Section 102 and Schedule 11 Welfare Reform Act 2012 – Power to require consideration of revision before appeal
Section 102 and Schedule 11 of the Welfare Reform Act 2012 legislate for the following changes to the Employment and Support Allowance (ESA) and Disability Living Allowance (DLA) appeals process:
Under the new rules, due to be implemented from April 2013, claimants who wish to challenge a benefits decision will no longer be allowed to choose to lodge an appeal immediately.
Instead, there will be a new requirement for claimants to request a revision of the original decision from the Department for Work and Pensions (DWP) and have that request determined before launching the right to appeal to an independent tribunal.
Only once the decision maker has either issued a revised decision, or decided that they cannot revise the decision, will the claimant be able to lodge their appeal.
There will be no time limit on how long this process can take.
DPAC is very concerned at the harmful impact these changes will have on many claimants:
The new bureaucratic tier in the appeal system has the potential to cause confusion for many claimants and lead them to make the wrong appeal to the wrong people at the wrong time, leading to inevitable problems with the payment of their benefits. Some disabled people may even withdraw from the appeals process altogether. The current appeal system is already a highly stressful, time-consuming process, resulting in considerable instability in many people’s lives and finances. The addition of a mandatory review stage, with all the attendant uncertainties, can only exacerbate these problems. DPAC is not convinced that the addition of a mandatory revision stage will in any way increase the efficiency of the system.
This problem will be heightened by the fact that there is no statutory time limit for the revision stage. This could lead to indefinite delays to the process while the DWP revises the decision. There is already no time limit in the current system, so adding another stage can also maximise delays, with, once again, a corresponding adverse impact on the health and well-being of the claimant. This could be alleviated if there was a maximum set period for the review process. This would at least provide the claimant with some level of certainty.
Around 40% of all WCA appeals are currently successful with 70% sucessful with representation which is a damning indictment of the quality of ATOS Healthcare’s initial assessment. Tragically and scandalously, many people who have initially been found fit for work have actually died before the appeals process was completed. With the extension of the time frame for appeals that this change will introduce, and no perceivable improvement in the WCA itself, this number can only rise even further.
It is also unclear how the new process will deal with the payment of ESA during the new mandatory revision stage. Currently, a claimant appealing against a decision that they do not have a limited capability of work is able to continue to receive ESA at the assessment phase rate pending the outcome of their appeal. However, if the ESA Regulations are not amended, the position would be that claimants would have to claim Jobseeker’s Allowance (JSA), and therefore comply with all the conditions associated with receipt of that benefit, or face receiving no benefit at all. Many claimants with severe conditions would simply be unable to fulfill the JSA conditions and therefore face a very real prospect of destitution. This would be inhumane and lead to a catastrophic increase in the amount of distress, poverty and debt many disabled people already suffer from. The Government should therefore, as a matter of urgency, provide clarification on whether it intends to allow ESA claimants to continue to receive ESA at the assessment rate while they undergo the mandatory revision stage.
The fundamental problem is that the WCA process is itself fundamentally flawed and it this broken system that needs to be completely overhauled. The standard of the initial medical examination, and the information provided to the claimant on their WCA decision, need to be drastically improved before any needless tinkering with the appeals system is introduced.
The Government consulted on the implementation and operation on the appeals reform provisions from February to May this year. The consultation, though, did not ask for responses on whether the mandatory reconsiderations should be introduced. The Government revealed, in its interim response published in June, that it had received 154 responses to the consultation but indicated that it “does not propose to make any significant changes to the draft regulations included in the consultation document as a result of the comments received“. DPAC calls on the Government to publish a full response to this consultation as soon as possible so we can ascertain the evidential basis for this change and just how much support the proposed change has received from respondents.
With Thanks to Richard Woodward