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Disability Alliance response R37

Response to the Social Security Advisory Committee re The Social Security (Incapacity for Work) (General) Amendment Regulations 2003

(Note for more information about the background to this response please go to our pages on the Howker decision)

Disability Alliance is a national registered charity with the principal aim of relieving the poverty and improving the living standards of disabled people. Our eventual aim is to break the link between poverty and disability. We are a membership organisation with almost 400 members who range from small self-help groups to major national disability charities.

We provide information on social security benefits to disabled people, their families, carers and professional advisers. We run three telephone helplines and have an extensive programme of training courses aimed at professionals working in both the statutory and voluntary sectors.

We are best known as the authors of the Disability Rights Handbook, an annual publication with a print-run of 30,000, but also publish a range of other guides to the benefits system and a quarterly Disability Rights Bulletin.

We undertake research into the needs of disabled people - with a particular emphasis on income needs. Our policy work is informed by our daily contact with disabled people and those who provide services for them. We meet frequently with officials from both the DWP and HM Revenue and Customs (tax credits) and have been actively involved in the Jobcentre Plus stakeholders group and its services sub-group.

We welcome this opportunity to respond to The Social Security (Incapacity for Work)(General) Amendment Regulations 2003.

The current regulation 27's role as a safety net

As stated in Annex A paras 3-6, the original intention of regulation 27 was contained within the Government document "The medical assessment for Incapacity Benefit" - published in October 1994. This publication neatly states in Chapter 1 paras 1.12 and 1.13, the then future role envisaged for regulation 27.

Para 1.13

Those criteria identified were those that exist within the current regulation apart from two crucial changes. These changes allow the right of appeal against a decision under regulation 27 following the Moule, judgment but also seemingly remove the requirement for consideration of regulation 27 by a doctor approved by the Secretary of State.

From the above, it is clear that the intention was for regulation 27 to act as a safety net for those cases that did not fit easily into the main personal capability assessment (all work) test. The evaluation of the incapacity benefit medical test mentioned in Annex I, indicated that less than 5% of clients were found incapable of work via this route. This seems to indicate that the approach taken by regulation 27 was the correct one.

Tightening up or restricting?

Reference is made within the memorandum to the need for the regulation to be "tightly drawn" (Annex A para 13) and for there to be a danger of a wider or more inconsistent interpretation of the1995 regulation post Moule (Annex A para 14).

It is arguable that there is a need for a tightening up of regulation 27 to ensure that this does not make more work for commissioners through the appeal process. We are all in agreement that "sloppy law" should be avoided.

However, the proposed change to regulation 27 is not simply a tightening of the existing law. It seeks to remove the safety net for some clients. Paragraph 7 of Annex I indicates the number of clients benefiting from regulation 27 dropped to 2% following the 1997 amendment. There seems to be no justification for restricting the number of clients who satisfy this rule as earlier studies did not indicate any difficulties with the existing regulation. Examples were cited of cases where clients might have passed the main personal capability assessment test and therefore have no need of regulation 27. In addition this does not demonstrate the need for a further restriction of the test. It demonstrates regulation 27's usefulness as a safety net.

Basically, if the numbers who benefit from regulation 27 have always been small, there seems to be no point in further limiting them.

There are two arguments open to the Department for Work and Pensions. The first is that the current law is so badly drafted that it will substantially increase the numbers of successful regulation 27 clients. As in the past this regulation only helped 5% of clients, this seems unlikely. The second argument is that decision makers will make more favourable decisions because the current law does not require them to consult a doctor approved by the Secretary of State.

The use of a doctor approved by the Secretary of State

Annex D para 3 states:

"The effect of the (Moule) judgment was that the regulation had to be read as if the words "in the opinion of a doctor approved by the Secretary of State", were not there. This meant that it was for the adjudication officer (now the decision-maker) to decide if the regulation 27 conditions were satisfied on the basis of all the available evidence. Similarly on appeal, it was for the tribunal to make this decision. There was no longer a requirement in the regulation for there to be evidence from a doctor approved by the Secretary of State."

Whilst it is true that this wording no longer appears within the current regulation, it does state at the beginning that "A person who does not satisfy the personal capability assessment shall be treated as incapable of work if ." This provides for the main personal capability assessment test to be applied before regulation 27 comes into play. The only practical way that this can happen is via a medical examination performed by a doctor approved by the Secretary of State. Current guidance within "The Incapacity Benefit Handbook For Approved Doctors" confirms this in chapter 13 para 5:

"During a PCA examination if it becomes clear, even at the start, that a non-functional descriptor might apply, the assessment must continue until enough evidence is available for the Decision Maker to provide a functional assessment and score the client. The Regulations provide that the Decision Maker must make a determination on the PCA functional descriptors listed in the Schedule to the Incapacity for Work Regulations before considering the non-functional descriptors and may only do so then if the score is below the benefit threshold as defined by those Regulations."

Regulation 27 should be the last consideration following the consideration of all other aspects of the incapacity test. This inevitably means that it is considered as part of the medical carried out by an approved doctor. The decision-maker therefore, does have access to an approved doctor's opinion. The advantage to the current regulation is that if the client believes that regulation 27 does apply, he or she has a right of appeal against any unfavourable decision.

Regulation 27(b) - Currently affected client groups

One of the difficulties of identifying affected client groups is the fact that this is a regulation that acts as a safety net. Mr Howker, for example, had a heart condition. Other people with heart conditions might satisfy the personal capability assessment on the basis of points scored from satisfying the descriptors in a range of activities. He did not and instead, passed the test under regulation 27(b):

"he suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if he were found capable of work;"

The regulation would seem to apply to those who either might be made physically worse by going back to work (such as Mr Howker) and those whose mental health would suffer from the stress of returning to the workplace. There are two client groups who are particularly vulnerable in this case.

People undergoing rehabilitation following alcohol or drug abuse.

People attempting to combat alcohol or drug abuse, go through a number of recovery stages and are prone to relapse at any stage. Successful completion of any programme could be affected if a client fails the personal capability assessment. In the initial stage of recovery, it may be that a client would satisfy the main part of the test. However during later stages e.g. during placement in a halfway house, the client's only way of satisfying the test may be via the current regulation 27(b).

This client group would be more likely to relapse following the removal of regulation 27(b), which also functions as an important aid to recovery and eventual full time entry into the job market.

People with mental health disability

People with mental health disabilities are in a similar position in that recovery can also be in stages with a danger of relapse if the client is put under undue stress.

In Annex G para 1 of the proposals it is suggested that in the case of mental health that Regulation 10(2)(viii) of the Social Security (Incapacity for Work)(General) Regulations would apply in these cases.

"However there remains a separate provision in the exemption categories to cover people with a mental illness who may be at substantial risk. Regulation 10(2)(viii) of the Social Security (Incapacity for Work)(General) Regulations provides an exemption for people with "a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person's mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment"

It is true that guidance given in "The Incapacity Benefit Handbook For Approved Doctors" chapter 6 states:

"Where, as a result of their mental disease or disablement, the person's behaviour is so adversely affected that: their ability to function socially is severely restricted; or they are very likely to pose a real threat or danger to themselves or others (such as work colleagues or members of the public); then you should consider advising that they meet the severe mental illness criteria."

But chapter 6 also gives (non exhaustive) guidance on the type of client who may satisfy the severe mental health exemption criteria.

"For the purpose of advising whether the client's condition meets these criteria it will be necessary to consider the detailed manifestations of the disease and the care needs which arise. As a general rule, clients living outside of hospital who meet the legislative criteria are very likely to require ongoing psychiatric care. This care may include:

• sheltered residential facilities where the person receives regular medical or nursing care

• day care at least one day a week in a centre where qualified nursing care is available

• care at home with intervention, at least one day a week, by a qualified mental health care worker, or

• long term medication with anti-psychotic preparations including depot neuroleptic or mood modifying drugs or equivalent modern oral medication."

Not every person who has mental health disabilities will be receiving this type of care, but they may still fit the current criteria for regulation 27(b).

"Risk" and "Harm from work"

Annex I paragraph 8 suggests:

"Furthermore, since the mid-1990s, in clinical medicine, views about the 'risk' and 'harm' from work in relation to a number of potentially serious conditions has changed. There is accumulating evidence that resumption of normal activity, including work, may actually improve long term clinical outcomes for patients. Examples include: musculo-skeletal conditions, such as low back pain, where the overwhelming scientific evidence indicates that early resumption of normal activities, including a return to work, leads to faster recovery and fewer recurrences; and heart disease where an early return to work is now considered a key objective of cardiac rehabilitation for most people of working age and supportive of long term recovery."

Current government policy is geared towards providing "work for those who can work and support for those who can't". Any moves to provide support to help disabled people into work are to be welcomed, but amending regulation and forcing disabled people back to work prematurely is counter productive.

The correct approach should be to keep the current regulation because it protects particular client groups from the distress of a premature return to work (significantly these client groups are not cited in the examples in Annex I). They would then satisfy the personal capability assessment test and be well placed to take advantage of the current permitted work and work focused interview legislation, which acts as both a support and a stepping stone into employment.

Martin Inch

Rights Worker - Disability Alliance

April 2003

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