Weighing up the bag of potatoes test: tribunals and Incapacity Benefit
Gulland, Jacqueline Claire
In April 1995, a new social security benefit was introduced. It required the Benefits Agency to decide whether a claimant was capable of doing such things as lifting a 2.5kg bag of potatoes, putting on a hat, or walking sideways down stairs (ICB Regs 6(1)(b) Schedule, descriptors 8(d), 9(b), 2(e)). Incapacity Benefit replaced the old Invalidity and Sickness Benefits. It differed from Invalidity Benefit in several important ways. It was: • paid at a lower rate than Invalidity Benefit; • taxable; • payable at its highest rate after 52 weeks, rather than 26; and • assessed by a medical test (the `all work test') which looked at the claimant's ability to do certain functional tasks, rather than at an overall assessment of the claimant's ability to do a real job in the real world. The change which is of most interest is the new method of assessment. The new 'all work test' for Incapacity Benefit introduced a set of apparently rigid rules which would define who was and who was not incapable of work. The criteria ('descriptors') which attracted the most initial attention were the apparently absurd ones such as those involving bags of potatoes. The rest of the test might have been less open to satire, but critics were also concerned that people would be unfairly disqualified from benefit because of the rigidity of the test. Particular concern was expressed over those people `at the margins' who would be refused the benefit but who were clearly unable to work. Chapter 3 discusses the all work test. Details of the test are in Appendix 1. The Government made it clear that the purpose of introducing Incapacity Benefit was to cut the number of payments made. 220,000 people were expected to have their benefit stopped in the first two years. A further 55,000 new claimants (who would probably have qualified for the old Invalidity Benefit) were expected to be refused the new benefit by April 1997. The Government claimed that the abolition of Invalidity Benefit was necessary to curb the rising number of payments to people it considered to be fit for work. The rise in numbers of payments was not disputed, but Government explanations for this rise were questioned by a number of researchers. Chapter 2 discusses the policy background to the legislation. The controversy surrounding Incapacity Benefit makes it a particularly interesting subject to study. The questions that were raised by the new benefit suggested that it would be useful to find out how the all work test was working in practice, after a year of operation, and what was happening to people who `failed' the test - mostly former recipients of Invalidity Benefit - and were found fit for work. One way of addressing these questions was to look at the appeals made by people who were found fit for work under the new test. Those who are refused benefit have a right to appeal to a Social Security Appeal Tribunal. Given the Government prediction that large numbers of people would fail the test, 140,000 appeals were expected during the first year. Incapacity Benefit offered an opportunity for a case study on how Social Security Appeal Tribunals deal with a piece of new legislation, as well as offering a window on how the implementation was working in practice. Aims and objectives My purpose in this research was to look for evidence from appeal hearings on Incapacity Benefit which might shed light on three issues: • procedures for assessing claimants under the all work test • the operation of tribunals in assessing appeals under the all work test • the suitability of the all work test in assessing incapacity for work. Procedures The assessment for Incapacity Benefit had three new and controversial features: • the all work questionnaire • the role of the claimant's GP • the medical examination. For full details of the assessment procedure, see Appendix 2. The information gathered by these procedures was to be the basis for decisions by adjudication officers, and the primary source of evidence for tribunals. If there were going to be problems in the implementation of Incapacity Benefit, then these were likely to be the key areas of difficulty. Although cases which reach Social Security Appeal Tribunals are not necessarily typical of all claims which are refused, the cases which came before the tribunals would give some indication of the success and failures of the assessment process. Tribunals Social Security Appeal Tribunals hearing Incapacity Benefit appeals were faced with a very different set of criteria from those used for Invalidity Benefit. They were expected to apply a more rigid test with considerably less room for discretion or the application of common sense (Bonner 1995). Procedurally the tribunals were different from other Social Security Appeal Tribunals because they included a medical assessor, whose role had not been clarified at the time of introduction of the new system. Research on other social security benefits has shown that an appellant's chance of winning his or her appeal is greatly enhanced if she or he has a skilled representative. An appellant who is not present at her or his hearing has even less chance of success. The experiences of appellants with and without representatives, and of those who were and were not present at their hearings would provide evidence about how tribunals were approaching Incapacity Benefit appeals. The success rate of appeals would also tell us something about the effectiveness of the assessment procedures. It is often suggested that a high success rate implies that initial decision making is faulty. However, this is not necessarily the case and there may be other explanations. The all work test Finally, I hoped that the experience of tribunals would shed some light on the effectiveness of the all work test - the cornerstone of the new benefit - in its stated purpose of assessing incapacity for work. Research questions Using the evidence obtained from observing tribunals, and interviewing participants, I hoped to consider the following questions: Procedures Do cases which reach tribunal hearings highlight any particular problems with the questionnaire, the Benefits Agency Medical Service (BAMS) examination, or the role of the claimant's General Practitioner? Do the problems suggest any changes in the procedure for assessment? Tribunals How do tribunals apply the new rules? What happens to absent appellants? What difference do representatives make? What happens to unrepresented appellants? What is the role of medical assessor? What is the overall success rate of appeals? If the success rate is high, is there an explanation? The all work test Does the evidence from the cases observed suggest that the all work test is an effective measure of incapacity for work? How do the various participants in the process view the usefulness of the all work test? The research project focused on a qualitative study of a small number of appeal hearings, followed by interviews with some of the participants in the process. Chapter 4 describes the method.