The role of incapacity benefit reassessment in helping claimants into employment - Work and Pensions Committee Contents


5  Decision-Making and Appeals

Decision-making

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.[155]

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.[156]

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.[157]

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.[158]

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".[159] 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."[160] 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.[161]

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.[162]

128.  Professor Harrington acknowledged that "it will cost more money possibly, because the decision-makers need to be trained up to do this."[163] 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".[164] 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."[165] So far, JCP "have not had to adjust [...] staffing."[166]

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 the decision;
  • 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.[167]

132.  DWP explained how the reconsideration option worked:

[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.[168]

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.[169] 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."[170] DWP told us that this new stage has now "been built into the incapacity benefits reassessment process". [171]

134.  Sue Royston from CAB suggested that "It is not in anybody's interest—DWP'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."[172]

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.[173]

Sue Royston from CAB said "We do not like that at all":

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.[174]

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."[175] 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".[176]

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.

Appeals

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.[177]

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 2010
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 1,400 39 600 40
Nov 2008 17,500 7,000 40 2,700 39
Dec 2008 15,100 6,200 41 2,500 40
Jan 2009 20,900 8,500 40 3,400 40
Feb 2009 19,700 7,600 38 3,100 40
Mar 2009 23,300 8,700 37 3,500 40
Apr 2009 21,700 7,500 35 3,100 41
May 2009 21,900 6,900 32 2,700 40
Jun 2009 22,600 6,300 28 2,500 40
Jul 2009 22,700 5,500 24 2,100 37
Aug 2009 20,300 4,100 20 1,500 37
Total 209,200 69,500 33 27,500 40

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.[178]

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."[179]

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.[180]

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.[181]

However, he also conceded that keeping up with the increase in caseload "is certainly a challenge".[182]

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 is enacted
  • the introduction of face to face assessments for PIP.[183]

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.[184]

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".[185]

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.[186] 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".[187]

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 service.

Recalling claimants for WCA after appeals

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 [...].[188]

A number of claimants told us of similar experiences.[189] 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."[190] 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 months."[191]

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."[192] 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.[193]

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".[194]

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

156   Harrington Review, chapter 6 Back

157   Q 230 Back

158   Q 269 Back

159   Q 11 Back

160   Ev 88 Back

161   Q 232 Back

162   DWP Research Report 741, p 25 Back

163   Q 79 Back

164   Q 285 Back

165   Q 284 Back

166   Q 285 Back

167   Ev 75 Back

168   Ev 76, para 105 Back

169   Ev 76, para 107 Back

170   Q 235 Back

171   Ev 76, para 107 Back

172   Q 63 Back

173   Explanatory Notes to the Welfare Reform Bill [Bill 154 (2010-12) -EN] Back

174   Q 62 Back

175   Ev w72, para 20 Back

176   Ev w109, para 3.1 Back

177   Ev 76, paras 109-112 Back

178   Justice Committee, Third Report of Session 2010-11, Government's proposed reform of legal aid, HC 681-I, paras 53-60 Back

179   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

180   Ev 77, para 119 Back

181   Q 310 Back

182   Q 312 Back

183   Ev 88. PIP is the Personal Independence Payment, the new benefit which will replace Disability Living Allowance.  Back

184   DWP Research Report 741, p 35 Back

185   Q 308 Back

186   Harrington Review, p 29 Back

187   Q 308 Back

188   Ev 94 Back

189   Ev w4 [Dr Sarah Campbell]; Ev w5 [Samantha Fulstow] Back

190   Ev w6 [Samantha Fulstow] Back

191   Ev w36 [Jaki Tean] Back

192   Harrington Review, chapter 7, para 22 Back

193   Ev 94, para 5.4 Back

194   Q 313 Back


 
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Prepared 26 July 2011