“Well, here we go yet again … another sorry tale of HMRC institutional incompetence and inefficiency”

The judgment of Justice Nicholas Wikely in the Upper Tribunal in VO v HMRC (TC) [2017] speaks for itself:

“Well, here we go yet again.  I used the phrase “Well, here we go again” with a sense of frustration, bordering on despair, to open my decision in NI v HMRC [2015] UKUT 160 (AAC), a case in which I criticised Her Majesty Revenue and Customs (HMRC) for both its decision-making processes and its conduct of appeals in relation to tax credits claims. .. So, yes, in short this is yet another sorry tale of HMRC institutional incompetence and inefficiency which could well have led to injustice, were it not for the persistence of the Appellant.”

But of course, it did lead to injustice: the denial of entitlement and redress for five years. The judge explained the case as follows:

The HMRC written response to the Appellant’s appeal made the case look very
straightforward. In a nutshell, the Appellant had failed to reply to a request from HMRC to provide evidence of her entitlement to tax credits. She was therefore no longer entitled to tax credits for the relevant tax year and was liable for a substantial overpayment. So, according to HMRC, it was an open and shut case. End of story. … In her notice of appeal, the Appellant stated that “as I previously explained, I forwarded all the information required from me and to my surprise you never received the documents” (emphasis added). I interpose here that I have underlined the phrase “as I previously explained” as this statement alone should have rung alarm bells for the FTT. This is because there was nothing at all in the HMRC evidence provided with the appeal response to suggest that the Appellant had made any contact with HMRC before her notice of appeal … In the parallel universe that is tax credits adjudication, the file does not actually include something as elementary or fundamental as the actual decision notice. As HMRC’s original response to the FTT appeal explained, the HMRC computer cannot provide a copy of a decision notice – only the claimant can do that. So, in a classic Orwellian doublespeak, the response continues: “HMRC has not omitted to include the decision notices from the bundle; it is simply unable to provide copies”. How are we supposed to respond to this? “Oh well, that’s alright then.” Who designed this computer system? Did anyone think to check it was compatible with basic tenets of good public administration, let alone the principles of administrative justice?

He warns first-tier tribunals not to take HMRC’s statements on trust.

The basic principles of administrative justice include the right to know what the argument is against you, and the right to have a hearing. The same disregard for citizens’ rights, of course, is found in decisions about sanctions, where penalties are frequently imposed before the claimant has any opportunity to object.

Should “The case for colonialism” have been published?

Yesterday I received a circular request to sign a petition to have an academic article taken down.  The article in question is  “The case for colonialism“, written by Bruce Gilley, and published by Third World Quarterly. For Gilley, anti-colonialism has justified practices that are worse than the colonial systems they replaced; he tries to justify colonialism on the balance of costs and benefits. There’s a forceful rebuttal of the arguments by Nathan Robinson in Current Affairs:

“Truly unspeakable harms can simply be “outweighed” and thereby trivialized.  … Building power lines and opening a school doesn’t provide one with a license to rob and murder people.”

Being concerned about contemporary policy, I’m less concerned about the historical revisionism than about the mis-characterisation of current issues in development.  There have been massive improvements in much of Africa in recent years, and they have not happened by magic.  Gilley suggests that

The ‘good governance’ agenda, which contains too many assumptions about the self-governing capacity of poor countries, should be replaced with the ‘colonial governance’ agenda.

The agenda he’s criticising makes no such assumption; on the contrary, it’s about creating capacity.  The process has encouraged governments to recognise their limitations and to work collaboratively with a range of stakeholders and partners.  Just the sort of thing that colonial governments didn’t do and that international organisations have had to learn.

Gilley’s critics have described the argument as “racist” and “white supremacist”; neither of those is justified by its content.  The article is provocatively written, somewhat cavalier about evidence and possibly slightly bonkers. Does it follow, though, that it should be withdrawn from circulation?    The proper response to anything of this nature is to make the case against it, not to have it expunged from the record. When I’ve taught students about ethics and policy in the past, I’ve sometimes given them extreme positions to consider – arguments for torture and infanticide amongst them. I’ve wanted them to be able to respond cogently and fluently to offensive views, because in real life speechless rage doesn’t win the day. I’d have had no hesitation in getting students to write a critique of this paper.  Students tend to be far to deferential to the things they read; a healthy disrespect for the printed word is something to be encouraged.

 

For dignity and respect, it matters how people are treated

The Scottish Government has said that the new social security benefits will be bound by principles of dignity and respect, so the publication of a commissioned report on Social security systems based on dignity and respect ought to have been very welcome.  Unfortunately, the report fails signally to come to terms with its brief, choosing instead to emphasise either human rights issues or the substantive failures of social security policy.  Both make an essential contribution to  dignity – they are necessary for dignity – but they are not sufficient.  There is nothing in human rights legislation which says that people will be addressed politely, that they will be believed when they say things, or that officials will be considerate.

There is very little in this report about those issues.  The report acknowledges, in the Executive Summary, that “The feeling of being treated unfairly or viewed with suspicion by case workers on permanent alert for fraud is reported as particularly demoralising” – there is some further material on these problems on pp 33-35 – but the authors don’t go on to say what needs to be done about them.  A   chapter on “Ensuring dignity and respect in the claimant experience” really says nothing about the claimant experience, let alone about dignity and respect.

The central issue is how people are treated.  The report ought to have considered process at length – access, application, communication, assessment, handling changes of circumstance and so on.  There is some (admittedly dated) empirical evidence that many of the processes used for verification are unnecessary, that insisting on claimant declarations  colours the process, that security is disproportionate and ineffective in dealing with errors.  The system is not geared to deal with complaints or to correct mistakes.  The nearest the report gets to most of this is to  call for greater  personalisation, which risks increasing the scope to get things wrong and exacerbates the problems of judgmental administration.

An assessment of Basic Income

Luke Martinelli’s assessment of Basic Income is a serious, wide-ranging consideration of several of the arguments: among them, affordability, distributive effects, work incentives and political feasibility.  There is more to say about administration, implementation and the relationship to existing benefits, but no-one ever covers everything.

He characterises the opposition to UBI as saying that “an affordable UBI would
be inadequate, and an adequate UBI would be unaffordable.”  That’s not the whole story, either.  I put the case like this in a video interview:

“If you limit the level of benefit you are still dependent on other benefits, so you’ll get all the problems of the tapers, the poverty trap, the intrusion into people’s lives and the complexity.  If you increase the cost, then you can float people off those benefits – but what will you have achieved if you do that?  … those people who were formerly on benefits will find themselves on the equivalent in Basic Income, and you’ll have spent nearly all the money to the benefit of people who weren’t on benefits – to people who are better off.  So you have really got to decide, is it worth putting large amounts of money into a scheme which isn’t going to benefit the people you most want to help?”

Self-directed support makes little headway

Self directed support in Scotland hasn’t exactly shaken the rafters – a report in 2014  called the system “nebulous” – but an Audit Scotland report suggests it “shows many examples of positive progress”.  The vague welcome is hardly justified; this is a system that’s hardly stirred into life at all.  The Social Care (Self Directed Support) (Scotland) Act offers four  “options” for self-directed support:

  • Option 1  Direct payments
  • Option 2  The individual chooses the support and the authority manages it
  • Option 3  The authority chooses the support and arranges it
  • Option 4  A mixture of options 1, 2, and 3.

It’s highly debatable whether option 3 can be thought of as self-directed support at all, and it’s far from clear what qualifies as option 4.

An Audit Scotland report claims that  “at least” 53300 people, out of 208,000 adults receiving non-residential support, are getting SDS.    Of that figure,

  • 11% chose option 1
  • 9 per cent chose option 2
  • 75% chose option 3, and
  • 5% chose option 4.  (para 24)

So out of that 53,300, something between 10600 and 13330 people chose an option.  Direct payments have increased, from 3680 to 7530 people 2010-16,  but as a proportion of more than 200,000 people it’s a very long way from the ‘total control’ supposedly offered by SDS.

It’s also troubling that at this stage the evaluation has not been able to show any clear advantage in personal budgets, even for the selected few who receive them.  A few qualitative comments show that some people support the idea in principle; other comments point to difficulties in knowledge, implementation, resources, restrictions from the local authority and a lack of choice.  My own experience as a carer has been that assessment came cursory and late, with no effective choices at all.  I’ve previously expressed some scepticism about personalisation; developments to date have done nothing to change that view.

The negotiations about Brexit aren’t addressing key issues

Although the EU has been behaving badly about the Brexit negotiations, they have reason to complain about Britain, too.   They’re right, first, to say that Britain’s position papers are too vague to be any use.  Britain offered 16 pages on trade, for example, recently supplemented by another 11 pages on continuity.  It’s not difficult to know what a successful trade agreement looks like.  The agreement with Canada, CETA, runs to nearly 1600 pages.  What  the UK had to do – and it’s had 15 months to do it in – was to begin with those 1600 pages, identify which terms are acceptable to Britain (they are all, after all, already acceptable to the EU), and then work on the differences.  That would still be a lot of work, but at least there’d be a meal on the table rather than a bowl of twiglets.  Britain can hardly complain that trade is  not being discussed if they’ve not offered any points for discussion.

The EU negotiators are right, too, to identify key issues besides trade: citizens’ rights, Ireland and treaty obligations.  The UK’s concerns are difficult to decipher; the latest position paper relates to the confidentiality of official documents, which suggests that government ministers are more concerned with covering their backs than they are with getting on with the business. Where the Commission is behaving badly is to say that nothing else gets discussed.  The EU also has treaty obligations.  Article 50(2) states that

the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

Whatever happens about the bill, the EU has no right to refuse to discuss the future relationship.

Two of the three items the EU is starting with are, in fact, about that relationship: Ireland, and citizens’ rights.  The Irish border is difficult, but not intractable, because different elements can be separated out and dealt with differently:  for example, Switzerland is not part of the customs union or the EU but is part of Schengen.  Citizens’ rights is much the more complex problem, and neither of the parties has shown any inclination to acknowledge that UK citizens resident in the UK are also currently citizens of the EU, and many will face the same sort of problems with split families, cross-border care, pension rights or interrupted periods of residence that people now in Europe or other nationals now in the UK will face.

“No use without payment”

Today I’ve just received a note from a publisher, who plans to reprint one of the papers I have written and which is available on my open-access page.  They write that “The Publisher  … as rights holder, has granted us permission for the reproduction”; they also explain how much they’re going to sell it for and why it’s too expensive for them even to send me a copy.  I have written back to say:  “You are under a misapprehension.  The publisher is not the rights holder; I am.”

I was at a reception last week for members of ALCS, the Authors’ Licensing and Copyright Society.  ALCS collects royalties for copying and internet distribution, and  distributes proceeeds to authors. I offer lots of my stuff for free because I want it to be read.  I benefit from copyright to some extent, because I’m not a saint and it’s very gratifying to pay for the writing I’d be doing anyway,  but that doesn’t mean that I’m wholeheartedly committed to the principle of getting money every which way, and when the Chair of ALCS called for “no use without payment”, I winced.  As a writer of non-fiction, most of the time at least, nearly everything I do is built on foundations laid by other people.  Academic work in general, and science in particular, depends on knowing what’s been done, taking it, shaping it and taking it further. Copyright restrictions often get in the way of that.  They stop free distribution or detailed quotation; academic papers are often put behind paywalls; some texts are restricted so that they can only be read in certain places.

I’m sceptical, too, that this kind of thinking really helps the creative artists who are supposed  to benefit from it.  The way that work gets known is that people share it with each other.  How many of us can name a favourite song, poem or piece of music that we didn’t first read or hear for free? Which of us hasn’t eventually paid for our favourites in some way, whether it’s by buying a copy, going to a performance, giving it as a present, getting someone to buy it for us, or the like?  The contents industry is fond of saying that replication is killing creative work. The opposite is true. Replication is the life-blood of science, art, performance, education and creativity. It’s the suppression of copying that is stifling intellectual and creative development.  And that’s why, when the publisher gets round to asking me nicely, I’ll agree to the piece being republished anyway.

Confusion about PIP

There’s a report in the i this morning about a letter sent by Frank Field MP to David Gauke, the Work and Pensions Secretary, detailing some of the hardship and problems  that have been created in the benefits system.  Field calls for a thoroughgoing review of current benefits, which I’d fully support.  But one of the points in the article is a mistake, almost certainly made by the newspaper reporter:

He backed an urgent review of the assessment system for evaluating PIP claims amid frequent complaints that it was too rigid to assess accurately claimants’ ability to work.

Presumably this is meant to refer to the assessment for Employment and Support Allowance.  Personal Independence Payment, unlike ESA, is not an out-of-work benefit; it’s a general income supplement for people with serious disabilities, supposedly partly intended to cover extra costs, and it is paid regardless of whether or not the person is working or able to work.    But I have come across cases, and I’m sure that Frank Field will have done as well, where PIP assessors have wrongly and inappropriately been asking people about work.  It’s the wrong test for this particular benefit.

From DWP research, many people never understood what they were claiming when they applied for  Disability Living Allowance, and now it’s being replaced by PIP it’s probably true that they don’t really understand that either.  Part of a review should be an attempt to get benefits that make sense to the people who administer them and to the people who get them.

 

The obsession with fraud is not new

A little bit of myth-making, this time about social security fraud.  Zoe Williams writes in today’s Guardian:

Even in the darkest days of me-first Thatcherism, the social security conversation hinged on whether or not the dole was enough to provide a decent life.  … the question of fraud rarely came up.

In fact, the obsession with fraud pre-dates Thatcherism.  Golding and Middleton’s book, Images of welfare, published in 1982, attributed the start of the moral panic about fraud to reporting of the Deevy case in 1976, but it started some time before that.  I’d date it from the publication of Robin Page’s exposé in the Spectator on 6 September 1969.  The article was syndicated in the News of the World (two weeks running) and questions were raised in Parliament.  In 1971, Keith Joseph set up the Fisher Committee on the abuse of benefits, which reported in 1973.   When the Thatcher government came into power, one of the first steps in this field, taken early in 1980, was massively to inflate the fraud figures.  (Reg Prentice explained to Parliament that higher figures were used by ‘large commercial organisations’ but said there was no reason to do any work to check that assumption.)

The obsession with fraud has been poisoning the system for decades, and there is no evidence that anti-fraud measures have done anything to improve the situation – the auditors haven’t fully approved the DWP accounts for years.  There is an alternative. The estimates for fraud and error in the State Pension suggest overpayments of 0.1%; the estimates for Pension Credit, a benefit which goes to more or less the same group of people, comes to 5.6% – more than fifty times as much.  If the government was serious about reducing fraud and error, they should look at systems which deliver benefits accurately and efficiently without it.

“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.