Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013

Monday 8th July 2013 Grand Committee

Considered in Grand Committee

17:21

Moved by

[Lord Freud]

That the Grand Committee do report to the House that it has considered the Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, I am pleased to introduce this instrument, which was laid before the House on 13 June 2013. I am satisfied that it is compatible with the European Convention on Human Rights.

The regulations provide for the introduction of the mandatory reconsideration process for vaccine damage payments, child support maintenance payments, mesothelioma lump sum payments and all social security benefits, save for universal credit and personal independence payment, which have been subject to mandatory reconsideration since April this year.

Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, which may result in a revised decision. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer, time-consuming, stressful for claimants and their families, and for a significant number of appellants unnecessary. I say this because the reason that the vast majority of decisions are overturned on appeal is because of new evidence presented at the tribunal.

I hope that noble Lords will agree that we need a process that enables this evidence to be seen or heard by the decision-maker at the earliest opportunity. It is accepted that this does not mean that all decisions will be changed and that appeals will be unnecessary, but we believe we should have a process that at least promotes this possibility. Mandatory reconsideration does just that.

Mandatory reconsideration will mean that applying for a revision will become a necessary step in the decision-making process before claimants decide whether they wish to appeal. Importantly, the intention is that another DWP decision-maker will review the original decision, requesting extra information or evidence as required via a telephone discussion, and, if appropriate, correct the decision. When this happens, there is no need for an appeal—an outcome that is better for the individual and better for the department.

I assure noble Lords that claimants will of course be able to appeal to Her Majesty’s Courts and Tribunals Service if they still disagree with the decision. The means of doing this will be set out in a letter detailing the outcome of the reconsideration and the reasons for it. We would hope that because of the robust nature of the reconsideration and the improved communication, this new process will result either in decisions being changed or, where this does not happen, claimants deciding that they do not need to pursue an appeal.

We undertook a formal consultation before we introduced mandatory reconsideration for universal credit and personal independence payment. A number of respondents suggested that there should be a time limit on the reconsideration process and there have been further representations about this. While we understand the concerns, we are not making any statutory provision for it. Some cases are more complex and require additional time—particularly, for example, cases where extra medical evidence may need to be sought. Others will be completed in days. It will be a case of considering each case on its merits.

However, we are considering the scope for internal performance targets. While these will reflect the requirement to deal with applications quickly, it will not be at the expense of quality. The process will fail if clearance times become the driver. We will be back with unnecessary appeals and all that that entails. It is a balancing act which we must get right. We will monitor developments closely and adjust accordingly. We may in due course learn from the experience of UC and PIP but at this time we have had so few requests for mandatory reconsideration that we have not as yet learnt anything which will inform our future handling of these applications. We will of course continue to monitor the situation ahead of October.

I turn now to the payment of benefit pending reconsideration and appeal. This has caused a lot of concern, particularly in relation to employment and support allowance. First, I want to make the point that there is no change from the current policy. If someone is refused benefit under the existing provisions and they request a revision of that decision, benefit will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration. Secondly, there is no change in relation to appeals. If someone appeals a decision under the existing provisions, no benefit is paid pending the appeal being heard—save for ESA, which I will come to. This must be right. It would be perverse to pay benefit in circumstances where the Secretary of State has established that there is no entitlement to benefit.

I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard. This is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. There could therefore be a gap in payment. However, during that period—and I repeat my message that applications will be dealt with quickly so that this is kept to a minimum—the claimant could claim jobseeker’s allowance or universal credit. In other words, alternative sources of funds are available. The claimant may choose to wait for the outcome of his application and, if necessary, appeal and be paid ESA at that point. It is accepted that the move from stopping ESA to claiming and being paid jobseeker’s allowance will not happen overnight, but provided that the claimant does not delay in making his claim, the wait for his first payment of jobseeker’s allowance should be short.

Finally, another change to mention linked to the introduction of mandatory reconsideration is that all appeals will be made directly to HMCTS and not as now to this department. This change brings the DWP in line with other departments’ appeals processes. This is a positive move as it will allow HMCTS to book hearing dates more quickly than is possible currently. The department believes that the regulations will result in a clearer, escalating dispute process that will deliver a fair and efficient system for people who dispute a decision. I commend this statutory instrument to the Committee.

[Baroness Sherlock]

My Lords, I thank the Minister for his explanation of these regulations, which will extend the provision of mandatory reconsideration to a range of benefits and payments administered by the DWP. I also thank the Minister for clarifying which benefits the regulations will apply to—I understood him to say that they would apply to all benefits administered by the DWP with the exception of universal credit and PIP. When he comes to respond, can the Minister clarify the way in which these regulations will apply specifically to JSA and ESA? I had thought that they were in some part addressed by earlier regulations. It is possible that only the direct lodgement elements of JSA and ESA are affected by these regulations, the commencement having been done by the previous set. Perhaps the Minister could clarify that when he comes to respond.

17:30

The interim response to the consultation published by the Government in June 2012, to which the Minister referred, noted that the department had received 154 responses to the consultation. Although that was of course about the earlier decisions around mandatory reconsideration, the principles are broadly the same. That interim response said:

“The responses have been analysed and the proposals reviewed in light of all the comments made. The Department does not propose to make any significant changes to the draft regulations”.

Can the Minister assure the Committee that the department took rather more notice of the content of those 154 responses than that paragraph might suggest? In fact, those responses raised some pretty big questions. Perhaps the Minister could take us through the reasoning behind the decision to which he referred in his opening remarks. I have looked at some of the comments made by outside organisations such as Citizens Advice, the Child Poverty Action Group and others. I will draw out one or two quite specific points.

First, as the Minister mentioned, a number of respondents proposed that there should be a time limit for the department to complete its reconsideration of disputed decisions. I take the point that a time limit would make it difficult to accommodate the huge variety in the nature of cases but can the Minister deal with the fact that, at the moment, if the department were—unimaginably, obviously—to drag its feet in response to an application, a claimant can move matters along by lodging an appeal? These regulations would preclude that possibility. Can the Minister tell the Committee how the interests of the claimant will be protected in these circumstances? After all, 39% of all social security and child support appeals to the First-tier Tribunal were successful in the period from January to March 2013, the last quarter for which statistics are available. Since there were 130,517 social security and child support cases determined in those three months, I make that over 50,000 people who had been denied benefits to which they were lawfully entitled. That, presumably, could be 200,000 in a 12-month period, were the pattern maintained. I presume that the Minister would accept that the Government owe a duty of care to those citizens to remedy these errors swiftly.

It is also worth noting that the Courts and Tribunals Service is facing a significant increase in its caseload, driven mainly, it reports, by the 37% increase in the number of social security and child support appeals in 2012-13 as against the previous year. The last statistical bulletin suggests that this was driven primarily by appeals in relation to ESA, which more than doubled between the final quarter of 2011-12 and the comparable period of 2012-13. In fact, those ESA claims accounted for more than 70% of all the social security and child support receipts in the final quarter of 2012-13. Does the outstanding caseload for social security and child support tribunal cases—which is now 41% higher at the end of 31 March 2013 than it was a year earlier—suggest that there will be a greater delay for claimants, not only in being allowed to lodge an appeal but then in the time it might take for that appeal to be heard?

Can the Minister tell the Committee what assessment the department has made of the likely change in the end-to-end elapsed time for a claimant wanting to challenge a decision to secure a successful appeal? We could, for example, see them being delayed from making an application for reconsideration, so that there are more reconsiderations, which take longer. There would be a delay, therefore, before they are allowed to appeal and potentially a delay in having any appeal heard, as a result of the increasing caseload faced by the Courts and Tribunals Service.

This matter was raised by the Social Security Advisory Committee in response to these draft regulations. The government response to SSAC’s question as to how the department would ensure prompt decisions is at paragraph 8.3 of the Explanatory Memorandum. It verged on the gnomic:

“The Department is committed to ensuring action is taken promptly by introducing a range of performance indicators. Work to develop these indicators are ongoing”—

sic—

“and will be finalised prior to October 2013”.

Are they the same performance indicators whose scope the Minister said he was considering? If so, can he give us any hints as to what they might be, whether they are definitely going to be introduced and, if so, when?

Furthermore, paragraph 12 of the Explanatory Memorandum published with these regulations suggests that the Government do not intend to publish data on the number of requests they receive for reconsideration, how long it takes to process them or the outcome of the reconsideration requests. Can the Minister tell me if I have got that right? If so, how can Parliament scrutinise the effectiveness of this process, which the Government intend to replace a statutory process which is, at least currently, subject to published data?

The other big issue raised in response to the consultation was the proposal the Minister referred to; that the department should consider paying ESA pending reconsideration. The Minister indicated that this was not a change from the current process and that ESA is of course paid only at the assessment rate once an appeal is started. However, as he acknowledged, an applicant may not now go to appeal and is therefore obliged to wait for however long it takes the department to reconsider his or her case. Can the Minister take me through what would happen to someone in that circumstance? If the claimant did what he suggests, and applied for JSA, would they therefore be subject to the full range of conditionality and sanctions that would apply to anyone else making an application for JSA?

If that is the case, can the Minister help me understand what would happen if a claimant, for example, who believed they were not fit for work none the less had their application for ESA turned down? They start a process of reconsideration and appeal but meanwhile, because they have nothing else to live on, decide to apply for JSA. However, they are sanctioned for failing to take up a job or to follow an instruction which they do not believe they are fit to do. Let us suppose that claimant is eventually successful, and the tribunal agrees that they do not have to undertake work because they are not fit to do it. What would then be the status of any sanction that was applied to the claimant in those circumstances?

Another issue that was raised in relation to these proposals was about what would happen if the department refused to reconsider a decision, either because it felt there were no grounds or because the claimant was late in making the application. Can the Minister confirm that that means that the applicant could not go to appeal because there had been no reconsideration and that is a necessary gateway, if you like, before being allowed to appeal? Are there any circumstances in which a claimant could appeal without having had a reconsideration? If so, what time limits would apply? Can the Minister—this is particularly important—tell us how broad he is willing to make the grounds for considering a late application for reconsideration? Many concerns have been expressed about vulnerable clients, particularly perhaps those with mental health issues, who might struggle with that. How broad will he be able to be with that?

The principles of mandatory reconsideration were discussed in some detail during the passage of the Welfare Reform Bill, so I have not revisited them today. I realise that I have asked a number of detailed questions, but they do seem to be crucial. I hope the Minister will answer them now or, at worst, when he comes to write, if necessary, after the event.

[Lord Freud]

I thank the noble Baroness for responding with her customary detailed and forensic approach to this. She has raised a number of important issues, which gives me an opportunity to set out the Government’s thinking a little further. I can assure the noble Baroness that we will be closely monitoring the new process and its impact on claimants and appeals during the early stages of its implementation. Clearly, it is a key change and we must get it right. I will deal with as many of the specific questions as I can and turn to the printer to answer the others.

The noble Baroness asked, first, to what these regulations apply. Earlier regulations dealt with the contributory JSA and ESA—in practice we have taken that apart—which is the new ESA and JSA element. These regulations apply to the legacy versions of income-based ESA and JSA. The two income-based benefits will be gradually replaced by universal credit.

On the question of conditionality, we would see modified conditionality for a person requesting mandatory consideration—that is, conditionality that would be adjusted for the fact that the person was in that position. This is the current position and, in practice, there will be no change on that basis.

On the publication of data, the issue is that the data effectively will not meet the standards for publication, which, as the noble Baroness knows, are pretty strict. That means that they will not be publishable because the collected data will not be validated. That is the issue. A validation system for this would be costly. Therefore, we have no plans for publication, although we will look at how we can get more information out. We are looking at how we monitor the process in the early period to make sure in particular that we get the timings right and that appropriate information is made available.

On the question of late application for reconsideration, the decision-maker is in a position to extend the time to apply if the claimant has good reason for not having applied within the deadline, which is one month. However, there is an absolute deadline of 13 months that the decision-maker cannot go beyond.

I think that I have answered the bulk of the questions, but there are a few more on which I will write to the noble Baroness to make our position clear. On that basis, I commend these regulations to the Committee.

Motion agreed.

Committee adjourned at 5.43 pm.