PIP and ESA assessments Contents

5Disputed decisions

62.Claimants who are unhappy with the initial decision made on their PIP or ESA claim can challenge it at Mandatory Reconsideration. Since 2013 there have been almost one million MRs of PIP and ESA decisions. These comprised:

Claimants who have completed MR can go to appeal if they are still unsatisfied with the Department’s decision. Rates of overturn of DWP decisions at Appeal are high. Since 2013 there have been:

The Department has pointed out that the proportion of appeals for both benefits is low, when viewed within the context of the number of assessments completed.195 7% of PIP claimants and 4% of ESA claimants have their decision overturned at MR or appeal. Other witnesses argued, however, that the high rates of overturn at appeal indicate cases are getting into court that should have been identified as inaccurate at an earlier stage in the process.196 We heard that it is not only claimants who bear the consequences of a protracted, often stressful dispute process. There are also substantial costs to the public purse associated with MR and Appeal.197

Mandatory Reconsideration

63.At MR, a second DWP Decision Maker reviews the initial decision, alongside the assessor’s report. Until changing this in response to our inquiry in December 2017, the Department had a “key performance indicator” (KPI) of 80% of initial MR decisions to be upheld. It also has a KPI for volume of MRs cleared within a target time, which remains in place.198 The Department told us that 80% was “never a target” but “essentially an aspiration” for how many decisions it should be getting right first time. It acknowledged, however, that “what we did was misunderstood and that is why we have withdrawn it”.199 The Minister also told us the Department implemented a “refreshed and re-launched” Quality Strategy for MR in August 2017, and a “more proactive case management” approach to PIP disputes from November 2017. This aims to improve “the gathering of evidence by having supportive dialogue with claimants” after an MR is requested, ensuring Decision Makers have enough evidence to make a well-informed decision.200

64.Witnesses told us these changes are much needed. PCS Union, which represents DWP staff, told us that Decision Makers work under pressure that can mitigate against MR acting as a thorough check. They reported a “pressure to turn out numbers”, meaning both initial decisions and MRs can be rushed. As a result, it is “much easier to confirm the original decision than to change it”.201 Decision Makers at MR stage can request further evidence, but PCS told us that pressures on them mean they rely primarily on the analysis offered in the assessment report. The quality of decision-making at MR is, like the quality of decision-making at the initial stage, almost entirely dependent on the quality of the initial assessment report. This can render MR a “rubber stamp” of initial decisions, and decision notices at MR “often repeat initial refusal reasons without further elaboration”.202

65.Multiple organisations with experience of supporting claimants told us that given their previous experiences with MR, they advised claimants that the changes of getting an award changed at this stage are minimal.203 Such organisations frequently view MR as simply a “hurdle”, “barrier” or hoop that claimants must jump through before going to appeal, rather than a thorough review.204 Worryingly, organisations reported that having failed to get a new decision at MR, some claimants give up rather than going to appeal, despite not necessarily agreeing with the decision. Vulnerable claimants may feel unable to face further stress and protraction of their claim.205 Revolving Doors Agency, which supports ex-offenders, told us that having gone through MR, “it is at least possible” that claimants may be satisfied with the process regardless of the outcome. They cautioned, however, that it is equally possible claimants are discouraged from appealing by “the complexity of the process, a lack of access to skilled advice or representation, lack of understanding of their entitlement, fatalism, poor health and fatigue, and so on”.206

66.Mandatory Reconsideration should function as a genuine check, not an administrative hurdle for claimants to clear. Improving the quality of assessments and reports will ensure fewer claimants have to go to MR, but disputes will always happen. The Department deserves credit for a renewed emphasis on MR quality. MR decision making has not always been characterised by thoroughness, consistency and an emphasis on quality, however. Not all claimants who have, perhaps wrongly, been turned down at MR will have had the strength and resources to appeal.

67.We recommend the Department review a representative sample of MRs conducted between 2013 and December 2017, when it dropped its aspiration to uphold 80% of MRs, to establish if adverse incorrect decisions were made and, if so, whether there were common factors associated with those decisions. It should set out its findings and any proposed next steps in response to this report.

Quality control and learning from disputes

68.The Department told us that “a frequent reason for a decision being overturned [at Appeal] is the provision of additional evidence that was not available to the original decision maker [at initial stage or MR]”.207 It substantiated this claim with research from 2012—a year before PIP was introduced—that considered overturned decisions in 28,000 disability-related benefit appeals.208 A reason for overturn was given in 64% of cases. In 23% of those—the second most common reason—the Tribunal made a different decision to the Department based on the same set of facts.209 Some witnesses observed, therefore, that it is frequently not the presence of new evidence that leads to decisions being overturned. Salford Welfare Rights and Debt Advice Service told us that in their experience the most common reasons for disputes being revised is the “correct weighting of pre-existing evidence”. They dismissed the Department’s claim that the “main reasons” for overturn are the provision of new oral or written evidence as “largely nonsense”.210

69.By far the most common reason for overturn, however, was oral evidence obtained from the claimant under questioning by the appeal panel. This was the explanation in 63% of cases with a reason attached. It far outweighed cases where additional documentary evidence was provided, which accounted for just 15% of overturned decisions. The research suggested the frequency with which new oral evidence occurs may “reflect differences between DWP and the Tribunal approaches to decision making”.211 Witnesses told us that the primary difference was the weighting that assessors and Decision Makers accord statements from claimants themselves, as opposed to the interpretations of the assessor.212 We also heard repeatedly that while the oral evidence obtained might not have been available to the Decision Maker, this is largely because it was not sought, or not accurately reported by the HCP.213 Some of the contractors appeared to recognise this issue. Capita’s Dr Ian Gargan told us that “we can see where the trends are that make a report unacceptable [ … ] one of which would be enhanced questioning”. He ventured this might suggest a need for a “cascade of the training” to assessors on less prescriptive questioning.214 Continued high overturn rates suggest, however, that actual remedial action has been limited.215

70.The Department has few mechanisms for understanding why the “new” oral evidence might not have been available at the initial decision or MR stage. It offered us no explanation for why it often took until appeal for this evidence to come to light. It only explained that this “additional evidence [ … ] would not have been available to decision makers earlier on in the process”, and that it “does not mean that the original decision was wrong, based on the evidence the Decision-Maker had in front of them”.216 We heard this lack of insight is due, in part, to an over-emphasis on the quality of reports in auditing criteria and day-to-day management, at the expense of considering the quality of the assessment as a whole.217 It will not be clear—or even detectable—from the report alone if an assessor has omitted to mention something important that a claimant told them because they thought it irrelevant, or failed to ask the right questions to enable them to explain the effects of their condition.218 The need for a mechanism to ensure consistency between face-to-face assessments and reports was a further reason, beyond improving trust, why witnesses advocated default recording of assessments.219 Paul Gray explained to us this would “massively improve” the Department’s and contractors ability to quality assure assessments, and would have “very beneficial behavioural impacts” on assessors.220

71.We heard that the narrow focus on quality of reports, as opposed to quality of assessments, is symptomatic of a wider failure in the Department to view PIP and ESA assessments as whole, integrated processes. Witnesses noted that the Department has struggled to learn from overturned decisions at appeal and to feed this learning back to contractors to boost the quality of evidence provided to Decision Makers.221 The Department told us that while it provides “generic” feedback to contractors, there is no “direct linkage” between overturned decisions and contractor HCPs.222 Contractors confirmed to us that they receive no specific feedback from the Department about reports leading to overturned decisions.223 Several witnesses told us the Department should provide this, seeking to understand the specifics of overturned decisions as well as wider lessons. Mencap explained:224

The auditing process needs to take into consideration those assessments that went all the way through to appeal and were overturned in favour of the claimants, and the contractors need to understand why that happened, which part of the process failed [ … ] There needs to be a feedback loop from what happens to appeals to inform contractors.

Kayley Hignell, Head of Policy at Citizens Advice, told us that such feedback should not only be included in audit criteria, but in the “day-to-day and case-by-case” communication between contractors, the Department, and stakeholders who work with claimants on disputed decisions. We heard, however, that current stakeholder arrangements are not set up to facilitate this kind of feedback. Kayley Hignell explained that although Citizens Advice and others meet with contractors:225

The way it is set up is more like, “We are telling you what has happened”, rather than, “Let us have a conversation about how we can improve mental health assessments”, for example.

She added that the Department frequently does not attend feedback sessions.226 Organisations such as Citizens Advice, which will have vital insights into weaknesses with the assessment process, are therefore cut out of the loop. This happens despite the Department actively encouraging claimants to contact such organisations if they experience difficulties with their claims.227

72.The Department argues that the high rate of decisions overturned at Appeal is driven by the emergence of new evidence that was not available at initial or MR stage. It has displayed a lack of determination in exploring why it takes until that stage for evidence to come to light. In almost half of cases the “new evidence” presented was oral evidence from claimants. It is difficult to understand why this information was not, or could not have been elicited and reported by the assessor. The Department’s argument does not absolve it of responsibility. Its feedback to and quality control over contractors is weak. Addressing these fundamental shortcomings would not only ensure a fairer system for claimants. It would also reduce the cost to the public purse of correcting poor decision-making further down the line.

73.The Department must learn from overturned decisions at Appeal in a much more systematic and consistent fashion. We recommend it uses recording of assessments to start auditing and quality assuring the whole assessment process. When a decision is overturned, the Department should also ensure that the HCP who carried out the initial assessment is identified and that an individual review of how the assessment was carried out is conducted. Given what we know about reasons for overturn, this should focus on improving questioning techniques and ensuring claimants’ statements are given due weight. We also recommend the Department lead regular feedback meetings with contractors and organisations that support claimants. These should keep the Department informed of emerging concerns and ensure that swift action is taken to rectify them.

192 DWP, Personal Independence Payment: official statistics, Data correct to September 2017

194 HM Courts and Tribunal Service, Social security and child support tribunal data, table SSCS.3, December 2017

195 DWP (PEA0441)

196 Action for ME (PEA0382), Auriga UK (PEA0284), Aspire (PEA0395), British Psychological Society and the British Association of Behavioural and Cognitive Psychotherapies (PEA0379), Citizens Advice Camden (PEA0278), CLIC Sargent (PEA0292), Citizens Advice Sheffield (PEA0247), Community Union (PEA0318), Cystic Fibrosis Trust (PEA0425), Disability Benefits Consortium (PEA0294), Disability Rights UK (PEA0412), Epilepsy Action (PEA0491), Green Party Northern Ireland (PEA0390), Halton Housing (PEA0387), Helen Bamber Association (PEA0308), Inclusion London (PEA0370), Islington Law (PEA0397), Kidney Care UK (PEA0296), Mencap (PEA0398), MS Society (PEA0443), National AIDS Trust (PEA0371), National Deaf Children’s Society (PEA0402), Royal British Legion Industries (PEA0384), RNIB and Thomas Pocklington Trust (PEA0393), Social Security Advisors in Local Government (PEA0272), South London and Maudsley NHS Foundation Trust (PEA0409), Macmillan (PEA0383)

197 We return to these costs in Chapter 6.

199 Q416 (James Wolfe)

200 Letter from Sarah Newton to the Chair of the Committee, January 2018

201 PCS Union (PEA0357). See also Parkinsons UK (PEA0119), Salford Welfare Rights and Debt Advice Service (PEA0388)

202 PCS Union (PEA0357).

203 Local Support Team Southwark Council (PEA0099), Q324–328 (Rob Holland, Victoria Holloway, Anna Bird), Citizens Advice Richmond (PEA0332), Possability People (PEA0085), Banburyshire Advice Centre (PEA0020), Scarborough Citizens Advice and District (PEA0359)

204 Q324–325 (Rob Holland and Victoria Holloway), Hammersmith and Fulham Mind (PEA0041), Oxfordshire Welfare Rights (PEA0135), Zacchaeus 2000 Trust (PEA0297), Citizens Advice Lincolnshire (PEA0367), Revolving Doors Agency (PEA0277), Greater Manchester Law Centre (PEA0217), National Deaf Children’s Society (PEA0402), Inclusion London (PEA0370), PCS Union (PEA0357), Citizens Advice Richmond (PEA0332), Disability Benefits Consortium (PEA0294), Professor Robert Thomas and Dr Joe Tomlinson (PEA0122 , Understanding Autism North West (PEA0192), Shine (PEA0188), City of Wolverhampton Council (PEA0123), Local Support Team Southwark Council (PEA0099), Banburyshire Advice Centre (PEA0020), Mencap (PEA0398)

205 Turn2us (PEA0392). See also: Parkinson’s UK (PEA0119), Islington Law Centre (PEA0397), Spartacus Network (PEA0358), Revolving Doors Agency (PEA0227), Rethink Mental Illness (PEA0405), Epilepsy Action (PEA0491)

206 Revolving Doors Agency (PEA0227)

207 DWP (PEA0441)

210 DWP (PEA0441), Salford Welfare Rights and Debt Advice Service (PEA0388). See also Scope (PEA0262), RNIB and Thomas Pocklington Trust (PEA0393), Epilepsy Action (PEA0491), Macmillan Cancer Support (PEA0383)

212 NHS Health Scotland (PEA0353), Mind and SAMH (PEA0421), Professor Robert Thomas and Dr Joe Tomlinson (PEA0122), Aspire (PEA0395), Disability Rights UK (PEA0412), Mencap (PEA0398), NHS Health Scotland (PEA0353), Scope (PEA0262)

213 Mencap (PEA0398), Aspire (PEA0395), NDCS (PEA0402), Equal Lives (PEAxx), Professor Robert Thomas and Dr Joe Tomlinson (PEA0122), Mind and SAMH (PEA0421), Scope (PEA0262), Disability Rights UK (PEA0412), Islington Law (PEA0397), Free Representation Unit (PEA0365), Spartacus Network (PEA0358), Disability Benefits Consortium (PEA0294), Macmillan Cancer Support (PEA0383)

214 Q184 (Ian Gargan)

215 Q289 (Victoria Holloway), HM Courts and Tribunal Service, Social security and child support tribunal data, table SSCS.3

216 Q418 (James Wolfe)

217 Q283–302 (Rob Holland, Victoria Holloway, Kayley Hignell). We return to the role of auditing in Chapter 6.

218 Caring for Life (PEA0259), Citizens Advice Salford (PEA0394), Islington Law (PEA0397), Surrey Welfare Rights Unit (PEA0088)

219 Action for ME (PEA0382), Citizens Advice Norfolk (PEA0119), Citizens Advice Salford (PEA0394), Disability Rights UK (PEA0412), Green Party Northern Ireland (PEA0390), Halton Housing (PEA0387), Muscular Dystophy UK (PEA0285), National Deaf Children’s Society (PEA0402), Rethink Mental Illness (PEA0405), South London and Maudsley NHS Foundation Trust (PEA0409), Understanding Autism North West (PEA0192), Welfare Rights Team (PEA0432)

220 Q349 (Paul Gray). See also Q50–52 (Amanda Browning, Yolanda Barker, Susan Lithman-Romeo), Q67–87 (Kayleigh Nor-val, David Bryceland) Equal Lives (PEAxx), Roma Support Group (PEA0337), Headway (PEA0330), Community Trade Union (PEA0318), Motor Neurone Disease Association (PEA0283)

221 MS Society (PEA0443), Inclusion London (PEA0370), NHS Health Scotland (PEA0353), Welfare Rights and Money Advice Service (PEA0293), MND Association (PEA0283), Social Security Advisers Suffolk (PEA0272), North Wales Regional Cross Party Autism Group (PEA0381)

222 DWP (PEA0449)

223 Capita (PEA0456), Atos (PEA0447), Q241 (Leslie Wolfe)

224 Q309 (Rob Holland)

225 Q289 (Kayley Hignell)

226 Q289 (Kayley Hignell)

227 Appointment and decision letters seen by Committee

12 February 2018