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

Annex D: Note of Committee visit to Leeds, 2 November 2009

Attending: Terry Rooney MP, Oliver Heald MP, Greg Mulholland MP.

Meeting with officials, Quarry House, Leeds

Jobcentre Plus (JCP)

  • In the last 18 months, work has been undertaken to expedite new claims which are not considered to be complex to non-specialist decision makers (DMs) to ensure that specialists are able to concentrate on more difficult decisions. Complex decisions are currently cleared in between 3 and 5 days.
  • Most decision notification letters are automatically generated. JCP accepted that this can make decision letters difficult to understand and it is currently looking at ways to improve its correspondence.
  • There are around 1600 (1100 Full Time Equivalents) specialist DMs, who concentrate on complex decisions.
  • Once claimants have received their decision, they can either ring the Benefit Delivery Centre call centre and ask for an explanation or, if the decision is complex, they can ask a specialist decision maker for a "call back".
  • JCP acknowledged that there are concerns with the Work Capability Assessment (WCA), for example, claims that the assessment does not adequately capture pain. However, the Committee was told that this was a very difficult area to overcome. Decision makers can request further evidence beyond the WCA but often claimants do not have more information than that which was originally provided. If the customer can put forward alternative medical evidence, it is up to the DM to take this into account, and, if necessary, refer a claimant back for further medical assessment. It was acknowledged that it was not common for someone to be referred back for further medical assessment in this way.
  • JCP is looking at ways to identify causes of official error and how to remove them. There is now a taskforce in JCP focusing on this, supported by "error reduction champions" on each JCP site.
  • Quality assurance work is undertaken to review the work of DMs; efforts are also made to focus on areas where there are a high proportion of revisions or decisions overturned.
  • The reconsideration process aims to make decision making swifter. If a claimant asks for a reconsideration, the decision will be looked at again by a different DM. Despite the fact that all decisions which go to appeal will be reconsidered anyway, JCP argue that there is value in retaining reconsideration as a separated tier in the decision making and appeals process.
  • There are no official target times for processing a reconsideration. However, reconsideration requests are logged and tracked.

Pensions, Disability and Carers Service

  • A perception still existed amongst claimants that the tribunal was an arm of the DWP; it was important to make clear that this was not the case. The tribunal was an opportunity for facts and evidence to be tested in an oral hearing; claimants could bring representation if they wished.
  • The DWP does not present every case. The DWP presenting officer is an "amicus curiae", not there to "win" the case for the Department, but to assist the tribunal by outlining the claim, the evidence and reasons for the decision. The presenting officer can not make a decision.
  • After the hearing, the presenting officer reviews the decision; provides feedback to the DM; where necessary calls for a written statement of reasons; and deals with any queries from the appellant.
  • There is a medically qualified member of the tribunal for DLA/AA, ESA and IB cases.
  • The strengths of tribunals were identified as their clear independence and the opportunity for face to face discussion, submission of new evidence and challenges to evidence provided.
  • The weaknesses identified were expense; stress for appellants; and the lack of incentive for new evidence to be provided by appellants before the hearing (which might aid the reconsideration process).
  • The high levels of turnovers at appeal for DLA cases were not a reflection of poor decision making but were due to the discretion of the tribunal on meeting the appellant and making a face to face assessment of the evidence. DLA and ESA cases all required an exercise of judgment; the opportunity to question a claimant in person may lead to a different judgment.

Tribunals Service

  • Tribunal benefit appeals were categorised as follows:

Appeal Type 1 Appeal Type 3 Appeal Type 4 Appeal Type 5
Income SupportDisability Living Allowance (DLA) Incapacity Benefit Industrial Injuries Disablement Benefit
Retirement Pension Attendance AllowanceEmployment Support Allowance Vaccine Damage
Child Benefit   Road Traffic and Excess Allowances
Child Support   Compensation Recovery
Tax Credits   Severe Disablement Allowance
Statutory Sick Pay     
Statutory Maternity Pay     
Housing Benefit    
Council Tax Benefit     

  • The tribunal composition for each type of appeal was as follows:
    • Appeal Type 1—1 lawyer, 1 financial member (in some Child Support cases).
    • Appeal Type 3—1 Judge, 1 doctor, 1 disability member.
    • Appeal Type 4—1 Judge, 1 medical member.
    • Appeal Type 5—1 Judge, 1 Senior medical member.
  • Procedural changes, including removing the requirement that the TAS1 form sent to appellants be returned within 14 days, meant that fewer appeals were now being "struck out" on procedural grounds.
  • There had been a very significant rise in the intake in 2009-10 to date; the increase was particularly large for Type 4 appeals (Incapacity Benefit and ESA). The Tribunals Service expects the number of appeals for 2009-10 to be in excess of 300,000. This was placing a strain on resources.

Intake of Cases
Appeal Type 2007-08 2008-09 2009-10 (to September)
1 and 276595 8193140533
374482 7366234445
470619 7957162960
5, 6 and 77434 76662916

  • Three-quarters of cases are seen within 14 weeks but there was evidence of real pressure of volume in the system having an impact on waiting times.
  • Advice for appellants is available through the government website, Welfare Groups, Citizen Advice Bureaux etc. and appellants are provided with a leaflet on "How to Appeal". The Tribunals Service held 50 local user forums in 2009. 69% of customers had responded positively when asked about the process.
  • The Tribunals Service was engaging with DWP in a strategic review of processes, using LEAN techniques to remove waste and delays, to focus on improving the "end to end" service to appellants. It was also running strategic workshops with DWP (November 2009 to March 2010) to agree service improvements.

DMA Leeds

  • The Decision Making and Appeals unit in Leeds comprised 77 staff (68 fte) working in 7 teams, dealing with guidance, appeals and support for decision makers.
  • Teams specialise in particular benefits or subjects (such as overpayments); the authors team is responsible for writing and updating the Decision Makers Guide (which is also available to claimants and their advisers on the internet).
  • The Appeals work involves writing submissions to the Upper Tribunal on claimant and Secretary of State appeals on benefits, child support and compensation recovery; supporting DWP lawyers on appeals to the higher courts; and deciding whether to take appeals to the Upper Tribunal and higher courts on behalf of the Secretary of State in consultation with policy and legal colleagues.
  • In addition to work on the DMG, the unit is responsible for maintaining the Code of Appeals Procedures and the Suspension and Termination Guidance; maintaining parts of the Housing Benefit Guidance Manual which is used by Local Authorities; and maintaining DWP intranet/internet sites where these documents are published.
  • The Guidance work comprises responding to specific case guidance queries sent by Decision Makers; maintaining and moderating a DWP intranet Discussion Group for Decision Makers; delivering seminars to Decision Makers to discuss specific issues. The team also comments on policy papers on proposed changes to the benefits system; drafts instructions to lawyers to write new legislation; drafts legislation; and produces training material and procedural guidance.
  • During 2008-09, DMA Leeds recorded the following activity statistics:

Written requests for guidance

Number of priority requests received:     1,821

Number of priority requests cleared:    1,827  

Average number of working days to clear

from date of receipt:         5

Number of non-priority requests received:   1,558  

Number of non-priority requests cleared:  1,554  

Average number of working days to clear

from date of receipt:         8

Appeals to the Upper Tribunal

Number of appeals made by the claimant:     1529

Number of appeals made by the Secretary of State:   131

Decision Makers submitted 570 potential cases to DMA Leeds for consideration to appeal to the Upper Tribunal but many are thought unsuitable to pursue.

Supplementary information was also provided by the DWP and the Tribunals service in response to questions raised during the meetings. This is published in the Appendix at Ev 157.

Note of meetings with claimants and advisers, Chapeltown Citizens Advice Bureau, Leeds

  • The WCA process was described as arbitrary, superficial and blunt and particularly unsuited for claimants with learning difficulties and mental illnesses. One adviser told us of clients who had found the process of examination by the Examining Medical Practitioner (EMP) traumatic, feeling that they were accused of being liars. At least one claimant had found the process so upsetting that she had decided to withdraw her appeal.
  • It was reported that the WCA was often carried out with claimants with poor or no English with no interpretation.
  • One claimant who had been receiving incapacity benefit as a result of depression felt that the evidence she gave to the EMP in her WCA had been "embellished". She had been driven to the interview by her son, and this was recorded as "able to travel to interview independently". The assessment had ignored the extent to which she had "good days" and "bad days"; it was a Catch 22 situation that she was only able to attend an assessment when she was having a "good" day. This individual had "failed" the WCA in July and was claiming JSA for the duration of her appeal, but had now been told that her appeal would not be before January. Her levels of debt were mounting. She had not known that her case had automatically gone for reconsideration (triggered by her appeal) until she was informed that her request had been turned down at reconsideration for lack of new evidence (which she had not been asked to supply).
  • It was felt that decision makers needed more training in how to deal with cases of individuals with learning difficulties and mental health problems. The appeals process was stressful and potentially damaging for those with mental health problems or learning difficulties.
  • It was reported that additional information was frequently lost by DWP; it was suggested that receipts for information should be provided.
  • Cases were reported of front-line advisers giving incorrect information that pushed claimants into the appeals process
    • Lone parents from EU states being advised to claim income support but then failing the right to reside test (they would have been better advised to stay on JSA); and
    • The difference between claiming for income-based and contribution-based ESA was not being explained to claimants on the phone: customers did not understand what they were claiming, and one adviser had worked with a refugee who was appealing against being turned down for contribution-based ESA (when he should have applied for the income-based benefit). Some advisers found it easier to submit claim forms clerically (which were time consuming and clogged up DWP's system) so that they could help claimants submit claims accurately.
  • No list of desriptors for ESA is provided for claimants, so they are "working blind" when they submit an appeal. It was felt by one adviser that if decision makers' letters were clearer about the grounds on which someone had been turned down for ESA, it would be easier for claimants to accept and would prevent unnecessary appeals. Many claimants assumed that proof that they had a particular condition was sufficient; they did not realise that the condition in itself might not be enough to qualify for the benefit. The adviser was currently advising one in three claimants that she saw on this matter to withdraw their appeals.
  • Advisers believed that very few decisions were overturned at reconsideration stage, even when substantial independent medical evidence was provided contradicting the WCA. It was suggested that c.25% of cases used to be overturned at reconsideration, but very few were now. Reconsideration was regarded as a missed opportunity for proper dispute resolution. It was suggested that the reconsideration process should be put on a two-tier basis, so that
    • Reconsideration waited for additional independent medical evidence (and took it properly into account); or
    • The case was fast-tracked to appeal if no additional medical evidence was to be submitted.

Case study A

  • One claimant had been in receipt of Carers Allowance and DLA, paid at higher rate mobility and care, on behalf of her terminally ill daughter. Every three years, the daughter's right to reside had to be renewed. 12 months ago, the right to reside was again reviewed but payments of Carers Allowance and DLA were stopped for a period of eight months. During this period, with no income, the family accrued very substantial debt and rent arrears. Once the right to reside was again renewed, the DLA was reassessed (on the basis of no additional information) at lower rate care and mobility. This meant that the claimant lost her Carer's Allowance. She was told to claim Jobseekers' Allowance even though her daughter still had an incurable terminal disease. She reported that a number of items of independent medical evidence, including her own GP's report, had been ignored by the Examining Medical Practitioner (EMP).
  • The claimant has appealed the decision to downgrade her DLA claim. She has been told that, unless her daughter is not expected to live beyond six months, she can not be classified as having a "terminal illness" (notwithstanding statements of medical professionals treating her). An individual who lived for longer than 6 months would be subject to reassessment.
  • This individual had submitted her appeal form and had received a TAS1 form specifying that a reply was required within 14 days otherwise the appeal would lapse (the Committee had been informed in the morning by DWP officials that this was no longer the procedure). She had previously asked for the decision to be reconsidered but did not feel that there was any value to this process. She had never been asked to provide further information and the decision was upheld.
  • As a JSA claimant, she is expected to look for work, which is difficult as her daughter requires full-time care. She has sought support from CAB to help her with her appeal and feels that this support has been invaluable (for example, her adviser explained that her GP's letters must include certain "buzz words" if it is to be valuable in supporting her appeal). The claimant is very concerned about her worsening financial situation and explained that this had been exacerbated by the expense of phone calls to DWP - her bill for calls to DWP cost £40 last month alone.

Case study B

  • Another claimant made a claim for ESA in October 2008, after he left work due to a mental health condition. His WCA lasted approximately 20 minutes and the majority of the questions focused on his physical capabilities; the WCA awarded him zero points and he was therefore not deemed eligible for ESA.
  • The claimant asked for the decision to be reconsidered. A decision maker undertook a reconsideration but did not ask for any further evidence. The claimant's Welfare Rights Adviser commented that the reconsideration process simply "rubber stamped" the original decision. He argued that, even where people do provide extra information, very rarely are decisions changed at the reconsideration stage, despite the fact that many of these decisions are then overturned at appeal. It was common practice for DWP to provide a three-line letter to notify claimants that decisions have been upheld after reconsideration. He suggested that DWP should adopt a similar approach to local authorities, which provide far more information and are much more amenable to discussing the outcome of a reconsideration over the telephone.
  • The claimant decided to appeal against the decision and opted for an oral hearing, which lasted approximately 30 minutes. He explained that the tribunal judge asked appropriate questions that specifically focused on his mental health condition and its impact on his ability to work. His sister attended with him and was also able to give evidence. The tribunal judge overturned the original decision and the claimant was awarded ESA on the support rate, 12 months after his first application.
  • The claimant felt that his appeal could have been avoided had appropriate questions, relevant to his condition, been asked during the WCA. The process of reconsideration and appeal had placed a great amount of stress on him and had led him to accrue significant debt.

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