The right to try again
The government want to make work less risky. But they need a new plan for how to do it.
When I was a welfare rights adviser in a mental health charity, there was one question I always used to dread. ‘What would happen if I took the job?’.
The answer wasn’t always complicated. For many people, you can run a benefits calculation and show something concrete and reassuring.
But for anyone receiving PIP or the health element of Universal Credit, it’s a different story. My answer would run something like this:
It might not mean the DWP reassesses you. But they could always choose to. It depends on whether they think your health affects you as much as it did when you first claimed. If you do decide to take the job, I’d suggest being ready to explain how you’re planning to manage it with your condition and any adjustments that your employer is making. I can help you write that letter, if you like.
For someone whose job it was to make the system clearer, it was a rubbish answer.
But the part I’d really hate was the inevitable follow-up question. ‘If I do get reassessed, will it count against me that I’ve started working?’
It’s an entirely fair concern.
Trying to build your life back up around a mental health problem is not a linear process. The jump to work is often one of the scariest and uncertain bits. However much progress you might be making with getting out of the house or being around other people - it doesn’t compare to the immovable expectations that employment can place on us.
What my clients wanted to know is: will they be given any grace to see how things go? Or would the act of accepting the job mean leaving themselves open to the risk of ending up with no income at all if it fails? There was never a good answer to give.
Over three years, I don’t think I ever came across a PIP decision where someone with a mental health problem was working and didn’t have their award called into question as a result. That included people who could only manage 1-2 hours remote work a week, while being supported by a specialist mental health and employment service.
I didn’t want to discourage my clients from working. The whole point of my job was to get benefits problems out of the way, so that people could meet the goals they had for their own lives. I also didn’t want to make the system seem scarier or riskier than it is. But I couldn’t lie either. The best I could do is tell those clients that what they feared was a possibility, but that if they got an unfair decision, we’d be there to help.
Where the right to try regulations fall short
In April, the government brought forward regulations that aimed to tackle exactly this problem. Except, as many experts and campaigners have pointed out, the regulations don’t really do that. There are two main reasons why.
1. Work isn’t a reason to trigger a reassessment, except when it is
The changes work by clarifying that the act of taking up a job or a volunteering opportunity is not, in itself, a reason to trigger a reassessment for PIP or the health element of Universal Credit.
The caveat is an important one. These new rules preserve the discretion for DWP staff to initiate a reassessment if they believe that the kind of job someone has started isn’t consistent with their previous level of need. So starting work doesn’t automatically mean you’ll be reassessed, but it doesn’t mean you won’t be.
This is one of the examples the DWP gives in its new guidance for decision-makers:
Mark was awarded the standard rate mobility component of PIP due to their mental health and anxiety leading to the satisfaction of mobility descriptor 1d Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. Mark reports they have started work in a job that involves frequent business travel. The DM decides an award review will be instigated by this information
This seems to betray a real inability to tackle the reason why so many disabled people are scared to try work in the first place. The fear often comes from the fact that it is impossible to predict in advance how you will manage something that is new, unknown and almost certainly more strenuous than what’s come before.
From the perspective of the DWP, Mark is now doing something very inconsistent with his stated level of limitation. But the whole point is this is an experiment. Neither the DWP nor Mark knows if it will last a day, a month or work out in the long-term.
Two in five people receiving PIP have a mental health problem as their primary disabling condition. A huge number of them will find themselves in a situation like Mark’s. It might not be business travel but it could instead be someone with an anxiety disorder taking a leap and starting a job in a supermarket around lots of unfamiliar people. Or someone with bipolar disorder hoping that the next time their condition gets worse they’ve got the right help in place.
By preserving the ability to trigger a reassessment at the very start of this process, the government have failed to tackle the specific fear that animates this whole problem. It means they are continuing to ask disabled people to trust DWP decision-making in exactly the same way they were before.
2. What happens in the assessment itself is unchanged
The second limitation of these changes is that they don’t address what actually goes on in assessments. If you’ve recently started work and happen to be called in for a health assessment, the nature of the work you are doing could still be used against you.
In theory this shouldn’t automatically result in work penalising you. For example the PIP criteria looks at whether someone faces restrictions over a twelve month period rather than one snapshot in time. But the overwhelming experience of disabled people and advisers is that being in work often casts doubt over a claim, particularly for people with mental health problems, chronic pain and other ‘invisible’ impairments.
Earlier this year, experts in the Social Security Advisory Committee considered the regulations and concluded that they would need significant changes in order to properly meet their goal. The committee’s whole report is worth a read, but I’d highlight this bit in particular:
Where incentives to work and assessment processes are in tension, an intentional choice must be made. The Committee’s view is that, if the policy is to achieve its stated intent, the pro-employment objective must take precedence. This necessarily involves a limited policy trade off: for a short period (we suggest six months), some claimants may continue to receive benefit even where their circumstances have begun to change. Stakeholders expressed this directly: if the government genuinely wants disabled people and people with health conditions to try work, it must be willing to absorb a degree of risk and ensure people are not penalised for taking the steps it seeks to encourage.
Why we need government to be less risk-averse
Fixing these regulations means taking seriously the level of distrust of the system which is the starting point for so many people with long-term health conditions.
For many of my clients, years of having to challenge inaccurate PIP decisions, seeing their payments stop without explanation or being caught up in labyrinthine and seemingly unforgiving rules, all combined to create the perception that the system is there to catch them out. Some of this is outside of the DWP’s direct control. Whether it’s being sent around the houses by mental health services or facing aggressive debt collection for missing a council tax payment, there are countless ways in which being stuck in service land can leave you with a justified instinct not to trust how you’ll be treated by people in positions of power.
What this means is that any ambiguity or nuance in the protection these regulations provide, can quickly become a gaping hole to be filled by people’s understandable and longstanding fear and anxiety about the benefits system. The way the regulations are currently designed relies on disabled people’s trust that the rules will operate in good faith. What’s needed instead is a watertight commitment that the usual rules won’t apply. That if someone starts work, whatever happens, there will be a protected period of time where they are left alone.
I’m not usually in the habit of agreeing with Fraser Nelson’s views on social security but I think he’s absolutely right when he set out what this would need to look like. A message from DWP, with a reference number unique to you, which confirms that if you start work you will not be reassessed for a specific period of time. Reassurance that you can bank on if you don’t trust the system to act in the way that it says it will.
This isn’t an inherently radical idea. But it means primary legislation. It means making policy that’s not confined by the current frameworks which have been in place for more than ten years. And it means asking parliament to accept that if we want a social security system that doesn’t penalise people for moving forward with their lives, then the price is that some people may receive payments for a few months after their health improves.
That requires bold and creative policymaking in service of fixing a whole problem and not just part of it.