DWP has made changes as the current rule ‘may not provide claimants with sufficient reassurance’
The Department for Work and Pensions (DWP) has fully endorsed five proposed amendments to the Right to Try legislation, while a sixth recommendation has been ‘partially accepted’. Officials acknowledged that the new regulations may not have provided claimants with ‘sufficient reassurance’.
The Right to Try represents fresh legislation enabling disabled individuals receiving Universal Credit, Personal Independence Payments and Employment and Support Allowance to attempt employment without risking an automatic reassessment. The Social Security Advisory Committee put forward five changes to the legislation for the DWP to implement.
Six month protection
The Secretary of State will be prohibited from triggering a reassessment of the benefit claim for a minimum of six months following a claimant commencing paid or voluntary employment, unless fraud is suspected or circumstances unrelated to work have changed.
Any evidence suggesting a claimant possesses functional capacity based on their work activities or workplace performance throughout this protected timeframe will not be considered alone as proof of sustained capability during any assessment or reassessment.
The DWP accepted this recommendation, though DWP minister Pat McFadden highlighted in the response: “I have asked officials to undertake work urgently to assess how this change could be delivered within my existing powers via secondary legislation. However, implementing this change in full across all benefits would likely require primary legislation, and the Department will need time to review and assess its policy and delivery implications before the policy detail is finalised.”
Leaving work
The Committee urged the Department to revise its guidance surrounding sanctions and conditionality decisions, so that stepping away from employment or voluntary work for health-related reasons within the protected period would be recognised as a ‘good reason’.
It pressed: “This guidance should also address claimants with fluctuating conditions, dual Universal Credit (UC)/ESA and PIP claimants, and UC claimants without limited capability for work (LCW) or limited capability for work-related activity (LCWRA) whose work attempts later prove unsustainable because of their health due to a deterioration in health or the unsustainability of the role.”
While the DWP accepted this recommendation, it acknowledged that further consideration was needed regarding “how and when” to implement it in practice.
Communications
The Committee pressed the DWP to guarantee its communications, regulations and guidance surrounding the new framework are clear and consistent to prevent claimants being “inadvertently misled”. The DWP acknowledged this point, recognising it is “essential” for Right to Try to succeed.
Guarantee package
The Department was instructed to consult with claimants, organisations and advisers to establish what comprehensive guarantee package would give people adequate confidence that they won’t be disadvantaged by attempting to work.
The DWP accepted this recommendation but noted: “The Department will continue engaging with stakeholders and has already been doing so through the Collaboration Committee. However, ministers must ultimately determine the direction of this policy.”
Guidance for assessors
The Committee called on the DWP to “immediately” publish guidance for assessment providers clarifying that a claimant showing functional capacity in a workplace should not be considered evidence of sustained and reliable capability for PIP or WCA purposes during the initial six months.
The Department partially accepted this recommendation with the minister explaining: “I agree to undertake work to examine how to best protect entitlement for claimants during their first 6 months of work, but require more time before guaranteeing when or how this can be operationalised.”
Responding to the four accepted changes, committee chair Dr Stephen Brien stated: “I am pleased to note that you have accepted four out of the Committee’s five recommendations, with the remaining one partially accepted. While recognising that some aspects of our recommendations will take time to fully implement, I regard your response as a positive step forward in achieving greater alignment with your stated policy intent of giving clearer reassurance to claimants with disabilities or health conditions who wish to explore work without fear of a reassessment or award review. I look forward to receiving updates from the Department as further progress is made.”
DWP secretary Pat McFadden replied, according to Birmingham Live: “I would like to thank you for setting out the Committee’s concerns in your subsequent letter. I recognise the Committee’s view that fear of reassessment continues to present a significant barrier to work. I understand the Committee concluded that, in its view, the Right to Try regulations as drafted may not provide claimants with sufficient reassurance.
“Your recommendations therefore focus on strengthening protections, so claimants are not disadvantaged when taking steps towards work, including volunteering. I agree with the direction of the recommendations and set out below the approach that the Department will adopt in taking them forward.”
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