Employment and Support Allowance

Baroness Sherlock Excerpts

Thursday 19th July 2018 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, I thank the Minister for repeating that Answer—another day, another DWP mistake. Back in 2011, 70,000 sick and disabled people were underpaid thousands of pounds after they had been migrated from incapacity benefit to contributory-based employment support allowance, without the possibility being recognised that they had paid enough stamps to entitle them to non-contributory ESA. The result was to deny them access to additional premia that they might have been able to get had the Government done that correctly.

The error here is that the Government have now accepted their mistake but have decided that people’s payments could be backdated only to 2014, because in 2014 a tribunal judgment made it clear that the Government had been doing this the wrong way. Yet again, therefore, it took a small charity to go to court to judicially review the department. And yet again, at the very last minute the DWP caves in and says, “Fair enough, we will now backdate payments to 2011”.

This raises a couple of questions. The scale is enormous: the National Audit Office said that the decision not to go back before October 2014 would have resulted in that group of disabled claimants losing out to the tune of between £100 million and £150 million. Individuals might be entitled to up to £10,000 of wrongly underpaid benefits.

There is a pattern to this. Six reviews are in progress to identify disabled people who may be entitled to back-payments, five as a result of legal cases against the Government. I therefore have two questions for the Government. First, why did it yet again take a tiny charity—the CPAG, to which I pay tribute—to use money donated to it to go to court to get Ministers to do the right thing? Secondly, there is the systemic issue: the PAC, in its report on ESA, and the NAO, in its report on universal credit, described a department that was defensive when dealing with outside organisations, and unwilling to listen to warnings about problems that were occurring. What steps, therefore, is the Minister’s department taking to make sure that in future it listens to warnings—from inside and outside—and does not wait until someone takes it to court?

[Baroness Buscombe]

I thank the noble Baroness for her response. I turn straightaway to her point about restricting—as it were—the payments. Initially the department believed that we were legally restricted to calculating repayments from 2014 due to a statutory rule—Section 27 of the Social Security Act 1998—which governs the position with regard to payment of arrears when a court of tribunal finds that the department has made an error of law. Following a thorough investigation, however, we realised that this interpretation was incorrect. We have made this very clear in previous Statements to the House and we have made it clear that we have been working extremely hard to do everything we can to correct a mistake that should never have been made in the first place. We believed, however, that the law prevented our paying benefit back to the date of conversion. We now understand that we can do that. We have listened to a range of opinions, including those of the CPAG, undertaken a thorough investigation of the legal position and realised that the law that dictated that we could not do this in the first place was wrong.

We want to be sure, therefore, that we pay back everything that is owed. I would add that the staff have been working extremely hard to put this right and to help everybody who may have lost out from these payments since the whole process of migrating people from incapacity benefit to ESA began in 2008.