Response from Royal National Institute of Blind People (RNIB) and Action for Blind People to the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work - Related Activity) Amendment Regulations 2011

September 2010

Introduction

RNIB Group is an association of RNIB and Action for Blind People, and together we represent the largest charity in the UK concerned with the welfare of blind and partially sighted people. We are pleased to have the opportunity to respond to this consultation.

Our experience of the WCA regime

Action for Blind People have dealt with 21 ESA appeals and in the majority of cases, these appeals have been successful. RNIB legal rights service has represented fifteen people at ESA appeals and all of these appeals have found in favour of the claimant.

The process that has led to the proposed regulations

In 2009 DWP completed an internal review of the WCA and concluded that it was "working satisfactorily". Despite this conclusion, the review led to proposals to radically amend the activities comprising the Limited Capability for Work test within the WCA. Whilst RNIB was a member of the internal review group we did not endorse the review's conclusions or recognise that our input had been properly taken into account. Specifically we disagreed with the finding that the "WCA is generally identifying individuals’ capability for work correctly" (page 4 of memo to SSAC para 1.7).

Recommendation 1

The opportunity should be taken as a new paragraph 3 - (2) (c ) within the regulations to specify the circumstances in which a person should qualify for the ESA work-related activity group. The new 3-(2) (c ) to read,

" A person should be in the ESA work-related activity group if;

  • because of disability they are excluded from a significant number of jobs due to genuine occupational requirements
  • in order to take up a suitable job the person would require significant DDA reasonable adjustment or Access To Work provision (e.g.; adaptive technology or help with travel to work)"

By definition such a person would have 'limited capability for work' and be appropriately placed in ESA's work-related activity group. It would not be appropriate to expect this person to be subject to JSA conditionality.

In addition people with long term impairments like sight loss benefit from the flexibility of IB/ESA regime in terms of 'permitted work' and linking rules, enabling them to keep links with (or prepare to enter) the labour market. JSA is not able to offer this valued flexibility.

The RNIB Group supports certain proposed changes in the draft regulations currently before SSAC, in particular the changes proposed around access to the support group and relating to people awaiting chemotherapy. We also welcome the statement in section 4.13 of the explanatory note in respect of fluctuating conditions, "Guidance states that if an individual cannot complete an action safely, reliably and repeatedly they should be considered unable to complete it at all."

However, the proposed changes to the activities of the LCW assessment are not justified by the internal review or any other evidence available, and are neither improvements nor simplification.

Issues of concern

The RNIB Group is very concerned about changes to activities in the proposed revised LCW currently before SSAC. The draft regulations before SSAC propose that the specific 'Vision' activity is removed entirely from the new LCW – this has many disadvantages and RNIB strongly opposes this change, which is not justified by the internal review.

The proposed changes in fact introduce more duplication ('getting around' activity is duplicated in both part I and part II of LCW). In some cases the descriptors introduce ambiguity that will increase the number of disputes and appeals, such as the "has significant difficulty" (descriptor 7(b)) and "has some difficulty" (descriptor 7(c)). Finally many of the descriptors are incoherent and therefore unworkable; in the navigation activity unfamiliar surroundings carry nine points whereas familiar ones carry 15 points yet most surroundings are unfamiliar to begin with.

Part of the justification for this change seems to be an attempt to assess how a claimant has adjusted to their disability, to take account of how a person who has recently lost their sight may have more difficulties. The points-based LCW is not the appropriate place to try to assess the degree of an individual's adaptation. It would be unwise to introduce such an element of subjectivity into any proposed new LCW. It is more appropriate to take account of a person's adaptation within the Work Focused Health Related Assessment (WFHRA).

The WCA when looked at as a whole is conceptually flawed if it does not include input from the WFHRA. The suspension of the WFHRA for the next two years is disappointing. Without the WFHRA the WCA is an abstract points-based exercise, taking no account of an individual's previous work experience and adaptation to their disability (and it is not appropriate to try to shoehorn this sort of assessment into LCW). In respect of the claimant this is because no allowance has been taken of whether the person has previously worked at all.

In respect of potential employers it assumes that all employers have instigated reasonable adjustments - unlikely when the Disability Discrimination Act's duties on employers to make reasonable adjustments are not anticipatory and it assumes that all employers have an enlightened attitude towards the employment of disabled people.

The explanatory memorandum makes numerous mentions of the support available to claimants. Paragraph 4.12 of the explanatory note states, "Until the Work Programme is implemented the Government will need to ensure that people receive the support they need." Whilst we welcome the Work Programme and the statement in paragraph 20 of the Equality Impact Assessment, "reward providers for helping those people with the greatest need" it is important to stress that it is currently untested. In addition at present the role of specialist providers remains unresolved and this is important given that only 1 in 200 ESA claimants are blind and partially sighted and top tier providers can lack the skills and experience to provide a service to them.

We are perturbed by paragraph 11 of the explanatory memorandum with its reference to ESA being intended to be a temporary benefit and most people being expected to move off it within two years. Historically Government employment support has been poor at helping blind and partially sighted people into work. This is due in the main to the increased costs of long-term employment support, typically more than two years, which is often needed to access the labour market. The most recent experience is that provided by Pathways to Work. Statistics released by DWP in July 2010 reveal that the success rate for job entries for both "Provider led" and "Job Centre Plus led" contracts was only around one in seven for blind or partially sighted claimants.

The question of the need for new amendments to the LCW

Firstly we would not wish to see any amendment of the existing LCW 'Vision' descriptors, or the loss of 'Vision' as a separate activity within the LCW. The attempt to devise a set of merged 'sensory' activities ('making self understood', 'understanding communication' and 'navigation') in the proposed new LCW is misguided, not supported by any evidence from the existing LCW or published ESA statistics, and the descriptors are neither clear nor unambiguous. The proposals do not 'clarify the existing descritors' as claimed (page 4 of SSAC memo).

In the case of visually impaired people the existing WCA 'Vision' activity is suitable and descriptors are broadly appropriate. The advantages of the current activity and descriptors are that they are;

  • simple and measurable
  • objective
  • correlate broadly with certification criteria (for registration as sight impaired or severely sight impaired)
  • correlate with work based activities e.g. visual acuity (reading & communication), field of vision (navigation, orientation & safety) and ability to recognise people/workmates (expressive and receptive communication).

If there is to be no specific 'Vision' activity under a revised LCW test, then the RNIB Group would wish to see that other activities include modified descriptors to cover the impact of sight loss in the three areas identified above: navigation, safety and expressive and receptive communication. (A commitment given in paragraph 2.11, page 6, appendix 1 of the explanatory memorandum).

Some 75% of all information processed by our brain comes to us via our eyes. Thus sight loss has the same effect as a 'cognitive impairment' in regards to many of the activities within the LCW. On the basis that the LCW test should assess functional impairment across a range of activities (see CE 0303/2010, UT 2010 UKUT 244 AAC), rather than a more subjective level of disability (that may vary between people with same level of sight loss), descriptors from part II of LCW should be available to people with sight loss.

Consequently we therefore make the following recommendations if a new LCW test were to be put into the regulations.

Proposed new amendments to the regulations

Amend proposed activity 12 ("awareness of hazards" 12 (a) page 30 of the keeling schedule) Insert the words in italics "Reduced awareness everyday hazards due to sensory or cognitive impairment leads to a significant risk…."

The RNIB Group would also wish to see the impact of sensory loss reflected in descriptors for other activities (manual dexterity, picking up & lifting, completion of tasks, coping with change) to reflect whether a person can see to perform the activity concerned. Consequently we recommend the following words in italics be inserted as follows:

Amend activity 4 to include the following words given here in italics. "Cannot locate and pick up and move to a known position a 0.5 litre container full of liquid."

Amend activity 5 to include the following words (5a page 13) given here in italics. "Cannot either (1) Locate and Press…"

Amend descriptor 5 (b) "Cannot locate and pick up a £1 coin…"

Amend descriptor 14 (c) to include the words inserted here in italics:

"Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur or a familiar routine is no longer possible such as when access to a familiar public transport journey is prevented by streetworks) to the extent that overall day to day life is made significantly more difficult."

Amend activity 15 (a) to include the words inserted here in italics. "Cannot get to any specified place with which the claimant is familiar due to sensory or cognitive impairment." Amend descriptors 15 (b) and (c) in a comparable way.

Amend proposed descriptor 7b ('understanding communication' page 16 of the Keeling Schedule), insert the words in italics

"Has significant difficulty understanding a simple spoken or written message in size 16 font or greater from a stranger due to sensory impairment."

Conclusion

RNIB and Action for Blind People have grave concerns around the viability of the descriptors contained within the draft regulations. We do not believe they offer either simplicity or remove duplication. Indeed, we believe they are highly subjective and would prove unworkable in practice and will lead to a huge increase in appeals. We urge SSAC to consider these observations, as well as our suggestions as to ways in which the proposed new descriptors could be amended to ensure they fairly capture the limited capability for work experienced by vulnerable people seeking to claim ESA.

This response has been prepared by:
Philip Connolly, Employment Campaigns Officer, RNIB

Alban Hawksworth, Legal Rights Officer, RNIB
Marsha de Cordova, Development Manager - Financial Inclusion, Action for Blind People

Please contact Philip Connolly: 020 7391 3266,

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