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Post by nickd on Apr 30, 2012 23:41:18 GMT 1
DWP (Appeals) Consultation Response I would encourage anyone & everyone, especially those involved with or affected by welfare reform to respond to Government's consultation on a new piece of legislation connected with requiring all appellants to participate in a process of mandatory revision before they can bring an appeal before an independent tribunal.There's more about it here..
mylegal.proboards.com/index.cgi?board=frontline&action=display&thread=621
The direct link to the consultation site is here (this tells you more about the intended changes)....
www.dwp.gov.uk/docs/mandatory-consideration-consultation.pdf
Time is running out, but it is very important that you have your say - the closing date is 4th May!
Use the template or write your own, it's better to do it today as you know what it is like - tomorrow never comes!These proposals make a lot of promises to improve standards of decision-making; but will they? The welfare reforms leave many people believing decision - makers are target driven in order to get people off their benefits. These proposals are a response to the huge numbers of appeals which are sweeping the country as thousands of people contest unfair decisions, up to 45% of Employment & Support Allowance claimants who appeal are winning as tribunals overturn unfair decisions. Are these proposals going to help or hinder people in getting access to justice? These proposals are only as good as the decision - makers behind far too many unfair decisions, the question we should be asking the DWP is why does it necessitate a mandatory process of compulsory revision before you can lodge an appeal? Why are people being denied direct access to an independent tribunal? ls this potentially an initiative aimed at putting people off appealing? There are just too many unanswered questions to leave this unchallenged without at least having your say. Here are the four key questions you are being asked to respond to...[/i] [/size] Question (1)
Please give us your views on how the decision making and appeals standards can be further improved?
Question (2)
Do the proposed changes go far enough in order to deliver a fair and efficient process?
Question (3)
Please give us your views on whether the draft regulations (Annex C) meet the intention as described in the summary section of this consultation document.
Question (4)
Please let us have any specific comments about the draft regulations that you would like us to consider.
There is a template you can use in the posts below, you can adapt it or make your own points or use it as it is. It would be very helpful if people could post their own own on here to help others - many thanks! [/b]
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Post by nickd on Apr 30, 2012 23:41:40 GMT 1
We all have a right to say.. I hope the following templates (2) are of help to some of you, the first one is based on a response which I will be submitting as part of my own own organisation's response and reflects some of the genuine concerns I have as a welfare benefit specialist. One of my specialist areas is in benefit fraud related enquiries and you will note how I have related some of my concerns over the draft regulations towards there failure to provide for some of the situations which commonly arise in the course of these usually complicated type of enquiries.
The second response is aimed at claimants and those more directly affected by welfare reform. These proposals effectively prolong the day when many of you become entitled to not just your benefit - but all the badges & support which goes with it. It is an easy to use response which you should send to the address provided in the first response. It may help to say a little bit about your circumstances or conditions you suffer from.
Some of you will have additional concerns over whether any proper impact assessments have been carried out in drafting this legislation, or over the effect which delays will have upon disabled claimants waiting to have their appeals heard. I hope you are able to adapt the questions to reflect your respective concerns.
The passing of the legal aid bill (LASPO) came as a bitter blow to hundreds of welfare benefits specialists by its removal of legal aid for clients who need help in the preparation of cases up to first - tier tribunal level. These proposed reforms take things a step further in not only limiting direct access to specialist advice but in denying claimants direct access to the Tribunal itself. As a specialist having had conduct of literally thousands of benefit & debt cases (and yes I do mean thousands) I have always believed clients get a fair a deal as possible in our tribunals. It's not a perfect system but it at least people a fighting chance in being able to go along to the tribunal and tell them of the problems they face. We are proud of the results we achieve and I fear how much worse things will become as clients get swallowed up in this faceless system of justice where they will be expected to resolve their disputes over the phone with a decision-maker who never gets to meet them or see first hand the problems they face. I view this legislation as extreme in every sense of the word and do not welcome its proposal. I appreciate the need to keep the cost of appeals down; but I believe the best way of doing this is to make the right decision at the very start of the claim. People facing disability and hardship should not have to battle to get their just entitlement and nor should they find the door of the tribunal room locked until such times as the State choose to allow them a democratic access to justice.
I have met many decision-maker's over the years and have the utmost respect for the work they do, it's the ones I've never met which concerns me. I ask myself, will they give my clients a fair deal? or will they succumb to meeting departmental targets set by the hierarchy that rolls out this relentless war on welfare?
I'm not sure, but what I know is how uneasy I feel over the prospect of leaving unaided clients to the mercy of the State in what appears to be an attempt to deny them direct access to justice. I am mindful that when it came to ensuring swift justice solutions needed to be found no resources were spared in holding 'round the clock' justice sessions to bring last year's rioters before the court to face punishment for their wrongdoing. The difference is that benefit claimants are not prolific offenders; they are innocent victims of circumstances beyond their control; yet having their day in court to sort out their lawful benefit entitlement seems to have become an obstacle course over which they are now expected to jump yet another hurdle before they reach an end point in proving the genuine worth of their claim.
No doubt some will say this process is an appropriate aid to reducing litigation and may question why I oppose earlier dispute resolution in these benefit appeals. In answer to these concerns, I say it is the Secretary of State who has shown himself to be the serial litigant and it is targeted decision-making which has become the barrier to earlier resolution. To those of you who cruelly tar the incapacitated & disabled with the brush called 'scrounger' - I say let there be no delay in allowing them their day in Court to prove you wrong.
Please do voice your concerns and do what you can to ensure the State is properly held to account.
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Post by nickd on May 1, 2012 19:42:51 GMT 1
Version 1 for advisers
Mandatory consideration of revision before appealResponse to public consultation (opened February 2012)Guidance on where to send the response & what you need to state.
Appeals Reform Consultation
Decision Making and Appeals – Legal Group
Department for Work and Pensions
The Adelphi, 5th Floor
1-11 John Adam Street
London
WC2N 6HT
Fax 0207 962 8541
Email appeals.reform@dwp.gsi.gov.uk
Please ensure your response reaches us by 4 May 2012.
When responding, please state whether you are doing so as an individual or representing the views of an organisation. If you are responding on behalf of an organisation, please make it clear who the organisation represents, and where applicable, how the views of members were assembled. We will acknowledge your response._________________________________________________________________________________________________________ Response to public consultation
Mandatory consideration of revision before appeal [/color] [Name & address of organisation or individual]
[Date & reference]
[If you are an organisation - provide some brief details of it, such as area of specialisation & area you serve]
[If you are an organisation - provide some details of how you amassed data & use local statistics of the client group you serve]
I/we would be grateful if you could take the following points into consideration of the above mentioned consultation with regards to your proposed implementation of draft regulations concerning social security & child support appeals. Response to questions 1 to 4Question (1)
Please give us your views on how the decision making and appeals standards can be further improved?The current system is flawed by virtue of the high number of inaccurate decisions reached by decision-makers who do not for instance objectively challenge the healthcare professional’s evidence in Employment & Support Allowance (ESA) cases; there is a risk over this trend worsening once Personal Independence Payment (PIP) has been implemented. Adverse media claims have been made in an attempt to expose large numbers of benefit recipients who claim on spurious grounds. This is a practice which continues to lay statutory decision-making bodies wide open to accusations that they are participating in target based decision-making which demotes trust between the appellant and the State.
The Tribunal President's report has predicted social security & child support appeals will reach 644,000 a year by 2014/2015, this will bring the total number of benefit appeals to over 2.5 million within the current parliamentary term. It is paramount that errors in decision-making are identified at source & monitored by effective challenges. Appellants are winning up to 45% of ESA cases (according to most recent DWP/HMCTS data) at tribunal hearings, there is currently no objective evidence to show that improvements in the reconsideration process will make any difference in rectifying earlier stage errors in adjudication.
Claimants will face difficulty in accessing proper levels of help due to cut backs in the advice sector which increases the scope for increased error if decision - makers attempt to persuade claimants they have no case at the reconsideration stage. It is incorrect to cite the recent Harrington review or implementation of reconsiderations as an improvement in the light of the Employment Minister's (the Right Honourable Chris Grayling MP) evidence to a Parliamentary Committee in March 2012 when he conceded that there were no ‘accurate statistics’ upon which to base such a claim. Furthermore, it is too early to say that the appeal numbers are falling. The most recent statistics quoted by HMCTS for 2011/2012 are incomplete. The number of appeal cases outstanding is still very high with somewhere near 166,075 cases not yet heard, in addition to which the DWP have not quoted the numbers of appeals which have not yet reached the Tribunal Service.
In summary; there is no objective evidence that any of the current measures have made any difference towards reaching the standards which claimants expect of adjudicators when deciding their entitlement according to law.
The Ministry of Justice in their own promotional video for ESA claimants reminds appellants that their best prospect of achieving success is for them to attend a Tribunal in person and tell the panel face to face about the problems they face.
Question (2)
Do the proposed changes go far enough in order to deliver a fair and efficient process?No, the proposed changes demote access to justice by delaying the time in which a claimant is able to directly lodge an appeal to an independent appeal tribunal. The ultimate measure of good quality decision-making is when claimants feel the right decision has been reached 'first - time'. There is no guarantee that a mandatory process of reconsideration is by default a fair one. It is likely to be unfair if it restricts dispute resolution to whatever is discussed between the claimant and the State's appointed decision-maker without the listening ear of an independent advisor or inquisitorial arbitrator being on hand to intervene where appropriate.
The consultation paper sets out how decision-makers will contact claimants by telephone in order to try and resolve their dispute. This can work in some instances but it has to be recognised that claimants may feel 'put on the spot' and provide answers which they would be able to better explain in the more inquisitorial environment of a listening tribunal room. Claimants can struggle to portray their problems over the telephone and may misunderstand what it is they are being told when receiving an explanation over the decision which remains in question. There is a much greater risk of records of telephone interventions becoming lost in the system due to problems associated with departments which continue to fail when communicating with one another.
The proposals are self - defeating unless they result in the right decision being reached. Welfare reforms will inevitably bring about a greater need for dispute resolution. Millions of claims are being reviewed and it appears to go against the grain of natural justice to curtail direct access to independent justice by the implementation of a system which forces claimants to ask the same adjudicating authorities which made the mistake in the first instance to 'look at it again'. Making the process mandatory is likely to be viewed with a justified degree of mistrust by claimants & advisers unless there is a genuine attempt to promote fairness - ultimately, there can be no denial that the tribunal is the best place to uphold justice and monitor attainment of better standards of decision-making by virtue of its impartiality.
The worst outcome in this new process would be to end up with claimants having to undergo a stressful process involving going through both the mandatory reconsideration and then having to lodge an appeal because they remain dissatisfied with the outcome reached at the reconsideration stage. It could mean claimants are left waiting months before they can have their appeal heard. The consultation paper mentions independence from the initial decision-maker but does not amplify how this will be attained without the external appointment of a second-tier decision-maker. It is hard to understand how true levels of independence can be obtained when the secondary decision - maker is not remote from the same decision-making authority which made the initial decision. There is a case for consideration of a more independent intermediary service for the purposes of reconsiderations prior to appeal.
The mandatory reconsideration process is one which would be better served if the Welfare Reform Act provided for access to statutory funded specialist welfare benefit advice; this would assist the claimant in being able to more effectively state his or her case in a way which be more likely to result in an earlier stage resolution being reached without the need for ongoing appeal. The DWP is giving out a mixed message in its claims to help more long term welfare dependant claimants into work (by offering appropriate levels of welfare to work support based on established levels of limitation) when it plans to implements a process which will delay the whole process of accessing badly needed support.
Question (3)
Please give us your views on whether the draft regulations (Annex C) meet the intention as described in the summary section of this consultation document.
The summary sets outs an objective
"These changes are necessary to deliver timely, proportionate and effective justice for claimants, make the process for disputing a decision fairer and more efficient. "
(1) These proposals do not meet the overall objectives set out in the consultation summary. Justice must above all be fair, these proposals appear to be more centred on reducing the number of appeals rather than rectifying the cause of them.
(2) There is no evidence upon which it can be guaranteed that the process will be more timely. To the contrary, it is more likely to result in greater delays in claimants being able to access proper levels of justice.
(3) Proportionality must be considered within the context of the escalating number of appeals which claimants are lodging. The greater the number; the greater need for more direct access to an independent appeal Tribunal.
(4) Effectiveness can only be gauged by the quality of the outcome decisions being reached. It is neither cost effective or in the interests of justice to simply claim the system is more effective by citing a reduction in the number of appeals being brought before SSCS Tribunals. The measuring stick must be in effective monitoring of better standards of decision-making.
(5) The consultation summary should promote the value of justice above all else - it is lacking in making this a clear & distinct goal.
Question (4)
Please let us have any specific comments about the draft regulations that you would like us to consider. [/b][/size] the draft regulations are badly constructed and make no provision in addressing potential problem areas which will will arise if these proposals are implemented in their current form.
Examples of these are as follows:
(1) Decisions do not arrive together. There are a number of cases, particularly overpayment cases, where separate decisions have to be made on entitlement & recoverability. A primary benefit (such as Income Support) decision may relate to 'mirrored' decisions affecting the claimant's other benefits (such as Housing & Council Tax Benefit). Thus some decisions may still be at the mandatory reconsideration process whilst others have advanced to the Tribunal. It is in the interests of efficiency (and essential to satisfactory adjudication) for these decisions to be conjoined at some point. There is considerable scope for chaotic administration of appeals if separate decisions are all at different stages as it makes the prospect of conjoining difficult if not impossible.
(2) There will be cases (again involving overpayments) where recovery is sought under section (71) of the Social Security Administration Act but contested by the claimant in terms of civil recovery. Serious problems could arise where the claimant is facing criminal charges under sections (112) & (111) [or more serious charges relating to the Theft Act). There is an adjournment clause contained within section 117 of the Administration Act ('other legal proceedings') which will potentially cause a criminal court to have to delay proceedings until such times as both the mandatory revision and appeal to Tribunal (assuming it is not resolved) is complete.
(3) Although Housing Benefit is excluded from the proposals, it will be subject to inclusion within the clauses relating to Universal Credit (where upon mandatory revision is drafted in as a pre-requisite). There will need to be provision for ensuring both the claimant & landlord are served with notices in recovery cases. The problems will arise where different parties' disputes move at a different pace, some will be at reconsideration & others will be at the Tribunal, it will make conjoining at HMCTS an administrative & bureaucratic burden.
(4) The terminology 'purported' appeal is ambiguous & is likely to create confusion. Claimants may find themselves in a situation where they are told by HMCTS that there is no record of their decision having cleared the mandatory revision stage at the DWP office. This could potentially make for situations where Tribunal judges are making erroneous decisions to strike a parties cases out for want of the correct information from a DWP office which may have lost their record of the mandatory process having been carried out.
(5) There is an inherent risk that claimants will run out of time for lodging an appeal because they have misunderstood the need to make an onward appeal following a mandatory revision outcome against which they disagree.
(6) The ESA regulations make provision for a claimant to be moved to the the WORK RELATED ACTIVITY GROUP within a three month assessment period. The implementation of these proposals is likely to increase the assessment well beyond the statutory framework for making a Work Capability Assessment and this place an additional burden upon the claimant's doctor to supply further medical evidence in accordance with the Medical Evidence Regulatory requirement.
(7) If these proposals are implemented we would like to see a mandatory requirement placed upon a decision - maker to identify appeal cases where an appellant has a reasonable need of specialist legal advice (such as may be funded at the State's expense) in order to improve the prospects of resolving the issues in dispute by better enabling the claimant to state his or her case. This would assist towards reducing unnecessary litigation in the first - tier SSCS Tribunal.
I/we thank you for your consideration and look forward to your acknowledgement. If there is anything you would like to discuss with regards to the points raised please do not hesitate to contact me on (Tel number) and I will be very happy to discuss this further with you.
Yours faithfully
[Name]
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Post by nickd on May 2, 2012 5:33:54 GMT 1
Version 2 - for claimants
More directly affected by welfare reform? Short response which could be used by claimants or individuals affected by welfare reforms. Question (1)
Please give us your views on how the decision making and appeals standards can be further improved?The area in which improvement is required is over the poor standard of departmental decision-making at the outset of the claim. The State has removed from the process of assessment the word of a doctor who best knows their patient, has limited an individuals access access to specialist advice in advocating their case & now seeks to remove direct access to the best place for proving the validity of their claim - by delaying access to the Tribunal room.
Question (2)
Do the proposed changes go far enough in order to deliver a fair and efficient process?No, the proposed changes demote access to justice by delaying the time in which a claimant is able to directly lodge an appeal to an independent appeal tribunal. The ultimate measure of good quality decision-making is when claimants feel the right decision has been reached 'first - time'. There is no guarantee that a mandatory process of reconsideration is by default a fair one.
Question (3)
Please give us your views on whether the draft regulations (Annex C) meet the intention as described in the summary section of this consultation document.
The summary sets outs an objective
"These changes are necessary to deliver timely, proportionate and effective justice for claimants, make the process for disputing a decision fairer and more efficient. "
(1) These proposals do not meet the overall objectives set out in the consultation summary. Justice must above all be fair, these proposals appear to be more centred on reducing the number of appeals rather than rectifying the cause of them.
(2) There is no evidence upon which it can be guaranteed that the process will be more timely. To the contrary, it is more likely to result in greater delays in claimants being able to access proper levels of justice.
(3) Proportionality must be considered within the context of the escalating number of appeals which claimants are lodging. The greater the number; the greater need for more direct access to an independent appeal Tribunal.
(4) Effectiveness can only be gauged by the quality of the outcome decisions being reached. It is neither cost effective or in the interests of justice to simply claim the system is more effective by citing a reduction in the number of appeals being brought before SSCS Tribunals. The measuring stick must be in effective monitoring of better standards of decision-making.
(5) The consultation summary should promote the value of justice above all else - it is lacking in making this a clear & distinct goal.
Question (4)
Please let us have any specific comments about the draft regulations that you would like us to consider. [/b][/size] The draft regulations are badly constructed and make no provision in addressing potential problem areas which will will arise if these proposals are implemented in their current form.
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Post by nickd on May 2, 2012 22:19:24 GMT 1
GMWRAG's response... G.M.W.R.A.G.
The website of Greater Manchester Welfare Rights Advisers GroupDWP has issued a consultation called ‘Mandatory consideration of revision before appeal’, which also contains draft regulations. They set out its proposals for the implementation of powers contained in the Welfare Reform Bill 2011 which will mean that a claimant must request a revision of a decision before being able to lodge an appeal. DWP says this will allow it to carry out a ‘robust review’ of the disputed decision, with claimants given an opportunity to provide supporting information. They also say that the changes are necessary to deliver ‘timely, proportionate and effective justice for claimants’, and to make the process for disputing a decision ‘fairer and more efficient.’ The consultation document goes on to set out details of the DWP’s proposals as to how the new process will work, including that it will start in April 2013, that it will exclude housing benefit and council tax benefit, and that appeals will be made directly to Her Majesty’s Courts and Tribunals Service. Consultation responses should be sent to Appeals Reform Consultation Decision Making and Appeals – Legal Group Department for Work and Pensions The Adelphi, 5th Floor 1-11 John Adam Street London WC2N 6HT. Alternately, you can fax your response to 0207 962 8541 or email it in. The deadline for responding to the consultation is the 4th of May 2012. GMWRAG has had a read of the consultation document and thinks responses may want to look at The evidence in favour for the proposed reform. Accurate recording of the telephone conversation with the appellant. The continued lack of a time limit for making a revision. Lack of evidence that ESA revisions are taking place; assertions by DMs to the contrary, and the lack of an impact anyway. The lack of any indication as to whether regulations will be amended to allow continued payment of benefits until challenge process completed and, if not, what is being proposed? As ever, if you or your organisation submits a response to this consultation, it would be lovely if you could share it with GMWRAG so we could share it with our members and other casual viewers of the site to both inspire and inform. gmwrag.wordpress.com/2012/02/13/dwp-consultation-on-mandatory-consideration-of-revision-before-appeal-closing-date-4th-of-may-2012/
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Post by nickd on May 2, 2012 22:32:48 GMT 1
Homeless Link's response... MANDATORY CONSIDERATION OF REVISION BEFORE APPEAL
CONSULTATION RESPONSEHomeless Link is the national umbrella body for frontline homelessness services in England. We have more than 500 member organisations, whose services range from local authority housing services, day centres, outreach services, residential care homes, hostels, supported housing, floating support through to employment, training and education. As the national collaborative hub for information and debate on homelessness, we seek to improve services for homeless people and to advocate policy change. Through this work, we aim to end homelessness in England. We welcome the opportunity to respond to this consultation and agree that there is a need for change in decision making and appeals processes for welfare benefits. We are responding to this consultation as an organisation whose members support some of the most vulnerable and socially excluded people in our communities. Welfare benefits are a lifeline for their clients, and inaccurate or incorrect decisions can have devastating consequences. We understand that, of the near 400,000 appeals lodged in 2010/11, almost 40% were found in favour of the customer (1) Additionally, DWP statistics show that more than 1 in 4 WCA assessments are appealed, with 39% of these appeals being found in favour of the customer. Further to this, evidence from Citizens Advice Scotland suggests that appeals [against ESA decisions] are found in favour of the customer in 70% of tribunals where bureau advisers provided representation (2) We interpret the large number of appeals against decisions and the high percentage of appeals found in favour of claimants as indicative of both policy and delivery inadequacies to the task. We commend the DWP for providing new learning and development support to decision makers and the prompt implementation of findings from Professor Harrington’s report with regard to decision makers. More here... homeless.org.uk/sites/default/files/HomelessLink_Mandatory_consideration_before_appeal_consultationApril2012.pdf
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Post by nickd on May 3, 2012 21:32:27 GMT 1
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Post by nickd on May 3, 2012 21:33:36 GMT 1
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Post by nickd on May 3, 2012 21:35:02 GMT 1
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Post by nickd on May 3, 2012 21:49:12 GMT 1
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Post by nickd on May 3, 2012 21:51:49 GMT 1
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Post by nickd on May 3, 2012 22:14:10 GMT 1
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Post by nickd on May 3, 2012 22:18:04 GMT 1
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Post by nickd on May 3, 2012 22:20:11 GMT 1
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Post by nickd on May 3, 2012 22:21:56 GMT 1
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Post by nickd on May 3, 2012 22:24:57 GMT 1
Government's impact assessment... www.parliament.uk/documents/impact-assessments/IA11-040B.pdfCheck this out.. " The intended effect is that this would lead to more disputes with claimants being resolved through the internal reconsideration process, rather than resulting in an appeal to the First-tier Tribunal - because some claimants would conclude that the outcome of the reconsideration process was fair and therefore decide not to appeal, and because fewer appeals would proceed to the tribunal as a result of customers not taking action to withdraw appeals which they no longer considered necessary." A Decision - Maker's dream... "Some people would conclude that the outcome of the reconsideration process was fair and therefore decide not to appeal" Ah, so no need to write an appeal submission there then! |
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Post by nickd on May 4, 2012 1:14:26 GMT 1
Mandatory consideration of revision before appeal-Personal Response to DWP Consultation
By Sam Barnett-Cormack
s.barnett.cormack@googlemail.com
This is my personal response to the stated consultation, as opened February 2012 and closed 4th May 2012.
About Me
I am a disabled person, diagnosed with narcolepsy, bi-polar disorder, irritable bowel syndrome, eczema (treated with immunosuppressants), asthma (treated with daily steroid and LABA inhaler), non-seasonal allergic rhinitis and migraine. I also suffer from symptoms that have not yet at a diagnosis attributed to them, having been reviewed by a neurologist and a psychiatrist and, on the advice of the psychiatrist, waiting for an appointment with another neurologist to continue investigations.
My partner suffers from fibromyalgia and depression, and also has some symptoms that are unattributed; there is a possibility they are related to the fibromyalgia, that being a poorly understood condition, but they are not part of the conventional constellation of fibromyalgia symptoms. She claims ESA, has twice been placed in the Work-Related Activity Group, in our opinion appropriately, and recently found fit for work.
A reconsideration is under way following our notice of appeal. I am her named partner on this claim, and it has previously been awarded on an
income-related basis. We both receive Disability Living Allowance. My DLA has been awarded without need for reconsideration since I first applied following my narcolepsy diagnosis; initially, I was awarded
Middle Rate Care and Lower Rate Mobility, but following moderately successful pharmaceutical treatment, this reduced to Lowest Rate Care and Lower Rate Mobility. My partner has been awarded a range of levels of Mobility, currently receiving none, though an appeal will be heard later this month. She was denied Mobility previously, and following reconsideration was awarded Higher Rate Mobility. Her mobility has improved somewhat since diagnosis with fibromyalgia and
beginning some treatment, but we have a clear argument that she is entitled to Lower Rate Mobility. This was not accepted during the standard reconsideration pending appeal, even where evidence
was produced. We are confident that this will be overturned at appeal.
I have a BSc in Mathematics and Computer Science and an MSc in Advanced Computer Science. I am currently studying part-time towards an MA in Educational Research. I am trying to make my way self-employed. I have also been involved in recent community-based work campaigning and communication in relation to welfare reform and disability issues; I was a co-author of the so-called “Spartacus Report”, Responsible Reform, and principle author of the wearespartacus.org.uk
community response to the PIP Assessment Consultation that ended earlier this week. I am also a Quaker, active with Young Friends General Meeting, the national body for young adult Friends (aged 18-30ish).
Question 1
Please give us your views on how the decision making and appeals standards can be further improved
With regards to sensitive benefits relating to health, such as ESA and DLA, particularly where there is a process of periodic reassessment, unexpected negative determinations can be hugely damaging to claimant and their household. Not only is there an obvious negative financial impact, but there is a clear impression that the Decision Maker considers that the person isn't as ill or disabled as they claim; in other words, that they are somehow exaggerating or outright lying when describing their
limitation. This can have a devastating effect on mental health, particularly where there is an existing mental health condition.
I suggest that, particularly in such cases, negative determinations that seem to contradict the picture described by the claimant should be automatically reconsidered without any request, particularly
where this is an ESA reassessment or a DLA renewal, or in future PIP reassessments. Without clear reason to suppose that a person's condition has improved considerably, any decision to reduce
entitlement should be double-checked as a matter of course. This process may include contacting the claimant to tell them the result of the initial consideration, and raising any particular points with them to allow them to explain. This should be done by whichever means of contact is preferable to the claimant, from a choice including at least telephone and post. It should also include contacting relevant healthcare professionals that are familiar with the claimant. This would lead to more cases of “getting it right” removing the need for “putting it right”, in the
terms of the Parliamentary and Health Service Ombudsman's principles. This would, consequently, lead to fewer appeals. It is vital that any drive to reduce the number of appeals consider both, and separately, the question of removing the need for appeals where the appeal would be successful, and reducing the inclination to appeal where it would not be successful. However, Decision Makers must remember that it is not their job to determine that an appeal would not be successful. This strategy would also reduce the occurrence of additional evidence being presented at appeal that was not available to the Decision Maker. Production of evidence from doctors generally costs money for claimants, while information requested by the Department must be provided by doctors with no cost to the claimant. Ensuring that such evidence is requested by the Department removes risks of a two tier system in which the wealthier ill are able to obtain evidence that those with fewer resources
cannot.
Question 2
Do the proposed changes go far enough in order to deliver a fair and efficient system?
Formalising what is essentially the current practice is a reasonable goal. However, the proposals do not precisely replicate current practice, particularly in the case of claims for ESA, as I will explain. They also miss several other opportunities to make the system fairer. The proposed changes remove one important element of fairness. At present, ESA claimants who enter an appeal can retain the benefit (as JSA rates) without conditionality as long as they continue to provide medical certificates. It is vital that any change that delays appeals, however well intentioned and administratively beneficial, maintain that principle. Anyone claiming ESA, or, when Universal Credit is brought in, anyone asserting Limited Capability for Work (or Limited Capability for Work-Related Activity), must remain in payment of the basic element of their benefit, and not have full conditionality applied, while any reconsideration before appeal takes place. If I were to claim ESA and be denied, but felt honestly that I was not able to work, I would not be
able to claim JSA as a matter of conscience. As a Quaker, if I felt that I was not fit and able to work, as well as available for work, I would not be able to sign a statement to that effect. If claiming JSA is indicated as the alternative pending reconsideration or appeal, even if there are assurances that this will not be used as evidence against a claim of LCW or LCWRA, I would be excluded from that course because of a matter of my personal faith. I believe that this would be very wrong. Whatever assurances are given about evidence, JSA is not an alternative for ESA pending appeal, as it would require people to agree to statements that they do not actually agree with. As I stated in my answer to question 1, in order to be fair and efficient, it is not sufficient to dissuade people from appealing. It is necessary to get results right the first time far more often than is currently the case in DLA or ESA. These benefits have very low levels of fraud, and DMs seem to be making far more errors in denying benefit than in allowing benefit. As such, in every case in
which there is prima facie evidence of entitlement, particularly where the assessment is a reassessment or renewal, denials of sickness or disability benefits should be double-checked before a decision is formally made. Furthermore, there is a significant missed opportunity here to apply time scales to the reconsideration process, requiring clear justification for any consideration of revision taking longer than this time scale. This would prevent any possibility or accusation of massaging of flow of cases by delaying consideration, and would allow clear statistics demonstrating the degree to which the Department is meeting these obligations.
Questions 3 & 4
Lacking the qualification or standing to critique legislative language, I have no comments on the draft regulations.
Final Comments
Much concern regarding this proposal stems from the handling of ESA appeals. There have been suggestions in the press, even some implication that they came from ministers, that it is unreasonable to keep paying ESA, even at the assessment phase rate, pending an appeal. It has been suggested that this provides an incentive to appeal. I would remind the Department that continuing to receive ESA as the assessment phase rate during an appeal is dependent on ongoing provision of
certificates from the claimant's doctor, and that the only alternative is to claim JSA in a way that is arguably dishonest, and if not dishonest will do no favours to many claimants' health, driving their stress levels up as they struggle to satisfy a conditionality regime designed for people of normal health. Payment of the assessment phase rate pending appeal is not generous, and is not a perverse incentive. People who do not feel able to work will appeal as long as they are given the opportunity
to do so, and they must be provided for one way or another while they do so. Maintaining payments without job search or other work-related conditionality is the most efficient and straightforward, not
to mention honest, way of doing this.
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Post by nickd on May 4, 2012 14:34:32 GMT 1
Attached Consultation response South Hams CAB Attachments:
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Post by nickd on May 4, 2012 16:38:44 GMT 1
Sam Barnett-Cormack - a viewer's personal response - raises some really good points in PDF format Attachments:
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Post by edyourself on May 4, 2012 16:56:06 GMT 1
I just got my response in to DWP.
Response on behalf of Fiona Nicholson, snail mail address.
I am making this response in a personal capacity. I recently contributed to the Spartacus Response on Personal Independence Payment Thresholds.
I answered Q1,2 & 4 with the following:
At the outset I should like to state that my suggestions for mitigating the worst aspects of the Government's proposals should not be taken as agreement with - or in any way acceptance of - the proposals.
Reconsideration feedback must not be restricted to the telephone. Where the telephone is used, the claimant should be notified in advance. The claimant should also be advised that the conversation is to be recorded. Subsequently the claimant should be provided with a full transcript of the telephone interview. ESA should be paid without conditionality during the revision period - subject to the claimant's submitting evidence from GP or similar - as the claimant may not be in a position to meet the eligibility criteria for JSA and would otherwise have no source of income. Deadlines for Decision Makers must be put in place. I agree with Legal Aid Welfare specialists who say there is an inherent risk that claimants will run out of time for lodging an appeal because they have misunderstood the need to make an onward appeal following a mandatory revision outcome against which they disagree.
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Post by nickd on May 5, 2012 11:13:48 GMT 1
The Consultation round is now...
 But please do carry on telling us about your experiences..But please do carry on adding your thoughts. Many thanks to all those who responded, this will become more apparent as claimants realise how difficult it will be to dispute a decision of the State. The impact will mostly be felt by all those who claim Personal Independence Payment & the Universal Credit. We'll keep an eye on the emerging secondary legislation. It would be particularly interesting to hear what people's experiences are when the DWP undertakes a reconsideration on their claim..
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Post by nickd on Dec 4, 2012 23:21:45 GMT 1
Here's the link to the DWP's response to 154 consultation responses. Needless to say Government and the DWP took very little notice of any of them, although they do seem to have an inherent knack of replicating any remotely positive response.
So here we have it, the new Manadatory Revision & Direct Lodgement procedure coming in with Universal Credit & Personal Independence Payment next year followed with application to other benefits in October 2013. It's yet another piece of legislation promoted as making the process work more smoothly - yes of course it will!
Personally I hate everything about it. The DWP say it gives the appellant more time to produce their evidence; a strange claim given that I'm currently seeing cases waiting 12 months and more for their appeals with an abundance of evidence already on the file. The fact is that the time delays are entirely down to the DWP biting off more than they can chew; they just go along with all IDS & co tell them to do. Has no-one within the DWP got a soul or the strength to stand up and say how this relentless & singularly pointless reassessment of the sick and disabled has gone far enough?
Mandatory revision before appeal is just a fob off to keep thousands of disgruntled claimants in the 'assessment' phase just that little bit longer. In ESA cases it's a handy way of paying claimants what they'd get on the dole without the embarrassment of them being on the dole - this lot are clued up when it comes to fooling all the suckers who believe they are the masters of welfare reform. Claimants will be kept waiting months longer for their file to sit gathering dust until a hard - pressed, worn out decision - maker can wipe off the cob webs and stamp the dogged file 'I agree with the HCP'. It's their way of saying whatever Atos says is good enough for me. A claimant's acute condition is nothing other than an irrelevance and the beauty of this new 'scheme' is in being able to hide appeal statistics from the press - the nuisance factor of huge numbers of hidden 'underlying' appeals can be neatly buried from public scrutiny.
Appeals process changes for all DWP benefits and child maintenance cases
The appeals process will change so that more disputes against DWP decisions can be resolved without the need for referral to Her Majesty’s Courts and Tribunals Service (HMCTS). DWP is committed to preventing disputes, reducing the escalation of disputes, resolving disputes and learning from disputes. From April 2013 DWP will begin to introduce changes which were part of the Welfare Reform Act 2012.
What are the changes?
DWP will reconsider all decisions before an appeal. This change will mean that if someone disputes a decision, they will need to ask DWP to reconsider the decision before they can appeal to HMCTS. This is known as “mandatory reconsideration”. The change aims to encourage people to provide additional evidence earlier in the process. Resolving disputes without the need for an appeal should also help ensure that people receive the right decision earlier in the process.
Appeals to be made directly to HMCTS. This change will mean that, after DWP has reconsidered a decision, if someone still disputes the decision and wishes to appeal, they must send their appeal directly to HMCTS. This is known as “direct lodgement”. It will bring the process for Social Security and child maintenance appeals into line with other major tribunal jurisdictions handled by HMCTS.
Time limits for DWP to return responses to HMCTS. DWP has agreed with the Tribunal Procedure Committee to introduce time limits to stipulate how long DWP has to respond to an individual appeal. DWP is currently discussing what these time limits might be with the Tribunal Procedure Committee.
When will these changes be introduced?
DWP intends to introduce “mandatory reconsideration” and “direct lodgement” for Personal Independence Payment and Universal Credit from April 2013, and for other DWP benefits and child maintenance cases from October 2013. However, these dates may be subject to change.
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