Work Capability Assessments

Sheila Gilmore Excerpts

Monday 16th June 2014 Commons Chamber

[Sheila Gilmore (Edinburgh East) (Lab)]

I am very grateful to have secured this debate. I have been pursuing work capability assessments for those on employment and support allowance since I was elected to this House. Indeed, I think I mentioned in my maiden speech that I would take up this issue. This is my sixth debate on specific aspects of the WCA.

I want to develop an issue I first raised on 6 September 2013: the support that people receive while they challenge a decision on their entitlement to benefit. This will generally involve somebody who has been found fit for work, but who believes that the decision is wrong and that they are entitled to ESA. It could, in some circumstances, also apply to someone placed in the work-related activity group, as opposed to the support group.

In the past, a claimant could immediately lodge a formal written appeal with a judge from Her Majesty’s Courts and Tribunals Service. A Department for Work and Pensions official, known as the decision maker, would look at the original decision again, and either change it in the claimant’s favour or uphold it and pass the appeal on to a judge. That initial stage was, and still is, referred to as a reconsideration. What has changed is that since October 2013 claimants have to apply for reconsideration formally and separately before they can lodge an appeal. This two-stage process was introduced following the passage of the Welfare Reform Act 2012 and its subsequent regulations.

I emphasise, as I have done before, that I do not object to the introduction of even a mandatory reconsideration process. It can be quicker, less stressful for claimants, a lot cheaper for taxpayers, and, as I think the Minister himself said last week, it may be contributing to a reduction in the number of formal appeals. There are, however, serious practical consequences to mandatory reconsideration: the gap in payment to claimants prior to the formal appeal process, long delays in receiving a decision on reconsideration, and the lack of statistics on outcomes.

Claimants, although they may not be aware of it, have never formally been entitled to employment and support allowance during the reconsideration process. However, prior to October last year the benefit was usually paid at the assessment rate because reconsiderations —we could, perhaps, call them informal reconsiderations —took place under the auspices of having lodged an appeal, and when claimants lodge an appeal, they are entitled to receive assessment-rate employment and support allowance. Now that claimants have to apply for reconsideration and then appeal at a subsequent date, there is a gap in payment. Official advice suggests that during this period claimants can apply for jobseeker’s allowance, rather than employment and support allowance, while their reconsideration request is being considered. They can then go back to claiming ESA at the assessment rate if their original decision is upheld and they submit an appeal.

As I noted last year, however, JSA comes with a high level of conditionality. Claimants have to be available for work, actively seeking work, attending work-focused interviews, searching for jobs and making a minimum number of applications every week. In itself, that can prove tiring and stressful, and can exacerbate existing physical or mental conditions. Even more important is the fact that those who apply and fail to meet these conditions can be sanctioned or refused benefit altogether. In my previous debate, I predicted that this would lead to people having no support from the state, with people being too fit for ESA and too sick or disabled for JSA. I have encountered many such examples in my constituency. Citizens Advice Scotland, which has given me a great deal of support for this debate, has today published a report on this issue. It describes some of the situations in which people find themselves. These are real cases that have come to their bureaux. I suggest that the Minister look at the report.

[Mark Lazarowicz (Edinburgh North and Leith) (Lab/Co-op)]

I am glad that my hon. Friend has secured this debate. She mentions the Citizens Advice Scotland report, which I too have seen. Does she agree that the Minister should look at its recommendations? Like her, I deal with many of these problems in my constituency casework. The Government cannot just leave the situation as it is.

[Sheila Gilmore]

Indeed. The report’s recommendations are very sound. One fundamental recommendation is to reinstate the payment of ESA for practical reasons, and I will come on to that.

Of those cases, most who applied for JSA while their reconsiderations were ongoing were either refused outright or failed to attend necessary appointments, owing to their mental health condition, perhaps, or, in some cases, their learning disability. Others did not apply because they could not face another benefit application, or simply because they did not know that they could. In one case where a claimant applied and was paid JSA, he emphasised that this was only as a result of support he received from his Jobcentre Plus adviser. For those who did not receive JSA, few had savings or other income to fall back on and had to rely on already overstretched food banks. Others took out high interest loans, amassing debts they will struggle to repay even if they subsequently receive backdated payments at a later date. One constituent sold off his few remaining possessions to survive.

When I first raised these concerns last September, the then Minister, the hon. Member for Fareham (Mr Hoban), assured me, as he did in subsequent correspondence, that claimants with an outstanding reconsideration request could ask for what was described as “flexible conditionality” when they met their Jobcentre Plus adviser. Last week, however, the Benefits Director at the DWP acknowledged to the Work and Pensions Committee that

“not all advisors had been aware of this”

and that new guidance to jobcentres had been circulated at the end of April this year—several months after the introduction of mandatory reconsideration. That is welcome, but it is hard to have confidence in the Department, given that previous assurances were clearly unfounded.

In addition, we were told at the same meeting that people should never be refused JSA outright without the opportunity to have a meaningful conversation about conditionality with a jobcentre adviser. However, the DWP’s own guidance specifically states that

“a claimant will not be able to remain on JSA if their period of sickness exceeds 14 days”.

Citizens Advice Scotland has suggested that this is a particular problem for those claiming JSA during an ESA reconsideration. I would be grateful for the Minister’s comments on that.

More broadly, however, I question the whole rationale for preventing claimants from receiving ESA at the assessment rate during this period. Last week the Minister tried to hide behind legal semantics, arguing that claimants are deemed to be fit for work during this period and must apply for benefits accordingly. However, that ignores the fact that claimants are also deemed fit for work during a formal appeal, yet because of the way in which regulations are framed, they are entitled to ESA at the assessment rate during that process. If the problem is how the regulations were set out following the Welfare Reform Act 2012, they can be changed. There is no real reason why people should be treated differently during the reconsideration period and the appeal period.

There is also an administration cost involved in a claimant receiving the assessment rate of ESA, ceasing to receive it, claiming JSA and then potentially claiming the assessment rate of ESA again. These are significant costs when multiplied by the number of people involved. In addition, if everybody claimed JSA successfully, they would receive benefit at exactly the same rate as they would have been getting on ESA, so if there are any savings to be anticipated, is it because Ministers thought that people would, in fact, struggle to claim JSA during the reconsideration process, given that administration costs are likely to outweigh anything else? I am sure that cannot be the case.

The other issue that has come up as mandatory reconsideration was rolled out since the end of last year is the length of time that people are waiting for decisions. We were initially told that reconsideration should take around two weeks, but in many of the cases I have seen, as well as in those seen by Citizens Advice and many of my colleagues, the time taken has varied between seven and 10 weeks. Those delays have exacerbated people’s health conditions and the financial and other issues they face as a result of receiving no benefit at all. The Minister acknowledged in evidence to the Work and Pensions Committee last Wednesday that there was a backlog. My staff have been told by our local office that there is indeed a backlog—that is how it was referred to. I would like the Minister to confirm today how long claimants are being told they will have to wait, and when he will publish statistics on average times and the total number of claimants who are waiting for a decision.

[Mark Lazarowicz]

My constituents are served by the same office as my hon. Friend’s and we have had the same experience. Would it not also be useful for the Minister to tell us whether the backlog is increasing or declining? If measures are not taken to deal with the problem, the danger is that it will get worse, not better.

[Sheila Gilmore]

I agree. One of the problems with many of the backlogs we are experiencing is that they are increasing.

Last week the Minister also defended the decision not to set a statutory time limit on how long reconsideration decisions take. This issue was raised with Ministers when the legislation was going through the House and in subsequent sittings of the Work and Pensions Committee, for example. In April 2012, the Administrative Justice and Tribunals Council warned that the absence of a time limit could have the effect of

“delaying indefinitely the exercise of the right of appeal to an independent tribunal”.

Just last month, Judge Robert Martin expressed concern that judges could no longer intervene if they felt the reconsideration process was taking too long, because cases do not reach them until after reconsideration is completed. Setting a time limit will be one option before the Government at this stage, but a much simpler option might be not to have to do so, and instead simply to reinstate assessment rate ESA during that period. Indeed, that might be an incentive for the Government to speed up the process in any event.

Finally, I return to another issue I have raised previously. In a debate on 9 April this year, I argued that, given that reconsideration is now mandatory and that, as a result, we might expect many more decisions to be overturned in that way, the DWP should now publish statistics on the number of successful reconsiderations—something that is currently done only for successful appeals. Successful reconsiderations are lumped in with original decisions, so it is impossible to tell exactly what has happened. If we do not have separate overturn figures for reconsiderations, that might make the performance of whichever contractor is involved—including a new contractor in future—more difficult to monitor and track.

The Minister’s response at that time was that doing so would be premature, because mandatory reconsideration had only started in October 2013 and would need some time to take effect. However, it would appear that informal reconsideration has been taking place for some considerable time, even before the mandatory process was introduced. A previous Minister—I think it was the previous Minister but one—told the Work and Pensions Committee in March 2012 that the Department was

“effectively putting every case that is going to appeal, or where a person is not happy with it, through a reconsideration where we look for additional evidence”.

It would therefore appear that, as long ago as March 2012, reconsiderations were taking place in virtually every case that went to appeal. By this stage, therefore, we must have a considerable amount of management information—at least two years of reconsideration decisions—which could be published as official statistics in due course and which would give us an impression of what was happening.

Although I have to go on what the Minister said on that occasion, that might or might not have been an entirely accurate reflection, given that in the same evidence session the same Minister told us that although there had been a slight backlog at that time because of the implementation of some of the Harrington recommendations, everything was back on track and by the summer—the summer of 2012—there would be no backlog of ESA assessments. Two years later, however, there are now apparently 700,000 people awaiting an assessment as new claimants.

However, there is other evidence to suggest that the statistics are there to be captured and reported on. There appears to have been a reduction in the number of appeals. The most recent statistics on appeals—which were published just last week, on Thursday 12 June—appear to show a reduction in the rate of cases going to appeal, from around 42% to 43% up to mid-2011 to around 35% for claims begun in November 2012, with possibly a further reduction, to perhaps even as low as 25%, for cases started in March 2013. I say “possibly” because some of the March 2013 cases may well be still in the reconsideration process—indeed, they might even have barely got out of the assessment process, because of the backlogs.

However, there appears to have been some change in the number of cases going all the way to appeal. That is not necessarily a bad thing, because we have all criticised the cost of appeals, the stress of appeals and the time taken. That is happening, and even though this may be in everyone’s best interests, we really need to know what is happening. The publication of statistics at the earliest possible opportunity, based on at least the last two years of experience, if not more, would enable us to judge the performance of the contractor far better. Given that we are going to have a new contractor for these assessments very soon, it would be good to have this in place well before that starts.

In conclusion, will the Minister confirm when he expects statistics on successful reconsideration to be published, and will he reconsider his position on the statutory time limits? More than anything, I want to emphasise to him that many claimants who claim JSA in this situation are, in effect, being denied it. They are told that they are too fit for one benefit and too sick or disabled for another. Let me ask the Minister again: why not amend the law, so that ESA claimants can continue to receive the benefit at the assessment rate during the reconsideration process? The only way that could be more expensive for the Government would be if Ministers expected sick and disabled people to go without any benefit—and I am sure that that cannot be the case.

--- Later in debate ---

[The Minister of State, Department for Work and Pensions (Mike Penning)]

I congratulate the hon. Member for Edinburgh East (Sheila Gilmore) on getting here this evening. I know that she was delayed on the train. I think it very important for a debate that is on the Order Paper following a Member’s success in the ballot to be heard: that is only right and proper. Actually, this is a bit like groundhog day. According to my file, this is the hon. Lady’s fifth debate on the subject. She said that it was the sixth; perhaps we missed one.

I thank the Chair of the Work and Pensions Committee, the hon. Member for Aberdeen South (Dame Anne Begg), for being present this evening. I am slightly concerned, because I said many of the things that I am about to say to her Committee only a few days ago. I hope that its members will pay attention to what I say, because during the speech of the hon. Member for Edinburgh East I feared that the report might have already been written. I said openly and honestly that I wanted to do exactly what the Chair of the Committee said should be done—to make the process fairer, better and quicker, which I think is what we all want.

[Sheila Gilmore]

Will the Minister give way?

[Mike Penning]

I should like to make some progress first, not least because I want to congratulate the hon. Lady a little more. We have plenty of time, after all—with your permission, Mr Deputy Speaker.

--- Later in debate ---

[Sheila Gilmore]

May I just say, for the purpose of clarification, that any comments that I made about the Select Committee related to evidence that had been given in public? I was not in any sense referring to what the Committee would or would not recommend in due course, because we have not yet reached that stage.

[Mike Penning]

I was questioned extensively by the Committee about mandatory reconsideration delays, which are the subject of this evening’s debate. As you will probably have noticed, Mr Deputy Speaker, I rarely speak from notes, but I shall try to stick to what I said during the Committee’s evidence sessions.

There are two or three points I can make, but in some respects we will have to wait for the statistical analysis. I would love the data to be published now, but it is not ready. As soon as it is ready, I will publish it. As I said to the Select Committee recently, the statistics are being analysed and they will be published as soon as they become available.

Mandatory reconsideration is being done in order to get decisions right—to give decision makers the opportunity to look at things and make sure we have got the decision right. If there is any new evidence, it can be brought forward at that stage. That, among other things, is clearly having an effect on the number of appeals going to the tribunals—although we do not know to what extent, as the statistical analysis has not yet been released—and I think that is a good thing. As I said to the Select Committee, if this means that fewer judges are employed handling tribunals, that is a good thing. I am not certain the judges feel that way, and some of the comments from some judges more recently may indicate that. However, it is important that tribunals are gone to as a last resort in order to make the judgment as to whether DWP officials and decision makers have made that final decision correctly to the best of their ability.

If we can have fewer people going to appeal, that will be better. Appeals are dropping across the benefits handled by the Department, and especially those in respect of WCA. That is not solely due to mandatory reconsideration. There are about 80% fewer appeals, like for like.

Have delays been caused as we brought in the process? I have been open and honest about that before, and the answer is yes, but I would rather have slightly more delays than have decisions incorrectly taken and then turned over at tribunal. The decision on the mandatory reconsideration was prompted in part because I had sat in on a tribunal hearing and so much evidence was being brought in on the day of the tribunal. Everybody has the right to do that, and judges certainly have the rights and powers to look at that evidence, but my decision makers and officials had had no opportunity to look at that evidence. It is very important that we get this right.

At this stage in the process, the decision has been made that the person concerned is not going to get ESA. That is why we refer them across to JSA while the process is continuing.

The hon. Lady quoted from the DWP guidance specifically on the 14-day question. She pointed this out:

“The 14 day Temporary Periods of Sickness rule in JSA is in place to protect people from losing their entitlement when they have a short period of sickness. It was never intended to protect people with long term conditions.”

The following bullet point is very important, however:

“Claimants with longer term conditions can have their availability”—

for work in this case—

“restricted because of a physical or mental condition as long as the advisor thinks it is reasonable to do so”

based on the information before them.

[Sheila Gilmore]

The guidance the Minister quotes is one thing, but there is clear evidence—not just from Citizens Advice Scotland and my advice surgeries and those of my colleagues, but from up and down the country—that people in this position are not being allowed to claim JSA. They are being told that, because of their unfitness for work and in order to keep to the conditions, they cannot receive that benefit and they are turned away. Can the Minister assure us that he will make sure that will not happen?

[Mike Penning]

I will do everything I can, but I think it would have been right and proper for the hon. Lady to have gone on to say that there is specific guidance for people with long-term illness, as it is important to put that on the record. On the point she makes, I want all the staff in the DWP who have face-to-face contact with claimants and members of the public to have as much information as possible to make sure they can make the right decision. That is exactly why the guidance was changed in April. It was a decision that I made, and I asked my officials to make the change. I am not in any way saying that mistakes do not take place. We have a very large benefit with huge amounts of face-to-face contact across the board, whether it is in Jobcentre Plus or with officials in my own Department, and we make mistakes; no one could say otherwise. It would not make any difference who the Government were or who was standing here as Minister. I hope that they would all say, “We never get it perfect all of the time.” However, we should get as much of it right as we can and as often as we can, which is why mandatory reconsideration is vital to ensuring that the system works. As the hon. Lady and the Chair of the Select Committee said, when we are re-looking at a case and find that a person is entitled to benefit, we should ensure that their housing benefit and council tax benefit are not affected. All that must join up together.

Without a shadow of a doubt, we will work very hard to put in place the right training and guidance to ensure that the decision makers get things right. It is a big job, and I have only been here a short time, but we are getting there. As a Minister in the DWP, I am absolutely determined that we will ensure that taxpayers’ money is spent wisely; that it goes to the people who need it; that we put in place training for the right people; that any delays that are taking place—and they are taking place—are brought to a minimum; that we get out statistics; and that we are open and honest with the public, which I will be if there is a debate again next week or the week after, and that will remain the case for as long as I am a Minister in the DWP.

Question put and agreed to.