Wednesday, 18 June 2014

The DWP’s ‘Performance Measurement’ visits

There has been some discussion on Twitter about the DWP’s claim here that it may conduct what it calls ‘Performance Measurement' visits, a strangely Orwellian term for what, on the face of it, appears to mean some form of fraud investigation. The discussion has included talk of whether failure to participate in a visit can lead to loss of benefit. The short answer is "no", but it's a bit more complicated than that.

There is no doubt that the DWP has wide powers to investigate fraud, and may conduct visits to premises, including to a person’s home or place of employment. There is no right of entry to a person’s home if the person does not agree. While it has the power to conduct these visits, all this really means is that in doing so, it does not necessarily unlawfully exceed its powers. It does not mean that it can actually compel a claimant's participation.

The DWP also has adequate powers to revise or supersede (technical terms meaning, for these purposes, essentially, stop) awards of benefit where there is evidence the person no longer qualifies. This can be retrospective, leading to an overpayment, which may be recovered.

Where evidence exists that a person might be receiving benefit he isn’t entitled to, the DWP might well want to put the case to the claimant for comment, and if it isn’t satisfied with any explanation given then they would be within their rights to revise or supersede the award on the basis of the evidence held.

However, the key problem with the ‘Performance Measurement’ visits page seems to me to be summed up by this paragraph:-

"Your name is selected at random to be checked. You won’t always get a letter in advance telling you about the visit."

If there is no pre-existing evidence that a claimant’s award of benefit is incorrect, then there seems to be no good reason for a claimant to comply with such a visit. While a person might have no objection to co-operating with random checks, it surely seems only good manners to offer an appointment for such a visit in advance, instead of just turning up without notice. It would seem to me entirely reasonable for a claimant to turn a DWP officer away who had just turned up unannounced for a random check.

The DWP’s only recourse if a claimant refused to engage with the visiting officer would be to argue that it was entitled to draw an inference from the claimant’s conduct. They would then have to conclude that such an inference alone showed, on balance of probability, that the award was incorrect. This would be a staggering leap of logic.

Such a decision would carry a right of appeal, where the burden of proof would be on the DWP to show grounds to remove the award. Since the conditions of benefit are laid down by statute such grounds would simply not exist. Even if the DWP did have pre-existing grounds to suspect the award was wrong, and a claimant did not comply with a visit, the appeal would be a complete rehearing of the facts and the claimant could submit any new evidence even if it was not available to the DWP before.

If the DWP did try to go down this path of revising/superseding based on adverse inference alone, it would be a massive waste of public money on the successful appeals that would ensue, and would arguably amount to deliberate maladministration. I would therefore never expect they would actually attempt this.

I should add for completeness that there is, rightly,  ultimately a sanction for failure to provide information to the DWP. The DWP may require a person to provide information ‘reasonably required’, and may terminate benefit as a punitive measure if the person fails to do so. However, the claimant is entitled to one month to provide the information. Additionally, the request must be in writing and must state that one month is being allowed. It is not enough to have simply demanded paperwork, ID etc. on the doorstep and been sent away, and the one month would not run in such circumstances. The issues around this power, and how it interacts with adverse inferences, are helpfully discussed in Upper Tribunal cases CH/2001/2013, CH/2995/2006, and R(H) 1/09 and these cases remain good law. Although these are local authority benefit cases, the relevant DWP regulations are the same.

The DWP therefore appears to be somewhat misstating the situation.  It clearly seems to be  implying that participation with a visiting officer is compulsory, whereas this is really only the case where fraud is already suspected, and then only to the extent that non-compliance may lead to an adverse inference being drawn. The suggestion that a person visited at random has any meaningful duty to co-operate on the spot does not seem to be correct, as long as any information reasonably required is provided within one month.