the very least, based on the kind of level of functionality required in real jobs.