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

Lord Freud Excerpts

Wednesday 13th February 2013 Lords Chamber

Moved by

[Lord Freud]

That the draft regulations laid before the House on 10 December 2012 be approved.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, 24th Report from the Secondary Legislation Scrutiny Committee.

[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.

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[Lord McKenzie of Luton]

My Lords, I again thank the Minister for introducing the regulations. I wish him well in dealing with those incisive inquiries from my noble friend Lady Lister about the monthly assessment, the monthly payment and supported housing. She gave us a very powerful analysis.

We acknowledge that an updated framework for decisions and appeals that encompasses universal credit, PIP, JSA and ESA is needed. As the Minister will doubtless anticipate, there are two key matters that we will pursue, mirroring those discussed in the other place: mandatory reconsideration and the payment of benefits in the interim. Noble Lords will recall the debates that we had in Committee and on Report on the Welfare Reform Bill on what has ended up as Section 102 of the Act, and a degree of scepticism about why it was necessary to have two powers when a power was already available to decision-makers to revise a decision prior to the determination of appeal. However, we are where are, with two time limits within the system. If a claimant disagrees with a decision, they have one month to ask for a reconsideration. When the result of that is known, they will have one month from the date of the new decision to appeal.

As the Minister has identified, there is no statutory time within which decision-makers are obligated to complete a reconsideration. This is important because it reflects on how long a claimant’s interim benefit position will endure. We therefore register our concerns about the strictness of the time limits imposed on claimants in the current climate.

My noble friend Lord Bach gave a tour de force speech about the current situation, in which legal aid is being denied and advice agencies are being stretched and hit with redundancies and closures. We received last Friday the Universal Credit Local Support Services Framework, with not enough time to peruse it in any detail for today. Perhaps the Minister will tell us whether its envisaged remit will include advice on a decision or a reconsideration. Will the local support services be available to advise and assist on that? Of course, this pressure on advice surgeries is compounded by the raft of changes that we have discussed today and will doubtless continue to discuss, and which are about to enter the system shortly. Can the Minister say something about any discretion that might be available in respect of the time limits imposed by the provision?

It is understood that benefit entitlement pending a reconsideration will be on hold. I think that is what the Minister said: that if someone is seeking a benefit for the first time, they will be left without benefit if and until the claim is settled positively. For those claiming ESA and going through a reconsideration process, this would appear to herald the change. Is it not the case that an ESA claimant will currently be paid at the assessment rate equivalent to the JSA rate pending a reconsideration and appeal? Will the Minister confirm that this will not be the case in the future? The remedy in the short term, as has been suggested, appears to be a claim for JSA in due course where contributory ESA is involved, presumably a claim for universal credit. This appears to be what the Minister still advises. How does that deal with the point that this may require an individual to sign up to a claimant commitment and undertake work for which they are not suited?

Can the Minister please confirm the position for someone in receipt of ESA who, on a reassessment under the WCA, is assessed as being fit for work or subject to all work-related requirements? If someone who is currently on ESA and at risk of being downgraded to universal credit or JSA is subjected to the reconsideration appeal process, what benefit is paid before that appeal is concluded?

These questions touch on the timeliness of the reconsideration process. It is accepted that if a reconsideration and appeal process is successful, any due award will be backdated to the original claim, but that does not help the claimant in the interim. My honourable friend Anne McGuire MP made the point in another place that where high levels of appeals are successful, such as on ESA and DLA, a protracted reconsideration and appeals process will disadvantage claimants, driving them into debt and into the arms of the food banks.

We note that the Government have declined to place time limits on the reconsideration process—the Minister confirmed that tonight—but it seems from their response to the public consultation on mandatory consideration that they will consider making proposals for an interim performance indicator. Perhaps, therefore, I can take the opportunity to repeat some questions posed by my honourable friend Anne McGuire that remain unanswered. What do the Government envisage as the standard length of time for a revision prior to appeal? Will customers be told how long they should expect to wait? What action can be taken if projected timescales are exceeded, and will the department monitor and publish statistics on waiting times for appeal?

My honourable friend also took us back to earlier deliberations in Grand Committee, when the noble Lord, Lord De Mauley, was at the Dispatch Box. In response to an inquiry, he said:

“Alongside implementation of this power, we intend to make further improvements to the reconsideration process, which will include suitable arrangements for monitoring and, where appropriate, improving the speed of the process”.—[Official Report, 23 November 2011; col. GC 456.]

Perhaps we can be told what progress has been made on that.

Finally, I ask a question about the routine publication of appeals data—again going back to our debates on the Welfare Reform Act. At one stage, I think it was envisaged that there would be a cessation of the routine publication of those data. Perhaps the Minister can confirm that that is not the case.

We do not oppose the regulations, but we need to monitor them closely to see that their implementation does not create unfairness.

[Lord Freud]

Again, I thank noble Lords for some very good contributions. This is not the easiest or most digestible set of regulations. They very much replicate the existing decisions and appeals provisions but, just as the welfare reform agenda has provided an opportunity to reduce the complex range of income-related benefits, with the introduction of UC, it has also provided an opportunity to rationalise the rules governing the administration of these new benefits. This consolidated set of regulations does that by ensuring that the rules underpinning decisions and appeal rights are clearer and more accessible, benefiting both claimants and, indeed, the department.

On the detail of mandatory reconsideration, I reassure the noble Lord, Lord McKenzie, in particular, that we will closely monitor the impact on claimants, the quality of decision-making and appeal rates during the early stages of implementation. It is a key change that will improve claimants’ experience of the appeals process if we get it right. We will also monitor appeal volumes more broadly, particularly with the introduction of the new benefits, UC and PIP. We will review and amend the advice for decision-makers guidance as necessary, and if we find that the regulations are at fault there is an option to amend them.

On the point raised by the noble Lord, Lord McKenzie, regarding the time limit, the key issue is that we will be able to handle some cases with extreme speed while others may take more time, particularly where we need to ask for more evidence. I will commit to keeping noble Lords updated on that matter. On reconsiderations, we envisage that the first point of call will be to our staff, but some people may choose to go to an independent advice centre, although we had not been envisaging this as part of the role of the local support service.

[Baroness Hollis of Heigham]

If the Minister will allow me, could he reconsider that last point? I had wondered whether to intervene following my noble friend’s contribution on legal advice. It would be extremely valuable if the local support services, which are there helping people to move from paper forms to online forms for a brand-new benefit structure, et cetera, were able to give claimants the sort of legal or welfare advice steer that they would have got elsewhere in the past. For example, I remember vividly cases in which parents were trying to claim DLA for children under the age of two, which is of course simply not possible. That sort of advice and guidance could very well be served by the local support services and would pay dividends in cash, as well as in buy-in to the whole UC procedure, if the Minister could ensure it.

[Lord Freud]

My Lords, the best I can do is to have a think about it. The issue is the balance of what we are trying to get the local support service, which is a partnership approach, to do. I want to get the balance of that right, and I will take that away and think about it. Clearly, at some basic level there will be that kind of support; it is the extent to which it becomes a more formalised process. However, as I said, I will have a think about that point.

The point about ESA is that there is a long-standing provision for it to continue during an appeal. That will continue, so there is no change there. The only difference from the current arrangements is in this rather short period of reconsideration, during which ESA will not be payable. Once the appeal starts, ESA will go into payment, as it does currently. I hope that I have just nailed that point and that the noble Lord, Lord McKenzie, is not looking puzzled deliberately but understands it.

[Lord McKenzie of Luton]

I think I understood what the Minister said, but if during the process somebody has applied for or been in receipt of ESA and there is a challenge, it will have to go through a mandatory reconsideration process first and then out on to an appeal. Once you get to the appeal, you will get ESA at the assessment rate—I would guess until it is settled; is that right?—which is equivalent to JSA. Is that not a change from the current position, under which you in effect go straight to an appeal, however long or short that reconsideration period is?

[Lord Freud]

Under the current position, there is a voluntary process whereby people can go for reconsideration and the ESA is not payable until the decision is taken to go formally to an appeal. The difference is that we are moving from a voluntary process that some people do to a mandatory process that all people will have to do, and there is a gap. That is where concern has been expressed, and my response to that concern is that we need to keep it under control and look at how long that timing really is. I take that specific point, but on a more general point my understanding is that there was a bit of concern from the noble Lord that there was actually a change in payment from appeal. As I say, that is not happening.

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[Baroness Hollis of Heigham]

But the payment is in arrears for the previous month.

[Lord Freud]

Yes, the payment reflects what happened in the previous month, but it gives you what you need for the month that you are going to be spending that money in. I will take this debate outside over a cup of—sorry, over a glass of something; I think vodka is appropriate. I will argue this right the way through, because I think it is the most benign way to ensure that people have the appropriate amount of money for each month.

On the point about the advice sector, we are looking at working closely with the advice sector to look at how the existing infrastructure can be used to support claimants with complex needs, and we are looking at new services that we need to develop to ensure that claimants have access to the right support. I have already talked about the multimillion pound support package from the Cabinet Office and the Big Lottery Fund.

I hope that I can offer some reassurance to the noble Baroness, Lady Lister, on the question of supported exempt accommodation. I pulled this area out from the universal credit because I could see that people often came through these accommodations quite rapidly, and it just was not the appropriate way of doing this. We have left that for the time being but with a view to ensuring that there is a sustainable financial regime for this kind of accommodation.

I have to confess to the noble Baroness that I have heard concerns only recently that some of the kinds of accommodation that we would want to support are not within our definition of support-exempt accommodation. I will look at that when we look at the whole thing, and we will consult on it. It is an important issue that we have right up front.

I do not have numbers on payment exceptions. We do not want to set targets for this, but a useful figure to bear in mind in the private-rented sector is that currently about 25% of private-rental claimants have their landlord paid direct. We are trying to get as many people as possible to pay their own landlords.

[Baroness Lister of Burtersett]

I would not expect a target, but there must a working assumption. I am not thinking necessarily about direct payments but about those who are going to find it difficult to deal with monthly payments, which is one of my main concerns. Perhaps the Minister can write to me, because the Government must have some view about whether this is a very small group, a larger group or whatever.

[Lord Freud]

We are not defining this by saying that they are vulnerable people; we are asking how many touch points of support people have. The four groups that have a large number of touch points are people who are homeless or who have mental health problems, addiction problems or learning difficulties. They are the groups about whom I have particular concern about making sure there is support for them. The noble Baroness will have her own figures on how big those groups are. We are working to get them refined. I will be able to provide more information on this as we work our way through. We are doing an enormous amount of work in this area, as noble Lords can see from the piloting we are doing and from how we have built up this network with the local support services. This is an area of great activity.

The noble Lord, Lord Bach, made an impassioned speech. Clearly, legal aid will still be available for appeals to the upper tier on a point of law. In our view, the first tier does not require legal representation because it is not adversarial. We are hoping that one of the things that mandatory reconsideration will do is mean that many applicants do not need to proceed to appeal. We are actively working on getting the right advice services locally.

These reforms are necessary and will not lose sight of the overarching policy drivers, but clearly we will go on listening and learning. I hope that noble Lords leave this debate thinking that the department’s decision-making and appeals structure is robust, fit for purpose and ready for the introduction of UC and PIP.

Motion agreed.