Memorandum submitted by Royal National Institute of Blind People (RNIB) and Action for Blind People (DM 23)
1 About us
April Action for Blind People and the Royal National Institute of Blind People
(RNIB) joined forces in an Association to share resources, skills and expertise
to engage and reach more blind and partially sighted people with even better
services. Action for Blind People is now an
Associate Charity of RNIB. Our two organisations have combined regional service
for Blind People
(Action) is an expert national organisation, ensuring blind and partially
sighted people across the
Action is committed to recognising the need for viable, solution focused services and work hard to provide them. We offer support in finding or retaining employment, assisting in applying for benefits, providing advice on housing issues, ICT and assistive technology, visual awareness training, leisure activities and information and advice through their national freephone helpline.
RNIB is the largest
organisation of blind and partially sighted people in the
· Stop people losing their sight unnecessarily;
· Support blind and partially sighted people to
· Create an inclusive society.
We run a range of services that support people with sight loss. Amongst these are our welfare rights services which help visually impaired people access the benefits they are entitled to. Much of our work concerns Disability Living Allowance and Attendance Allowance and ensuring that clients receive the correct level of entitlement. The welfare rights service represents clients at appeal tribunals and has a high rate of success (over 95% of clients receive the award we advise them to expect).
2 Summary of main points
2.1 Decision Making
Our comments relate mainly to Disability Living Allowance and Attendance Allowance.
Quality of decision making is variable and there is an urgent need for better Decision Maker training and specialisation in areas such as mental health and sensory impairment.
We believe that the key to improved decision making lies in the training of DMs. DWP should therefore be giving serious consideration to utilising third sector organisations in this process. HMRC offer an example of good practice in this area.
The advice given to decision makers by Medical Services disability analysts is frequently poor, and can be inaccurate in respect of the assessment of visual impairment and the likely care and mobility needs associated with sight loss.
The review stage of the decision making process is not effective because DWP offices take a long time to issue review decisions, so there is little advantage to be gained in going for review ahead of appeal.
HB and CTB applications are experiencing a number of problems. Decision making by local authorities is even more variable than by DWP. For some local authorities decisions take a long time, information may not be provided in suitable formats, reviews following the provision of evidence take so long that overpayments and underpayments regularly occur and cause a great deal of confusion for the claimant.
Some local authorities do not process appeals properly or send cases & submissions to Tribunal Service. At worst some clients are denied access to independent tribunal by LA misapplication of appeal processes.
Claimants find the appeals process very long and confusing; especially as the different stages of the appeals process are often not properly explained by DWP. Information is rarely provided in a suitable format. The process, particularly tribunal hearings, can be very daunting without support.
It remains to be seen if bodies such as the AJTC or the reorganisation of the Tribunal Service will greatly influence the day to day issues that have an impact on a claimant's appeal.
Individuals are still often not aware that it is possible to appeal to the Upper Tribunal or the grounds that they can appeal on. There also issues with the accessibility of the process for VI claimants.
The timescale for appeals appears to be getting longer rather than shorter, which is a major concern. It now regularly takes over a year from the date of a customer's original claim, e.g. for DLA, to the date they receive any benefit following a tribunal decision.
Little advice is offered by the DWP during the appeals process and, although the tribunals service is more willing to give advice and information, the two services often seem to work in isolation and do not always know who should be responsible for different aspects of a case.
There still can be problems with appeals at the point of handover between DWP and Tribunals Service. RNIB as representatives sometimes don't get sent copies of submission and DWP and Tribunal Service are not always clear who should provide representatives with copies.
The Tribunal Service has said that they will continue to process the appeal where a visually impaired appellant is not able to complete a TAS1 enquiry form. RNIB have encountered situations where the Tribunal Service admin office have wrongly insisted on TAS1 completion before taking any other action to progress an appeal.
3 Our full response
How effective is the decision making process? Could it be improved, if so how?
The process is not always explained very well to the claimant and it can be very difficult for a claimant to obtain information as they may be passed between different offices (one point of contact would be better). Also, the lack of alternative formats is an ongoing issue.
The DLA & AA decision-making process is still far too arbitrary. This can probably be put down to 3 main factors;
1. Decision Makers (DMs) not having an adequate knowledge of many of the conditions they are asked to decide upon.
2. Clients not providing sufficient information, or the correct information, on application forms, due to a lack of knowledge of what is required.
3. Decision makers are not trained to seek out appropriate evidence about a claimant's sight loss, or how to interpret such evidence. Where a DM refers to a Medical Services disability analyst for advice about a VI claimant's care and mobility needs, the advice is invariably misleading and in many cases actually factually incorrect.
1. All DMs should be given more training and there should also be an increase in the number of them. This would open up the opportunity for training a number of individual to become 'experts' in one particular area e.g. mental health or sensory impairment.
It would also be beneficial to train some decision makers as experts in DLA for children as the disability tests are applied differently to them, and DMs would benefit from specific training in issues relating to child development.
These experts could then operate on a regional or even national basis. To ensure they have an adequate knowledge base the DWP should also give much more serious consideration to using third-sector organisations for training provision.
2. The DLA application form could be improved in a number of ways, the most obvious one for our client group being the inclusion of specific references in each section to sensory impairment, to sit alongside those already included which identify 'physical' and 'mental' as distinct areas of disability. There should also be some indication on the form of the criteria being applied in the decision-making process.
Even where visually impaired claimants complete a new or review claim form well, and put a great deal of relevant information about the care and mobility needs resulting from their sight loss, decision makers do not apply the established caselaw adequately.
RNIB have raised the issue of inconsistent decision making in respect of visually impaired claimants with PDCS DMAPT procedures & advice team (responsible for DM guidance). We provided them with around 10 examples of DWP appeal submissions that incorrectly stated the law in relation to the care and mobility needs of people with sight loss. They accepted our concerns in these cases were justified and have undertaken to issue further guidance to DMs.
3. It would be helpful if PDCS recorded the registration status of new claimants for DLA & AA.
It is the experience of RNIB welfare rights service that there is a systematic failure of PDCS to correctly inform blind and partially sighted people about their possible entitlement to DLA & AA, and similarly a failure to correctly decide many new claims from visually impaired people.
RNIB's welfare rights service regularly hears from visually impaired people who feel they have been dissuaded by the DCS Helpline from making a new claim. They tell us that they have been told it is not worth them making a claim, in spite of the fact that they are registered as blind or partially sighted. We then have to persuade them that they should in fact qualify for disability benefit if their sight-related care needs are correctly taken into account. Unfortunately we also find that a substantial number of new claims are wrongly refused, and a correct decision only made after our intervention. Many cases have to go to tribunal to be resolved.
The majority of these clients are registered as blind or partially sighted, and it is apparent to us that if PDCS were aware of these clients' registration status, and if decision makers were better able to make use of the information contained in the certificate of visual impairment (that most newly registered people would be able to provide), then many of these problems regarding poor decision making would not arise.
We recognise that DLA & AA should be awarded based on the care and/or mobility needs arising from a disability, and that there is no automatic entitlement linked to any particular eye condition or formal registration status. However, this does not mean that registration status is of no relevance when considering whether a person may qualify for DLA or AA.
3.1 Are there sufficient numbers of decision makers and is the training they receive adequate?
This varies, but there does seem to have been an increase in the length of time that it takes for decisions to be made across the board. There are certainly gaps in training, e.g. a lack of understanding about the difficulties faced by blind and partially sighted people and in some instances a lack of understanding about the law.
However, even more worrying is the information that is given out by telephone operators before as well as during the application process. We have special concerns about the recently-introduced pre-claim questionnaire used when a claimant phones to request a new claim form. In effect this new process amounts to unlawful pre-claim screening; newly registered people, for example, may be persuaded not to make a DLA claim after speaking to a PDCS Helpline 'adviser'.
More generally poor advice from DWP helplines may well be preventing people from making legitimate claims or may cause them to claim the wrong thing, for example, wrongly advising someone who is claiming the middle rate of DLA and living with another person who is receiving Attendance Allowance that they are not eligible for the severe disability premium in means-tested benefits.
3.2 Is the decision making process clear to claimants?
Often not, particularly if they have difficulty or are not able to read the letters that DWP send out. Also, the process is not always well explained, e.g. the use of the words 'appeal' or 'reconsideration' as generic terms to cover the process from the first decision notification onwards.
There are very few claimants who are aware of the criteria against which their application is being measured, which is why so many of them are left puzzled by the decisions they receive. Written explanations of decisions may be inaccurate in describing how sight related care and mobility needs are treated for DLA or AA.
There is a particular problem with renewals of fixed period awards of DLA. Many visually impaired claimants (who may have gone through the appeal process to get the correct level of award) find their award may be reduced on renewal without any substantial reasons being given. This is another manifestation of the variability and unpredictability of decision making.
3.3 How effective is the review stage of the decision making process?
It is not very effective as many decisions are left unchanged, even after relevant new evidence is provided as part of the appeal process.
Advisers attend many 'pointless' tribunal hearings, where the tribunal give the award we were expecting without even needing to take evidence from the claimant. These hearings needn't happen if decision makers adequately considered new evidence produced during the appeal process.
The early results from the ADR trials for DLA, for example, suggest that many applications that could be changed at the review and revision stages are being unnecessarily forced through to appeal.
The review stage is also losing it's effectiveness because DWP offices are now taking so long to issue review decisions, so there is now very little advantage to be gained in going for review ahead of appeal. We used to advise clients that by seeking review they had a better chance of getting the decision overturned quickly rather than having to go through the rigmarole of an appeal, but now that it is taking at least 11 weeks to give review decisions this is no longer the case. The review process is also being damaged by the fact that offices are taking so long to provide a written statement of reason - many clients who request these are not receiving them until they are well into the appeal stage, waiting for a hearing date, which is obviously too late. Without written reasons it is much more difficult to put together a worthwhile submission at review stage.
3.4 Is DWP effectively addressing official error?
This is mixed. Where official error is being dealt with correctly it is being done effectively and in a reasonable amount of time but there are still occasions where claimants have to fight to get the matter addressed.
RNIB Legal Rights Service take many DLA appeals concerning entitlement to DLA middle rate care component. In a significant number of these cases it is possible to argue that the middle rate of care component should be awarded from a date before the most recent application for an increase. This 'backdating' of entitlement is only possible in certain circumstances - basically where the existing award (usually lower rate care) can be shown to be an official error. In our experience it is unheard of for a DWP decision maker to consider this issue unless prompted by an adviser. Usually any request for 'backdated' entitlement is refused and the case needs to be resolved by tribunal.
3.5 How well does the decision making process operate for different benefits (e.g. ESA, DLA and Housing Benefit)?
On the whole DLA/AA and Carer's Allowance claims seem to go through the process fairly smoothly, albeit over a considerable amount of time. Initial applications are taking the full 11 weeks in many cases and those that go onto appeal can take one to two years to complete. HB and CTB applications are experiencing a number of problems. Decisions take a long time, information is not provided in suitable formats, reviews following the provision of evidence take so long that overpayments and underpayments regularly occur and cause a great deal of confusion for the claimant. Mistakes also often occur because the wrong evidence has been used even where the claimant has done everything that they can to keep their local authority informed. The administration of ESA has also had many problems particularly as a result of delays in processing applications and more worryingly, the loss of documents.
3.6 How effective has DWP's Decision Making Standards Committee been in monitoring front-line decision making?
We cannot see much evidence that would lead us to conclude that the DMSC has been effective. In the areas where decision making has traditionally been of a fairly high standard there has been little change, but where there is a high turnover of staff or changes in the workload, such as within JCP, there seems to be an increasing lack of knowledge about even fairly basic rules and very little support and advice from staff about the claimant's options.
We believe that the key to improved decision making lies in the training of DMs. The DWP should therefore be concentrating more on what it is going to do about this, and in particular, as mentioned above, giving serious consideration to utilising third sector organisations in this process. They could learn a lot in this regard from HMRC's approach to raising disability awareness among their staff. Until relatively recently, by it's own admission, HMRC lagged severely behind in this area, but in the space of 18 months it has made huge strides - largely thanks to the Disabled Customers Consultation Group - a forum attended by representatives of disability charities and other interested organisations.
Based on feedback and suggestions from this group HMRC have created a disability training course which has been successfully piloted and is about to be rolled out nationally. The pilot involved getting HMRC staff to try out what it's like contacting/applying to HMRC as a customer - this is definitely something which should be a cornerstone of DM training also, as they can only get a proper understanding of DLA by having to complete an application form/attend a tribunal themselves.
3.7 Is decision making taking account of the October 2007 European Court of Justice ruling on exporting DLA, AA and carer's allowance?
Knowledge about and an understanding of this has taken some time to filter through and there are still some instances where individuals are not given the correct advice. However, where the DM is aware of this ruling they are taking it into account.
3.8 How does the appeals system work from the claimant's perspective?
They find it very long and confusing; especially as the different stages of the appeals process is often not properly explained to them by the DWP. Information is rarely provided in a suitable format. The process, particularly tribunal hearings, is also very intimidating for many claimants and we regularly come across clients who have not challenged previous decisions.
Claimants also have very little knowledge of the criteria against which their appeal is being considered - although decision notices do state the law, it is not clear for clients what this actually means in practice as they have no knowledge of case law e.g. they do not know what is meant by terms such as 'attention', 'frequent', 'throughout the day', etc.
3.9 How has the introduction of the Administrative Justice and Tribunals Council (AJTC) impacted upon claimants' experience of the appeals process?
At the moment, from the claimant's point of view, there is little change. From the perspective of advisers, time will tell what impact the AJTC will have. Much in the 2008 legislation was left open to interpretation and inclusion in the practice guidance so there is potentially a lot to be ironed out, especially in relation to matters of administration, e.g. time limits for the provision of evidence such as a statement of reasons has been left open to 'as soon as reasonably possible'. Therefore, it remains to be seen if bodies such as the AJTC will greatly influence the day to day issues that have an impact on a claimant's appeal.
3.10 How effective are the Upper Tribunal Judges (formerly Social Security Commissioners)?
So far there has been little change in this area as far as claimants are concerned. The process is reasonably quick, although it would be good if the process of appealing to them and getting a decision could be made quicker.
We have concerns about the accessibility of the process to clients who do not have access to representation, although given the complexity of legal arguments involved in a commissioners case it may be difficult to do much to improve this.
Individuals are still often not aware that it is possible to appeal to the Upper Tribunal or the grounds that they can appeal on.
Accessible format provision is an issue, but decisions and statements of reasons are provided in typed rather than handwritten print which is easier for many of our client group to deal with.
3.11 Is the timeframe of appeals reasonable?
The timescale for appeals appears to be getting longer rather than shorter, which is a major concern. It now regularly takes over a year from the date of a customer's original claim, e.g. for DLA, to the date they receive any benefit following a tribunal decision. Given that benefits such as DLA also trigger increases in other benefits, this is an unreasonable time period. One reason for this increase in length is the that DWP is taking so long to issue review decisions, which means cases are arriving later with the tribunals service. This is then exacerbated by delays in scheduling of appeals.
3.12 Is sufficient support available to appellants during the appeals process?
Support can be limited in many cases. Little advice is offered by the DWP and, although the tribunals service is more willing to give advice and information, the two services often seem to work in isolation and do not always know who should be responsible for different aspects of a case, e.g. who is responsible for providing alternative formats. More training could also be given on the needs of visually impaired people as there is a significant lack of understanding about certain types of disabilities.