Explaining decisions

Decision Assurance calls and Decision Maker reasoning
There are a number of recommendations from Professor Harrington’s independent reviews that aimed to make the WCA more humane. For example he recommended that Decision Makers should call applicants if they are declared Fit for Work of placed in the WRAG to give them the opportunity to submit further evidence, and send them a short paragraph of prose – known as the Decision Maker reasoning – justifying their decision (see this written answer from 18 January 2012 to Tom Greatrex and step 15 in the WCA Stakeholder Information Pack).

Unfortunately, as the new independent reviewer Dr Paul Litchfield highlights in chapter four of the fourth independent review, the phone-call element of this has been scaled back so that although those declared Fit for Work still get a call, those placed in the WRAG only get a call in advance of their first Work-Focussed Interview at Jobcentre Plus. This means that claimants may not be aware they have to participate in work-related activity until after it is too late to appeal. Dr Litchfield says DWP have ‘not always addressed or prioritised the qualitative benefits’ in assessing additional contact with claimants.

I’m also concerned about the quality of letters that get sent to people during the ESA process. I raised this issue  with my local Jobcentre Plus in July 2013 and received a response in August. This effectively acknowledged that some letters are inadequate, blaming an old legacy system that uses a mix and match of selected paragraphs.

However the suggestion was that these issues would not be addressed until the new Universal Credit system is rolled out. I think this is unacceptable. People should not be sent letters that fail to give the proper information or which are incomprehensible. This amounts to allowing systems to replace common sense. Moreover it is going to be some considerable time before claims for ESA are going to be migrated into Universal Credit.

I raised this in a letter to Mark Hoban, then the Minister responsible, in September 2013 and got a similarly disappointing response. He effectively admits that some letters can cause confusion. Although he claims they are making small improvements to the current system of letters in advance of the rollout of Universal Credit, he qualifies this assertion with ‘as issues are brought to our attention and IT capacity and funding allow’.

What is the impact of this in practice? I recently met a constituent who lives with depression. She sent of her ESA50 form in February and received a rather cryptic letter from DWP three weeks later. She then waited to be invited for a face-to-face assessment. In June she called to find out what was happening, and was told that she’d been awarded ESA at the WRAG level without an assessment in February. The issue was that the letter had read as if it were a repeat of previous correspondence and omitted key pieces of information. For example it failed to refer to the assessment or its outcome.

The anxiety that my constituent suffered in the intervening period, and which exacerbated her condition, could have been avoided if the original letter had been of a higher standard, as could the staffing costs of re-investigating her case. Although she submitted an appeal against the decision to place her in the WRAG, she found the previous part of the process so stressful that she has since had this withdrawn. Because those who have any form of savings are only entitled to be in this group for a year, her entitlement will shortly run out, leaving her £91 per week worse off for life and with no regular income.

I also had a couple come to my surgery. The husband had previously been on Incapacity Benefit and had attended a face-to-face assessment as part of the migration process. He received another cryptic letter from DWP, but chose not to question it as money was still going into his account. He only became concerned half a year later when he learnt that his benefits were due to stop in six months time. It turned out that he had been placed in the WRAG and, as above, will be affected by the one-year time limit for those with savings. To make matters worse, the window of time in which my constituent could have appealed had passed. The Government needs to take action now to improve the quality of letters, so situations like that of my constituent do not arise again. I brought these concerns together in a press release I circulated in October 2013.

I have particular concerns about the  letter that people receive when they are declared Fit for Work – the ESA280 (see this anonymised example passed to me by a constituent).

If an applicant should choose to appeal their decision then they can also continue to claim ESA at the assessment rate. However this is not clearly spelt out in the specific. Instead claimants are signposted towards claiming other benefits, with a particular focus on Jobseekers Allowance.

While I acknowledge that this is paid at the same rate as the ESA assessment rate, claimants have to be available for work and actively looking for work. As I highlight in my page on Reconsideration, this is often beyond claimants who are found fit for work but then successfully appeal.

I thus wrote to Mark Hoban on 26 February 2013 asking him to amend this letter so that, where it describes the appeals process, claimants are also notified that they can continue to claim ESA at the assessment rate. I received a reply dated 15 March 2013 from a DWP civil servant, Carolyn Taylor, Head of Benefit Centres. Ms Taylor explains that claimants who are found fit for work and appeal do not automatically receive ESA at the assessment rate. She indicates that this depends on a claimant’s income and National Insurance contributions, and that claimants would still have to provide fit notes and be readily available for work.

This response is very disappointing. While it’s true to say that awards of ESA at the assessment rate are dependent on other factors, this is equally true of JSA. And yet JSA gets a mention in the standard letter and ESA at the assessment rate does not. In fact the letter goes further and suggests that claimants will be unable to claim ESA for six months except in certain circumstances (of which appealing is not one). In practice this is plain wrong.

Ms Taylor then suggests that where benefit is awarded on appeal, this does not necessarily mean the original decision was wrong. She notes that in many cases further evidence is presented that was not available to the Decision Maker originally. I feel Ms Taylor’s attempts to reduce this to an argument over semantics are unhelpful. The decision was still ‘wrong’ and it is the system that is to blame if evidence is only presented upon appeal.

Ms Taylor does eventually state that my points will be considered in their ongoing work on their forms and other products. She also notes that Income-based ESA will be integrated into Universal Credit. I would hope that any improvements that are made to the forms used for the various benefits as they currently exist are transferred across to UC.

Review of all communications
In chapter four of his fourth independent review, Dr Paul Litchfield argues that all DWP communications related to ESA need improving. Specifically he says:

It is clear that more can be done to improve letters and forms. The Reviewer has shared letters with the Cabinet Office Behavioural Insights Unit who have suggested that the letters could be greatly improved to make them clearer. Specifically much of the information is repetitive. Letters could also be better structured and some of the language used could be simplified.

In their response the Government said:

Considerable time and effort has been spent improving the clarity of communications with claimants and the Government believe that progress has been made in this area, for example with considerable improvement to the ESA50 form. The Government accepts that more may be done and welcomes and has accepted Dr Litchfield’s recommendation for a comprehensive review of all letters and forms used in the WCA process.

While I welcome this review, it is regrettable that it required the intervention of the independent reviewer to prompt it, and I fear the Government’s engagement may be rather superficial. The importance of a proper review was also raised in the Work and Pensions Select Committee report on ESA from July 2014, and in the submission to the fifth independent review of the WCA by a group of charities representing people with progressive conditions.