Monday, 23 February 2015

Long term incapacity: A Singular Lack of Transparency

On Monday more islanders who are on long-term incapacity allowance will be required to look for work. This is an allowance paid weekly to those whose lives are impaired by a physical or mental condition.

Currently, anyone having “30 per cent or below loss of capacity” is designated as suitable to work, but on Monday the level will be raised to include those having “35 percent or below loss of capacity”. The aim is to encourage more Islanders into work, particularly those also on Income Support.

The press release, entitled “New rule for long term incapacity allowance” is published on the States website. It notes that:

“LTIA is a health-related benefit which is based on the individual’s mental or physical condition. It does not assess their ability to work and many people receiving this benefit are already working.”

“The proportion of people who only receive LTIA, but who still work, is three times greater than the proportion of people who are working and receiving both that allowance and Income Support.”

“The people who are affected by the change are being contacted by Back to Work and will be offered appropriate training and support to look for work.”

But there are unanswered questions about this change. For instance, who decided it? Was it the Social Security Minister herself? Did she consult those who assess long term incapacity allowance, such as doctors? How did they respond? Was it more of a political decision than a medical one?

A sample of the form is available on the department website, and covers a wide range of medical conditions, some physical, some mental. I notice that one of the physical ones – “I cannot stand for more than 30 minutes without the support of another person” would almost apply to me! Although I would phrase it differently - I cannot stand for more than 30 minutes without having to sit down or suffer increasingly acute back pain. Fortunately my work is sedentary. But it illustrates a matter I will return to: the kind of work you can do depends upon your capacity.

The mental incapacity part of the form does say “complete this form yourself or with help from someone who knows you, such as a family member, carer or support worker” which I think should in fact say “or with help or by someone who knows you” as the person concerned may not be in a state to complete any form with help, only for another person to complete it on their behalf.

Somehow or other these details, and an assessment by a doctor, goes into a black box, and out of it emerges, among other things, a percentage relating to the loss capacity for work. There is no detail of how this rather occult process works.

This contrasts, for instance, with California, which has guidelines on assessing this in detail. In the preamble, it notes that:

“In determining the percentage of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market.”

“A rating can range from 0% to 100%. Zero percent signifies no reduction of ability to compete in an open labor market while 100% represents legal total disability. Total disability does not mean that the employee cannot work, but rather represents a level of disability at which an employee would not normally be expected to be able to successfully compete in an open labor market. Permanent partial disability is represented by ratings between 0% and 100%.”

It also explains that:

“Two distinct systems are used to describe a disabling condition - the objective/subjective index and the work capacity index. Either or both indexes may be used to describe a particular condition, and each, when used, yields its own disability rating . When both are used, the index producing the higher rating is used.”

“The objective/subjective index is a composite of objective and subjective factors. Objective factors are physical losses or losses in function that are directly measurable. Typical examples would be amputations or reduced range of motion of a joint. The Schedule provides standard ratings for many impairments, frequently at their most disabling extremes. Subjective factors are those which are not directly observable or measurable, the most common being the disabling effects of pain. Pain is characterized in terms of body part affected, intensity, frequency, and activity giving rise to the pain. Typical examples are constant slight pain in the back or moderate pain in the elbow on heavy lifting.”

And goes on to explain the other index:

“The work capacity index characterizes limitation in relative rather than absolute terms. That is, the disabling condition is described in terms of a percentage loss of pre-injury capacity for the specific individual. A typical example of work capacity limitation would be a "loss of approximately one-quarter of (the injured worker's) pre-injury capacity for lifting."

And there are detailed guidelines for determining his, with a summary as follows:

“Two different sets of work capacity guidelines have been devised to correspond with large functional systems of the body. The Spine and Torso Guidelines apply to injuries of the neck, back, pelvis, abdomen, heart, chest, and lungs. The Lower Extremity Guidelines apply to hip, leg and foot injuries”

“After the occupational variant is found, the standard rating is modified for occupation by reference to tables found in Section 5 of the Schedule. Find the standard rating in the column entitled "Standard Rating Percent" and read across the table to the column with the letter reflecting the appropriate occupational variant.”

So there are a lot of factors involved in these assessments, and the one advantage the California system has over the Jersey one is that it is not occult, in the meaning of the word as “hidden”. It is transparent, and explains exactly how it works, how doctors and other professionals assess a condition. Jersey is completely lacking in transparency. California, for example, notes that:

“The Schedule creates an arrangement of disabilities and values which stand in relationship to one another. It provides the structure necessary to assign a standard to a non-scheduled disability according to its seriousness. For example, "a leg disability requiring the injured worker to sit for approximately 3 hours of the work day" would be a disability that falls midway between two scheduled disabilities, "Disability Precluding Prolonged Weight-bearing" (20%) and "Disability Resulting in a Limitation of Weight-bearing to Half Time" (40%) and would be assigned a 30% standard.

In fact, although it is detailed in schedules and guidelines to follow, it also gives examples of injury which cause incapacity, for example:

“A 43 year old grocery checker sustains an injury to the major elbow resulting in inability to do repetitive gripping with the hand.”

Repetitive strain injuries can impact on the ability of an individual to use a keyboard efficiently, for instance with touch-typing, and I know of an individual who in fact suffered from this severely. That may also impact on grip, as with the grocery worker shown, which in turn restricts the capability of the individual to undertake many kinds of work, even if they do not suffer other forms of disability.

Now what work someone can do will be restricted by their incapacity. A British Columbia report from 2013 gives an example:

“An orthopedic unit nurse and a nurse case manager both suffer a spine injury that limits their lifting to no more than 25 pounds. The impact on each of these nurses would be significantly different. The orthopedic nurse would be unable to perform her pre-injury occupation because her work demands are very physical in nature including heavy lifting related to patient handling. On the other hand, the Case Manager work is sedentary in terms of physical demands so likely she would be able to perform her pre-injury occupation".

If the kind of work the individual is capable of is not taken into account then the percentage incapacity on a purely medical basis will vary, and of course, the incapacity, while not restricting an individual from working, may well limit the employment opportunities available to them.

What really would be helpful, but what we probably won’t get, is the types of incapacity in that 5% gap between 30 per cent or below loss of capacity and 35 per cent or below loss of capacity. We have no examples of the kind of people whom this will effect, or the kinds of work they will now be expected to look for. Will “appropriate training and support to look for work” also take into account appropriate work?

What it appears from the terse press release is that a number of individuals will receive communications telling them to contact the department, to look about finding employment.

And we are not told how tactful that communication may be, and how much the entire press release is trading on the idea that the Minister is targeting those lazy work-shy people who claim incapacity but would be perfectly capable of working.

A tactless communication could cause considerable stress, and a sample of the kind of letter sent would at least be reassuring. Letters sent by social security in the past have not always been models of tact and diplomacy, and seem to have been penned by people who have lost sight of the fact that there are human beings at the other end of their sometimes threatening missives.

The impression coming forward in the media it that this more an exercise to save money than to benefit those people who might like to work, but can’t. The 2% blanket cuts requited from departments may well have prompted this sudden change more than any medical consultations.

If it was genuine, then surely it should be brought in tandem with the disability components of the discrimination law. That this is preceding that, and unconnected with it, suggests budgets rather than welfare are the driving force, as with proposed prescription charges.

Faced with saving money, the Minister decides that a change in percentage incapacity can claw back some funds. There has not, as far as I am aware, been any public consultation, because that would cause delay, take time, and the Medium Term Financial Plan is pressing.


rico sorda said...

This is a ministerial decision and hence no vote is required in the states and we don't get to see how our representatives would have voted. Deputy Pinel is a nodding dog Minister. In place because she will question nothing. This has caused distress to certain members of the public.

TonyTheProf said...

Actually, Rico, I've not been able to trace the Ministerial decision, just the press release.

James said...

There is an elephant in the room here. The fact that Jersey has no legislation like the UK's Disability Discrimination Act, which requires the employer to make "reasonable adjustments" for staff, means that local employers have no incentive to take on staff with long-term conditions. In the circumstances, raising the level from 30% to 35% may simply mean harrying a few more people to attend interviews at which the employer will refuse to take them on because they have a long-term condition...

TonyTheProf said...

Precisely my point - changes should have taken place in tandem with a component for disability in the discrimination law, which I think is not due until 2016.

rico sorda said...

So its not even a ministerial decision? Good posting Tony. Unbelievable really. This is only the beginning. Hanging will be passed before the end of the year. This lot are out of control.