Tagged: disability benefits

The disability clauses in the Scotland Bill

The Devolution Committee of the Scottish Parliament has published a lengthy report reviewing the provisions of the Scotland Bill.  I get a brief mention, because I was asked to submit evidence about the fiscal framework, but I want in this entry to address a different issue, concerning the clauses about disability.  As it stands, the Bill has five distinct definitions of disability:

  • two definitions deriving from the definition of a disabled person as someone receiving a disability benefit, which is

a benefit which is normally payable in respect of—

(a) a significant adverse effect that impairment to a person’s physical or mental condition has on his or her ability to carry out day-to-day activities (for example, looking after yourself, moving around or communicating), or

(b) a significant need (for example, for attention or for supervision to avoid substantial danger to anyone) arising from impairment to a person’s physical or mental condition

  • a recipient of Severe Disablement Allowance,

a benefit which is normally payable in respect of—

(a) a person’s being incapable of work for a period of at least 28 weeks beginning not later than the person’s 20th birthday,
or  (b)
a person’s being incapable of work and disabled for a period of at least 28 weeks

  • a reference in the provision for carers, which is to a disabled person as

a person to whom a disability benefit is normally payable

  • and a completely different reference in clause 31 on employment support, where

“disabled person” has the same meaning as it has in the Equality Act 2010

I put it to the Devolution Committee last year that these definitions were not adequate.  I wrote then:

“The Smith Commission proposed the devolution of powers relating not only to disability but to those who are ill.   The use of a more restrictive definition is a matter of concern to some agencies working with disability, such as the Multiple Sclerosis Society and the Scottish Association for Mental Health. The use of the Equality Act definition of disability would have automatically brought in some classes of illness, such as people with multiple sclerosis or HIV/AIDS; the new definition does not.”

Subsequently the Committee received assurances from the Secretary of State, and those assurances are the ones included in their final report.

“344.  He explained that the reason that there is a variation in definitions used for disability between clause 19 and the clause relating to employment provisions is to accommodate different devolution issues. The UK Government’s view is that the Equality Act 2010 definition would not be appropriate for clause 19 and, indeed, could put limits on the Scottish Parliament’s ability to decide who is, and who is not, covered by their provisions relating to disability benefits. The definition used in clause 19 is designed, in the UK Government’s view, to cover the adverse effects or needs arising from an individual’s health condition or disability, with the proviso that these effects or needs must not be short-term.

345.  The Secretary of State concluded by noting that the inclusion of the phrase “normally payable” gives the Scottish Parliament the necessary flexibility to create exclusions or to create special categories, for example to enable provision for people who are terminally ill. The phrase “normally payable” was explained in more detail by the UK Government. It said, “The phrase “normally payable” is designed to provide sufficient flexibility to enable provision for exceptional cases – for example it would enable provision to be made to prevent the payment of benefit in situations where a person is temporarily accommodated at public or local expense in a care home or is receiving free in-patient treatment from the NHS or to enable the payment of benefit in situations where a person is terminally ill.

Only the courts could ultimately decide whether or not these statements are true, but while there is some force in the first paragraph, the second has to be wrong.  The disability clauses are not defining the scope of Scottish benefits; they are defining the powers of the Scottish Parliament to legislate in this field.  All the clauses on social security start from the principle that the Scottish Parliament has no powers relating to social security unless and until those powers are explicitly granted.  The Scottish Government  has no right to assume that if a benefit is ‘normally payable’ under one set of circumstances then that carries the implication it  might also be treated as payable in different circumstances.  A person might be terminally ill without meeting either of the key criteria in s 19, and if that was true,  the Scottish Parliament would have no right under these clauses to create a benefit.

In the absence of opposition from central government, it is unlikely that this would ever get to court.  The main stumbling block is likely to be the Scottish Parliament’s own lawyers, who are quite properly concerned to work strictly within the rule of law, and have blocked legislation that is outwith the Parliament’s competence before.   It may still be possible to use the other powers in the Bill – the power to create new benefits or to top up reserved benefits – to cover the contingencies that have been left out.  (This was not an option when I made my submissions a year ago, but it is now.)  It would have been so much clearer, and so much easier, if we were not dealing with such restricted and muddled definitions of disability.

The NAO expresses concern about disability assessments

The National Audit Office has expressed concern about the management of contracts for the assessment of people on ESA and PIP.  98% of claimants for PIP have been receiving face to face assessments. They are critical of ” a cycle of optimistic targets, contractual underperformance and costly recovery”.

The DWP has been quite clear about its reason for doing so many assessments:  they save money.

“The Department introduced a target of 1 million ESA assessments to be carried out in 2015-16. It told us it derived the non-negotiable target from the number of assessments needed to achieve expected benefit savings rather than from discussions with bidders or modelling of the possible number of assessments.”

Assessments do save money.  Some people would say that that’s because people aren’t really entitled, and the assessments find them out; but it’s just as likely that the assessments are counting people out for the wrong reasons, such as not getting to the interview, not understanding the tests, or relying on the wrong sort of evidence.   The assessments are slow, intrusive, and presumptuous (they overrule extensive medical evidence about people’s situations over time).  We ought to be asking whether assessments are really the right way to save money, or whether we need to review the rules so that the benefits make more sense to everyone.

Problems with PIP

The Personal Independence Payment , which is being introduced to replace Disability Living Allowance, is supposed to refocus the assessment on people’s capacities.  It’s not clear that it does that.  What it does do is to make the whole thing much more of a tick-box affair, similar to the assessment of ESA, and like ESA tending to disregard supplementary evidence from professionals who know what’s happening.  Some of the welfare rights officers I was listening  to this week, at CPAG Scotland’s welfare rights conference, didn’t mind too much; standardisation makes the whole thing more predictable, even if it doesn’t exactly do what the government thought it should, personalising benefits more sensitively.

In a court case reported ten days ago, the delays in the delivery of PIP were roundly condemned.  The two claimants had been waiting for ten and thirteen months.  The DWP is suggesting that the delays are now down to seven weeks on  average, but that figure might not cover the length of the whole process, and there may still be very long delays in particular circumstances.  I understand  that there are more likely to be problems when home visits and needed, and so in remote and rural areas.  Welfare rights workers were saying that it could help to rearrange assessments at distant centres – which is useful to know for claimants in difficulty, but it’s hardly a triumph.

The delays, could, and should, have been avoided.  The fundamental problem with PIP is that it relies on individual reassessment, based on the model used in ESA.  The plan is to have something like three and half million assessments by 2018.  In principle, there was some allowance to excuse some claimants, possibly up to a quarter; but in practice, according to last year’s National Audit Office report, there are face to face assessments for 97-98% of claimants.  They needed to go in the opposite direction.  The main way to do that is to reduce the number of face to face assessments, and there is an easy and fair way to do that without compromising the principle of individual assessment – start accepting medical evidence.

Cutting £12 billion from benefits

A leaked document, mentioning a few possible cuts to benefits, has been widely reported.  I’d previously commented on some ideas floated by Iain Duncan Smith, including cuts to large families, refusing benefits to immigrants and limiting the welfare cap.  Regardless of their popular appeal, these are no way to make major economies – they address imagined problems, and there’s not much money to be saved from cutting benefits that aren’t being paid in the first place.  The new list is rather more serious:  limiting the scope of carers’ benefits, transferring the burden of the industrial injuries scheme to industry and making disability benefits taxable.  These still wouldn’t save £12 billion, but (for a change) the ideas have obviously been compiled  by a team who actually know how the benefits system works.  The Financial Times reports that the DWP team has been working to directions from Sir Jeremy Heywood, head of the Civil Service.

The government has been eager to disown the document.  “It’s wrong and misleading”, a spokeswoman for Iain Duncan Smith said, “to suggest that any of this is part of our plan.”  There has been no official explanation of where the government thinks £12 billion could be cut from benefits.  That’s unusual in a Budget, which tempts me to speculate that the Chancellor might not have had the agreement of his coalition partners to the projected savings.  But the explanation might be simpler:  with the election looming, telling several million disabled people and their families that their benefits are about to be cut may not be  the smartest way to go.

Some thoughts on disability benefits

After my session last week for the RNIB, I was interviewed on Insight Radio.  You can hear me blathering about disability benefits here. The podcast (nearly 11 Mb) covers two main themes: the implications of the devolution of benefits for people with disabilities, and some of the ways that disability benefits might be delivered more simply.

The Scottish Vision Strategy

I spoke today at the Royal National Institute for the Blind’s conference on the Scottish Vision Strategy, explaining some of the problems involved in the devolution of benefits, especially those for people with disabilities.   Really enthusiastic listeners at conferences tweet about it; no-one tweeted about mine, but there was an enthusiastic tweet about Ian Hamilton’s guide dog, Renton.  That puts me in my place.  For the truly dedicated, the audio recording of my presentation is here, provided as a podcast by Insight Radio (76mb).

On a personal note, I’m full of admiration for the way that blind people  manage their circumstances in a world that makes no concessions to them.  My late father, who was determined not to adapt to going blind, generally treated his white stick as a badge of shame, dragging it behind him if anyone made him carry it (that rather defeats the purpose).    Ken Reid, who is the UK Vision Ambassador for Scotland, commented: “Being blind is pretty much the same everywhere.  It’s rubbish.”

Ava's appeal: should a child with a disability still get benefits if her father works abroad?

A former student  asked me if I’d comment on a particular case reported in last week’s press.  A girl from Preston with serious disabilities has been denied DLA because her father is working in Germany.  The picture shows her mother’s response.


The rules are complex.  When people are working in EU countries, they generally their benefits from the ‘competent state, which will usually be the place where someone works.  There’s a long list of benefits which are covered in these rules:  DLA care component is treated (oddly) as if it was contributory, and DLA mobility component is treated as a ‘special non-contributory benefit’, but the upshot of it is that only the competent state will be liable to pay.  That’s the position, then, which has led to the DWP claiming that Germany should be paying in this case.

The rule doesn’t make any sense.  Consider it first from the perspective of the operation of benefits in the UK.  Some benefits are income tested; many aren’t.  People’s pension does not go up or down because they have an occupational pension – or because they have overseas investments.  DLA is non-contributory and non-means tested; it isn’t affected because people have a court settlement, or an industrial injuries benefit, or a war pension.  So why should it change if people get a benefit in Germany as well – or if they don’t?

Next, consider it from the perspective of the European Union.  Benefits are not like residential care units, where people can only get one place at a time; people can draw income from several sources.  The European Union has been trying to develop networks of solidarity that cut across national boundaries.  Pensioners commonly get money from government and from occupational pension funds.  That’s what European integration means.  So a rule that leads to benefits stopping at national borders undermines one of the central principles of the single market.

I think the DWP’s interpretation in this case is doubtful, and it may well be challenged in the courts before long.  It looks too as if they’ve suspended benefits on the basis that Germany ought to accept liability for a non-resident disabled person, in circumstances where the UK itself wouldn’t.  There’s an evident  problem  in introducing rules that are so obscure that the DWP itself gets it wrong on its first go and where no-one has any hope of working out what ought to happen unless it goes to court.  This is bad practice in every sense, and it ought to stop here.

The Smith Commission

The Smith Commission has reported.  It was tasked to “deliver more financial, welfare and taxation powers, strengthening the Scottish Parliament within the United Kingdom”.  The powers that are promised in relation to benefits are limited:

  • The size of the areas being devolved is limited.  HM Government’s Scotland Analysis identified nearly £18bn of expenditure on benefits and tax credits for 2012/13.   Smith  proposes devolution of about £3bn out of that £18 bn.
  • The powers that are being delivered are hemmed in by the framework of the systems they are currently part of.  Income tax variation will be subject to UK rules on allowances and liability.  Although there will be some variation, Housing Benefit is not being devolved; it will be locked into the structure of Universal Credit.
  • Several important areas have been reserved, including the structure of the DWP and the imposition of conditionality and sanctions.

At the same time, there are some interesting movements towards devolution:

  • The devolution of a substantial package of benefits covering disability and related issues: Attendance Allowance, Carer’s Allowance, Disability Living Allowance (DLA), Personal Independence Payment (PIP), Industrial Injuries Disablement Allowance and Severe Disablement Allowance.  I had argued for devolving a group of inter-connected benefits, rather than taking Attendance Allowance in isolation; I’m pleased to see this here.
  • The creation of powers to develop new benefits as appropriate, which I’d also argued for specifically;
  • The devolution of employability provision, which will take hold as current contracts expire.

The continued reservations seem to indicate that the Commission began with a presumption against devolution, rather than a presumption in its favour.  The only reason I can see for reserving conditionality and sanctions seems to be a fear that the Scottish Government might have chosen to do something differently.

ESA assessments: the system is broken

Information from a range of sources suggests that the system for assessing entitlement to Employment and Support Allowance has broken down.  The most obvious immediate problem is the withdrawal of Atos from the system, leading directly to a backlog of 712,000 assessments.   Quite apart from that, however, is the revelation that in addition to  the  extensive numbers of decisions overturned on appeal, there are also many more being overturned after reconsideration by the DWP.  Ilegal has put together information from several sources – the Tribunals Service, a statement in the House of Commons about internal reconsideration in 2010 and 2011 and a further response to a Freedom of Information request covering 2012 and 2013.  There are gaps in the data, which makes it difficult for me to verify their figures, and there needs to be more information about what is being appealed in what circumstances, but Ilegal claims that the tally comes to well over half a million incorrect decisions over the past five years.   The Guardian reports that, with the introduction of ‘mandatory reconsideration’ before appeals are possible, ‘thousands’ of claims are being held in limbo – from the scale of the problems, that could be hundreds of thousands.

This shows the futility – and overweening presumption – of trying to run a benefits system for millions of people by trying to make difficult, personal assessments of their physical capacity.  Much of this could have been done more simply, effectively and quickly if the government had been prepared to accept some pragmatic compromises.  I’ve made, in the past, some modest proposals for simplifying the system, such as accepting medical evidence of certain conditions like cancer or congenital learning disabilities as sufficient for admission to the ‘support group’. The scale of the problem now means this needs to go much further.   The benefits system should accept certification from hospital consultants and  exempt certain large categories of disability such as stroke or degenerative diseases.   Sickness benefit should be restored for relatively short-term issues like pregnancy.  Independent assessment should be reserved for cases where there are  reasons for doubt.

Delays to Personal Independence Payment

The reports of delays to the implementation of PIP are hardly a surprise.  I was expressing doubts about the programme over eighteen months ago, and the Major Projects Authority had picked it up as a project in trouble last May.   As Anne Begg has commented, however, delays are no bad thing. many problems to date, such as the hamfisted attempt to reassess claimants for ESA, have been caused because the government has tried to do too much too quickly.