Category: Public administration

“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.

“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.

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.

Who should run an inquiry?

I have no idea how good Sir Martin Moore-Bick, the judge appointed to head the Grenfell inquiry, is at judging the law, but I do have my doubts as to whether the skills and legal knowledge of a judge are the same as the skills needed to conduct a public inquiry.  We have had a long string of public inquiries where the legal chair was plainly out of his or her depth (such as the long-running inquiry on historic sexual abuse), or where the lawyer in charge applied inappropriate tests in the belief that what was required was a legal judgment (for example, Lord Clyde demanding standards applied in criminal procedures in cases of child protection).  We’ve also had a string of recent inquiries – Francis, Levison, and this week’s Oldham report on Jersey – where it’s been painfully clear that the inquiry chief didn’t know how to write a report.  Just look at the ‘executive summaries’.  In each case, the authors seemed to be afraid to leave anything out.

A judge needs to manage a hearing, understand and apply the law, discipline opposing parties to focus on the issues that are needed, deal with arguments comprehensively and make a legal determination.  That’s a formidable task, requiring considerable expertise, but it’s not at all what’s asked of an inquiry chair.  An inquiry is not a trial.  It is exploratory rather than adversarial.  It calls for lines of communication to be established with all parties, and for consultation and engagement, and for people to be given a hearing and the opportunity to express themselves.  (It’s not coincidental that some of the best inquiries have been  made by social work professionals –  Herbert Laming and Alexis Jay – who are very good at listening.)  Evidence has to be sorted, synthesized and selected.  There has to be clear public communication about that selection.   This is the role of a researcher, not an judge.

A failure of emergency planning

Following the dreadful events in North Kensington, much of the public criticism has been directed at national politicians.  They’re not exempt from their part of the responsibility, but the PM’s office is not where the primary authority, or responsibility, rests.   Every local authority in the UK has a statutory duty to make plans for emergencies, and the first question should have been about what the local authority was doing to implement its emergency plan. Kensington and Chelsea formed their most recent plan, dated 2015,  in conjunction with Hammersmith and Fulham; the coordination of arrangements with Hammersmith and Fulham is scheduled to come to an end next year, but that does not excuse any failure now.  The emergency plan can be found here, on the Hammersmith and Fulham site (on page 6, it’s co-signed by the responsible K & C officer).   It tells us that what the local authority was expected to do, and they should have been ready to do within three hours of the reported incident (the three-hour guideline is on page 10; during a working day, it should have been activated within 45 minutes).  This, from page 17, identifies specifically the roles that the local authority might be expected to fulfil:

Maintaining statutory services at an appropriate level, wherever possible.

Supporting the emergency services and other organisations involved in the immediate response. This could include:

  • Clearance of debris and restoration of roadways, provision of engineering services and emergency signing.
  • Structural advice, and making safe or demolition of dangerous
    structures.
  • Assistance in the evacuation of the civilian population.
  • Provision of premises for Body Holding Centres, Survivor Reception Centres, Friends and Relatives Reception Centres, briefing and rest facilities for emergency services personnel.
  • Provision of a Temporary Mortuary.

Providing support services for the community and others affected by the incident. This could include:

  • Provision of Emergency Rest Centres, with food and beverages, beds, and welfare services.
  • Provision of a Humanitarian Assistance Centre.
  • Provision of emergency sanitation and hygiene services.
  • Re-housing of those made homeless, in both the short and long term.
  • Inspection of and emergency repairs to housing.
  • Environmental health management.
  • Implementation of measures to control the spread of disease.
  • Establishing Community Assistance Centres for the dissemination of information and support to those affected by the emergency.

Enabling the community to recover and return to normality as soon as possible.

Given the failure of the local authority to provide most of this, it is not surprising that they have not sought to use their existing powers more extensively – such as the power to promote welfare, to purchase property voluntarily, or to invoke compulsory purchases.  But that is what would happen in much of continental Europe  – for example, when Jacques Chirac, as mayor of Paris, effectively commandeered empty property in the rue du Dragon for use by homeless people.  (Chirac, in case people have forgotten, was a conservative.)   That was done by agreement, under threat of requisition.  There are places in North Kensington where the displaced people could live.

 

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.”

Review: B Greve (ed) Handbook of Social Policy Evaluation, Elgar 2017

This is a review of a book I’ve been sent by the publisher, Edward Elgar. I’ve explained the terms on which I review books here.

Bent Greve, the editor, explains that this book is intended to cover “methodologies, cases and how and when to make evaluation in social policy, and its possible impacts”.  Part 1 offers six chapters on the techniques, most of the chapters in part 2 discuss issues in evidence based policy making, mainly offer discussions of evidence on sixteen policy areas (though two of the seven chapters are really case studies rather than discussions of that sort), and part 3 has ten further chapters of case studies.  That really means that half this book is about evaluation and evidence, and half is discussion of specific policies.  The more interesting case studies, to my mind,  were on medicines, long term care and interventions for children, but none is exceptional.  A couple of the other case studies are discussions of policy, not centrally about evidence or evaluation at all.  This does not add up to either a book on evaluation, or a handbook for people who want to do one.

The real place to start, unfortunately, is the price.  This book, 520 pages plus index, costs £195 – that’s not a misprint.  (NB: Since I posted this review, the publishers have told me there is a cheaper e-version at £36 on Google Play.)   The price might be defended for a library purchase if this was an irreplaceable, essential read, but it’s hard for any collection of papers to meet that standard.  Like most collections, it has a mix of good and not so good, and there’s a lot of competition out there.  On evaluation, Parsons’s short book on Demystifying Evaluation (Policy Press, 2017) is a relatively  accessible and practical guide.  I still like Michael Scrivens’ Evaluation Thesaurus, even if it was published in 1991; his evaluation checklist is available free on line.  On evidence and policy, there have been several recent books; I’d recommend Justin Parkhurst’s The politics of evidence (Routledge, 2016) an insightful and well-written book that explains a lot of what’s wrong with the main approach in this one.  Parkhurst’s book is available in a free Open Access version.

There’s other stuff out there for free, too.  The World Bank offers a virtual library of methods and case studies in evaluation, along with guides such as P Gertler et al,  Impact evaluation in practice (World Bank, 2011).  There are problems with the  World Bank’s approach; it’s technocratic and liable to be uncritical.  The objections are

  • theoretical – evaluations, especially RCTs,  often look at the wrong things in the wrong way;
  • political: aims, methods and outcomes cannot be understood in a political vacuum;
  • statistical: the variables are interdependent, the methods heavily sensitive to the statistical assumptions  and results are unlikely to be replicable; and
  • evidential: the available data don’t support the main methods.  Garbage in, Garbage out.

Some of the writers for the Handbook refer to some of these points, but neither the criticisms nor the practicalities are dealt with thoroughly.   A reader has to dig for the objections, because they are referred to in the context of the paper where they occur, not systematically – you have to get through a hundred pages, well into the chapter on systematic reviews, before you even catch the sense that the “evidence hierarchy” introduced on page 6 is contentious.  There may be room for a state-of- the-art review of evaluation and policy, but this isn’t it.

New research: listening to social security officers

For the last three months, I’ve been working with Helen Flanagan of PCS to listen to the voices of social security officers about the social security system.  PCS is the civil service union representing people working for the DWP, HMRC and others.  Helen’s explanation of the work can be seen here, but it will be mid-May before we’re able to publish the findings in detail.  Yesterday’s meeting made liberal use of the things said by DWP officers, in three contexts: a pamphlet issued by PCS on the Future of Social Security in Scotland, a film by Jennifer Jones, and initial findings from our report – we still have statements from fifty or more people to process.

This is from Helen’s summary.

  • Over 200 staff have participated so far, in their own time, from a range of DWP workplaces in Scotland.
  • Discussions were not limited to the devolved powers, we wanted input on policy, structure, working conditions, the experience of service uses, and what goes wrong with service delivery.
  • What we have with DWP is a system in chaos: the constant change and reorganisation of work, with inadequate staffing levels, poor training and failing off-the-shelf IT systems.
  • What we have also found is a real desire from staff in DWP to be able to serve people better, and for a system that treats those applying for help with humanity.

And, although I can’t really do justice to the range of issues, or the sincerity of people’s voices, in a short soundbite, let me pick out a couple of things that people have told us:

Really senior leaders are saying that we’ve never gone through the scale of these changes, but then on the other hand, things are just pushed through without planning. They expect staff to be ‘calm amongst the madness’, but then staff are then  hit about the head by management if they don’t adapt to the changes properly.

Segmentation plays a big part in bad service. Cases bounce about. It’s really difficult to embed with it or own it yourself. You can’t take ownership of anything.

The current robotic system fails to take much notice of the human factor and the fact we are dealing with real people

Morale is appalling. The deskilling that goes on in this place is appalling. I … was no more skilled than anyone else when I came in. All the changes that have come in over that time, I’ve had skills and training, but they’ve picked away at all that specialisation and skill, so you’re demoralised and run down. You have to put you in menial tasks and deal with small stuff rather than deal with proper work.

P.S: This was my 800th posting on the blog.

 

Benefit administration: some lessons from the United States

The UK may have some claim to distinction in its efforts to transform the benefits system, but we are not alone.  In the United States, revisions to health care have been taken as a stimulus to States to introduce new computer systems that will solve all the problems, typically covering Medicaid (health care for people on low incomes), food stamps and other benefits such as help with maternity.  Kentucky was early off the blocks: they hired Deloitte Consulting to introduce a new system.  50,000 people suffered ‘massive disruption.’  The Kentucky Courier-Journal reported:

“State workers, bewildered by the complicated new Benefind system, find themselves obstructed from helping many clients by errors, glitches and programming flaws.”

When Deloitte moved on to their next big contract with Rhode Island, covering 30,000 people a month, they were determined not to repeat the same mistakes.  A spokeswoman explained to the Providence Journal in Rhode Island:

“The design, development, testing and implementation of this new system is unique to Rhode Island and the people we serve. Kentucky used a different approach on all of these things.”

Instead, they found new ones to make. The Governor of Rhode Island complained that

“We paid them a lot of money, we didn’t get what we paid for. And they represented to us that it was in much better shape than in fact it was: defective functionality, incomplete interfaces, engines that still aren’t working.”

The formal  Assessment of the Unified Health Infrastructure Project  (it’s quite short, and worth reading) reports that

  • the IT system was not functioning properly
  • despite reassurances from the contractor, the system was not ready to go live when it did
  • too much was taken on trust because of the contractor’s experience in industry
  • staff had not been properly trained
  • “Basic user functionality and important interfaces … have significant defects or have been deferred, requiring extensive manual workaround processes”
  • benefits were not processed when they should be, and not withdrawn when entitlement had ceased; there were “errors in eligibility determination, benefits issuance, and
    provider payments”.

To those engaged in Universal Credit, it all looks eerily familiar.

Nothing daunted, Deloitte is now engaged in an even bigger project, providing a new system for income testing and assessment for the state of Georgia, expected to cover three million people.  A spokeswoman for Georgia’s Department of Human Services has reassured Georgia Health News that “We had the benefit of watching other states.”   As do we.

John Slater explains the thinking behind the project management of Universal Credit

John Slater has been responsible for a series of Freedom of Information requests about the Universal Credit fiasco.  Yesterday he sent me a copy of the project management plan  introduced by Howard Shiplee, who was responsible for the development of Universal Credit from May 2013 until his departure, following illness, in September 2014.  Shiplee had previously been responsible for building construction for the 2012 Olympic Games.

I was puzzled by the plan, and wrote back to John:

I’m baffled – I can see no relationship between the steps to be taken and the design of a social security system. It looks more like a plan for building a McDonalds outlet, where all the groundwork’s laid and you know exactly what you want to do, so it’s all about delegating tasks. … I think you’re a project manager, John – – can you explain it to me?

I found John’s response so marvellously clear and helpful that I asked him if I could share it on the blog.  Here it is.

“Hi Paul,

You are right my background is programme and project management (my first degree was IT so I understand that aspect as well). You aren’t far off with your McDonalds analogy.

The plan is a classic case of an organisation focusing on the IT side of a major change programme. UC is one of the biggest change programme ever undertaken and nothing I’ve ever seen produced by the DWP reflects this.

The 100 day plan is a classic example of people that have been on a training course (e.g. Prince2 or Management Successful Programmes) but have never done the job for real. If you look down the left hand side of the ‘plan’ you’ll see the following headings:

  1. Key dates & decisions
  2. BT – Business (I suspect BT means business transformation)
  3. BT – Service Design & Build (I suspect BT means business transformation)
  4. BT Interfaces (I suspect BT means business transformation)
  5. Pathfinder Day 2
  6. Programme Approach
  7. HR
  8. Finance
  9. Assurance
  10. Security
  11. Comms (Communications)
  12. Stakeholder
  13. Supplier

With the exception of point 1 these are typically referred to a work streams. The idea is that each of the workstreams goes along their merry way cooperating with each other to deliver the programme. The reality of this approach with any complex programme is that it always goes horribly wrong.

If you look at points 2 to 5 then it is utterly focused on the IT. The plan looks like something to produce a software product of some sort. There is no mention of culture change, process engineering (this should be done before any software is produced) and the biggest issue of all people! This covers the claimants, DWP employees, Council Employees, Welfare Advisors and so on. They are just expected to magically learn and make it work. The trouble is human beings don’t work that way.

Part of the issue is that the DWP employees working on UC at the time hadn’t ever done anything like this before so didn’t have a clue. The put people in roles (e.g. programme manager, programme office manager etc) but they hadn’t done it before and had just been sent on a training course.

I’ve been doing this stuff for 30 years and I would have struggled to get UC up and running (and I’m very good at this aspect of complex programmes). Bringing in someone like Howard Shiplee was always going to fail. I’ve run programmes involving a lot of construction and it’s a different world and a totally different mindset. I suspect if you looked at the approach used for construction during the London Olympic build it wouldn’t look dissimilar to this plan. With construction the focus is generally on design and then build (known as D&B). The key factor is the supply chain and can the main contractor get the materials and people on site on time and in the right order. If you look at the plan again I don’t think it’s unreasonable to see the left hand side of the dark vertical as ‘design’ and the right hand side as ‘build’. This is what Howard Shiplee understood and it was so deeply ingrained I doubt he could have done anything else.

In respect of the pathfinder system released at Wigan it was a cobbled together lobotomised version of the IT that would ultimately be required for the complete UC. At this stage of the programme IDS knew the IT was fundamentally flawed, hence the talk of large sums being written off at the time. He also knew that they had to start over again but couldn’t admit that as it would be politically disastrous. Therefore, they rolled out the lobotomised version that only covered a small subset of people claiming JSA and claimed success. While this version was being rolled out painfully slowly the DWP was working desperately to produce a brain new IT system that ultimately will be the UC IT System.

Personally I think the new IT system will also fail. The methodology (Agile) as it’s been used by the DWP means that too much has been done in isolation. The system is going to be extremely complex and as bugs appear I’m not convinced the DWP will be able to find out the cause and then develop a solution that doesn’t result and another problem.

Kind Regards

John”