Two weeks ago I received a letter from the Rt Hon Frank Field MP, which asked me for replies to five questions in relation to the Inquiry his Committee is conducting into PIP and ESA assessments.

My response has just been published on the Committee’s website.  This is, I think, only the third time I have ever given evidence to a House of Commons Committee.

 
Here it is:

Written evidence from Rt Hon Sir Henry Brooke CMG (PEA0530)

Introduction

I am aged 81. I retired 11 years ago after 18 years as a senior judge (High Court 8 years, Court of Appeal 10 years), ending with three years as Vice-President of the Civil Division of the Court of Appeal. As a judge I spent three years as Chairman of the Law Commission and three years (on a part-time basis) in training judges for the Judicial Studies Board, of which I was a member. I was also for seven years the senior judge involved with IT for the courts and the modernisation of the court estate.  Between 2001 and 2004 I led for the senior judiciary in connection with the plans – and the 2004 White Paper – directed towards the creation of a new Tribunals Service.

Although I was never concerned with cases at tribunal level, I often had to decide difficult points of social security law, including appeals on points of law from the Social Security Commissioners (whose modern equivalent of the Upper Tribunal).  Social Security law is notoriously complex.

During the last two years I have become interested in the quality of decision-making for PIPs after reading the evidence submitted to Lord Bach’s independent Commission on Access to Justice (of which I was Vice-Chair) and also the large number of reports by Law Centres on social media after they had overturned a DWP decision at a tribunal in favour of their client (often by a large margin).  This led me to publish blogs on the topic on my blogsite www.sirhenrybrooke.me, which in turn led to a lot of lay people and/or their advisers contacting me direct with stories of their experiences with PIP assessments. I have now grouped these together under the heading “PIPs” at the top of my blogsite.

In my very long experience of the law, I have never encountered any statutory scheme which has caused so much distress to so many vulnerable people.  Its architects do not seem to have appreciated just how complicated the scheme is.  Its complexity called for the creation of a cadre of high-quality first-instance decision-makers and plenty of publicly funded help for claimants, at any rate during the period while the scheme was settling down.  Neither requirement was fulfilled.

Here are my answers to the five questions put to me by the Committee’s Chair (The Rt Hon Frank Field MP) in his letter to me dated 6 December 2017.

Q1 Can you comment on the quality of evidence provided by DWP for PIP and ESA tribunals?

I have been chiefly concerned with PIPs. The claimant can raise points of law or fact on the appeal, and may also submit new evidence (particularly medical evidence).

The Notice of Appeal to the Tribunal (SSCS1) states:

“You must include a copy of the mandatory reconsideration notice which shows the decision you are appealing against. You do not need to include evidence/information you have already sent to DWP as they will send it to us as part of their response.”

The Official Guidance states:

“You should include the following;

• • The completed SSCS1 form

  • A copy of your Mandatory Reconsideration Notice

  • Any further evidence you have, although you can send this later.”

The DWP will send a response to HM Courts and Tribunals Service. I have not seen any of its responses, but I imagine that in addition to forwarding the documents [mentioned] above, it gives its reasons for challenging matters set out by the appellant in Section 5 of the SSCS1 Form (“Grounds of Appeal”).

In essence “the quality of evidence” is likely to refer to the reasons set out in the Mandatory Reconsideration Notice, on which I comment below.

Q2 Could the DWP take steps to improve the quality of evidence it provides at appeal?

The findings and reasoning set out by the DWP are often so bad that the tribunal reverses them in 61% of the PIP appeals submitted to it for decision.  Significant improvements can only be made if the DWP totally overhauls the original assessment procedure (which it outsources to contractors).

The Forms are far too complicated, and the quality of a significant number of the assessors appears to be seriously substandard. Although the Committee will have received plenty of examples of bad practice at the assessments, I append in Annex 1 a few examples which have been submitted to me, and which I have republished on my blogsite.

Q3 You said that a lot of Appeals result from ‘rank bad decision-making’: what are the implications of this for the Tribunal Service, and the public purse?

The Ministry of Justice’s Statistics show that the annual number of receipts in Social Security and Child Support (SSCS) appeals has increased steadily since 2014-15 (when the numbers were reduced while the mandatory reconsideration stage was being introduced):

2014-15	112,119
2015-16	157,180
2016-17	228,645[1]

This Table shows the quarterly figures since April-June 2015:

Year (1 April-31 March)	Quarter	Total Receipts	PIP receipts[2]
2015-16	Q1	38,746	14,733
	Q2	35,640	13,540
	Q3	41,313	16,218
	Q4	41,406	17,058
2016-17	Q1	46,790	19,173
	Q2	52,260	22,907
	Q3	60,548	17,694
	Q4	69,006	34,431
2017-18	Q1	60,142	26,991

Sir Ernest Ryder will be able to furnish figures for the increased cost to HM Courts and Tribunals Service which arises from the fact that annual receipts have doubled since 2014-15. The Social Security Advisory Committee has said:[3]

“Tribunals are a costly means of dispute resolution for the taxpayer. For ESA, the processing costs to DWP alone to both conduct an MR and prepare for tribunal is over £300m,[4] with an additional cost to Her Majesty’s Courts & Tribunals Service of over £240m.[5]”

This does not include the cost to Citizens Advice, Law Centres and other advice agencies who are dependent on public (not legal aid) funds or charitable donations for their assistance to claimants, legal aid having been withdrawn from this type of advice since April 2013. See my answer to Q5 below.

The salary of a Group 7 First Tier Tribunal Judge is now £108,171, and there will also be a fee-paid medical member on PIP and ESA appeals. In 2016-17 there were 70,921 SSCS judicial sittings (up 22% from 58,115 in 2015-16), 80% of which were conducted by part-time fee-paid judges (who are paid £491.69 per day).  There are also the administrative costs involved in running the Tribunal.

Q4 Is the Mandatory Reconsideration process working effectively to resolve disputed claims in the earliest instance?

The DWP say that by the end of October 2017, 84% of new claims reconsiderations and 78% of reassessed DLA reconsiderations for normal rules had resulted in no change to the award.

The DWP statistics show the following outcomes of Mandatory Reconsideration during the calendar year 2017:

New claims

Year	Quarter	New Decision Award Changed	New Decision Award Unchanged	Decision not revised	Withdrawn/ Cancelled	Total
2016-17	Q4	4,100	17,200	1,200	2,900	25,400
2017-18	Q1	3,500	14,000	800	1,000	19,300
	Q2	5,000	20,500	800	1,500	27,800
Totals		12,600	51,700	2,800	5,400	72,500

If one omits the MRs that were withdrawn or cancelled, it can be readily seen that only 2,800 original decisions remained unaltered, even if the award was actually changed in only 12,600 (out of 67,100), about 19%.  This casts a vivid light on the inadequacy of the original assessments.

Re-assessments

Year	Quarter	New Decision Award Changed	New Decision Award Unchanged	Decision not revised	Withdrawn/ Cancelled	Total
2016-17	Q4	9,700	33,400	2,700	2,700	48,500
2017-18	Q1	8,500	27,700	2,300	1,800	40,300
	Q2	8,000	22,300	1,800	1,600	33,700
Totals		26,200	83,400	6,800	6,100	122,500

Again, if one omits the MRs that were withdrawn or cancelled, it can be readily seen that only 6,800 original decisions remained unaltered, even if the award was actually changed in only 26,200 (out of 116,300), about 22.5%.

Conclusion

In the first two quarters of 2017 there were, respectively, 59,600 and 61,500 cases in which mandatory reconsideration was sought.  Although the appeal to a tribunal cannot be filed until that process is over, it is perhaps useful to compare the figures for PIP appeal receipts during those two quarters: 34,431 and 26,991 – about half of the number of cases sent for mandatory reconsideration (and if MR resulted in a satisfactory outcome for the claimant there would be no need to appeal).

Sir Ernest Ryder will be better qualified than me to describe the quality of the PIP decisions which were challenged on appeal, but if 61% of them resulted in  a favourable outcome for the claimants, and if it seems likely that more claimants would have appealed if they had not become exhausted and disillusioned by the whole process (a matter on which the Committee can form its own opinion), this evidence suggests that the MR process is not particularly effective in putting many of the bad assessments right without the need for an appeal.

Q5 Is there anything else you would like to comment on relating to this inquiry?

There are three comments I would like to make.

The first relates to the lawfulness of the mandatory reconsideration process.  The idea that a public body should be given a power to reconsider its decisions was discussed[6] in the Law Commission’s 1994 report on Judicial Review and Statutory Appeals, on which I assisted when I was chairman of the Commission.  However, we never envisaged that a claimant’s right of appeal against a decision that took effect immediately could not be exercised at all until such a process had been completed.

Because the Secretary of State was exercising a discretionary power[7] when he introduced the PIP regulations which had this effect, it seems likely that the effect of the UK Supreme Court’s decision in the Unison case would give rise to a very strong argument that the mandatory reconsideration process is unlawful, since it prohibits any access to a court while the MR process is being conducted.

Secondly, I hope that the Committee will do its best to ensure that the DWP always draws claimants’ attention not only to the advice on PIPs on the Citizens Advice website, but to the increasingly excellent advice that is now available from other websites.

For instance, AdviceNow,[8] which receives generous core funding from the Ministry of Justice’s Litigants in Person Strategy, received special funding from charities that has enabled it to provide not only a very readable down-loadable guide, but also a “PIP Mandatory Reconsideration Letter Tool”[9] for those preparing their case both for mandatory reconsideration and for an appeal.[10]  I strongly recommend members of the Committee to visit the site and see how the tool works in practice.  It uses “self-completing document assembly” techniques to produce a personalised letter that is both readable and well-reasoned.[11]

Another excellent site is www.pipinfo.net .[12]  This is described as an “adviser guide to personal independence payment regulations & case law”, and enables advisers not only to see how the scheme is structured but also to access recent decisions by the Upper Tribunal on words and phrases whose meaning has been the subject of litigation.

Very recently a new site http://www.c-app.org.uk/ has been launched, which helps claimants prepare their case for the original assessment.

And two months ago Law Centre (NI) launched a “Digital Guide for PIP benefit appeals.”[13]

The latest development was announced a week ago at the Civil Justice’s Council’s Annual Conference on meeting the needs of Litigants in Person.  LexisNexis UK told us how, under the committed leadership of its Managing Director, it had deployed a major pro bono resource into the development of a new online PIP application form which, it was said, will be very much easier to complete than the 55-page paper form with which claimants currently have to contend. Dame Hazel Genn, the leading academic in the socio-legal field, commented that the widespread use of this new form could make a massive difference to the quality of the cases that are presented to DWP, and that it should therefore provide even fewer excuses in future for poor assessments by the contracted assessors.

Although not everyone will be able to use these new tools, they will be very much simpler to understand and use than the rather more ponderous advice that is provided online by DWP and Citizens Advice.

Thirdly, as a consequence of LASPO the Ministry of Justice has washed its hands of providing publicly funded legal help in welfare benefits matters, and this funding has not been adequately replaced. In Appendix 5 to the Bach Report, I wrote at p 36:

Alternative funding has been particularly difficult to find for welfare benefits advice, which one agency head described as being like a “dirty word” for funders.  This was particularly problematic since the fundamental changes to the welfare benefits regime, including those in the Welfare Reform Act 2012, meant that clients were presenting with more complex cases requiring specialist advice. A report commissioned by the Local Government Association on the impact of the welfare reforms found that although the cuts were broadly the same across all areas of the country, there was a disparate impact in areas of greater deprivation.[14]   There was no targeting of the post-LASPO transition response towards more deprived areas, so that a large part of the responsibility for transitioning the welfare reform programme and for mitigating its impact on the most vulnerable members of society was being passed to the third sector without adequate funding at a time when there was no sign of a let-up in the programme of reforms, with the continued roll out of universal credit and the cuts to tax credits.

Z2K’s director Joanna Kennedy told the Commission last year that one of the two areas in which LASPO had made most impact was the lack of any publicly funded advice on welfare benefits at a time of huge change in the welfare benefits system. She said:

We now regularly have to turn clients away because we do not have the capacity to advise them and there are almost no other agencies to whom we can refer them. We are contacted, every week, by clients who have received a decision about their welfare benefits which they wish to appeal. For those we can take on and represent there is an 80% success rate. Those whom we cannot take on often then have to represent themselves and the statistics show that unrepresented Appellants have a roughly 20% lower success rather than those who are represented. Many others never know of their rights to appeal or how to do it because there is nowhere for them to turn to find that advice. There has never been publicly funded support for representation but there used to be for advice which helped clients know their rights and prepare submissions.

On 14 December 2017 Lord Low, speaking of the need to replace this funding, told the House of Lords:

A couple of years ago there was interest in something such as this at the top of government and a recognition of the contribution made to society by the advice sector. We had very positive meetings with Oliver Letwin, Michael Gove and the noble Lord, Lord Heseltine.

We were able to show that money is not really the issue: there is no shortage of potential funding streams, either from the Government, the lottery or the Government through the lottery. We estimated that a top slice of just 1% of all these funds would yield the £50 million a year needed to fund the Government’s contribution to the national advice and legal support fund we were proposing. The rest would be for local authorities to match-fund from a range of sources that we identified. What is needed is strategic co-ordination of these funding streams, with provision of advice services as a central strategic aim. We put a paper developing this approach to the Cabinet social justice committee, but I fear that it got lost in the works and the whole thing has simply gone off the boil. I hope that, with the renewed stimulus of the Bach report, the Government may be induced to revive their interest in advice services. They have great strategic importance.

Both Low and Bach stressed the value of early intervention for preventing problems escalating further down the track. There is a great deal of evidence that early legal advice saves the state money. Advice has a triple strategic value. Not only is it valuable for assisting people with their immediate problem, it helps to make them more resilient generally in dealing with life’s challenges across the board. Moreover, helping people to be more resilient reduces the burden on public services and public expenditure further down the line. This is a case which it is in the Government’s own interest to take very seriously. In fact, they cannot really afford to ignore it.

In these circumstances, if DWP is unable to improve the quality of its decision-making in relation to PIPs, it seems only fair that the Tribunal should have power to order it to pay the appellant’s costs (very often funded by cash-strapped local authorities or from charitable sources) in addition to the Tribunal’s costs in every case in which the Tribunal allows a PIP appeal on the grounds that the DWP’s decision was wholly lacking in merit.

ANNEX 1

Examples of bad practice by assessors

	Has no legs below the knee.   Failed the mobility test.
	The [assessor] disregarded much of the information she was given, asked the accompanying person not to speak (although I was struggling to explain myself) and used “informal observations” as evidence I was coping.[15]
	My husband has Huntington’s disease, which is a terminal incurable brain disease. On a reassessment for a higher disablement allowance on doctor’s advice in 2016 he was given £0. After nearly 8 months of appeals he was eventually awarded it, backdated.
	[A Welfare Rights Advisor]. I have sat in on PIP assessments, mainly carried out by people with no idea of disability, mental or physical. They tell lies (this has happened several times) and many of the assessors are out of their depth.
	I have had to fight the DWP more times than I can remember. I spent most of the PIP assessment laughing hysterically at their questions, which they found rather off-putting. They were so ridiculous. My house is full of the accoutrements of disability, and these all help getting through to the cretins that do these assessments that my disabilities are real.
	My husband has COPD.[16] He had to wait 14 months in 2013-4 for an ATOS assessment. He was awarded only the standard rate of mobility component (altered to the enhanced rate on appeal) and scored only 7 points for the daily living component. On MR the Case Manager ignored his evidence and didn’t wait for a further letter from his COPD specialist nurse as we had requested.
	After a very serious road accident, is now on crutches with severe osteo-arthritis and is in pain every time she walks. Was awarded a mobility allowance at the standard rate, and no mention was made of her doctor’s supporting letter when MR failed. For her appeal, the CAB adviser[17] told her within 5 minutes that the assessment was done wrong, and she was granted an enhanced mobility allowance by the DWP before the appeal took place.
	During the assessment itself, I had a panic attack, cried, couldn’t remember my medication and wasn’t told when the cognitive assessment took place.  My carer wasn’t allowed to speak on my behalf. I was rushed to complete the physical exam as the assessor was running late and most of my medical evidence was deemed “irrelevant” as it was from private doctors and not NHS doctors… My assessor only asked closed questions. She said “You’re fine engaging face to face, aren’t you” which didn’t give me a chance to say yes or no or discuss my situation. I felt pressured to say I was fine when I wasn’t.
	Before going to the Bar I worked as a specialist advisor at a CAB… I helped dozens of people 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 an “assessments” by a disability assessor (usually a nurse with no specialist knowledge of the client’s condition…)…  That CAB has now lost most of its funding, and [its clients] will now have nowhere to go.
	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 0 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 why 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 to do with not being able to cook due to a medical condition?
	[A blind woman] It was immediately obvious that the assessor had not read any of the doctor’s notes (or didn’t understand them) which set out her condition (including a letter from a Professor at Moorfields Eye Hospital). For example, the assessor went straight to her desk without guiding her to a place to sit, and she set up a Snellen chart (eye test chart) despite the fact that in several doctors’ letters it was noted that she could only manage “hand movements” in one eye, and had no perception of light in the other – she can’t even manage the chart.[18]