This report has been prepared by Nick Dilworth, a welfare benefit specialist of over 15 years experience, 13 of which have been as a fully accredited casework supervisor looking after a legally aided specialist help welfare benefits & debt unit with the South Hams Citizens Advice Bureau in South Devon.
The author of this report has conducted thousands of of social security benefit cases including hundreds of appeals in the first - tier tribunals with regular applications and decisions being secured in the Upper Tribunal. An area of specialisation being in the conduct of benefit fraud overpayment related cases working closely in conjunction with criminal defence solicitors involving cases often running to thousands of pounds. A high success rate is secured by the author in a whole range of cases with a great deal of experience in bringing appeal cases involving incapacity for work determinations and disability Tribunals.
The author has acted as an expert witness in benefit fraud cases in the Crown Court and provided welfare benefits training to a number of organisations and solicitor firms who call upon his experience in delivering presentations and troubleshooting complex benefit related issues with law firms who specialise in family matters.
The author is an ardent social justice campaigner who has worked closely with MPs and Parliamentarians on local and national campaigns including briefing the shadow justice teams in the recent legal aid reforms. His work has included Citizens Advice nominations for two successive years in legal aid campaign briefing and campaign work.
The author has drawn upon his experience and working knowledge of the legislation surrounding social security matters in preparing this report which can freely be used for the purpose for which it was prepared.
Mylegal is part of the ilegal on-line network and this report will be distributed via social media and can be made available in a printed downloadable format for those who register on the mylegal.proboards.com forum. If any of the contents are used in media articles an acknowledgement of the source of the contents would be greatly appreciated.
The objectives of this report are set out in the introduction which follows.
The following are all explained in full in section (2)
(i) Assessment phase
(iii) Conversion reassessment
(iv) Work Capability Assessment
'Atos' 'Atos Healthcare' are the French private healthcare contractors contracted by the Department for Work and Pensions to carry out the Work Capability Assessment for Employment & Support Allowance claimants and those undergoing 'conversion reassessment' from Incapacity Benefit, Income Support for Incapacity and Severe Disablement Allowance to Employment & Support Allowance.
'Medical evidence' refers to the evidence which the claimant is required to provide in accordance with the ESA/Medical Evidence Regulations during the assessment phases referred to in this report.
All units (unless stated otherwise) are in units of thousands and hundreds
This report sets out to analyse officially sourced statistics including those from the Office of National Statistics (ONS), the Ministry of Justice (MOJ) and Department for Work and Pensions (DWP) and to identify grounds for challenging government claims that the numbers of Employment & Support Allowance claims awaiting assessment and incapacity related claimants awaiting assessment for Employment & Support Allowance are falling and being conducted within acceptable time scales.
Government claims that the numbers of claimants who appeal against 'adverse' Employment & Support Allowance determinations have fallen also come under close scrutiny in this report.
This report is prepared in recognition of media reports that a large number of claimants are seeking the assistance of organisations such as the Citizens Advice Bureau over an escalating number of enquiries connected with Employment & Support Allowance claims.
In October 2008 Employment & Support Allowance was introduced by the previous Labour administration to replace its predecessor Incapacity Benefit. It was designed to reduce the overall number of claimants in recognition that some of the 2.6 million who claimed on the grounds of incapacity for work could do some work with appropriate levels of support to assist them into employment.
The Employment & Support Allowance reassessment programme aims to review the claims made by those in receipt of Incapacity Benefit, Income Support claimed on the grounds of incapacity, and Severe Disablement Allowance. All new claimants with an incapacity from October 2008 claim Employment & Support Allowance.
The Parliamentary intention is to reduce the numbers of claimants on Employment & Support Allowance, Severe Disablement Allowance, Income Support claimed on the grounds of Incapacity and to close all pre-existing claims for Incapacity Benefit by 2014/2015 in readiness for the phasing and integration of Employment & Support Allowance in to Universal Credit.
The intention is to reassess all pre-existing incapacity related claims with a view to seeing if they qualify for Employment & Support Allowance which will then (as far as those in receipt of an income based entitlement are concerned) become one of the six major means - tested benefits integrated in to Universal Credit.
Employment & Support Allowance claimants are subject to a more rigorous medical assessment generically termed the 'Work Capability Assessment'. It replaces the previous 'Personal Capability Assessment' used in Incapacity Benefit which only determined if claimants were (a) capable of work or (b) incapable of work. The changes are being phased in with a recognition that modern day employers are more adaptive to employing those with a health related limitation.
Employment & Support Allowance differs in that (a) the 'Work Capability Assessment' used to determine entitlement is widely recognised as being much 'tougher' than its predecessor and (b) is utilised to work out:
(i) Where a claimant has an insufficient degree of recognised 'limitation' and is therefore capable of work with no entitlement to Employment & Support Allowance.
(ii) Where a claimant has a recognised 'limited capability for work' they are entitled to Employment & Support Allowance in the 'Work Related Activity Group' which should enable them to access support to help them in to work.
(iii) Where a claimant has recognised 'limited capability for work related activity' and is entitled to Employment & Support Allowance in the 'Support Group' where there is no mandatory requirement upon them to look for work. This group is for those with the more severe levels of limitation.
The Coalition Government has placed a great emphasis on getting people off incapacitated related benefits into work where it can be established that their level of limitation enables them to do so.
The first phase of the reassessment programme commenced with the introduction of Employment & Support Allowance for all new claimants from October 2008. The second phase started in February 2011 with a vigorous review programme aimed at moving 1,759,620 Incapacity Benefit and 226,300 Severe Disablement Allowance claimants off their pre-existing benefits and (where eligible) onto Employment & Support Allowance using a 'conversion reassessment' programme which determines which claimants qualify under the new rules of entitlement.
The conversion programme aims to eliminate all existing Incapacity Benefit claims by 2014/2015 and to reduce the numbers claiming Severe Disablement Allowance to 44,000 by 2016/2017.
It is an ambitious programme which will require all claimants to undergo more rigorous and frequent assessment by the DWP with a large number of claimants having to undergo a 'Work Capability Assessment' conducted by the French firm Atos Healthcare who is contracted by the DWP to conduct the assessments using a points based scoring test.
Some claimants will not need to undergo a Work Capability Assessment as part of the DWP controlled assessment process; exemptions being made in certain cases for severe illness and terminal conditions. You can read more about the Employment & Support Allowance assessment process here.
Aim of this report
The purpose of this report is to assess the accuracy of Government's claims:
That the number of appeals against DWP decisions concerning Employment & Support Allowance are falling.
That assessments are being carried out within an acceptable time scale.
To identify systematic failure in the tracking of claimant cohorts:
By analysing the accuracy of DWP / MOJ statistical data sources in both Employment & Support Allowance and Incapacity Benefit cases.
By identifying cohorts of claimants who are not appearing in official DWP & MOJ statistical data sources.
It is important to define the meaning of the use of the word ‘assessment’ within the context of this report. It is a term used in many press articles and DWP statistical releases which needs to be understood for the avoidance of doubt.
A clear understanding of the assessment process is essential to a correct understanding of the findings in this report.
(2.1) Assessment phasing of a claimant claiming Employment & Support Allowance as a new claim.
Claimants are assessed by both the Department for Work & Pensions and Atos healthcare. Atos apply the ‘Work Capability Assessment’ which helps determine if a claimant qualifies for a placement in the main phase of Employment & Support Allowance. The legislative decision-making is in all cases carried out by the Department for Work and Pension usually using the evidence collected during the Work Capability Assessment conducted by Atos.
The main phases of Employment & Support Allowance consist of two components known as:
• The Work Related Activity Group is for claimants who have limitation but are deemed able to do some work with appropriate levels of support.
• The Support Group is for claimants who have severe limitation and are deemed unable to work. They can agree to a placement in the DWP Work Programme on a voluntary basis but it is not a mandatory requirement.
An illustration of how this works for new Employment & Support Allowance claimants is shown as follows:
The claimant before moving in to the main phase goes through an ‘assessment phase’ which is the time from when the claimant makes their claim until a decision is made on their eligibility to a placement in the ‘main phase’.
This may or may not include a Work Capability Assessment. However all new Employment & Support Allowance claimants go through the assessment phase. They will need to supply medical evidence from their doctor about their unfitness or limited capability for work.
The regulations specify that a new claimant applying for Employment & Support should have their claim assessed by the DWP within 13 weeks.
The regulations make provision for the assessment process to be extended in certain cases:
• If the DWP subsequently disallow the Claimant an entitlement to Employment & Support Allowance in the main phase and the claimant disputes the decision they will remain in the assessment phase up until a final decision is made on their claim. If the claimant appeals they can remain in the assessment phase from which will run from when they make their claim until a Tribunal hears the case.
• If the claimant asks the DWP to reconsider their claim, the claimant remains in the assessment phase until a decision is made. If the claimant disagrees with the decision and goes on to appeal to a Tribunal; they remain in the assessment phase up until the Tribunal hears their case.
It is a condition of a placement in the assessment phase that the claimant supplies up to date medical evidence of their incapacity right up until the assessment phase has ended.
The Work Capability Assessment does not mark the end of the assessment phase; it is only part of the assessment process.
Bob makes a claim for Employment & Support Allowance on the 1st April 2010, his Work Capability Assessment is conducted by Atos on the 8th July, the DWP makes a decision based on the Atos assessment that Bob does not qualify for a placement in to main phase of his Employment & Support Allowance on the 14th July. Bob asks for a re-consideration.
On the 31st August 2010 the DWP decides Bob is still not eligible for Employment & Support so he tells the DWP he wants to appeal against the reconsideration. Bob's case now goes to a HMCTS Tribunal.
On the 2nd February 2011 Bob’s case comes before a Tribunal and they decide he is eligible for a placement in the main phase of Employment & Support Allowance and they place him in the Work Related Activity Group with effect from the 14th July 2010.
Although Bob will have been paid the ‘assessment phase rate of his Employment & Support Allowance from the 1st April 2010, the Tribunal's finding means he will be entitled to arrears which make up the difference between his assessment phase payment and Work Related Activity Group payment with effect from the 8th July 2010.
(2.2) Assessment phasing of a claimant claiming Employment & Support Allowance for a new claimant who is then ‘reassessed’.
Employment & Support Allowance claimants are subject to more regular reassessment of their claims. Incapacity Benefit (despite once being reputed to be subject to the best assessment of incapacity in the world) has been criticised for leaving claimants for too long between assessments.
Employment & Support Allowance is said to be a more temporary benefit where long term incapacity is discouraged by moving those who are able in to work to improve their return to work prospects partly as an aid to their recovery and well being . There are conflicting reports on the frequency of reassessment after the initial assessment of claim, some claimants report after six months whereas others report a duration of 12 months. It is difficult to pinpoint the re-assessments frequency due to lack of clarity on the DWP statistical data sources.
It is important to understand that a claimant can undergo reassessment on several occasions. The following example sets out how it affects a claimant:
Using our example as in (A) Bob is asked to undergo assessment shortly after the Tribunal hearing on the 2nd February 2011 when it was decided that he was entitled to his Employment & Support Allowance.
The DWP's records show that Bob's claim in the Work Related Activity Group has been running since the 14th July 2010. On the 14th March 2011 Bob is sent a further Employment & Support Allowance questionnaire (ESA 50) and is required to attend a second Work Capability Assessment on the 12th June 2011. On the 20th June 2011 the DWP decides Bob is not entitled to his Employment & Support Allowance.
Bob puts in an immediate appeal and his case comes before a Tribunal on the 30th January 2012. Because Bob's Employment & Support was refused on the 20th June 2011 and because Bob has appealed again supplying medical evidence he is paid the 'assessment rate' for the second time from the 20th June 2011.
The Tribunal once again allows his appeal on the 30th January 2012.
On the second occasion Bob will have been paid the ‘assessment phase rate of his Employment & Support Allowance from the 20th June 2011, because of the Tribunal award he will be entitled to arrears which make up the difference between his assessment phase payment and Work Related Activity Group payment with effect from the 20th June 2011.
(2.3) Assessment phasing of a claimant claiming Employment & Support Allowance for claimant who loses his or her appeal.
Using our example as in (A) Bob and following on from what happened in (B) in this example we look at what happens in the eventuality that Bob loses his appeal at the Tribunal on the 30th January 2012.
Bob is told by the Tribunal that he not entitled to be moved in to the main phase of Employment & Support with effect from the 20th June 2011.
He goes to the Jobcentre who tell him he does not meet the conditions for Jobseeker's Allowance because he is not 'fit for work'. Despite the Tribunal's ruling Bob's doctor is still of the opinion that he is not fit for work. Because sometime has elapsed since the last decision was made on Bob's entitlement on the 20th June 2011 Bob is able to reclaim Employment & Support Allowance.
The Tribunal which heard Bob's appeal on the 30th January 2012 only has the jurisdiction to consider Bob's circumstances up to the 20th June 2011. The 'decision making and appeal' rules only allow a Tribunal to consider the circumstances of a person appealing up the date of the decision under consideration.
Bob is advised by the Jobcentre to reclaim Employment & Support Allowance. He does so and is once again placed in the assessment phase from the 31st January 2012 on what is his second 'new' claim for Employment & Support Allowance.
(2.4) Assessment phasing of a claimant claiming Employment & Support Allowance for claimant who closes his or her claim before the assessment phase is complete.
Using our example as in (A) Bob we look at what happens if Bob decides to close his claim for Employment & Support Allowance.
Having appealed against the DWP decision of the 20th June 2011 (the second assessment or 'reassessment' of Bob's initial claim) Bob's health improves and he tells the DWP that he no longer wishes to claim Employment & Support Allowance from the 11th December 2011. Bob has managed to find work which he starts on the 11th December so he no longer claims benefits.
Bob could continue with his appeal because it is considering his circumstances up the 20th June 2011 but the assessment phase comes to an end on the 10th December 2011 because Bob is no longer able to supply medical evidence of his limited capability for work from the date he returns to work - his doctor signs him as fit for work.
If however Bob decided to withdraw his appeal on the 11th December 2011 it should be marked as 'closed before the assessment phase is complete' - the relevance of this will be identified in the summary which follows.
In the next section we look at how Incapacity to Employment & Support Allowance cohorts are reassessed within the 'conversion reassessment' groups. This is followed by a section which looks at the problems in identifying claimants such as Bob within the DWP and HMCTS data sets.
From February 2011 the Department for Work and Pensions embarked upon the national roll out of a reassessment programme aimed at working out which claimants on 'pre-existing' incapacity benefits would be eligible to claim under the different rules relating to the more recently introduced & more rigidly assessed Employment & Support Allowance.
The programme of assessment is referred to in this report as the 'Conversion Reassessment' programme. A report in July 2012 "The role of incapacity benefit assessment in helping claimants into employment" by the Work and Pensions Select Committee looked at the reassessment programme and arrived at various conclusions including one which found that "the Government's positive messages about the Incapacity Benefit reassessment are not getting through to the public."
This report focuses on identifying some of the misunderstandings which arise out of the difference in the way Incapacity Benefit (as well as Income Support claimed on the grounds of incapacity and Severe Disablement Allowance) is 'assessed' when compared to a new claim for Employment & Support Allowance.
From evidence submitted to Parliament in the form of the following annex it appears that Parliamentarians are being provided with information over the conversion process which does not reflect how it is dealt with in actual practice:
The 'customer journey' reported as evidence in the chart submitted by the DWP to Parliament is one which should be matched against accounts extracted from claimants (perhaps by advice agencies) to see how the DWP customer journey differs from how claimants report their respective experiences.
The evidence submitted to Parliament (including that which was provided by the DWP, Careers Development Group and Citizens Advice) whilst raising some relevant failures in the assessment process was not solely concentrated on looking at the difficulties experienced by incapacity claimants in the conversion process. A problem which exists is that scrutinising bodies are not differentiating between the Employment & Support Allowance assessment for new entrants against the process which applies to the Incapacity Benefit conversion process.
It is therefore the aim of this section to attempt to clarify how the conversion process works in practice.
IB Claimant is sent conversion notice
(Step 2 in chart)
IB Claimant receives ESA 50 form
(Step 4 in chart)
IB Claimant attends WCA
(Step 6 in chart)
Decision is made on claimant's ESA entitlement
(Occurs at or shortly after Step 6)
An important distinction which has to be made in conversion case is that there is no 'assessment' phase because the Incapacity benefit rules do not make provision for this. The conversion notice at step (2) is not a formal decision so the Incapacity claimant remains on their Incapacity Benefit until a formal decision is made on their entitlement at some stage after (in most cases) the Work Capability Assessment is conducted at step (6).
The period between step (2) and step (6) is the 'conversion phase' rather than the ESA 'assessment phase'.
A claimant undergoing IB to ESA conversion would only enter the ESA assessment phase after being notified of a formal decision against which he or she appeals.
A problem which this creates in statistical counting is that Incapacity claimants going through the conversion process are not identifiable as 'assessment phase' cases because the assessment phase status can only be applied if the Incapacity Benefit claimant appeals against the formal Employment & Support Allowance decision made at the end of the conversion phase.
The 'conversion' legislation
There are important differences in the legislation applied in the assessment phasing for new Employment & Support Allowance entrants when compared with the conversion phasing applied to pre-existing incapacity claimants being considered for conversion to Employment & Support Allowance.
The rules relating to new Employment & Support Allowance claimants and new claimants who are subject to reassessment are provided for in part 2 of the ESA 2008 regulations from regulation 4 onwards. Regulation 4 relates to the end of the 13 week assessment phase period and the regulations which follow it deal with extensions to the 13 week period. Regulation (5) applies to previous Employment & Support Allowance claimants, regulation (6) claimants appealing and regulation (7) special provisions for terminal illness relating to the ending of the assessment phase.
The omission of the assessment phase means that an Incapacity Benefit claimant undergoing conversion does not have to comply with any requirement to provide medical evidence from his own doctor unless he or she appeals against a conversion decision.
How does this work in practice?
(3.1) Conversion phasing of a claimant claiming Incapacity Benefit undergoing conversion re-assessment up until a conversion decision is made.
Bill has been in receipt of Incapacity Benefit since 1994 with a chronic back problem. Bill will initially only have to have provided medical evidence from the start of his Incapacity benefit claim in 1994 after which the DWP would have taken over his assessment under the 'Personal Capability Assessment' which was used to 'test' Incapacity Benefit under the old rules. Bill is assessed under the Personal Capability Assessment in 1995 by the DWP's healthcare contractor (now Atos), again in 2005 and most recently on the 1st February 2010. The healthcare professional conducting the Personal Capability Assessment (Atos) in 2010 makes a recommendation that Bill should not be assessed again until 2015 because he/she is satisfied his condition is unlikely to improve before then.
In February 2011 Bill becomes subject to the national roll out of the Incapacity Benefit to Employment & Support Allowance conversion reassessment programme.
On the 1st March 2011 Bill is selected for conversion and sent a 'conversion notice' (step 2). On the 1st April 2011 Bill is sent an Employment & Support Allowance questionnaire under the conversion process which he promptly returns (step 4). On the 28th August Bill has to attend a 'Work Capability Assessment (step 6).
On the 8th September a DWP decision - maker considers the results of the Atos 'Work Capability Assessment' and makes a 'conversion decision'. The point at which this happens in the above chart would be at or very shortly after step 6. Atos awards Bill '0' points under the assessment and the DWP therefore informs him he is not entitled to Employment & Support Allowance.
By default under the conversion rules Bill's award of Incapacity Benefit comes to an end on the 7th September 2011; the day before the conversion decision is made.
At no time is Bill placed in the assessment phase as he would be if he was claiming Employment & Support Allowance as a new claimant.
At no time is Bill under a requirement to supply medical evidence from his own doctor as he would be if he was claiming Employment & Support Allowance as a new claimant.
(3.2) Conversion leading to assessment phasing of a claimant claiming Incapacity Benefit who appeals against a conversion decision.
Bill decides to appeal against the decision dated the 8th September 2011 to (a) Terminate his Incapacity Benefit on the 7th September 2011 and (b)not to award him Employment & Support Allowance from the 8th September 2011.
Bill now has to providence medical evidence from his doctor (in accordance with regulation 21 of the ESA regulations) for the first time because it is only when he appeals that he is placed in the Employment & Assessment phase. From the point at which Bill appeals (step 6) his claim will to all intents and purposes be treated in the same way as example (A) (2.1) if 'Bob' when on to appeal his 'new claim' decision.
Bill's appeal comes before a Tribunal on the 3rd April 2012 when it is decided he is entitled to Employment & Support Allowance and placed in the Support Group.
In Bill's case he will have remained in the 'conversion phase' from the 1st March 2011 (when sent the conversion notice) until the 7th September 2011 and then placed in the ESA 'assessment phase' from the 8th September 2011 until his appeal confirms his award on the 3rd April 2012.
The requirement to supply 'medical evidence' related to regulation 21 of the Employment & Support Allowance applies to all new Employment & Support claimants but only to incapacity conversions once a conversion decision is made and only in circumstances where the claimant appeals against the Employment & Support Allowance conversion decision to disallow.
Thus in conversion cases a claimant is not asked to provide medical evidence prior to a conversion decision being made which excludes the claimant's doctor from any legislative requirements during the conversion process. From the 6th April 2010 a general practitioner can certify whether a claimant:
(1) Is unable to work
(2) Has limited capability for work by declaring this on the amended certificate:
In the next section the problems in identifying assessment cohorts in the statistical counts are summarised before moving on to a statistical analysis of the cumulative figures from all assessment groups.
The Parliamentary standard note previously referred to and which can be downloaded at section (8) of this report confirms:
As of November 2011 there were 889,450 ESA claimants in the UK (2.2% of the population), of whom:
401,100 (45%) were in the assessment phase
The November 2011 assessment phase figure of 401,100 only includes identifiable claimant cohorts connected with Employment & Support Allowance.
It is important therefore in all reference sources and reports on the question of incapacity & Employment & Allowance assessments to distinguish between different claimant cohorts. Evidence given to Parliament on the 26th July 2011 confirms the generic use of the terminology surrounding " Incapacity Benefits"
"incapacity benefits" is a collective term for Incapacity Benefit (IB), Severe Disablement Allowance (SDA) and Income Support (IS) paid on the grounds of illness or disability.
There is a need to distinguish these groups in statistical data sets to avoid confusion between those relating to contributory based 'Incapacity Benefit' from the other claimant groups collectively identified under the term 'incapacity benefits".
It is paramount that the DWP and government cease the practice of only quoting selected headline statistics from data sets which are limited to only a proportion of the overall number of those selected for assessment from the 2.6 million claimants in the system before Employment & Support Allowance was introduced in late October 2008.
There is a need to track all claimants in the following cohorts:
New claims for Employment & Support Allowance
Reassessments of Employment & Support Allowance
Conversion claims related to:
Income Support claimed on the grounds of Incapacity
Income Support claimed on the grounds of disability
Incapacity Benefit claims subject to conversion
Severe Disablement Allowance
The above data sets then need to be sub-divided in to (1) those who are awaiting Work Capability Assessments, (2) those who close their claim before the assessment is complete, (3) those who have appealed and have lodged requests for reconsiderations with the DWP and (4) those who have appealed and are still in the conversion phase in conversion reassessments.
The effectiveness of the reassessment programme cannot be effectively monitored unless all data sets are accurately tracked
The quoting of selected quarterly statistics from selected data set is of minimal value
A key failing in the statistical count is a lack of information about the tracking of 1,759,620 Incapacity Benefit claimants who were claiming in February 2011 when the conversion reassessment programme was rolled out nationally.
Figures in this issue cannot reflect the final outcomes, because they do not include:
"effect of appeals still lodged in the legal system"
"claims with no outcome yet recorded"
Which of course confirms that the data sources are not conclusive as far as any incomplete assessments or unknown appeals relating to new Employment & Support Allowance claims are concerned.
The DWP needs to make known the number of appeals and assessments relating to New Employment & Support Allowance claims which remain outstanding.
However, what is more of a concern is the total lack of information on Employment & Support Allowance reassessments & incapacity conversion related assessments. The DWP report of April 2012 goes on to confirm under 'important notes' that the issue of the statistical series:
"does not contain incapacity Benefit reassessments to determine eligibility for Employment and Support Allowance"
Instead it refers you to another DWP link relating to the statistics for
It is disappointing to note the link refers you to the following DWP Report notice dated June 2012:
"This official statistics bulletin initially due to be released on 3 July 2012"
"has been suspended until further notice".
The report clarifies act paragraph "3.6. Incapacity Benefits reassessment
This publication does not include any information about reassessments for ESA of those on pre-existing benefits paid on grounds of incapacity and disability, such as IB, SDA, IS. Incapacity benefits reassessments statistics, including those on the claims processed in the trials ran in Aberdeen and Burnley in October 2010 were published for the first time in March 2012. The latest publication can be found at the following link:
The link unfortunately leads to the same suspension notice.
Further confirmation of the non tracking of incapacity benefit cases can be found at paragraph (3.9.3.) which deals with the 'Definitional rules':
"The data presented in this publication is taken from a dataset which combines the data stated above.
Under the counting rules, the units of analysis, used by the department: a claim is an inflow to Employment and Support Allowance that is made from 27 October 2008, and not a pre-existing IB claim; a claimant is anyone who has claimed the benefit as a new claim."
It is therefore reasonable to conclude that there is a failure in the counting unit (which would in all probability apply to other quarterly reports) which is highlighting a potentially systematic problem within the DWP over the tracking of conversion cases for which they have not yet found a remedy.
Turning now to reassessments. Paragraph (3.2.3.) refers to " Repeat assessments" -
"All claimants in the Work Related Activity Group and Support Group are given a prognosis of when they may be fit for work. Individuals are then reassessed through repeat assessments after the initial or last prognosis period expires.
The interval between assessments is usually but not always a standard length of time such as 3, 6, 12, 18 or 24 months based on the claimant’s health. This is to ensure that they are still eligible to Employment and Support Allowance and are allocated to the correct group."
The frequency of reassessments has a great bearing on the numbers which are being carried out. The analysis in this report is worked out on the basis of reassessment being carried out at 12 month intervals, if this in excess of this then the number of assessments is likely to be substantially higher.
A recent DWP data set released in October 2012 was quoted by government minister Mr Hoban as reflecting an improvement in the way the assessments are resulting in a fairer result for the claimant since the most recent Harrington reviews.
This highlights the danger in using only selected quarterly statistics rather than collective cohort data sets. From the data contained within the same quarterly release background figures are provided which throw some light on the number of 'reassessments' which are carried out each month (from one selected data set).
Using the link to take you to the October 2012 and referring to xls data table Table 2b: "Outcome of repeat functional assessment that were completed by month of assessment, Great Britain" you can identify the assessment figure for November 2011:
"20, 300 is the figure for all completed assessments for November 2011."
Table 1a indicates that for the same month there were the following number of assessments which were not completed in November 2011:
[li] 24,400 closed before assessment
[/li][li] 11,200 still in progress
[/li][li] 35,600 total assessments which were not complete[/b] [/li][/ul][/size]
It is a long way short of the overall 'assessment phase' 401,100 figure shown in the Parliamentary standard note for November 2011.
In the analysis applied to this report I have used a reassessment rate of 24,747 per month (based on a 50% calculation which is detailed further into this report). If the 24,747 12 monthly figure is then added to additional reassessments carried out at 3,6,9 and 24 monthly intervals the reassessment figures will collectively rise along the following lines (these are all based on percentages of the 24,747 12 monthly figure and will therefore give an indication over how many re-assessment 'anniversaries' occur each month).
24,747 per month (12 monthly)
9,490 per month (9 monthly) at 20% X 1 per year
7,424 per month (6 monthly) at 15% X 2 per year
7,424 per month (3 monthly) at 10% X 3 per year
6,186 per month (24 monthly) at 50% X 0.5 per year
50,731 per month total
608,776 per year
It is a substantial increase on the 12 monthly reassessment figure used later in this report. The collective increase in the number of overall assessments would increase to:
23,000 New ESA claim assessments per month
50,731 New ESA claim re-assessments per month
35,192 IB to ESA conversion assessments per month
108,923 Total assessments per month
Some degree of confirmation over the 108,923 figure came from a Work & Pensions Parliamentary evidence session in to the Department for Work and Pensions Annual Report and Accounts 2011-12 which was held on the 29th October 2012 when Robert Devereux, Permanent Secretary, gave evidence and quoted a figure considerably over that which I have quoted.
The evidence session can be watched on Parliamentary TV using this link (go to 18:30 onwards) when Mr Devereux is giving his evidence. For section 6 (2) of this report I have maintained the 24,747 per month figure for reassessments (at 12 monthly intervals) but will return to the collective figures in the concluding summary. Reassessments are a completely unknown quantity because there is no DWP data available via their public domains which fixes the frequency with which they are carried out. None the less given that these tie reasonably closely with Mr Devereaux's evidence they would seem to be a reasonable 'guesstimate'. There is a clear need for more information from the DWP over this. My estimate on this came in considerably under Mr Deveraux's quoted figure for the rate of DWP monthly assessments which provides me with some reassurance I am using minimum base figures as a reasonably reliable method of working out the figures involved.
What becomes quite staggering is the sheer volume of assessments when all the claimant cohorts are collectively added together; remembering that Mr Deveraux's figure would take this to an even higher annual figure:
1,307,076 assessments per year
Mr Devereux's estimate = 130,000 per month
1,560,000 assessments per year
If Mr Deveraux is in possession of the total number of assessments then it begs the question; why is he not able to call on data sets which separate into the separate cohorts which I have outlined?
Again there is a profound lack of information about the effect of reconsiderations relating to each specific cohort. There is a limited value in analysing the effect of reconsiderations unless a far better evidence chain is attached to how it works with regard to each individual claimant group.
For instance; in the case of claimants who have hard of hearing or mental health related communication problems a telephone intervention with a decision - maker will often be of limited value. These groups are quite likely to fail to answer a call especially in mental health cases where where a call is received with no prior warning.
From cases I have worked on I have seen wording in the appeal submissions which almost routinely suggest that the decision - maker has made 2 to 3 successive calls to the claimant against which they record on the decision - maker's score sheet (usually appearing as a hand written annotation) 'no answer'. When I have asked clients about these calls they tell me they have no recollection of them and in any event will often fear speaking to officials to a degree that a telephone call would have no constructive value.
There are however exceptions (they are the minority); where this is the case there will be a telephone dialogue sheet within the appeal papers giving details of the call. These sometimes appear to correspond with cases where the claimant is angry and may potentially make a complaint. The advice given is in these cases more directly aimed at advising on the re-consideration outcome and informing the claimant what they should do next with some helpful examples where the claimant has been advised to seek advice and forward medical evidence (MED 3) from their doctor to ensure a continuance of their assessment phase payment (this being a statutory requirement in the assessment phase).
The reconsideration process is only of a constructive value if it provides a decision - maker with an opportunity to objectively overview the previous (appealed) decision. Invariably decision - makers will annotate the scoring sheet with the words 'I agree with HCP' (health care professional) which is of no value unless the decision - maker properly reasons the decision afresh in respect of the 17 (LCFWA) and (LCWRA) descriptors contained within the regulations as well as considering other issues which arise out of the appeal. There appears (in some cases) to be little attempt to individually reason why descriptors cannot be applied especially when the evidence suggests they may be applicable. For instance when considering mobilising there may be a failure to consider the question of repeatedly being able to do the task and little attempt to relate it to a work environment.
It would for instance be helpful for claimants to be sent a check list prior to any phone call taking place to inform the claimant over which information to have to hand ( letters, prescription details etc) when contacted. It seems sensible to suggest that an intervention may be better aided with the claimant being at an advice agency where their file would be readily accessible and where an adviser can speak with the decision - maker directly over what is needed to progress the case to an earlier stage resolution.
It would be better if the decision - maker could more pro-actively look for signs of what may have been overlooked.
In long term incapacity cases for instance a common problem is that claimants completing the ESA 50 questionnaire during the conversion phase will only draw reference to what they perceive to be physical symptoms and omit to reference a longer term mental health problem. Calling up the claim history can shed some light on the longer term picture and provide useful insight in to the problems which may be more causative of the claimant's longer term welfare dependency.
In some case claimants are deemed to be 'well' simply because they are not in contact with their doctors or community mental health teams other than to perhaps occasionally visit their surgeries over reviews of repeat prescriptions. In other cases claimants have simply lost faith in health services, mistrust their medications and resort to alternative therapies. The lack of traditional contact with the medical profession should not always be construed as evidence that the claimant does not have a problem. Indeed it may well mark the existence of a problem with symptoms of worsening illness and reduced social interaction.
No evidence base may be symptomatic of a claimants who cannot engage with others. The correct handling of an effective reconsideration may mark a point at which the claimant engages with medical help for the first time in years of not having been assessed - the 'clues' will come from over-viewing the longer term history to see if such a recommendation may help the claimant establish the route cause of their limitation / incapacity in the process of contacting their doctor over a need to obtain evidence. It may be appropriate for the decision-maker to send out an ESA 113 to extract more evidence from the claimant's doctor although the form is a much more abbreviated one than the IB 113 used in incapacity assessment.
The reconsideration process needs to be fully recorded as part of the evidence should the case proceed to appeal. A reconsideration should allow time for the claimant to come back to the decision - maker with the evidence requested in an intervention prior to the reconsideration taking place.
A claimant who opts for reconsideration may do so out of a sheer fear they have in facing the prospect of having to attend a Tribunal in person. This can highlight cases where social interaction is likely to be a feature. I cannot see why face to face reconsiderations should be ruled out.
A 'reconsideration' has no formal legislative status in decision - making & appeals, it is an informal process which only becomes legislative if it triggers a revision or supersession under sections (9) or (10) of the Social Security (decision making & appeals) Act 1998 and as such its loose attachment to the adjudication framework may mean that decision - maker's are likely to regard with less importance.
I share a concern that a telephone intervention which takes place directly between the claimant and decision - maker could lead to a potential situation arising where claimants are 'talked out' of their appeals.
The DWP needs to show the process is evidence based and subject to documentary proofing in order to evaluate the effectiveness of reconsideration.
I rather suspect that there is a lack of awareness over how claimants who are disallowed their Employment & Support Allowance can subsequently reclaim it after 6 months or earlier if their condition has changed or materially worsened.
This often follows a visit or call to the Jobcentre where the claimant informs them that they are still affected by their illness and supported by their doctor in an opinion that they are not fit enough to be capable of actively being available for and seeking work. Jobcentres are understandably reluctant to send claimants to work placements if they are clearly not fit for the labour market.
Thus there are claimants who go from having their claim disallowed to re-entitled with no consecutive cohort tracking which will identify claimants who are in this cycle or why. It demonstrates one of two situations:
[li]The wrong decision was made over their ESA
[/li][li]The wrong decision was made over their JSA [/li][/ul][/b][/i]
A potential situation arises where the claimant may not meet the entitlement conditions when their decision was made but does by the time an appeal tribunal decides their case.
The current law relating to the jurisdiction of the tribunal restricts them to considering the case to the date of the decision which they are determining, this may have been some time before hand.
The tribunal may note how a claimant has since 'qualified' but they will be unable to confirm an entitlement because the rules relating to adjudication jurisdiction do not allow it, all they can do is advise the claimant to put in a fresh claim following the hearing.
A way around this is to allow the tribunal to consider the claimant's circumstances throughout the entire assessment period and therefore right up to the date when the appeal is eventually heard. This would allow the tribunal to set a date from when ever the claimant qualifies in to the main phases of ESA during the assessment phase. It would require a change in the rules relating to adjudication which should be possible given that the ESA rules permit an 'extended' assessment phase in cases where the claimant appeals.
Some claimants will develop another illness or become during the assessment phase which may necessitate the need for another claim.
The identification of 'claims closed before assessment' cohorts
A lot of assumptions can be drawn over the reasons why a claimant closes their claim before assessment.
In truth; their can be many reasons why a claim is closed before the assessment phase is complete.
[li] The longer the assessment phase continues the more likely it is the claimant may close their claim before it has ended. The regulations lay down a 13 week assessment phase but in reality it is often much longer; 6, 9 or even 12 month periods are not uncommon where an appeal case exists.
[/li][li] Claimants not in employment (perhaps after losing their job on ill health grounds) will not go down the usual Statutory Sick Pay route and therefore claim ESA as a direct entrant. Statutory Sick Pay would in employment related cases account for up to 28 weeks sickness because it is designed around shorter term illness. With no such provision it has to be recognised that ESA has a shorter term function in cases where recovery can be effected relatively quickly.
[/li][li] Income or claim status change may bring about a closure of the claim. A contributory based time limited entitlement may end in incapacity conversion cases where some of the time on IB limits how much longer a claimant can remain on contributory ESA. Likewise a change in the household income (perhaps a partner taking up work or a change in income) may bring about the closure of an income based ESA claim.
[/li][li] A claimant may recover and return to work.
[/li][li] The claimant may simply abandon the claim and choose to survive on a partner's income or a relative may decide to sustain an income stream for someone who could otherwise claim. Claimants find the process too stressful and end claims even though they would otherwise be entitled.
[/li][li] A claimant may be advised or they may come to realise they do not meet the stricter rules attached to ESA. The Work Capability is known to be be 'too harsh' and difficult to get through an assessment so claimants are quite likely to come to a realisation that entitlement in to the ESA main phase will not be confirmed.
[/li][li] Some claimants may transfer to an alternative entitlement such as Jobseeker's Allowance, or Pension Credit or they may have been inappropriately selected for conversion from IB to ESA in which case they return to their non incapacity/disability related Income Support (carer's & single parents for instance).
[/li][li] Some claimants will die in the duration of their assessment with a closure of their claim.[/i]
[/li][/ul] There is a need to track the reasons before coming to any unfounded or unsubstantiated conclusions over the closure of a claim. A proper evidenced based audit trail is required before accurate findings can be made.
There is also a need to clarify the point at which closure of the claim occurs, it is often mistakenly taken by the media that the assessment phase ends after the Atos Work Capability Assessment, this is not the case it is when the DWP or (in an appeal to HMCTS) when the Tribunal decide the case. Thus a claimant may have been assessed by Atos but closes their claim in the run up to an appeal many months after the WCA. Claimants who originally appealed the results of an adverse WCA but recover before their appeal is heard may decide to close their claim and not bother to continue with an appeal because they consider it easier to cut their losses and reconcile it against the rewards of having found work.
The following figures are taken from a Parliamentary Standard note (SN01420 Last updated: 13 July 2012) which can be accessed using this link.
In this section we take a look at the claimant count figures from 2008 with government projections to 2016/2017 to get a measure of how the reassessment programme has worked from when Employment & Support Allowance was introduced in October 2008.
Table (B) is taken from the Parliamentary note and shows in the first column the number of Employment & Support Allowance claims, the second column details the number of Incapacity Benefit related claims and third shows the total of the two benefits combined.
It should be noted that for the purpose of this report the numbers of claimants in receipt of Severe Disablement Allowance are not extensively covered as the DWP reassessment programme is focussed on Incapacity Benefit and Employment & Support Allowance
For the sake of completeness the figures for Severe Disablement Allowance are provided in table (c) with projections up to 2016/2017.
For clarity the total figures for November 2008 including Severe Disablement Allowance are shown as follows:
(Table A) November 2008 all inclusive figures
2,646,780 Total claimants November 2008
53,770 Employment & Support Allowance
2,343,250 Incapacity Benefit
249,760 Severe Disablement Allowance
2,605,510 Total UK Working Age Claimants
* The difference between the total and the UK total consists of those who claim abroad
2,397,020 = Total number of incapacity related claims
857,890 Employment & Support Allowance Claims
1,535,380 Incapacity Benefit Claims
2,393,270 = Total number of incapacity related claims
A reduction of 3,750 incapacity related claims from
November 2008 to November 2011
To reduce 1,535,380 Incapacity Benefit claims in November 2011 to zero by 2014/2015.
857,890 Employment & Support Allowance claims in November 2011 are projected to increase to 2,106,000 by 2016/2017.
The numbers claiming Severe Disablement Allowance is projected to decrease from 219,250 in November 2011 to 44,000 in 2016/2017.
The overall reduction in the Severe Disablement Allowance claimant count is expected to fall from 249,760 in November 2008 by 205,760 to 44,000 by 2016/2017.
The overall reduction in the incapacity related claimant count (IB + ESA) is projected to reduce by 291,020 by 2016/2017 from 2,397,020 in November 2008 to 2,106,000 by 2016/2017.
So far very the reassessment programme has shown very little sign of achieving any significant reduction in the claimant count when looking at the available figures to November 2011. More than 3 years on from when Employment & Support was first introduced in October 2008 and despite an intensive reassessment regime including wide scale reviewing of existing Incapacity Benefit claims there has been an insignificant reduction of only 3,750 in the claimant count with a very marginal decrease in the numbers claiming Severe Disablement Allowance.
Most significant is the revelation that the reductions in the claimant count are subject to forward projections which do not appear to be based on an evidenced based evaluation of the reductions to date. The projections aim to eliminate all existing Incapacity Benefit claims by 2014/2015.
It is noteworthy that of the overall reduction 496,780[/color] figures projected as achievable by 2016/2017 only 291,020 (59%) are projected to be related to Incapacity Benefit & Employment & Support Allowance. There is however a much more pronounced emphasis on making reductions of 205,760 (41%) in the claimant count for those in receipt of Severe Disablement Allowance.
Perhaps the most telling of all of these statistics is the percentage who will still be entitled to incapacity related benefits by 2016/2017. Despite all the media hype that 75% on the sick are 'faking it' the reality is that 88% of the 2,397,020 claimant count in November 2008 will still be entitled to Employment & Support Allowance by 2016/2017 - when almost all incapacity benefits should have had their claims converted.
One has to question why when the accent is on protecting the most vulnerable out of the 249,760 Severe Disablement Allowance claimants in November 2008 only 18 %(44,000) will have retained their benefits by 2016/2017.
There is an emerging inconsistency in the 'to date' claimant reduction count when compared with the projections to 2016/2017. Whilst the numbers on Incapacity Benefit are forecast to reduce to zero by 2014/2015, in ratio - proportionally the largest reduction is in reducing Severe Disablement claims.
In the next section the 'assessment' figures are analysed against appeal numbers which are reported to be falling.
Statistical analysis of claimant cohorts from November 2008 with mapping of all assessment cohorts against HMCTS appeal receipts
"88% entitled to their sickness benefits"
"Millions wasted on unnecessary reassessments (- 2016)"
These are the headlines which thousands of incapacitated claimants undergoing Employment & Support Allowance 'Work Capability Assessments' probably dream of. But if you look at the projections which appear in the Parliamentary note as replicated in the post above they do reflect the reality of what is forecast by 2016/17.
On the face of it such sensationalist headlines would by and large reflect what welfare benefit specialists are saying today as they cite statistics that around 80% succeed with their appeals for Employment & Support Allowance when professionally helped.
But would such headlines be accurate?
No, they would be no more accurate than the media reports which portray 75% of all claimants on the sick as 'faking it'.
In reality a lot of the Severe Disablement Group of claimants would most probably have moved by 2016/2017 over to Employment & Support Allowance providing they fall in to the support group. For those who don't their awards would be time limited and have long since expired (under new rules limiting contributory based claims to a maximum of a year) meaning that they will only be able to claim an income based version of Employment & Support Allowance. It would be very much an unknown quantity and hard to track given failures which we will go on to identify further in this report.
A further inconsistency in media reporting would negate the headline I have used in this section. This revolves around a fundamental misunderstanding over the role of Employment & Support Allowance in supporting claimants who with some support could do some work. The Employment & Support Allowance statistics are not as black and white as the older Incapacity Benefit which simply distinguished between
(a) Those who can work
(b) Those who can't work.
We have looked at this in the previous sections on the workings of Employment & Support Allowance.
However we can use the data which exists to date to examine claimant take up rates:
The best way of measuring this is to consider the period from November 2008 to November 2011 to examine claims for the the newly introduced Employment & Support Allowance which came in October 2008 and to look at the claims from February 2011 to November 2011 to examine how well the Incapacity Benefit to Employment & Support Allowance 'reassessment conversions' are working. This is because the conversion programme was nationally rolled out from February 2011 after some initial piloting.
Examining the claimant count for Employment & Support Allowance from November 2008:
Employment & Allowance Claims
Nov-08 -- 53,770 Nov-09 -- 425,770 -- (+) A rise of 372,000 in 11 months Feb-10 -- 479,430 -- (+) A rise of 53,660 on last quarter May-10 -- 527,120 -- (+) A rise of 47,690 on last quarter Aug-10 -- 563,980 -- (+) A rise of 36,860 on last quarter Nov-10 -- 593,930 -- (+) A rise of 29,950 on last quarter
IB to ESA reassessment 'conversion' programme begins
Feb-11 -- 631,350 -- (+) A rise of 37,420 on last quarter May-11 -- 662,230 -- (+) A rise of 30,880 on last quarter Aug-11 -- 731,950 -- (+) A rise of 69,720 on last quarter Nov-11 -- 857,890 -- (+) A rise of 125,940 on last quarter
We can see from the above table that the number of Employment and Support Allowance claims has steadily increased from 53,770 claims by November 2008 (one month after implementation) to 857,890 claims as of November 2011. By far the sharpest increase is in August 2011 with over twice as many claims as in the previous quarter. There is a further sharp increase of 125,940 more claims being made by November 2011 on the previous quarter to August 2011.
Incapacity Benefit to Employment Allowance cases
But can this solely be attributed to large number of conversion cases being transferred from Incapacity Benefit?
You have to bear in in mind that the overall reduction in the number of incapacity related claims from November 2008 to November 2011 amounts to 3,750 (excluding Severe Disablement Allowance). The number of Severe Disablement Allowance claims fell by 30,510 in the same period with Incapacity Benefit claims reducing by 807,870 making a total reduction of 838,380 IB + SDA claims.
The 838,380 (IB+SDA) reduction is to a large extent negated by the 3,750 reduction which is reflected in the variance between the cumulative (IB+ESA) total of 2,397,020 in November 2008 when compared with the 2,393,270 (IB+ESA) total for November 2011. To the 3,750 reduction you would need to add the falling number Severe Disablement Allowance claims.
In other words a reduction in Incapacity Benefit and Severe Disablement Allowance claims is being countered by a more or less equal take up rate in Employment & Support Allowance claims.
It seems sensible to exclude the cohorts of claimants on Severe Disablement Allowance from the following analysis because by and large they will fall off the off the claimant count for different reasons connected with time limiting of their claims and in any event the majority of the emphasis is on the new Employment & Support Allowance and pre-existing Incapacity Benefit claimants when it comes to large scale reassessment.
To simplify the findings to November lets examine the difference between Employment & Support Allowance and Incapacity claimants between November 2008 and November 2011 in percentage terms. The figures could easily translate into the following kind of headlines:
"2,397,020 claims in November 2008 compared with 2,393,270 claims in November 2011"
"98% of those claiming in 2008 are still entitled in 2011"
Clearly such headlines would not tally with the widespread discontent over the way thousands of Employment & Support Allowance claimants say they are being unfairly assessed and having to appeal to get the right result.
The national success rate is that of those who appeal around 40% succeed by taking their case to an independent Tribunal, the results are on average as high as 80% when professionally helped. However the figures are showing that 98% of those who were eligible in 2008 are still eligible in 2011. A reduction rate of just 2% simply does not tally with the large numbers appealing and the massive numbers who are protesting over the DWP assessment of their claim using the private healthcare contractor Atos who are rejecting a large percentage of the claims made by claimants during the 'Work Capability Assessment' over the extent of their physical & mental health related limitations.
What we need to consider is not just the number of claimants who have made a claim for Employment & Support Allowance but the number who have been assessed. A claimant cannot appeal until they have been assessed by the DWP; this may or may not necessitate a 'Work Capability Assessment' by Atos.
If we take the numbers of claimants who have made a new claim for Employment & Support Allowance since November 2008 (857,890 as of November 2011) we can get an idea of the number of assessments which the DWP will need to have carried out in the 37 month period which has elapsed since the allowance began in October 2008.
857,890 divided by 37 months = approximately 23,000 assessments per month.
Which sounds reasonable enough until you start to factor in the additional reassessments which the DWP have to carry out some time after the claim has been initially assessed. These occur with a fair amount of frequency and can mean that the same claimant is subject to several review re-assessments on the same claim sometimes as little as six months after they have been previously assessed.
There is no firm way of establishing how many review assessments are being carried out but you can see from the escalating number of claims that it is likely to be considerably in excess of the 23,000 on new claims. The DWP data sets do not make it clear as to which reassessment figures relate to claimants who have previously claimed Incapacity Benefit or Severe Disability Allowance although they are as re-assessments likely to be minimal due in any data sets up to November 2011.
I am mindful that for example a DWP data set for October 2008 to August 2009 specifically excludes reassessment figures. The report also informs us that 3% of claims which are 'clerically' assessed are omitted from the report. In the absence of any firm figures on reassessment it is appropriate to attempt a guestimate based on reasonable assumption. If you take the total number of Employment & Support Allowance claimants shown in table (B) for November 2010 at the figure of 593,930 and apply a 50% 'reassessment assumption' you create an additional 296,965 claimants requiring assessment.
I've used the November 2010 figure as a base because a fair number of claims will have been running for more than a year. It's difficult to tie up cumulative review dates to work out when reassessment anniversaries are due but assuming 296,965 reassessments were all carried out over the course of twelve months up to November 2011 an extra 24,747 reassessment reviews would need to be carried out per month.
296,965 divided by 12 months = approximately 24,747 assessments per month.
The group which should add considerably to the assessment figures are those who are undergoing conversion from Incapacity Benefit to Employment & Support Allowance with effect from February 2011. I say should because there is a problem in the identification of this particular cohort from any of the DWP data sets; essentially they are 'untracked'. I will come to why this happens later in this report. The DWP will point out that claimants on Incapacity Benefit who are due to retire by 2014 will not be reassessed. On this I would merely comment that in order to work out which of this cohort can be excluded requires some degree of active intervention on the part of the DWP to identify the excluded claimant cohort - it's not assessment as such but close to it.
However you can get an idea as to the numbers subject to what I will loosely call 'assessment' by analysing the 'run down rate' of Incapacity Benefit claimants shown in table (B). What we know with certainty is that as of February 2011 (the commencement of the conversion programme) there pre-exists no less than 1,759,620 Incapacity Benefit claimants which have to reduced to zero in a fifty month period up to March 2015 (the projected end of all Incapacity Benefit claims by 2014/2015 shown in table (B). You can therefore sum the reductions to give a monthly assessment review as follows:
1,759,620 divided by 50 months = approximately 35,192 assessments per month.
How does this all add up?
23,000 assessments on new ESA claims
24,747 'reassessments' on accumulation reviewing initial ESA claims
35,192 assessments relating to the conversion of pre-existing IB to ESA claims.
Total of 82,939 assessments per month.
How does this tally with the evidence?
Yes, I think it is a reasonably consistent figure with regards to the collective total of the number of the assessments the DWP are required to undertake into the assessment of new claims, the review of initial claims and those relating to Incapacity Benefit to Employment & Support Allowance 'conversion assessments'. A figure of 82,939 assessment a month would equate to 995,268 DWP assessments a year.
The accounts committee made the following finding:
"People with disabilities must be able to access the benefits to which they are entitled. The department relies on medical assessments to make sure it awards the right benefits to the right people. Getting this wrong can have devastating impacts on individuals and their families.
Atos Healthcare billed the department for over £110 million to conduct the medical assessment of some 740,000 people in 2011-12. Over the same period, an estimated 20,000 people received substandard assessments. In March this year, 1 in 4 cases was taking Atos more than 56 days to deal with."
The 740,000 billed for Work Capability Assessments would fit reasonably squarely with 995,268 DWP assessments a year. I am however mindful that the quoted number of Atos assessments relates to the period April 2011 to March 2012 and therefore doesn't quite align with the data sample we are looking at up to November 2011.
Statistical analysis of claimant cohorts from November 2008 with mapping of all assessment cohorts against HMCTS appeal receipts
Given the figures on the claimant count the evidence suggests that a reduction in the numbers appealing is highly improbable if not impossible to assert as a true reflection of the reality. It is of course accepted that the MOJ figures for 2011/2012 show a reduction in the number of appeal receipts with the Social Security & Child Support Tribunals but as a stand alone statistic it is comparatively meaningless. What really needs to be established is the number of appeals lodged with the DWP.
The Right Honourable Chris Grayling was asked about this in July 2012.
Tom Greatrex: "To ask the Secretary of State for Work and Pensions how many people have lodged an appeal to a work capability assessment decision but have yet to receive a hearing? "
Chris Grayling: "The requested information is not available."
So we know that as of July 2012 there is no ministerial answer to a question on the numbers of appeals lodged.
We therefore need to look amongst the evidence for an answer.
A reduction in the combined claimant count of 3,750 in receipt of Employment & Support Allowance or Incapacity Benefit between November 2008 and November 2011 highlights a problem in the way the claimant count is composed.
What we know is that Employment & Support Allowance claimants can figure in the claimant count without having had their award confirmed following what should be an initial 13 week 'assessment' phase. The claim is therefore counted but the full award is not confirmed until the assessment phase is completed - you could say these claimants had decisions 'pending' on their entitlement.
The claimant count could be read as signifying that a reduction of only 3,750 claimants between November 2008 to November 2008 (excluding a smaller cohort of Severe Disablement Allowance claimants) that 88% were were entitled to their benefits. But this would only be the case if every claimant had had their entitlement confirmed. The Parliamentary note confirms that the Employment and Support Allowance claimant count in November 2011 consisted of 401,100 claimants in the 'assessment phase' - these are not cases where an entitlement beyond assessment has been confirmed.
Until the 401,100 claimants in the assessment phase have had their entitlement confirmed their is no way of telling whether they are entitled or not. Therefore the 'outcome' status of 401,100 claimants of the overall Employment & Support Allowance count of 857,890 need to be discounted from any status evaluation. This leaves us with:
• 279,240 (31%) in the Work-Related Activity Group;
• 155,780 (18%) in the Support Group.
435,020 (51%) ESA claimants out of 857,890 who had had their awards confirmed
This would be consistent with around 36,251 completed assessments per month
'49% not assessed'
The November 2011 figures shows that approximately 49% of all new Employment & Support Allowance cases are still in the 'assessment phase'. We will go on to look at what this means as it could mean the case is still with the DWP or with an HMCTS Tribunal awaiting a hearing date.
The number of claimants awaiting assessment is highly relevant to the number of outstanding appeals
If we look again at the numbers of assessments in the three groups:
(A) Relating to new claims
(B) Reassessment of new claims
(C) Assessment of conversion cases
And apply them to the period from October 2008 (starting in December 2008 to give us a 12 month 'window' to November 2009) up to November 2011 you will see how DWP reassessment programme escalates as the different types of assessment are related to each table :
The column in green are new ESA claim assessments
The column in red are new ESA claim 'reassessments'
The column in blue are IB to ESA 'conversion reassessments'
The right hand column are the monthly totals for assessment
(1) DWP assessments 2008 - 2009
Note: In the following table a monthly claim average of 35,480 has been applied because the 'take up' is higher with a new benefit as can be seen by the total ESA claimant count (table B) as of November 2009 being 425,000 whereas in November 2010 it was 479,430 and by November 2011 it had reached 857,890.
35,480 -- -- 35,480 -- Dec 2008 35,480 -- -- 35,480 -- Jan 2008 35,480 -- -- 35,480 -- Feb 2009 35,480 -- -- 35,480 -- Mar 2009 35,480 -- -- 35,480 -- April 2009 35,480 -- -- 35,480 -- May 2009 35,480 -- -- 35,480 -- June 2009 35,480 -- -- 35,480 -- July 2009 35,480 -- -- 35,480 -- Aug 2009 35,480 -- -- 35,480 -- Sept 2009 35,480 -- -- 35,480 -- Oct 2009 35,480 -- -- 35,480 -- Nov 2009
DWP assessments 425,000
29% of 425,000 = 123, 528
The number of ESA appeal receipts at HMCTS in 2009/2010 was 126,800
(2) DWP assessments 2009 - 2010
Note: In the following table a monthly claim average of 23,000 assessments (Green) has been applied. This is because the claimant count will have 'settled' and is worked out using the 3 year averaging over the 37 month period from October 2008 up to the 857,890 ESA claimant count which was reached by November 2011.
23,000 -- 24,747 -- 47,747 -- Dec 2009 23,000 -- 24,747 -- 47,747 -- Jan 2010 23,000 -- 24,747 -- 47,747 -- Feb 2010 23,000 -- 24,747 -- 47,747 -- Mar 2010 23,000 -- 24,747 -- 47,747 -- April 2010 23,000 -- 24,747 -- 47,747 -- May 2010 23,000 -- 24,747 -- 47,747 -- June 2010 23,000 -- 24,747 -- 47,747 -- July 2010 23,000 -- 24,747 -- 47,747 -- Aug 2010 23,000 -- 24,747 -- 47,747 -- Sept 2010 23,000 -- 24,747 -- 47,747 -- Oct 2010 23,000 -- 24,747 -- 47,747 -- Nov 2010
DWP assessments 572,964
29% of 425,000 = 166,159
The number of ESA appeal receipts at HMCTS in 2010/2011 was 197,400
(indicating a rise in the appeal rate to 34.5%)
Note: Given that by 2009/2010 more claimants would now be appealing against both new claim and reassessments on the the initial claim an increase in the appeal rate from the previous 29% applied to new claims only be would be a reasonable figure to apply and would match the number of receipts received at HMCTS in the 2010/2011 figures.
(3) DWP assessments 2010 - 2011
23,000 -- 24,747 -- 00,000 -- 47,747 -- Dec 2010 23,000 -- 24,747 -- 00,000 -- 47,747 -- Jan 2011
On the 29th October 2012 the DWP Parliamentary Secretary quietly addressed Parliament...
And said something
"I don't know"
Watch the video from 02.15 on the counter and listen to Mr Devereux answer a crucial question with words which I find nothing short of astonishing. " I don't know" is his answer to the question put to him at around 01.44 over the number of Incapacity Benefit to Employment & Support Allowance (conversion) assessments which I've referred to in pain staking detail in my report. You can view the relevant section using this link.
I find this astonishing and somewhat disappointing and judging by Dame Begg's facial expression shortly after Devereux's 'I don't know' answer she's equally as unimpressed as I am. It really is beyond belief that they seem to be so poorly in control of figures which they should have been tracking from the outset of the Incapacity Benefit to Employment & Support Allowance conversion reassessment programme.
Following the Parliamentary session my guess is Mr Devereaux has fairly rapidly hot - footed it down to Caxton House (where the DWP hang out) and told them to pull their finger out in getting the much awaited figures published. It's about time too - they've been stalling the release of these figures for some time now and no longer will Parliament tolerate the 'suspended until further notice' excuse.
But guess what?
They're out this Tuesday at 9.30 am and you'll be able to access them if you
I can hardly wait, all the data I've been so patiently waiting for will be there on the above link and I'll be able to give it the once over and see how it ties in with what I'm quietly predicting. But you know what? - I've got a feeling it won't because my guess is the figures will be far from 'complete'.
I think there'll be the usual reference to 'of those assessed' and 'for those where we have appeal data from HMCTS', plus one or too heavily underlined disclaimers and references to the words 'might' and 'may be'.
Here's my 'anti - spin' guide
[li] 'Does not include those awaiting assessment' = The thousands that they've yet to get round to.
[/li][li] 'Does not include information on appeal results with HMCTS' = They haven't got a clue whether they're with the DWP or the Tribunal or perhaps somewhere in between.
[/li][li] Use of 'Maybe' 'Might' = Precisely what they say.
[/li][li] Heavy embolden and underlined text = They're covering themselves over something which they really hope they've got right or want to make very clear where they can't be sure..
[/li][li] 'Statistics based on robust data only' = The rest is far from robust.
[/li][li] 'Statistics are subject to time lapse' = The time it takes an army of statisticians to pour over thousands of statistics after conducting a search for huge numbers of evasive claim details.[/i][/b] [/li][/ul]
But there's one figure I'm watching out for, if it or anything like it is in this release I'll send the DWP Press office an apology for all of my doubts, all of my probing tweets, all of my unwarranted concerns, my total lack of faith in the whole re-assessment programme. The figure I'm on the look out for is this one:
(Just a shade over a million)
Well we'll wait and see and I'll come back and tell you why this is the figure which I'm so patiently awaiting, it's one the DWP say they subscribe to so I just want to check that they're bang up to scratch and following it.
It doesn't end there but it would be a major step forward in having some much needed light thrown on the up to now DWP 'black hole'. I await these figures with interest.
Today (see above post) saw the much awaited publication of the long overdue statistics for the Incapacity Benefit to Employment & Support Allowance reassessment programme and I have to say they are a bit of disappointment. Well they certainly will be to Iain Duncan Smith rather than the thousands of incapacitated people who strangely enough transpire to be more incapacitated than the right wing media claimed in the sensationalist headlines of the not too distant past.
So we've gone from '75% are faking it' to 'a third are fit for work'
Well I guess it's a step in the right direction but we still have a long way to go. The truth is the government doesn't like the way this is going because the incapacity reassessment programme is bit by bit revealing itself as a total and utter shambles. In truth it's not achieving anything which is what accounts for a somewhat softened message to the one we've heard in the past. We have gone from labelling lazy scroungers to an unheard of acceptance that some disabled claimants actually want to supported in to work. But for now I'll leave the bigger picture to one side and tell you what I think of these latest figures...
Not a lot is what I think, indeed I think they have a few problems in the DWP land..
Today's figures are the first major account of how the incapacity reassessment programme is going, here are my predominant concerns:
The report is 'focussed' on a small window of just 139,200 incapacity benefits claimants who have been referred for reassessment in the period from December 2011 to February 2012. I fail to see why the focus should be on such a diminutive sample of a much greater number who should have been reassessed to date. In the previous post I quoted a number which I was particularly interested in:
Not my number I hasten to add, for this was the number promoted by the government when they kicked the incapacity reassessment programme in to orbit back in February 2011 after the initial Aberdeen & Burnley pilots. The assessments were due to be carried out at a rate of 11,000 per week according to the Daily Mail. If we apply the 11,000 a week figure to a calendar month we would be looking at around 47,666 per month. Then it would be a question of applying that to the period from February 2011 to the end of October 2012 in order to arrive at a bang up to date number on assessment targets. The 21 month period from February 2011 to October 2012 at 47,666 per month = 1,000,986.
Focus on 3 months of assessments.
A 'focus' sample of statistics relating to just 139,200 claimants in what should be in excess of 1 million assessed incapacity benefit claims is a very low percentage upon which to focus on when consideration is given to the overall number of claimants who should have been through assessment.
The focus sample is too low
12 month tracking.
However, the accompanying data tables do show us that from October 2010 to the end of February 2012 some 462,100 incapacity benefit claimants have been 'referred for assessment'. 1,700 in the pilot areas with a 'national roll out' starting in March 2011 with 2,100 referrals, 12,600 in April 2011, 32,900 by May 2011 and seemingly up to speed by June 2011 when 46,400 were referred.
Given that government is consistently saying assessments are not greatly running in excess of what should be a 13 week period it is hard to understand (a) why the counting lag amounts to 8 months, especially when (b) the counting definition applies to assessment 'referrals' which should be easier to identify.
Information has only been provided over half of around 1 million claimants who should be well on the way in their DWP 'customer journeys' by now
The referral to assessment lag of 8 months needs explanation.
Alignment with Universal Credit & inclusion of SDA.
The 462,100 figure averaged over 12 months from March 2011 to February 2012 in the national roll out provides us with an average of 38,508 per month. This relates fairly closely to the 35,192 per month (in blue) figure which I had applied to incapacity assessment; all of which makes sense given that this excluded the numbers relating to the assessment of Severe Disablement Allowance whereas the DWP figures are inclusive of these.
The position on Incapacity Benefit and Severe Disablement Allowance needs to be made clear because the DWP plans to 'exhaust' the 1,759,620 Incapacity Benefit claimants who had claims in February 2011 to '0' by (according to the statistical SN140 Parliamentary note which is used in my report) an unspecified date in 2014/2015. The 'run down' on this at a rate of 38,508 per month would exhaust all IB claims by November 2015. The question I would ask against this is: would this meet with plans which meet the integration plans in to Universal Credit in time?
Clarification over completed assessments running to track for Universal Credit implementation should be sought.
In addition to which there remains the 226,300 Severe Disablement Allowance claims which existed in November 2011 and which are 'projected' to decrease to 44,000 by 2016/2017. The current 38,508 monthly referral average applies to both IB and SDA assessment but there is no distinction in the latest figures as to which is which. I would question how they are tracking the two different sets.
The tracking of Severe Disablement Allowance claims is likely to highlight failures in the assessment process because it is based on a high level of disability; if say no SDA claimants were assessed in the recent release the award rates would be lower and conversely if they were included the award rates would be higher and most probably in to the support group on an ESA conversion. A distinction should be made.
A distinction should be drawn between SDA & IB cohorts.
Referred for assessment
The definition needs clarification.
The DWP's release states:
"A claim will be identified as having started the reassessment process when it is referred to Atos Healthcare by DWP Operations."
This is inconsistent with the conversion process because an IB to ESA is triggered by the sending of a 'conversion notice' (see DWP customer journey) which is activated by the DWP rather than Atos. An explanation for this may be found in Atos holding details of when the claimant's last 'Personal Capability Assessment' was carried out (this relating to IB assessment) as the DWP decision - maker's guidance (chapter 45) states that a WCA reassessment should be carried out at a point when the next PCA would otherwise have been due. This suggests that the DWP may be over reliant on Atos for holding the data to work out when a claimant is due to be reassessed rather than being able to rely on their own claim data which should include this information in the claimant's history.
I suspect this is where the problem is: the DWP's IB computer data system will be tracking the claim as an incapacity benefit one because at the time before and after the conversion notice is sent they still remain on incapacity benefit. The sending of the conversion notice is to all and intents and purposes a 'non - event', it doesn't trigger a change in payment, nor is it a 'relevant change in circumstances', it is merely the sending of an un-trackable notice which doesn't ring any alarm bells on the IB claim system. Thus the DWP has to rely on Atos to select the claimants so that a start date can be cited for those 'referred' for assessment; this may provide a problem where a claimant has been in receipt of their IB for sometime and for which Atos may not have any record. It may mark the point at which the claims need to be subject to some degree of manual checking.
The 'referral' definition lacks clarity as to where it fits within the selection for conversion records which should be held by the DWP. The sending fn a conversion notice is an action which should be held on the claimant's records with the DWP but may not be readily traceable. They should be able to cite the point at which the claimant is referred for assessment rather than Atos.
The DWP should clearly explain the process and be able to identify referrals from their own records without any reliance on Atos who should take no part in the formal selection process other than to provide information which may assist the DWP.
Outcomes after appeal
The release states in xls. tables (1) and (2)
"Table 1: Outcome of functional assessment of existing IB/SDA/IS claims adjusted to account for the outcome of appeal by month of referral, Great Britain
Scope: initial functional assessment and appeal – reassessment of existing IB/SDA/IS claims or that following an appeal.
The outcome recorded is the final DWP Decision Maker’s decision or the recommendation made by the Atos Healthcare Professional where the Decision Maker’s decision is not available."
"Table 2: Employment and Support Allowance – Incapacity Benefits Reassessments: Outcomes of Work Capability Assessments, Regions and Local Authorities
Scope: initial functional assessment and appeal – reassessment of existing IB/SDA/IS claims or that following an appeal.
The outcome recorded is the final DWP Decision Maker’s decision or the recommendation made by the Atos Healthcare Professional where the Decision Maker’s decision is not available."
The DWP should state why an Atos WCA assessment is counted as an 'outcome' where no formal decision has been made by the DWP. The WCA is not a formal decision and as such cannot count as an outcome; to do so would suggest that the DWP is routinely following the conclusions reached by Atos in the WCA rather than forming a separate decision to that which is reached by Atos.
Given that the data sources do not cite HMCTS for appeal results, the DWP should explain how the appeal outcomes are re-adjusted on the data sets in the light of information from HMCTS. This suggests that information from HMCTS is leading to separate re-calculating of decisions once they are received back from the Tribunal which may therefore relate to a claim made sometime beforehand which then has an 'adjustment effect' on completely different data sets.
For instance. In July 2012 the DWP receives information that 6,000 claimants have been placed in the ESA WRAG group by HMCTS despite them relating to conversions decisions which were reached by the DWP in November 2011. The claimant count is readjusted by the DWP in July 2011 but the count would have to reflect how 6,000 assessment phase cases have been 'reversed' in entitlement terms with effect from November 2011.
An explanation needs to be provided by the DWP as to why they have only provided data which relates to adjustments with the outcomes of appeals taken into account. There is a need for information which extends to the claim status before appeal, after reconsideration and also to the decisions which show where an entitlement has been retrospectively changed following claim adjustments which relate to periods of time sometime after the initial award.
The 'Harrington' effect.
The data sets referred to in the tables from March 2011 to February 2012 consist of no evidence to show where cases could be analysed both before and after the Harrington 2011 amendments, indeed the time lag and waiting lists for appeals plus return of data from HMCTS would make it impossible to identify any distinguishing factor which shows that different outcome results can be attributed to changes in the WCA.
The following percentages reflect the monthly figures for claimants who were awarded their Employment & Support Allowance upon 'conversion' from Incapacity Benefit, Severe Disablement Allowance and Incapacity 'credits' for incapacity. They are taken from the data table sets released by the DWP on the 6th November 2012 (see above) relating to the first statistical release of figures since the National roll out of the reassessment programme after the Aberdeen & Burnley pilots conducted from October 2010.
These figures are a far cry from the grossly distorted media headlines depicting '75% of incapacity claimants as faking their illnesses'
They also raise concern over claims made by the DWP Press Office yesterday that the numbers being declared entitled to their benefits after reassessment was 64%. Their figure of 64% was arrived at by averaging the 3 months from December 2011 - February 2012, you can see from the figures below that they chose the three months which provided them with the lowest award percentages.
The DWP will of course know how these figures will increase even further once statistical information is added for appeals dealt with by Tribunals which have yet to be confirmed by statistical data releases from Her Majesty's Courts & Tribunals Service (HMCTS). The figures are adjusted to take account of appeals; some of which will be resolved by the DWP at the reconsideration stage whereas others will be subject to appeals to tribunals for which the data has yet to be added.
Below are figures for claimants who previously claimed incapacity benefits but were then placed in either the 'Work Related Activity' or 'Support' Groups in Employment & Support Allowance once their awards had been converted - they make interesting reading:
It should be noted that the data quoted by DWP in their latest November 2012 IB to ESA report only integrates information about the results of appeals dealt with externally by the Tribunal where this information has come back from Her Majesty's Courts & Tribunals Service (HMCTS).
This post explains how the data sets work:
(1) First go to:
"Statistical Release November 2012 - Tables"
(2) Then go to:
"Supplementary tables of Employment and Support Allowance Incapacity Benefits Reassessments: Outcomes of Work Capability Assessments, Great Britain
Department for Work and Pensions: Quarterly official statistics bulletin Issue: 6 November 2012
These tables provide additional information to the above report available on the Department for Work and Pensions website:
Table (1) "Outcome of functional assessment of existing IB/SDA/IS claims adjusted to account for the outcome of appeal by month of referral, Great Britain"
(4) Open the spreadsheet
The figures which I have used are to be found in the greyed out box entitled:
"Percentage of completed assessment caseloads"
Scroll down to the monthly national roll out figures and you will see they start from March 2011. The figures I have provided are the sum totals of those entitled to ESA when the 'Work Related Activity Group' and 'support group' are added together and appear in the 'either group" figures for each month.
So for March 2011 the figure is:
WRAG = 42% + Support Group = 34% which provides the (WRAG) + (SG) figure of 76%.
Is this an accurate figure?
76% is completely accurate!
Yes, it is highly likely to be more accurate because it is at the commencement of the data set relating to the 2,000 claimants assessed in the month of March 2011. It is going to relate to a much more straightforward decision over the conversion of an incapacity benefit claim to Employment & Support Allowance during the same month. In the same table you will see how
800 were placed in the Work Related Activity Group
700 were placed in the support group
1,500 in either of the above groups
500 were fit for work
2,000 total assessed
100 closed before assessment
2,100 total case load
The data set would be free of anything would could potentially contaminate the accuracy of the decision such as a reconsideration outcome, the altered result of an appeal or the result of a further assessment after the initial award. This is probably the cleanest of all data sets because it is likely the IB to ESA conversion was all dealt with within the DWP without the need for an external assessment by Atos. The figure will increase even further with the inclusion of results of appeals from HMCTS.
A completed conversion within the one month of March is highly unlikely to have involved the claim being referred out to an external agency other than the DWP. The claims in this group are more likely to have been dealt with internally and may have involved claims which were more obviously suited to conversion.
Why don't the public or media adopt the 76% figure?
They're nervous about accepting news which goes against the usual rhetorical grain aimed at demonizing thousands of disabled people each and every day. The right wing press think nothing about telling the public 75% of those on incapacity are faking it - and lets face it they get good headlines out of it.
'Using the 76% are completely genuine' quote is no different to the use of the '75% on the sick' quote arrived at by looking at limited data sets used by the DWP to paint the worst picture. '75% are totally and utterly genuine' would be an entirely accurate and factual headline - indeed it will be even higher when the properly adjusted figures are known.
Here's how complicated it gets when Jim goes through the incapacity conversion phase, this hows you how he'll upset the figures from March 2011 to February 2012....
Jim's IB to ESA 'customer journey'
In April 2011 Jim is sent his conversion notice and Atos send him out his ESA 50 questionnaire.
Jim won't appear in the March 2011 statistics because he's not been 'referred for assessment'.
In April 2011 Jim should appear as a 'referred for assessment' statistic but remember at this time he will still be down as an incapacity benefit statistic in the claimant count because that's what he's paid as.
In May 2011 Jim sends Atos back his ESA 50, by which time he'll presumably be down as an 'assessment in progress' statistic. However he's still on his incapacity benefit so hopefully the DWP are able to track him for ESA assessment despite him being on another benefit.
In June 2011 Jim attends a 'Work Capability Assessment' where he is awarded '0' points. The statistic count allows for the result of the Atos assessment to be treated as an 'outcome' where no decision is made by the DWP. The DWP do not explain their justification for this because an Atos assessment is not an outcome as it is not part of the formal decision - making process.
However let's assume the DWP gets the Atos assessment results back and makes a decision in the last week of June 2011. The DWP's decision confirms the Atos assessment meaning that Jim is notified that his Incapacity Benefit will end and he won't be able to claim Employment & Support Allowance. In June 2011 Jim would seemingly go down in the statistics as 'fit for work'.
However in July 2011 Jim appeals. This is the point at which his benefit becomes Employment & Support Allowance; because he has appealed he is placed in the 'ESA assessment phase'.
No explanation is provided over whether Jim would be recorded in the statistics for July 2011. He has had his Atos assessment and a final decision has been made by the DWP. But would his appeal re-open the statistic as an 'assessment in progress' statistic? - an explanation is required.
Assuming Jim goes straight for an appeal without requesting a reconsideration, his appeal papers would be prepared by the DWP and let's say by September his case is lodged with the Tribunal. He is then registered as an 'appeal receipt' with Her Majesty's Courts & Tribunals Service (HMCTS) but as what? How does the Tribunal distinguish Jim's case as an Incapacity Benefit termination / Employment & Support Allowance re-assessment appeal as distinct from a straightforward Employment & Support Tribunal on the HMCTS 'Gaps' software system?
How does the DWP 'shadow track' Jim's claim whilst it is with the Tribunal?
Or is the DWP using common ground data from Atos?
If we assume Jim's case comes before a Tribunal in February 2012 (which would be quick by comparison with other cases which I am familiar with) what then happens?
Assume the Tribunal reverses the DWP decision and places Jim in the ESA Work Related Activity Group at his appeal hearing in February 2012 with effect from July 2011 when he lodged his appeal.
The DWP will only be able to reconcile their data when they have the information back from HMCTS once they have received it and updated their records.
Having already released the data for March 2011 to February showing how Jim was 'tracked' - how will the DWP 'reverse' the statistics to show that in fact he was retrospectively awarded his ESA 'Work Related Activity Group' entitlement in July 2011.
Can you see the potential statistical nightmare this creates?
By comparison the '76% entitled' figure shown for March 2011 is a lot more reliable than later figures.
The later figures are all subject to a risk of data contamination from data sharing with Atos and HMCTS.
This is why there is an 8 month time lag in producing all the data.
The data from the DWP for the period from March 2011 to February 2012 does not refer to any official appeal statistics sourced from the Tribunals heard by HMCTS but it is possible to arrive at some estimation as to how they may impact upon the figures produced to date.
The DWP recently quoted a figure of 64% as representing the figure for claimants who had been found to be entitled to a main phase placement in either the Work Related Activity Group (WRAG) or Support Group (SG) of Employment & Support Allowance upon conversion from their previous pre-existing incapacity benefits.
I say the 64% is wholly misleading.
Why? - because the 64% figure was based on an average taken over the 'lowest' range of figures which showed in December 2011, January and February 2012. In my estimation the 76% figure for March 2011 is more likely to be 'cleaner' because it is arguably less contaminated by the controversial Work Capability Assessment conducted by Atos. The fact that the 76% figure relates to a lower number of claimants (2,000) make it more reliable rather than less. The DWP would be less pressured, more time could be taken to objectively overview the evidence and the figure is is less potentially tainted with errors which arise in range from re-worked appeals, reconsiderations or reviews after initial assessment. On that basis it is potentially the most reliable figure rather than the least.
The March 2011 WRAG/SG IB to ESA figures are highly unlikely to have been based on any assessment by Atos because the nationwide roll out of IB to ESA assessments had only just commenced and there would have been insufficient time to refer claimants to Atos in time for the decision to have been confirmed by DWP because the conversion phase takes several months to complete.
All of the DWP data is subject to an 8 month time lag and the exclusion of affirmative HMCTS data so all we can do is estimate the effect of appeals to Tribunals.
What we know from HMCTS 2011/2012 data is that ESA/IB Tribunals (two member) were subject to the following 'ages' before the case reached a point of 'clearance':
[li] 25% of cases - 11 weeks or less
[/li][li] 50% of cases - 22 weeks or less
[/li][li] 75% of cases - 32 weeks or less [/b][/i] [/li][/ul]
I take this to read that 75% of ESA/IB cases were taking 32 weeks (or less but no less than 23 weeks) before they reached a point of 'clearance'. In other words around 7 months which fits with what many are saying over the time it takes before their appeal comes up. I am slightly puzzled over this method of citing the figures and wonder how cases over 33 weeks are factored in.
What we can adopt with some degree of certainty is the number of IB claimants who had been 'found fit for work' (none of whom would from the time of the 'conversion decision' be entitled to a continuance of their incapacity benefit or an allowance of Employment & Support Allowance):
IB Claimants 'fit for work' March 2011 - February 2012
Mar 2011 - 500 Apr 2011 - 3,500 May 2011 -10,500 Jun 2011 - 14,900 Jul 2011 - 13,100 Aug 2011 -14,200 Sep 2011 - 14,300 Oct 2011 - 13,900 Nov 2011 -14,400 Dec 2011 -15,600 Jan 2012 - 15,800 Feb 2012 -14,000
144,700 found fit for work compared with 286,700 (WRAG + SG) claimants entitled to their ESA
All of the 'fit for work' claimants can lodge an appeal because they have been issued with a conversion decision in order to be classified as 'fit for work' save for my earlier reservation over the DWP's accounting statement that the result of a Work Capability Assessment can be regarded as an outcome in cases where the DWP has not yet made a decision (I fail to see why these are not regarded as 'still in progress cases).
Of the IB claimants who have been given a decision a larger number are going to be pre-disposed to lodging an appeal or requesting a reconsideration because they are already claiming on the grounds of incapacity. The 'rate of appeal' applied to new ESA claims was 29% in 2009 so it would be reasonable to assume a considerably higher number will appeal the refusal of their existing benefit in 2011/2012 especially given the mounting public concern over Atos based assessment.
I think it reasonable to apply a 50% rate of appeal - in other words at least half will appeal a 'fit for work' decision in IB/ESA reassessment; the figure could be even higher but it is reasonable to apply it as a base:
50% of IB Claimants appeal a 'fit for work' decision
March 2011 - February 2012
Mar 2011 - 250 Apr 2011 - 1,750 May 2011 - 5,250 Jun 2011 - 7,450 Jul 2011 - 6,550 Aug 2011 - 7,100 Sep 2011 - 7,150 Oct 2011 - 6,950 Nov 2011 - 7,200 Dec 2011 - 7,800 Jan 2012 - 7,900 Feb 2012 - 7,000
72,350 additional IB/ESA appeals per year would be created at the 50% rate
This being in addition to the appeals for New ESA Claims
The figure would increase even more from March 2012 due to a higher assessment (& reassessment) rate
Now lets look at what happens when 50% win their appeals
an extra 36, 175 claimants
per year become entitled to their
In the next post we will put these figures through the score board and translate them in to percentages.
Here's how it's worked out for the IB to ESA claimants which are the subject of the DWP's recent report of 6th November 2012
431,100 is the total number assessed
286,700 is the number found to be entitled after appeal but without HMCTS figures
36,175 is the additional number likely to be found entitled following an HMCTS appeal
286,700 + 36,175
Which is 75% of
In my estimation the 76% figure in the previous posts for March 2011 is a more accurate one than the 64% figure quoted by the DWP and Mr Hoban for the reasons I have already provided.
What the 64% figure quoted by the DWP figure shows is how the figure reduced with the inclusion of Atos assessments and potential data error where there are incomplete figures.
The 75% figure shows how the figures for the whole year from March 2011 to February are likely to be re-adjusted once an increasing number of Atos assessments have been appealed to an independent HMCTS Tribunal.
The 75% figure is based on 50% appealing with a 50% success rate. This a low based estimate and is likely to be even higher if more than 50% appeal and if more than 50% succeed with their cases.
Success rates will increase where an appellant has been legally assisted at any stage in the appeal process.
Incapacity Benefit & Severe Disablement Allowance appeals in these sets are not relevant as they relate to different determinations than IB to ESA conversion cases. SDA and IB appeals will relate to pre-existing determinations such as outstanding PCA appeals and cases connected with therapeutic work, overpayments & so forth. These do not form any part of the IB to ESA conversion reassessment programme and should therefore be disregarded.
In the last few posts I have focussed on the latest statistics relating to incapacity benefit to Employment & Support Allowance assessment in the run up to the DWP's latest statistical report released on the 6th November 2012 relating to a wave of 'conversion reassessments' rolled out nationally from around March 2011; the results of which are showing that far fewer claimants than initially being reported are 'fit work'.
The media claims have consistently been that 75% of claimants were faking their illness and therefore not entitled to their benefits.
The recent results show the exact opposite to be true.
The reality is that after HMCTS appeal adjustment the real figures show that 75% of claimants are fully entitled to the more recently introduced and more rigid Employment & Support Allowance.
There should be no inference from these figures which suggests that the 25% who have been found 'fit for work' are anything less than genuine, they have merely been assessed under a much stricter set of rules. The Work Capability Assessment has been widely condemned as not for purpose simply because it is an assessment which is too rigid to provide a reliable means of assessing people's capability for work.
However we need to return to what the key emphasis on ESA assessment is meant to be about; an overview of all claimants including those who make new claims and those who are again reassessed after their initial claim.
The latest figures (October 2012) relating to New Employment & Support Allowance claims highlight some very interesting findings
To date (October 2008 to February 2012)
Set (1) New claims (initial claims only)
Any outcome - 1,324,500
Work Related Activity Group - 340,600 (26%)
Support Group - 200,900 (15%)
Either group (WRAG + SG) - 541,500 (41%)
Fit for Work - 783,000 (59%)
Of those where assessment not complete
Closed before assessment - 813,000
Still in progress - 80,100
Where assessment was not completed - 893,000
Total (all) - 2,217,500 (2.2 million claims made to date)
Set (2) New claims (initial claims only)
Of those assessed:
Any outcome - 585,800
Work Related Activity Group - 258,000 (44%)
Support Group - 150,600 (26%)
Either group (WRAG + SG) - 408,000 (70%)
Fit for Work - 177,100 (30%)
Of those where assessment not complete:
Closed before assessment - 76,300
Still in progress - 56,500
Where assessment was not completed - 132,800
Total (all) - 718,600 reassessed since initial new claim
( 0.7 million claims reassessed after initial assessment to date)
You can access this latest release dated the 23rd October 2012 via this link to the DWP summary. I would however encourage all viewers to visit the DWP xls data tables (particularly tables 1(a) 'New Claims' and 1(b) 'Repeat' rather than adopt the key findings contained within the summary report an example of which is.
"54 per cent of claimants were assessed as Fit for Work (FFW) and are no longer eligible for Employment and Support Allowance."
I say this because it is a further example of the DWP in their statistical analysis using selected data from December 2011 to January 2012 which does not take in to account adjustments following appeal or the results averaged over the entire period since ESA was introduced.
The 'fit for work' figure before HMCTS appeal on new claims is 59% and 70% on claims which are initially new and then reassessed.
The quoting of selected 3 monthly statistics (using a base point of the month in which claim is made) is highly unlikely to lead to accurate reporting because it cannot possibly take account of HMCTS statistics relating to ESA appeals in which of 75% cases are taking 32 weeks 'or less' (see previous concerns over HMCTS analogy).