Memorandum submitted by Child Poverty
Action Group
1. CPAG is a national charity working for
the eradication of child and family poverty in the UK. We seek
to initiate or change national policies on financial support for
families by parliamentary lobbying and networking with other organisations.
CPAG also provides an expert information and advocacy service
on all aspects of tax credits and social security law. Our particular
area of focus is on the administration of the welfare benefits
system.
2. CPAG produces the "Migration and
Social Security Handbook", which sets out the legal framework
of benefit entitlement to migrants. We also regularly provide
training on Immigration Status and Social Security to advice agencies,
solicitors and local authority staff.
3. CPAG has produced three books exploring
the link between ethnicity and poverty. "Passport to Benefit"
was published in 1985 and focused on how Black people in Britain
were particularly hard hit by unemployment and low wages, yet
their access and rights to benefits was also jeopardised by racism
in the social security system. The book examines the connection
between immigration law and the welfare state. It showed how this
link leads to racism in service delivery. The result is that Black
people are treated as second-class claimants because of inflexible
attitudes towards other cultures. In particular by the lack of
translated materials.
4. In the early 1990s "Poverty in Black
and White" considered the different forms of disadvantage
experienced by minority ethnic groups. Again it was found that
the social security system was failing to protect Black and minority
ethnic communities and in particular women. The system failed
structurally, in that its greater reliance on means testing disadvantaged
Black and minority ethnic claimants. It failed administratively,
often creating barriers rather than routes to entitlement. These
failures were exacerbated by rules explicitly restricting access
to benefits for people who have come from abroad through residence
tests, the public funds test and sponsorship rules.
5. In 2002 "Parallel Lives" explored
the extent to which particular minority groups lead a parallel
existence, to that of the population as a whole, through greater
rates of poverty and deprivation. It identifies the ways in which
past discrimination and disadvantage has affected the current
welfare of minority groups.
6. Our work in this area indicates that
even in the 21st Century poverty, high unemployment, deprivation,
low pay, poor health, inadequate housing and lack of educational
opportunities continue to be a reality for Black and minority
ethnic people. This presents real barriers to race equality and
social cohesion. The social security system has an important role
to play in tackling these issues yet the Social Security system
itself discriminates on racial grounds both directly and indirectly.
7. In Britain today the chances of poverty
vary enormously according to ethnicity. For example, according
to the DWP's Households Below Average Income 1999-2000 nearly
three-quarters of Bangladeshi children were living in families
in the bottom fifth of the income distribution compared to a quarter
of white children.
8. The population profile of Black and minority
ethnic families is much younger than that of the indigenous population[1]
and this is particularly so with Pakistani and Bangladeshi groups.
Those who are younger are less likely to have built up National
Insurance contributions and consequently are more reliant on means
tested benefits.
9. Black and minority ethnic claimants may
be more likely to be excluded from contributory benefits because
the system militates against those who have irregular earnings,
absence abroad or who have not worked in the UK all of their working
lives. Higher levels of unemployment also leads to greater use
of the benefit system and means tested benefits.Yet means testing
brings with it more stringent policing and claimants often find
this to be a humiliating experience.
10. A major problem with means tested benefits
is low take-up. Official estimates do not include ethnic origin,
but there is evidence that people from minority ethnic groups
are less likely to take up their entitlement. One study suggested
that perceptions of benefits were strongly influenced by culture
and religion, with negative perceptions leading to under-claiming
and delayed claims.
11. CPAG believes that many Black and minority
ethnic claimants are discriminated against both in the provision
and administration of the benefit system. We therefore welcome
any moves by the Government to ensure that Black and minority
ethnic claimants receive services free from any form of discrimination.
We recognise that the Race Relations Amendment Act has been an
important first step in seeking to overcome this. However, whilst
benefit rules continue to discriminate against Black and minority
ethnic people it is unlikely that service delivery can or will
improve.
12. Our Major Concerns:
— Social Security Provisions
— The National Insurance Number Requirement
— The Habitual Residence Test
— Backdating of Benefit for Refugees
— Contact between Home Office and DWP
— Provision of Information
— Lack of Presenting Officers at Tribunals
13. Social Security Provisions—
Over the past 10 years numerous legislative changes have severely
restricted the rights to social security of non British Citizens.
The rules also impact on British citizens and people who are settled
in the UK. It is inevitable that these changes have a disproportionate
effect on Black and ethnic minority people. It is not unlawful
under the Race Relations Act for social security provisions to
discriminate against Black and minority ethnic claimants. However,
to remove people from the benefit system, on the basis of nationality
sends a highly racialised message about entitlement and eligibility.
We believe that this leads to a culture where people are wrongly
advised about entitlement and are subject to a much more intrusive
level of investigation than other claimants. That this therefore
acts to discourage people who are perceived as being non-British
from claiming regardless of their status. Furthermore we believe
that the complexity of the benefit system combined with the focus
on excluding non-British claimants from the benefit system has
lead to an increase in the numbers of claimants who are wrongly
refused benefit.
14. The National Insurance Number Requirement—
In order to claim most social security benefits it is now necessary
to satisfy the National Insurance Number requirement, also known
as the NINO requirement. This was introduced by Section 19 of
the Social Security Administration (Fraud) Act 1997 which amended
section 1 of the Social Security Administration Act 1992. Section
1(1A) was inserted and provides as follows:
"No person whose entitlement to any benefit
depends on his making a claim shall be entitled to the benefit
unless subsection (1B) below is satisfied in relation both to
the person making the claim and to any other person in respect
of whom he is claiming benefit."
Subsection (1B) sets out the conditions for
satisfying the requirement as:
(a) the claim is accompanied by—
(i) a statement of the person's National
Insurance Number and information or evidence establishing that
the number has been allocation to the person; or
(ii) information or evidence enabling
the National Insurance Number that has been allocated to the person
to be ascertained; or
(b) the person makes an application for
a National Insurance Number to be allocated to him which is accompanied
by information or evidence enabling such a number to be so allocated"
A failure to satisfy the NINO requirement will
result in a refusal of benefit. This requirement applies both
to the claimant and any person for whom you are claiming benefit,
although not for any child or young person that you are claiming
for. The claim has to be made at the local social security office
on Form CA5400 and it must be accompanied by sufficient documentary
evidence of identity.
Despite apparently neutral criteria, the NINO
requirement appears to have had a disproportionate effect on Black
and minority ethnic claimants. In our experience benefit authority
staff, appear in practice to work to a set list of documents that
will be accepted in terms of establishing identity and a failure
to provide these documents will result in a refusal of a NINO.
Many Black and minority ethnic claimants are unable to produce
these documents yet reasonable alternatives are often rejected.
Of particular concern is the situation where
couples have different immigration status. A person who is defined
as a person subject to immigration control under section 115(9)
of the Immigration and Asylum Act 1999 is not usually entitled
to any means tested or non-contributory benefits. This applies
even if they are married to a British citizen. Should such a couple
make a claim for income support the regulations only allow benefit
to be paid at the single persons rate. Effectively paying only
the British citizen. However, the British citizen must still ensure
that their partner complies with the NINO requirement or benefit
is refused for the British citizen.
In one case referred to us a British citizen
with five children married a "person subject to immigration
control". She was in receipt of housing benefit but her housing
benefit ceased. She was told that in order for her HB to continue
her husband must provide a NINO. However, the DWP would not allocate
a NINO to the husband because they would only accept a birth certificate
as evidence of identity. Yet this was lodged with the home office.
Further problems arise where an asylum seeker
receives a positive decision on their asylum claim. Support under
the National Asylum Support Service continues for 28 days after
notification. However, delays in allocating National Insurance
Numbers means that it can take much longer than this for the person
to qualify for benefit.
In all cases that we are aware of, when challenged
with judicial review the DWP have conceded and awarded a NINO.
This casts doubt on the quality of decision-making regarding National
Insurance Numbers. Our concern is for the many claimants who do
not get adequate advice on this issue and simply accept the decision.
A refusal to allocate a National Insurance Number, of course,
not only affects the ability to claim benefit but it also effectively
prevents them from working.
16. Habitual Residence Test—
The habitual residence test is a good example of how the exercise
of discretion can often lead to discrimination. It has been said
that
". . . the subjective nature of the habitual
residence test has created the space for prejudices to flourish.
The result is the unfair treatment of Black and ethnic minorities
in obtaining benefit which can only harm race relations in this
country."[2]
No official figures are kept on the ethnic background
of those refused benefit under the habitual residence test. Yet
evidence shows that Black and Asian claimants, many of whom are
British citizens are failing the test.[3]
Because the test is applied to people who have travelled abroad
it will inevitably impact disproportionately on people with roots
and family connections overseas and who therefore travel abroad
more frequently and may spend longer periods abroad.
17. Backdating of Benefit for Refugees—The
majority of asylum seekers are no longer eligible for any social
security benefits. However, once an asylum seeker has been granted
refugee status certain benefits allow for a claim to be backdated
to the date of the claim for asylum. However, the claim for benefit
must be made within 28 days of the person being notified of the
decision on asylum. We have received complaints regarding the
way in which benefit authority staff respond to such requests.
Frequently they are not aware of this provision and on many occasions
they refuse to allow the individual to make the claim for backdating.
This means that there is no formal decision against which the
person can appeal. Other claimants have complained that when helped
by benefit authority staff to complete a claim form due to language
difficulties the officer has refused to put this on the claim
form. The explanation given, wrongly, that this type of backdating
is no longer possible.
A decision on a claim for asylum can take many
years for the Home Office to process therefore considerable sums
of money are at stake.
18. Contact Between Home Office and
DWP—The problem of proving identity often arises because
documentation is lodged with the Home Office. The DWP will invariably
insist that they will only accept confirmation from the Home Office
of a person's status and yet they refuse to make any checks with
the Home Office. In such cases the individual has no way of proving
their identity to the satisfaction of the DWP. In our view the
burden on such cases is on the Secretary of State to show that
a person is ineligible for benefit yet it is clear that unless
the claimant is able to obtain some confirmation from the Home
Office that benefit will not be paid. Again it is often the case
that the claimant will not get as far as making a formal claim
because they will simply be turned away. By contrast it is our
experience that where an asylum seeker who is in receipt of benefit
is refused asylum, the Home Office is spectacularly speedy in
terms of notifying the DWP, often even before the individual themselves
has been notified of the decision on their immigration status.
19. Interpreters—Where a claimant
does not speak English they will often experience problems in
respect of benefit claims. It is, in our experience, very rare
for interpretation services to be provided and it is not unusual
for family members such as children to be used as interpreters.
It is important that professional interpreters are made available
in the main minority ethnic languages of the community. It is
also essential that there are no delays in providing interpreters
because this again puts Black and minority ethnic claimants at
a disadvantage.
20. Provision of Information—We
are aware that many DWP leaflets are now available in languages
other than English. However, in order for these to be effective
it is important that they are distributed widely to organisations
and venues where they will be utilised. We are also aware that
for some groups it may be better to provide information other
than in written form. This could be for example by producing a
video, dubbed into appropriate languages, which could then be
used by local community groups or religious leaders. However,
in our view claimants whose first language is not English suffer
disadvantage at all stages of the benefit system. Not only may
they be unaware of their rights but also of their responsibilities.
We believe therefore that all claim forms should include a question
asking which language the claimant wishes to deal in. Subsequent
correspondence should then be written in the claimant's language.
We understand that this is already the case with some housing
benefit and council tax benefit literature.
21. Cultural Issues—In our
view there needs to be a greater understanding and recognition
of cultural issues and how these could impact on benefit claims.
For example access to some contributory benefits such as retirement
pension or bereavement benefit depends upon the marital status
of the claimant. An increase in benefit will not be paid if there
is doubt as to the legitimacy of the marriage. For those who have
been married or divorced under UK law there is usually no difficulty
in proving their status. However, where the person was married
or divorced abroad there are often great difficulties. In particular
documents are often dismissed as likely to be forged. Supporting
evidence given by senior figures in the community, such as local
politicians or religious leaders, is often dismissed on the basis
that the statement is likely to be untrue. It is most unlikely
that the same would be said for example of a British MP or Vicar.
Black and ethnic minority claimants also face problems in that
they may need to travel abroad because of family responsibilities.
This can lead to problems satisfying residence tests.
22. Presenting Officers at Tribunal—It
is now common practice that the DWP does not send presenting officers
to attend appeal tribunal hearings. It has been stated on many
occasions that the role of the presenting officer is that of amicus
curiae. As such the presenting officer has a duty to assist the
tribunal and to ensure that the tribunal has the opportunity to
consider the whole of the available evidence and issues. Where
a presenting officer does not attend a claimant is put at a disadvantage
because the tribunal have to spend time doing the work that the
presenting officer should. Therefore there is less time for the
tribunal to consider the facts of a case. The failure to provide
presenting officers to all tribunals should be seen as a failing
on the part of the DWP but this is particularly important for
Black and minority ethnic families where English is not the first
language.
RECOMMENDATIONS
— CPAG considers that there should
be a review of social security legislation to eliminate any form
of racial discrimination. A similar exercise was conducted following
the introduction of EC Directive 79/7 on the equal treatment of
men and women in social security.
— Social security benefits should be
provided on the basis of need not nationality.
— A joint working group should be established
to consider reform of both the substantive and procedural law.
— Benefit authorities should concentrate
on encouraging take up of benefit in the Black and minority ethnic
communities rather than an over policing of these groups.
— All claim forms should include a
question on all claim forms asking which language the claimant
wishes to deal in. Subsequent correspondence should then be written
in the claimant's language.
— Ethnic monitoring should be undertaken
in respect of the habitual residence test. If that data reveals
that the discrimination that we outline above is still prevalent
the HRT should be reviewed.
— Consideration should be given to
disseminating information on benefits in ways other than written
form—for example video tapes in appropriate languages.
— All benefit authority staff should
be provided with training on cultural diversity focusing on how
this impacts on the administration of benefits.
— Interpreters should be offered to
all claimants as a matter of course. Benefit authority staff and
children of the claimant should not be used as interpreters.
— Presenting officers should be provided
for all tribunals.
Pamela Fitzgerald
30 April 2003
1 Parallel Lives, CPAG 2002. Back
2
Failing the Test-NACAB Report February 1996. Back
3
Failing the Test-NACAB. Back
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