Clause 99
Posted: Sun 28 Sep, 2014 5:45 pm
ephemerid wrote:This is a very long post - but worth reading if you are a claimant or otherwise interested in social security.
Clause 99 of the Welfare Reform Act came into effect for Universal Credit and PIP in April.
From 1st.October, it will affect all other working-age benefits too.
These include - JSA, ESA, Income Support, and DLA.
Clause 99 involves the removal of the automatic right to appeal a DWP decision on entitlement.
I've read all the legislation, consultation, and press releases; I know this stuff backwards, and it's very worrying.
Anyone who wants to appeal a decision will now have to wait for Mandatory Consideration of Revision - this is what is usually called reconsideration, and it applies to JSA claimants who want to appeal a sanction or disallowance, ESA claimants who want to appeal a Fit For Work or WRAG decision, Income Support claimants who are subject to jobdearch conditionality, and DLA claimants whose support is stopped routinely after a FFW or WRAG decision on their ESA.
I'll concentrate on ESA here - but the general idea is the same for everyone who claims any of the above.
Entitlement to ESA is determined by decision makers who are required to use evidence supplied by the claimant and by Atos; DWP allocates the claimant to a group (WRAG or SG) if they judge them incapable of work.
The DM uses the ESA85s (Atos summary) to do this - if the summary says "could be capable of work in the medium term" it is interpreted to mean WRAG for 6 months. Atos never say that they recommend WRAG or whatever, they use words like this so they can claim they are not responsible for the decision.
This allocation is time-bound - the options for the DM are: 3,6,9,12,18, or 24 months. No flexibility, 2 years maximum, irrespective of the clinical condition and irrespective of permanence.
This is input to the system, which will automatically generate a review at the time set by the DM - this goes to "Medical Services" ie. Atos, who start the assessment procedure all over again.
Atos have a Service Level Agreement which specifies that the process, from the date of review until the report of the assessment is sent to DWP, should take no longer than 56 days; claimants must produce their forms and evidence in a month, but Atos very rarely complete their part of the process within the time limit.
Atos decides whether, when, where, and how the claimant is assessed; they report their recommendations to DWP; and the DM makes the decision with an in-house Atos person to help with any terminology they don't understand.
DWP then inform the claimant of their decision - sometimes they phone and "explain" and sometimes they write and sometimes you find out when the benefits stop with no warning. Claimants are entitled to a full verbal explanation and a full written explanation, but not many claimants know this and DWP don't always provide them.
Currently, claimants have a month from the date of the decision to appeal - they have to ask for and complete Form GL54 within the time limit, or provide a good reason why their appeal should be considered out of time.
DWP then set the appeals process in motion, and they do a reconsideration as part of that - they rarely change the decision at this point, especially if you have not provided new evidence. (It's usually the case that claimants' grounds for appeal are based on DWP not using the evidence they have already, and there's not enough time to supply more within the limit)
DWP must complete the reconsideration within a month, and this limit can only be extended if they insist on the claimant obtaining new evidence. Which they invariably do.
DWP are responsible for - writing a Secretary of State response (ie. the legal grounds for their decision), collating all the papers (the S of S response, ESA50, claimants' evidence, Atos reports, and any other correspondence) and submitting it to the Tribunals Service. They must send copies to the claimant and any other representatives.
Claimants will get "appeal rate" ESA (basic rate) while they wait for the hearing.
Clause 99 changes all this.
From 1st.October, there is no automatic right to appeal. On receipt of the decision, the claimant must notify DWP that they want to appeal, and DWP will conduct a Mandatory Consideration of Review (reconsideration) and they have no time limit for this - they can take as long as they like.
During the MCR, claimants will not get any ESA. The rationale for this is that if the claimant got a FFW decision, and it isn't changed, the appeal rate payments would constitute an overpayment; and if the claimant got a WRAG decision, the MCR could change this to FFW, and that would also generate an overpayment.
Chris Grayling refused to reconsider this, because he said that there was a financial incentive for claimants to appeal; he said that removing benefit for the MCR period would cut the numbers appealing frivolously.
If the claimant decides to claim JSA, the appeal process will stop. A claim for JSA effectively implies that the claimant agrees they are fit for work, and they may no longer claim JSA and appeal an ESA decision at the same time as they can now.
If they do, they may not get JSA either - any doubt on availability (regular hospital treatment, say) and no JSA; any restrictions on work or whatever due to health, and no JSA; plus the usual jobsearch/sanctions regime now applies.
If the claimant gets a WRAG decision and decide not to appeal, and they are on income-based benefit, the time limit of 52 weeks is applied retrospectively and they could lose it anyway. All WRAG claimants are now subject to jobsearch conditionality and must attend 6 work focussed interviews, with immediate eligibility for referral to the Work Programme, and immediate eligibility for workfare which could be indefinite. This is all mandatory and failure to comply will result in sanction.
FFW and WRAG decisions automatically generate an electronic letter to any other agency paying any other benefits.
This applies to DLA (and PIP) so it is routine for DLA to be stopped on the grounds that capability for work or work related activity implies functional ability in the activities of daily living - even though the qualifying criteria are different.
DLA disallowances will also be subject to Clause 99 on 1st.October.
Also - one of the other provisions of Clause 99 is that DWP are no longer responsible for lodging the appeal.
Claimants who decide to pursue an appeal after the MCR will now have to lodge the appeal themselves. This is called direct lodgement, and they will have to collate and distribute all the documents as above - and hope that DWP provide what they need, and for that they need to know what to ask for. They have to do all this with no legal aid; and the Tribunals Service will adjourn any hearing if the paperwork is not correct and all parties have the same documents at least 28 days prior to the hearing.
Tribunals Service panels are not there to assess capability for work - they are there to ensure that the decision under appeal was or was not reached lawfully. The role of the judge is to determine if the decision was fair, the claimants' evidence is assessed on consistency, and the DWP evidence is assessed on adherence to Social Security regulations.
There is no legal aid for the Lower Tribunal, which is where the appeal will be heard first - so claimants will have to find a way to get the help they need. If they go on to the Upper Tribunal, they can ask for legal aid.
Many CABs have lost a lot of their funding, and many no longer employ experts - I know of several cases where claimants were given a volunteer to help them, and the advice given was completely wrong. CABs could claim back the costs of legal experts but now they can't, and that means that CABs are relying on volunteers, many of whom have no more knowledge or experience than the man or woman in the street.
AS DWP have no time limit for conducting their Mandatory Consideration of Review, they can delay it for as long as they like, and can waste endless amounts of time asking for new evidence or GP reports or whatever.
At the moment, DWP regional Benefit Delivery Centres are not coping with the volume of decision making and are sending cases to the Benefit Integrity Centre in Chelmsford. Many cases are claims like mine - there is now, as ESA has been going since 2008, a cohort of people who are churning over again and again because the limits set on claiming are 2 years or less. There are also people being converted from Incapacity benefit to ESA, also subject to the same limits.
The Public Accounts Committee minutes from earlier in the year state that more than 700,000 ESA claimants were assessed in 2011-12; an Atos member of staff has told me that DWP referrals to them for assessment have increased "markedly" in the past few months, at a time when new claims for ESA have fallen by 1.8% over the year to less than 2.5 million.
There could be a few reasons for this.
Firstly, Atos are supposed to be seeing 11,000 IB claimants a week and converting them to ESA. In practice, many IB claimants are not being seen at all and allocated to WRAG. I think the rise in successful appeals may be attributable to this, as IB claimants are on long term benefit for a reason, ie, they were assessed under the PCA system as being unlikely to ever work again due to their permanent/chronic health problems.
Secondly, Atos are now getting more and more people for reassessment because of the DWP time limits for review. Even if people get SG for 2 years, by now some of them will have churned over three times since ESA came in; and given that the majority of decisions are allocations for 6 to 12 months, some people are being reassessed again and again (in my case, 4 times in 3 years).
Finally - and this is what I'm talking to St.Steve about - the backlogs could be deliberate.
If Atos are getting an increase in referrals (as a staff member told me) and are failing to comply with their SLA of 56 days, anyone whose assessment is held up now (like me) won't get their DWP decision until AFTER Clause 99 comes in.
I wouldn't be at all surprised if DWP are under orders to swamp Atos with referrals - Atos are already behind, and are having to retrain all their staff - so that claimants who are waiting for assessments will lose their automatic rights to appeal.
I'm doing some work on this at the moment, and I'll let you know what transpires.
DWP did a consultation earlier in the year, which was a complete sham. Contributors to it were all concerned that claimants would be left destitute while waiting for MCR if they wanted to continue with ESA; they felt that the policy would force people into claiming inappropriate benefits, fail to qualify, and be destitute; they felt that DWP answers on how long claimants could expect to wait were not satisfactory; they were unhappy about the direct lodgement rules and loss of legal aid; and they wanted an impact assessment which the DWP refused to do. Despite all this, the final report on the consultation refused to consider any of this and the policy remains unchanged.
DWP insist that the reason for this Clause 99 is to speed up the process of reconsideration so that fewer people appeal; DWP says that if they can impose a MCR they will be able to make the right decision much earlier in the process; and DWP are attempting to sell this as a fair and speedy solution to the problem of people waiting months on end for Tribunal hearings.
I do not believe this for a moment.
I am inclined to think that the real agenda behind this is to stop claimants appealing duff decisions and reducing the cost of appeals; the savings in benefits now not being paid will be significant; and most claimants will fail to qualify for other benefits because they are too ill to work but not (apparently) ill enough to claim ESA.
When the claimant count goes down (it will) and the appeal rate goes down (it will) IDS and his henchmen will trumpet this as a resounding success, they will claim that the "reforms" are working, and it will be a lie. Again.
My ESA50 was issued on 17th.June. It is now 70 days since the 56-day process began, and I have no idea if I am to be reassessed at all, let alone when, where, or how.
It is not likely that I will be given a WCA appointment (if I have to have yet another one) before mid-September; by the time DWP make their decision, it will be October.
If this happens, I will make an unholy fuss. I have already had a go at Atos, and I intend to keep up the pressure. I am also writing to DWP to express my concern.
I am a very lucky woman.
I have brains, I have access to the internet, I have knowledge and skills and experience.
However ill I am, I can fight my corner, and I have a lot of support and good people around me.
I am fearful for those who do not have my advantages.
I am expecting even more horror stories when this iniquitous piece of legislation starts to bite.
Neil Kinnock was right - he warned us not to be ill.
If anyone has any questions about this, please let me know.