Draft Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013
The Committee consisted of the following Members:
† Baldwin, Harriett (West Worcestershire) (Con)
† Blenkinsop, Tom (Middlesbrough South and East Cleveland) (Lab)
† Bradley, Karen (Staffordshire Moorlands) (Con)
† Glindon, Mrs Mary (North Tyneside) (Lab)
† Huppert, Dr Julian (Cambridge) (LD)
Jackson, Glenda (Hampstead and Kilburn) (Lab)
† Kirby, Simon (Brighton, Kemptown) (Con)
† Liddell-Grainger, Mr Ian (Bridgwater and West Somerset) (Con)
† Luff, Peter (Mid Worcestershire) (Con)
† McCann, Mr Michael (East Kilbride, Strathaven and Lesmahagow) (Lab)
† McVey, Esther (Parliamentary Under-Secretary of State for Work and Pensions)
† Mactaggart, Fiona (Slough) (Lab)
† McGuire, Mrs Anne (Stirling) (Lab)
† Mulholland, Greg (Leeds North West) (LD)
† Nuttall, Mr David (Bury North) (Con)
Paisley, Ian (North Antrim) (DUP)
† Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
† Syms, Mr Robert (Poole) (Con)
John-Paul Flaherty, Committee Clerk
† attended the Committee
Fourth Delegated Legislation Committee
Tuesday 3 September 2013
[John robertson in the Chair]
Draft Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013
8.55 am
The Parliamentary Under-Secretary of State for Work and Pensions (Esther McVey): I beg to move,
That the Committee has considered the draft Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013.
Good morning, Mr Robertson. I am satisfied that this instrument is compatible with the European convention on human rights. The regulations were laid before the House on 11 June 2013. They provide for the introduction of the mandatory reconsideration process for vaccine damage payments, child support maintenance payments, mesothelioma lump-sum payments and other social security benefits, with the exception of universal credit and personal independence payments which have been subject to mandatory reconsideration since April this year.
Currently a claimant who disputes a decision on their claim has the option of asking for a decision to be reconsidered by decision makers, which may result in a revised decision. However, many people do not do so and instead make an appeal from the outset. This is unnecessary for a significant number of appellants, stressful for claimants and their families, time-consuming and more costly for the taxpayer. Mandatory reconsideration will mean that requesting a decision be revised will become the necessary first step in an escalating dispute process before claimants decide whether they wish to appeal.
When mandatory reconsideration is requested, another decision maker will review the original decision and identify any additional information or evidence that might be relevant via a telephone discussion with the claimant. If appropriate, the decision maker will revise the decision, avoiding the need for an appeal. Claimants will receive a letter detailing the outcome of the reconsideration, including an explanation of the reasons. With that information to hand, claimants will be able to make a more informed decision about whether to appeal. Our intention is that, because of the robust nature of mandatory reconsiderations, and better communication, some claimants will decide that they do not need to pursue an appeal.
We ran a formal consultation between February and May 2012 and published the Government response in September 2012. Of the 154 responses, a number suggested there should be a time limit on the reconsideration process and there have been further representations on this subject. Although we understand the concerns, we are not making any statutory provision for that. Some
cases are more complex and require additional time, particularly, for example, where extra medical evidence may need to be sought. Others will be completed in days. It will be a case of considering each case on its merits.We are considering the scope for internal performance targets. Following implementation the Department will closely monitor clearance time and outstanding cases with a view to setting sensible performance indicators at a later date. We are mindful of the need to deal with applications promptly but not at the expense of quality. If clearance times become the driver, the process will not deliver and we will be back to unnecessary appeals.
Mandatory reconsideration has applied to universal credit and personal independence payment decisions since April. At this time, we have had few requests for mandatory reconsideration so we have not yet learnt anything that will inform our future handling of these applications. We will of course continue to monitor the situation ahead of October.
The issue of payments pending appeal in relation to employment and support allowance and the introduction of mandatory reconsideration has caused concern. The first point is that the current policy does not change: under the existing provisions, if someone is refused benefit and they request a revision of the decision, benefit will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration.
Secondly, there is no change in relation to appeals. Under the existing provisions, if someone appeals a decision, with the exception of ESA—which I will come to— no benefit is paid pending the appeal being heard. That must be right. It cannot be justifiable to pay benefit in circumstances where the Secretary of State has established that there is no entitlement to that benefit.
Turning to ESA, at the moment, if someone appeals a refusal of ESA made on the ground that they do not have limited capability for work, it can continue to be paid pending the appeal being heard. That situation is not changing. What is changing is that there can be no appeal until mandatory reconsideration has been completed. There could therefore be a gap in payment. Mandatory reconsideration requests will be dealt with promptly, to minimise the potential payment gap. However, in the period during which reconsideration is being conducted, the claimant could claim an alternative income replacement benefit, such as jobseeker’s allowance or universal credit. Claimants may choose to wait for the outcome of reconsideration and then, if necessary, appeal. Provided medical evidence is supplied, they could then be paid ESA.
Linked to this initiative is a change that will see all appeals being made directly to Her Majesty’s Courts and Tribunals Service and not, as now, to the Department for Work and Pensions. That change brings the DWP into line with other major tribunal jurisdictions. It is a positive move that will allow HMCTS to book hearing dates more quickly than is currently possible.
The regulations will result in a clearer escalating dispute process that will deliver a fairer and more efficient system for people who dispute a decision. I commend them to the Committee.
9.1 am
Mrs Anne McGuire (Stirling) (Lab): It is a pleasure to serve under your chairmanship, Mr Robertson. I thank the Minister for her explanation of the regulations. I appreciate that the regulations have been discussed in the other place, but I am sure she will not be surprised to learn that that fact will not prevent me during our sitting today from highlighting some of the excellent points made by my noble friend Baroness Sherlock in that debate.
Like Baroness Sherlock, I am intrigued by the Government’s response to the consultation on the regulations, in which they said:
“The responses have been analysed and the proposals reviewed in light of all the comments made. The Department does not propose to make any significant changes to the draft regulations”.
As the Minister has already stated, there were 154 responses to the regulations from organisations with significant experience in the realm of benefits, small and large, across the spectrum, including some pretty heavyweight organisations. I am a little surprised that the Government do not appear to have given due weight to that experience in their assessment of the consultation responses.
I will give just one example, from page 6 of the submission by Citizens Advice, which gave details about a citizens advice bureau in the south-west. The submission was fair, saying that there had been reports that the reconsideration process had been a bit more effective, although improvements were patchy. However, the paragraph that I want to highlight indicates some of the difficulties that the Minister has perhaps skirted over:
“A CAB in the South West reported that they had started to see an improvement in the reconsideration process but, ever since the IB reassessment process”—
I recognise that this is a historic process—
“started in earnest, it appears that the decision makers have been overwhelmed and not a single decision that the CAB has helped claimants appeal has been overturned on reconsideration. At tribunal the CAB has a success rate of over 90 per cent. The welfare rights worker felt very strongly that resources need to be in place to ensure proper reconsiderations are made but that this did not require the imposition of a new stage in the process, with more bureaucracy for the claimant, representative and decision maker.”
That poses the question of whether or not reconsideration is just another hurdle between the original decision and the appeal. Having been a Minister with responsibility for managing some benefits, I recognise the importance of reconsideration; indeed, I think most of us, as constituency MPs, would recognise that, if the opportunity is given to present further evidence, reconsideration may be appropriate. However, there is a sense that the mandatory approach might be another hurdle rather than a way of helping the applicant.
My question to the Minister, then, is this: what efforts is the Department making to ensure that reconsideration does not become a barrier to a person who needs, and ultimately receives, financial support? The Minister will surely recognise that the success rate at tribunals will make this an issue of grave concern to many of those who are viewing the new process.
Will the Department give any information on what kind of additional evidence is required as part of the reassessment process? Sometimes, people are not quite sure exactly what they are expected to put on the table
as part of any consideration; otherwise, in many instances, they would put that on the table in the first place. Will the Minister reconcile the policy intention with the example quoted by the south-west citizens advice bureau in response to her consultation?The Minister highlighted briefly that one of the contentious issues—in fact, it is probably the most contentious—is the time scale, from both the client’s and the Department’s point of view. Let me first deal with the departmental processes. Will the Minister tell the Committee how she sees the reconsideration time scale operating? In some cases quoted in the consultation responses, the reconsideration can take place automatically within days and, indeed, the Minister used that phrase herself. However, if a reconsideration is taking place within days, frankly, that appears to give little time to gather the required evidence. I therefore wonder exactly what view the Minister has on whether reconsideration within days is the right approach, as there may not be the opportunity to gather further evidence.
What monitoring will take place to ensure that reconsideration is based on the submission of additional evidence? The Minister mentioned that the reconsideration could take place within days, so does that mean that there will be no opportunity to gather additional evidence? We need a wee bit of clarity there.
The Department is keen on imposing time scales on benefit claimants, but it seems reluctant to impose the same discipline on its own staff and procedures. As the Government are aware, a number of responses to the consultation highlighted that contradiction. Under the current processes, a claimant who believes that the Department is dilatory in making a reconsideration assessment under voluntary reconsideration can move to appeal, which often focuses the departmental mind. However, under the new regulations, that will no longer be the case. Given that many of the applicants will be facing financial hardship, how will the Minister protect the applicants’ interests? She said that they could apply for other benefits and, in the case of ESA, she indicated that they could apply for JSA, but if someone seeks to qualify under ESA, they may have long-term sickness or a disability and may not meet the strict conditionality imposed by jobseeker’s allowance, and there is, according to the Secretary of State, even stricter conditionality coming in. How does the Minister reconcile that?
The fact is that so many appeals are upheld. According to the statistics unearthed by Baroness Sherlock, some 50,000 people won their appeals in a three-month period from January to March 2013; scaled up, that equates to 200,000 people annually, and those people were denied their benefits for a significant period of months.
All of us, regardless of which political party we represent in this House, recognise that the courts and tribunal service is buckling under the strain of the massive increase in case load; I understand that that was an increase of some 41% at the end of March 2013 compared with the year-end 2012. Therefore, if we do not have a departmental guideline for the time frame for reconsideration, we could have some of the most financially vulnerable people having to wait even longer to get to an appeal application.
As there will be some complicated issues, which the Minister alluded to, which will make some reconsiderations take longer than others, why does the Department not impose a timetable discipline on itself? We now
ask applicants to meet two timetables—one for the reconsideration and one for the tribunal—yet the Department is unwilling to hold itself even to one and we need to ask why. If the Department is not going to set a timetable, can the Minister advise the Committee what action is being taken to introduce a range of performance indicators? She mentioned it in her contribution, and Lord Freud mentioned it in his answer to Baroness Sherlock in the other place. The other place considered the matter in July. We are now in September; we are nearly at the October vesting date. Therefore, can the Minister give us some more information on these performance indicators, even just a hint of what they might look like?This Government have spent the last three years telling us how transparent they want everyone to be. Yet, as highlighted in paragraph 12 of the explanatory notes, they are refusing to publish the data on how many requests for reconsideration will be made, the length of time taken to process a request, and the outcome of such reconsiderations. Can the Minister tell us how MPs are therefore to judge whether people are being best served by the new process? I would suggest respectfully to her that it is not acceptable to say that this is just management information and is not usually published, as highlighted in paragraph 12. it is no longer management information. It is now a formal part of the process of benefit application. We can get figures for the number of applicants in the initial stages, for the number of first-tier and upper-tier appeals, and the success rate, but no information on a new formal intermediate stage. This is not simply management information—it is a new mandatory process being introduced into the system and as such the Department should be publicly accountable on a regular basis.
I thought that Lord Freud’s response to Baroness Sherlock was particularly weak on that point. The response was that it would cost too much to validate. Given how much money the Department has wasted on all sorts of other processes over the last three years, I would have thought it would have been able to absorb some of these additional costs—if there are additional costs involved, because the information is already there. I would suggest that the raw data could be published with a health warning. The reality is that we are going to get no information from the first stage to the last stage. I do not think that is acceptable.
Could the Minister advise the Committee whether there will be any circumstances where an applicant can go to appeal without a reconsideration, for example, if the person is late in making the application for a mandatory reconsideration? Perhaps she could also advise us of the scope for flexibility to consider a late reconsideration. What happens if the request for a late reconsideration is refused—can the applicant then go to appeal?
Disability Rights UK has raised the important issue of payments when the decision is disputed. The Minister alluded to that and I think I have also dealt with that in my comments about the conditionality on jobseeker’s allowance.
Although I do not intend to divide the Committee on these regulations, I would suggest that the Department has not yet filled us with confidence that instead of making the system fairer and more efficient, it could
end up making it less efficient and less fair, unless it considers the implementation put to this Committee today with a little more care and consideration. The Minister cannot just cross her fingers and hope it will be okay on the day. Frankly, over the last few months—if not the last two or three years—the Department has not exactly come up to the standard on this. If it does not match up to the ambition of making the system fairer, it will not be the Minister taking the pain, but those people who depend on benefits and who will ultimately receive them on appeal but only at the end of a longer process than is currently the case.9.14 am
Esther McVey: I will answer the questions in the order in which they were raised. It is important to set out what these changes are about. Fairness and ease are the underlying principles we want to use in dealing with mandatory reconsideration. The notion of a revision was always there; it just was not used. Cases were escalated immediately into a judicial, or appeal, process, instead of being more of an administrative process that ensured the Department did the job correctly and got the answer right first time, with a much smoother, more robust and faster process, in which people could have greater faith. Those are the underlying principles and what we wish to pursue.
On the points made by the citizens advice bureau in the south-west and the question of whether this is a proper process or potentially another hurdle, it is not about being a hurdle; it is about having a proper process. It would not make sense at any level—whether moral or financial—to put a hurdle in the way, which would take time. Time means cost for everybody, from the DWP to the decision makers to the courts. That was not the reason. It is a case of having a swifter, more efficient and more transparent system in which we can all have faith. We know that 56% of cases are overturned at appeal, not because the decision was wrong but because new information was handed down that the decision maker never saw. Why would we follow such a path? Why would we not have better communication with the appellant so that we got that information and could finish cases at the DWP before they went to the judicial process?
Mrs McGuire: It is pretty clear from the citizens advice bureau’s submission—although this is my interpretation, to a certain extent—that there is a disconnect between what happens at the points of reconsideration and appeal: none of the cases was overturned, yet when they went to the tribunal a significant number of appeals were upheld. It seemed almost that the reconsideration process was becoming just a clerical exercise; people were still having to go to appeal. That is the point the citizens advice bureau was making.
Esther McVey: There would be no real numbers by which the bureau could conclude that, because people were not taking the route of reconsideration. They were automatically going to appeal, so it would not be possible to reach those conclusions. We know for certain that only 15% of appeals are overturned on the decisions made. In fact, 56% of decisions are overturned because of new information coming to light that nobody, including the decision maker, has seen before. The president of
the Tribunals Service said that it cannot be right that people are following a judicial process; cases need to be got right within the DWP. That is the process we want to follow.Fiona Mactaggart (Slough) (Lab): What steps did the Minister put in place to ensure that at the reconsideration point there is a mechanism to get this additional information, so that the quality of reconsideration—which, I confess, has not always been brilliant—is improved and the case made by the applicant gets a proper hearing at that stage, before they have to go to appeal?
Esther McVey: The hon. Lady raises a good point. That is exactly what we intend to do: ensure that we have all relevant information so that we can make a proper decision. An appellant does not need the stress of going through a court process that could take longer. If we can get that right straightaway it makes sense to everybody.
That leads into the next point, which is about the timetable for reconsideration. It is not just a case of how fast that can be; more than anything, it is about the quality of the information we have, so that we can ensure we get that decision right.
The right hon. Member for Stirling is right that some cases could take days if the information that the claimant has, but which has never been handed over, is to hand. Equally, however, it could take longer, given that by law—under the regulations—we have to give the claimant a month if we need extra medical information. They need that time to get that information. We have to hold to those legal obligations. If necessary—if it is more complex—they could ask for extra time to get the information. We have to balance all those things: we need to get it done swiftly but, equally, we must get the right calibre of information. We do not want the dual unfairness of getting it wrong both the first and the second time. This change is about getting it right first time.
The right hon. Lady talked about other sources of benefit and funding for the claimant if they are not getting ESA. They would get JSA, and, quite rightly, should they need their conditionality reduced to claim JSA, that would happen. We appreciate that some people might have disabilities but still be able to work, and so will be subject to finding a job, although that may not be the job they wanted in the first instance. However, they could have the ability to work. If so, the support is there, but those claimants would have reduced conditionality. Again, it is about having a tailor-made service. Those claimants would be dealing with the disability employment adviser and all the benefit officers, who would have great knowledge about what those claimants could or could not do.
As I have said from the start, the process is not a new one. The right hon. Lady said that it was, but it is not: it is a case of using what is already in place but has been overlooked. The aim is to make sure that the process is properly escalated and thorough, rather than simply going straight to a judicial process. That is what the regulations are about.
The right hon. Lady talked about late reconsiderations. We have said that we would expect people to make an appeal within a month, but if they have a reasonable
explanation for why they did not act within the month or why they needed extra time, that will be taken into consideration, and they could have extra time to go to mandatory reconsideration or, later on, to an appeal. However, it should always be the case that they go via the reconsideration, which is why reconsideration is being made mandatory. That is the correct way to proceed in this area.Ongoing monitoring is important. We are extending reconsideration, and so we need to know the facts: how many people are requesting it, what the length of the process is and what the outcomes are. We will have to be thorough and those data will have to be collected. The process will need to comply with our standards of conformity and acceptability, because, as I have said, at the end of the day, we must get it right. The Department does not, in general, publish data relating to process management and has no plans to do so for the mandatory reconsideration process. However, the Department will use the data collected to monitor its operation of the mandatory reconsideration process and may consider publishing an ad hoc analysis of those data.
Mrs McGuire: The Minister has said, quite rightly, that the reconsideration process is not new; the difference is that it has now become mandatory. If it is mandatory, Members of Parliament should be able to see the full extent of the process. Will the Minister clarify what she meant by her last remark, that the Department might publish data on an ad hoc basis—will that publication be regular and linked to the publication of more formal statistics, or will it take place as and when it suits the Department? There is no way for Members to scrutinise the new mandatory process unless we have the information to do so. That is why I said that that information is no longer just management information but is information about process.
Esther McVey: I hear what the right hon. Lady is saying. In line with and running parallel to the monitoring is the fact that claimants can use established complaints procedures if they are unhappy. That will be looked at, as well. Ultimately, claimants could seek a judicial review from the DWP, if, within that period, they could not understand what had happened with the reconsideration and were still uncertain. There will therefore be two sets of ongoing data: the data from the claimant having the whole process monitored and the information the DWP collects internally.
I cannot say any more at the moment, except to say that those data could be published on an ad hoc basis but we would not plan to publish them all. We are monitoring the data, and it is safe to say that we all want the same outcome. It cannot be right to escalate cases to a judicial process immediately when we could have got things right first time, and the decision makers could have had the information to make a proper decision rather than that coming later in the day. However, I will write to the right hon. Lady about the clarity she is seeking within the monitoring process.
I thank hon. Members for the informative debate we have had today, which has raised important issues and given me the opportunity to set out the Government’s thinking. I assure right hon. Members and hon. Members
that we will closely monitor the new process and its impact on claimants and appeals during the early stages of its wider implementation, learning lessons from universal credit and the personal independence payment. By implementing a more robust review of disputed decisions, we hope to resolve concerns at the earliest opportunity and remove the need to go to appeal. Processing times will be closely monitored from the start, and although the focus will be on quality the Department is mindful of the requirement to complete the process without unnecessary delay.This is a key change that we must get right, for everyone’s sake. I thank hon. Members for their interest in and consideration of the regulations, which I commend to the Committee.
That the Committee has considered the draft Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013.