Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013

Lord Bach Excerpts

Wednesday 13th February 2013 Lords Chamber

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

My Lords, these regulations were laid before the House on 13 December. I confirm to the House that these provisions are compatible with the European Convention on Human Rights.

The decisions and appeals regulations deal with provisions that set out the framework for decision-making in universal credit, personal independence payment and contributory employment support allowance and jobseeker’s allowance. The existing decisions and appeals regulations are tried and tested and are considered still fit for purpose, even in the “new world” of welfare reform. For UC and PIP to work as we intend, both technically and in terms of protecting claimants’ rights and welfare, the benefits require a strong underpinning both at the initial decision-making stage and where decisions are disputed. The regulations we are considering provide just that.

I will focus on those issues that I believe will be of most interest to noble Lords because they are both new and of significance. The first relates to mandatory reconsideration, provided for in Section 102 of the Welfare Reform Act 2012. Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, and this process 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, is time-consuming, stressful for claimants and their families, and, for a significant number of appellants—some 40% of all appellants are successful—unnecessary. I say this because this success is on the back of new evidence presented at the tribunal.

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 will not mean that all decisions will be changed and appeals will be unnecessary, but we should at least have a process that allows this to happen. Mandatory reconsideration does just that. It will mean that applying for a revision will become a necessary step in the process, before claimants decide if they still wish to appeal.

Importantly, another DWP decision-maker will review the original decision, requesting extra information or evidence as required via a telephone discussion. If appropriate, they will then correct the decision. When this happens, there will be no need for an appeal—an outcome that will be better for the individual and better for the department. Claimants will of course be able to appeal to the tribunal if they still disagree with the decision, which will be set out in a letter detailing the outcome of the reconsideration and the reasons for it. We hope that because of the robust nature of the reconsideration and the improved communication that our reforms will result in, some claimants will decide that they do not need to pursue an appeal.

We ran a formal 12-week consultation on the proposals between February and May 2012, and published the Government’s response in September 2012. We received 154 responses, which included a range of suggestions on how we could continue to improve decision-making across all benefits. A number of respondents suggested that there should be a time limit on the reconsideration process. As set out in the Government’s response, we are not making any statutory provision for this. Some cases are more complex and require additional time—particularly, for example, where extra medical evidence needs to be sought. However, we recognise the concern here and are considering the scope for internal targets. It is a balancing act that we must get right. We will monitor developments closely and make adjustments accordingly.

I will mention another change linked to the mandatory reconsideration initiative. It will see all appeals being made directly to HMCTS and not, as now, to this department. The change brings the DWP in line with the appeals process for other departments. It is a positive move as it will allow HMCTS to book hearing dates much more quickly than is possible currently.

I turn now to the payment of benefit pending reconsideration and appeal. Noble Lords should be aware that there is no change to the current policy. Under existing provisions, if someone is refused benefit and requests a revision of that decision, benefit will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration. Again, there is no change in relation to appeals. Under existing provisions, if someone appeals a benefit—save for ESA, which I will come to—no benefit is paid pending the appeal being heard. This must be right. It would be perverse to pay benefit in circumstances where the Secretary of State had established that there was no entitlement to it. As a principle, this will not be changed by the welfare reforms.

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. So there will be a gap in payment. In that period—and I repeat 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. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.

Another important policy change in these regulations relates to the payment of universal credit being made on a monthly basis. Reflecting this monthly payment, the effective date rule for change of circumstances will follow a whole-month approach—that is, that a change will be effective from the start of the monthly assessment period in which it occurs. Claimants will be expected to report any changes immediately. This will be made clear in their claimant commitment and in the decision notifications that they receive. Any change that is advantageous to the claimant must be reported within the assessment period in which the change occurred. Where the change is reported late—for instance, if the change occurred at the end of an assessment period or if there were special circumstances that caused the delay—our guidance and regulations on special circumstances will allow the decision-maker discretion to treat the late report as being in time. However, if the change of circumstances is reported late and does not meet the guidelines for accepting a late application, the change will only be applied from the beginning of the assessment period in which it was reported. This policy will ensure that the reporting of changes of circumstances is done in good time, that there is no incentive to delay reporting, and that the monthly universal credit award accurately reflects the claimant’s needs for the month ahead.

One area that I know will interest noble Lords is the issuing to claimants of decision notices, which have been developed taking on board claimant insight and stakeholder feedback. The decision notice will clearly set out a claimant’s monthly award and break down how the award has been calculated. In the long run and in the majority of cases, we intend that claimants should be notified of decisions relating to their universal credit award through the online channel.

I turn now to the guidance being drafted to support these and other regulations. I know that noble Lords have concerns about this and it was raised by the Secondary Legislation Scrutiny Committee. Noble Lords will be pleased to learn that the guidance has been placed in the Library—indeed, I am sure that many will have read the guidance. In relation to these regulations, guidance on revising decisions at any time and on the handling of late notification of a change of circumstances is available.

Finally, it should be noted that these regulations were referred to the Social Security Advisory Committee, which decided not to refer them for formal consultation but did invite comments informally. The comments received related to the time limit for mandatory reconsideration and the whole-month approach, both of which I have already covered. I commend the regulations to the House and ask noble Lords for their approval. I beg to move.

[Lord Bach]

My Lords, I thank the Minister for moving these regulations. This is clearly an important day for the future of our social security system, and the House has heard why so many of us believe this to be a day of shame for our country and its reputation as a civilised and just place to live and work.

I rise, on this particular regulation, certainly as no expert in the provision of the regulations that have gone before but as someone who has an interest, as I hope we all have, in ensuring that everyone has equal rights before the law—in other words, some real access to justice. In the Explanatory Memorandum to the regulations, paragraph 7.1 states:

“The Department for Work and Pensions … is introducing a new set of Decisions and Appeals Regulations to ensure that the decision-making and appeals framework which currently applies to all social security benefits applies to the new benefits introduced by the 2012 Act”.

No doubt the intent behind the regulations—it is a virtuous intent, at least in theory—is that for those wishing to challenge or appeal a decision there is a procedure to go through, as there always has been.