House of Commons - Improving Access to Work for disabled people

Improving Access to Work for disabled people - Work and Pensions Committee Contents

5 Clarity and transparency of decision-making

85. As previously noted, AtW is a discretionary award; it is not a statutory benefit to which eligible people have a legal entitlement. DWP staff follow detailed and comprehensive guidance in coming to their decisions about applicants' eligibility and the levels of awards, but applicants have no right to a formal appeal, even where they believe that the guidance has not been followed. Below we consider the clarity and transparency of AtW decision-making, and the processes by which applicants can challenge DWP's decisions or complain if they believe they have been treated unfairly.

Eligibility criteria

86. The eligibility criteria for AtW are relatively straightforward. Support is not means-tested or based on National Insurance contributions—common complexities in the social security system. AtW is in theory available to all people aged 16 years and over who are resident in Great Britain and have a long-term disability, as defined by the Equality Act 2010. They must be in paid work, full or part-time, which pays at least the National Minimum Wage (NMW). They can also be eligible if they have an offer to start paid work, or are taking part in one of an approved range of work experience or similar placements. Applicants are not typically eligible for support if they are in receipt of out-of-work benefits.[95]

Clarity and transparency of AtW staff guidance

87. Despite eligibility criteria which are, on the face of it, fairly straightforward, DWP staff follow long and prescriptive guidance in coming to their decisions. The current (24^th) version of the AtW guidance is a 105-page document containing 759 paragraphs and seven appendices. It details the steps DWP staff should take in relation to: establishing an applicant's eligibility to apply for support; processing applications; assessing applicants' needs; and the provision of each of the main elements of AtW support—travel to work; Support Workers; and adaptations/equipment.

88. A key concern amongst service users was that they were not clear about the basis on which DWP makes its decisions.[96] The guidance is not published by DWP. One group of employers told us that consequently it was "impossible to judge the extent to which [the eligibility rules] have been followed in any case."[97] The guidance has only recently become available on the internet following a Freedom of Information request.[98]

89. The Minister told us that DWP did not deliberately keep the guidance "a secret"; if applicants asked for a copy, they were sent it. However, he acknowledged that the current guidance was inaccessible and "not user-friendly". He confirmed that it was his intention, following DWP's internal review, to publish the guidance, in a simplified form, on the AtW webpages.[99] He subsequently wrote to us, emphasising that a core task for the Department's internal review of AtW was to ensure that the guidance is "clear, coherent and accessible".[100]

Flexibility versus consistency of decision-making

90. Many witnesses were concerned about inconsistencies in the way the guidance was applied, for example in relation to BSL interpretation, as set out in the previous chapter. On the other hand, some argued that DWP staff ought to be encouraged to take a much more flexible approach in some circumstances. Gareth Parry used the example of AtW-funded taxi travel for people who find using public transport difficult:

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91. The Minister's view was that there was "quite a lot of discretion" for Advisers in the current guidance, and that this was appropriate for a discretionary award. He recognised the challenge of ensuring that decisions on awards for people with similar needs were broadly consistent, while allowing a level of flexibility sufficient to take individual circumstances into account.[102]

92. Many Access to Work applicants and service users are unclear about the basis on which the Department makes decisions on eligibility and levels of awards. There is currently an unacceptable lack of clarity and transparency around this. DWP appears recently to have taken an inflexible approach to some Access to Work awards, particularly those for relatively high cost support such as Support Workers. This is regrettable. We believe that it is important that Access to Work remain focused on its fundamental policy intention: to provide the minimum level of effective support to help disabled people overcome their disability-related barriers in work.

93. While it is important to maintain a reasonable level of consistency, individual needs will to some extent always be different and decision-making should reflect this. Access to Work is not a social security benefit; although the use of substantial amounts of public money through a programme with limited transparency and accountability is a concern, the discretionary nature of Access to Work should be a strength of the programme. A "box-ticking", "one size fits all" approach is inappropriate.

94. We welcome the Minister's assurances that the clarity, coherence and accessibility of the Access to Work guidance will be addressed as part of DWP's internal review. We recommend that clarified guidance be published online, in formats accessible to disabled people, at the earliest possible opportunity, so that applicants can be much clearer about the basis on which DWP makes its award decisions. DWP staff should be encouraged in guidance to take a more flexible, innovative and long-term approach to award decisions, for example by investing in training to overcome difficulties using public transport, rather than assuming that long-term funding for use of taxis is the most appropriate form of support.

THE SELF-EMPLOYED AND ENTREPRENEURS

95. A number of witnesses highlighted support for self-employed people, and owners of small businesses, as an area in which much more flexibility would be appropriate. For the purposes of AtW self-employment is currently defined as follows:

Operating a business either on the customer's own account or in partnership, or working for an employer on a self-employed contractual basis;

Operating a franchised business on a self-employed basis; and

Paying Class II or Class IV National Insurance contributions.

There is no requirement in the guidance for the self-employed person's business to be profitable; only that the business "must have a history of, or a reasonable prospect of, generating income". Where an AtW Adviser has any doubt about the business's prospects of profitability, "they can decide to put AtW support in place for a limited time e.g. 3 months and then review the case."

96. However, where an AtW applicant is paid a PAYE salary by the company they own and run, they are considered to be employed rather than self-employed.[103] Therefore, under a strict interpretation of the guidance, they must pay themselves at least the NMW. Evidence from some service users suggested that application of the guidance in this way had unfairly affected owners of nascent small businesses who were paid only a small salary from that business. We also received evidence that self-employed people, particularly those with intermittent and fluctuating earnings, including actors, were sometimes adversely affected by strict adherence to the current guidance.[104]

97. These issues were most clearly illustrated by DWP's recent approach to the AtW award of Julie Fernandez, a self-employed actor and broadcaster, who is also the joint owner of small business established in 2011. She had received AtW support since 2001, allowing her to fund Support Workers to overcome barriers posed by her disability in her various work roles. Her most recent three-year award was granted in 2011. When it last came up for review in May/June 2014, she was told by DWP that her support would be discontinued. Among the reasons given were that: a) her self-employed acting and broadcasting work had provided insufficient income in the last tax year; and b) her salary from her jointly owned business was below the NMW.[105]

98. Julie Fernandez told us that her earnings from acting and broadcasting fluctuated greatly; she might have no media work at all for several months but then secure very lucrative work. She also explained that she and her business partner had decided to take a very small salary, sufficient to meet their travel costs only, from their company during a period of expansion. She emphasised that her business was "only three years old and growing and doing very well"; she expected to be able to draw a larger salary in the future, but that this would "take time". She reported that the business employed 11 other people.[106]

99. When we put it to the Minister that DWP needed to examine the way in which it was applying discretion in these types of cases, he indicated that this would be a key part of the Department's internal review. He suggested that "what Access to Work Advisers should be doing is looking at the business in the round", including its "history and future prospects" and the number of people it employs.[107] He later wrote to us to confirm that "As a matter of urgency we will insert an amendment in the guidance", stating that "the requirement for employed people to be paid the NMW does not apply to those employed as Company Directors." He also stated that general concerns about the clarity of the guidance around support for the self-employed and entrepreneurs would be looked at as a priority, within the internal review.[108]

100. We believe that Access to Work should aim to level the playing field for disabled people in the labour market, including by aiming to facilitate the same chance of success in self-employment and entrepreneurship as applies to the rest of the population. We therefore welcome the Minister's assurance that the clarity of the guidance in relation to self-employment will be a priority within DWP's internal review. We also welcome the Minister's urgent amendment to the guidance in relation to minimum earnings requirements for Company Directors.

101. We recommend that the guidance on support for self-employed people be substantially re-drafted and clarified. In cases where the applicant is a business owner the full history and circumstances of that business should be taken into account in determining AtW support, including whether it employs staff. The guidance also needs to be amended so that it encourages DWP staff to take greater account of the financial realities of working on a freelance basis, including intermittent and fluctuating earnings.

Decision reviews and complaints

102. Most witnesses understood that AtW awards are discretionary, but many appeared to be unclear about the process by which they could query decisions, and ask for them to be reviewed.[109] A number of witnesses were concerned that the review and complaints processes were not widely publicised by DWP—they are not published on the AtW webpages, for example.[110]

103. The current guidance sets out the "decision review escalation process" as follows:

If a customer is unhappy with the decision about their application for support they should make a written request for a review. The review should be carried out by an officer at the next level up from the original approver, e.g. a decision by an adviser should be reviewed by the Regional Manager while a decision by a Regional Manager would be reviewed by a Senior Ops Manager.

If a customer remains unhappy with a decision, further escalation is possible.

A table then illustrates that the onus is on the applicant to escalate the review through four further stages, each time in writing to an increasingly senior DWP manager.[111] Review by the DWP Customer Services Director is the "end of the process" within DWP. Applicants can refer DWP's decision to the Independent Case Examiner if they believe they have been unfairly treated.[112]

104. The Minister told us that the Department was looking at how the decision review process could be streamlined.[113] Colin Stewart confirmed that the option to request a decision review was set out in DWP's award decision letter to applicants and "should be clear". The standard DWP complaints procedure applied, as a separate process, as did the option to complain to the Parliamentary and Health Service Ombudsman.[114]

105. The Minister indicated that the focus of DWP's review would be on "making the right decision in the first place."[115] Nonetheless, in answer to a Parliamentary Question on 3 November, the Minister stated that the AtW decision review process "has now changed but guidance is yet to be updated. We no longer have five stages of reconsideration."[116] A recent DWP Freedom of Information response indicates that it is now a two-stage process.[117]

106. The process which users have had to follow to challenge AtW decisions is complex and onerous. We recommend that the decision-review process be channelled through a single DWP contact point, who should escalate the review on the applicant's behalf if they indicate that they remain dissatisfied. The guidance should be updated accordingly. We understand that DWP has recently streamlined the decision-review process to some extent in response to the concerns that we have heard, but the details have not yet been publicised. We request that DWP set out the changes it has made, in response to this Report.

107. We recommend that DWP publish the Access to Work decision review and complaints procedures prominently on the Access to Work webpages, with links to the Independent Case Examiner (ICE) and the Parliamentary and Health Service Ombudsman (PHSO). It must be made clear to all AtW applicants and service users that if they are dissatisfied following completion of the DWP decision-review or complaints procedures, they can, in the first instance, refer their case to the ICE; and that the PHSO may be able to investigate their complaint further should they remain dissatisfied.

95 See Access to Work Guidance, version 24. Some Employment and Support Allowance claimants may be eligible if they are participating in Permitted Work Back

96 See, for example, Q162 [Susan Scott-Parker]; Tamsyn Hockaday (ATW0154) Back

97 Higher Education institutions (ATW0251) Back

98 Access to Work, Standard Note SN/06666, House of Commons Library, October 2014 Back

99 Q277 Back

100 DWP (ATW0344) Back

101 Q181 Back

102 Q277 Back

103 Access to Work guidance, version 24, paras 34-38 Back

104 Julie Fernandez (ATW0345); Equity (ATW0340) Back

105 Julie Fernandez (ATW0345) Back

106 Q239 Back