Tag: Clause 99

As predicted, Mandatory Review has effectively destroyed independent Tribunals

IDS_nSection 102 and Schedule 11 of the Welfare Reform Act, (Clause 99) is the (State) power to require revision before appeal. People who wish to challenge a benefit decision will no longer be allowed to lodge an appeal immediately. Instead, the government introduced mandatory revision or review stage, during which a different Department of Work and Pensions (DWP) decision maker will reconsider the original decision and the evidence and, if necessary, send for more information.

Many of us have campaigned since 2012 to raise awareness of Clause 99. During the Consultation period, I wrote a set of responses to the government’s proposals, which many people used as a template for their own responses.  I remember that we ALL RAISED THE SAME CONCERNS.

In summary, the main concerns were that basic rate Employment Support Allowance was to be withdrawn during the mandatory review period, leaving sick and disabled people with no money to live on, whilst the DWP reconsidered their own “fit for work decisions” that were wrong.

I know that our consultation responses were ignored by the government. The changes were introduced anyway, despite our grave concerns. Since October 2013 people have to apply for mandatory review separately before they can lodge an appeal. We were also very worried that no time limit was established for the DWP to undertake and complete the mandatory review. Our concerns were fully justified, as it’s emerged that people are waiting 7-10 weeks for the mandatory review decision. Meanwhile, these people cannot appeal. And have no money to live on.

An added concern is that this system as it stands demands such a lot from people who may be very vulnerable, seriously ill and/or have mental health problems. Their difficulties are exacerbated by cuts in legal aid for welfare rights advice and cuts in local authority grants. There is a significant contraction of the availability of help for those who need it the most from advice agencies.

A Benefit Sanctions Briefing was released on 18 February 2015 by the Department of Work and Pensions, comprising of an update of sanctions statistics up to the end of September 2014, and for the first time it also included the outcomes of Mandatory Reviews (or sometimes called “reconsiderations.”)

Dr David Webster, Senior Research Fellow at Glasgow University, said: “The Mandatory Reconsideration system (MR), introduced on 28 October 2013, has fundamentally changed the whole appeal process, introducing additional steps and a new Jobcentre Plus structure. MR has cut the proportion of Job Seekers Allowance sanctions which are challenged by claimants from about one third (33%) to about 20-25%. Employment Support Allowance sanction challenges have returned to below their pre-MR level, at about 45%.

The independent element in the system offered by Tribunals has been effectively destroyed, completely in the case of Employment Support Allowance and almost completely for Job Seekers Allowance, where only 0.14% of sanction decisions are now being taken to a Tribunal.

MR has had no overall impact on the proportion of Job Seekers Allowance sanctions overturned, which remains at about 13%. But the proportion of Employment Support Allowance sanctions overturned has fallen from about 35% to about 20%.

The most disturbing possibility is that Employment Support Allowance claimants’ medical conditions are rendering them unable to cope effectively with the phone calls made to them by DWP officials at home during the MR process.”

He also said: “Job Seekers Allowance (JSA) Reconsiderations and Appeals: The revised DWP statistics show much lower claimant success rates at both internal DWP reconsideration and Tribunal appeal. However, success rates for the few who appeal to a Tribunal have risen and successful Tribunal appeals are at an all-time high. For a claimant prepared to go all the way in the appeal process, the probability of overturning a sanction is now 51%.

Employment Support Allowance (ESA) claimants have higher success rates than JSA claimants at reconsideration and appeal.

In 2013 their reconsideration success rate was 56.1% and their appeal success rate was 26.1%. A higher proportion of ESA claimants than JSA claimants ask for reconsideration. This proportion has been rising rapidly, from below 10% up to March 2011, to over 40% during 2013.

The proportion appealing to Tribunals is lower, only about 1%. In 2013 there were 8,428 reconsiderations or appeals where the claimant was successful in overturning an ESA sanction.

The big surge in ESA sanctions during 2013 was due to penalties for failure to participate in work-related activity. By December 2013 this reason accounted for 87% of ESA sanctions, the other 13% being for failure to attend a work-related interview.

This is in contrast to the experience under the Labour government, when the only reason for sanction was failure to attend an interview [without good reason], and there were no sanctions in relation to work-related activity.

Dr David Webster has submitted evidence to the House of Commons Work and Pensions Committee Inquiry into benefit sanctions.

Many of the key issues with the mandatory review can be seen summarised herehere and here. Sheila Gilmore and Dame Anne Begg have covered these extensively during the ongoing Work and Pensions Committee ESA inquiry, as well as during the course of the many separately tabled debates.

Clause 99 – Mandatory Review – was undoubtedly introduced to make appealing wrong decisions that we are fit for work almost impossible. Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, dehumanising, undignified and grossly unfair system of “assessment” is being hidden.

It also hides the crass unfairness and terrible consequences of Tory draconianism – the using of behavioural modification techniques in the form of benefit sanctions that have now been integrated into welfare “conditionality” criteria, and imposed on people who are already struggling materially, some of who are sick and disabled.

Most of those people claiming benefts do so through no fault of their own. To punish people by removing all of their income – and thus their only means of meeting basic survival needs – so arbitrarily, is obscene in a so-called civilised society.

The only way for a tiny group of people to become obscenely rich is for huge masses of others to be kept chronically poor. The tories have spent five years lying to us about who “deserves” what, but the bottom line is this: almost every tory policy has intentionally resulted in money being taken from the poorest or money being handed to the [already] wealthiest and most powerful. (See: Follow the Money: Tory Ideology is all about handouts to the wealthy that are funded by the poor and ‘We are raising more money for the rich’ revisited: some thoughts.)

Related

Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals

Clause 99, Catch 22 – State sadism and silencing disabled people

Clause 99, Catch 22 and Penning is telling lies

The New New Poor Law

Sanctions misery for tens of thousands of families this Christmas

Pregnant and sanctioned just in time for christmas… Sanctioned and frozen to death….The latest news from Ashton Under Lyne Jobcentre.

Rachel Reeves promises to remove benefit sanction targets with a Labour Government

Government under fire for massaging unemployment figures via benefit sanctions from Commons Select Commitee

Benefit sanctions are not fair and are not helping people into work

Rising ESA sanctions: punishing the vulnerable for being vulnerable

430835_148211001996623_1337599952_n (1)Many thanks to Robert Livingstone for the memes.

Freedom of Information tribunal on benefit deaths – April 23

tory cuts
That we live in times when a government can withhold information about the impact of its policies on sick and disabled people, the poorest and the vulnerable is extraordinary, and certainly reflects the fact that we are no longer a democracy.

We knew in 2012 that an average of 73 sick and disabled people were dying after they had their lifeline benefits withdrawn. But now the government refuses to provide us with information about deaths since then. It’s my own belief that this refusal is because the truth will be horrifying and that even those that supported benefit cuts originally will raise their objections when they learn the truth. We cannot claim to be a civilised society when our government policy is killing some of our most vulnerable citizens.

Well done Mike Sivier, for standing up against an increasingly authoritarian government, and good luck from your fellow campaigners.

From Vox Political: Freedom of Information tribunal on benefit deaths – April 23.

“The only way the public can judge whether this has worked, or whether more must be done to prevent unnecessary deaths, is by examining the mortality statistics, but these have been withheld”. 

Yes, just like the toxic clause 99 – mandatory review – silences those wishing to appeal, also hiding evidence from the public eye. The Tories are showing form here.

 In a so-called democracy, ALL campaigning is both essential and part of an inbuilt safeguard against authoritarianism.

Vox Political: Case proven? Government stays away from benefit deaths tribunal

Related:

The ESA ‘Revolving Door’ Process, and its Correlation with a Significant Increase in Deaths amongst the Disabled.
Briefing on How Cuts Are Targeted – Dr Simon Duffy

The Coming Tyranny and the Legal Aid Bill.

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“Ministers keep using the mantra that their proposals are to protect the most vulnerable when, quite obviously, they are the exact opposite. If implemented their measures would, far from protecting the most vulnerable, directly harm them. Whatever they do in the end, Her Majesty’s Government should stop this 1984 Orwellian-type misuse of language.”  – Lord Bach, discussing the Legal Aid Bill.

Source: Hansard, Column 1557, 19 May, 2011.

The Ministry of Justice’s “reforms” (Tory-speak for cuts) to legal aid undermine the fundamental principle of legal equality and violate Article 6(1of the European Convention of Human Rights: the right to a fair trial. They reflect a truly authoritarian agenda of legislative tyranny: the reforms effectively remove legal access for many, crucially that access ultimately safeguards individual liberty against intrusion by the State, and protects us from despotic abuses of authority.

The cuts will seriously undermine access to justice and sidestep the obligation of Government accountability. The cuts will affect the most disadvantaged and vulnerable in society and allow unlawful and unfair public body decision-making to go unchallenged.

The Equality and Human Rights Commission’s analysis in 2012 warned that reducing the scope of legal aid in a substantial number of areas in civil and family law will create serious practical barriers to access to justice, potentially in breach of Article 6(1) of the European Convention on Human Rights (ECHR).

The cuts to the civil legal aid budget, which came in to effect from April 2013, mean many cases, including those about debt, private family law, employment, welfare benefits, clinical negligence and housing problems are no longer eligible for funding.

This is at a time when the Government have implemented other radical, controversial and contentious cuts to health, education and welfare, and it is no coincidence that the legal aid Bill will curtail justice for those with legitimate needs at a time when draconian Tory policies such as the bedroom tax will most likely result in a massive increase of numbers of people needing and seeking redress.

This will mean the compounding of effects of other fundamental  human rights breaches, legally unchecked, because of the profound impact of multiple, grossly unfair and unjust Tory-led policies. Each policy hitting the same group of citizens, to their detriment, over and over.

This sends out a truly worrying message to those of us who believed we lived in a first world liberal democracy  (one that has recognition of  individual rights and freedoms embedded in its Constitution, and one in which decisions from direct or representative processes prevail in State policies.) The promotion of equal opportunity to legal justice is the bedrock of a free and democratic society. It ought to be inclusive of all who cannot afford to be tried fairly. The reality is only a few can afford the legal costs to enforce contracts and against criminal prosecution. This profoundly unjust inequality is not something we expect to see in a Country which was once a beacon of Western liberty.

Even if we were to take a Conservative perspective, it’s still the case that the only way to wed the principle of a “pursuit of economic liberty” with wider justice is by a basic notion of equality before the law, through the equal access to justice. This means that the State must fund the means of contract enforcement and free and fair trial legal costs, for those who cannot afford it. If the State fails to fulfil this contingent function, then we simply cease to be free.

“Legal aid will continue to be provided to those who most need it, such as where domestic violence is involved, where people’s life or liberty is at stake or the loss of their home. But in cases like divorce, courts should be a last resort, not first. Evidence shows that mediation can often be more successful and less expensive for all involved.”  –  Chris Grayling.

Section 10 of LASPO (Legal Aid, Sentencing and Punishment of Offenders Act 2012) provides the new Director of legal aid casework with the power to provide ‘exceptional funding’ for cases that are out of scope. Part 8 of the Civil Legal Aid (Procedure) Regulations 2012 indicates that providers of legal services will not have delegated powers to grant exceptional funding. Instead, an application must be made to the Director for an ‘exceptional case determination’.

Section 10(3) of LASPO states that an exceptional case determination is a determination:
a) that it is necessary to make the services available to the individual under this part because failure to do so would be a breach of:
1) the individual’s convention rights (within the meaning of the Human Rights Act 1998), or
2) any rights of the individual to the provision of legal services that are enforceable EU rights, or
b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

This misses a very crucial point: it’s very dangerous to allow the State to decide which cases constitute the most need. In a free, democratic and fair Society, each and every single individual has equal legal worth and entitlement to opportunity to bring about legal justice. The Government choosing which cases are most “worthwhile” undermines this very premise of legal equality which is so fundamental to the notion of liberty. Everybody has a right to take any grievances they have, which have invoked legal ramifications, to court. Everybody ought to have an absolute, inalienable right to free and fair trial in a free, democratic and liberal country.

Having cut the civil legal aid budget by £320m, the Ministry of Justice proposes to cut the criminal legal aid budget by a further £220m. Legal contracts are to be based on competitive tendering. One of the outcomes of the reform and cut to the budget is that defendants on legal aid will no longer be offered a choice of solicitor.

One of the most unfair aspects of this system is that if you are charged, the State will select a prosecutor with specialist experience in that area of the law, funded by the taxpayer. Be it a sexual offences case, a road traffic death, a murder, a drugs case or a serious assault, in each case, a prosecutor will be picked to prosecute you from a specialist team.

But when it comes to your defending yourself, however, you will be given no choice. You will either have the defence lawyer allocated by the State or you will be on your own. This cannot be right. Many legal experts have voiced their alarm at this, because it will  invariably lead to gross injustices.

Large commercial firms who are going to be paid, win or lose, will have a vested interest to encourage their clients to plead guilty, whether they are or not. At a time when people are at their most vulnerable they need a local service that listens, not a business, whose goal will be to turn around the case as fast and cheaply as possible.

The scope for dangerous consequences due to vested interests in the justice system following Justice Secretary Chris Grayling’s “reforms” is considerable, and allows potential for further erosion of legal freedom. In some cases,  the sole choice of lawyer for a defendant via legal aid will also be a representative for the organisation with an interest in ensuring a prosecution. The  tendering process – where the cheapest bid wins – would be run by companies with no record of providing legal services, resulting in a dumbing down of the profession and a race to the bottom that will mean citizens being denied access to quality legal aid.

As is always the case when private companies that are driven solely by the profit motive are involved in any service, cases will be run on the cheap by under-qualified, inexperienced, low-cost staff. The company Serco, for example, provides prison security guards. Serco is one company bidding for the legal contracts with the Legal Aid Agency. The Department of Justice has proposed to remove defendants’ automatic right to select their own solicitors to make the contracts to bidders more profitable.

I have no doubt that the Coalition wants to see access to justice removed for those affected by its nightmarish, dystopian policies. Those people affected most of all are some of our most vulnerable citizens, as the cuts have been disproportionately aimed at the poorest, at sick and disabled people, and those who are unemployed. Injustice increases and extends vulnerability, especially for those groups of people already experiencing marginalisation.

We need look no further than Clause 99 of the welfare “reform” Act to see how silencing those seeking redress is a priority for this Government. This is also about hiding the evidence of the dire consequences of the “reforms”, since large numbers of successful appeal outcomes highlight, for example, that the Work Capability Assessment (WCA) is grossly unfair and widely inaccurate. Yet despite almost 11,000 deaths, many of which have been attributed to the stress of the assessment process itself, and to people being wrongfully assessed, the Government have not even instigated an inquiry into the WCA. Had an auto-mobile been associated with such a high number of deaths, it would have been withdrawn. Yet we still have the WCA, and incredibly, no willingness for an investigation from our perennially indifferent Tory-led Government.

Those wishing to appeal wrongful decisions by Atos/The Department of Work and Pensions (DWP) that they are “fit for work” after having their Employment Support Allowance (ESA) unfairly  removed will find that this will be an almost impossible task, since their right to legal aid has been removed. The introduction of the  Mandatory Review in Clause 99 will mean that they have to wait an indefinite period without any ESA sickness benefit, or claim Job Seekers Allowance (JSA), whilst waiting for the DWP to conduct the review, with no time limit imposed on the DWP to do so.

That means signing on and declaring that you are fit  for work, and people are being told by the DWP, unbelievably, that they don’t qualify because they are not fit, or fully available for work. Others have been told that to claim JSA they need to close their ESA claim which means they cannot appeal a review decision. Basic rate ESA is exactly the same amount of money as JSA, so the Government cannot even claim this is a cost-cutting move.

And we also know that Atos are contracted by the Government to make “wrongful” decisions. 

The right to a lawyer of a persons’ choice, regardless of your income, race, gender or nationality, is an underpinning condition of a free and fair justice system. Having both a sense of, and access to choice over one’s legal representative, who is there to fight for justice is paramount to basic legal equality and liberty. When this choice is removed and legal representation is essentially imposed on a passive defendant by the State (if a defendant can still access legal aid at all, that is,) our justice system becomes unacceptably authoritarian.

And it has.

Further reading:

Guidance on the exceptional funding regime

The Public Law Project scheme to assist people with making exceptional funding applications

Government lawyers warn Justice Secretary Chris Grayling over proposed ‘unconscionable’ changes to legal aid

Cutting Legal Aid – the surest way to threaten Justice 

John Finnemore on The Now Show, discussing the injustice of the Legal Aid Bill

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Update
A response to this article from the International Human Rights Commission: “The IHRC strongly condemned the Bill and asked the UK Government to consider this action, which is against the norm of human rights”.

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Pictures courtesy of Robert Livingstone – many thanks for his excellent artwork

Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals

552733_435687149834152_88095195_nSection 102 and Schedule 11 of the Welfare Reform Act, (Clause 99) – Power to require revision before appeal.

If anyone left in doubt that this Government’s policies are grossly unfair, and are intentionally punishing sick and disabled people – some of whom are amongst the most vulnerable of our citizens – you need look no further than Clause 99 for verification. Currently, claimants who are found fit for work can continue to receive Employment Support Allowance (ESA) at the basic rate by immediately lodging an appeal if they think the decision is wrong. ESA will then remain in payment until the appeal is decided.

That is all set to change, however, under Clause 99 of the Welfare Reform Bill, intended to be effective from April 2013 – and according to the Department for Work and Pensions, from October 2013 that includes ESA and DLA decisions. Under the new rules, claimants who wish to challenge a benefit decision will no longer be allowed to lodge an appeal immediately. Instead, there will be a mandatory revision or review stage, during which a different Department for Work and Pensions (DWP) decision maker will reconsider the evidence and, if necessary, send for more information, before deciding whether to change the original decision.

There will be no time limit on how long this process may take. The requirement for a mandatory review/revision before proceeding with appeal applies to all DWP linked benefits. During the review, no ESA will be payable, not even the basic rate. However, once the review is completed, those wishing to appeal may claim basic rate ESA again, up until the tribunal. It’s important that people know to request this continued payment from the DWP, once they have lodged their appeal. 

The ludicrous claim from Government is that this “simplifies” the appeal process, and  “the changes will improve customer service by encouraging people to submit additional evidence earlier in the process to help improve decision making. Resolving any disputes without the need for an appeal will also help ensure that people receive the right decision earlier in the process.”

Call me a cynic, but I don’t believe this is the genuine reasoning behind clause 99 at all. The successful appeals to date provide a growing and substantial body of evidence that the Work Capability Assessment isn’t fit for purpose. People are being wrongfully denied their claims for ESA. Mandatory review will make it very difficult for people to continue with an appeal, since their lifeline income will end for an indefinite period until the review is completed and they can proceed with appeal.

You will also have to appeal directly to HM Courts and Tribunal Services, this is known as “direct lodgement,” as DWP will no longer lodge the appeal on your behalf. DWP has agreed with the Tribunal Procedure Committee to introduce time limits to stipulate how long DWP has to respond to an individual appeal. The DWP is currently discussing what these time limits might be with the Tribunal Procedure Committee. That is assuming, of course, that people manage to circumnavigate the other consequences of this legislation.

From 1 April 2013 you will not be able to get Legal Aid for First-tier Tribunal hearings. Legal Aid will still be available for appeals to the Upper Tribunal and Higher Courts. See appealing to the Upper Tribunal against a first tier tribunal decision here: legal aid act 2012 for more information. So much for the right to a fair hearing.

There are some serious implications and concerns about these changes. Firstly, there is no set time limit for DWP to undertake and complete the second revision. Secondly, claimants are left with no income at all whilst they await the review, and until appeal is lodged. The DWP have stated that there is “no legal reason” to pay a benefit that has been disallowed during the review period. The only choice available seems to be an application for Job Seekers Allowance. (JSA) or Universal Credit. However, we know that people in situations where they have been refused ESA have also been refused JSA, incredibly, on the grounds that they are unavailable for work, (and so do not meet the conditions that signing on entails) or they are unfit for work, because they are simply too ill to meet the conditions. We know of people who have had their application for JSA refused because they attend hospital for treatment once a week and so they are “not available for work” at this time. Furthermore, the minimum waiting period for a new claim to be processed is 6 weeks. That’s 6 weeks with no income at all.

Moreover, there is some anecdotal evidence of people being told by the DWP that in order to claim JSA, they must first close their original claim for ESA, since it isn’t possible to have two claims for two different benefits open at the same time. DWP are also telling people that this means withdrawing their ESA appeal.

Another grave concern is that although most people on income related ESA are automatically passported  to maximum Housing and Council Tax Benefit, from the time that the claim ends, (and for whatever reason), eligibility to housing benefit and council tax also ends.

However, I would urge people in this situation to contact the Housing Benefit office promptly to explain the situation – the DWP automatically contact the Council to tell them when someone’s eligibility for ESA has ended. It is always assumed that the person claiming has found work when their DWP related benefit eligibility ends.

You can still claim for Housing Benefit and Council Tax Benefit because you have a low income, or nil income, but you will need contact the Benefits Section, and will need bank statements to demonstrate that this is true, and also, any other evidence you may have, such as your notification letter from DWP, evidence of your tenancy and ID.

You may also apply for discretionary housing payments if you are likely to become homeless, and if there is a shortfall between your Housing Benefit, and rent costs. It’s also payable sometimes when you have legal costs. It’s certainly worth asking your Local Authority if you qualify for payment. There are limited funds available.

I am informed that when an appeal is pending, providing the Housing Benefit Office is informed of this, there should be some support towards rent and Council Tax. However, this is going to place further strain and difficulty on people who are ill and disabled. Housing Benefit is calculated by taking the work activity or support component of ESA into account, and currently, when basic rate ESA is payable up to appeal, some claimants are not necessarily eligible for the maximum Housing Benefit awards.

It’s therefore possible that Housing Benefit entitlement will be lower, with no basic rate ESA being payable after April 1st. I would urge people to contact their Local Authority as soon as you know your ESA award has ended, because otherwise they will simply close your Housing Benefit and Council Tax claim.

The FOI.

I can confirm that there was no risk analysis or risk register in respect of clause 99 of the Welfare Reform Bill. I sent an FOI to DWP that asked about these issues, together with questioning that Clause 99 contains no reference to a time limit on ESA reconsiderations, although it makes them mandatory. I asked :-

1) When is the intended implementation date?

2) As yet no decisions have been made regarding ESA payment levels
during the reconsideration period which could be indefinite. Can you
give an assurance that this will be announced BEFORE
implementation?

3) What data will you collect so that the effects of this
legislation can be accurately analysed subsequently?

4) Where are the risk assessment, impact analysis and risk register
that show the effect this will have on claimants whose benefit
payments could be affected indefinitely?

The response informed that the planned implementation date is April 2013, and “the DWP will conduct a  formal public consultation in line with the Government’s code of practice on consultation. This does not include publishing a risk register or conducting a risk analysis. This is because all aspects of the proposed changes are considered during the consultation process and in the impact assessment and equality impact assessments related to the changes”. There are no plans to introduce a time limit, or to retain payments of basic rate ESA throughout the second revision and leading up to appeal.

The DWP published consultation document “Mandatory consideration of revision before appeal” that could be accessed via the DWP web site under the heading “Consultations”. The consultation concerned issues relevant to the implementation and operation of the appeals reform provisions in the Welfare Reform Bill and invited comments on the draft regulations. I worked on raising awareness regarding the issues that the Government’s draft raised, as well as prompting and garnering responses to the consultation.

I can also confirm that the Government response to the consultation did NOT take into account any of the concerns we raised collectively, in particular, regarding the lack of a time limit on the DWP to produce the mandatory review, and the withdrawal of basic rate ESA to those awaiting the review outcome .

So, the consultation was evidently a sham, nothing more than paying lip service to an increasingly perfunctory democratic process. Given that basic rate ESA is exactly the same amount per week as JSA, we need to ask ourselves why the  Government have withdrawn the ESA safety net for those wanting to appeal DWP decisions that they are fit to work. Why introduce another layer of DWP bureaucracy to the appeal process, and why is it the case that there is need for a second revision, if the first response is based on robust procedure and decision making, and yields accurate and fair outcomes?

Of course we know that the outcomes are neither fair, accurate, or based on robust decision making. We know that some 40% of appeals for ESA were successful in 2011 and that this percentage rose to around 80% when claimants had representation at appeal. That is pretty damning evidence against this Governments’ claims that the system is working, and that many disabled people “can work”.

It’s likely that Clause 99 has been introduced to make appealing wrongful decisions that we are fit for work almost impossible. Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, dehumanising, undignified and grossly unfair system of “assessment” is being hidden.

More than 10,600 people have died and this presents a significant statistical increase (from 310 deaths over the same period amongst incapacity benefit claimants) that correlates with the current system, and it is astounding that our Government have failed to address this. Instead, they have made the system even more brutal, dehumanising and unfair. Clause 99 is simply an introduction of an additional obstructive layer of Kafkaesque bureaucracy to obscure the evidence of this. This Government is oppressive and certainly bears all of the hallmark characteristics of authoritarianism.

We need to be pressuring the government for the introduction of a time limit (on both legal and humanitarian grounds) as currently there is none. I did enquire to see if DWP had any internal rules or guidelines yet regarding a time limit but so far they have not. We also need to be pressuring for basic rate ESA to continue. That was a major part of the consultation response, too.  Meanwhile, legal challenges to this unfair and totally unacceptable addition to the Welfare Reform Bill will be going ahead.

Government’s response to the public consultation.

The DWP published a short mandatory consideration of revision before appeal – Government interim response to public consultation which stated that the Department did not propose to make any significant changes to the draft regulations included in the consultation document as a result of the comments received.

The Government’s final response to the consultation included the following:

  • There is to be no time limit for the completion of mandatory reconsideration of decisions.
  • No decision has yet been made with regard to paying ESA pending reconsideration but other benefits may be available to claimants where ESA has been disallowed.
  • It was confirmed that housing benefit and council tax benefit will not be included in the mandatory reconsideration process.
  • Where a person makes a late application for revision, the Department will be removing the requirement that an application for revision cannot be granted unless it has merit, and removing the regulation which requires that, in deciding whether an extension of time is reasonable, the decision maker cannot take into account the fact that the individual misunderstood the law or was ignorant that they could request reconsideration.

In considering a late application for revision, the decision maker will look at whether it is reasonable to grant the application for an extension of time, and what the circumstances were that meant that the application could not be made within the one month time limit.

The decision maker will still consider whether an any time revision can be made, or whether the decision should be superseded when considering a late application for revision as they do now.

Where a request for reconsideration is made out of time, and the decision maker refuses the application to revise the original decision, the effect of the draft regulations is that there can be no appeal as the Secretary of State must consider whether to revise the decision before an appeal can be made.

Update: No basic rate ESA will be payable whilst people await the mandatory review, to challenge wrongful decisions. No appeal can proceed until that has been done by DWP, there is no time limit on DWP to undertake the review.

Lord Freud speaking in the Lords about  basic rate ESA an the mandatory review :-

I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard; this is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. So there will be a gap in payment. In that period—and I repeat that applications will be dealt with quickly so that this is kept to a minimum—the claimant could claim jobseeker’s allowance or universal credit. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.”

Later he said:

Under the current position, there is a voluntary process whereby people can go for reconsideration and the ESA is not payable until the decision is taken to go formally to an appeal.”  Lord Freud (Source: Hansard)

GL24  and Appeal information.

From April, you will need to send your GL24  appeal form (DWP leaflet “if you think our decision is wrong”) or a letter directly to HM Courts and Tribunal Services.

How to appeal by letter.

. The appeal must contain:

  • the appellant’s name, address and National Insurance number
  • enough information to identify the decision under appeal (benefit claimed and date of decision);
  • the grounds for the appeal;
  • if late, the special reasons for lateness and/or why the appeal has a good chance of success;
  • the appellant’s signature (or the signature of a person with written authority to act on their behalf).

Update: Guidance on revision and handling appeals for benefits
Note 3: The guidance comes into effect
from 8.4.13 for PIP and from 29.4.13 for
UC, JSA and ESA.

Decision Makers should note that mandatory reconsideration is being
introduced from:
8.4.13 for PIP
29.4.13 for Universal Credit
28.10.13 for JSA and ESA.

However, we are still hearing about cases where the mandatory review is being used already, and this ought to be challenged on the grounds that DWP have provided dates when clause 99 is to be implemented, and so ought to be working to that legal timetable.

The revision process applies to:
1. UC, PIP, JSA and ESA
2. decisions on credits
http://www.dwp.gov.uk/docs/adma3.pdf

Further reading:

Further information from Rethink

ESA – Appeal statistics – before the MOJ spin!

Who is accountable and legally liable for the well-being of those deemed “fit for work”?

Step by step guide to appealing a ESA decision: Good Advice Matters

Sign the WOW petition – a call for a Cumulative Impact Assessment of all cuts and changes affecting sick & disabled people, their families and carers, and a free vote on repeal of the Welfare Reform Act.

It’s a call for an  immediate end to the Work Capability Assessment, as voted for by the British Medical Association.

Consultation between the Depts of Health & Education to improve support into work for sick & disabled people, and an end to forced work under threat of sanctions for people on disability benefits.

An Independent, Committee-Based Inquiry into Welfare Reform, covering but not limited to: (1) Care home admission rises, daycare centres, access to education for people with learning difficulties, universal mental health treatments, Remploy closures; (2) DWP media links, the ATOS contract, IT implementation of Universal Credit; (3) Human rights abuses against disabled people, excess claimant deaths & the disregard of medical evidence in decision making by ATOS, DWP & the Tribunal Service.

Help –  potential sources of funding from Charities and Trusts that help people out of poverty and debt:
United Utilities
3000 benevolent funds
Directory of National food banks
Representing yourself in Court

The LawWorks Clinics Network is a nationwide network of free legal advice sessions which LawWorks supports. Clinics provide free initial advice to individuals on various areas of law including social welfare issues, employment law, housing matters and consumer disputes – List of LawWorks clinics

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” –  Article 6 of the European Convention of Human Rights, and Article 10 of the Universal Declaration of Human Rights.

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Pictures courtesy of Robert Livingstone


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