“Too many errors and too many delays”: the Work and Pensions Committee condemns benefit delivery

The Work and Pensions Committee’s report on Benefit Delivery makes for depressing reading, even if there’s not much in it to surprise us.    Errors are increasing.   Turn-round targets are being exceeded and effectively ignored.  Rule which insist on assessment before payment, or claiming JSA while being rejected for ESA, lead to people being denied their entitlements.  The system of review is not working.     Underpaid benefits lead to problems of debt and deprivation.

There are two underlying issues.  The first is identified by the Committee:  the DWP has given priority to reforming benefits and the process of day-to-day delivery has suffered accordingly.  The second is a more general fault.  Successive ministers, in successive governments, have convinced themselves that better information is the answer to everything.   Time and again, snarl-ups happen because the information isn’t forthcoming – mistakes are made, the assessments haven’t been done, the reviews haven’t got round to it, the letters haven’t been opened.  Unless and until benefit rules are stripped back, conditions are forgotten and rules are made less sensitive to individual circumstances, this system will be unmanageable.  The answer is not better or faster information: it’s less of it.

Scotland’s alternative to PFI is challenged by the EU rules

The Scottish alternative to PFI, Non Profit Distributing or NPD, seems to have fallen foul of EU rules.  Today’s Guardian reports that the intervention of the Office for National Statistics will force the Scottish Government to reclassify a large number of publicly funded schemes as being in the private sector, and consequently require the Scottish Government to refinance the schemes using private money.

The rules are complex, and  I don’t claim any specialist knowledge in this field, but this is not about the way official statistics are kept: it’s a matter of substance.  There are two main classes of rules which might apply,  The first set of restrictions relates to public procurement: state intervention is not supposed to affect the level playing field between competing firms.  This is impossible to realise, because of course any public procurement will do that, and PFI in England might reasonably be considered to have favoured a specific class of large firm with specific UK experience.   Hellowell and Pollock have expressed scepticism that the NPD model is much better.  The second set of rules, which is more pertinent in the current situation, relates to the ability of public organisations to run a deficit.  The EU has a process, the Excessive Deficit Procedure,  to curb the level of the public deficit.  This is enforced within the Eurozone by Stability Programmes, and outwith the Eurozone by Convergence Programmes.  The UK is subject to a Convergence Programme, backed by sanctions, which commits it to reducing its deficit to 3% of GDP.  It happens that the programme demanded by the EU seems to coincide fairly closely with the aspirations of the current Conservative government, which might explain why the UK hasn’t been complaining vociferously about the restrictions.

There are grounds to challenge whether these rules are appropriate.  In macro-economic terms, the distinction that’s being made between public and private debt is pretty much meaningless, and shifting public debt off-book to the private sector does nothing to reduce the impact of debt in reality.   In terms of maintaining a competitive market, the idea that public procurement doesn’t affect the balance of activity between firms is absurd, and unattainable.   The very existence of a procurement programme changes the game.  The size of the commissions, the permissions to undertake economic activity, and any transfer of financial benefits from public to private (or vice versa) affect the fortunes of specific enterprises and market sectors.   If the government is serious about renegotiating how Europe works, public procurement might be a good place to start.

Death: going live after the next election

Relax; this is not about the forthcoming zombie apocalypse.  A note from the Public Health Directorate to the Healthcare Improvement Scotland explains:

I am writing to confirm death certification implementation will continue to move forward but with a new go live date.  Given the proximity of the current planned ‘go live’ date for the new scrutiny system to the UK General Election in early May next year, we have considered it would be best to move the ‘go live’ date by a few weeks until after the Election. Therefore, following discussion with key stakeholder groups we have agreed that the new ‘go live’ date will be 13 May 2015.

I’ve done a little spadework, so to speak, to find out how going live became a live issue for people working with the dead.  This is what I’ve dug up.  I think the culprits may be American (they do things differently there).     In Arkansas, for example, the Project Schedule for Electronic Death Registration began in 2009, and had seven stages:

  • Kickoff
  • Confirmation of Requirements (Gap Analysis)
  • Design and confirmation
  • User Acceptance Testing
  • Pilot
  • Go-Live at Pilot Location
  • Statewide Roll-out

It’s understandable, perhaps, that public administrators lapse on occasion into a little jargon – it’s infectious.  They really ought to be aware, though, that in any contemporary public service, whatever they do is liable to be read by a general public, and it ought to be written with that audience in mind.

Avoiding Freedom of Information through non-disclosure agreements

Why are public officials signing up to non-disclosure agreements about public procurement?  It’s fairly obvious why private contractors might want issues to be confidential;  they don’t want to be subject to public scrutiny, they don’t want to be dealing with members of the public, and they may just get a commercial advantage from their inside information.  It’s not clear that public services should be going along with that.

Last July, I attended a public meeting about the roll-out of faster broadband in my area.  The council official taking the meeting explained that 98% of the county would be covered in due course, and that some leftover communities would have to band together to develop their own systems, but he couldn’t tell us which ones, as he and other council officials were bound by a contract protecting the ‘commercial confidentiality’ of the supplier.  We might, he told us, be able to spot where the exchange cabinets would be by looking out for them in the street.  There was something wrong with that.  Part of the problem is that asking community organisations to devote time and effort to a  process that in most cases will be superfluous is hardly reasonable.  Trying to get information about government-sponsored  activity by sending out the Boy Scouts to track it down doesn’t make much more sense.

At the time, I came back home and directly sent off a FoI request to Digital Scotland, which was answered with irrelevant information.  Then in August, I asked for a review, which hasn’t been replied to.  Since then the information affecting my area has been made public – and in any case, I know where the cabinet is, so I was able to ask the people in a white van when they pulled up next to it with a clipboard.   Today I’ve been discussing the issues with someone from the Scottish Information Commissioner’s office.  All the Commissioner can do is to determine whether a decision not to release information is lawful and consistent with the legislation.  In both cases, the answer is ‘yes’; there may have been a minor breach in failing to review, but what I’d get from pursuing that is access to information which is now public anyway.

There is a point of principle here.   It seems to me that information about a publicly funded project, developed to serve citizens as a matter of public policy and dependent exclusively on development in public places ought to be public knowledge.  The effect of contracts that protect commercial confidentiality is to nullify the laws we have on Freedom of Information.    That’s hardly consistent  with the standard principles of governance, transparency and accountability we expect from public services; and it’s certainly not in the public interest.

HMRC make hardly any mistakes

I was looking up some figures on benefit expenditure, for a paper I’m giving in a few days, when I came across this  little graph from a parliamentary briefing.

fraud and error HMRC

The figures in the bottom half  are available in an HMRC paper published last June.  According to Table 5, HMRC made mistakes in the claimant’s favour in 20,000 cases, but it didn’t cost the taxpayer anything; and they made mistakes in their favour in 30,000 cases, saving £10m or about £330 a throw. This is an remarkable record – an incredible achievement, one might say. One wonders why they even bother with official error regulations when they hardly ever get anything wrong.

Further note, October 2015:  While I was trawling through the links on the blog (an unrewarding chore) I found an updated version of the HMRC paper published in June 2015, and I have altered the link to fit the new version.  This still claims that mistakes in the claimants favour cost nothing, but the estimate of £10m in HMRC’s favour is now to be divided between 90,000 people rather than 30,000.

Quotas: another zombie argument

The Guardian reports that the Labour party is considering, yet again, introducing quotas to protect the position of women and minority ethnic groups.  This time it’s about the English judiciary, but whenever the idea of quotas is mooted, it’s generally intended to protect the position of disadvantaged groups.  Good motives, however,  do not justify bad ideas.  What the proponents seem not to grasp, no matter how many times it’s been shown to be the case, is that quotas are self-defeating – either ineffective, or counter-productive – a thoroughly bad way to respond to disadvantage.

First, quotas are exclusive as well as inclusive – they define who can’t be appointed as well as who can.  So, people from the ‘wrong’ minority ethnic group are disadvantaged relative to others from the ‘right’ group.  That is the source of a string of cases in the USA, notably Bakke and De Funis.  Second, quotas become ceilings.  Elster, in Local Justice (1992), compiles a long list of evidence that while quotas may initially help to redress the balance, they shortly become devices to stop the process of equality going any further.   Third, even before the ceiling is reached, quotas act to slow down the process of redressing the balance, deterring and limiting applications from the very people they’re supposed to help.

There are decades of evidence to draw on – that’s why quotas were made illegal in the Race Relations legislation of the 1970s.   But this is another of those ‘zombie’ arguments.  It doesn’t seem to matter how often it’s exploded, cut down, disappeared or  confined, it just carries on shuffling towards us.

Remembering the password

I don’t know whether, like me, you find it difficult to remember all your passwords.  All sorts of websites demand nowadays that you should provide a secure password.  Passwords have got longer, more complex, and more convoluted.  Many people use passwords that are almost worthless in security terms, such as “password” or “12345”; many recycle the same password to several sites; some of us just forget what the password is and need numerous reminder; others write the password down and leave a note next to their computer.   So it’s not wholly surprising to be told  that when it comes to public services, people are having difficulties with security processes. Last week, Howard Shiplee, charged with Universal Credit,  told the Work and Pensions Committee that claims for UC couldn’t be digital by default because they couldn’t satisfy the elementary requirements of secure service delivery.  Jason Feeney, Benefits Director at the DWP explained that people were falling at the first hurdle in claims for Personal Independence Payment, because they couldn’t get past the security questions.

Mark Ballard, of Computer Weekly, pins part of the blame on the Cabinet Office, which has pressed digital by default services as a way of saving staff costs.  The Cabinet Office has been issuing bullish statements about its wonderful Identity Assurance Programme (IDA), which is supposed to offer secure online access:  “a simple, trusted and secure means of accessing public services”.  Ballard reads the abandonment of ‘digital by default’ in UC as a reflection on the effective failure of IDA.

I’m not a computer wonk, and I’ve only cast a cursory eye over the Government Digital Service’s Guide to Good Practice, published this month.  But if there was anything there about the experience of service users, quality of service, accessibility or citizenship, I missed it.

Seven principles of public life: time to rethink

There has been a series of scandals in public administration in Britain, where people have been neglected or abused, and those in authority have ignored them; but the process of governing ‘ethical conduct’ in public administration in Britain does not begin to address the issues.   I’ve just had a paper published in Public Money and Management (2014, 34(1) pp 11-18).  This is the abstract:

The Seven Principles of Public Life, developed by the Nolan Committee, claim to be concerned with the development of an ethical culture, but they have been imposed by central authority. The principles are muddled and unclear, but beyond that they have signally failed to relate to many of the key ethical issues which have arisen in public services in the intervening period. This paper reviews both some of the alternative principles that might be considered, and the possibility of a different approach based on virtue ethics.

Despite the official publication date of 2014, it’s been online since 29th November.  However, the paper is currently behind a paywall, so only University-based readers are likely to have access to it for the while.

The bedroom tax and the test of unreasonableness

There is another report of a tribunal deciding that the bedroom tax should not apply if the bedroom is not usable, or if it is too small.

The traditional principle in administrative law is that  the courts can only intervene if a decision is very unreasonable – so unreasonable that a decision maker could not have made it.  This is referred to as “Wednesbury unreasonableness”, in Lord Diplock’s words “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his  mind to the question to be decided could have arrived at it.”  When I first made the argument for applying the statutory standard to room size, I thought the basic case looked like this:  landlords have a reasonable discretion, and no-one can complain that applying a statutory standard isn’t minimally reasonable, so if the landlord can be persuaded to reclassify rooms, their decision can’t really be challenged.

The tribunals, however, are going much further than that.  For an explanation, I’m indebted to another blog, Public law for everyone, which drew my attention to a speech by Lord Carnwath.  Carnwath makes it clear that the courts have left the Wednesbury principle behind.

In 19 years as a judge of administrative law cases I cannot remember ever deciding a case by simply asking myself whether an administrative decision was “beyond the range of reasonable responses” … My approach I suspect has been much closer to the characteristically pragmatic approach suggested by Lord Donaldson …”the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take”.  If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one.

The position taken in tribunals so far seems to be simple enough: where there are bad decisions, they will change them.  The primary test, Lord Carnwath says, is whether or not a decision is unfair.  In the case of the bedroom tax, too many decisions are.

Are there targets for the number of sanctions?

I’ve done a couple of turns this week for the BBC.  The first, on Tuesday, was for Radio Scotland’s Call Kaye, on universal benefits for pensioners.  The second, late last night, was on Newsnight Scotland, covering JSA sanctions.  Gordon Brewer, the presenter was apologetic to the viewers: they couldn’t get the DWP, Conservatives or Liberal Democrats to put anybody up, and all they could offer instead was me.

I was asked specifically to say whether or not Jobcentre Plus was working to targets.  This isn’t a subject I’ve covered before in the blog, and I thought I ought to explain the answer I gave.  Following accusations about targets in the Guardian, the DWP, which denies that it has such targets,  held an internal inquiry.  The report by Neil Couling, published last May, is here.  It claims repeatedly that there is ‘no evidence’ that there are such targets.  But it also goes through a dossier of thirteen papers which seem to show the opposite.  In each case, the argument runs, people who had written about targets were doing something that was inconsistent with current policy.

Example three is a photograph taken of a poster in a Derbyshire site which states numerically a minimum level of referrals which the office should be looking to make. This was also detailed by the Guardian. Upon investigation, this chart was intended by local management to ensure consistency both across their Adviser teams and with other sites with similar labour markets. The poster was removed in January 2013. There is no evidence of any formal target setting here but there was clearly an expectation set based on numerical averages which is against policy.

Example seven consists of excerpts from three e-mails … These e-mails do refer to benchmarks being applied but are also specific in that referrals should only be made where appropriate. …  The content of the e-mails, in part, does not reflect the current policy and is therefore unacceptable …

Example 10 is an excerpt from an e-mail sent by a cluster manager in which flight-paths and targets are mentioned. This was also detailed by the Guardian. The detail and tone of the e-mail clearly contravenes our policy. This has been raised with the District Manager who agrees that the wording of the e-mail was inappropriate and has taken action with the individual to remedy this.

Couling suggests that where an agency has been conditioned over several years into thinking of guidance as a target, it can be difficult to stop. It might equally be argued, of course, that this particular vice is liable to encouraged if central agencies present their guidance to administrators in terms of numbers and league tables.