In the past an ESA claimant declared Fit for Work could immediately lodge a formal written appeal with HM Courts and Tribunal Service. As part of this, a DWP Decision Maker would have looked at the original decision again, either changing it and awarding the claimant ESA, or upholding it and passing the appeal to a judge. This initial stage was and still is referred to as reconsideration, but it could equally be described as an informal appeal.
However since October 2013, claimants now have to apply for reconsideration separately before they can lodge an appeal. This follows the passage of the Welfare Reform Act 2012 and subsequent regulations.
Now I don’t necessarily object to this change. While Ministers should focus on getting results right first time round, there will always be a few cases where people feel they have received an incorrect decision. In such circumstances reconsideration is less stressful for them and cheaper for taxpayers than a formal appeal to a judge.
However another change – and one I am concerned about – took effect at the same time. As soon as a claimant contacts DWP they can start to be paid ESA at what is known as the assessment rate, which is equivalent to Jobseekers Allowance. Claimants are not automatically paid ESA at the assessment rate during the reconsideration period, but as this previously took place as part of a formal appeal, they were always entitled to it.
But now that claimants have to apply for reconsideration and make formal appeals separately, they are no longer entitled to ESA at the assessment rate during the reconsideration process. The website Benefits and Work first made me aware of this issue, and DWP Minister Lord Freud subsequently admitted in the House of Lords on 13 February 2013 that, as a result of this change, ‘there will be a gap in payment’.
Now initially this doesn’t appear problematic. Claimants could simply apply for Jobseekers Allowance instead while their reconsideration request is being considered, and then go back to claiming ESA at the assessment rate again if they go to formal appeal.
However JSA comes with a great degree of conditionality. In particular claimants have to be available for and actively seeking work. They must attend regular work-focussed interviews, undertake job searches, and make a minimum number of applications every week. In itself this may prove tiring or stressful, and could exacerbate people’s existing physical or mental conditions. But more importantly those who apply and fail to meet these conditions can be sanctioned or refused benefit altogether.
I led a Commons debate on this issue on 6 September 2013 and suggested that, effectively, people who the state will later conclude should not be available for work are being required to claim a benefit that explicitly requires that they should be. I highlighted the cases of two of my constituents who ended up without any support – being too fit for ESA, but too sick or disabled for JSA – and I’m afraid I’ve come across many more examples since (Citizens Advice Scotland’s Voices from the Front Line report from June 2014 contains yet more).
Of these cases, most of those who applied for JSA while their reconsideration requests were pending were either refused outright or failed to attend the necessary appointments due to their mental health conditions. Others just didn’t apply because they couldn’t face another benefits application or they simply didn’t know they could. In the one case where a claimant applied and was paid JSA, he emphasised that this was only as a result of support from his Jobcentre Plus Advisor.
Of those who didn’t receive JSA, few had savings or other income to fall back on, meaning most had to rely on already stretched food banks. Although hardship payments will be available for some (something Lord Freud alluded to on 13 February), those who don’t have any dependents will be unlikely to qualify.One constituent sold off his few remaining possessions, while others took out high interest loans, amassing debts that they will struggle to repay. The case studies in this June 2014 briefing from the National Aids Trust highlight this policy’s impact on both people’s finances and their health.
JSA with flexible conditionality
When I first raised this issue with the former Minister Mark Hoban at the DWP Select Committee on 21 November 2012 and at DWP orals on both 11 March and 20 May 2013, he emphasised that if people don’t claim JSA then their ESA claim will be backdated should they appeal and have their Fit for Work decision overturned. However as the experience of my constituents shows, the damage will often already have been done.
In my debate on 6 September 2013 Mark Hoban argued instead that sick or disabled people should still be able to claim JSA, as advisors are able to put in place modified or tailored conditionality so they won’t be sanctioned. When I then wrote to him on 13 September 2013, he made this point again in his response of 3 October 2013 (on the basis of which I issued a press release on 22 October 2013).
However on 11 June 2014, Jason Feeney, Benefits Director at the DWP, acknowledged in evidence to the Work and Pensions Select Committee that ‘not all advisors had been aware of this’, and as a result new guidance had been circulated at the end of April. While I welcomed this new guidance in a further Commons debate on 16 June 2014 , I asked why Mark Hoban had given assurances on this in the past, given that they were clearly unfounded. Unfortunately the current Minister Mike Penning failed to respond directly to this question, so I put it to him again in a follow-up letter sent on 7 July 2014.
In addition Mr Feeney said that people should never be refused JSA outright, without the opportunity to have, as he put it, ‘a meaningful conversation about conditionality’ with a Jobcentre Plus advisor. Yet DWP’s own guidance specifically states that ‘a claimant will not be able to remain on JSA if their period of sickness exceeds 14 days’ (see this response to an FOI request for the full document). Citizens Advice Scotland have suggested that this is a particular problem for those claiming JSA during an ESA reconsideration. When I raised this in my debate on 16 June 2014, Mike Penning responded by referring to another separate set of regulations. I asked him to clarify the situation in my letter of 7 July 2014.
I fear that the scale of the problem is being exacerbated by the fact that discretion in the use of sanctions is far more limited than it was in the past. This is connected to the targets culture that has emerged with respect to sanctioning – whether Ministers have explicitly encouraged it or not – and which is highlighted by the leaked 2013 memo from a Jobcentre Plus in Walthamstow.
Another issue that was raised in the debate on 16 June 2014 by my colleague Anne Begg MP is that when people are found Fit for Work and stop receiving ESA at the assessment rate, they will also have any Housing and Council Tax Benefit payments suspended (I had previously used the word stopped here – suspended is a more appropriate description). Admittedly these will generally be reinstated and back-payments made if they appeal their decision and resume receiving ESA at the assessment rate, or if they successfully claim JSA. However people now have to request a reconsideration before they can appeal, and as many are experiencing difficulties in claiming JSA during this period, they also struggling to have these other benefits reinstated. In response Mike Penning said ‘when we are re-looking at a case and find that a person is entitled to benefit, we should ensure that their housing benefit and council tax benefit are not affected.’ Given the difficulties that claimants are experiencing in receiving JSA during this period, this doesn’t adequately address these concerns, and I so I raised this again in my letter of 7 July 2014.
This FOI request from January 2014 contains a good summary of the DWP’s position on how JCP staff should work with those applying for JSA while seeking reconsideration.
Assessment-rate ESA during reconsiderations
Given the possibility that a sizeable proportion of people who appeal are later awarded ESA and could – even with certain allowances – struggle with the conditionality of JSA, I believe it makes sense to continue paying ESA at the assessment rate during this period. I made this argument in my debate in September 2013, but Mark Hoban failed to properly engage with this point.
I raised it again with his successor Mike Penning, when he gave evidence to the Work and Pensions Select Committee on 11 June 2014. He tried to hide behind legal semantics, arguing that claimants are still deemed as Fit for Work during reconsideration and must apply for benefits accordingly. Yet this ignored the fact that claimants are presumably also deemed Fit for Work during a formal appeal, and yet are entitled to ESA at the assessment rate during this process. This also ignored the fact that, as a member of the Government, the Minister has the necessary authority to amend and improve the law, if he feels it is unsatisfactory.
In my debate on 16 June 2014 I argued that the administration costs of a claimant receiving assessment rate ESA, then claiming JSA, and then claiming assessment rate ESA again must be significant. Citizens Advice have since sent me a briefing that suggests it costs £162 every time someone claims JSA for the DWP’s suggested two week reconsideration period (page 10 of DWP’s 2010/11 annual report indicates it costs £92 to start a JSA claim, £59 for a JSA interview, and £5.88 per week to maintain a JSA claim).
I also noted that, while some of those to whom it will be paid will eventually be refused ESA both at reconsideration and appeal, there would be no financial loss as assessment rate ESA is the same as JSA, and making such payments would ensure that those who are eventually awarded ESA are not left without financial support during this period. I suggested that the only possible way the Government could realise any savings would be if Ministers anticipated that vulnerable people with disabilities and health conditions would struggle to claim JSA during the reconsideration process.
It has also been suggested to me that large backpayments could actually push people above the threshold to receive any income-related benefits – again saving the Government money.
Finally the Work and Pensions Select Committee took evidence that not paying ESA at the assessment rate during the reconsideration process might actually have the effect of discouraging people from submitting further medical evidence because they know that this will only elongate the period before they can lodge a formal appeal. This was one of the many reasons that, in our July 2014 report on ESA, we concluded that assessment-rate ESA should be paid to all claimants during the reconsideration period.
In my letter of 7 July 2014 I asked Mike Penning to justify the inconsistency as to how people are treated during the reconsideration and appeals processes, and accept that spending will only reduce if ill and disabled people are either unable to choose not to claim JSA during the reconsideration process.
I’m also concerned about the length of time claimants are waiting for decisions on requests for reconsideration. We were initially told that these would take around two weeks, and yet in the cases I have seen this has varied between seven and ten weeks (Citizens Advice suggest they regularly see people wait six weeks). These delays have exacerbated both their existing health conditions and the issues they face as a result of often not receiving JSA. This is also unfair inasmuch as claimants must submit a request for reconsideration within four weeks of being refused benefits.
In evidence to the Work and Pensions Select Committee on 11 June 2014 Mike Penning acknowledged the existence of this backlog, but when I asked a written parliamentary question on 13 June 2014 on the average waiting time for decisions, he claimed that the data they had wasn’t ‘sufficiently robust and reliable to make available’. I used my debate on 16 June 2014 to ask about this again, in addition to questions on how long claimants are now being told they will have to wait and the total number of claimants awaiting a decision. Unfortunately the Minister didn’t answer these questions and so I put them to him again in a further letter dated 7 July 2014.
Statutory time limit
One way of ensuring DWP reduce these delays would be to set a statutory time limit on length of time the department can take to complete an ESA reconsideration decision. Unfortunately this is something that DWP Minister Lord Freud also ruled out on 13 February 2013. Instead he proposed a system of internal targets, but these won’t be binding or made public, and so won’t be adequate, particularly given the pressure that the now much-reduced DWP staff are under at present.
This is despite the fact that, in April 2012, the Administrative Justice and Tribunals Council warned that the absence of a time limit could have the effect of ‘delaying indefinitely the exercise of the right of appeal to an independent tribunal’, and suggested a time limit of five days (this is detailed in Citizens Advice Scotland’s Voices from the Front Line report from June 2014). Then in evidence to the Work and Pensions Select Committee in May 2014 Judge Robert Martin – the man in charge of ESA appeals – expressed concern that judges could no longer intervene if they felt the reconsideration process was taking too long. I submitted a written parliamentary question to confirm the Government were still against a statutory time limit and, in a response I received on 9 June 2014, the Minister Mike Penning confirmed this was the case. In my debate on 16 June 2014 I asked him to revisit the Government’s position on this issue, but he failed to respond to this point directly. I raised it with him again in my letter of 7 July 2014.
In its July 2014 ESA report, the Work and Pensions Select Committee called on Ministers to introduce some form of time target for completion of reconsiderations.
I’m also concerned that DWP Ministers are actively making it harder for people to appeal in the first place. For a start claimants now have to ask for both reconsideration and appeal separately. Secondly the process is overly-prescriptive with claimants having to use the exact words ‘mandatory reconsideration’ when making their initial request, and sending in their mandatory reconsideration refusal letter from DWP to appeal (these two issues are highlighted in this briefing from Citizens Advice). Thirdly DWP now no longer stock or issue appeal forms – claimants have go online or visit an advice agency to obtain one. Fourthly if a claimant applies for reconsideration and is refused, they will not be told they can receive ESA at the assessment rate if they then lodge a formal appeal (this was highlighted to me in a letter I received from Jobcentre Plus dated 20 September 2013, and is reinforced by this article in the Socialist Worker).
The benefits system is already difficult to navigate for most people, but it proves a real challenge for people with mental health or cognitive issues. These changes will simply exacerbate this. This was reinforced by evidence from Judge Robert Martin to the DWP Select Committee in May 2014, when he described mandatory reconsideration as being of ‘dubious advantage’ and suggested that some people might decide not to challenge Fit for Work decisions, not because they didn’t think they had a case, but because they became so weary of the process (I have written more about this here).
Income Support as an alternative?
It has been suggested that people who claim ESA and are found Fit for Work but are unable to claim JSA (or who claim and are subsequently sanctioned) could claim Income Support, but this isn’t the case in practice, as I set out here.
How mandatory reconsideration and direct lodgement work in practice
Tribunal statistics published on 13 March 2014 show a fall in the number of ESA appeals, suggesting that the introduction of mandatory reconsideration in October 2013 has reduced the number of aggrieved claimants appealing. As Nick Dilworth highlights, 32,969 appeals were received in between October and December 2013 compared with 111,817 in the first quarter of 2013/2014 and 76,456 in the second. This is also down on the same period in the previous year, when 85,109 appeals were received.
This may mean that more cases are being resolved amicably and at less cost by DWP civil servants, and so in some sense this is not altogether unwelcome (for additional commentary on the drop in appeals see the Work and Pensions Select Committee’s July 2014 report on ESA). However it reinforces my calls for DWP to publish statistics on the number of successful and unsuccessful reconsideration requests, as only by combining such statistics with those on appeals can we get a proper understanding of the overall effectiveness of the WCA.
In the 2013/14 session of parliament I lodged an Early Day Motion – in effect a petition for MPs – calling for claimants to be paid assessment-rate ESA during the reconsideration period (see my press release from 10 October 2013). EDM 620 became the second-most signed EDM of the session, and I have therefore lodged an identical motion – EDM 4 – in the 2014/15 session. In addition a petition on this issue has been launched on the campaigning website 38 degrees and Citizens Advice have also launched a petition on change.org. They highlight the story of Gary, who says:
I was asked to give evidence to the Department for Work and Pensions (DWP) stating I was not fit for work while being forced to apply for jobs that I knew I wasn’t able to do by another part of the DWP.