The work capability assessment - is it capable of working?

Fiona Seymour considers government plans for changes to entitlement to ESA for those unable to work due to illness/disability

This article was originally published in the March/April 2017 issue of Adviser magazine and was correct at the date of publishing.

Repeat assessments

In October 2016, the Government announced that it would end the requirement for repeat assessments under the work capability test for those claimants with the most severe health conditions where there was no prospect of improvement. It later confirmed the exemptions would only apply to people who had already been assessed under the work capability assessment (WCA) as having limited capability for work-related activity, i.e. those in the support group of Employment and Support Allowance (ESA) or equivalent under Universal Credit (UC) and who had ‘the most severe health conditions and disabilities’.

These were defined as claimants with: ‘… severe, lifelong, often progressive and incurable conditions, with minimally fluctuating care needs, who are unlikely to ever be able to move closer to the labour market and into work.’

Consultation with disability charities, the medical profession and other stakeholders is to be carried out in order to produce guidance outlining who should benefit from the exemption.

Green Paper

On 31 October 2016, the Government published a Green Paper on work, health and disability, which was intended to focus on how best to provide support for disabled people who could work, although the paper also considers issues such as the sickness certification process; the role of Jobcentre work coaches and employers; and potential reforms of the WCA, particularly in relation to the 1.5 million claimants who are in the support group and receive ‘little practical help from Jobcentres to help them into work’.

The suggested benefit reforms which the Green Paper seeks views on include:

• The introduction of a new ‘Personal Support Package’ in Jobcentre Plus, to include access to specialist work coaches and other forms of employment support.
• Whether the single WCA is appropriate to determine both the amount of financial support a claimant receives, and the level of Jobcentre Plus support they receive (or the level of conditionality they are required to undertake).
• Whether any assessment to determine the level of financial support should consider information from other sources, e.g. the NHS, the adult social care system or other benefits such as Personal Independence Payment (PIP).
• Whether those with the most severe health conditions (i.e. those who should be exempt from repeat re-assessments under the WCA, as the Government had previously announced) should also have a shortened claims procedure in the first place, using information from other sources rather than requiring them to attend a face-to-face consultation.

Responses were sought on the consultation by 17 February 2017.

Permitted work

Claimants who are in the support group of ESA are able to undertake ‘permitted work - higher limit’ indefinitely (as long as they work fewer than 16 hours per week and do not earn more than £115.50). However, those in the work-related activity group (WRAG) can only do such work for a maximum of 52 weeks. The March 2016 budget announced the Government’s intention to remove the 52-week limit from April 2017 (para 2.70) and this was confirmed in the Green Paper (paras 78 and 81).

Draft regulations appear to have been presented to the Social Security Advisory Committee (SSAC) in November 2016 in respect of the removal of the 52-week limit, but have yet to be published.

Removal of WRAG

Sections 15 and 16 of the Welfare Reform and Work Act 2016 make provision to remove the work-related activity component from ESA and the equivalent in UC. Power is given to DWP to make regulations for transitional protection, particularly in relation to those migrating onto ESA from Incapacity Benefit, Severe Disablement Allowance and Income Support. Draft regulations appear to have been made but not yet published, including provision to increase the hardship rate of payment for those sanctioned under ESA from 60% to 80%.

On 18 November 2016, a motion to pause the planned cut to the WRAG (and equivalent in UC) until the outcomes of the Green Paper had been implemented was passed by the House of Commons. On 29 November 2016, the Government confirmed the removal of the WRAG would only apply to new claims made after April 2017 and that transitional protection would be put in place for claimants who left ESA to try work but then came back onto benefit.

A briefing from the House of Commons Library suggests existing claimants who are already in the support group prior to April 2017 will be able to drop to the WRAG if reassessed after that date, and that the 12-week linking rule will apply to protect pre-April 2017 WRAG claimants if they leave the benefit to look for work. ESA claimants in the WRAG who move to UC via ‘natural’ migration will continue to qualify for the equivalent of the WRAG in their UC claims. Full draft regulations are yet to be published.

On 3 February 2017, the Work and Pensions Committee report ‘Disability Employment Gap’ queried the Government’s claim that removal of the WRAG would increase work incentives, stating the evidence was ‘at best, ambiguous’. It urged the Government not to implement the removal until there was a plan for managing the drop in income for disabled people, given they had increased living costs as a result of their health condition.

Fiona Seymour is a benefits expert in the Expert Advice Team at Citizens Advice and is benefits subject editor on the Adviser Editorial Board.