The unfair treatment of disabled benefit claimants has been hitting the headlines this year. In January, newspapers reported that Lawrence Bond died on his way home from the Job Centre after being found fit to work. In May, there was an outcry as Michael Bispham suffered a heart attack on his first day in a new job after being found fit for work. Earlier this month, Rebecca Long-Bailey MP spoke out after Joy Watson had her benefits cut, even after Joy had been praised by David Cameron as an ‘ambassador’ for people living with Alzheimer’s. The retired Lord Justice of Appeal Sir Henry Brooke recently declared the benefits process an ‘absolutely outrageous interference by the executive with the rule of law’, and such an assessment was confirmed when, a few weeks ago, three senior judges ruled the Government’s restrictions on the social security appeals system to be unlawful.
GMLC volunteers see the effects of this system first hand. Below, GMLC volunteer Paul Cosier analyses the scope, context and impact of the process required to claim Employment and Support allowance.
Incapacity benefit (IB) and Employment and Support Allowance (ESA) are both forms of financial support for those unable to work due to ill health and/or disability. IB is being slowly replaced by ESA.
My name is Paul and as a volunteer with Greater Manchester Law Centre (GMLC) dealing with members of the public over the telephone, by email and in person. It has become apparent just how difficult many of these people find it to make a new claim for Employment Support Allowance (ESA) or make the transition from Incapacity Benefit (IB) to ESA.
To better understand the nature of the problem and the numbers involved I decided to undertake some research into the available data (with thanks to Prof. Robert Thomas for his invaluable assistance) and this is the result of that research.
How many people claim ESA and IB?
From May 2005 to May 2016, IB claims have fallen from just under 2,500,000 to a few thousands. Claimants have been moved to ESA, which has climbed over the same period to 2,400,000 .
Of these 2,400,000 ESA/IB claimants, 14% (336,000) were at the assessment stage, 3% (72,000) as yet undetermined, 17% (408,000) were in the Work-Related-Activity-Group (WRAG) and 65% (1,560,000) in the Support Group (SG) . The numbers in the Support Group, who do not have to undertake work-related activity (nor provide Fit for Work (FIT) notes from their doctor), is much higher than may have been expected. Moreover, it was announced by Damian Green, Work and Pensions Secretary, on 1st October 2016 that claimants in this group will no longer be subjected to medical tests every six months – a decision considered to be long overdue .
408,000 claimants have been assessed as being available for some sort of work (e.g. 20 hours per week) as a result of a Work Capability Assessment (WCA) and it is possible for claimants to submit a claim that they have been placed in the wrong group and the Department of Work and Pensions (DWP) will review this .
The ESA claim process
Many of the difficulties lie in the process of making and maintaining a claim for ESA (for the purposes of this article, ESA means income-related not contributions-related). Firstly, the questionnaire itself (form ESA50) runs to many pages and often, potential claimants ask Citizens Advice Bureaux’ (CAB) insured advisers or other charitable outlets to complete it on their behalf. Claimants then have to attend a WCA that many have complained to be a humiliating and dehumanising experience (rumours persist that claimants are covertly observed entering the assessment building and this is when the real assessment starts – not in the privacy of the assessment room).
In order to be awarded the benefit, claimants have to be awarded a minimum of 15 points. Many are awarded zero points. A 2011 Freedom of Information Request shows the outcomes of the initial WCA for all assessments completed between October 2008 and May 2011. This shows that around 575,400 assessments resulted in a fit for work decision. Of these, approximately 75% have a score of zero points recorded.
Claimants can become so angry and confused on being informed of this in writing that they fail to notice that they can challenge the decision in two ways. Furthermore, if the claimant receives other benefits, e.g. Housing Benefit (HB) or Council Tax Support (CTS), the DWP informs the client’s Local Authority that these benefits are no longer payable either, and the claimant may have to report a change of circumstances. Many debts and rental arrears can be caused by this.
Appealing the decision
Claimants who have failed to reach the requisite target of 15 points can request a Mandatory Reconsideration and get a decision within a few weeks (the average time taken for a decision-maker to inform the claimant of the reconsideration has fallen from its peak of 37 days in May 2014 to 15 days in March 2017 – a welcome improvement) . The vast majority are not revised . However, it is only by going through this process that claimants can be informed that they have leave to appeal to the first-tier tribunal administered by Her Majesty’s Courts and Tribunal Service (HMCTS).
One GMLC client presented us with his tribunal date letter to be photocopied and passed to his case-worker and said, “I have my trial date.” It is not uncommon for appellants to misunderstand and think that they will be attending a trial and not a tribunal. This is indicative of the way claimants often feel interrogated and punished.
Having been given leave to appeal (completing a relatively straightforward 7-page SSCS1 form) many clients (who need assistance filling in the form) fail to realise that they can request to remain on ESA while waiting for their tribunal date to be listed by simply requesting this on the form. If you are appealing against a decision on an ESA claim, you are only entitled to ESA pending the appeal if it is an appeal against: the first decision you have received stating that you do not have Limited Capability for Work (LCW); or the first decision following a previous decision by the DWP, a tribunal or a court that you do have LCW. Prior to this – while waiting for their MR – the claimant has to claim Job Seekers Allowance (JSA) in order to maintain out-of-work benefits. For somebody whose health may be considered frail this is an unwelcome hurdle for many to cross. HMCTS are supposed to inform the DWP that the claimant will be reverting back to ESA from JSA, but this has been known to go wrong. In addition, the Local Authority may fail to notice a further change in circumstances and the claimant’s HB and CTS can be stopped yet again – causing further debts and rent arrears (requiring the services of a debt adviser and housing solicitor).
Many claimants, who are often vulnerable, report feeling intimidated at the thought of appearing before a judge (clerk and medical assessor) at tribunal and will not attend. This puts claimants at a grave disadvantage. These are known as paper appeals and, for example, in 2013/2014 approximately 79,000 paper appeals were heard with 62,000 decisions upheld . This contrasts with personal hearings (known as oral hearings) whereby the appellant made a personal appearance where approximately 225,000 cases were heard with 120,000 decisions in favour of the appellant .
Typically, a claimant could pursue the following course: make a claim for ESA; seek assistance in completing the questionnaire; be invited to a WCA after the 13 week assessment phase; be awarded zero points; have their ESA benefit (including HB and CTS) stopped; fail to realise that they can challenge the decision by MR until they contact an appropriate body/charity; have to seek debt/housing advice because benefits have stopped; make a claim for JSA and sign a claimant commitment indicating that they are available for work; seek assistance in completing an appeal application to tribunal; receive a tribunal date; potentially have to seek further debt/housing advice, attend tribunal, only for there to be a greater than 40% chance – remaining consistently above 50% from January 2015 to November 2016 – and peaking at higher than 60% from June 2016 to November 2016 only to have the original WCA decision overturned and for the appeal to be decided in the appellants’ favour .
Fighting for Justice
GMLC helps ESA claimants complete their original questionnaires and can – if requested – accompany them to their work capability assessments. Should the client’s award be denied, we can assist the client in requesting the mandatory reconsideration and, in the likely event that this decision is not revised, further assist the client with the appeal to the tribunal. Our case-workers can accompany the client to the tribunal and represent them on the day.
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