Reposted from the Guardian
Mandatory reconsideration of fit-for-work appeals can pitch claimants into a Kafka-esque maze, leaving them penniless and hungry, an MPs report notes
Tucked away in this week’s work and pensions select committee reporton employment-related disability benefits is a section on an innocuous-sounding policy called Mandatory Reconsideration (MR).
Its blandness hides a host of Kafka-esque sins, however; this is truly a monstrously perverse and bureaucratic generator of poverty and stress.
Here’s an example of one claimant’s experience of being caught up in the strange limbo-land of MR, taken from research by Citizens Advice Bureau:
It has affected me badly. Financially I am struggling – when I pay gas, electricity and bedroom tax I have nothing left. I sometimes don’t have enough money to buy food. Sometimes I go hungry. Sometimes I just have toast as it’s cheaper
So what is MR and how do you get caught up in it? MR kicks in when claimants of ESA or Employment and Support Allowance (unemployment benefit for people who cannot work as a result of illness or disability) are tested and declared fit for work, and subsequently wish to appeal against that decision.
In the past the claimant could lodge a formal appeal directly with the tribunal service. Since October however, they are required to submit an informal appeal to the Department for Work and Pensions (DWP), who must “reconsider” the fit for work decision – a “second opinion” if you like – before allowing the claimant to proceed to tribunal.
The thinking behind this, according to the DWP, is that MR offers an opportunity to resolve disputes quickly, ease pressure on tribunals, and allow decisions to be revised if appropriate. In 2013-14, there were 233,000 appeals, each costing the taxpayer an estimated £248, and clogging up the courts. One in 10 decisions were reversed at tribunal. In theory, trying to address these pressures by sifting out incorrect decisions before they go to court is sensible.
Except in practice it doesn’t work sensibly at all. Entering the MR process is too often a long, complex, expensive experience that leaves many claimants – assuming they have the stamina to enter it in the first place – stuck in a slow-moving DWP machine: stressed, impoverished, and in some cases dependent on loan sharks and food banks.
What goes wrong? First, most ESA claimants who wish to receive benefit income over the period of MR are required to switch from ESA to Job Seeker’s Allowance (JSA). Quite why claimants are forced to claim a fit for work benefit when they are arguing they are unfit for work is unclear. Nor is there a financial saving from moving claimants from assessment-rate ESA to JSA for the duration of the MR (claimants get the same amount, while it actually costs the DWP around £160 to process the switch). But apply for JSA they must do.
Unfortunately, switching to JSA triggers multiple problems. First, in coming off ESA many claimants find their other benefits (such as housing benefit) are automatically stopped, potentially plunging them into rent arrears. Second, when they move to JSA, claimants become subject to tight job-seeker conditionality; so if they fail to apply for enough jobs (even though they consider themselves unfit for work) they can be sanctioned and have their benefit docked, leaving them without unemployment benefit income.
This assumes, however, that the JSA application is successful. The Work and Pensions committee report notes that – incredibly – some claimants are advised by the DWP to come off ESA but are subsequently refused JSA by Jobcente officials because they are deemed to be “unfit for work” (even though they are appealing a decision that deemed them “fit for work”). This can leave claimants penniless: “unable to claim either ESA or JSA”, the report points out.
All this chaos might be more bearable if the MR was expedited swiftly. The optimistic informal aspiration of the DWP at the time of the introduction of MR was to process cases in two weeks. The reality is DWP does not have a target completion time. According to evidence to the committee submitted by the Z2K charity the time taken
Varies greatly from two months to much longer
CAB interviewed 20 people who had undergone MR. Not a single person received a decision in two weeks. The quickest decision was five weeks, the longest more than 12 weeks. A CAB advisor told me recently that the MR time scale could be “months… six months is not unusual”. During this period, her clients got by, she said, by going into debt with loan sharks, cutting back on living essentials, and accepting charity food parcels.
The then disability minister Mike Penning told the committee in June that the DWP was keen to “speed up the process” but was caught in a backlog of ESA reconsiderations. It would not be setting a time limit, however, on the grounds that “if we get the decision right, it will be worth the time”.
Here’s another CAB case study:
Eric, 57, had a brain injury as a result of an industrial accident at work and has severe mobility issues and poor coordination. He was refused ESA and told to attend Jobcentre Plus to sign on for JSA. When he got there, however, his job coach told him that, because he had a fit note [a note from his GP saying he was unfit for work], he couldn’t claim JSA. The job coach was extremely sympathetic and Eric noted that the staff were very apologetic. They encouraged him to request a reconsideration of his ESA decision.
Because he was not entitled to either JSA or ESA, Eric was living on £50 per week from his Disability living allowance (DLA) award. He couldn’t pay household bills and was struggling to put money on the electric meter. He was referred for a food parcel but because the food bank was four miles away and because he uses crutches, he didn’t think he could carry the goods back, so didn’t take it.
Eric felt angry and abandoned. He said “Sometimes I think I would be better off dead.
Now, why would a social security system put any of its citizens through all that?
What is curious is that before MR, the DWP already reconsidered every decision before it went to appeal. Judge Robert Martin, president of the social entitlement chamber of the first tier tribunal told the committee that introducing MR would be justified only if it led to a more rigorous appraisal of fit-for-work decisions. We don’t know if it has. Of CAB’s 20 interviewees, just two had the original fit for work decision overruled at MR stage. The rest went on to appeal. But as DWP has never published statistics for the old reconsideration process, CAB says there’s no way of telling if the new system works any better.
But perhaps MR has another function: to slow the rate of appeals by making it as difficult as possible for claimants to proceed. Indeed, Martin noted that there was “dubious advantage” in MR, not least because claimants now had to make, in effect, two appeals. According to the report:
Judge Martin also believed that the introduction of MR, rather than leading to a justified reduction in appeals, might discourage claimants who might have had “winnable” cases from appealing, because they found the process too onerous.
Whether they are justified or not, the number of appeals has reduced rapidly since the introduction of MR. Between January and March 2014 there were 11,455 appeals lodged, compared to 109,000 in the same period the previous year. The DWP says it does not know yet if MR caused this dramatic (89%) fall. The Tribunal Service, however, suggested to the committee that the DWP’s administrative tardiness may well have been a factor:
If they [the DWP] make fewer decisions, we get fewer appeals
Unfortunately, it is the very poorest who have to take the strain as a result of these delays. It is a cause of significant emotional and financial pressure. As a consequence of this uncertainty, says CAB:
Most clients reported a decline in their mental health
The select committee makes sensible recommendations in its report: scrap the requirement for claimants to move to JSA for the duration of the appeal; oblige the DWP to assess whether MR is having the “undesired effect” of deterring potential appellants; introduce a time-limit for completion of MR.
But arguably these address only the malign symptoms of an ESA system whose failings create too many appeals in the first place. As the committee’s report concludes:
A fundamental redesign of the ESA end-to-end process is required