Category: Public administration

Aadhaar: an electronic card fails to work its magic

The Aadhaar card is an electronic system for managing the identification details of the population of India.  The current case against Aadhaar  in the Indian Supreme Court is principally concerned with issues of privacy and data management; the main argument in the court is that the card is unconstitutional, and creates the mechansims for a ‘surveillance state’.  From the point of view of social administration, it is a greater concern that people have to have a card before they can receive benefits and services.  That issue was being flagged more than a year ago, with people being denied access to rice rations because of problems in the system.  A recent report in the Washington Post adds many more examples – access to schools, food or pensions.

One of the advantages claimed for the Aadhaar card was that it was going to reduce welfare fraud.  It has had the opposite effect: people who supply the services may be able to pocket the resources that people have not been able to access.  This looks like a classic case, of imagining that the arguments for a particular IT process are universal, and disrearding the conditions where the system has to operate.  There’s a further problem, too: that even if the process seems straightforward in its own right, mistakes are very difficult to correct.  This system is supposed to deal with the largest population in the world of people who can’t read or write.

In defence of Oxfam

I have made a donation to Oxfam.  While I have some reservations about Oxfam’s stance on a range of issues, I have none about its integrity.    I’d like to endorse Richard Murphy’s defence of the organisation,  and his follow-up.  Oxfam took swift and serious action in relation to its staff in Haiti in 2011.  It reported that there were problems at the time; the offenders were fired; and since then it has publicly reported on its actions relating to child protection (most of which concerned its charity shops).  Oxfam’s main failing was that its disclosure was not full; I am not sure that it could have been.

Oxfam also claimed in its annual report to have helped help more than half a million people in Haiti in 2011/12.  This is from their web page on their work in Haiti:

Oxfam’s 100 strong team, including 15 emergency specialists, was on hand to respond with provision of clean water, shelter and basic sanitation, as well as by helping community canteens provide daily hot meals.

By providing paid employment to the people in the camps; to keep the camps clean, build latrines and clear up their destroyed neighborhoods, we put money in the pockets of those who needed it most and helped them improve their living conditions.  We reached 300,000 people with aid in the first three months.

The level of destruction and logistical challenges were among the worst Oxfam had ever faced. The Oxfam office and a key warehouse full of vital water and sanitation equipment were destroyed when the quake struck. Like thousands of others in Haiti Oxfam staff were not left untouched by the disaster.

Despite personal losses, including two Oxfam employees, a day after the quake most Oxfam staff were back in the office and they managed to salvage some of the stock from the destroyed warehouse. Oxfam Country Director, Yolette Etienne told her staff there was “no other option but to work and to work harder since we have the privilege of still being here and we can help people to overcome their desperation.”

Before we join the chorus of criticism about Oxfam, let’s remember what really matters.

A Universal Service Obligation for broadband

The government has reaffirmed a commitment to introduce a Universal Service Obligation for broadband, rejecting an offer by BT Openreach that fell short of that objective.  On the Today programme today, the minister responsible for digital policy, Matt Hancock, seemed to me to be saying that the way to achieve universal coverage was to encourage competition and more diverse providers.  Competition, in its nature, can’t and won’t do that.  Competition depends on firms finding an advantage, and choosing what to do and what not to do.  The basic comparison to make is with the postal service; universal services mean that everyone should get mail delivered, regardless of location, at a specified price.

Earlier this year, Ofcom looked at the technical issues involved in extending broadband services.  Among other things, they noted that none of the main providers would be interested in competitive tendering to administer a UniversalService Obligation.  BT Openreach had proposed  a rollout where a small proportion of households – 0.8% – would be diverted towards satellite links or asked to meet the costs of connection.  That’s a bit like saying that postal services to remote areas will be suspended unless people pay a premium (they already do for parcel deliveries.)  Commercially and economically, it always makes sense to unload costs on to the consumer; after all, people in the Western Isles could pick up their post in Inverness.  That misses the point of having universal services.  The costs of serving remote communities can’t be met without pooling of resources between those communities and others.

The worst social security policy ever?

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.

 

 

A new direction for social security tribunals?

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.

Why the Scottish Government should not be using Mandatory Reconsideration

I was told yesterday, rightly or wrongly, that the Scottish Government is planning to stick to their proposed system of mandatory reconsideration –  the requirement to submit issues for review before an access to appeal can be allowed.  The government’s justification is, apparently, that there will be an important difference between their approach and the current practice of the DWP:  benefits will continue in payment until the issue is resolved.

There are three sorts of misapprehension here.  The first is about what happens when people’s benefits are stopped.   There is a problem, but this measure is not going to resolve it.  Benefits are often stopped first – that’s why people have to challenge the decision.  If it proves that someone is not entitled, any benefits paid under this arrangement can be recovered.  So, under these proposals, the benefits will stop, restart, stop again after review, restart after appeal, and possibly stop again – with repayment demanded every time.

The second misapprehension is that a formal review process is useful or necessary. Under the previous system, all grounds for appeal were scrutinised and acted on by the Department for Work and Pensions before the introduction of MR; so MR adds nothing to the actions of the agency.  What the introduction of MR did was to create an extra hurdle for claimants – a barrier to access to justice.

That leads to the third point: that the operation of MR is unlawful.  The Policy Memorandum issued by the Scottish Government argued that

“Without a re-determination stage, it would mean that all decisions being challenged would go to a tribunal. This could lead to the tribunal being inundated with large volumes of appeals, which will increase the likely waiting times for individuals to have their cases heard, resulting in a frustrating experience.”

It’s not so frustrating as bening denied access to justice.  In Unison v Lord
Chancellor, the Supreme Court stated in terms  that the creation of administrative barriers with the intention of preventing people reaching court is unlawful. Appeals are not just there for the appellant.  They are there to make sure that the system is done right for everyone else.   If the Social Security Bill is passed in this form, expect it to be challenged.

 

“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.