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Incapacity benefit reform: bribery, bullying, compulsion & spot checks

25 January 2006

The government's green paper 'A new deal for welfare: Empowering people to work' has finally been published. It sets out, with a lamentable lack of detail, the new Employment and Support Allowance system which involves bribery and bullying of GPs, tougher tests and compulsory work related activities for claimants and a system of spot checks not seen since the deeply despised and discredited Benefits Integrity Project.

Even for existing claimants there is a promise of harder times ahead, with a more frequent and harsher personal capability assessment regime, compulsory work-focused interviews and spot checks.

Below we set out how it appears the system will work for individual claimants.

Getting a sick note
To begin a claim, as now, you will need medical evidence, usually in the form of, a Med 3 (sick note) from your GP.

However, a medical certificate may be much harder to get in the future,. GPs and primary care teams are to be offered financial rewards for 'specific interventions' which 'improve outcomes with a direct link to incapacity benefits'. In other words, there will be extra cash for doctors who issue fewer sick notes. In addition, in the future doctors will have to keep records of sickness certification allowing the government the opportunity for 'evaluation and audit of the impact on entry to statutory sick pay and movement onto incapacity benefits' of individual practices. This sounds very like the creation of league tables to bully GPs by naming and shaming practices which are not pulling their weight in relation to getting people back to work.

A further hurdle in some surgeries will be the presence of a government employment adviser to whom the doctor can refer patients for advice about staying in work and off incapacity benefit.

If you do succeed in getting a Med 3 it may look very different from now. The green paper proposes a review of the Med 3 to allow GPs to provide 'more comprehensive and robust fitness-for-work advice'.

Employment and Support Allowance
Having got a sick note, if you are still in work you will be able to claim statutory sick pay under a new simplified system which does away with the need to wait three days before being eligible and no longer links separate periods of sickness together.

Once your statutory sick pay is exhausted, or from the outset if you aren't in work, you will apply for the new Employment and Support Allowance (ESA)instead of incapacity benefit or income support. ESA will be means-tested for those who have not paid sufficient national insurance contributions and will be paid at two rates, depending on whether you are assessed as having a condition so severe that you are never likely to work again or not. For people getting the means-tested part of ESA the current disability premium in income support will be incorporated into ESA. The enhanced disability premium and severe disability premium will also be available within ESA for people who meet the relevant criteria.

Before you become eligible, however, you will undergo an assessment period which will last 12 weeks and will include a new, 'transformed' personal capability assessment (PCA) which will also be given a new name. It is inconceivable that any changes to the PCA will be in the direction of making it easier to be found incapable of work - the test is certain to become tougher.

The mental health test, in particular, is to be comprehensively reviewed by a group of government appointed experts. The green paper explains that this is necessary because of 'the changing pattern of mental health' and a need to ensure that the 'new medical assessment reflects the type of conditions prevalent today'. This is virtually guaranteed to mean that the new mental health test will be harder to pass, given that 40% of claimants now have a mental health condition compared with 25% in the mid-1990s. There will be no possibility of the government meeting it's target of reducing claimants numbers by one million unless there is a drastic reduction in the number of successful claims based ion mental health.

Your eligibility for the new benefit will be assessed under the PCA, but you may also be assessed by 'other health professionals' in relation to your capability for work. This sounds like a possible new and lucrative line of Work for Atos Origin and its teams of occupational nurses, already being drafted in to carry out DLA medicals in some medical examination centres.

Whilst you are in the assessment period you will receive only the basic level of Jobseeker's Allowance (provided you pass the means test if you haven't paid enough national insurance contributions). What is more, after 8 weeks, before any decision has been made about how severe your condition is, you will have to take part in your first work-focused interview at which, under current rules, you will be obliged to agree and begin work on an action plan for returning to work.

Which group?
When the assessment process is completed, the decision maker will decide whether you are eligible for ESA. If you are eligible for ESA the decision maker will then decide whether you are one of the majority who is expected to return to work in the short or medium term and is thus eligible for the Employment Support component of ESA or whether you are unlikely ever to work again and should receive the more generous Support component.

The Employment Support component will be paid at a higher rate than the current long term rate of incapacity benefit, but age related and dependants additions will be abolished. You will not receive the Employment Support component unless you draw up a personal action plan 'focused on rehabilitation and eventually on work related activity'. The kinds of activities claimants will be expected to agree to include:

Work trials
Voluntary work
Permitted work
Preparation for self-employment
Condition management programmes
NHS Expert Patients Programmes
Basic skills programmes
New Deal for disabled
Activities to stabilise health conditions (including mental health problems) for example use of cognitive behavioural therapy

Claimants who do not participate in 'suitable activities' will have their benefits reduced in a series of 'slices' until they are down to basic Jobseeker's Allowance levels.

There will be a right of appeal against benefit reductions and the appeal process is to be 'improved'. Improvements will include providing more detailed information about the reasons for a decision (likely to simply mean a much longer and intimidating computer generated letter) and incorporating 'a comprehensive reconsideration process as part of the initial assessment of any appeal' - something which is already supposed to take place. In addition steps will be taken to 'ensure that all new evidence is, wherever possible, included in the reconsideration process rather than at tribunal'. Whether this means longer delays before cases are sent to the Appeals Service or an attempt to impose time limits on claimants for the production of new evidence is not made clear.

If you have a condition that varies on a daily or weekly basis, or which worsens and then improves again, the non-medically trained personal adviser will 'agree appropriate action which reflects these variations.' When drawing up your action plan. In a small number of cases the adviser will allow you a gap in undertaking suitable activities until your condition has improved. There is no indication that there will be any right of appeal against a decision by a personal adviser that you are well enough to undertake work related activities.

Reserved circumstances
People with the most severe conditions will receive the Support component of ESA and will be known as the 'reserved circumstances group'. People in the 'reserved circumstances group' will not have to draw up an action plan or undertake work related activity and will 'receive more money than they do now'. This group will not be the same as the current 'exempt' group however. At the moment people with one of a list of severe conditions, such as blindness, are automatically exempt from the PCA. Under ESA your entitlement to the Support component will be based not on having a specific condition but on how severely that condition affects you. There is as yet, no indication of how severity will be assessed, but it is likely to be the source of many appeals when the new system is brought in.

Annual reviews
Reviews of your incapacity will normally take place at intervals of not more than 12 months - the maximum under the current rules is three years. In addition, a new 'dedicated team' is to be created which will carry out random checks on claimants which may lead to them being called in for another personal capability assessment. How these checks will be carried out, what warnings people will be given and what rights they may have to be accompanied or represented in the course of any interview is not revealed.

Existing claimants
The green paper says that 'The benefits structure and conditionality requirements outlined above will only apply to new claimants. Existing claimants will remain on their current benefit level'. However, the green paper then goes on to say that the DWP intends to 'work more proactively' with existing claimants 'balancing their responsibilities to prepare for a return to work with the need to treat them fairly'.

This fair treatment will include increasing the frequency with which existing claimants have to have personal capability assessments. It also seems extremely likely that existing claimants will be subject to the same revamped personal capability assessments as new claimants, meaning that some who currently meet the criteria for eligibility for benefits will cease to do so when next assessed.

In addition, the green paper states that the government will consider extending the work-focused interview regime to include existing claimants. Existing claimants will also be subject to spot checks on their eligibility in the same way as new claimants.

Back to the future
There is almost nothing to be said in favour of the new ESA. It seems badly thought out, sketchy, overly complex and designed to divide claimants into a small group of 'deserving', severely incapacitated claimants and a much larger group of people who need to be pushed into becoming productive members of society as quickly as possible..

It is difficult to see the new spot check regime as anything but a form of deliberate harassment, given that the green paper itself claims that both fraud and error together run at only around 1.2% of expenditure on incapacity benefits. The justification that the spot checks will be good for claimants because they 'will provide confirmation to the genuine claimant of the appropriateness and correctness of their ongoing entitlement' is beneath contempt. For those who recall the discredited Benefits Integrity Project in which DLA claimants were subject to deeply distressing random checks, it will bring back unhappy memories of a conservative administration at its most virulent and anti-welfare state.

Sadly, it is now no longer necessary to look to the past to find an administration which displays little but impatience and distaste for those unable to work.

For members, the fightback starts here
Here at Benefits and Work we have very limited resources compared to other national agencies. We can't afford to use them on taking part in what is likely to be a sham consultation exercise prior to the introduction of legislation which is likely to attract cross-party support with only minor changes.

Instead, we begin the fightback today with a letter you can copy, paste and send prior to a work-focused interview, for those already subject to them. Most such interviews take place in open-plan Jobcentre Plus offices where other staff and claimants are free to listen to details of your health condition and how it affects you. This letter sets out your right to have your interview held in a private office and explains the legal consequences if you are forced to choose between having your confidentiality breached or your benefits cut.

There is a letter for use by individual claimants and, for organisational members only, a letter for use on behalf of clients.

You can download a copy of the Green Paper from this page.