5 Decision-Making and Appeals |
123. The Department explains the decision-making
process as follows:
The decision-making process starts when the decision-maker
in Jobcentre Plus considers information from the ESA50 questionnaire,
the WCA and any other relevant evidence provided. Where there
is a discrepancy in the medical evidence, the decision-maker can
seek advice from Atos Healthcare, our medical services provider,
or ask the customer for clarification.
The decision-maker assesses this information and,
following any discussion with the customer, decides whether or
not the customer is entitled to ESA. The decision-maker issues
a decision notice informing the customer of the outcome and whether
or not they are entitled to ESA. If benefit is awarded, the notice
specifies the amount of benefit and the date from which it is
paid, and informs customers whether they will be placed in the
Work Related Activity Group or the Support Group.
124. Professor Harrington drew attention to what
he called the "decision gap". He believed that Jobcentre
Plus decision-makers (DMs) had the most important role in the
WCA process but that many in reality rarely made decisions: instead
they tended merely to "rubber-stamp" the advice received
from Atos. Professor Harrington pointed out that the intended
role of DMs was to make informed judgements based not only on
the Atos WCA report but also on the whole "suite of information"
provided to them, including: the original ESA50 questionnaire;
additional information provided by the claimant; and any additional
representations or case notes provided by the claimant's own doctors.
However, he found that DMs deviated from the Atos advice in only
around 2% of cases.
125. Professor Harrington's view was that:
[...] if there is more opportunity for the decision-maker
to have a dialogue with the claimant, and to collect this additional
information, there will be less disagreement between the claimant
and the Department. It appears that even if you disagree with
the outcome, you will accept a decision you do not like if you
feel you have had a fair crack of the whip; that is called "procedural
justice", I think. At the moment a lot of people just do
not feel they have had a fair crack of the whip.
The Minister stressed that:
[...] as a result of the Harrington Review, we have
downgraded the role of the Atos-carried-out Work Capability Assessment
in this process. [...] They [decision-makers] have been told very
clearly that they should use the assessment as an important part
of their decision-making, but not the only part, and that they
should also be looking at input from the evidence from a hospital
consultant, for example, or a mental health specialist.
126. Witnesses felt that decision-making by JCP
decision-makers had improved during the Aberdeen and Burnley trials.
Rethink stressed that this was "a really positive step forward".
CAB welcomed the fact that claimants were encouraged in the recent
trials to send in medical evidence with their ESA50 forms. However,
it is concerned, that "it is the claimant's responsibility
to produce such evidence. Some clients are unable to get such
evidence because GPs frequently charge for the information. Someone
receiving £65 a week for all their living expenses will not
be able to pay £30 for a letter."
Professor Harrington's view was that it would better if doctors
did not feel the need to charge for such reports or if the legislation
could be changed in this respect.
127. The DWP research on the reassessment trials
found that the approach to decision-making and the proportion
of WCA reports sent back for review varied substantially across
the two trial sites. However, it concluded that the different
approaches to decision-making were seen as resource-intensive
in different ways:
[...] sending back WCA reports for review took up
valuable time for HCPs and DMs and postponed a decision being
made, but acquiring further medical evidence could also be time-consuming,
particularly if this involved chasing GPs. Some staff involved
in decision-making and reviewing cases expressed doubt that the
processes used in the trial were workable or sustainable on a
national level without additional staff resources.
128. Professor Harrington acknowledged that "it
will cost more money possibly, because the decision-makers need
to be trained up to do this."
We asked DWP about this. Karen Foulds of JCP conceded that "for
the changes that Harrington is wanting to the ESA journey, we
are just at the very start of that and we are just starting to
test some of that as part of a controlled national rollout".
She suggested that "One of the things that makes this cost-effective
and makes it affordable is that, if we get that evidence earlier,
then we make the right decision earlier, and that is obviously
better for the customer and more cost-effective for us as an organisation."
So far, JCP "have not had to adjust [...] staffing."
129. We welcome Professor Harrington's
central recommendation on the need to strengthen the role of Jobcentre
Plus decision-makers in the reassessment process. There are signs
that decision-making is already improving and this needs to be
reinforced by ensuring that all the supporting information from
the claimant is available to the decision-maker at the time the
decision is made. To facilitate this, it is important to ensure
that claimants are able to submit medical reports, but GP charges
for this service put it beyond the reach of some claimants. We
recommend that the Government considers how to address the problem
of charges acting as a barrier to the full range of medical information
being available to decision-makers.
130. We congratulate the Department
for the marked improvements in the decision-making process achieved
during the trials in Burnley and Aberdeen. However, DWP's own
research suggests that this new approach is very resource-intensive
and may not be sustainable in the national roll-out. Nevertheless,
it should remain a priority for the Department to ensure that
it gets the decision-making right first time. We agree with the
Government's assessment that investing resources in the decision-making
process will provide savings in the medium and long-term through
reducing the costs in appeals. An improved decision-making process
will also help to increase claimants' trust in the process and
enhance their sense that "procedural justice" has been
delivered by allowing their case to be properly presented.
Reconsideration of decisions
131. If a claimant is dissatisfied with the outcome
of the IB reassessment, they can do any or all of the following:
- ask for an explanation;
- ask for a written statement of the reasons for
- ask for the decision to be looked at again to
see if it can be changed, pointing out that there may be some
facts they think have been overlooked, or that they may have more
information which affects the decision; and
- appeal against the decision.
132. DWP explained how the reconsideration option
[The customer] can ask for an explanation and for
the decision to be reconsidered. If a customer appeals this will
also trigger the reconsideration process, as the Department aims
to put decisions right at the earliest opportunity. A decision-maker
will telephone the customer to see if there is any additional
evidence the customer wishes to be taken into account, re-examine
the original decision in the light of the customer's representations
or additional evidence, and decide if the decision should be changed;
legally this is known as a revision. If the decision is changed,
the customer has the right of appeal against the new decision.
If an appealed decision is revised in favour of the customer,
the appeal will lapse and action is discontinued.
133. Jobcentre Plus conducted a pilot in Wrexham
aimed at reducing the number of decisions being taken to appeal.
The new approach involved direct telephone contact with ESA customers,
the so-called Touchpoint 13, to explain how the decision had been
arrived at and to identify any other information that might be
relevant to the decision.
Professor Harrington believed that "it would be nice to
think that what happened in Wrexham last year would apply nationally.
Wrexham found that they were spending more money on doing this,
but they were saving an enormous amount of money on not going
through the appeal system."
DWP told us that this new stage has now "been built into
the incapacity benefits reassessment process". 
134. Sue Royston from CAB suggested that "It
is not in anybody's interestDWP's, the taxpayer's or clients'that
appeals go on when they do not need to go forward. We are really
pleased with that, but we are concerned that there is a chance
that Touchpoint 13 may be used to persuade people that there is
no point in appealing."
135. The Welfare Reform Bill 2011, currently
going through Parliament, makes provision for the power to require
consideration of revision before appeal. The Explanatory Notes
to the Bill state:
Although the claimant (or other person) could ask
initially for the decision to be reconsidered with a view to revision
[...] in practice many people do not do so and make an appeal
from the outset. In order to resolve more disputes with claimants
through the internal reconsideration process before an appeal
to the tribunal is made, [provisions in the Bill would] enable
the Secretary of State to make regulations setting out the cases
or circumstances in which an appeal can be made only when the
Secretary of State has considered whether to revise the decision.
Sue Royston from CAB said "We do not like that
At present, when somebody puts in an appeal, DWP
has to reconsider that decision, so the reconsideration is there
[...] what is being proposed is imposing two time limits on the
client. The reconsideration would be done; the client would get
the decision; and then they would have to put in an appeal again.
They would have two time limits to meet. That seems to me very
wrong. It is putting the onus on clients to do the thing twice.
136. The Papworth Trust welcomed the Government's
plans to make better use of the reconsideration process but believed
that, at present, the Government does not track the reconsideration
process and the subsequent outcomes: "without this tracking,
we are unable to draw any conclusions as to whether a fall in
the appeal rate is as a result of more correct decisions in the
first place, or that the reconsideration process is simply a shortened
version of the appeal process."
ERSA argued that "There needs to be an onus on Jobcentre
Plus officials using the reconsideration process effectively,
thereby minimising the number of decisions going to appeal."
It stressed that providers do not want to see a "revolving
door" situation "where people are referred to the Work
Programme only to appeal and then leave".
137. We welcome Professor Harrington's
recommendation on making more effective use of the reconsideration
process. The trials in Burnley and Aberdeen have shown that claimants
find the additional contact with the Department, and the opportunity
to present further evidence in support of their claim, helpful.
This should help to address the problem identified by Professor
Harrington of new information appearing at the tribunal stage
that was not available earlier in the process. However, we also
request that the Government put in place processes to track outcomes
for cases which have been through the revision process in order
to ascertain whether this is producing speedier and accurate final
decisions, to avoid potential adverse consequences both for the
claimant and for Work Programme providers.
138. As set out above, a claimant can take their
case to appeal either immediately after being informed of the
decision or if they remain dissatisfied after reconsideration.
Appeals are dealt with by the Tribunals Service which is funded
by the Ministry of Justice. The Tribunal will consider the appeal
and the evidence submitted by the claimant and the Secretary of
State, as well as taking oral evidence at a hearing.
139. Detailed information on the number and outcome
of appeals is available only for new ESA claims as very few reassessment
cases have yet been heard. The table below shows the monthly figures
from the introduction of ESA to August 2009. During that period,
around 40% of new ESA claimants appealed their decision. The percentage
of successful appeals was also relatively high.
Table 1: WCA Appeals heard on "Fit for Work"
Decision: ESA claims to August 2009/Appeals heard by end of June
|Month ESA claim started
||Fit for work
||Appeals heard (to date)
||% Fit for Work with an appeal heard (to date)
||Decision in favour of appellant
||% Decision in favour of appellant
|Oct 2008|| 3,600
|Nov 2008|| 17,500
|Dec 2008|| 15,100
|Jan 2009|| 20,900
|Feb 2009|| 19,700
|Mar 2009|| 23,300
|Apr 2009|| 21,700
|May 2009|| 21,900
|Jun 2009|| 22,600
|Jul 2009|| 22,700
|Aug 2009|| 20,300
140. Our colleagues on the Justice Select Committee recently
highlighted the increasing number of social security appeals which
are dealt with by the Tribunals Service. The number rose from
242,800 in 2008-09 to 370,000 in 2009-10 and was expected to rise
to an estimated 370,000 in 2010-11 and 436,000 in 2011-12, mainly
as a result of the introduction of ESA. The report pointed out
that, in 34% of cases in Quarter 2 of 2010-11, the decision was
made in favour of the appellant (although not all of these were
ESA cases). The Committee believed that this demonstrated "a
significant volume of incorrect decision-making on behalf of those
tasked by DWP to make decisions about benefits". DWP has
funded the additional costs arising from ESA appeals and allocated
£1.3 million for 2008-09; £9 million for 2009-10; and
an estimated £21.1 million for 2010-11.
141. Tom Greatrex MP also highlighted the high
cost of appeals to the public purse in his evidence to us: "the
cost of WCA appeals between 1 May and 30 September 2010 was estimated
to be £22.15m. If this is taken over the whole year, the
annual cost to the taxpayer of WCA related appeals is around £50m."
142. A number of submissions expressed concern
that the pressure on the Tribunals Service had resulted in a significant
wait for claimants before their appeals are heard. The Department
referred to data which shows that the average time taken to clear
or dispose of a case stood at 21.8 weeks:
Both the Department and the Ministry of Justice recognise
the importance of reducing the time taken to process appeals which
has been mainly caused by the introduction of ESA which resulted
in a large number of appeals being received above original forecasts.
As a result, tribunals capacity was not then in place.
The Minister acknowledged that:
[...] there is and there has been a big backlog for
some very considerable time in the appeals service [...] there
has been a reduction in that backlog and they are gearing up capacity
wise quite substantially, so effectively the Tribunals Service
will have doubled its capacity between 2009 and 2012 in part to
deal with the extra people who are being assessed as a result
of the migration.
However, he also conceded that keeping up with the
increase in caseload "is certainly a challenge".
143. CAB suggested that the number of appeals
was likely to increase again in the next few years because of:
- the IB reassessment process
- the time limit of one year for contribution-based
ESA for those in the WRAG
- the introduction of a large financial difference
between the Support Group and WRAG, when the Welfare Reform Bill
- the introduction of face to face assessments
The recent DWP report on the IB reassessment trials
agreed that it was unlikely that appeal numbers would decrease.
It found that awareness of the possibility of making an appeal
was very high among customers and that:
Both Jobcentre Plus staff and HCPs said they often
told customers they could appeal as a means of deflecting negative
attitudes towards reassessment. In the context of the face-to-face
WCA, HCPs were sometimes trying to ensure co-operation from unwilling
customers within the limited time available for the assessment,
and had found that telling customers that they could appeal if
they did not like the outcome was an effective way of achieving
this. Customers reported that Jobcentre Plus staff had advised
them to appeal because their outcome did not look "right",
and this was corroborated by staff feedback.
144. The Minister acknowledged that "it
is likely that an awful lot of people will appeal". He said
"I do not think it is going to be possible to reduce the
number of appeals that are actually lodged." Instead the
Department is aiming "to reduce the number of appeals that
are successful, and that could be done by making sure we take
much better decisions right the way through the process".
145. Professor Harrington stressed that the focus
of his recommendations on decision-making was that "the decision
should be got right first time, leading to fewer people appealing
and more confidence in the initial decision" which would
help reduce the number of appeals and the appeals success rate.
The Minister also highlighted that:
One of the things Professor Harrington found was
that evidence was emerging at the tribunal that Jobcentre Plus
had never seen. So one of the things we are seeking to do after
the decision is taken, if somebody comes back and says "I
am not happy", is to say to them at that point very clearly
"You can give us further evidence to take into account".
146. The high number of appeals
for new ESA claims is a cause of concern. The estimated cost to
the public purse is £50 million per annum. The pressure on
the Tribunals Service has also resulted in a significant delay
for claimants before appeals are heard, causing stress and anxiety
for claimants and their families.
147. We welcome the Minister's
commitment to improving decision-making to ensure that fewer cases
are overturned at tribunal. However, as the Minister rightly acknowledged,
the volume of reassessment cases means that it is unlikely that
the number of cases going to appeal will decrease significantly
in the next few years. We welcome the Government's acknowledgment
of the importance of reducing the time taken to process appeals
and we recommend that the available resources are kept under regular
review. The tribunal system must be adequately equipped both to
address the backlog and to provide an ongoing, efficient appeals
Recalling claimants for WCA after
148. A joint submission by mental health organisations
expressed their concerns that clients who had won their appeals
were being reassessed through the WCA within a very short time
of the appeal decision:
We have been in touch with a claimant who was initially
declared "fit for work", but overturned this verdict
at appeal. He was sent an ESA50 form within months of the appeal
being settled, and has now been called for a further medical assessment.
This is causing him great distress and could potentially impact
on his health [...].
A number of claimants told us of similar experiences.
One woman wrote that "Each time I fail a WCA and have to
go through the appeals process it knocks me back further from
my goal of being fit enough to find work in the future."
Another said it is "appalling that people who've gone through
the appeals process and have had their original WCA overturned,
then have to go through it all again, in a matter of weeks or
149. Professor Harrington recommended that the
lesson-learning process should be improved: "feedback from
the First-tier Tribunal should be routinely shared with Jobcentre
Plus staff and Atos healthcare professionals. As part of their
professional development, Jobcentre Plus decision-makers should
be encouraged to attend Tribunals."
A joint response by mental health organisations agreed that, at
present, there was no systematic method for decision-makers to
learn from the outcome of Appeals Tribunals.
150. We put to Jobcentre Plus the concern that
DWP was not represented at appeals, which risked the tribunal
only hearing one side of the case. Karen Foulds from JCP confirmed
that they would now ensure that for the "appeals that are
going through from the trial we are having presenting officers,
as we call them, there, to see what impact that has".
151. It is not acceptable that
some claimants have to go through the entire assessment process
again shortly after their appeal without any of the information
from the appeal being passed on to JCP and Atos Healthcare. This
is a waste of resources and causes unnecessary stress and anxiety
for claimants and their families.
152. We agree with Professor
Harrington that it is important for the outcome of appeals to
be fed back into the WCA system effectively, to avoid unnecessary
future appeals. We also believe that when cases do go to appeal,
it is important that the DWP case is properly presented. We recommend
that DWP review whether JCP presenting officers should attend
more tribunal cases in order to ensure both that this happens,
and that information is fed back from the appeals process, thus
promoting more effective learning of lessons by JCP.
155 Ev 75, para 98 Back
Harrington Review, chapter 6 Back
Q 230 Back
Q 269 Back
Q 11 Back
Ev 88 Back
Q 232 Back
DWP Research Report 741, p 25 Back
Q 79 Back
Q 285 Back
Q 284 Back
Q 285 Back
Ev 75 Back
Ev 76, para 105 Back
Ev 76, para 107 Back
Q 235 Back
Ev 76, para 107 Back
Q 63 Back
Explanatory Notes to the Welfare Reform Bill [Bill 154 (2010-12)
Q 62 Back
Ev w72, para 20 Back
Ev w109, para 3.1 Back
Ev 76, paras 109-112 Back
Justice Committee, Third Report of Session 2010-11, Government's
proposed reform of legal aid, HC 681-I, paras 53-60 Back
Ev w111, para 10. This estimate is based on a reply to a parliamentary
question: see HC Deb 15 February 2011, col 758w. The latest estimate
of the cost of a completed appeal in the first-tier tribunal,
based on 2009-10 data, is £282: see HC Deb 29 June 2011,
col 795w Back
Ev 77, para 119 Back
Q 310 Back
Q 312 Back
Ev 88. PIP is the Personal Independence Payment, the new benefit
which will replace Disability Living Allowance. Back
DWP Research Report 741, p 35 Back
Q 308 Back
Harrington Review, p 29 Back
Q 308 Back
Ev 94 Back
Ev w4 [Dr Sarah Campbell]; Ev w5 [Samantha Fulstow] Back
Ev w6 [Samantha Fulstow] Back
Ev w36 [Jaki Tean] Back
Harrington Review, chapter 7, para 22 Back
Ev 94, para 5.4 Back
Q 313 Back