Reposted from Lacuna – a righting wrongs project
The Tier one tribunal for social security is located in the Magistrates court – an imposing concrete building surrounded by other grey office blocks in the heart of the city centre. This is where benefits appeal claims are heard.
Under the new system introduced by the Coalition Government, all existing recipients of incapacity Benefit capable of working are transferred to Job Seekers Allowance. If not well enough to take up a job then they are put on Employment and Support Allowance. Depending on the severity of their illness, individuals are placed in either the Work Related Activity Group, intended to help prepare them for returning to the work place, or the Support Group, where individuals with limited capacity for work receive a higher level of benefits on an indefinite basis. The assessment is complicated. It’s points based, with individuals gaining points for being unable to carry out a variety of physical and cognitive activities. The fewer activities a person can carry out, the more points they are awarded and the higher the level of benefit they receive. Any assessment of points can be challenged. That’s the purpose of the Tier one tribunal.
On entering the court buildings, visitors must pass through security checks, including a body scan, before scaling a steep flight of stairs that leads to an atrium. The atrium is full of people: standing, perching on hard plastic seats and otherwise milling about. Many of them are awaiting trials for criminal cases. The atmosphere, if not exactly threatening, is certainly intimidating.
Social security tribunals are held in Court 5. The waiting room is empty apart from one security guard and an unaccompanied woman waiting to be called into her tribunal. The ceilings are high and vaulted. Much of the interior is wood paneled: orange-glazed imitation pine covers the walls. It’s reminiscent of a church hall built in the 1980s, a jaded place where people come to attend playgroups, or Weight Watchers meetings, huddling together in corners to try to create a sense of intimacy in the vast and unwelcoming space. The security guards all wear branded G4S uniforms.
Off the main waiting room, there is a small, private space with five grubby mismatched chairs and a low ceiling. This is where the Law Centre advisor I’m accompanying interviews her clients. She has two she is representing today. Both are appealing against their points’ assessment. Both are called ‘appellant’ as soon as their claim is lodged with the Tribunal.
The First tale
The advisor’s first client has a history of alcohol addiction and mental health issues and has been unemployed for 16 years: in this time he has undertaken no voluntary work or training. His alcoholism began in 2000 following the death of a close relative.
A near fatal medical crisis brought about by years of drinking led to him being admitted to hospital in January 2012. He then remained sober for fifteen months, but an attempt to re-introduce alcohol in a moderate way in social situations led to a relapse. At the time of the tribunal he says he has been sober for 3 months.
‘I already feel like a criminal but I’m not.’
A decision was made in relation to his claim for Employment Support Allowance (“ESA”) on the 23 August 2012. His benefits were reduced from £219 per fortnight to £127 per fortnight. The date of the tribunal is April 2014. He is 56 this year, and has relied on family and friends to assist him financially since his benefits were cut. As I enter the room he remarks: ‘I already feel like a criminal but I’m not.’ It’s difficult to keep him on topic, and the conversation meanders as the advisor tries to talk him through both the process that he’s about to take part in and the extensive file of notes relating to his application.
The client’s eyes are bloodshot, the whites yellow and he looks tired. He’s small in stature, shrunken and bird like. The advisor explains that the tribunal are interested in understanding how his illness fits into the ESA descriptors, that they will be asking him questions about his health at the time the appeal was lodged two years ago and to report on any changes. She explains that she will be applying for points to be awarded under Regulation 29, on the grounds that the pressure of attempting to find work would pose a risk to his continuing recovery from alcoholism. She warns him that the tribunal has the power to reduce his existing points, and that this could impact on his income. Just as she finishes explaining this the tribunal clerk enters the room and calls us in.
The room in which the tribunal hearing is held is cavernous with wood-panelled walls, a carpeted floor and a high, vaulted ceiling. It is extremely wide and could comfortably accommodate twenty people sat side-by-side. The room is arranged with two long rows of tables facing each other; these are separated by a gap of a metre and a half. As we enter, the panel are already sitting behind the row of tables furthest from the room’s entrance: the clerk indicates for us to take a seat on the row closest to the door, with the appellant seated directly opposite the panel.
We sit at a row of tables empty apart from a decanter of water and some plastic disposable cups, placed in front of the appellant. The advisor sits to his right. Having ensured that we are all in the correct places, the clerk moves to take her seat at a horseshoe shaped desk a further two to three metres behind the panel, where she proceeds to tap notes on a computer. The back of the room is hidden by a curtain which hangs from ceiling to floor, completely concealing the remaining space. The appellant is dwarfed by his surroundings, and looks slightly bewildered as he takes his seat.
The appellant is dwarfed by his surroundings, and looks slightly bewildered as he takes his seat.
The Judge begins by introducing himself, and explaining what his role will be. He is polite, if distant, and makes attempts to explain the process. He apologises for the fact that he will be taking notes throughout the hearing. He says he does not want the appellant to think that this means he is not listening. The appellant seems to take this on board. The Judge, in contrast to everyone else, is dressed in a suit and looks sleek and corporate, with short dark hair and glasses. The Doctor, sitting to his left, is female and middle aged, with shoulder length, wavy hair. She is dressed more casually than the Judge. She wears expensive looking jewellery. Her rings catch the light when she moves her hands. Her expression is one of studied sympathy, her head tilted, nodding as her colleague explains the process.
The session begins. The Judge asks the advisor if she wishes to draw his attention to evidence that would allow the Judge to re-evaluate his benefits. She reels off a list of descriptors that she wishes the tribunal to consider, particularly concerning her client’s ability to reach and lift objects, and also asks them to consider Regulation 29 in making their decision.
The questioning of the appellant begins: What kind of property do you live in? Do you live alone? Do you have any aids or adaptations? Why aren’t you using the walking stick you referred to in your form? Is your walking better or worse since 2012? What jobs have you had? Have you undertaken any voluntary work or training during the period you’ve been unemployed? What do you do with your time? How fast can you walk? How long does it take you to get to the toilet? Are you sure? You seemed to walk faster than you indicated in your answer entering the tribunal room- can you explain this? Why did you miss the physiotherapy appointment mentioned here in 2013?
The appellant explains that he lives in a first floor flat, alone, without any aids or adaptations. He says that his walking is better on some days than others, although worse than in 2012, due to nerve pain in his feet caused by his alcoholism and a chronic back condition. He explains that he hasn’t undertaken any training or voluntary work, but that if he did, he would want to work with young people to tell them not to drink “the way I done, show them that you don’t want to end up like me”. He explains that he spends the majority of his time watching TV and films, although occasionally he will be dropped at his local pub where he will meet up with friends.
He says he’s trying to help his friend who lives in the flat above him, also an alcoholic, give up drinking: “You can just see it in him the way you could in me, his stomach’s all swollen, its bad news”. He says he missed the physiotherapy appointment because of a death in the family, and that when he tried to reschedule, they didn’t want to know. As he answers he is animated, raising his arms, using his hands to reinforce points that he feels are significant.
The Doctor now takes over the role of inquisitor. She asks the appellant about his medical records, why he started drinking, when and why he was admitted to hospital and his history of relapsing into alcoholism. She then moves to discuss the mental health problems he indicated that he has been experiencing. He tells the tribunal that he suffers from anxiety, that this makes him feel claustrophobic in public spaces, as if a wall of people are closing in on him, all of them talking about him. He recounts his journey to the tribunal, how he had to get off a bus that he felt was too crowded and wait, shaking, at the bus stop for a quieter one. He talks about stopping to lean against fences and sit on walls and benches, how a 30 minute journey can take triple that amount of time. The Doctor listens, head tilted, nodding encouragement, while the Judge continues to take notes.
The Doctor then turns to ask questions about the appellant’s trip to his local shops. At this point, the advisor interjects and hands the panel a map, demonstrating the short distance between the shops and the appellant’s flat. The Doctor studies this before asking him, how many stops he would make on the way to the shops, which are situated a 5 minute walk (at most) from his flat. He says that it depends. On a bad day its 3 stops, on a good day its less. She presses him as to how many bad days and how many good days he has a week. He says it’s difficult to say. Pausing to look down at the appellant’s notes, she asks him why his GP has noted that in November 2013 he went on a trip. He said he was meant to go to see a family member in Manchester who was critically ill, but that he was unable to go as he was in too much pain. This is clearly a source of considerable distress to him.
One of the descriptors against which the appellant’s entitlement to benefit is being assessed is his ability to reach items above his head. The Doctor turns to questioning the appellant regarding his ability to access food in cupboards that are above head height. She asks if the client requires assistance in carrying out his shopping. He says that his sister does his shopping for him as problems with his grip and coordination affect his ability to lift things.
There is an extended discussion about milk, who buys it, in what quantities and how the appellant accesses it once it is in his fridge.
There is an extended discussion about milk, who buys it, in what quantities and how the appellant accesses it once it is in his fridge. He tells the tribunal that his sister buys him milk in 4 pint cartons and that every day someone comes in to decant this into a small jug that he can lift to pour into his tea without spilling it. The mention of tea piques the Doctor’s interest: “Are you able to make yourself a cup of tea? Can you lift and pour water from the kettle?” The appellant replies that he can, as long as the kettle isn’t overly full. A pause. The Doctor continues, does the appellant drink water? Does he drink juice? Does someone pre-mix his squash for him? What does he do if his milk jug runs out before the end of the day? The appellant says he drinks black coffee, that his sister leaves his juice measured out in cups for him, and that if he runs out of juice he asks his neighbour to make it for him or waits until his sister visits.
The Doctor begins to probe the evidence relating to the appellant’s mental health condition. She begins: “Thinking back to 2012, what would you have said if your sister had invited you to a party?” He replies “I would have said no, because they would encourage me to drink and I can’t just have one, it leads to more like.” She then asks if, in 2012, he would have managed to travel to an appointment in the city centre on his own. He explains that we wouldn’t be able to if there were a lot of people on the bus. He says he always leaves two hours before he needs to be at appointments to factor in the time it takes to wait for a bus that isn’t crowded.
The Doctor asks “In 2012, would you have been able to travel to attend an appointment at a different hospital, had you been told to get there.” He replies that he wouldn’t, because of his back pain, which he said, being honest, has got better since he lost weight. Another pause. This is new information. The appellant continues: “Yeah, I used to weigh like, 22½ stone, but then I lost a bit of weight and a bit more weight, and now I’m 10½ stone so it is easier to get around I s’pose.” Both the advisor and doctor look puzzled. This does not accord with what has been written in his medical notes.
Warming to his theme, the appellant goes on: “I only go out once a week like, on a Sunday, to the pub, when my sister takes me and when I do people won’t sit next to me, because of me hands see, I can’t hang onto my drink and I spill it on meself and whoever’s next to me. It’s embarrassing but you’ve got to have your friends like, they like, take the mick and it sort of keeps you going. Can I ask you doctor, what do you think is wrong with me hands and feet? Coz like, they tingle really bad all the time and I’m not getting the right help for it y’know.”
The benevolent smile slips slightly as the doctor demurs, and says she’s sorry but she can’t give out medical advice in a tribunal, that he’ll have to go and make an appointment with his GP. Visibly dejected, the appellant sinks back into his seat. We are told that the panel has heard enough, unless the advisor wants to add anything? The advisor declines, and we are ushered out of the courtroom and back into the small room adjacent to the waiting room, to await the decision.
The appellant is anxious and eager for feedback. “How did we do? How d’you think it went?” The advisor is pensive, but reassures him that he did fine. We are not waiting long before we are called back into the court. The appeal has been disallowed. The appellant will retain the six points he already has for his problems with sitting and standing, but the panel do not accept that he has been truthful in his oral evidence. The Judge states that the panel have concluded that he has been dishonest about his weight, and that they can see no underlying medical reasons for the problems he reports with reaching. The decision means the appellant will have to claim Jobseekers allowance from now on. The Judge asks if the appellant wants to wait for the statement of reasons, or have it posted to him? The appellant says he’ll wait.
We return to the waiting room. The appellant is visibly agitated. The advisor asks him if he understands what has just happened, and explains his options: that he can choose to appeal the decision if the statement of reasons given is legally flawed, or make a new claim straight away and be assessed again. The appellant is fidgety, upset, and decides to leave without the statement of reasons.
The advisor turns to me: “Sometimes I feel like I’m helping, sometimes not. If a client contradicts himself there isn’t a lot I can do. He kept waving his arms around, I could see them looking and I just wanted to say to him ‘Stop!’”.
The Second Tale
The next client is female and in her late fifties. Her ash blonde hair, streaked with grey falls to her shoulders in limp waves. She wears an oversize coat and unseasonal footwear, but is otherwise neat in appearance. Her eyes, half hidden behind glasses, are already filled with tears as she enters the room, arms crossed in front of her as if hugging herself.
As she sits, she folds herself into the uncomfortable chair in the manner of someone wishing to make themselves as small as possible. Her right hand is clenched tightly around a ball of wadded tissues. She is accompanied by her husband, a tall, stoic man, who sits awkwardly in his seat throughout.
It’s a confusing tale. The client, a former nurse, was diagnosed with severe anxiety and depression in 2011. She applied for Employment Support Allowance. After thirteen weeks, she travelled with her sister to a medical examination, which lasted just 26 minutes and was carried out by a nurse with no specialist mental health training. She was then placed in the Work Related Activity Group, a category designed for people who will be able to return to work, and are capable of taking part in a range of activities aimed at preparing them for their re-entry into the workplace.
People placed in the Work Related Activity Group are required to attend an interview with an employment advisor about their future prospects. The first interview takes place at a Job Centre. Subsequent to this, individuals are referred to advisors employed by a private company who are tasked with assisting their transition to the workplace and helping them to secure employment. The private company is paid a fee for every client it places in work successfully. To encourage attendance, if appointments are missed, benefits are deducted.
The client tells the Law Centre Advisor that she was asked to attend an interview in August 2012 with: “a woman in an office next to the station, I don’t know who she was, but she said she would help me look for work.” The client was so anxious her sister had to accompany her throughout and answered questions on her behalf whilst she cried. As she retells the story she begins to shred the tissues in her hand between her fingers. She was told that she wasn’t fit for work. She has heard nothing from either the agency who saw her or the benefit office since. Her husband interjects: “She’s had absolutely no support at all since they said she’s not fit enough for work. She’s had no letter back or information from anyone, apart from filling in that form, that medical form.” In January 2013, her benefits stopped: since then, and for the first time in her adult life, the client has been wholly financially reliant on her husband.
Contribution based Employment Support Allowance, which is a benefit provided to individuals who meet certain criteria on the basis of their previous contribution to National Insurance, only lasts for one year, after which the benefit is means tested. As the client’s husband works, his earnings are taken into account. After her benefits stopped, she approached an advice agency, they advised her to appeal the decision. The first appeal was adjourned due to a lack of medical evidence. The process of deciding which, if any, benefits the client may be entitled to has limped on for over a year. The strain of the delay shows in the faces of both the client and her husband.
Having listened to the facts of the case intently, the advisor is determined. “I think we have grounds for recommending you are placed in the Support Group.” The Support Group refers to those people who are assessed as having limited capability for work, and who are not expected to undertake work related activity. People who fall into this category are entitled to a higher rate of benefit than those in other groups. The benefits received by those in the Support Group are also not subject to the twelve-month limit that applies to the benefits received by those in the Work Related Activity group.
The door opens. The tribunal clerk appears and says the panel are ready for us. As we move towards the entrance to the cavernous court room the client hesitates and begins to shake. Her husband places a hand reassuringly on her back, and we take our seats opposite the panel. As before, the Judge outlines the process, and asks the advisor if she wishes the panel to consider any particular regulations in relation to the appellant’s case. The advisor says that she wishes the tribunal to consider Regulation 35, which states that a claimant should not be placed in the work-related activity group if such a decision would pose a substantial risk to their mental or physical health. He notes this, and begins his questions.
Who do you live with? Just your husband? Do you have children? How old are they? Have you worked in the past? Why did you stop? When did you stop? Have you done anything since? Have you completed any training or taken part in any voluntary work?
The appellant replies shakily that she lives with her husband and her younger son who moved back home to live with the appellant and her husband after his relationship collapsed and he suffered a breakdown. The stress of this, combined with other family issues, led to the episode of depression and anxiety that ended her twenty year career as a nurse. As she speaks, tears roll down her face and her husband stares fixedly at a point in the middle distance, jaw clenched. She tells the judge about the appointment she had with the woman in the office, what was said and the lack of communication from anyone after this interview.
The Judge continues: “How did you get to the appointment?” “My sister took me, I can’t go out on my own, or use public transport.” “Did she go into the interview with you?” “Yes.” “Why did she come in?” “Because she could see that I was very anxious.” “What would you have done if your sister couldn’t have taken you?” “I wouldn’t have gone.” “How often do you go out?” “My sister picks me up every Wednesday and takes me over to her house.” “Do you ever go anywhere else?” “I see the doctor once a month.” “Does your sister come in with you or wait outside?” “She comes in and sits in the waiting area with me, I can’t be on my own.” The Judge nods, seemingly satisfied, and gestures to the Doctor to begin her questioning.
With head tilted and sympathetic half-smile firmly in place, the Doctor begins by asking the appellant what medication she is prescribed. She asks further questions about the treatment the appellant has received, whether she has been referred to a psychiatrist or anxiety management group, and why she stopped attending counseling. The appellant replies that she stopped going because it wasn’t helping her, someone always had to travel with her, which meant inconveniencing them, and that she was sick of being asked the same questions over and over again.
When the Doctor asks whether her condition has got better or worse since she lodged her appeal, she replies that it has got worse with the stress of the process, that she is now virtually housebound, and doesn’t like having visitors in the house. The Doctor pursues this: How would the appellant cope if her son brought people she didn’t know to the house? She replies that he wouldn’t do this, that she can barely tolerate her grandchildren being in the house, let alone anyone else. The Doctor continues. “Would you be able to cope with attending appointments, for example, going to the hairdressers?” A pause, the appellant reaches up and touches her hair self-consciously. “I don’t go anymore” she says “ Before I got ill my hair was always short, now, now it’s like this. I haven’t been to the hairdressers in a year.”
More questions: “Where do you buy your clothes and shoes?” “I go to the supermarket with my sister, if I buy any at all: I haven’t in a long time” “Does your sister stay with you all the time?” “Yes.” “What would you do if someone spoke to you and offered to help?” “I’d say ‘No thanks.’” “Can you cope with standing in queues? How long for? What about short queues?” The appellant looks exhausted. The Doctor changes tack- “What are the symptoms of your panic attacks?” “I get short of breath, tingling in my hands and arms, I start sweating, feeling flustered and dizzy.” “What triggers them?” “It can be anything, I’m anxious and tearful most of the time, I have them in the house even.” “When you’re in the house, do you answer the door?” “No.” “What about the phone?” “No.” “What about if you had to go to a medical appointment?” “My sister would take me.” “What if it was postponed, or rearranged, or your sister couldn’t take you?” “I, I wouldn’t go, I can’t cope, I just wouldn’t go”. The appellant is flustered, clearly distressed and her husband places his hand on her arm. It is a relief when the doctor says she has finished her questions, and we are ushered out into the waiting room for the panel to confer.
Back in the small room, we wait in silence as the panel consider their verdict. The client suddenly speaks: “I’m sorry, this isn’t nice, this isn’t nice for you, for any of you.” She begins to cry again, her husband places his arm around her. Suddenly a knock, and we are called back in. The appeal has been allowed, and the appellant will be placed in the Support Group, as the advisor requested.
It is a victory of sorts. We are ushered back into the waiting room. The Law Centre advisor says that the appellant can go, that we will wait for the decision to be written up and place it in the post. Suddenly the appellant takes a step forward and embraces the advisor: “Thank you, thank you so much, I can’t thank you enough.” The advisor is visibly moved, and we return to the small room to wait for the decision notice.
“I’m so glad about that,” says the advisor “but she was so upset, and it’s unnecessary. She was so clearly ill and all this made it worse. If I had my way, I would get them in, even a month before their tribunal to interview them and explain the process. It calms them down and encourages them to attend. Many people are so overwhelmed by the process they panic and don’t turn up at tribunal.
When you see them face-to-face, issues come out that aren’t clear over the phone. You’re able to explain what is going to happen and how their symptoms fit into the descriptors. Sometimes the medical records available aren’t actually terribly helpful, so it gives you time to ask them to gather extra evidence if necessary and also clear up any inconsistencies.”
Many people are so overwhelmed by the process they panic and don’t turn up at tribunal.
As a result of welfare benefit reform and re-assessments of those claimants able to work, the numbers of appeals have sky-rocketed. Figures released in 2014 show that ESA Appeals rose from 197,363 in 2010/2011, to 327,961 in 2012/2013. But in April 2013, the government removed Legal Aid funding for assisting individuals in preparing for these tribunals. Since April 2013, all funding for this work in Coventry, has come from City Council, who recognize the value of making sure their residents are on the correct benefits. In other areas, with a less sympathetic council, there is no funding to support representation at First Tier Tribunal.
As we walk back to the Law Centre, we continue to talk about the cases we’ve just seen and the system that generated them.
“It does make you think” the advisor says: “I mean, what happened to that last lady, that could happen to anyone, at any time really, and how would she have coped without the advice she got and the support of her family? If she hadn’t had advice she never would have appealed her claim, without her husband, I doubt she would have even turned up to the appeal.”