Proposed Work Capability Assessment Changes Risk Leaving Disabled People Behind

Over the past decade, the United Kingdom has developed a poor track record when it comes to disabled people’s rights and welfare. A 2016 UN inquiry found that welfare reforms have led to “grave and systematic violations” of disabled people’s rights and that changes to benefits “disproportionately affected” disabled people. Since this report, the progress has been described as disappointing.

One of the more recent set of proposed changes is outlined in the Health and Disability White Paper published by the government in March 2023. The paper suggests reforms to “help more disabled people and people with health conditions to start, stay and succeed in work”, partly inspired by the large number of vacancies companies have been recently reporting. While on the outside this may appear to be a positive change, there is a large debate over the effectiveness of the proposed reforms and the potential for causing harm, particularly those related to reforming the benefits system.

Currently the Work Capability Assessment (“WCA”) is used to assess claimants’ ability to work and to find whether they are fit for work or place them into the Limited Capability for Work group (“LCW”) or the Limited Capability for Work and Work-Related Activity group (“LCWRA”). The LCW group requires that you make preparations for work whereas the LCWRA group currently does not have any such requirements for working or preparing for work. The groups protect claimants from being forced into work they cannot do or being sanctioned for not being able to meet the standard universal credit commitments and losing out on their benefits. The Work Capability Assessment process is gruelling, drawn out and tough and has been found to be damaging too many claimants’ mental health. One applicant reported that:

“The assessor wanted yes or no answers to various questions like ‘can you leave the house?’ I tried to explain that some days I can leave the house or answer the door, and other days it’s not possible because of my mental health, and the response from the assessor was ‘is that a yes or a no then? I came out of the assessment feeling let down, and not listened to, and later I made two attempts on my life. I’m still waiting for the result of my WCA.”

The Health and Disability White Paper intends to completely scrap the Work Capability Assessment, instead relying on the Personal Independence Payment (“PIP”) assessment to assess people’s ability to work. While this may come as welcome news at first, replacing two assessment processes with just one, the ‘simplification’ of this process and a search for efficiency may actually be more problematic.

In its current form, the PIP assessment evaluates different criteria to the WCA and is just another flawed, inhumane process. Between August 2018 and July 2023 in England and Wales, only 40% of new claims are given an award from the initial PIP assessment decision. The chart below shows the outcomes.

However, where the claimant appeals after the mandatory reconsideration, one in five appeals are “lapsed” where the initial decision is revised by the Department for Work and Pensions (DWP) in favour of the claimant before going to the tribunal. Once at the tribunal hearing, 80% have the initial decision overturned. This initial assessment is unreliable and unfit for purpose, so many decisions being revised or overturned is clear evidence of a system that is completely failing. The PIP assessment process has been described as being distressing, traumatic and often incorrect by a committee of MPs after their 18 month long investigation. There is also debate about how well the criteria reflect the difficulties disabled people face and how suitable they are, both as an assessment for PIP and as a replacement assessment to judge someone’s ability to work.

The additional monetary assistance for those in the LCWRA group would be replaced by a “health element” available only to those Universal Credit claimants who are receiving PIP. The Institute for Fiscal Studies estimated that 1 million people are currently in the Universal Credit health group but not in receipt of PIP or DLA. This is a considerable number of people who will lose the health element of Universal Credit (approximately £354 per month) unless they go through another gruelling health assessment in the form of PIP and are awarded it (likely leading to a massive influx of tribunal claims).

Crucially, the PIP assessment does not include the substantial risk clause where claimants who did not score enough points on the assessment may be treated as having LCW if, by reason of their health condition or disability, there would be substantial risk to the health of the claimant or others if they were not found to have LCW. 14.6% of new claims being awarded LCWRA are due to this clause. The PIP assessment has no allowance for substantial risk which may lead to LCWRA claimants being found ineligible for the health element. In addition the government are currently holding a consultation in which they intend to amend or remove the LCWRA risk criteria as the risk regulations are “no longer meeting the original intent to be applied only in exceptional circumstances”. This will result in a large amount of disabled people who have relied on the LCWRA monetary element potentially being ineligible to receive it and instead being found fit for work and forced into work activities, which may be inappropriate or harmful to them, or risk being sanctioned.

Under the new system, work-based requirements would be determined by a new “personalised health conditionality approach” decided by individual DWP work coaches. Mandating that disabled peoples abilities and needs are decided by work coaches, individuals without any medical background, is entirely absurd. It is extremely unlikely that Jobcentre work coaches will have the required training, knowledge and experience to determine what requirements are suitable for the sheer range of health conditions which impact people claiming universal credit. Even within these health conditions there can be a huge range in their specific effects. This approach would be unreliable and irregular and risk claimants facing sanctions, being forced into inappropriate work, or losing their benefits based on the opinion of unqualified work coaches.

The United Kingdom agreed to the United Nations Convention on the Rights of Persons with Disabilities in 2009, in which it agreed to protect and promote the human rights of disabled people. This includes Article 19 which states:

“States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community…”

It also states in Article 28 that State Parties will recognise the rights of disabled people to have

“an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability…”

The proposed welfare changes, in their current form, do not conform to these rights under the UN Convention and risk worsening the welfare of disabled people, particularly those on or below the poverty line. The implementation of this White Paper is surely to lead to a flurry of human rights challenges that are likely to be held against the Government.

---