Category: Public administration

In a recent blog, Jonathan Bradshaw has suggested that limiting Tax Credits and Universal Credit to two children is the “worst social security policy ever”.  There’s a lot of competition for the title.  As Jonathan writes,

There are many competitors for this accolade in our history — less eligibility in 1834 Poor Law Amendment Act, the 1934 Unemployment Assistance Board household means-test, the 1991 Child Support Act, the 2017 lower benefit cap and, probably forthcoming, Universal Credit.  But the two-child policy is just morally odious.

That set me to wondering: aren’t there worse examples?  Here are a few other contenders.

Settlement and removal.  The effect of the settlement laws under the Poor Laws meant that the local parish had to support certain people, and that if they were in need elsewhere they’d be “removed” to their parish of origin.  That meant both that parishes did their utmost to avoid illegitimate children being born on their patch – if necessary, picking up a pregnant woman and dumping her on another patch – and that people in need were transported back to their original parish, regardless of their reasons for leaving.

Housing Benefit.  The Housing Finance Act 1972 set about demolishing the system of housing subsidies, and trebled rents in the process.  Housing Benefit was introduced initially in the form of Rent Rebate and Rent Allowance, supposedly representing a shift from subsidising bricks and mortar to subsisising people.  The benefit was staggeringly complex, the costs and management span out of control.  The effects were catastrophic, especially when they were combined with the costs of rent from Supplementary Benefit.  The first stage might be thought of as a blunder – the theory said that it would be more efficient to direct resources to people.  The second stage, introduced when it was evident that the first stage hadn’t worked, was a fiasco.  We’re still suffering from the consequences: a destruction of housing subsidies, a diversion of resources to private landlords, a horrendous poverty trap, and the introduction of restrictions (including the benefit cap) because the system is unworkable.

The Griffiths report.  Creating a quasi-market system in social care was widely welcomed by many people who ought to have known better, and the system still has its defenders.   The system depends on intrusive personal assessment, penal means tests, market distribution (which always leaves gaps) and lengthy delays in service delivery.  Some of the defences begin with feeble excuses, such as the claim that it would all have worked if only there was more money and the thing had happened more; some try to deny that we’ve been trying to do this for nearly thirty years and it’s never worked.   (It’s a social security policy, because it directs cash towards a test of need rather than  providing a basic service.  A large part of the funding came from the  resources for residential care that were being paid for in social security benefits. )

Reclaiming overpayments.  The practice saddles people on low incomes with long-term debts. It used to be the case that claiamnts could only be directed to repay money if they had misrepresented or failed to disclose a material fact.  That was overturned with the Tax Credits system, which presented people with demands for repaying thousands of pounds they had no reason to suppose they weren’t entitled to.  The Ombudsman laid into the system as being fundamentally unsuited to the needs of the low income families it was supposed to help.  Now the same principles are being rolled forward into Universal Credit – and, it seems, the new Scottish system of benefits, including benefits for disability.

Disability assessments.  I’ve already referred to personal intrusion.  Why is every person who is sick required to undergo an assessment?  Why are medical records disregarded?  Why is everyone being asked about going to the toilet?  Why are most of the people who are too sick to work being required to attend sessions to indicate a readiness to work?

Suspending benefits.  When the “four-week rule” was applied, research (by Molly Meacher) reported that about a third of the people subjected to suspensions were convicted of their first criminal offences afterwards.  Now lengthy, indiscriminate suspensions have become a major aspect of the social security system, with getting on for a quarter of all claimants having benefits sanctioned for a period, and some having benefits cut off for three years.    There are no circumstances where leaving people without enough to buy food is ever justified.

These policies have something in common.  In every case, it’s not just that the policies didn’t work; it’s that after they had been tried out and were shown to have bad effects, the responsible governments ploughed on regardless, and rolled them out more generally.  That’s the point at which incompetence crosses over into immorality.  And that’s why Universal Credit is such a horror: it takes every element in recent years that has been shown not to work (tapers, sanctions, delays, assessments, obstructions to redress, transfers of process across agencies, multiple moving parts, and so on), and builds a whole system round them.

 

 

In February, Sir Ernest Ryder, the Senior President of Tribunals, was suggesting that tribunals were likely to move into online hearings, and that social security tribunals would be pioneering the approach.  That announcement was received with some apprehension, because the experience of digital communication and systems supposed to be “digital by default” has not been good for claimants; it assumes access to resources and a level of competence with IT that many people would find challenging.  The technology for managing group meetings is improving, but it’s still buggy and difficult to access; the added security needed for tribunal hearings is liable to add to that.

In a recent talk, however, Sir Ernest has been offering more insight into his thoughts about the conduct of social security tribunals, and it may not be what the critics expect.  He has been complaining that the incompetence of the DWP has clogged up the tribunal system.  Mandatory Reconsideration is no help – the number of bad decisions has been mounting.   In most of the cases submitted by the DWP, “there could be no argument in law or on facts that the appellant wouldn’t win.”   Ryder would like to give tribunals the right to reject the DWP’s papers without wasting time on a hearing.

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 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.

I questioned the legality of the system of Mandatory Reconsideration nearly a year ago on this blog.   It’s encouraging, then, to see a condemnation of the system by Sir Henry Brooke, a former Lord Justice of Appeal, and I’m grateful to David Webster for drawing attention to it (his briefing will be on the CPAG pages shortly).   Brooke describes DWP guidance on the operation of Mandatory Reconsideration as “an absolutely outrageous interference by the executive with the rule of law.”