Memorandum submitted by Citizens Advice (DM 31)
Advice welcomes the opportunity to comment on this inquiry. In 2008-09, Citizens advice dealt with
144,000 enquiries relating to decision-making and appeals across all DWP
benefits, including local authority administered housing and council tax
benefit. The highest number of these
enquiries relate to disability and incapacity benefits (including
A delay in a decision - or a protracted appeal process - for one benefit can have a significant effect on another benefit - particularly housing benefit - which can then have desperate consequences (see section 3). Even when the consequences are not so extreme, the impact on our clients of poor decision-making includes significant stress and anxiety, as well as financial hardship:
A client in the
While the focus of this inquiry is on decisions relating to disability and incapacity benefits, we also take the opportunity to raise some important questions about the quality of decision making and communication of JSA decisions at a time when JSA claims are on the rise. We also mention housing benefit, and the case to improve decision making at asylum tribunal hearings, by providing legal representation. The response is in six sections as follows:
1. Medical assessments and decision making
2. Appeals and reconsiderations
3. Housing benefit
4. Decision making and appeals for JSA
5. Legal representation at asylum tribunal hearings
Appendix: evidence from
1. Medical assessments and decision making
Deciding who is entitled to disability and incapacity benefits is much more difficult than for most other benefits. Claims for JSA, for example, may be decided on more objective measures such as a person's income, national insurance contributions and availability for work (although see below for a discussion on increasing complexity in decision making for JSA).
there are defined criteria for assessment for disability and incapacity
benefits, there is a higher level of subjective judgement involved. For
1998, medical assessments and advice to the DWP have been provided under
contract by Atos Origin. We see problems
both with the medical assessments and the decision making processes based on these
Assessing mobility and care needs, or evaluating the impact of a person's health condition on their ability to work, is difficult, and requires the exercise of considerable judgement. The Atos Origin contract requires that doctors follow standards of conduct, which include maintaining a non-adversarial manner and performing the examination in a way that avoids unnecessary discomfort. Despite this, CAB evidence indicates that the conduct of examinations still leaves much to be desired, causing substantial hardship and distress to benefit claimants and their families:
· many clients report encountering rude or insensitive examining doctors
· doctors frequently appear not to give sufficient consideration to mental health issues
· bureaux continue to report that doctors produce inaccurate reports, giving an inaccurate assessment of the claimant's abilities; reporting incorrectly what the claimant has said about their own conditions and taking answers out of context.
CAB in the
who have problems will have developed coping strategies, such that they may be
able to perform certain tasks, but only with extra effort or adaptation that is
relevant to their eligibility for benefit. In our 2006 report, we recommended that, if an
examining medical practitioner (
Furthermore, the current system means that evidence from the assessment made by the Atos Origin doctor often outweighs other evidence supplied by medical practitioners who are more familiar with the applicant's condition. We suggest that decision making would be improved if greater weight were given to detailed evidence from applicants, their carers, and the professionals providing them with health and social care.
CAB in the
Computerised decision making
2004, EMPs have used a computerised expert system to guide their questioning
and record their findings during a PCA (and now a WCA). DWP and Atos Origin say that this helps the
· doctors pay more attention to the computer than the client
· the system is inflexible and gives rise to inappropriate stock phrases in reports
· options for investigation and findings are blocked off by the system inappropriately
· doctors sign off reports without checking what they say, because the phrases have been generated by the system, not the doctor.
CAB client in
We suggest that the use and
development of computer-aided decision making in medical assessments for IB and
Many CAB clients find that disability benefit awards are made for relatively short periods of time, and come up for renewal quickly and a long way in advance, resulting in repetition of medical examinations which can be highly stressful. PDCS should review their practices on the length of awards, renewal procedures and the extent to which they need to use repeat medical examinations by Atos Origin.
Citizens Advice has long held concerns about the training of EMPs, and the evaluation/feedback mechanisms available to them. Continuing evidence of poor conduct at medical assessments indicates that training is inadequate, while the number of decisions overturned at appeal suggests that individual EMPs are not given relevant feedback when inappropriate decisions are made by DWP following their reports from the medical assessments.
2. Reconsiderations and appeals
Claimants who think that the decision on their claim is incorrect can ask for the decision to be reconsidered, and when a claimant appeals, DWP automatically considers the decision again. A claimant can also ask for the decision to be considered by an appeal tribunal.
on eligibility for
CAB client in the
3. Housing Benefit
There is an inherent tension between the requirement of most landlords to have rent paid in advance and the fact that housing benefit is paid in arrears. This means that HB claimants looking for private rented accommodation start off at a disadvantage compared to others not on benefit, and it is therefore essential that this is not compounded by slow decision making at the local office.
While there has been significant improvement in processing times for HB claims over recent years, there remains far too much variation between the fastest and slowest authorities. Initiatives such as those of Wolverhampton City Council which has introduced fast track processing of claims within 48 hours of the customer providing all the necessary information show what is possible. Regrettably, however, claimants in many other authorities receive a far less efficient service, with potentially desperate consequences for their tenancy:
A CAB in the east
4. Decision making and appeals for JSA
While the focus of the inquiry is on the quality of complex decisions involved in disability and incapacity benefits, this inquiry provides the opportunity to raise some important questions about the quality of decision making and communication of JSA decisions at a time when JSA claims are on the rise. Second only to the rise in redundancy enquiries, the number of JSA enquiries to Citizens Advice Bureaux rose 61 per cent to 109,400 in 2008/09 compared with the number of enquiries in the previous year. Though the majority of enquiries are about eligibility, bureaux are particularly concerned about:
· the decision making processes around the 'right to reside' test
· the application of benefit sanctions.
the last year Citizens Advice Bureaux have been reporting an increasing number
of problems experienced by EEA nationals when claiming benefits. Some claimants are denied the opportunity of
claiming benefit as poor advice by local Jobcentre Plus staff and inadequate
contact centre scripts mean that lone parents without the right to reside are
incorrectly advised to claim income support - which is then correctly refused
when they fail the right to reside test. They then claim JSA, but have missed
several weeks of money in the meantime.
However, CAB evidence also suggests a level of poor decision making when
applying the right to reside test. Lone
parents who have lived in the
Polish client was a lone parent with an eleven year old daughter. She had lived and worked in
There is also concern that benefit delivery centres are often unable to explain why the claimant has failed the test, and the decision letters contain no explanation. This makes an efficient reconsideration of the decision difficult and an appeal more likely. Advisers winning their clients' appeals have also reported concerns about quality of the DWP appeal submission, where it often fails to address the issue in dispute.
Despite the rise in overall JSA enquiries, the proportion of JSA enquiries concerned with sanctions and hardship payments remains constant. CAB evidence highlights the many claimants who have been sanctioned apparently inappropriately. Others, it is clear, do not know why they have been sanctioned, and get no explanation or warning in advance of the sanction being applied. The failure to warn the claimant that they are being referred for sanction means that the decision maker will only have evidence from one party - Jobcentre Plus - when coming to their decision about whether to apply a sanction or disallow a claim. CAB advisers report seeing clients who have been sanctioned several times because they have failed to understand what was required of them, or who haven't attended courses or applied for jobs because the options have been inappropriate to their disabilities or levels of literacy. Unless Jobcentre Plus has sufficient Disability Employment Advisers, and properly examines the reasons why a claimant has failed to attend, there is a serious risk that vulnerable claimants will be unfairly and inappropriately sanctioned.
A disabled client had been sanctioned for failing to attend a job interview. She was in her forties and had never had a paid job, though she had done voluntary work. She was paralysed down one side since birth and suffered from other conditions including memory loss. She had forgotten about the interview and said she felt under increased pressure to attend different appointments and she was struggling to remember what was required when. She said she found it difficult to cope with a lot of things at the same time, and was getting stressed which caused her to forget things. The bureau assisted her to complete a form challenging the sanction and advised her to make a copy of it and attach supporting evidence from her GP. The sanction caused her further stress, exacerbating her health condition.
5. Legal representation at asylum support tribunal hearings
While this subject does not strictly lie within the scope of this review, we feel it is worth raising awareness of the issue: asylum seekers are some of the most vulnerable people in this country, and decisions made at asylum support tribunal hearings have a critical impact on their well-being - losing an appeal results in destitution and homelessness.
In a recent oral appeal against a refusal of section 4 support, the AST judge concluded that "the position for the appellant is extremely grave. There can be no dispute that she suffers from a number of debilitating medical conditions. She is depressed and has mobility problems, [and] I have heard clear evidence that [she] has had to resort to night buses and sleeping in corridors within the past month or so. This is inappropriate for a woman with these medical conditions and who is nearly sixty years of age...In these circumstances, and upon a balance of probabilities, I do consider that the appellant does not have adequate accommodation and that it is certainly arguable that her essential living needs are not being met - she has had to resort to approaching British Red Cross". In both cases, the appellant was represented at the hearing by the ASAP, and the appeal was allowed.
is a significant body of evidence that legal representation at a tribunal
hearing has a significant impact on the decisions made. A landmark research study, published in 1989,
indicated that such legal representation increased the chances of success from
30 per cent to 48 per cent in
recently, research by Citizens Advice has shown that legal representation
increased the chances of success from 39 per cent to between 61 and 71 per cent
in the First-Tier Tribunal (Asylum
In the words of one Government-funded research study, "tribunals cannot be expected to compensate entirely for the disadvantages of some users. It has to be recognised that there are situations in which an advocate is not merely helpful, but is necessary to the requirements of procedural fairness and may also be crucial to substantive outcome". We therefore recommend that the Work and Pensions Committee urges the Government to fund legal representation at asylum support tribunal hearings, in order to ensure sound and reliable decision making for this vulnerable group.
claiming income support - experiences of families at
Citizens Advice Bureau runs an advice service at
its first year of operation, the service has identified continuing and repeated
problems for families claiming income support. These problems occur at the time
of application where the Customer Management System (
For those dependent on housing costs for help with mortgage interest payments, delays and poor decisions could mean the loss of their home.
bureau is concerned that the provisions in Schedule 1B of the Income
following cases illustrate current problems. The bureau has never experienced a
successful claim through the Schedule 1B provisions. In terms of advice options,
others at the hospital are rumoured to advise their clients not to inform the
Job Centre of their inability to be available for work and if family members
are so stressed (not an uncommon occurrence) as to be incapable of work, the
option of an
Relevant law -
Persons temporarily looking after another person
3. A person who is-
(a) looking after a child because the parent of that child or the person who usually looks after him is ill or temporarily absent from his home; or
(b) looking after a member of his family who is temporarily ill
4. A person (the carer)-
(ii) the person being cared for has claimed attendance allowance [or disability living allowance] but only for the period of 26 weeks from the date of claim.
The client's daughter, aged 8 months, was diagnosed with Leukaemia. Onset was sudden and she was admitted as an inpatient for chemotherapy. The client's wife stayed at the hospital while the client mostly stayed at home looking after 2 other children aged 3 and 2 years.
client had been claiming Job Seekers Allowance, but this terminated when he
explained he could not be available for work due to caring and regular visits
to the hospital. He was advised by the Job Centre to make a claim for Income
first interview on the 28th of August the family had been living on
Child Benefit and Child Tax credit only since
bureau successfully asked for the decision to be revised on the basis of
paragraph 3(a) of Schedule 1B of the Income
client's daughter, 16 years, was admitted to hospital for a spinal operation;
she had multiple physical disabilities and learning and behavioural problems. She
was an inpatient from 8th of February 2008 to
bureau helped the client appeal the Income
client who had limited English received Income
client claimed Income
bureau assisted with an appeal, but there was no contact from the decision
makers despite the matter being chased up on a number of occasions. The
Secretary of State's submission eventually read exactly the same as CASE 2 and
additionally stated that the client had been in receipt of
The client's wife is 7 months pregnant and their daughter, 10 months, was an inpatient; with tuberculosis and meningitis, she was very poorly. The client spent every day from to at the hospital looking after his daughter returning home at night. He visited the bureau as he had told the Job Centre of these circumstances and they had terminated his claim.
bureau assisted with a telephone claim for Income Support, but he was told he
was not eligible as he was not in receipt of Carers Allowance. The bureau
provided a detailed letter to take to his Job Centre interview setting out his
eligibility, as he was caring for a family member who was temporarily ill and
had just returned a Disability Living Allowance claim form for processing. A
decision to refuse Income
client had travel and extra living costs from his visits to the hospital and
had already used the maximum amount of his crisis loan. His application for
Child Tax Credit had been lost by HMRC on two occasions and further delayed by
the need for his wife to get a national insurance number. He was provided basic
food supplies through section 17 of the children's act and was very distressed.
Following an appeal and revision request, Income
 DWP (2005) Touchbase, August 2005
 The NAO reported that 0.3%
of JSA decisions and one per cent of all income support decisions in 2002-03
were taken to appeal, but six per cent of all IB decisions and eight per cent
 NAO (2004) Getting it right, putting it right: improving decision making and appeals in social security benefits
 Genn, H. and Genn, Y. (1989), The effectiveness of Representation at Tribunals, Lord Chancellor's Department (now the Ministry of Justice), 1989.
 Genn, H., Lever, B. and Gray, L. (2006), Tribunals for diverse users, DCA research series 01/06, Department for Constitutional Affairs (now the Ministry of Justice), January 2006.
 Dunstan, R. (2009), Supporting justice: the case for publicly-funded representation before the Asylum Support Tribunal, Citizens Advice, June 2009.
 Ibid, Note 23.