When the DWP recently issued what turned out to be a misleading answer to a Freedom of Information request, I commented on it in strong terms before it emerged that the department didn’t mean what it had said: indeed, it meant something quite different. I then explained what I thought it had intended to say. I have not seen any apology for the original misleading information.
By my standards, these two blogs attracted a significant volume of interest. In a very few days there have been nearly 5,000 “views” of the first blog and over 750 “views” of the second. They also attracted a large volume of comments – so large, indeed, that I preferred to delay publishing them until the torrent had slowed down, when I could then set them out in some sort of structured way, which I am now doing.
[I have omitted one comment that suggested, incorrectly, that as a former judge I seemed to be unaware of a large number of statutes which criminalised dishonesty in one way or another.]
There is a large volume of documentary evidence and comment about the problems that were created by the introduction of the new statutory regime for disability benefits a few years ago.
Last year the Social Security Advisory Committee published a thoughtful paper entitled “Decision-Making and Mandatory Reconsideration”. It included statistics which showed that the success rates at tribunals in 2015-16 varied between about 30% and 60% for different categories of case.
It pointed out, however, that although nearly 160,000 appeals went through the First Tier Tribunal, this represented only 1% of the total number of decisions made within the social security system. The Committee added that
Some individuals may not pursue disputes where they would have a reasonable prospect of success, and reasons for this could include:
Redress mechanisms being too complex or perceived as such, and a lack of advice to navigate the system;
Lack of knowledge around their true entitlement, and so assuming they must be in the wrong;
Lack of self-confidence to ‘take on the state’. This may be an issue, especially with vulnerable groups, although the idea of a ‘courtroom’ setting in front of a Judge may be intimidating for anyone, particularly if unsupported;
Scepticism that decisions can actually be changed;
Poor health and fatigue, particularly where benefit application processes have already been time consuming;
In some cases, such as in first time JSA sanctions, small financial amounts may be at stake that some claimants may feel are not worth pursuing.
The Committee also observed that legal aid for the purposes of social security advice had all but disappeared in England and Wales, in stark contrast to the position in Scotland. Here are the statistics:
It added that since 2009 nearly 100 Citizens Advice offices have been lost through England and Wales through closure or merger.
Once upon a time, when a Government introduced complicated legislation it would include in its implementation budget the cost of the advice needed by citizens and tribunals, as well as by its own decision-makers, to ensure that the changes did not get enmeshed in time-consuming and expensive controversy because people did not understand how (or why) the law had changed.
Sadly, this does not seem to have happened in this case. Although there are now some excellent advisory sites on the world wide web, experience has shown that many of the very worried people who face the possible loss of critical benefits need something much more than advice which is available only on screen. The cost of initial legal help at a fixed fee would be trivial in the great scheme of things.
Here are 19 responses. Their cumulative effect is very powerful, particularly in the picture they paint of vulnerable people struggling without skilled help against a government machine which they do not understand and do not trust.
COMMENTS ON MY FIRST BLOG
I had to ask for two mandatory reconsiderations. Their decision was upheld, it went to Tribunal. When the tribunal asked for their bundle of evidence, they had none, so it therefore went in my favour. I want to know how they can take you to court, not once but twice with No evidence. Oh, they also knew there was no evidence before I asked for MR but still carried on.
Even though I was eligible in the DWP regulations, when I was turned down for PIP mobility I was too scared to apply even for MR in case they withdrew the SLD they had awarded me. The CAB warned me this was a real risk – I wonder if there is a target for reducing claims at MR as well?
I found this breathtaking. Basically, a Key Performance Indicator for the Department of Work and Pensions on Personal Independence Payments is a 80% rejection at Mandatory Reconsideration. This makes the stress that I had completing original form and the stress of being rejected and the stress of the interview by a healthcare professional, essentially just a management measure by the DWP.
I suspect the claim that will/has been made by DWP is that the KPI applies to the original decision makers, not reviewing team- i.e. “decision being found correct in 80% cases” is performance target for original decision team rather than target for review team. Still concerning what influence that may have, though, and agree option for independent review should be available from outset.
After being considered “disabled for life”, I suddenly received a 38 page questionnaire that stated that I must fill it in and sign it or my benefits would be withdrawn. Part of the declaration was that I had to agree to a medical by Atos, with the veiled threat that my money may be withdrawn……….
My circumstances had not changed and I was deemed unable to do any work by three of the DWP’s own doctors who all agreed my condition would not change in the future.
I bluntly refused to fill in the questionnaire because I had sent in a Freedom of Information request to the DWP asking about lifetime awards. In their response they told me that a claimant would not receive a questionnaire unless their circumstances had changed. The DWP had even acknowledged two letters I sent telling them my circumstances remained unchanged.
Mine had clearly not……….
The DWP took away my DLA completely and left me with just £33.60 industrial injuries benefit per week.
Having been summoned to an Atos medical I was deemed fit for work and no points were awarded. Strangely, i had been awarded 50 points by an earlier DWP panel? My Atos medical report was a plethora of lies, the usual crap……..
I was seen to sit and get up unaided.
I was marked up as having refused to cooperate by using the term “CLIENT DECLINED” on 75 occasions. Not bad for an examination that lasted half an hour where the nurse sat at a keyboard for 22 minutes!!!
In other words, the whole affair was a set up to rob me of my chances to compete on an equal footing of a non-disabled person.
Upon appeals I met the same judge and DWP nurse at Scarborough Magistrates’ Court. They must have made a killing from the tearful continuous band of disabled that they adjudged to be OK, limping and wheeling themselves from the court rooms. I raised the issue that this was not justice and that the judge and doctor recuse themselves from my case. (step down because they had both been in on an earlier appeal by myself). The judge just laughed and ignored all my medical history and the previous DWP reports.
I even received a letter from one of my appeals that said it was possible to be found not capable of any form of work under DLA, but capable of work under the ESA rules……
Since 2012 I have been living on just £33.60 per week. My widowed mother sends food around for me.
The claimant deaths are a carefully hidden secret that is a time bomb waiting to explode. The perpetrators of this injustice on the most vulnerable, cold, callous and grossly underhand, the judiciary a well-chosen architect of state terror.
Our day will come, should the earth not consume me first.
Last year I applied for PIP. On “preparing and cooking a meal” I scored 0 points, the reason given being that I had normal grip in my hands.
This year I applied for PIP again and I again scored O points. This time the reason given was that I showed the assessor how I put my shoes on.
One of my conditions is postural hypotension which causes blackouts and the reason I am unable to cook safely on a conventional cooker. Can anyone explain to me just what having a normal grip and putting my shoes on has got to do with not being able to cook due to a medical condition?
There is no doubt in my mind that MRs are simply a device to reduce the volume of appeals to first-tier tribunals (FtTs). I’m currently supporting someone with a severe mental health condition progress their appeal for PIP to FtT. My MR submission was rejected in record time, despite my references to important legal points and the inclusion of additional supporting evidence.
In my view, the DWP’s ethos becomes progressively Orwellian. When Upper Tribunal judges recently upset the DWP with some PIP decisions, rapid changes were made to the regulations.
The Minister of State is reported in Hansard as saying
“PIP is a modern and dynamic benefit…”.
I think this should actually be interpreted as –
‘if we don’t like the judgments we’ll just change the regulations’.
My son has just been turned down and I have had to send in a mandatory reconsideration letter. He is 23 years old and has cancer which he is still having treatment for. He had to have his leg amputated and a piece of lung removed. He has now got two more lumps found in his lungs. He was told at the beginning he could claim mobility and he got a car so that he can get to his appointments which are about 50 miles away from where he lives in Immingham. His appointments are in Sheffield.
We were told he has about 5 years survival rate if he’s lucky. He now had to have an assessment at his home by the disability people in which they have said he is fit to go to work. We tried to tell them he can’t balance very well and can only use his prosthetic leg for a few hours a day. He was still turned down. They are now going to take his car away, which means he won’t be able to get out at all. As his mother I think this is totally disgusting what they are doing to disabled people. I understand they have to weed out the ones that are faking the system, but there are a lot of genuine people out there losing their lifeline. The stress on them is immense.
I have been fighting to get my partner’s ESA re-instated when they stopped it with a lie at the end of October last year. The process was carried out behind closed doors with no leave to appeal and we had no idea it was going on until he received no benefit for a couple of weeks. He has serious mental health conditions, and this year he suffered acute pancreatitis and was admitted to hospital where he had a couple of strokes. A few weeks ago we applied for PIP and have just been turned down. Again, some of this is a downright lie and I am now about to embark on challenging it.
I don’t hold out much hope based on what I’ve just read but it’s got to be done!
The whole system is wrong and the claimant is in the middle. Forms are complicated, the GPs don’t have time to complete them properly, and complaints are made against practices when claimants have to pay £20 to get a letter as medical evidence. We need a study to look at the process from all parties’ point of view to try and find a way to make the system work for claimants and GPs. GPs don’t know how the system works from a claimant’s point of view. It is a waste of taxpayers’ money to keep pushing cases to tribunal. You have to stand in front of a judge like you’re a criminal. I had my switch to ESA from IB and was successful at MR and now I have been successful at tribunal, but I’m only too aware that I’m in the minority.
As a claimant and carer currently going through this process I fail to see how this government and their ‘servants’ are not held culpable for corporate manslaughter. As a qualified psychotherapist I can attest that this process is deliberately designed to induce or worsen suicidal feelings, and it is beyond question that the level of stress and distress that is caused cannot fail to worsen any existing health condition and thus end life prematurely.
I very much hope that the ‘servants’ start to understand that we WILL be holding them responsible for their actions. We have heard “only doing my job” somewhere else in history.
David Anderson QC
Appalling. But outrage seems to be more easily generated on human rights than on rule of law grounds.
May I offer another example from my time as Independent Reviewer of Terrorism Legislation. I repeatedly noted that by the Home Office’s own admission, some 14 organisations are proscribed despite not satisfying the statutory requirements for proscription (see https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2016/12/TERRORISM-ACTS-REPORT-1-Dec-2016-1.pdf , 5.24).
Although other aspects of my reports were picked over exhaustively, to my knowledge no media outlet or NGO showed the slightest interest in this issue.
See 5.13 – 5.25 for the full context.
Extremely Mad, Online
The treatment of disabled people in the UK has been condemned by the United Nations. It should be on the front page of every newspaper until every member of this government is in prison.
But I guess fox hunting is more interesting.
By making the process cumbersome and lengthy, it’s a system designed to ensure that many people who meet the criteria simply do not have the willpower to take their claim to a tribunal (and, as such, a proper consideration of their claim). The process is now even more difficult because CABs are having to close or scale back their service, due to funding cuts.
Before going to the Bar, I worked as a specialist benefits advisor at a CAB. We set up a successful outreach programme, to help people in remote areas who could not reach the town where our office was. I helped dozens of clients with their appeals. Every case was successful either at reconsideration or (more commonly) at tribunal.
This wasn’t because I was some sort of super advocate, but because the decision-making was so bad; medical evidence from the practitioners actually treating the client was usually ignored or marginalised, in favour of “assessments” by a disability assessor (usually a nurse with no specialist knowledge of the client’s condition, but who had undertaken a short course on assessing disabilities and who had examined the client for 30mins).
One client, with severe mental health problems, attended the office in significant distress when he was found fit for work. He told me he had considered suicide. Luckily his decision was overturned on reconsideration, as I do believe he would have killed himself if he had had to wait for a tribunal hearing. That CAB has now lost most of its funding (from grants from the local authority, which is now under its own serious budget pressures). That client, and people in his circumstances, will now have nowhere to go.
Now we know for sure what has long been suspected.
I guess that explains the “health warning” they say they are obliged to give by law or in plain English: being told several times that asking for a reconsideration could result in being awarded more, or the same, but could also result in losing the whole award!
It’s just another way of denial of benefits frustrating those pushing them over the edge
“But it is altogether unspeakable that DWP managers seek to incentivise those who turn these applications down – and what is more, they do not make this policy public.”
Since we learned how much the assessors are paid for turning down applications for disabled benefits, we now know that not only does the DWP “incentivise” but actively encourage these assessors to break the law in the way that they not only misrepresent what they have been told by their “victim” but also blatantly lie – as I found out to my cost (intially).
I wrote directly to the tribunal and listed my complaints regarding the way my information was presented and the questions that were never asked, and the tribunal reversed the decision in my favour. Many people did not win their battle, which in itself is appalling, especially given that yet another woman called Susan has taken her own life as a consequence of being sent from pillar to post.
Another day, another dollar – just not to those who need it most. Many thanks for this article, it’s good to learn there are people like you fighting in the corner of the underdog.
Kitty S Jones
Reblogged this on Politics and Insights and commented: When is a reconsideration not a reconsideration? Mandatory reviews introduced by the Conservative government to deter people from appealing unfair Department for Work and Pensions decisions are not actually reconsiderations, because a target has been set to the effect that decisions in at least 80% of reconsideration cases are be upheld in the department’s favour following mandatory reconsideration. That is regardless of the actual details of each case being reviewed, and the fairness of the original decision.
“This appears to be an absolutely outrageous interference by the executive with the rule of law.”
COMMENT ON MY SECOND BLOG
I would love to know why so many (hopefully) highly qualified and experienced civil servants at the head of the DWP become confused or confusing when challenged on their own figures. I expect many of us who are penalised by these draconian policies they oversee, are far more able to describe the ‘targets’ of such.
 5.24 Whatever the rights and wrongs of the ISYF case, the fact that there have been since at least 2013 some 14 proscribed organisations in respect of which the statutory test for proscription is not satisfied is an affront to the rule of law.
5.25 As long ago as 2008 the Court of Appeal (in the only proscription case so far to have reached it) stated that:
“It is a matter for comment and for regret that the decision-making process in this case has signally fallen short of the standards which our public law sets and which those affected by public decisions have come to expect.”
It is not for me to pass comment on the conduct of the Home Office in any particular case. But in the event that the requirements summarised at 5.18 above are not complied with in future cases, the criticisms made by those very senior judges will remain valid.
5.26 More generally, the Home Office ignores the measured criticism of senior judges at its peril. I return to this theme at 11.7-11.9 below.
7 thoughts on “19 Comments on my blogs on Mandatory Reconsiderations”
As a welfare rights adviser I have represented at benefit tribunals for 30 years (in excess of 2K cases) so I have seen changes to both the decision making and the benefits themselves.
The organisation (a small specialist advice charity) I have worked for for the last 25 years has a success rate at tribunal year on year of approx 85%. The vast majority of those cases have concerned disability benefits (currently DLA/PIP) and sickness benefits (ESA).
My experience is that the quality of decision making has always been poor. At the route of that is a processes that fails to gather appropriate evidence (of which the process of face to face assessments by ‘healthcare professionals’ is the prime example). Coupled with decision makers who are poorly trained and don’t understand the qualifying criteria or medical evidence provided.
What is striking over recent years is the increasingly poor quality of appeal submissions provided by the DWP (the failure to address any relevant decision making or qualifying criteria regulations) and the increasingly risible reasons given to justify a decision (which simply show no understanding of disability / illness and at times ‘pig ignorance’).
The mandatory reconsideration process has simply added an additional barrier into the process of challenging a benefit decision. Add to that the increasingly remote and incompetent administration by DWP through ‘contact centres’ (it is no longer possible for advisers to speak direct to the processing office or appeals team, for example, to resolve simple admin. issues on a claim / appeal). And similar problems are now the norm with HMCTS (once a beacon of good public service under the Tribunal Service).
It’s a wonder so many claimants can still find the perseverance to pursue an MR and then appeal.
As an organisation we have lost 2/3 of our funding over recent years with the loss of Legal Aid and local authority funds. We can now only represent 10s rather than 100s of cases a year.
I despair for claimants in a system that seems, by default or design, to be designed to grind the most vulnerable into the ground.
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Thank you, Peter. It is immensely valuable to receive comments like these. They should be sent to all the candidates for major parties in the General Election campaign, to show them how their most vulnerable constituents are now being treated by the state.
I hope I may receive further comments as informative as yours.
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BREXIT This will stop DWP being forced into ECHR. But what about the international court
As a social welfare lawyer, primarily a housing lawyer who has been doing this job for more than 20 years, I have reflected on what has gone so horribly wrong with sickness benefits. In this instance Employment and Support Allowance (ESA) but now moving on to the replacement for Disabled Living Allowance (DLA) which is the cheerfully labelled Personal Independence Payment (PIP).
The problems are not confined to a government of any political colour. Rather, governments of various political persuasions have tried to introduce reforms that have gone awry.
Looking back to the 90’s, my memory is that a tacit deal was struck, where communities such as Welsh miners whose pits had been closed down forever ended up on long term sickness benefit Incapacity Benefit (IB). The Major government appeared to have conceded that long term sickness benefits should go unchallenged in some cases. The reality was that it was very difficult to see how many workers of a certain age were ever going to get work again.
That at least seemed to offer comfort to many people, instead of the unrelenting hostility of Benefit Officers under Mrs Thatcher, who at one time very heavily policed factory workers whose livelihood had been done away with completely. There was an expectation that one should get on one’s bike and go to another city to start a business, and many were punished for not doing so.
I shall bridge across the early days of New Labour but after the financial crash Brown introduced the much reviled ESA scheme. It is worth remembering that the reason for the introduction of ESA, on the face of it, was to provide additional support for disabled and sick people to get into work, if they could.
To do this, 2 groups were created. The most disabled were placed in the Support Group. This group was so disabled that there was no real expectation that they would be able to work again. An escape clause in the regulations allowed a person in this class to obtain work and then come back to benefits if this did not work out with no sanction.
The second group of sick and disabled people were those in the Work and Capability Group (WCA). It was presented that it was wrong morally to expect people with illnesses who wished to work to languish on the unemployment lists. Without doubt very many people with illnesses wish to work if they can find some employment. Thus this should have been a beneficial change.
The experience on the ground has proved otherwise. It is in practice expensive in terms of resources to help a sick or disabled person get into work. The elections lead to the coalition Cameron/Clegg government, who inherited the ESA programme.
Many programmes were outsourced to the private sector at this point. There was a complicated performance based contract that paid huge amounts of money to the private sector if it could get all sick people into work. In retrospect it was naive to expect that private companies would be better than the DWP at delivering these programmes.
This lead to the Park and Cream scandals highlighted from then MP Anne Begg. Briefly, the easier cases of ESA claimants placed in the private sector were parked as victories. One might think of a young adult with depression and anxiety placed into a job with support from the DWP and a sympathetic employer. Those were good cases. But the vast majority of people with more disabling health problems were ignored, or dealt short shrift.
The bad cases were the hard to help.
Since then the regulations have been tightened so as to make the compact with disabled people ready for work meaningless. Everything is about failing that disabled person’s benefits, and almost certainly failing that person as a human being. Certain case studies:
Claimant A who has no legs below the knee has failed the mobility tests. Curiously a small minority online was adamant that A should be ashamed of challenging that decision if he could pull himself up by the elbows.
Claimant B was in and out of hospital convinced that he was perfectly sane while he as under a Mental Health Act Section. His rent was not paid, he faced eviction. He thinks his mobile phone is controlling him, and he wears tin hats as often as possible.
The ESA tests have reached a level of functional cruelty that their stated reasons for existence have lost relevance. Any fool would see that there are certain claimants with long term illnesses that are being simply bullied.
It doesn’t help that there is no Legal Aid for this any more.
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