Failed Work Capability Assessments
posted: 28/10/2010
Tests for the new sickness and incapacity benefit called Employment Support Allowance are wrongly failing people with HIV. The tests, called the Work Capability Assessments, fail to recognise that HIV can prevent and limited people from working, says new research by NAT (National AIDS Trust).
Appeal - 40% Win
The Department of Work and Pensions has revealed that almost 40% of the people who appeal these decisions win. That is a dreadful rate of expensive administrative failure.
NAT’s report Unseen disability, Unmet needs – A review of the impact of Work Capability Assessment on people living with HIV sets out the problems. These start with the design of the assessment test and how it is used in practice.
- For example, the test does not properly allow for illnesses and conditions where symptoms come and go, where fatigue, side-effects of HIV treatment and depression affect our ability to work.
- People going through the medical examination may not have the chance to talk about how HIV affects their physical and mental health in ways that limit the ability to work.
- NAT‘s research finds that continuing ignorance about HIV among the medical assessors and decision makers drastically reduces the likelihood of a fair and accurate assessment and decision about people with HIV’s ability to work and need for sickness and disability-related benefits.
Deborah Jack, Chief Executive of NAT, says:
‘HIV is a disability, and like many other disabilities, people living with HIV can have vastly varying experiences relating to their condition. Whilst some find they can still work, many others find the impact of HIV or their treatment means employment is not an option at the moment and they need to claim disability related benefits.
‘As it currently stands, the WCA is based on an outdated model of disability which only recognises a narrow medically defined set of physical and mental impairments. Also, it does not appropriately acknowledge the fluctuating nature of the condition and the impact that low self esteem due to HIV related stigma can have on a person’s ability to work.
‘NAT has submitted our ongoing concerns to the Independent Review of WCA, lead by Professor Malcolm Harrington, and hopes these will fully considered before any new rules are finalised and come into effect.’
Key findings
• The test ignores key HIV clinical markers, such as CD4 count, in the medical assessment
• WCA decision makers often pay more attention to the company contracted to do the medical assessment than to the person’s own HIV clinician and GP, who know the patient and their needs much better
• A wide range of problems with administration and communication of the tests harm the health and well-being of people with HIV through stress, delays and pressure.
Tim’s tale
Tim is a young man who applied for Employment and Support Allowance (ESA) with the help of his aunt and an HIV specialist benefits adviser. At the time of completing his ESA50 form, Tim’s CD4 count was 19. Medical evidence from his doctor explained that at the time of diagnosis, Tim had a CD4 count of 0 and PCP, a form of pneumonia associated with a low CD4 count.
Despite providing information about his blood test results, these were not discussed during the medical examination. The record of the examination contradicted itself by saying that Tim experienced ‘no side-effects’ but then noted that he had diarrhoea as a side effect of his medication. He was not given any points for his incontinence.
Tim was found fit for work. His doctor submitted further medical evidence but the case still ended up at appeal. Tim’s adviser said that, “on the day, we won that appeal, without me having to say a word or even sit down...The judge looked up and said, “oh – ESA successful, he’s in the support group, that’s not a problem”.’
Tim is now in the support group of ESA.
Grace's grievances
Grace had a CD4 count of 40 when she was refused ESA. She claimed Job Seeker’s Allowance and attended the jobcentre for help to find work, where she was placed in a job as a cleaner. Grace became sick after only a couple of hours work, owing to her compromised immune system. She was ill for a fortnight.
Her HIV-specialist benefits adviser said, ‘me and the social worker went ballistic at her when we found out [that Grace had gone to work] but she said “I wanted to try because I don’t want to claim”. We said “we know darling, but you’re too knackered, so don’t”.’
The adviser took Grace’s case to appeal, and was successful. Grace is now in the support group.
About the tests - the Work Capability Assessment (WCA)
The Work Capability Assessment (WCA) is the medical test used to decide whether a person is eligible for Employment and Support Allowance (ESA). The WCA aims to identify claimants who have ‘limited capacity for work’ or ‘limited capacity for work-related activity’, so that they may receive the right amount of financial and employment advice support to help them live and (where appropriate) return to work. Those who are found ‘fit for work’ are refused ESA. They can then appeal and claim Job Seekers Allowance instead. 40% of people who appeal WCA test decisions win their appeals.
The WCA test contains a series of questions, called ‘descriptors’, which relate to physical and mental functions, and each awards some points. You need to get enough points to get ESA.
The report
NAT’s report Unseen disability, Unmet needs – A review of the impact of Work Capability Assessment on people living with HIV
In October 2008, Employment and Support Allowance (ESA) started to replace Incapacity Benefit and Incapacity-based Income Support as the main benefit for people who are unable to work due to disability or illness. Everyone now on Incapacity Benefit will have to go through the new ESA WCA tests, starting in 2011.
George House Trust helped with this report.
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