Incapacity for Work
A person is incapable of work within the meaning of the National Insurance Act 1946, Section 11(2)(a)(ii) if, having regard to his age, education, experience, state of health and other personal factors, there is no work or type of work which he can be reasonably expected to do. By āworkā in this connection we mean remunerative work, that is to say, work whether part-time or whole time for which an employer would be willing to pay , or work as a self-employed person in some gainful occupation. (R(S)11/51, para 5)
This statement comes from the leading case law on the interpretation of āincapacity for workā in the disability benefits system in the UK from the 1950s until the 1990s. The statement comes from the decision on an appeal to the then National Insurance Commissioners , from a woman, Mrs E,1 who had claimed Sickness Benefit and been refused. Mrs Eās case was important because it recognised the social element in assessing whether someone was āincapable of workā. The stress on āage, education, experience ā¦ and other personal factorsā as well as āstate of healthā recognised that it is not possible to make a purely medical assessment of a personās capacity for work. This is in marked contrast to assessments for Employment and Support Allowance today, which rely on a rigid medical assessment of claimantsā functional capacities to do such things as carrying a carton full of liquid or pressing a button on a telephone keypad. More than sixty years after Mrs Eās appeal, relentless changes to the UK social security system have made it more difficult for people with health issues or impairments to qualify for support. From the introduction of āobjective medical testsā under Incapacity Benefit in the 1990s to work-related conditionality in Employment and Support Allowance in recent years, these changes have been designed to reduce the number of people eligible for benefit and have made the act of claiming more humiliating and stressful. Incapacity benefit claimants have joined the ranks of the untrustworthy poor: people who must be managed and coerced into the labour market . While the current discourse of scroungers and hard-working families is questioned by radical, critical and academic writers, the history of people attempting to claim incapacity benefits is often lost.
The book explores how the definition of incapacity for work and mechanisms for social control of benefit claimants has changed over a hundred years, starting with the UKās first national insurance Sickness Benefits in 1911. While the political history of disability benefits has been well documented, this book takes a different approach, seeking to understand the interaction between legislative change, policy implementation and front-line decision making on incapacity for work. Valverde asks socio-legal scholars to look at both the ātechnicalā legal interpretation of law and the āsocialā (2009, p. 154). In this book, I look at both the legislation and case law on the development of the meaning of incapacity for work over a hundred years but also how that worked when viewed through a sociological lens. At every stage, the debate about incapacity benefits has been located within assumptions about disability, gender and the meaning of work, using mechanisms of social control to regulate the lives of claimants. In this introduction, I will look at these concepts and I will explain the sources used for this book. First of all, it is useful to return to the case of Mrs E.
Sweeping the Path: The Case of Mrs E
One morning in early November 1950 Mrs E was sweeping the path outside her house. Mrs E was a married woman in her late forties who had worked in factories in her youth and then as a paid carer. During the Second World War, she returned to factory work until a heart condition and problems with her leg led her to claim Sickness Benefit. That November, a sick visitor, employed by the new Ministry of National Insurance, visited her house and spotted her sweeping the path. The sick visitor reported Mrs E as fit for work. She was referred for a medical examination, and her benefit was stopped. Mrs E appealed to a local tribunal, which agreed that she was fit for work, and then to the National Insurance Commissioners. Mrs Eās case was important for its interpretation of incapacity for work but also because her story illustrates a number of issues which I will return to throughout the book. The interpretation of incapacity for work in 1951 reflected debates about how to assess peopleās eligibility for incapacity benefits since the introduction of the first UK state Sickness Benefit under the 1911 National Insurance Act. Within six months of the first payments from the 1911 scheme an inquiry was launched into āexcessive claims ā (NHIJC 1914). The inquiry investigated these excessive claims, concerns that people might be cheating, worries about the status of doctorsā certificates, what to do about people who may be working while claiming benefits, how to treat unpaid work , fears about creating dependency on benefits, how to check whether people were making sufficient effort to return to the labour market, the extent to which disability could, or should, exempt some people from looking for work, what kinds of work people should be expected to do. In 1914, policy makers were particularly troubled by womenās claims for incapacity benefits. Married women , such as Mrs E forty years later, were subjected to particular scrutiny regarding their unpaid domestic work in the home. In the early twentieth century, people could be refused benefit or sanctioned if their health issues were related to alcohol or perceived immoral sexual behaviour. Although some of the more clearly gendered and moralistic assumptions may have changed in a hundred years, many of the concerns raised in 1914 are still important today.
When I began the research for this book, I knew that R(S)11/51 would be important in understanding the post-war development of incapacity benefits. My research led me to the National Archives in London and to case files for some of the early post-war Commissionersā decisions. Here, I found the papers for R(S)11/51, discovered Mrs Eās name and saw that her story had wider significance (case files in PIN 62/1354 and CT11/43).2 The archive files contain copies of the original medical certificate signed by Mrs Eās doctor, evidence submitted by the National Insurance Office, Mrs Eās original letter of appeal, the decision of the lower level tribunal and the final Commissionersā decision. The papers relating to Mrs Eās appeal are an example of what Robinson has described as the physicality of archives: āthe shock of archival discovery comes with an intense jolt of recognition ā whether it be a handwritten note, a lost photograph or a peculiarly fitting factā (Robinson 2010, p. 514). These additional papers told me more about this important case than the written judgement by the Commissioners reveals. Mrs E was a married woman whose benefit had been stopped because she had been observed doing housework. The local decision makers considered housework to be work for the purposes of Sickness Benefits, therefore excluding her from benefit and reflecting policy makersā concerns going back to 1911. The Commissioners in R(S)11/51 disagreed, marking an important turning point in assessing married womenās claims for benefit. Furthermore, Mrs Eās benefit was stopped after a sick visitor spotted her sweeping the path, an example of the role of sick visitors in carrying out surveillance of benefit claimants. The case file also includes Mrs Eās own evidence, which helps to show how she understood the definition of incapacity and explains why she was sweeping the path āThe place was so dirty for shameās sake I was putting water on the path and was in the act of sweeping off when the sick visitor cameā. The archive file provided me with a crucial document that led me to understand the meaning of decision makersā obsession with housework. The submission from the local office argued that claims by married women should be treated differently from claims by men or single women because married women were not really in the labour market. This explained how the whole debate about married women and housework both in the early twentieth century and into the post-war period had little to do with capacity for work as such. The debate was about attachment to the labour market. If married women were able to do housework, this was evidence that they were housewives rather than workers. The Commissioners in R(S)11/51 disagreed with this interpretation of the law but that was not the end of it. Mrs Eās case had a considerable impact on decision making and policy in the early 1950s. It led to volumes of discussion within the Ministry of National Insurance about how to deal with married women, how to police their claims effectively without carrying out a āwitch huntā. It led to a surveillance exercise intensifying the role of the sick visitor service to check up on womenās housework (for more discussion of married women and housework, see Chapter 6 and of surveillance by sick visitors, see Chapter 9). Mrs Eās case was also important in showing the connections between the 1946 National Insurance Scheme and the old 1911 National Insurance Scheme. The post-war Beveridgean National Insurance Scheme is usually considered to be break from the past but there are references in this case to appeal hearings from the early twentieth century. The decision refers to a case from 1919, concerning a man with a spinal injury who could no longer work as a butcher and an appeal from 1921, concerning a womanās capacity for housework (R(S)11/51, para 7). One of the Commissioners in 1951 was Archibald Safford, who had also acted as an adjudicator for appeals under the old National Insurance Scheme. R(S)11/51 was pivotal, both in establishing the case law on incapacity benefits from the 1950s until the 1990s, but also in looking back to the ideas and debates from the 1911 Sickness Benefit scheme. It also confirmed that work meant paid work and that it was necessary to consider whether an employer would be likely to be willing to pay the person to do...