The sick and carers fear the benefit changes

Change to disability benefits appeals process could leave people penniless

A double whammy of a revised appeals process and the abolition of legal aid threatens to deny benefits to vulnerable claimants

 

Disability campaigners fear that jobcentre staff will be ill-equipped to make judgments about people’s work capability.

Amid the avalanche of welfare reforms being implemented by a government intent on reducing the benefits bill by £18bn, one controversial measure that seems to have fallen below the radar is a change to the appeals process for welfare benefit claimants.

There are fears that the change, which will deny people the right to appeal decisions about sickness and disability benefits until the Department for Work and Pensions (DWP) has first reconsidered their case, could leave claimants penniless. Moreover, its introduction, just as legal aid is abolished for many welfare benefit cases, could leave thousands of vulnerable people unable to access the law to secure the income they are entitled to. The double whammy has been attacked as “a disgrace and a scandal”.

The revised appeals process, called “mandatory reconsideration”, will be applied to anyone who, from October, fails the controversial work capability assessment (WCA) and wants to challenge the decision to deny them sickness benefits.

The government has refused to set a time limit for how long the DWP could take to reconsider a judgment by the mainly computer-led fit-to-work test, but while cases are being reconsidered, claimants who were on employment and support allowance (ESA) will no longer be allowed to claim this sickness benefit and will be automatically transferred to jobseeker’s allowance (JSA).

Liz Sayce, chief executive of Disability Rights UK, warns that putting people on to JSA, a benefit that requires them to look for work, when they aren’t well enough could have dire consequences. “We don’t believe that the work capability assessment, as it stands, is reliable enough to be putting these numbers of people on jobseeker’s allowance, [and] on to this regime of requirement to comply with the job-seeking plan. At worst, what it could mean is that people then lose their eligibility for benefit, and because they are not able to comply, they could potentially have no income.”

She adds: “Just keep people on the [sickness] benefits. That will reduce anxiety and the risk of people falling out of any benefit income at all.”

The DWP says that people claiming JSA would only be expected to “undertake activity suitable for their condition”, but disability campaigners fear that jobcentre staff will be ill-equipped to make such judgments.

Citizens Advice (CA) says it supports reconsideration of cases before an appeal because, if done properly, it should ensure the correct evidence is gathered, cut the rate of appeals and reduce stress for the claimant. However, Sandie Lock, CA welfare benefits specialist, voices the concern that the policy is driven by a desire to cut the cost of appeals and that could mean “vulnerable clients will be dissuaded from proceeding with the appeal or may just give up because it’s taking too long”.

“I think cost is a key factor. It’s obvious that the number of appeals, particularly when you look at ESA, has been escalating, partly due to changing the descriptors and making it harder for people to qualify, but also because of the poor quality of decision making,” she says.

Since its introduction in 2008, charities, doctors and MPs have added their voices to the growing chorus of alarm over the reliability of the fit-to-work test and the large number of people who appeal against judgments (up to 50% of all those who go through the test). There have been more than 600,000 appeals, of which around 40% have been successful, costing the government about £50m a year. This is in addition to the £100m it is paying the IT company, Atos, to carry out the test.

Under the revised appeals process, claimants who are still refused sickness benefit following a DWP reconsideration, will need to lodge their appeal directly with Her Majesty’s Courts & Tribunals Service and, in theory, their case will be heard within 28 days.

Disabled people who are starting to be moved from disability living allowance (DLA) to the new personal independence payment (PIP) and who, if they fail the eligibility test, want to question the decision will also be affected by the revised appeals process. So, too, will recipients of universal credit, the government’s flagship welfare reform, being piloted from this month.

The potentially lengthier reconsideration process, coupled with seismic cuts to legal aid funding, which will deny people free help in gathering evidence from advice centres or law firms for their case, could deter people from appealing decisions altogether.

Lord Bach, shadow justice minister and former legal aid minister, says that, in effect, the government appears to be heading off claimants from all angles.

No coincidence

In a withering attack on the minister for welfare reform, Lord Freud, in the House of Lords earlier this year, Bach said: “After 1 April, for those who do not have the means to pay – the vast majority, I would suggest, including many disabled people – where will they get the legal advice they need? I used to think it was just ignorance that had led Her Majesty’s government to abolish legal aid in welfare benefit cases. Now I am forced to the view, as I think are many fair-minded people from outside, that it is too much of a coincidence that these legal-aid cuts come at exactly the same time as radical welfare reform. These things are connected – it must be a deliberate government policy to bring in radical and damaging welfare reforms at the same time as making it impossible for the vast majority to appeal against these decisions, which affect their daily lives. I feel strongly about this. It is a disgrace and a scandal and something that has not been talked about enough.”

Freud replied that first-tier tribunals, where appeals against fit-to-work judgments would be heard, did not require legal representation because they were not adversarial.

Yet Paula Twigg, advice services director, at the Mary Ward Legal Centre in London, disagrees: “It is still a legal process. The judge and the rest of the panel still have to look at what the law says and apply the person’s facts to the law. This is going to be horrendous for clients and advice centres.”

The centre used to have a legal aid contract to help around 800 people a year. The majority were disability benefit claimants and the success rate was about 90%. Twigg points out that the funding the centre received to pay for supporting evidence from consultants and GPs will also now have to be supplied by the claimant.

Employment minister Mark Hoban stresses that getting the WCA “right first time” is his “absolute priority”. He adds that the changes the government is making for people who wish to challenge a fit-for-work decision will give them the opportunity to submit more medical evidence and resolve any disputes with the DWP without having to resort to a lengthy appeals process. “This will help to ensure that decisions are as accurate as possible so people get any benefits they are entitled to at the earliest opportunity. It will also reduce unnecessary demand on the courts,” he says.

Yet charities believe that if the government was serious about getting the fit-for-work assessment right first time, it would change the test rather than the appeals process. As Edward Graham, advice and rights manager of the Child Poverty Action Group, says: “The test for incapacity for work is wrong. It’s too harsh, the threshold has been set too high, and that is why many, many thousands of sick and disabled people are passed as fit for work when they are not.”

‘Without CAB I wouldn’t have won the appeal’

Ronald Sultanti, 54, was a high earning manager of a security company. Extreme stress at work caused him to suffer acute anxiety, depression and mental collapse. He was fired from his job in September 2011. Three months later he failed his fit-to-work test. With the help of his local Citizens Advice bureau in Leytonstone, east London, he won his appeal in January 2013. He says: “I had a terrible anxiety attack [at work]. I’ve never felt anything like it in my life. And I don’t know what happened to me after that, to be honest. I don’t even try to think about it because it’s such a horrible place to be in. I went on medication and for three months I was literally in bed. I lost about three stone. I don’t know where I was, but I just couldn’t function. It was a horrible, horrible time and then the depression set in and that’s when life didn’t seem worth living.

I had the [work capability] assessment and I thought he [the assessor] understood my condition fully, yet in the light of exactly the same information I gave at the tribunal, he gave me nil points and the tribunal gave me 15. Without the free help of the Citizens Advice bureau I wouldn’t have won the appeal. They understood my disability. They followed up on the documentation and made sure that everything was done. Without them I probably wouldn’t have even attended the appeal. Without their help I could not have functioned. I would still be without money.”

http://www.guardian.co.uk/society/2013/apr/02/disability-benefits-welfare-legal-aid