Category: Social security

This blog includes discussion of issues in British social security policy, along with new material to complement my book, How Social Security Works.

“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.

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.

A judgment on the benefit cap: “Real misery is being caused to no good purpose”

The forthright judgment delivered by Mr Justice Collins in [2017] EWHC 1446 is, perhaps, unusual; I have not seen one like it before.   Justice Collins took the view that the application of rules intended to encourage people into work could not reasonably be applied to lone parents with children under the age of 2.  References to work were “entirely irrelevant”.  The system of Discretionary Housing Payments “simply is not working with any degree of fairness.” The idea that people could renegotiate their rent was ‘laughable’ and ‘unrealistic’.  Describing the status of lone parents as a choice was ‘offensive’; one of the cases before him concerned rape in an abusive relationship.  He concludes:  “Real misery is being caused to no good purpose.”

Part of the judgment seems to run against the view of the Supreme Court, but Justice Collins took advantage of the Supreme Court’s haphazard presentation of their opinions on a previous case.  I’ve previously commented on the Supreme Court’s ramshackle and muddled approach to legal commentary; if they can’t agree on what’s being said, they can’t expect people to follow their decisions.

The Social Security (Scotland) Bill has been tabled

The Scottish Government has published the new Social Security (Scotland) Bill, intended to lay the foundations for the delivery of a range of new benefits.  The benefits specifically mentioned in the Bill include

  • Carer’s assistance
  • Cold-spell heating assistance
  • Winter heating assistance
  • Disability assistance
  • Early years assistance
  • Employment-injury assistance
  • Funeral expense assistance
  • Short Term assistance

as well as the specific top up for carers, and the addition of Discretionary Housing Payments.

Most of these clauses are a shell: they are creating powers to introduce specific benefits rather than specifying how the benefits will operate.  We already know in relation to one category, Early Years assistance, that the name of one planned benefit in the general category (“Best Start” Grants) will be different.  That leaves me some hope that they will also sub-divide “Disability assistance”, because mobility needs to be dealt with differently.

Probably more important at this stage are other aspects of the framework.  Three points are worth noting.  First, although there is an assumption that people will have to apply for benefits, there is provision to make regulations to allow claims to be registered without a claim.  Claiming is normal in the UK benefit system, but things don’t have to be done that way – it’s perfectly possible to issue certain benefits without an application (a baby box is an example, and some grants for serious disability could be made via hospitals in the same way. )  It may be possible to develop systems that deal with claimants in a new way.  (I have altered this part of the entry  from my first posting on this; I’m grateful to the parliamentary counsel who corrected me.) 

Second, reflecting some of the worst excesses of the system in recent years, there is a harsh rule covering overpayments: individual recipients are liable for the mistakes made by officials (s.36), regardless of whether or not they could have been expected to know that a mistake had been made.

Third, and most positively, all the benefits being introduced will be open to appeal to the First-Tier tribunal.

Will the DUP protect Winter Fuel Payment?

I’ve just been participating in a Radio Scotland phone in on Winter Fuel Payment.  It’s a subject that breeds confusion.  It’s not really a Winter payment; the qualifying date is in September.  It’s not really a Fuel payment: there is no connection between the money paid and energy.  It is a payment, though, and that seems to get people’s goat up – like the caller who was indignant that some people who get the benefit are able to come in to his pub.  The whole point of giving people cash is that they decide how to use it.

The reason that WFP is back on the agenda is that apparently the Democratic Unionist Party are insisting that the Conservatives keep WFP as it is.  This is ironic, because Northern Ireland has nominally been in charge of its own distinct social security system for the best part of a century.  The reason why DWP benefits  matter so much to Northern Ireland is partly a matter of political choice (the application of the so-called “parity principle”), but more recently a because of the Treasury’s insistence that Northern Ireland had to fall into line with DWP’s benefits, whether they wanted to or not.   That closes off the obvious solution, which would have been to allow Northern Ireland to do as they see fit.

 

Is Mandatory Reconsideration legal?

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.”