Michael O’Sullivan

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DEPARTMENT FOR WORK AND PENSIONS

RESPONSE TO REGULATION 28 PREVENTION OF FUTURE
DEATHS REPORT ON MICHAEL BRENDAN O’SULLIVAN

Introduction

1.

This report fulfils the Department for Work and Pensions’ (DWP) duty to respond
to a Prevention of Future Death report made under the Coroner's (Investigations)
Regulations 2013. The request for the report has arisen following an inquest on 7
January 2014, into the death of Mr Michael Brendan O'Sullivan. Mr O'Sullivan
was a former claimant of long-term sickness benefits, who took his own life on 24
September 2013.

. The Department has a number of safeguards for Employment and Support

Allowance claimants with mental health problems. This includes a clear policy
that further medical evidence in cases where claimants report suicidal ideation in
their claim forms which regrettably was not followed in this case. We will issue a
reminder to staff about the relevant guidance.

. The report is structured in three parts. The first describes the current system for

assessing entitlement to Employment and Support Allowance including provisions
for people with mental health problems. The second part explains what happened
in Mr O’Sullivan’s case. The final part describes what systems the Department
has in place to continuously improve the assessment of people with mental health
problems.

How the system works
4. Employment and Support Allowance (ESA) is a benefit paid to people of working

age who have limited capability for work. It was introduced in 2008 in place of
incapacity benefit and certain other benefits paid on the ground of incapacity and
severe disablement. ESA is designed on the principle that whole groups of
people with health conditions or disabilities should not be written off as being
incapable of work on the basis of a diagnosis because of the costs of long-term
inactivity to individuals and society. Research shows that worklessness is

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associated with poorer physical and mental health and wellbeing,' while returning
to work is associated with improvements in heatth.?

5. Akey feature of ESA is the Work Capability Assessment, or WCA. The WCA
emerged from a process of review of the previous assessment for Incapacity
‘Benefit, the Personal Capability Assessment (“PCA”), and refinement of the
emergent assessment. -

6. In 2006, DWP published ‘Transformation of the Personal Capability Assessment:
Report of the Physical Function and Mental Health Technical Working Groups’

” (September 2006), which reviewed the effectiveness of the PCA. The report
recommended a revised set of physical and mental functional criteria that were “a
fairer, more accurate, more robust assessment of entitlement to benefit”, a
revised self-assessment questionnaire and a review of the process of gathering
medical evidence.

7. In particular, the report proposed “an extensively revised mental function
assessment, to address a current gap in assessment of cognitive and intellectual
function, in conditions such as learning disability, autistic spectrum disorder, and
acquired brain injury’. It also proposed “a new scoring system for mental function,
which addresses a bias in the current PCA against people with mental health
problem (sic), as opposed to limitation of physical function”’. This entailed adding
elements to assess a person's ability to learn and apply understanding and their
interpersonal skills, These elements were lacking in the PCA but are central to
assessing the capability to work of people with a learning disability or autistic
spectrum disorder.

8. The new assessment, the WCA, responded to the recommendations of technical
working groups, made up of leading experts in occupational and mental heaith,
amongst others. From the outset, the WCA was also developed with the input of a
consultation group consisting of representatives from disability organisations
including Mind, Mencap, Sane, the National Autistic Society and Rethink.

9. Incontrast to the PCA, the WCA was designed to be an assessment of an
individuat’s functional ability, focusing on what they could do, rather than what
they could not. The assessment is not intended to be a measure of employability,
but simply to measure how the claimant's ability to function is affected by their
condition or disabilities.

ey

1 Waddel G and Burton K (2006) Is work good for your health and wall-being? London:TSO.

2 WicManus S at al (2012) National study of work-search and wellbeing. DWP Research Report 810.

3 Transformation of the Personal Capability Assessment, a report of the Physica! Function and Mental
Health Technical Working Groups, commissioned by the DWP (2006) at p. 3

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10. As well as basing the new WCA on the findings of the technical working group
that assessed the PCA, the DWP continued to keep the assessment under expert
review to ensure that it was fulfilling its Purpose, namely accurately and
consistently assessing people to the appropriate level of benefit. A DWP-led
review of the assessment, which engaged with both independent experts and
specialist disability groups, led to a report and addendum in March 2010*. The
review found that generally the WCA was accurately identifying individuals for
benefit, but it also made recommendations for improvements, including
simplifying the language, making greater provision for those awaiting
chemotherapy, widening the criteria for support in relation to people’s mental
function, and taking greater account of people’s adaptation to their disability or
health condition. These recommendations were taken forward in the Employment
and Support Allowance (Amendment) Regulations 2011 which were laid before
Parliament on 10 February 2011 and came into force in March 2011.

Legal framework for ESA

11.Section 1 of the Welfare Reform Act 2007 sets out the conditions a claimant must
meet in order to be entitled to ESA. There are a number of conditions which must
be met, including financial conditions. However, the primary condition is that the
claimant must have “limited capability for work". Section 1(4) sets out that a
person has “limited capability for work’ if their capability for work is limited by their
physical or mental condition, and the limitation is such that it is not reasonable to
require them to work. . a

12. Sections 8 and 9 of the Welfare Reform Act set out the legislative framework for
the assessment to determine whether a claimant has limited capability for work
(section 8) or limited capability for work related activity (section 9) The ESA
Regulations 2008 (S.1 2008/794) set out the scheme of assessment in more detail
in regulations 19 to 39. The Regulations are made by statutory instrument and
any changes must be approved by Parliament.

Claimant groups
13. The WCA allows three groups of people to be distinguished:

¢ those who would be capable of work in spite of any health problems. This
group is commonly called ‘fit for work’

* those who with additional support could eventually return to work (the Work-
Related Activity Group)

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e those with the greatest impairments or disablements who would not be able to
work (the Support Group) *

14. The Support Group comprises claimants whose conditions mean that they have
limited capability for both work and work-related activity (.CWRA) as measured
against descriptors® set out in Schedule 3 to the ESA Regulations. These are
claimants who are most seriously affected by their disabilities or conditions and
they are not expected to do anything to receive their benefit (regulation 34).
However they can engage in work-related activity on a voluntary basis if they
wish.

15. The Work Related Activity Group (WRAG) comprises those claimants whose
conditions mean that they have limited capability for worl {LCW), as measured
against descriptors contained in Schedule 2 to the ESA Regulations, and it is
considered that they should be able to return to the work place in due course.

16. The descriptors are functional descriptors and each carries a score. A claimant
must score at least 15 points — either against a single descriptor or by scoring
against multiple descriptors where points are added together — to meet the criteria
for limited capability for work and be placed in the WRAG (regulation 19). These
claimants are generally expected to engage in work-related activity in order to
receive their benefit. The claimant is also given a prognosis which reflects the
length of time the DWP believes it will take the claimant to be ready for a return to
the labour market.

17.Claimants in both groups are periodically reassessed to determine whether their
functional capability has changed for the better or worse since the previous
assessment. In addition, from October 2010, all claimants entitled to Incapacity
Benefit, Severe Disablement Allowance or Income Support on the ground of
incapacity for work are being reassessed to see whether the award qualifies for
conversion for ESA.

18. The key point is that the WCA is more sophisticated than previous systems of
assessment, more tailored to identifying the particular needs of the individual, in
particular the impact of mental health conditions, learning disabilities and autistic
spectrum disorder.

The process for applying for ESA

19. For those making a new claim for ESA, an application is made using form ESA1.
This collects information of the claimant's personal details, details of the
claimant's iliness or disability, including the name and contact details for their

J htto:/Avww legislation.gov.uk/ukds/201 3/9780111531877/contents
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doctor, and claimants are asked to Provide a copy of their medical statement if it
is required in their circumstances. This information can be provided over the
phone.

20. When a claim is accepted, the claimant enters what is known as the “assessment
phase’ which is intended to end no later than thirteen weeks after the claim
begins or the date on which a determination as to LCW or LCWRA is made. Itis
during this assessment phase that the WCA process takes place.

21. Once it is determined that the claimant meets all the basic criteria for ESA, such
as right to reside in the United Kingdom and any financial conditions, then the
award of ESA is made and payment begins.

22.In a case where a claimant entitled to IB, severe disablement allowance or
income support on disability grounds is reassessed on to ESA®, no new claim is
required but the claimant goes through a WCA in the same way as a new
claimant, as detailed below but no medical statement is required.

Assessment process

23. The DWP makes a referral to its medical services provider, which is currently
Atos Healthcare. The referral includes, in the case of a new claim, the diagnosis
from the medical statement and other relevant information. In a case where ESA
or IB has been paid previously, the referral includes such relevant information in
respect of the previous decisions as is still held on file. The case is transferred to
Atos by means of an IT platform, the ‘Medical Services Referral System’ (MSRS),
which holds the relevant case details and information about the claimant's
medical condition. Where the claimant has a MHP, a ‘flag’ is added to signpost
that fact.

24. At its heart, a very simple process is used to assess the claimant which usually
follows the following steps:

i) A questionnaire, the ESASO, is issued by Atos Healthcare to claimants,
requesting them to provide further information about their disabilities and
health conditions, with particular reference to how these affect their ability to
function. Claimants have 28 days in which to return this form.

ii) When the ESAS50 is returned, a healthcare professional employed by Atos
Healthcare will review the file and all documents held, to decide whether
further medical evidence should be obtained. They will also determine
whether the claimant should be catled for a face-to-face assessment or
whether LCW or LCWRA can be decided on the basis of the information

® Some 1.5 million People who have previously qualified for these benefits began to be reassessed for
ESA from April 2011.

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already provided. The majority of claimants will be called for a face-to-face
assessment and this is conducted by an Atos healthcare professional.

iii) The Atos healthcare professional will make a report of their finding, either
following the review or after the face-to-face assessment, and the file will be
returned to DWP.

iv) A DWP Decision Maker will review the file and make the final determination on
whether the claimant has LCW or LCWRA or is considered “fit for work”.

v) The claimant can request that the decision be reconsidered (by a different
Decision Maker) or can appeal the decision if applicable.

Further medical evidence

25. In every case, healthcare professionals have to consider the information and
evidence available to them on the system, determine whether further evidence is
required (including the need for further medical evidence (FME) and/or a face-to-
face assessment) and then provide reasoned advice to a DWP decision maker on
the functional limitations imposed by a claimant's illness or disability. In doing so,
they follow the guidelines set out in the ‘Training & Development ESA Filework
Guidelines’ (Version 9, 24 May 2013).

26. These guidelines are prepared by Atos, and are then quality assured and signed
off by the DWP medical team. They are subject to annual review and refreshed
with updates agreed with the DWP during the course of the year. Updated
versions are published on the Atos intranet for HCPs to access.

27. The Guidelines state that :

“Where, in the scrutinising practitioner's judgement, there is a clear possibility that
an examination may be avoided they should make reasonable attempts to seek
further evidence.” (p14)

28. In other words, it is already the case that FME should be obtained where it is
likely to make a face-to-face assessment unnecessary. The Guidelines also make
clear that:

“EME should always be requested before calling for assessment a claimant
who is noted to have an appointee.

Where there is evidence of a previous suicide attempt, suicidal ideation or
self-harm expressed in the ESASO/ESASOA, the HCP must request FME.

(p15)"

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Making a decision a decision on entitlement

29. The Welfare Reform Act 2007, which introduced ESA provides that the decision
on entitlement to benefit must be made by the Secretary of State. This is a power
that cannot be delegated to anyone else and under the Carltona’ principle such
decisions are made by DWP Decision Makers.

30. Decision Makers review the papers in the case file, including the healthcare
professional's report and any other medical evidence that may have been
obtained or provided and will then apply the legal tests as set out in primary and
secondary legislation and interpreted by the case law in order to come to a
decision. Decision Makers are civil servants, employed by the DWP and trained
to made decisions on benefits in accordance with the law. The independent
reviewer of the WCA has suggested that “it is inappropriate for Decision Makers
to have detailed medical training but it is Prudent to provide a foundation level of
knowledge on the impact that most common conditions (such as mental health)
are likely to have”®

3

=

-A decision that a claimant does not have LCW or LCWRA is colloquially referred
to as a decision that the claimant is ‘fit for work’. However, what this actually
means is that the claimant does not meet the functional descriptors set out in the
ESA Regulations for LCW or LCWRA. It does not represent a finding on whether
of not the claimant is employable or whether the claimant will be able to find work.

32. It is a common misconception that the role of the healthcare professional is to
make the decision on benefit entitlement. It has always been the case, in relation
to every benefit where an assessment was required, that the final decision on
benefit entitlement is taken by a DWP Decision Maker, acting on behalf of the
Secretary of State for Work and Pensions. The role of the healthcare
professional is to provide specialist medical advice on how the diagnosis (if there
is one) affects the claimant's ability to perform certain functions.

33. If a claimant is found fit for work, then the payment of the ESA basic rate is
terminated. Before this occurs however, the DWP Decision Maker will make up
to two attempts to make telephone contact with the claimant to explain the
decision and ask if the claimant has additional information that ought to be taken
into account.

34. If the claimant is placed in either the WRAG or the Support Group they will
receive a back payment of the component to which they are entitled, payable

TA principle that permits civil servants to act as the Secretary of State. The principle was recognised by the
courts in Carltona v Commissioner of Works [1943] 2 All ER 560

u httpsi//www..dov.uk/aovernment/publications/work-capability-assessment-independent-review-year-4,
p70.

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from the fourteenth week of their claim and going forward they will receive the
basic rate plus the additional component.

Appealing a decision

35. Any claimant who is either unsuccessful in their application for ESA, or who
believes that they should have been placed in the Support Group rather than the
WRAG is entitled to make an appeal against that decision to an independent
Tribunal Service. The Tribunal Service is a part of HMCTS and appeals against a
Decision Maker's determination are made to the First-tier Tribunal (Social
Entitlement Chamber). The First-tier Tribunal consists of a judge and a medical
representative. It is a free to access service, funded from the public purse..

36. The right to appeal such decisions is a fundamental part of the social security
administration process in the United Kingdom and is enshrined in primary
legislation®.

Safeguards for claimants with mental health problems

37.A number of safeguards were built into the Work Capability Assessment (WCA)
from the outset, and we have introduced further improvements to ensure the
process deals with potentially vulnerable people fairly and accurately. However, it
must be acknowledged that assessing risk in a disability assessment setting is
likely to be inaccurate, given evidence from clinical risk assessments. For
example, according to the Royal College of Psychiatrists Clinical risk assessments
are relatively poor predictors of suicide because it is a multi-factorial issue.

38. Only one health condition related to the claim is recorded in the administrative
system used for ESA claims. Figures for the caseload of ESA claimants to August
2013 show that mental and behavioural disorders were the most common heaith
problem among ESA claimants (46%) followed by musculoskeletal problems
(13%)."°

Adjustments to process

39. If someone with a mental health problem does not return their ESASO within the
four week period their case is still considered by Atos Healthcare, instead of
being returned to DWP for a Decision Maker to consider whether the benefit
should be terminated, ‘as is usually the case.

® Social Security Act 1998, sections 12 to 15

10 Employment and Support Allowance Caseload (Thousands): IB ICD (disease) summary code by
Gender of claimant, August 2013. DWP, Information Governance and Security, Work and Pensions
Longitudinal Study, http://tabulation-

fool.dwp.gov.uk/1 O0ps/esa/icdapsummyecsex/a_carate_¢ icdapsumm_¢ ccsex_augi3,htm!

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40. Claimants who cannot manage their own affairs are entitled and encouraged to
allow someone they trust — an appointee — to manage their affairs and contact the
DWP on their behalf.

41, Where Atos informs a DWP Decision Maker that a claimant has failed to attend a
face-to-face assessment the Decision Maker will normally proceed to take a
decision on entitlement, after giving the claimant an opportunity to explain why
they failed to attend (known as establishing good cause). However, where the
claimant is known to have a mental health problem he or she may be considered
“vulnerable” and, if so, attempts will be made to contact the claimant by telephone
and, if appropriate, to arrange a “safeguarding home visit” before a decision on
entitlement is made.

42. There are also several means available to claimants via DWP to help them
complete the paperwork needed for an ESA claim, particularly the ESASO,
including: transcription services, either on the telephone or face-to-face; audio
versions of the forms; and online versions of the forms which are compatible with
accessibility computer software.

Collection of further evidence

43.As described at paragraph 28, the policy is that further medical evidence should
be requested in every case where a claimant reports suicidal thoughts. Data for
October 2012 show that, where a Paper-based assessment was made of the
claim, without meeting the claimant face to face, further medical evidence was
requested for around 27 per cent of all new ESA claims and 42 per cent of IB
reassessment claims. Data for October to December 2011, show that further,
where medical evidence was requested, it was eventually provided only in around
71 per cent of cases overall. Moreover, even when FME was provided upon
request, it was provided within the requested two-week period only in some 37
per cent of cases"!

Substantial risk provisions

44. There is provision in the ESA regulations for claimants to be placed in the WRAG
or Support Group where there is evidence that there would be substantial risk to
the physical or mental health of any person if they were found fit for work.

45. These provisions, in Regulations 29(2)(b) and 35(2)(b) of the ESA Regulations,
broadly reflect measures in the previous Personal Capability Assessment for IB
and act as a safety net for certain vulnerable claimants. The provisions are

"' Please note that these data are taken from Atos Healthcare Management Information and have not been quality
assured to Official Statistics publication standard. They should be approached with that in mind,

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intended to cater, on a discretionary basis, for a limited number of claimants
whose conditions or incapacity cannot be measured by a functional assessment.
They are expected apply in exceptional circumstances where, for example,
among those claimant who might be placed in the WRAG no workplace
adjustments or other interventions, such as medication, could be put in place to
significantly reduce the risk of harm.

Training for healthcare professionals

46. As the risk of suicide is never easy to predict, we are committed to ensuring that
all HCPs undertaking assessments are suitably trained and we have been
working to continually enhance the training that HCPs receive in this area. We
have worked with expert Psychiatrists to develop guidance for HCPs on
assessing suicidal risk. An initial trial of the guidance proved positive and we are
now looking to roll it out nationally.

Monitoring issues

47. Data on cause of death are not routinely collected In the benefit system as only
information on the fact of death is required for benefit administration. This means
that it is not possible to measure whether the rate of suicide among those who
have applied for ESA is higher than might be expected in a similar population
where mental health problems are prevalent.

48. Nonetheless, the Department takes its responsibilities to ensure the protection of
claimants at increased risk of harm very seriously. In the unfortunate event that
we are notified that claimant has committed suicide following a WCA, we will
carry out a full investigation to see what lessons can be !earned. This will allow us
to make appropriate changes where required.

Action if an individual has suicidal or self harm plans

49. For Decision Makers and other DWP staff who work with claimants, the
Department has a six-point plan for managing suicide and self harm declarations
from customers where the ideas are expressed face-to-face or over the phone. In
the event, the staff member should:

1 Take the statement seriously — remain calm and listen carefully
2 Summon a colleague - to act as a support partner
3 Gather information - to gauge level of risk

4 Provide referral advice — if situation is non-urgent, e.g. general distress but no
immediate plans or means to attempt suicide or self harm

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5 Summon Emergency help — if customer is distressed, at serious risk or in
immediate danger

6 Review — discuss incident with line manager and record

Mr O’Sullivan’s case

50. Mr O'Sullivan had anxiety and depression. He had been a recipient of income
support (IS) on grounds of disability since July 2000. On 30 March 2012, he was
Notified that the conversion phase had begun for him to see whether he would
qualify for ESA.

Decision on conversion

51.He attended a face-to-face assessment on 17 August 2012. The opinion of the
healthcare professional in their report was that Mr O'Sullivan did not meet any
descriptors dealing with Limited Capability for Work. On 13 September, the
decision maker decided that Mr O'Sullivan's IS award did not qualify for
conversion to ESA and the award was stopped from 18 October 2012.

52. Mr O'Sullivan than appealed to DWP on the approved form on the ground that he
felt the questionnaire did not deal with his problems so he could not express
himself. The decision of 13 September was reconsidered by a DWP Decision
Maker on 28 November 2012 but not revised.

Re-application

53. Mr O'Sullivan then made a new claim for ESA in November 2012. He completed
an ESAS5O0 (claimant questionnaire) which said he was being investigated by his
Community Mental Health Team, and within which he expressed suicidal
thoughts. However, further medical evidence was not requested in line with the
Stated policy (outlined at paragraph 28) where the claimant has referred to
suicidal ideation.

54.He attended a second face-to-face assessment on 13 March 2013. On 26 March
2013 Decision Maker decided he did not have limited capability for work.

55. Mr O'Sullivan subsequently claimed Jobseekers Allowance from March 2013, for
around six months without sanction before he, unfortunately, took his own life in
September 2013.

56. The fact that he did not incur any sanctions during this period means that he was
maintaining his obligations under the Jobseeker’s Agreement to be both available
for and actively seeking employment on a weekly basis.

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Refining the system

57. Formulating, developing and reforming any benefit system will always be an
extremely challenging process. The welfare system for those who are long-term
sick in the UK is of considerable scale; we spend around 13.3bn annually on
sickness benefit payments.” There are currently around 1.8m claimants of ESA
and some 100,000 assessments are conducted each month. While the
Department Is committed to continuously improving processes for this group
wherever possible, with such a large numbers of people involved in this system
there will inevitably be instances where processes are not conducted in line with
the stated policy.

58.To ensure that the process itself is as efficient and accessible as possible, the
DWP engages with external stakeholders when revising aspects of the WCA,
such as some of the forms used by applicants. An example of this is the ESASO;
the claimant questionnaire completed by individuals making an application for
ESA (referred to in paragraph 52 above). This was designed with input from
technical working groups including Mencap, Forward ME, Arthritis Care and the
National Autistic Society. Every effort was made to ensure the form has a
properly structured series of questions which guide a claimant to provide a full
explanation of how their illness or disability affects them.

independent Reviews of the WCA

59. The UK Government's determination to implement a non-discriminatory system
which facilitates as full and effective participation in society as possible led to it
statutorily committing to independently review the WCA annually for the first five
years of its operation. Section 10 of the Welfare Reform Act 2007 states the “[t]he
Secretary of State shall lay before Parliament an independent report on the
operation of the assessments under section 8 and 9 [limited capability for work
and limited capability for work-related activity] annually for the first 5 years after
those sections come into force”.

60. The annual independent review engages with stakeholder groups of all kinds as
well as individuals who wish to participate. For each review there is a ‘call for
evidence’ where anybody is able to submit evidence to the Independent Reviewer
to be considered as part of their latest report. All review materials are issued in
accessible formats such as Braille, British Sign Language and audio.

61.The review process, and in particular the evidence gathering process, is a robust
practice. It involves a call for evidence, stakeholder meetings and seminars, visits

12 Health at Work — an independent review of sickness absence, 2011.
https:/www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 181060/health-at-
work.pdf

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to Benefit Delivery Centres where claims are processed and Decision Makers
consider cases (including unannounced visits), interviews with managers and
Decision Makers about changes already underway, dialogue with DWP ministers
and senior officials, visits to Atos assessment centres and a training centre,
access to Atos management information and ongoing dialogue with Tribunal
judges and private providers charged with delivering the Government's Work
Programme. .

62. The first such review of this kind found that generally the WCA was accurately
identifying individuals for their entitlement to benefit but it also made
recommendations where improvements to the assessment could be made.
Recommendations from the reviews to date have included simplifying much of the
language used throughout the assessment process, making greater provision for
individuals awaiting chemotherapy treatment and widening the criteria for support
in relation to people's mental function. The Government has implemented, or is in
the process of implementing, over 50 recommendations from the first three
reviews. The fourth independent review was published in December 2013, and
the Department has accepted or accepted with certain caveats all but one of the
82 that fall within it scope.

63. Already this practice of review and refinement has yielded quantifiable changes

for those going through the WCA process to assess entitlement to ESA. For
instance, the proportion of claimants with mental health conditions who are
awarded ESA has been increasing. Shortly after ESA was introduced 33% of
people claiming with a mental health condition were successful in their application
where as latest statistics published in July 2013 show this figure has risen to
44%,"

64. More information on the Independent Reviews can be found here:

Year 1— hitps:/Awww.gov.uk/aovernment/publications/work-capability-
assessment-independent-review-year-1

Year 2— https:/Avww.qov.uk/government/publications/work-capability-
assessment-independent-review-year-2

Year 3—- https:/www.qov.ul/government/publications/work-capability-
assessment-independent-review-year-3

Year 4—- https:/www.qov.uk/government/publications/work-capability-
assessment-independent-review-year-4

a
"3 Source: https:/Awww.cov.uk/aovernment/pubiications/employment-and-support-allowance-work-
capability-assessment-outcomes-by-physical-and-mental-health-condition and

https:/ .GOV.uk/government/publicatio loyment-and-su Ul i

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reassessments-of-incapacity-benefits-july-2019

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Evidence Based Review (EBR)

65. The Independent Review process is not the only mechanism for assessing and
evaluating the impact and effectiveness of the WCA. In line with DWP’s emphasis
on evidence-based policy making, commitment to monitoring and adjustments to
the implementation programmes where necessary, ESA is routinely the subject of
analysis and research.

66. The Department has recently undertaken a systematic study — Evidence Based
Review of the WCA — to examine in detail how the WCA descriptors compared
with alternative assessment proposals that were developed by a group of
disability representative organisations, including leading mental health charities."*

67.The study emerged from a recommendation in the second independent review of
the WGA. It found that, overall, the WCA is a valid assessment relative to expert
opinion about an individual's fitness for work. As a result of the findings, the
Department is considering how to make practical improvements to assessment,
particularly the style of face-to-face discussions and exploration of fluctuation in
health conditions.'® The Government has also committed to seeing whether
improvements could be made the assessment process in light of the study
findings.

Collection of Further Medical Evidence

68. It has been routinely suggested that DWP should obtain medical reports for
individuals with a mental illness, learning disability or related condition who are
beginning the WCA process.

69. This is currently the subject of litigation and we are therefore limited in what we
can say on the issue. The Upper Tribunal has considered the question of whether
the DWP should obtain further medical evidence for all ESA claimants with a
mental health condition in an on-going judicial review case. In their interim
judgment dated 22 May 2013, the Upper Tribunal found that, at this stage, it
would not be reasonable to make such a change.

70.This issue of further medical evidence has also been considered as part of the
independent review process. The distinction drawn between the respective
functions of HCPs and GPs is a key element of the policy intent behind the WCA,
and is supported by the British Medical Association. In its response to Professor
Harrington’s call for evidence for his third independent review, the BMA said:

GOV. if
assessment-independent-review-year-4. See chapter 3.

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“Work Capability Assessments are carried out by health care
professionals working directly for Atos Healthcare who are trained
Specifically to undertake this type of work. The claimant’s GP also has
a specific role in the process, to provide a factual report based on
information contained within the patient’s medical record. It is not,
however, the GP's role to provide any opinion on the patient’s capability
to work as part of this process. It is vital that these two roles are kept
Separate and that GPs are not asked to provide opinion on their patient
for the purpose of receiving the Employment and Support Allowance
(ESA); doing so could damage the doctor-patient relationship. It is also
important to note that the majority of General Practitioners do not
possess the correct training or knowledge in disability assessment
medicine or in occupational medicine to be able to make such
judgments; this is why specific health care professionals are trained by
Atos to undertake these assessments."

71.We, of course, remain committed to keeping our processes for collecting further
evidence under constant review and to improving these processes where
possible. It remains important to retain a balance between the added value of
further evidence in any claim for ESA and time demands on GPs and other
healthcare professionals.

72. As the information we have set out shows, the WCA process is under continual
review and development. The mechanisms for refining the assessment approach
include an Independent Review Process and specific pieces of research to study
how the assessment is working. This demonstrates the Government's recognition
that the process should evolve as we learn lessons.

73. We have noted the issues in this case and will continue to monitor our policies
around assessment of people with mental health problems while we await the
outcome of related litigation (discussed at Paragraph 68). We will also issue a
reminder to staff about the guidance related to suicidal ideation that has been
described in this report.

ne
*® BMA letter to Professor Harrington, 7 September 2012

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