Employment and Support Allowance and Work Capability Assessments - Work and Pensions Committee Contents

6  Mandatory reconsideration and appeals

90. In our 2011 report on IB reassessment, we expressed concern about the high number of ESA appeals.[132] In recent years, the proportion of ESA decisions appealed against, and the proportion of those that are overturned on appeal, has remained high: between April 2012 and March 2013, around 35% of fit for work decisions for ESA new claims were appealed against, and 33% of these were overturned on appeal. This equates to just over 1 in 10 initial fit for work decisions being reversed at tribunal.[133] In 2013-14, 232,639 appeals were lodged against ESA decisions. This clearly involves considerable expense to the public purse: the average cost of an appeal is estimated at £248;[134] and in 2013-14 the total cost to DWP of appeals was £69.9 million.[135] We were therefore keen to revisit this area, and to consider the steps the Department has taken to try and reduce the need for a large number of appeals.

Mandatory reconsideration

91. Mandatory reconsideration (MR) was introduced in April 2013 for Universal Credit and Personal Independence Payment claims, and in October 2013 for all other DWP administered-benefits and child maintenance cases, including ESA. Prior to its introduction, those wishing to challenge DWP's decision could immediately lodge an appeal with HM Courts and Tribunals Service (HMCTS). The introduction of MR means that those wishing to challenge a decision must ask DWP to reconsider it first, and only when DWP has done so may the person then proceed to appeal if they remain dissatisfied.[136] As part of this inquiry, we considered what impact the introduction of MR was having on those who had gone through the WCA process and wished to challenge DWP's decision. Some of the issues raised, and the recommendations we make, are equally applicable to the reconsideration of other DWP decisions.

92. DWP has stated that MR was introduced to:

·  resolve disputes as early as possible;

·  reduce unnecessary demand on HMCTS by resolving more disputes internally;

·  consider revising a decision where appropriate;

·  provide a full explanation of the decision; and

·  encourage claimants to identify and provide any additional evidence that may affect the decision, so that they receive a correct decision at the earliest opportunity.[137]

93. HH Judge Robert Martin, President of the Social Entitlement Chamber of the First-tier Tribunal, believed that MR was based on a "false premise" as, prior to its introduction, DWP already reconsidered every decision that went to appeal. This information was also provided to us by the then Minister for Employment in March 2012, who stated that virtually all appealed decisions were already going through reconsideration, before it became mandatory.[138] Judge Martin argued that the introduction of MR was of "dubious advantage", as the claimant now had to make two applications (one for reconsideration and one for an appeal to HMCTS), whereas under the old system they only had to make one. The only advantage he saw to its introduction would be if it led to "a much more rigorous reappraisal by the Department of its decisions."[139] Jason Feeney told us that reconsideration of decisions was now a "much more rigorous, independent process", as it was "more focused on getting further medical evidence where it is needed" and because it was now undertaken by independent teams in different locations to the original decision-makers.[140]

94. Judge Martin also believed that the introduction of MR, rather than leading to a justified reduction in appeals, might discourage claimants who might have had "winnable" cases from appealing, because they found the process too onerous. He argued that it was "crucial" that research be undertaken into claimant behaviour in this respect.[141] Z2K and Citizens Advice, although not against the principle of MR, were concerned about how it was operating in practice.[142] These concerns are considered below.


95. The most recent statistics show that there has been a large reduction in the number of appeals against ESA decisions received by HMCTS: in January to March 2014 there were 11,455 ESA appeal receipts, compared to 109,033 in the same period for the previous year. This represents a reduction of 89%.[143] Kevin Sadler, Director of Civil, Families and Tribunals, at HMCTS, told us that they were still working with DWP to understand the reasons for the reduction, but DWP operational decisions about slowing down the WCA process had affected the number of appeals: "If they make fewer decisions, we get fewer appeals."[144]

96. The Minister acknowledged that there were "lots of different reasons" for the reduction in the number of appeals. In the absence of a proper analysis at this stage, he was unable to say whether it was entirely down to the introduction of MR, but he was hopeful that it was at least in part down to changes that had been made to assessments. He assured us that DWP would be analysing the reasons behind the reduction.[145] Kevin Sadler believed that it was possible that the introduction of MR would reduce the proportion of decisions that are overturned on appeal but pointed out that, because it might also leave the tribunal with only the "most finely balanced cases", it might not.[146]

97. We have previously expressed concern about the high number of appeals against ESA decisions. Appeals are both expensive to the public purse and stressful for claimants and we welcome the introduction of mandatory reconsideration (MR) as a step towards reducing the number of unnecessary appeals. However insufficient information is currently available to allow us to evaluate whether it is likely to have this effect in the longer term. The reduction in the number of DWP decisions, due to temporary operational changes, is likely to have contributed to the significant reduction in appeals shown in the latest statistics, rather than representing a long-term change arising solely from MR. We welcome DWP's assurance that an analysis of the reasons behind the reduction in appeals will be undertaken.

98. Mandatory reconsideration will be a success if it results in a reduction in unnecessary appeals to HMCTS. We are however concerned that its introduction may deter claimants who were likely to have been successful in their challenge from appealing, because the new dual process is more onerous. We recommend that the Department monitor claimant behaviour, to evaluate whether the policy is having this undesired effect, rather than fulfilling its intended purpose of ensuring a correct decision is reached more quickly and without needing to go to appeal.


99. Statistics are not yet available on how many requests have been made for reconsideration of ESA decisions, and how many of these decisions were changed as a result. Current statistics on the outcomes of WCAs take account of adjustments to decisions that have been made following reconsideration; however a breakdown of the figures, showing the difference between the outcomes of initial decisions, and the outcomes once readjustments following reconsideration are taken into account, is not provided.[147] DWP has stated that, although data is being collected on the volumes and outcomes of MR, "it is not sufficiently robust and reliable to make available."[148] DWP told us that it does not yet have a date for publications of the full statistics.[149]

100. We recommend that the Department works with the Office for National Statistics to ensure that official statistics on the operation of mandatory reconsideration are published as a matter of urgency. These should include: volumes of reconsiderations received and processed since the policy was introduced; the outcomes of these reconsiderations; the overall impact on ESA outcomes; and the length of time it is taking for reconsiderations to be completed.


101. Statistics are also unavailable on the time it takes for reconsiderations to be completed.[150] DWP does not have a target completion time for reconsiderations and a number of witnesses suggested that a target time or time-limit should be introduced.[151] For "straightforward cases", where it is not necessary for further information to be sought, DWP expects the process to take around 14 days. However, DWP emphasised that it could take longer, especially if additional information is needed, because the Department must allow claimants a month to submit it. [152] Z2K told us that, in its experience, the time it takes "varies greatly from two months to much longer".[153] The Minister said that the current time taken was affected by the backlog of ESA reconsiderations which had built up, but that DWP was "working on it." He reiterated that he would not be setting a time-limit because of the need to allow time for additional evidence to be submitted. His view was: "If we get the decision right, then it is worth the time." However he wished to speed up the process.[154]

102. We acknowledge that DWP often needs to seek additional evidence as part of the reconsideration process, which can be time-consuming, and we agree that it is better for mandatory reconsideration to take a little longer if this results in the correct decision being made. However this should not be an open-ended process and we do not accept that either of these factors preclude DWP from introducing a reasonable time target for completion of reconsideration. The introduction of a time target would also help to drive better performance. We therefore recommend that DWP introduce and report against a reasonable time target for the completion of mandatory reconsiderations.


103. Claimants deemed fit for work who request reconsideration of that decision are not able to claim ESA at the assessment rate; instead they can claim Jobseeker's Allowance (JSA) if they are eligible. (Claimants who are placed in the WRAG and ask for reconsideration on the basis that they should be in the Support Group are paid ESA with the WRAG component during this period.) If, after MR, the claimant appeals to HMCTS, then assessment rate ESA is reinstated.

104. Certain conditionality requirements have always been attached to JSA. As part of the introduction of Universal Credit, all JSA claimants are now required to sign the Claimant Commitment, which requires them to undertake extensive job-search activities, which may be up to 35 hours a week, in return for receiving the benefit.[155] If claimants do claim JSA, they may be sanctioned if they do not fulfil the conditionality requirements. If claimants do not claim JSA, this can cause other problems, including a claimant's Housing Benefit being stopped because the local authority has been informed by DWP that the claimant is no longer in receipt of a relevant out-of-work benefit.

105. The Minister for Employment has previously said that "DWP advisers have the flexibility to tailor conditionality to suit a claimant's circumstances and appropriate guidance is issued to DWP staff in Jobcentres."[156] Despite this assurance, we have heard a number of reports of claimants being told by JCP advisers that they are unable to claim JSA on the grounds that they will not be able to meet the conditionality requirements because they are not fit for work.[157] This leaves claimants unable to claim either ESA or JSA and therefore financially vulnerable while their case is reconsidered. Jason Feeney told us that not all Jobcentre advisers had been aware of the flexibility to offer tailored conditionality but DWP had recently issued new guidance on this.[158]

106. We have also heard reports that claimants are reluctant to claim JSA because they fear it will count against them in the reconsideration of their ESA decision.[159] A number of witnesses also point to the inappropriateness of requiring claimants to claim a fit for work benefit when they are arguing that they are not fit for work.[160] We have also heard that not paying claimants ESA during the MR may have the negative effect of deterring them from submitting further evidence at the MR stage, so that they can proceed to appeal more quickly.[161]

107. Citizens Advice pointed out that it is "time and resource intensive to move people from ESA to JSA and back to ESA within a few weeks" (with claimants becoming re-eligible for assessment rate ESA once an appeal has been lodged). Moreover, assessment rate ESA and JSA are the same amount of money, so there is no financial saving for the Department (unless it expects fewer people will claim JSA as a result).[162] Therefore, not only is there no obvious saving, but there may be an administrative cost to this policy.

108. The Minister defended this approach: "A decision has been made by the decision-maker that that person is fit for some type of work—and that is the decision". However it is also the case that claimants have been determined as fit for work during the appeal process, but in that situation they are paid ESA at the assessment rate. The Minister told us that he would look again at the policy.[163]

109. We believe that it is inappropriate that those who have been determined by DWP to be fit for work and who have asked the Department to reconsider the decision are ineligible for assessment rate ESA. Although these people may be eligible to claim JSA, many are reluctant to do so because of the accompanying conditionality requirements. There has also been a problem with some Jobcentre advisers not being aware of the flexibility to modify the attached conditionality appropriately for these claimants. Assessment rate ESA and JSA are the same amount of money, so there is no financial saving for the Department from the policy, and it may in fact cost the Department money due to the administrative burden of moving claimants from assessment rate ESA to JSA during reconsideration, and then back to assessment rate ESA if they decide to appeal. We therefore recommend that claimants deemed fit for work following the WCA process who have requested that the Department reconsider that decision be paid ESA at the assessment rate until they receive the reconsidered decision.

Role of tribunals in improving initial decision-making

Feedback from judges

110. In his independent reviews of the WCA, Professor Harrington pointed to the value of feedback from the tribunals in improving the initial decision-making process, and therefore reducing the number of appeals. In response, in June 2013 HMCTS introduced the provision of "summary reasons" on a "controlled start basis" for ESA cases where DWP's decision was overturned or upheld. Written summary reasons are provided in the Decision Notice which is issued by the tribunal and sent to both the claimant and DWP after the hearing. This was introduced initially at four tribunals for ESA cases, and since April, summary reasons have been provided nationally in ESA and PIP cases.[164] HH Judge Martin explained: "It is national in that we are running it at those centres where we have the IT support that allows us to use computerised decision notices. The coverage is not 100%, but the majority of centres are now linking up and generating this."[165]

111. Judge Martin believed that summary reasons would not only enable decision-makers and HCPs involved in a particular case to learn what went wrong, but that "it is also possible to aggregate the data to find out whether there are systemic shortcomings." He was however concerned about DWP being able to handle the volume of information it was receiving through this process. He pointed to the "crucial feature of feedback", which is "that it should do something".[166] Richard Mason from the Ministry of Justice agreed that there was "little point" collecting feedback unless it would be used, but he explained that DWP was using the feedback "in training for decision-makers, in reviewing their guidance for decision-makers, looking to identify trends and pulling out useful case studies".[167]

112. DWP acknowledged that communication between tribunals and its DMs about what happens in an appeal is an "important feedback loop". It explained that it is using the summary reasons "to broaden its understanding as to why its decisions are upheld or overturned, and to identify areas where the approach to decision-making can be strengthened as a part of its continuous improvement work."[168] The Minister told us that DWP needed to "listen very carefully" to the feedback given.[169] Atos told us that feedback from appeals would be helpful for its assessors but they do not receive this under the current arrangements.[170]

113. We welcome the introduction of more extensive feedback from appeals through the provision of summary reasons by tribunal judges. However it is critical that this feedback is used effectively by the Department to improve the initial decision-making process. We recommend that, in response to this report, the Government set out how it plans to handle the volume of information it is now receiving through summary reasons, and how it will analyse and use it to improve the initial decision-making process. We further recommend that feedback from summary reasons is also shared with the new provider of the face-to-face assessment, so that it can be used to evaluate how assessments could be improved.

Efficiency of the appeals process

114. In our 2011 report on IB reassessment, we pointed to the significant delay in appeals being heard, taking on average 21.8 weeks to be disposed of at that time.[171] The most recent statistics, for cases disposed of by the Social Security and Child Support Tribunals in the quarter January-March 2014, show that delays are still significant for some claimants: although half of all cases were cleared within 22 weeks or less, the average case clearance time was 25 weeks.[172]

115. HMCTS witnesses explained that the capacity of the tribunal service had been a substantial cause of the delays in the past, However, Judge Martin believed that it now had the capacity to deal with the volumes and had made "tremendous inroads" in reducing the backlog of cases. Kevin Sadler explained that the initial appeal forecasts provided by DWP had been too low, "by a factor of 10". He said that HMCTS had been working with DWP "ever since to get better forecasts and better management information."[173]

116. Another change in the process for challenging decisions, introduced at the same time as mandatory reconsideration, is "direct lodgement". This change was intended to simplify the process and to bring it in line with other appeal processes in HMCTS.[174] Previously, claimants submitted their appeal to DWP, and it was then transferred to HMCTS. Under direct lodgement, claimants must submit a letter of appeal to HMCTS within a month of the MR letter being issued. Once HMCTS has received the required documentation, it will inform DWP that an appeal has been lodged. DWP will then consider the case again and may change the original decision being appealed at any time before the case is heard at the tribunal. It may also object to the appeal, for example if it believes it to be "unreasonably late" or "to have no likelihood of succeeding."[175]

117. DWP must provide a written response to the appeal. A hearing then takes place in the First-tier Tribunal. Kevin Sadler explained that delays in DWP providing its response promptly had also been a factor in appeal delays. Before MR was introduced, it took nine weeks on average for DWP to provide its submission to a case.[176] A time limit of 28 days for returning a response in benefit cases will be introduced from October 2014 and DWP is currently working to that timeframe.[177] Kevin Sadler believed that "around 10 weeks" was the best outcome you might expect for the age of case at disposal in the tribunal. Based on an even flow of appeals, and with the current capacity, he expected that timescale to be met "often in this financial year". However, he emphasised that he was "entirely dependent on what DWP send me."[178]

118. Officials explained that, when they receive an appeal, they currently notify DWP in a form sent by post. We challenged the efficiency of continuing to use a hard copy system. Kevin Sadler acknowledged that "in an ideal world with an IT system that did everything I wanted it to" these forms would be sent electronically and, indeed, an electronic appeal form accessible via the internet would also be a goal, if HMCTS had the funding available for this.[179]

119. We welcome the efforts to streamline and speed up the appeals process by increasing the capacity of the Tribunals Service, and introducing direct lodgement and a target time for DWP to submit its case to the tribunal. We were, however, surprised to learn that documentation is exchanged between DWP and the Tribunals Service in hard copy through the post, given the Government's emphasis on the benefits of using the internet for public services. There is clearly further scope for increasing efficiency and improving the service for claimants making an appeal by introducing an online appeal application form and enabling electronic transfer of documents between DWP and the HMCTS. We appreciate that there will be an initial cost, but the return in terms of speed and efficiency would be worthwhile. We recommend that the Government set out the action it intends to take in this respect in response to this Report.

132   Work and Pensions Committee, The role of incapacity benefit reassessment in helping claimants into employment, para 146 Back

133   DWP, ESA: outcomes of WCAs, Great Britain - tables, June 2014, table 3 Back

134   Ministry of Justice, Tribunals statistics quarterly: January-March 2014 - tables, June 2014, table 1.4; Q123 Back

135   HC Deb 7 July 2014, col 103w. This breaks down as £28.7 million in DWP operating costs and £41.2 million paid by DWP to HMCTS for appeals handled in excess of the volume for which baseline funding was provided.  Back

136   DWP (WCA0202) paras 45-51 Back

137   DWP, Appeals Reform: An introduction, August 2013, p 4 Back

138   Oral evidence taken on 19 March 2012 on the Work Programme, HC 1903-i, Q6 Back

139   Q96 Judge Martin retired from his post as President of the Social Entitlement Chamber of the First-tier Tribunal on 1 June 2014. Back

140   Q504 Back

141   Q98 Back

142   Q57 Back

143   Ministry of Justice, Tribunals statistics quarterly: January-March 2014 - tables, June 2014, table 1.4  Back

144   Q109 Back

145   Qq420-23 Back

146   Q181 Back

147   DWP, ESA: outcomes of WCAs, Great Britain, Quarterly official statistics bulletin, June 2014, para 1.1.1  Back

148   HC Deb 8 April 2014, cols 218-19w Back

149   Q509; DWP supplementary written evidence Back

150   Qq510-13; HC Deb 8 April 2014, cols 218-19w Back

151   Q59 [Citizens Advice]; Z2K (WCA0019) para 55, St Mungo's (WCA0180) para 2.5 Back

152   HC Deb 25 November 2013, col 121w Back

153   Z2k (WCA0119) paras 51 Back

154   Qq505-6 Back

155   See Work and Pensions Committee, The role of Jobcentre Plus in the reformed welfare system, paras 39-48 and 76-80 Back

156   HC Deb, 5 Nov 2013, col 153w Back

157   Disabled People against Cuts (WCA0152) para 60; Spartacus (WCA0159); Citizens Advice (WCA0160) para 39 Back

158   Q521 Back

159   Scope (WCA0151) para 4.12.1, Citizens Advice (WCA0160) para 39 Back

160   Q60 [Z2K] Public and Commercial Services Union (WCA0102) para 19 Back

161   John Slater (WCA0028) para 2, Citizens Advice (WCA0160) para 39 Back

162   Citizens Advice (WCA0160) para 37 Back

163   Q538 Back

164   DWP (WCA0196) para 59 and Q164 Back

165   Q164 Back

166   Q164 Back

167   Q177 Back

168   DWP (WCA0196) para 59 Back

169   Q420 Back

170   Qq389-392 Back

171   Work and Pensions Committee, The role of incapacity benefit reassessment in helping claimants into employment, paras 142 and 146 Back

172   Ministry of Justice, Tribunal Statistics quarterly: January-March 2014-tables, June 2014, table 4.2 Back

173   Qq90-91 Back

174   DWP, Appeals Reform - An introduction, August 2013, p 4 Back

175   DWP (WCA0196) paras 53 and 57 Back

176   Qq95-96 Back

177   DWP (WCA0196), para 58 Back

178   Q135 Back

179   Qq107-8 and 138 Back

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Prepared 23 July 2014