Repost - How did so many MPs come to minunderstand the ESA cut in the same way?

Earlier this month, the House of Commons voted to proceed with a hefty cut to employment and support allowance (ESA) (the name for incapacity benefit and income support) since 2008).

To remain on ESA after the initial assessment, a claimant must score 15 points from these descriptors. Since 2008, anyone scoring 0, 6, or 9 points is moved onto jobseeker's allowance and is 'fit for work'. Qualifying for ESA is getting past a high bar.

The legislation passed abolishes the 'work-related activity component (WRAC)' (which replaced the disability premium in income support for people unable to work). The 'support component' remains, which also replaces the disability premium but for a slightly different subset of ESA claimants. (The difference is small and arbitrary, and is essentially whether the claimant scores all 15 points from one activity.)

The naming is Orwellian and does not describe the subject matter in a way easily understood. The thinking appears to be that by generously adding the words 'work' and 'employment', ill people unable to work would be persuaded into employment anyway.

Since most claimants are in the work-related group rather than the support group, the removal of the WRAC leaves the level of ESA the same as jobseeker's allowance for most claimants.

This week, I was appalled to see that the new Secretary of State put out a grossly misleading and false statement, claiming that people on ESA with a work-related activity component have been found to be fit for work.

I then noticed that my local MP, Andrew Turner, has put out a suspiciously similar statement.

Further investigation uncovered no less than 13 MPs who has all repeated almost the exact same statement, often ironically decrying the 'misunderstanding' that the cut affected people who are ill.

It seems clear that MPs were lobbied on a factually incorrect basis and were misled into voting for the cut under false pretences. Even Conservative MPs had threatened to vote down the budget over proposed PIP criteria changes so cannot be taken to fully behind all benefit cuts. But on almost any analysis, the ESA cut is harsher than the proposed PIP changes and may affect much more vulnerable and ill people.

Email to Andrew Turner MP

Dear Mr Turner

I am writing concerning the vote tomorrow (Thursday 17th Nov) proposing to reverse the abolition of the work-related component of Employment and Support Allowance.

Although I am not a supporter of your party, I consider that you are an honourable man who have voted and spoken with your conscience in the past.

The previous vote to cut the ESA component was, I contend, tainted by a dishonest briefing of MPs by the government at the time as to what the proposal was, assisted by the deliberately confusing terminology. Many MPs, including I believe you, were told that the cut affected only those found fit for work. This was a lie as it affected only those found unable to do any work as defined under the stringent ESA criteria.

It was said that the money cut would be reinvested into supporting claimants to work. It has not been explained how this is possible when the people the money is to be taken from have been found unable to work.

It was said that the cut brought ESA into line with jobseekers Allowance. This was not true, as a disability premium is available to disabled JSA claimants. The ESA component is the equivalent of this for people too ill to claim JSA. The cut therefore makes ESA less than JSA for the same claimant.

I feel strongly that a vote by Parliament tomorrow to keep the cut would be an endorsement of the government lying to MPs and as such, the only proper course is for Parliament to overturn the cut pending a full and honest reassessment of it.

I trust you will do what is clearly right.

Yours faithfully

Tom Evans

My response to the PIP consultation to reduce the points for aids and appliances

Iain Duncan Smith resigned this week, ostensibly over the plans announced by George Osborne to reduce the score for claimants who need to use some aids and appliances in Personal Independence Payment.

IDS implied that this was a new policy that had taken him by surprise.

This is odd because his department had announced such a policy in December 2015, and had made it clear that the initial plan was for a larger reduction than was ultimately agreed following the public consultation. In fact, the final proposal he apparently considered unconscionable was more generous than any of the five options offered in December.

This was my response to the consultation in December:-

Response to Consultation — Aids and Appliances in Personal Independence Payment

From the Welfare Rights Department of  --------

Issue one – the number of claimants scoring solely through aids and appliances

1.       We note that one of the concerns raised by the consultation is the number of claimants scoring all of their points through a need for aids and appliances. Our experience of PIP assessment reports suggests that this figure may be misleading because of a trend for assessors to favour the aids and appliances descriptors over descriptors indicating a need for help from another person, where both descriptors are met.

2.       At present the difference is frequently not material to the outcome, and where this is the case, goes unchallenged. Should the qualifying criteria be changed in any of the ways suggested, we would anticipate that a significant proportion of those presently being scored as needing only aids or appliances would have grounds to challenge the selection of the aids or appliance descriptor. An example would be a client of ours who could not cook and prepare food for himself safely (due to blackouts) being scored as needing an aid or appliance. Because he was happy with the overall award level, there was no need for him to challenge this descriptor.

3.       We would also note that Paul Gray’s Independent Review does not specifically raise this as an area of concern in the sense implied. The Review raised a concern that claimants might be awarded a scoring descriptor where they had chosen to use an aid or appliance but did not need to use one. This is a valid operational concern, as the PIP criteria already do not support an award in those circumstances. We do not consider that the Review was recommending any change to the qualifying criteria.

Issue two — the claimed broadening of the meaning of aids

4.       The consultation raises particular concern that the meaning of ‘aids and appliances’ has been broadened by upper tribunal decisions. We do not agree that this has occurred.

5.       The PIP2 form has acknowledged from the beginning that a perching stool is an aid or appliance, as did the 2012 consultation on the criteria, so it is clear that seats and chairs were intended to be included in the definition. Lighter pans are also mentioned specifically. The important question is whether the claimant needs to use the aid to achieve the relevant, fairly undemanding, daily activity and not whether they possess or have paid for one.

6.       We would also note that it was clear to the drafters of the regulations that ‘spectacles or contact lenses’ would come within the meaning of aids or appliances if not specifically excluded from Activity 8. The decision not to exclude chairs, perching stools, and other everyday devices was therefore a deliberate policy choice.

7.       In conclusion, we do not agree that this premise of the consultation is factually accurate.

Issue three — the assessment of extra costs

8.       One of the solutions raised by the consultation is to replace the daily living component with a lump sum payment to purchase aids and appliances. We consider that this reveals a misunderstanding of the concept of extra costs, which was perhaps prompted by a single sentence in Paul Gray’s Review.

9.       It is made clear in the 2012 consultation that the criteria for PIP are considered to be a proxy assessment of a representative cross section of the claimant’s functions:

38 The activities have been carefully selected to act as a proxy for participation, levels of need and likely extra cost. We have not sought to assess each and every activity an individual might perform on a daily basis but rather we have selected a range of activities which cumulatively act as a good proxy. For example, individuals who have difficulties dressing and undressing are likely to have difficulties in other areas that involve bending and reaching, while individuals who have difficulty preparing food are likely to have difficulties carrying out other activities that require manual dexterity.

10.   The intention appears to be that a claimant who has some difficulty bending and reaching, for example, should score under dressing to reflect this limitation in bending across daily life.

11.   The extra costs may come in an almost open-ended number of ways such as needing to have purchases delivered, to shop locally at higher cost, to pay for domestic help, gardeners, simple home maintenance, heating, extra living space, taxis et cetera; combined with probable reduced earnings and reduced opportunities for work. The PIP assessment is the proxy for qualification but is not an assessment of the amount of the costs.

12.   The Review (somewhat by the way) mentioned the low cost of purchasing some aids and appliances, and this appears to be have been taken up by this consultation in its claimed Illustrative Examples. However, PIP is not intended literally to reflect the cost of purchasing aids and appliances, but to reflect extra costs in general via a proxy assessment of functional difficulties. In the examples given, needing to sit to prepare a simple meal, breathlessness dressing, and needing to use a sink for support just to get off the toilet are indications of significant disability rather than direct financial costs. To suggest otherwise is to misuse the nature of the assessment within its own stated terms.

Issue four — the options

13.   In light of the above, we consider that options one to three are flawed as they are founded on mistaken premises that the rate of PIP is related to direct financial need arising from activities 1-12. (There would presumably be no equivalent mechanism under these options for people who can demonstrate that their direct financial costs from these activities are in excess of £139.75 per week to claim for these costs through PIP.)

14.   Options four and five are logically valid if the aim is simply to restrict the number of people who qualify by raising the bar. Provided this is openly acknowledged to be the aim, this may be a legitimate policy but will cause hardship. We would suggest that two of the stated changes in PIP: face to face assessments and regular reviews, have found more people to qualify than was assumed would be the case and that this should also be openly acknowledged for any changes to have a legitimate foundation.

15.   We would however urge for proper consideration to be given to an option of making no changes to the criteria, along with an acknowledgment that the original assumption that face to face assessments alongside regular reviews would lead to a large reduction in awards appears now to have been incorrect.

Beavis and Butthurt

The Court of Appeal has ruled in Parking Eye v Beavis that parking tickets issued by private companies are enforceable in many situations, despite being an example of a punitive contractual clause.

This is something of a personal disappointment for me. I have been arguing for years that private tickets were effectively a made up scam, and should not be paid. The idea that a private company can 'fine' you for not following its rules seemed quite distasteful. And the law seemed to be on our side, as even if the company could claim you made a contract to pay its 'fine', the law has traditionally not recognised as valid clauses that are punitive in nature. Therefore the idea that private companies were levying 'fines', without any power to do so whatsoever, and while giving the widespread impression that they did have such a power, all made me rather irate.

For the past ten years or so I have been raising awareness of the potentially dubious nature of tickets from private companies and trying to make people aware that they are not the same as tickets from councils or the police. I staked a certain amount of my reputation on it and have criticized the CAB and similar organizations int he past for not taking a strong line that people should not usually be expected to pay such charges.

So when Beavis was in the news last week, I initially felt what could be described as "an inappropriately strong negative emotional response from a perceived personal insult. Characterized by strong feelings of shame." I'd been misadvising people all these years. The people I had thought were scammers were found to have been right.

But I suppose something had to give sooner or later. The long-awaited and long-needed banning of private clamping in 2012 was partially driven by a compromise that some form of enforceable private ticketing system would take its place. It was certainly a compromise I would have agreed to. It was a strong message that the industry up until that point had been tainted by poor practice.

What was really needed all along was some certainty in the law, with safeguards, and on reflection I feel that the Beavis judgment is not all bad. Although technically the court 'declares what the law has always been', in practice it is making new law for the future. The judgment says that charges must be justifiable. The charges must be clearly displayed and there cannot be traps or pitfalls waiting. At a stroke, this final condition still leaves the tickets from the most prolific private parking operations based near to me unenforceable as they were mostly predicated on traps and pitfalls.

There is now some certainty in the law, which is vital to allow people to change their behaviour. There are also some reasonable safeguards.

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.

The DWP's Mandatory Reconsideration regulations may be legally flawed

It's been widely discussed that from the 28th October, the DWP can suspend a person's appeal rights against a benefit decision while it carries out a 'mandatory reconsideration'. This is particularly controversial in ESA cases, because it prevents a person getting emergency rate ESA until the reconsideration is completed. The change has widely been seen as unfair.

The primary legislation allowing this change is the newly inserted subsection 12(3A) of the Social Security Act 1998:-

(3A) Regulations may provide that, in such cases or circumstances as may be prescribed, there is a right of appeal under subsection (2) in relation to a decision only if the Secretary of State has considered whether to revise the decision under section 9.

As we can see, there is no automatic removal of immediate appeal rights. The DWP are talking as though the change is automatic for all new decisions after 28th October, but in fact the change applies only to 'such cases or circumstances as may be prescribed.' So for example, the Secretary of State may want to prescribe that the new procedure affects ESA cases decided after a certain date, but not DLA cases, and perhaps JSA cases after a different date.

Here's what the Secretary of State has purported to prescribe in the new regulation 3ZA of the Social Security (Decisions and Appeals) Regulations 1999:-

3ZA.— Consideration of revision before appeal

(1) This regulation applies in a case where—

(a) the Secretary of State gives a person written notice of a decision under section 8 or 10 of the Act (whether as originally made or as revised under section 9 of that Act); and

(b) that notice includes a statement to the effect that there is a right of appeal in relation to the decision only if the Secretary of State has considered an application for a revision of the decision.

(2) In a case to which this regulation applies, a person has a right of appeal under section 12(2) of the Act in relation to the decision only if the Secretary of State has considered on an application whether to revise the decision under section 9 of the Act.

 

I think there might be a fundamental problem with this thanks to the Supreme Court’s very recent decision in Reilly and Wilson (the Poundland case). I quote from that judgment:-

The courts have no more important function than to ensure that the executive complies with the requirements of Parliament as expressed in a statute. Further, particularly where the statute concerned envisages regulations which will have a significant impact on the lives and livelihoods of many people, the importance of legal certainty and the
impermissibility of sub-delegation are of crucial importance.

Where Parliament in a statute has required that something be
prescribed in delegated legislation, it envisages, and I think requires, that the delegated legislation adds something to what is contained in the primary legislation. There is otherwise no point in the requirement that the matter in question be prescribed in delegated legislation. However, the description of the Employment, Skills and Enterprise Scheme in the 2011 Regulations adds nothing to the description of such schemes in the Act.

[all my emphasis]

This is very similar to what has been done again here. The Act requires that cases or circumstances be prescribed, but this has not really been done. The regulation purports to grant the Secretary of State complete discretion as to whether to impose the restriction in any particular case, and the upshot of Reilly seems to me to be that this is not a permissible ‘prescribing’ of circumstances. It is not as if there is another rule somewhere laying down when the statement described in 3ZA(1)(b) can or cannot appear: there isn't.

What has effectively been 'prescribed' is that  the new procedure applies when the Secretary of State says it does. Or to look at it another way, reg 3ZA has purported to prescribe how the new procedure is to be communicated, rather than the cases or circumstances when it applies.

Furthermore, the DWP seem to have just decreed that such statement will appear in all cases after 28th October. But if there is a discretion, as there seems to be, it is very doubtful that such a blanket rule is a lawful exercise of that discretion. Having prescribed that discretion, the Secretary of State should now be judiciously considering when it is appropriate to exercise it.

In conclusion, I believe that the new regulation is unlawful in the same way as the Poundland case regulations were found to be. My colleagues and I will be looking at options for challenging its application.

Why ATOS are getting it wrong: Part 4 - Fallacies and starting positions

4.Base rate fallacy, prosecutor's fallacy, and neglecting the claimant's history

When a claimant arrives for an ATOS assessment, the assessor pretty much seems to view them as a blank slate with no history. So a person who has been disabled or ill and on incapacity benefit or ESA for many years starts from a position of no points he same way as someone who has only just claimed.

The first reason this is problematic is due to the way the criteria for ESA are now so stringent, that even someone who is clearly very disabled indeed only just scrapes through. This is especially likely to be the case if their functional problems are limited to just one area. The maximum that person can score is 15 points and the number of points they need is also 15. In other words there is no margin for error at all. But as with anything in the real world, there will inevitably be an error rate. As I discussed in an earlier post, if your error rate for a given assessment is 10% (which seems generously low) then this approaches 100% if you reassess the same claimant enough times.

This leads to the second problem. By its very nature, it is likely that most people on ESA will be entitled to it. This is because they need to, and have probably been advised to, claim it. They've also got through the initial claim stages, and have been signed off work by a doctor. They're therefore a self-selected sample. Although most people in the population are not entitled to ESA, the vast majority of them are also not claiming it. The confusion arises when assessors see claimants as no more likely to meet the criteria for ESA than any other member of the population, so start from a position that the person being assessed will likely fail. This is a form of the base rate fallacy, and biases the assessment. It's also a form of the prosecutor's fallacy.

Consider another example: you know that only 5% of teapots are valuable. 95% are worthless. You train as an assessor of teapots, and are asked to assess the teapots in someone's collection. Let's assume in this scenario that assessing teapots on appearance is possible, but notoriously difficult and you know you will often get it wrong.

What are the most important things you need to know about each of the teapots you assess?

• Its history - The process by which it got into that collection.
• What previous assessments were made of it that got it there?
• What evidence was used in those assessments?
• How reliable is that evidence?

The answers to these questions radically alters the likelihood that you should trust your own judgment that a given teapot appears at first glance to be valuable or not. And the odds that a given teapot in someone's collection will be worthless are most definitely not 95%.

Do ATOS assessors understand these issues? What do you think?

The solution

It's really quite easy. When a claimant is being re-assessed, they start with the number of points they were given at the previous assessment (including any appeal). Points can be added or removed, but the change must be specifically identified, and evidenced, in enough detail. Likewise, if someone was previously put in the support group, they start in it in the same way. This should have the effect of focusing the assessor's mind better onto what should be reasonably expected in that case.

This might not solve all the other problems but it should massively reduce the error rate caused by constant re-assessment. It should also satisfy IDS and Grayling's desire not to 'write people off', misguided as that is.