Another letter to Mike Penning from Sheila Gilmore about mandatory reconsideration

Sheila’s on the case… I don’t know who I love more; her or Glenda Jackson. Seems like Labour are finally stepping up to the plate.

 

 Sheila Gilmore MP
Edinburgh East Constituency
House of Commons, London, SW1A 0AA | 020 7219 7062
sheila.gilmore.mp@parliament.uk | http://www.sheilagilmore.co.uk
7 July 2014
Mike Penning
Minister of State
Department for Work and Pensions
Caxton House, Tothill Street
London, SW1A 9DA Our Ref: MB/GILM02002/02140895
Dear Mike
Please accept my apologies for writing to you twice in the space of a week, but I wanted to return to the issue of mandatory reconsiderations in ESA cases.
I feel I should say at the outset that this letter might not have been necessary had my concerns been properly addressed in the debate on 16 June 2014. While I acknowledge that this was an unusual adjournment debate inasmuch as the main businesses finished early and other members were able to speak, it was still open to you to reply for the usual fifteen minutes and yet you chose to do so for only nine. This was particularly surprising given that I had sent a copy of my speech to you in advance.
Flexible Conditionality
In the debate I highlighted assurances, given by Mark Hoban in September 2013, that flexible conditionality would be available to claimants who were requesting reconsideration of an ESA Fit for Work decision. I asked why these assurances were given when it would appear this was not communicated to Jobcentre Plus staff until April 2014. In response you said:
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’m afraid that this didn’t answer my question as to why assurances were given in the past. It would be helpful if you could do so now.
Jobseekers Allowance regulations
In the debate you said:
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.”
I did not say this and am unaware as to where this quote – and the subsequent bullet point that you then refer to – came from. I was quoting from internal Jobcentre Plus guidance made available as a result of a Freedom of Information Request. I have reproduced the relevant paragraph in full below, along with the URL from which I accessed this document:
Unless they are a member of a joint claim and can be granted an exemption, a claimant cannot remain on JSA, if:
 They have had a period of temporary sickness on two occasions in any JSP or in the last 12 months if the JSP lasts longer than 12 months; or
 The period of sickness exceeds 14 days; or
 They have had a claim to SSP in the previous eight weeks.
In these circumstances the claimant must be advised to make a claim to ESA.
https://www.whatdotheyknow.com/request/164843/response/410470/attach/5/3024%20Annex%202.pdf
I would be grateful if you could highlight the internal DWP guidance you referred to, and explain how it relates to the internal Jobcentre Plus guidance I have highlighted above.
Housing and Council Tax Benefit
In the debate my colleague Anne Begg noted that when people are found Fit for Work and stop receiving ESA at the assessment rate, as a consequence they will also have any Housing and Council Tax Benefit payments stopped. These will generally be reinstated and back-payments made if they appeal their decision and resume receiving ESA at the assessment rate, or if they successfully claim JSA.
However as people now have to request a reconsideration before they can appeal, and as many are experiencing difficulties in claiming JSA during this period, they are struggling to have these other benefits reinstated. In the debate you said:
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 of that must join up together.
Given the difficulties that claimants are experiencing in receiving JSA during this period, I am afraid that – to use your own words – all of this is not joining up together at present. This lends further weight to the need to ensure such people are either able to claim JSA or assessment-rate ESA.
Entitlement to assessment-rate ESA
In my speech I highlighted the inconsistency whereby someone is not entitled to ESA at the assessment rate during the reconsideration process but is entitled to it during a formal appeal, despite being considered Fit for Work and both stages. In response you said:
Sheila Gilmore MP
Edinburgh East Constituency
House of Commons, London, SW1A 0AA | 020 7219 7062
sheila.gilmore.mp@parliament.uk | http://www.sheilagilmore.co.uk
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.
It would be helpful if you could provide a more comprehensive explanation as to why this inconsistency exists, and why this wasn’t addressed in the regulations that introduced mandatory reconsideration.
Administration costs
I noted that the administration costs that have arisen as a result of the introduction of mandatory reconsideration are likely to be significant. Where previously a claimant who was found Fit for Work would have had payments of ESA at the assessment rate stopped and then reinstated once they lodged an appeal, now claimants must also claim JSA in this new interim period.
I would be grateful if you could state what estimates were made of these costs prior to the introduction of this policy? And do you accept that, provided all those who request an ESA reconsideration are successful in claiming JSA, the amount paid out will be exactly the same as if mandatory reconsideration had not been introduced?
Reconsideration delays
In the debate you said:
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.
I would suggest that your contention that there are only ‘slightly more delays’ underestimates the scale of the problem, as claimants were initially told that the reconsideration process would take two weeks, but my experience suggests that in practice it is taking between seven and ten weeks.
In my speech I also asked you how long claimants are now being told they will have to wait and if you will publish statistics on average waiting times. I would be grateful if you could answer these questions now.
I also highlighted evidence from judges about the disadvantages of not putting in place a statutory time limit on reconsiderations. It would be helpful if you could indicate whether you will now revisit the decision not to put such a time limit in place, given the length of time reconsiderations appear to be taking.
Yours sincerely
Sheila Gilmore MP, Edinburgh East