“A refusal to carry out a mandatory reconsideration effectively removes the right of appeal without consideration of the merits.”

At first sight, it might have looked as if the process of Mandatory Reconsideration had been overturned.  The Guardian reported that “The Department for Work and Pensions has been unlawfully stopping people going to tribunal to appeal against decisions to refuse them benefits”.  The decision of the Upper Tribunal, reported this weekend, is much more restrained.   The detailed issue it was considering was the imposition of time limits, which meant that people who did not ask for Mandatory Reconsideration within a month were blocked from going any further.  The time limits have been extended, to 13 months. The last words of the judgment are part of a description of  the process to this judgment, but have obviously been placed prominently to make the point:

a refusal to carry out a mandatory reconsideration effectively removes the right of appeal without consideration of the merits.

The problems of MR run deeper than that, however.  Mandatory Reconsideration turns appeals into a two-stage process; claimants have first to apply for an MR, and only after that is complete are they permitted to lodge an appeal.  That remains the case.  There will still be two hurdles; the decision only makes it easier to get to the first one.

The Upper Tribunal reviews a range of arguments about the system – their judgment runds to 48 pages.   They share the view expressed by several commentators that MR does nothing to expedite review, but imposes a barrier to getting to appeal.  Out of 1.5 million cases of Mandatory Reconsideration Oct 2013- Feb 2017, only one has subsequently gone to judicial review.  I’ve argued before in this blog that this process – described by a former Lord Justice of Appeal  as “an absolutely outrageous interference by the executive with the rule of law” – is probably unlawful.  The recent decision of the Supreme Court on access to tribunals reinforces that; it will be interesting to see what happens when that is taken into account in future decisions.

I am going, too, to add a point about the Social Security Advisory Committee which follows from all this.  When they reviewed MR last year, they wrote that

Properly conducted, Mandatory Reconsideration could be an efficient process that provides opportunity for timely review, the admission or reinterpretation of evidence and the avoidance of costly tribunals.

That judgment was badly misplaced, and that raises questions as to how a committee of independent experts could have made it.  I have been interviewed three times for possible membership of the SSAC, and have been turned down each time for the same reason.  The SSAC works by coming to a consensus, and  I was not prepared to pledge always to support a consensus view.  That is not how an expert committee should work; their primary role is not to come to a judgment, but to review and report issues for consideration.  Where experts disagree, the appropriate approach is to record the arguments on all sides.

The Social Security (Scotland) Bill – response to the call for views

The Social Security Committee of the Scottish Parliament has asked for views about the Bill that is about to be considered.  Submissions have to be made by 23rd August: details can be found here.

My submission is here.  Submissions are limited to four pages, which means I’ve had to be ruthlessly selective: I’ve said nothing, for example, about Carer’s Allowance, winter heating allowance or the awful mess that’s being threatened about funeral assistance.  What I have covered is this:

  • The reference in the principles to “efficiency” should refer instead to “cost- effectiveness” – the terms are not equivalent.  It may be efficient, for example, to limit the number of home visits; to put the onus of clarification on claimants rather than paid officials; or to reduce services to claimants who are particularly expensive or difficult to deal with, a process which has been a major concern in employment programmes. This is not how the Scottish social security system should be trying to operate.
  • The two stage-process of review and denial of direct access to appeal, based on Mandatory Reconsideration, is undesirable and arguably unlawful.
  • The provision for recovery of overpayments, regardless of the reason for overpayment, whether the claimant could have known there was an overpayment, or whether the claimant could have expected to make provision to repay, is oppressive.
  • Much has been left to subsequent regulations. In a framework bill, it should be considered how those regulations will be scrutinised and reviewed in future.
  • There is insufficient protection for the rights of claimants in the event that the Agency mistakes the law.
  • Short-term assistance should be more generally available than envisaged, and should be extended to cover problems with reserved benefits.

Additional note, 10th August.  An article in Third Force News has covered one of the points in this submission in somewhat heated style.  It’s suggested that I have ‘slammed’  the system and ‘hit back’ at the minister Jeanne Freeman.  I don’t for a moment question the Scottish Government’s good faith or our shared intention to get the new system to work in the best way;  we are trying to achieve the same objectives.  The point of my submission is to draw attention to a series of technical issues that might otherwise be overlooked.  More specifically, I do think that the Bill has on occasion accepted that the current practice of the DWP can be taking as the starting point for a new law – mandatory reconsideration is one example, the management of overpayments is another.   If the points I have made are taken into account, it will be a better Bill.

 

A decision about the rule of law

The Supreme Court decision on access to Employment Tribunals has wider implications than for those tribunals alone.  Lord Reed, in a judgment approved by most of his colleagues, emphasised strongly that access to justice was fundamental to the rule of law.

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.

But there are at least three further circumstances in which the executive branch prevents benefits claimants from obtaining access to justice – not just failing to help, but actively putting obstacles in their path.  The first is the case of Mandatory Reconsideration, which deliberately creates a barrier between the claimant and the courts.  Evidence to Parliament by HH Judge Robert Martin, President of the Social Entitlement Chamber of the First-tier Tribunal, was that

the introduction of MR, rather than leading to a justified reduction in appeals, might discourage claimants who might have had “winnable” cases from appealing, because they found the process too onerous.

Lord Reed argues that “impediments to the right of access to the courts can constitute a serious hindrance even if they do not make access completely impossible.”  If there is a difference in principle between this and the Employment Tribunal case, I can’t see it.

The second is the case of sanctions, where penalties are imposed without a hearing and prior to any consideration of objections.   Michael Adler has argued, I think rightly, that the  current sanctions regime is not consistent with the established principles of the rule of law.

The third is the result of a decision by the House of Lords, the predecessor of the Supreme Court.  In Chief Adjudication Officer v Bate [1996] 2 All ER 790 HL, they decided that where it was found that the DWP had previously acted unlawfully, they would not have to apply the revised rule to previous cases, because it would be too burdensome to do it.  In other words, those who had suffered injustice had no right or reasonable prospect of having  injustice corrected.  In the decision reported today, Lord Reed argues “Access to the courts is not, therefore, of value only to the particular individuals involved”, and he cites a previous Lord Chancellor:  “The courts are for the benefit of all, whether the individual resorts to them or not.”  Just so.  The decision in Bate was a disgraceful misjudgment, and it is time the Court corrected it.

Why France is going to reform its housing benefit system

The French government has announced that their system of housing benefit will be reformed this autumn.  The minister, Jacques Mézard, is reported in Le Monde as saying:

We have a budget for APL (Aides personnalisées au logement) of 19 billion euros, a budget for all housing benefits of 30 billion euros, the highest in Europe, with a corollary: not enough housing and rents that are too high.  … For one euro more spent on APL, 78 centimes goes on higher rents.  We have to get out of this perverse system.

When housing benefits were first introduced in the UK, in the form of “Rent Allowance” and “Rent Rebate”, policy makers had been impressed by the French argument for subsidising low incomes rather than bricks and mortar – “aide à la personne” instead of “aide à la pierre“.  As in France, it’s led to higher costs, more complex administration, higher rents and often the exclusion of low income families from decent housing. It was a mistake then, and it’s still a mistake now.

Scottish social security benefits – a talk on video

For diehards only:  I gave a talk last week to a meeting of Common Weal and the Scottish Unemployed Workers’ Network, in Dundee.  It was filmed, and the film has been put up on Youtube.  The stuff I was covering will have a short shelf life.  It’s conceivable that you may have something more exciting to do with your day.

Further note, 25th July.  In the course of this talk, I refer to the Irish problem – that Northern Ireland, despite having full devolution of powers relating to social security for the best part of a century, was still being subject to direction from the Treasury and the DWP.  It’s just been reported that the UK government proposes to introduce the two-child limit in Universal Credit to Northern Ireland, along with the ‘rape clause’.  The principle at work seems to be that if there is no operative government in Northern Ireland, the UK government is free to do as it thinks fit.  The government really doesn’t understand devolution at all, and this is another illustration.

Is the NHS the best health care service?

An international ranking of health services in 11 countries rates the UK NHS at the top.  The Commonwealth Fund, an American think-tank, ranks health systems on five main criteria:  Access, Equity, the Care Process, Administrative Efficiency and Health Outcomes.  Each of those criteria is based in turn  on a range of subordinate indicators:  the “Care Process”, for example, takes into account prevention, safe care, coordination, and patient engagement.  It’s backed up further by more detailed assessment;  for example, the US does badly on infant mortality and premature death, but relatively well in relation to doctor-patient relationships and the management of stroke.  But speaking as a carer, I find it hard to believe that the state of our mental health services really represents the best that anyone can do.

The main purpose of the report is to give a critical perspective on health care in the US, which is outstandingly expensive as well as being the least effective of the systems; but there are questions to raise about other countries, too.  For the UK, we might wonder how it is that the health care system is ranked top of the league while the UK’s health outcomes are the second worst in the table.   The neo-liberal Institute of Economic Affairs commented, acerbically: “the NHS’s provision of care is equally poor for everybody, irrespective of income.”

 

My doubts about ‘food sovereignty’

I was asked to act as a discussant for a paper on ‘food sovereignty’.  Food sovereignty is an idea being promoted by Via Campesina.  Via Campesina “defends small-scale sustainable peasant agriculture as a way to promote social justice and dignity based on food sovereignty.” They describe food sovereignty in these terms:

Food sovereignty is the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agriculture systems. It puts the aspirations and needs of those who produce, distribute and consume food at the heart of food systems and policies rather than the demands of markets and corporations. … Food sovereignty implies new social relations free of oppression and inequality between men and women, peoples, racial groups, social and economic classes and generations.

It sounds very warm and human, but it’s a muddled, ill-considered set of claims.  The core problem with it is that food sovereignty doesn’t protect food security – people’s right to have food to eat.  It protects the interests of producers, not populations.  The second problem is that it can’t offer a response to significant vulnerabilities, such as civil war, drought or climate change; if (or when) such things happen, the localities where they happen will be not be protected by a system that is relatively localised.  Third, providing healthy diets locally and on the small scale must mean less food.  That’s true partly because it’s only possible to provide varied diets locally by growing things that grow less well locally as well as those that grow better, and partly because comparative advantage is lost – less specialisation and less trade means less food.  Fourth, for what it’s worth, there’s absolutely no reason to assume, as this declaration assumes, that local production will be ecologically sound.  Why should it be?  Finally, food sovereignty can’t deal with the distributive issues within societies.  There’s reason in some aspects, such as gender relations,  to believe it won’t.

More troubling still is the ranting, anti-capitalist wrapping this comes in. This is from the Via Campesina website:

For too many years, we have witnessed with deep pain the systematic plunder and destruction of our precious natural resources and the oppression of our people. We know that our African elites in the public and private sectors have been for many years colluding in corruption with the evil transnational corporations which today represent the new face of imperialist neo-colonialism. We are appalled by this and demand an immediate end to immoral and irresponsible behaviour of many of our leaders.

This is the authentic voice of populist demagoguery.  Populism has been defined as

an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and which argues that politics should be an expression of the volonté générale (general will) of the people.  (C Mudde, 2004, The populist zeitgeist Government and Opposition 39 (4), 541–63.)

an ideology which pits a virtuous and homogeneous people against a set of elites and dangerous ‘others’ who are together depicted as depriving (or attempting to deprive) the sovereign people of their rights, values, prosperity, identity and voice.  (D Albertazzi, D McDonnell (eds) 2008, Twenty first century populism, Palgrave Macmillan, p 34)

The examples I heard about today manipulate people’s concerns to push forward an authoritarian, collectivised, exclusive model.   This doctrine is not just foolish, but sinister.

Who should run an inquiry?

I have no idea how good Sir Martin Moore-Bick, the judge appointed to head the Grenfell inquiry, is at judging the law, but I do have my doubts as to whether the skills and legal knowledge of a judge are the same as the skills needed to conduct a public inquiry.  We have had a long string of public inquiries where the legal chair was plainly out of his or her depth (such as the long-running inquiry on historic sexual abuse), or where the lawyer in charge applied inappropriate tests in the belief that what was required was a legal judgment (for example, Lord Clyde demanding standards applied in criminal procedures in cases of child protection).  We’ve also had a string of recent inquiries – Francis, Levison, and this week’s Oldham report on Jersey – where it’s been painfully clear that the inquiry chief didn’t know how to write a report.  Just look at the ‘executive summaries’.  In each case, the authors seemed to be afraid to leave anything out.

A judge needs to manage a hearing, understand and apply the law, discipline opposing parties to focus on the issues that are needed, deal with arguments comprehensively and make a legal determination.  That’s a formidable task, requiring considerable expertise, but it’s not at all what’s asked of an inquiry chair.  An inquiry is not a trial.  It is exploratory rather than adversarial.  It calls for lines of communication to be established with all parties, and for consultation and engagement, and for people to be given a hearing and the opportunity to express themselves.  (It’s not coincidental that some of the best inquiries have been  made by social work professionals –  Herbert Laming and Alexis Jay – who are very good at listening.)  Evidence has to be sorted, synthesized and selected.  There has to be clear public communication about that selection.   This is the role of a researcher, not an judge.

DWP benefits still suffer from high levels of error

The National Audit Office has qualified the DWP accounts, yet again, because of the levels of ‘fraud and error’.  I put that phrase in inverted commas because the DWP has always presented them as a package; it’s not really about fraud.  The breakdowns usually attribute most of the over- and under-payments to error.

(This graph may look blurred in some browsers; double-clicking or tapping on it should make it easier to read.)

The basic message from the graph is that some criteria are harder to manage that others.  People get questions about income wrong, in both directions, and capital doesn’t necessarily get declared.  In a nutshell, many of the problems are simply and directly attributable to means-testing.  Living arrangements cause problems, too.  By contrast, the sort of thing that doesn’t much appear is contributory entitlement.   The essential problems stem from asking questions that suppose we can find out how people live and respond to their individual circumstances, rather than simply stating – as we do with state pensions – whether or not people are entitled.

The relational elements of poverty

Later this week I’ll be giving a paper at a conference in Paris on The Politics of  Inclusion, organised by CROP (the Comparative Research Programme on Poverty)  and Unesco.  This is the abstract.

Poverty is at root a relational concept, which can only be understood by locating the experience of poor people in the social and economic situation where they are found. This is not just saying that poverty is ‘relative’. Developments in policy and practice are increasingly focused on dynamic, relational and multi-dimensional understandings of poverty; our conceptual frameworks have failed to keep pace.

Much of the consideration of poverty in the course of the last hundred years, relative or absolute, has found it convenient to rely on three fallacies. The first is that poverty is a condition or state of being, which can be considered exclusively from the perspective of the individual who experiences it. The second is that can be understood solely in terms of resources, when resources themselves have to be understood in terms of social and economic relationships. The third is that there is a clear and decisive threshold below which people can be said to be poor, and above which they are not poor.

All of these positions are tenable – they are supported by many of the most eminent writers in the field – but they are not adequate, either as a way of describing the positions that people hold, or as a conceptual tool to analyse the issues.  Discussions of exclusion, a concept which is self-evidently relational, come closer to the idea of poverty than much of the academic literature on poverty in itself, offering a way to escape from the limitations of conventional models of poverty.