Memorandum submitted by The Action Group (DM 20)
We are submitting written evidence to The Work and Pensions Committee because of our experience and expertise in getting advice and assistance to 'harder to reach' groups. We do this by tailoring our services to meet the needs of those who face additional barriers.
The Action Group is a medium sized voluntary organisation for children and adults with a learning disability and other support needs, their parents and carers. We provide wide ranging housing support services, supported employment services and community based children's services. Our Advice services provide a unique, specialist resource for people with learning disabilities and other support needs across Edinburgh, the Lothians and Falkirk. Advice services include Welfare Rights advice and a Black and Ethnic Minority Advice Service.
In 2008-2009 we received 200 new referrals to the welfare rights service and dealt with a total of 5720 enquiries.
The key themes in respect of decision making and appeals in the benefits system to emerge from our work with clients are as follows:
· Decisions on benefit claims take too long
· Evidence available to decision makers is not weighed appropriately
· Content of letters from the DWP is often unclear
· The review stage of the decision making process is more often a rubber stamping exercise than a thorough re-examination of a decision
· Understanding and application of linking rules amongst DWP staff is poor
· Government departments do not work well together to make decisions
· Decisions about the high rate of the mobility component of Disability Living Allowance are often based on a misunderstanding of the law
· Reinstatement of benefit after a successful appeal is an arduous process for a claimant
· The appeals process takes too long
The subsequent paragraphs provide a more detailed response with reference to some of the areas outlined to by the Committee.
1. Decision making
1.1 How effective is the decision making process?
Firstly, in many cases the decision making process is not effective because it is slow. This is of particular concern where claimants are awaiting decisions on claims to benefits which provide a minimum income to claimants (Income Support, Jobseeker's Allowance, Employment and Support Allowance). Also, delays in decision making for one benefit can delay entitlement to and payment of other benefits, for example Disability Living Allowance delays affect Carer's Allowance, Income Support, Tax Credits and Housing Benefit. Secondly, the decision making process is not effective because evidence available to decision makers is not always used, affecting the fairness and accuracy of decisions.
There is evidence of delays in Employment and Support Allowance (ESA) decision making, even early in the lifetime of this new benefit when resources have been targeted at it. This has meant that some claimants have waited in excess of 4 weeks for an initial decision and payment even when they have provided all the information necessary, for example a current medical certificate. Indeed clients we have assisted have been asked to complete later stages of the assessment phase (the ESA50 questionnaire and attendance at a medical) before any payment has been made to them. Also, decisions about ongoing entitlement are not always made within the DWP's own 13-week assessment phase target. It is our opinion that it is not enough for the DWP to respond that backdating makes up for any such delay. Individuals and families experiencing disability who have to manage without their benefit entitlement (either no benefit payment at all or receiving a reduced assessment phase rate after the 13-week target) on a week to week basis experience financial hardship and face a real risk of incurring debt due to these delays. When a claimant has no other funds and is waiting for a decision on their benefit claim, the DWP routinely advises claimants to apply for a Crisis Loan. In our opinion where a delay in processing a claim is caused by the DWP it is inappropriate for claimants to apply for a Crisis Loan and incur debt; they should be offered an interim payment of benefit instead.
In the experience of some of our clients, decision makers may not be weighing evidence properly which affects the quality of the decisions. This can be true for all benefits but particularly Incapacity Benefit, ESA and Disability Living Allowance (DLA). Staff at the DWP have told us that they have to go with medical advice (i.e. a report from Atos Healthcare) when making their decision. In one case the DWP adopted the findings of the report from Atos Healthcare even though it had not been happy with this report, had returned it to Atos Healthcare to look at again and received it back with the medical advice unchanged. It is of particular concern that findings of an Examining Medical Practitioner or Approved Health Care Professional are adopted wholesale even where other reports are available from professionals who have regular contact with a claimant and conflict with findings from such a report.
1.2 Are there sufficient numbers of decision makers and is the training they receive adequate?
From the issues described in 1.1 above it appears that there may not be enough decision makers (delays in decision making) and/or the training they receive may not be adequate (quality of decision making). In terms of the quality of decision making it is important to note that even when adequate training is provided decision makers need to carry out their role properly, for example with regard to dealing with all evidence available.
1.3 Is the decision making process clear to claimants?
In our experience, the decision making process is not clear to claimants in a lot of cases. This is particularly true where there are a few different stages to a claim process (ESA) or where automatically generated letters arising from a DWP official's work on a claim contain insufficient information and are irrelevant, for example letters referring to an unspecified 'change of circumstances' (even when there has been no change) and stating that the amount of benefit is not changed (Income Support).
One client who had not received any payment following a claim for Employment and Support Allowance received two letters, neither of which made any sense in the context of his claim. One stated "We cannot pay ESA from 7.4.09. To continue to receive ESA you may need to attend a Work Capability assessment and Work Focused Interview". The other stated "We have looked at your claim following a recent change of circumstances. We cannot pay you ESA from 7.4.09. You are not getting any more ESA. We will credit you with National Insurance contributions while claiming ESA". Subsequently it transpired that this claimant was indeed entitled to ESA. From this example, it is unclear how the DWP expected the claimant to understand the letters and indeed the process involved in his claim.
1.4 How effective is the review stage of the decision making process?
In many cases the review stage is merely a rubber stamping exercise and not a thorough re-examination of a decision. We have been advised that the DWP aims to complete the revision ('reconsideration') process for Employment and Support Allowance appeals within 2 days. It appears that this is because this revision process is linked to reinstatement of Employment and Support Allowance payments i.e. payment whilst appealing is not issued until this has been done. This makes it a worthless process as it does not allow any opportunity to contact other health professionals involved.
For other benefits it is often the case that the revision stage is no more effective but can take can take a further 8 to 11 weeks (DLA). We suggest that this length of time can only be justified if further evidence is being sought by the DWP; otherwise it contributes to the unacceptable delay in the appeal process (see 2.2 below).
1.5 How well does the decision making process operate for different benefits (e.g. ESA, DLA and Housing Benefit)
The examples in 1.1 to 1.4 above show that there are difficulties with the operation of the decision making process for many different benefits. However there are some issues that we would like to raise pertaining to specific benefits as follows:
Linking rules for incapacity-related benefits (Incapacity Benefit, Employment and Support Allowance) are not applied properly. In some cases the DWP states that linking rules apply when they don't (a contact centre dealing with a new claim for ESA suggested it would be a linked claim for Incapacity Benefit, but none of the linking rules applied). In other cases claimants are not advised of linking rules and their claims are not processed according to these rules when they do apply (one claimant was awarded ESA when it should have been a linked claim for Income Support; the money she received was less than she would have got if correctly awarded Income Support).
Interaction between benefits An impediment to a claimant receiving a timely decision on their ESA in Youth claim is the ineffective communication between the ESA section at the local Benefit Delivery Centre and the Child Benefit office. New ESA claims are routinely processed but not put in payment because the end of the Child Benefit claim in respect of the young person has not been confirmed by the Child Benefit Office. In one case it took 8 weeks for the DWP to request this information from the Child Benefit Office and it then took HMRC at least a further 5 weeks to respond. It appears from this specific example that one government department (DWP) accepts the fact that another (HMRC) takes a long time to respond to requests for information, rather than seeking to improve the systems and communication between the departments and aiming to work better together to avoid these unnecessary delays in benefit payment.
In a further example it can be seen that sections within the DWP do not interact well. One client's Income Support was terminated without going into payment because the Incapacity Benefit section had not advised Income Support (within the same Benefit Delivery Centre) that they had received the necessary medical certificates. This situation was exacerbated because the Incapacity Benefit section was not paying the claimant either; they repeatedly told the adviser that they were waiting for information from the claimant's school but after four months of non-payment decided that they didn't actually need this information and instead requested an offset calculation from Child Benefit causing a further delay.
DLA high rate mobility Frequently our clients report that they are informed by the DWP helpline that if their child can walk they cannot get the high rate of the mobility component. Obviously workers on the helpline are not decision makers but it highlights a misunderstanding about the specific criteria for high rate mobility. Also it is clear that this misunderstanding is replicated amongst the decision making staff from the submissions of presenting officers at appeal, for example a presenting officer told a tribunal that people with autism only get awarded the high rate mobility (if it all) on the grounds of severe mental impairment and not on the grounds of being virtually unable to walk. This goes against awards in payment to people with autistic spectrum disorders as well as established case law on this subject. It should be noted that many of these decisions are overturned at appeal. Our organisation works with people with learning disabilities and other support needs including people on the autistic spectrum. Whilst this is a very specific area of social security law it is one that we have to argue again and again at appeals because decision makers do not appear to be fully informed on this matter (see also 1.1 and 1.2 above).
Housing Benefit It appears that changes of circumstances reported by a claimant to the Council are very rarely processed in time for the next Housing Benefit payment due. For example one client whose wages vary from month to month reports changes in her income but because the claim is not amended in time, the next payment is wrong (possibly resulting in an overpayment) or suspended (leaving the claimant in rent arrears).
2.1 How does the appeals system work from the claimant's perspective?
Clients have reported that appeals are scary, confusing and distressing. They also find it demoralising because they think that they are not believed or their difficulties are not considered legitimate. These are clients who already have many things to cope with in their daily lives because of their own disability and/or caring responsibilities for a disabled child or adult. It is an additional hurdle which is unnecessary in many cases if the evidence and law were to be considered properly.
We represented at 30 appeals in 2008-2009. Success rates at appeals are high, for example 63% of these appeals were successful. It is often suggested that this is because claimants provide further medical evidence and other reports to the tribunal. When this is the case it is arguable that the DWP, with the resources available to it, should have obtained this evidence at the decision making stage. This is particularly pertinent in the context of the increasingly common policy of GP surgeries to provide a report only when requested to do so by the DWP and not when requested by the claimant, or at least charge the claimant a fee for such a report which is prohibitively expensive for many people. However in many cases tribunals overturn decision makers' decisions on only the evidence which was originally available to the decision maker, suggesting that initial decisions in these cases have been poor.
We think that there should be fewer requirements for claimants in re-establishing entitlement to benefit following a successful appeal. In many cases, particularly for incapacity-related benefits (Employment and Support Allowance, Incapacity Benefit and Income Support on the basis of incapacity), there are burdensome requirements placed on the claimant including the requirement for a new claim to the benefit under appeal. If the DWP's decision to refuse or stop benefit has been shown to be wrong following a claimant's successful appeal, then it should be for the DWP to take on the responsibility of 'righting their wrong', minimising any further delays or work for the claimant.
One appellant who had a successful outcome on her Personal Capability Assessment (PCA) appeal had to re-claim Incapacity Benefit and Income Support (she had been in receipt of Jobseeker's Allowance whilst appealing) after the appeal. It took over 2 months as well as 8 telephone calls from her representative to get her payments reinstated. She had to complete form S/985(1), a one page form sent out by Incapacity Benefit 3 weeks after her appeal. This just asked her to confirm her current bank details and that none of her circumstances had changed. Also she had to complete an Income Support review form which is just as big as a new Income Support claim form and was dealt with by the new claims section. Other clients receiving Jobseeker's Allowance whilst appealing have had similar delays and administrative hurdles.
Another client who opted to stay on Income Support at a reduced rate whilst appealing a PCA has only been asked to complete Incapacity Benefit form S/985(1), although he was asked to complete it twice. In his case it took over 6 weeks to get Incapacity Benefit back in payment and Income Support reinstated to the full rate. A worker at the local Benefit Delivery Centre has confirmed that it would always take between 4-6 weeks to get Incapacity Benefit back in payment again after a successful appeal.
2.2 Is the time frame of appeals reasonable?
The time frame for appeals is not reasonable. There are huge delays in an appeal reaching a tribunal and the DWP contributes to these delays. For example, for one ESA claimant the revision or 'reconsideration' part of the appeal process was done by the DWP within 3 weeks of receiving the appeal. However it took a further 3 months for the DWP to prepare and send its appeal submission, and only then after 5 follow up calls about this by the representative. The appeal has still not been scheduled 6 months after it was lodged by the claimant.
We would recommend the following actions as a priority:
· The DWP should make more use of interim payments where they are responsible for a delay in processing benefit claims instead of advising a client to incur debt by applying for a Crisis Loan.
· The link between revising an ESA decision before reinstating payment whilst appealing should be broken to allow revisions to be done thoroughly.
· Content of ESA letters should be reviewed (see example in 1.3 above).
· An agreement should be established between the DWP and HMRC about how long it is acceptable to wait for information, for example confirmation that a Child Benefit claim has ended.
· Ensure all staff at Disability and Carers Service are aware of the criteria for the high rate mobility component of Disability Living Allowance.
· After a successful appeal a claimant should not be required to give information again to the DWP which they have already provided, nor should they have to make a new claim for benefit.
· The DWP should work with The Tribunals Service following a successful appeal; any further information required could be gained on the day of the appeal so that it can be sent to the DWP along with the Tribunal's decision.