Category: Social security

The Work and Pensions Committee has issued a call for evidence about benefit levels in the UK.  My response to that call is here in a PDF or on the Committee’s website here.

There are some common confusions in the discussion of adequacy, which this submission seeks to clarify.

• The purposes and functions of benefits are complex.
• The adequacy of benefits depends on how they work in combination with each other, and with other sources of income.
• Benefits have not been set at a level that reflects the costs of subsistence.
  Universal Credit in particular is not designed to provide a basic minimum
  income and does not do so.
• Most benefits are designed to be delivered regardless of work status. The
  emphasis on the centrality of work is a major distortion of their role and
  purpose.
• The operation of the benefits system is frequently penal and fails to provide
  adequate avenues of redress.
• Assessments of people’s  financial position which attempt to identify all possible income streams and household circumstances are unavoidably complex, difficult to administer and liable to error. The alternative is to offer a range of less comprehensive benefits which can be combined in different ways.

When I posted about the reform of the Work Capacity Assessment before, I had no idea that what was being contemplated was an abolition of benefit for  long-term sickness.  That, however, appears to be what the government actually intends to do.  They are so fixated on disability that they have forgotten what sickness benefits are supposed to do.

The Beveridge reform included, initially, only a Sickness Benefit.  This wasn’t enough, and in 1971 a longer-term benefit called Invalidity Benefit was introduced, largely to cope with people who otherwise would have to make demands of the system for unemployment.  Subsequent changes gave us Incapacity Benefit, then Employment and Support Allowance, now being swallowed by Universal Credit.  It’s already the case that benefits for people who are ill are now set at the same level as benefits for people who are unemployed.  The difference rests in the situation of people who have ‘limited capacity for work related activity’ or LCWRA – people who (in the terms of the 2012 Welfare Reform Act) it is not reasonable to expect to work. Those people are largely exempt from the requirement to be actively seeking work.

Transforming Support, the White Paper on Health and Disability, has been published at the same time as the 2023 Budget.   The bulk of the White Paper is taken up, unexceptionably, with the situation of people with disabilities, and how they might be supported into work.  The problem is, straightforwardly, that sickness benefits are supposed to do something quite different.  They are there to support people who are sick.  The government, it seems, is incapable of making the distinction. Most people who are sick are not disabled.  Many people who live with disabilities are not ill.  There are conditions which overlap, but these are different circumstances calling for a different approach.  I’ve explained the difference between sickness and disability benefits in my previous work; here is a quick summary.

Benefits for people with disabilities people are given on a number of principles.

1. Compensation for disability. Industrial disablement or action in the courts assume that people should be paid if something unpleasant happens to them. This does not extend to those who simply become ill or to those born with disabilities.
2. Special needs. Allowances can be made for example for personal care, transport, and medical goods.
3. Desert. In some cases compensation depends on a moral evaluation of the
   reason for disability. War pensions are the obvious example.
4. The protection of carers. People caring for a disabled person may be limited in their capacity to seek work and to earn.
5. Rehabilitation. Benefits may be concerned to change the status of the disabled person – for example, through training or the provision of special equipment.
6. Promoting employment. A number of benefits are geared specifically to the promotion of employment for disabled people, as a desirable end in itself. They do so principally by altering the calculation of costs and benefits made by disabled people or by employers.
7. Improving low income. Low income may reflect incapacity or disadvantage in the labour market. Many disabled people on low incomes rely on forms of social assistance benefits, for others who are poor. Support for disabled people on low earnings is another example.
8. Equal opportunity. Rehabilitation and the promotion of employment can both be seen as means to further equality of opportunity for people with disabilities.
9. Participation in society. This encompasses rehabilitation, employment and income support; it is also a justification for a range of benefits in kind intended to promote social inclusion for people with disabilities, including housing, transport, leisure, cultural and educational benefits.
10. Market-based and voluntary provision. With the exception of insurance-based social protection, the role of non-governmental organisations (NGOs) in this field is overwhelmingly geared to disability, not to incapacity. The voluntary sector has a wide range of objectives, including humanitarian, religious, mutualist and commercial aims. State intervention which is based on support of the voluntary sector necessarily reflects those principles to some degree.

Benefits provided to deal with sickness are based on different criteria.

1.  Social protection. The principle of social insurance is intended to cover changes of circumstance and needs which might arise. This extends to cover for medical care, the incurring of unexpected costs and income maintenance.
2.  Income maintenance. People wish to protect themselves from circumstances in which their income might be interrupted. This is sometimes done through social assistance but more typically it affects people who have previously been earning.
3. Economic efficiency. Part of the rationale for incapacity benefits is based, not in the circumstances of the incapacitated worker, but in economic processes. Employers wish to maximise the productivity of the workforce. Rules relating to short-term incapacity allow for restoration of full capacity; rules relating to long-term incapacity allow for removal of less productive workers from the labour market. (Note that there is a potential tension between this principle and the desire, in relation to people with disabilities, to promote increased participation in the labour market.)
4. Early retirement. A scheme for incapacity benefits may become in effect a
   surrogate scheme for early retirement. Because it legitimates withdrawal from the labour market, it makes it possible for those who hope to retire a means of doing so.
5. The functioning of medical services. The balancing of medical priorities has
   been an important element in the administration of incapacity benefits: part of the purpose of sickness benefits has been to facilitate and encourage medical consultations, but the routine certification of sickness has proved burdensome and (in some systems) ineffective as a means of prioritisation.

Although there is some overlap between the two issues, it mainly happens in so far as disability implies incapacity, or incapacity includes disability. A person who is disabled does not need social protection or income maintenance solely on account of the disability; a person who is incapacitated without disability does need social protection, but is not necessarily disadvantaged in terms of equality of opportunity or participation in society.

What the government proposes is to confine health benefits solely to people who pass the assessment for Personal Independence Payment – that is, people with disabilities, who have a long-term, functional limitation in capacity.  The key proposal in the White Paper is this:

145. We are therefore proposing to replace the current UC LCWRA element with a new UC health element. The new element will be awarded to people who are receiving the UC Standard Allowance and any PIP element.

146. This new element will abolish the need to be found to have limited capability for work and work- related activity, as is the case with the current UC LCWRA element. This will remove barriers in the system that can prevent people who would like to, from entering or remaining in employment.

So – what happens to people who are not disabled, but sick?  The answer is that they will be treated simply as if they were unemployed.  The Institute for Fiscal Studies points out that “The 1 million people who are currently on incapacity but not disability benefits could potentially lose out from this change – with a typical health-related UC claimant losing £354 per month.”  They are going to be expected to engage in job-seeking for 35 hours a week.  They are going to have to report for meetings, and be sanctioned if they are too sick to get to them. People with conditions such as heart disease or cancer are going to have to undertake a PIP assessment on the off-chance, when they have no reasonable prospect of qualifying  – a situation that was recorded in some detail when in the past a million people who applied for Disability Living Allowance had to be rejected. This is going to be an administrative nightmare.  The CEO of the charity Mind has commented that the policy represents “a one-dimensional, overly-simplistic approach to a complex, systemic issue.”  The proposed reform  disregards everything we know about this sort of benefit.  It is staggeringly stupid.

 

 

An important case has been decided against the Department for Work and Pensions, calling into question at least three long-standing, major elements in social security law. R v Secretary of State for Work and Pensions [2023] EWHC 233 (Admin), which can be read here, concerns the operation of the relatively recent overpayments policy, which makes it possible for the DWP to reclaim overpaid benefit despite the fact that the claimant has done nothing wrong and may have had no reason to suppose that the payment was not legitimate.   (This pernicious rule has, regrettably, been replicated in the Scottish Parliament’s recent law on social security.)

The first concerns the DWP’s use of discretion.  For decades – at least since the 1960s – the DWP and its predecessors have limited its use of discretion by the development of national rules, intended to ensure that there is no inconsistency between judgments made in different parts of the country.  (See  M Hill, 1969, The exercise of discretion in the NAB, Public Administration, 47(1) 75‑90; J Bradshaw, 1981, From discretion to rules, in M Adler, S Asquith, Discretion and welfare, Heinemann.)  The court, in this case, emphasised that notwithstanding that principle, the DWP always had a duty to make an individual assessment in the particular case that presented itself – explaining how its discretion would be exercised, rather than choosing not to exercise it.

The second element concerns the publication of guidance.  Since 1980, when I started teaching welfare rights, I’ve visited  social security offices irregularly – the last time was in 2019 – and like many old-timers in this field, I’ve been required to sign the Official Secrets Act, because (for example) publication of the fact that social security officers are sometimes asked to use screens with impossibly small print might threaten the security of the nation.  The Supplementary Benefit rules were contained in a loose-leaf binder, and then a set of binders, called the A code, and that was superseded by even fatter guidance documents called the S manual, also treated as an official secret.  This case cites a previous judgment, which says this, in terms:

It is axiomatic in modern government that a lawful policy is necessary if an executive discretion of the significance of the one now under consideration is to be exercised, as public law requires it to be exercised, consistently from case to case but adaptably to the facts of individual cases. If – as seems to be the situation here – such a policy has been formulated and is regularly used by officials, it is the antithesis of good government to keep it in a departmental drawer.

The third major point concerns the appeals procedure.  The present procedure requires claimants to ask first for Mandatory Reconsideration, and then to appeal to a tribunal.  After that, the claimant’s options have been held to be exhausted.  This case makes it abolustely clear that this is not, and cannot be, the end of the road.  A DWP official had written to the claimant:

“Regarding your request to have your overpayment waived, as I have stated previously the routes for you to challenge an overpayment with Universal Credit are Mandatory Reconsiderations and a tribunal following an upheld Mandatory Reconsideration.  Neither myself or anyone working for Universal Credit can reconsider your overpayment as you have exhausted all appeal routes with us. The legislation you have quoted does not apply directly to the processes that we have here.”

That response is described here as ‘manifestly unlawful’ (para 73).

I regret that so few social security cases come to judicial review.  If they did, I think it likely that other important rules – including the requirement to seek mandatory reconsideration and the imposition of sanctions without the possibility of a hearing – would also be found to be unlawful.