House of Commons - Decision making and appeals in the benefits system

Decision making and appeals in the benefits system - Work and Pensions Committee Contents

3 Collecting and Evaluating Evidence

56. The Department explained that all benefit decisions followed the same process. A claimant submits an initial claim, and may provide evidence to support it. A decision maker will then assess the claim and issue a decision on it. Each benefit decision is followed by a dispute period of one month, during which time the decision can be reconsidered or an appeal lodged.[33]

Collecting evidence

BENEFIT COMPLEXITY

57. We received evidence to suggest that one of the difficulties DWP faced in improving the decision making process was the complexity of the social security system itself. The Administrative Justice and Tribunals Council (AJTC), which was established in 2007 (and is the successor non-departmental public body to the Council on Tribunals), suggested that the "undue complexity" of the benefits system complicated the decision making process from the outset and made it more difficult for claimants to know what they may be entitled to. It argued that:

"The complexity of the system derives not only from the rules for particular benefits but also as a result of the interaction between the conditions of entitlement for linked benefits and the complicated arrangements for review, revision and reconsideration of decision, which are not fully understood even by the decision makers themselves."[34]

58. Welfare rights adviser, Daphne Hall, concurred with this, suggesting that complexity can lead to a "huge amount of under-claiming".[35] The Parliamentary and Health Service Ombudsman highlighted a number of cases featured in her annual report, which demonstrated how complex rules can lead to fraud and error and lengthy complaints by claimants. One such complaint, by a Mrs U in July 2006, was upheld after she was misled about whether she could claim Jobseeker's Allowance (JSA) because the Jobcentre Plus adviser did not understand the "linking rules" that would apply. This complaint took over two years to reach a resolution, over three years after the original complaint was made.[36]

59. Citizens Advice argued that deciding whether to award benefits becomes increasingly complex for disability and sickness benefits, such as Incapacity Benefit (IB), Employment and Support Allowance (ESA), Disability Living Allowance (DLA) and Attendance Allowance (AA). Unlike JSA, for which entitlement is determined by employment status and national insurance contributions, claimants of these benefits must satisfy a medical assessment, which involves a greater degree of discretion and subsequently, Citizens Advice argued, makes them more susceptible to error.[37]

60. In 2006, we published a report on benefit complexity, which concluded that whilst there are no easy answers, a complex benefits system risks becoming a dysfunctional benefit system. We concluded that DWP had to make simplification a key priority to alleviate that risk.[38]

61. Complexity in the benefits system remains a significant challenge for claimants, their representatives and the Department itself. We note the concerns raised to us in evidence that errors in decision making are inevitable if the social security system is too complex. We urge the Department to re-examine the conclusions of our report on Benefits Simplification with a view to simplification of the system.

CLAIM FORMS

62. A number of organisations argued that the claim forms for some benefits are too long and can be difficult for claimants to understand, resulting in incorrect or incomplete information being provided, thereby increasing the likelihood of errors in decision making. Welfare rights adviser, Daphne Hall, told us that:

"The forms are not always the most accessible to write down what you want to say. They are not always the easiest to understand [or determine] what information is important."[39]

63. Dr Mark Baker, Head of Social Research and Policy at the Royal National Institute for the Deaf (RNID), agreed; he emphasised the difficulties some claimants face in completing the 58-page Disability Living Allowance claim form, noting that many find it "utterly mystifying".[40]

64. We have raised the issue of complex claim forms in the past with DWP, and the Department has acknowledged this is an area of concern. In 2003, the NAO also identified the detrimental effects of "long and confusing forms" on decision making accuracy, particularly for disability benefits.[41] Vivian Hopkins, Chief Operating Officer at PDCS, accepted that "there are segments of our customer base which struggle more than others with the claim packs" and told us that DWP agencies are working with claimants and their representatives to tackle this.[42]

65. West Lothian Council provided an example of where efforts made by DWP have improved claim forms to good effect. It welcomed the introduction of DWP's "Performance Standard Fund" for local authorities, which it said had funded "major redesigns of correspondence, customer guidance and claim forms" and had been the "catalyst" for reductions in overpayments of Housing Benefit and Council Tax Benefit.[43]

66. In order for decisions to be timely and accurate, decision makers must have access to as much information as possible, relevant to a person's claim. If claim forms are long and complex, which would appear inevitable in an excessively complex benefit system, the likelihood increases that errors or omissions will occur in the initial application process which may, in turn, affect the quality of decisions. We welcome the work the Department is undertaking to improve benefit claim forms but we acknowledge the scale of this task given the complexity of the system. However, we believe more work is required to tackle this problem and to address the persistent concerns of claimants and their representative groups.

MEDICAL ASSESSMENTS

67. The medical assessment is a fundamental part of the claims process for individuals applying for disability or ill health related benefits. DWP has contracted Atos Healthcare to provide medical advice to assist decision makers in reaching a decision regarding entitlement to Employment Support Allowance, Incapacity Benefit, Disability Living Allowance, Attendance Allowance and Industrial Injuries Disablement Benefit. Atos Healthcare employs over 1,700 healthcare professionals, who are responsible for processing over 1.2 million referrals for medical advice annually and completing 600,000 face to face assessments on behalf of DWP.[44] Atos Healthcare uses a computer programme, LiMA (Logic Integrated Medical Assessment), during the medical assessment. This web-based system was introduced by Atos "to improve legibility, consistency and accuracy of the medical reports".[45]

68. The Work Capability Assessment (WCA) was introduced in October 2008, and is used to determine claimants' entitlement to Employment and Support Allowance. The assessement contains a series of questions, "called descriptors", that relate to physical and mental functions, and from which claimants score points. Those found fit for work must claim JSA; those with severe restrictions on their ability to work are exempt from work-related activity and are placed in the ESA support group; and those with some, but limited, capacity to work are placed in the "work-related activity" ESA group and are required to attend work focused interviews. This categorisation is based on the points score. There were 189,800 WCA assessments up to the end of August 2009. Of these assessments:

a) 10% have been assessed as eligible for the ESA support group;

b) 22% have been assessed as eligible for the ESA work related activity group; and

c) 69% have been deemed Fit for Work.[46]

69. Many organisations were critical of the medical assessment process. Citizens Advice referred us to their 2006 report, What the doctor ordered? which they argued, raised concerns that remain relevant to the current medical assessment process. They claimed that:

"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."[47]

70. CAB argued that the computer generated answers narrowed the scope of the WCA because "stock phrases" did not accurately reflect some conditions. The LiMA system used by Atos Healthcare allows the doctor conducting the assessment to "cut and paste" these stock phrases into the report. RSI Action claimed that Atos Healthcare professionals have often misrepresented claimants' responses on the assessment document.[48]

71. We also received evidence from a number of individual claimants, who reported poor experiences of the medical assessment process.

72. We received many complaints about the medical assessment process ranging from dissatisfaction from claimants who felt they were treated badly to criticisms of the computerised assessment process. We appreciate that DWP must strike a balance between providing a personalised service and ensuring a consistent approach to medical assessments but it is crucial that claimants' responses are recorded accurately. We ask the Department to investigate the concerns raised to us with Atos Healthcare and inform the Committee of the outcome.

Claimants with terminal conditions

73. A report published by Citizens Advice and Macmillan Cancer Support in December 2009 found that terminally ill patients were not being fast tracked into the ESA support group and were being required to undergo the work capability assessment or attend work-focused interviews. The report also identified that cancer patients receiving chemotherapy were being asked to attend a work capability assessment or work-focused interviews.[49]

74. Work Directions were concerned about the number of claimants that were being placed onto the Pathways to Work employment programme before a decision had been made on their entitlement to ESA. They noted that over 50% of their clients who had already been on Pathways for 14 weeks had not yet received the results of their Work Capability Assessment (WCA). They explained that "for some clients, who are later placed in the ESA Support Group as a result of the WCA, it can mean that they are expected to attend mandatory interviews despite the fact they may be undergoing treatment or be terminally ill."[50]

75. We were concerned to hear that 50% of one provider's Pathways to Work caseload have been in the programme for 14 weeks, despite not yet having received the result of their WCA. It is unacceptable that terminally ill claimants or those undertaking treatment that affects their work capability should be expected to undertake mandatory work focused interviews. We call on the Department, as a matter of urgency, to ensure that arrangements are made to ensure that terminally ill claimants are fast-tracked to the Employment and Support Allowance support group.

Fluctuating conditions

76. In its written evidence, Mind echoed the concerns of other submissions that the medical assessment process was ineffective for many claimants with fluctuating conditions, stating that "the assessment does not take account of the fluctuating nature of people's mental health conditions and the assessment remains biased towards physical functions."[51]

77. However, the Minister argued that the Work Capability Assessment for the Employment and Support Allowance was far more responsive to fluctuating conditions than its predecessor, the Personal Capability Assessment:

"The previous personal capability assessment looked at four questions that could be described as considering an individual's mental health/fluctuating condition. Within the new work capability assessment there are 10 questions, including consideration of how people function in different social settings and their interface with different people and situations. Indeed, in the initial questionnaire we ask people to talk about how their condition affects their ability to be able to function not just on one day but over a period of time. However, we introduced ESA only about a year ago and we need to look at it. We have had an internal review that we shall publish."[52]

Review of the Work Capability Assessment (WCA)

78. In December 2008, the Government published the White Paper Raising expectations and increasing support: reforming welfare for the future, which outlined its plans to undertake a review of the WCA. This is in addition to the statutory obligation on the Department, under section 10 of the Welfare Reform Act 2007, to produce an annual independent review of the WCA for each of the first five years of its operation.

79. RSI Action told us that it had been involved in the Department's internal review of the WCA (as announced in the December 2008 White Paper), and expressed considerable concern at the process:

"The DWP invited a small panel of their expert advisers. DWP members and their advisers were provided with a number of specific cases to be considered, whereas charity representatives were denied access to such information. […] RSI Action has written two letters to DWP raising its concerns on this process, and is concerned that the issues raised have not been adequately considered by DWP. Having seen the DWP proposed changes to the WCA that we understand will be presented to the Secretary of State for approval, we are very concerned that the WCA will migrate even further from the intent of primary legislation, to provide benefit for those who have limited capability for work.

"A particularly alarming change that we understand will be proposed to the Secretary of State, is to replace using a pen or pencil, with making a purposeful mark!" Such a descriptor takes no account of the ability of the claimant to use a pen or pencil for the purpose for which it was designed, to write legible text in a reasonable time so that others can understand what has been written."[53]

80. The Department recently completed this internal review of the WCA. The first of the statutory reviews will be published this year and we were told that the Government expected to make the findings of the internal review available "more quickly".[54]

81. We ask the Department to confirm when it intends to publish the findings of its internal review of the Work Capability Assessment (WCA). We note the concerns raised by some organisations that are contributing to the review. We urge our successor Committee in the next Parliament to examine carefully whether these concerns have been addressed and to maintain close scrutiny of the operation of the WCA.

82. Migration of existing claimants from Incapacity Benefit to Employment and Support Allowance, subject to a Work Capability Assessment, will be trialled from October 2010 with a view to being rolled out for all customers from February 2011. We recommend that this process should not commence before the review of the WCA has been completed and its recommendations considered.

Evaluating the evidence

WEIGHT GIVEN TO MEDICAL ASSESSMENTS

83. The Asbestos Victim Support Group's Forum UK and Lancashire County Council Welfare Rights Service argued that DWP decision makers rely too heavily on the conclusions of the Atos healthcare medical assessment and claimed that not enough attention was given to claimants' own statements and their medical history.[55]

84. Welfare rights advisers, Patrick Hill and Daphne Hall, both agreed that there was an overreliance on the conclusions of DWP medical assessments. In some cases, they argued evidence should be sought from specialists, such as community psychiatric nurses, who might see a claimant on a regular basis and could provide an expert opinion about how that person functioned day-to-day.[56]

85. We asked the Minister whether the advice of DWP contracted Atos healthcare professionals took precedence over other evidence claimants may provide and he agreed this was sometimes the case:

"[…] If the evidence provided by the Atos healthcare professional] is pretty overwhelming and the decision maker has other evidence, whether from a GP or welfare rights officer, it is unlikely that that evidence will be to the fore in arriving at a decision, because the medical assessment is one that has been developed in partnership with a number of different organisations, including those representing disabled people. But where perhaps the medical assessment provided to the decision maker follows more of a fine line the additional evidence may well be sufficient to push it over the line so that the person is eligible for Employment Support Allowance. It forms a very significant part of the decision making process."[57]

86. In Leeds, we met a claimant who had scored zero points in his Work Capability Assessment; his experience had been that the assessment did not properly take account of his condition. With the support of welfare rights advisers he challenged this decision and was eventually successful on appeal. A score of zero might appear to be a "pretty overwhelming" report, but in cases such as this, it would clearly have been preferable if other evidence, if available, had been considered by the decision maker.

87. We note widespread concerns that decision makers appear to give excessive weight to the conclusions of DWP medical assessments over other evidence claimants may provide. If a claimant is able to provide statements from specialists, who have regular contact with them, this evidence should be given due consideration. Furthermore, if a decision maker does not award a benefit based on the recommendation of a DWP medical assessment, despite the fact that this conflicts with the conclusions of expert evidence provided by the claimant, DWP should ensure that claimants are given a clear and full explanation of the basis for this decision.

TRAINING FOR DECISION MAKERS

88. DWP told us that all decision makers received training in relevant benefits and are able to access additional support from the Department's DMA unit in Leeds, which provides support and guidance to DWP and local authority decision makers on certain common subjects. DWP told us that the unit responded to more than 3,300 guidance requests per year from decision makers on specific cases.[58]

89. In addition to existing resources, we were told that Jobcentre Plus was reviewing all of its decision making training, with the aim of improving the quality of decisions. From April 2010, all new Jobcentre Plus decision makers will undergo Foundation Decision Making Training and more complex subject areas will be introduced, as and when staff require it. In PDCS, decision makers currently undertake a Technical Evaluation Package (TEP) after being in post for 9 months. We were told that the overall programme of training offered in the agency was scheduled for a review by the DWP Standards Committee, as part of its 2009-10 work programme.[59]

90. West Lothian Council Revenues and Benefits Unit emphasised that the complexity of benefit decisions, in particular housing benefits, made it essential that decision makers had access to sufficient training to deliver confidently accurate decisions to claimants. It argued that the Department was successfully providing this.[60]

91. Some evidence we received suggested shortcomings in training for decision makers. PCS claimed that the quality of training was varied. It argued that classroom-based training, using live cases, was most valued by decision makers whilst the increase in web-based learning was "almost universally loathed" by PCS members, who found this method of training to be largely ineffective.[61] CLIC Sargent reported a lack of understanding amongst decision makers about cancers that affect children and young people and argued that this could lead to "insensitivity and inappropriate questioning on the part of decision makers who are not given the education and guidance they need to understand this complex disease area."[62]

92. We welcome Jobcentre Plus' decision to review its training provision for decision makers and the DWP Standards Committee's commitment to examining the training available to decision makers in the Pensions Disability and Carers Service.

Professionalism in Decision Making and Accreditation (PiDMA)

93. A number of organisations commented on the introduction of accreditation for PDCS decision makers in 2006 called "Professionalism in Decision Making and Accreditation" (PiDMA). The diploma was developed in partnership with the University of Chester and consists of a modular work-based learning programme. We were told that the programme cost around £300,000 to deliver each year and over 200 decision makers had been accredited since 2006.[63] An internal evaluation report is currently being produced and is expected to be finalised in early January.

94. Although staff who gain accreditation do not receive any financial reward, Vivian Hopkins, Chief Operating Officer, PDCS explained that the diploma:[64]

"[…] deals with the reality of decision making and does not take people off to a classroom. It also takes quite a long time to reach accreditation level. People are appraised all the way through. It gives staff more confidence because it provides them with greater skill, particularly in interpreting the evidence that the customer produces."[65]

95. The National Deaf Children's Society welcomed the accreditation, saying that it had been a positive introduction, which was improving the quality of decisions on DLA claims.[66] Likewise, the Administrative Justice and Tribunals Council 2008-09 annual report praised the PiDMA programme and encouraged DWP to "consider rolling out similar programmes across all its Agencies".[67]

96. We are encouraged by the positive responses to the introduction of the Professionalism in Decision Making Accreditation (PiDMA). However, with only 200 decision makers accredited at a cost of £300,000 per year, this is an expensive diploma to deliver. We ask DWP to publish the internal evaluation of PiDMA once the report is finalised.

Contact with claimants

97. A number of organisations suggested that claimants often failed to understand how the decision process worked and this was exacerbated by the fact that claimants were rarely given the opportunity to speak to the decision maker responsible for the outcome of their claim. The National Association of Welfare Rights Advisers (NAWRA) explained that:

"The main point of contact is through the telephony (letters often remained unanswered)—this is to a member of staff who is trained to read the computer screen but without full benefits knowledge."[68]

98. The Committee was told by welfare rights advisers, Daphne Hall and Patrick Hill, that claimants often struggled to understand the decision making process in Jobcentre Plus because they were unable to speak directly to the person responsible for deciding the outcome of their claim. Daphne Hall said:

"Within the Jobcentre it is virtually impossible to speak to somebody who knows about benefits because […] jobcentre staff are not trained in benefits, they are trained to help people find work. […] If you phone the benefit delivery centre, you have a telephony service first where people are trained to read the screens so they can give you certain information, for example what premiums you are getting, but they cannot tell you why decisions are made. The only way you can speak to somebody is to ask for call-back, which currently is coming within three days. If you are not in […] they will leave a message to say they have called, but they are not allowed to leave a number you can call back on, so you have to start the whole process again."[69]

99. Recent research by the Pensions, Disability and Carers Service found that their local third sector and voluntary sector partners were similarly dissatisfied by a lack of face-to-face contact and had a strong dislike of the telephone call centre contacts. Individual accountability in the decision making process was considered crucial to local partners, who often felt that their input disappeared into a "black hole".[70]

100. The latest report by the DWP Standards Committee (formerly the DWP Decision Making Standards Committee) highlighted the findings of the President of Appeals Report 2007-08, which reported that, of all the DLA/AA cases that are presented to appeals tribunals, 40% are overturned. In 73% of the overturned cases the tribunal accepted new evidence at the hearing from the claimant, sometimes in the form of medical evidence and other times it was the claimant's verbal account of living with a disability. In order to try and reduce the number of cases going to appeal, the Standards Committee concluded that a better understanding of the claimant's viewpoint could significantly impact upon the number of appeals that are processed and the number of appeals that are overturned in the claimant's favour. It recommended that:

"In all cases that get to reconsideration/appeal the appeal writer/decision maker should ensure they […] have made meaningful contact with the customer and/or carer before the issue is referred to appeal to ascertain how the customer experiences their disability."[71]

101. Speaking to a claimant directly is an effective means of ensuring that decisions are based on accurate evidence. We ask the Department to explain what actions it has taken in response to the DWP Standards Committee's conclusion that decision makers would benefit from a better understanding of claimants' viewpoints.

102. We recommend that the Department should pilot a scheme whereby claimants who proceed to a reconsideration of their claim or appeal against a decision are allocated an individual decision maker and are given a direct telephone number on which to contact them. We recognise that this will place an additional burden on decision makers, but we believe that it is justified on the grounds of fairness to claimants. We believe that it could also reduce costs in the system by reducing the number of cases that go to appeal.

NOTIFICATION LETTERS

103. DWP told us that claimants are informed of their appeal rights "in a clear and unambiguous way" in decision notices, which explain what further action can be taken if they are unhappy with a decision and the timeframe in which to take it.[72]

104. The content and structure of decision notification letters have been subject to criticism in the past. The 2003 NAO report on decision making and appeals highlighted the problems that poor written communication from DWP can create for claimants. The NAO found that some decision letters may list the reasons for a decision but did not explain the decision in terms of claimants' specific situations. It noted that, although DWP accepted the "unsatisfactory nature" of some decision letters it believed the required computer changes would be too costly to warrant significant changes.[73]

105. We highlighted the problems unintelligible computer-generated letters can cause in our report on benefits simplification in 2007.[74] In response, the Department told us that Jobcentre Plus would review its correspondence and develop an action plan for improving its letters.[75]

106. However, during this inquiry, we received evidence to suggest that notification letters remain of an unsatisfactory standard. Alan Barton from Citizen's Advice and welfare rights adviser, Daphne Hall, were critical of the "very poor" decision letters some claimants received.[76] Lancashire County Council Welfare Rights Service argued that letters frequently failed to explain exactly how a decision has been arrived at; for example:

"DLA/Attendance Allowance decision notices […] tend to make reference to the basic qualifying criteria, yet not explain why the decision maker thinks these are not met in the claimant's case. For example, simply saying "you are not virtually unable to walk", of itself, is of no real help to a claimant (or adviser) when deciding if they have legal grounds to challenge the decision. What would be more helpful would be a full explanation as to why a customer's needs do not meet the relevant criteria. This information should be made available to the claimant at the time the decision is issued."[77]

107. Some of the welfare rights advisers we met in Leeds suggested to us that making the rationale behind decisions clearer to claimants, particularly the grounds for disallowance of ESA, would significantly reduce the number of appeals that were made.

108. The National Autistic Society highlighted the problem of unclear communications from Jobcentre Plus which confused claimants and could subsequently lead to significant delays in payment. It proposed that ESA letters, in particular, should be written in accessible format, or be accompanied by an easy-read version, to ensure that claimants understood the decision.[78]

109. We are disappointed to hear that computer-generated notification letters continue to make it difficult for some claimants to understand how a decision on their benefit claim has been reached. Both this Committee and the National Audit Office have raised the issue of incomprehensible written communications from DWP in the past and yet this continues to be a problem. We ask the Department to outline what work it is undertaking to improve its notification letters and to ensure that decisions are properly explained and easily understood by claimants. We believe that better explanation of the rationale behind decisions could reduce the number of appeals and requests for reconsideration that are brought forward, delivering savings elsewhere in the system.

33 Ev 127, para 2.1 Back

34 Ev 148, para 18 Back

35 Q20 Back

36 Parliamentary and Health Service Ombudsman (March 2009), Putting things right: complaints and learning from DWP, page 23 Back

37 Ev 140 Back

38 Seventh Report, Session 2006-07, HC 463, Summary Back

39 Q13 Back

40 Q51 Back

41 National Audit Office (2003), Getting it right, putting it right- Improving decision making and appeals in social security benefits, p. 5 Back

42 Q114 Back

43 Ev 66, para 5 Back

44 http://www.atoshealthcare.com Back