News Items
Reassessment of incapacity benefits claimants
The reassessment of 1.5 million existing incapacity benefits claimants commenced on 11 October 2010 with a trial in the Burnley and Aberdeen areas but the full national reassessment process only began in 4 April 2011. The process is expected to take three years to complete
The DWP has published statistics on the first 114,000 incapacity benefits claimants to be reassessed under the work capability assessment. The new figures, published on 15 March 2012, show that, of the 114,000 claimants who started the reassessment process before July 2011, 63 per cent were found to be entitled to employment and support allowance, with 34 per cent placed in the work related activity group and 29 per cent in the support group. The remaining 37 per cent were found fit for work.
For more information click here for link to DWP website
It should also be borne in mind that according to 'Employment and Support Allowance: Outcomes of Work Capability Assessments, Great Britain – new claims', for the period from March to May 2011 40 per cent of all fit for work decisions have been appealed against and that, of appeals relating to claims made between September to November 2010, 33 per cent were successful. Click here for link to report on the DWP website.
Debt Relief Orders and the Social Fund
Following the December 2011 decision of the Supreme Court in Secretary of State for Work and Pensions v Payne & Anor [2011] UKSC 60 (which held that the DWP was not able to recover a social fund loan during a debt relief order moratorium period and on the making of a bankruptcy order), the government has introduced the Insolvency (Amendment) Rules 2012 (S.I.No.469/2012) which exclude social fund loans from the bankruptcy scheme and debt relief orders from 19 March 2012. The change does not affect the position regarding overpayments. Click here for link to legislation.
In a written answer to parliament on 8 March 2012, in response to a question from Jonathan Edwards on whether the Secretary of State plans to bring forward legislative proposals to exclude benefit overpayments and social fund loans from bankruptcy and debt relief orders, the Pensions Minister Steve Webb said:
"From 19 March 2012 the Insolvency Rules will be amended to ensure that social fund loans will be outside the scope of a debt relief order and will no longer be provable debts in a bankruptcy.
This reflects the nature of the discretionary social fund which relies on the recycling of funding through repayments. If we were not to take this measure, the Department's ability to make new loans to vulnerable people would be severely restricted. Benefit overpayments will continue to be subject to various forms of insolvency relief but debts occurring due to fraud will be excluded from such relief where the law permits."
Click here for the link to Hansard.
DWP consults on detailed proposals in relation to PIP and reform of DLA/AA
On 26 March 2012 the DWP issued a consultation on detailed proposals in relation to the personal independence payment (PIP) and the reform of disability living allowance/attendance allowance (DLA/AA) called 'DLA reform and Personal Independence Payment – completing the detailed design',
The document sets out a number of proposals on the implementation of PIP, and related reform of DLA/AA. These include proposals concerning:
- Eligibility to benefit, e.g. residence conditions:
- reassessing existing DLA claimants;
- the timetable for reassessment;
- information requirements for the new benefit:
- when payment of DLA will stop and PIP will commence;
- award durations and reviews; and
- passporting arrangements.
The proposals concerning the residence conditions for PIP include that (i) claimants will need to be present in the UK and meet a habitual residence test and (ii) after four weeks temporary absence abroad PIP will no longer be payable and entitlement will end. The relevant sections from the consultation document are set out below:
"Habitual residence test
We propose that claimants will need to be present in Great Britain and meet a habitual residence test. DLA claimants have to be present and ordinarily resident in Great Britain – this is a similar test to habitual residence. Claimants of income-related benefits, such as Jobseeker’s Allowance (income-related), already have to meet a habitual residence test. Requiring Personal Independence Payment claimants to meet a habitual residence will align the residence tests with other benefits so that claimants only have to meet one test (para 21).
Temporary absences abroad
Section 77(3) of the Act states that a person must meet prescribed conditions relating to residence and presence in Great Britain. The current absence abroad rules for DLA were introduced in 1992 and were based on the rules for Attendance Allowance (introduced in 1971). Under regulation 2 of the DLA regulationsan individual can be absent for up to 26 weeks for any reason before they lose entitlement to benefit. This period can be extended for an unlimited period if the Secretary of State has given prior agreement to medical treatment outside Great Britain.
There have been many social and economic changes since 1971 and it was never envisaged that benefit claimants would generally be allowed to spend lengthy periods abroad. The present provisions date from a time when absences were mainly for treatment in sanatoria in Europe, where for instance long term rest was recommended.
We consider that continuing to pay benefit for up to six months abroad no longer reflects the original policy intention and provides a loophole whereby people who are mainly resident abroad could continue to claim benefits by claiming they are on extended holidays.
We propose that after four weeks abroad Personal Independence Payment should no longer be payable and entitlement should end. Around 75 per cent of working age DLA claimants are also in receipt of incapacity benefits (including Employment and Support Allowance) and these benefits only allow an absence of four weeks abroad. Also, the 14 per cent of DLA recipientsin work are unlikely to be able to take more than a four week holiday abroad. However, where people have gone abroad for specific medical treatment we propose that the period of absence be extended up to a maximum of 26 weeks.
According to the Office for National Statistics International Passenger Survey the average time working age people spend out of Great Britain is 11 days in a year. We therefore think the proposal to limit temporary absence abroad is proportionate and reasonable," (paras 3.26 – 3.30).
The closing date for responses to the consultation is 30 June 2012. A copy of the document can be obtained from the DWP website, click here for link.
The Legal Aid Bill
On 7 March 2012 the House of Lords voted against government plans to remove welfare benefit appeals from the scope of legal aid. Liberal Democrat Peer Lady Doocey tabled an amendment that would ensure that 'civil legal services' provided in respect of a benefit decision, including 'independent advice and assistance for a review, or appeal to a first-tier tribunal, of such a decision', would remain within the scope of legal aid. In the debate on the amendment Lady Doocey said:
"Legal aid for welfare benefits costs about £25 million a year. Limiting advice to reviews and appeals, as proposed in the amendment, would save £8.5 million, which would reduce the total cost to £16.5 million a year, which is less than 1 per cent of the legal aid budget - but, crucially, it would help 100,000 people. If claimants are denied legal aid to appeal against wrong decisions, their situation will get worse, intervention at a later stage will cost much more and there will be a knock-on cost for other public services. We are also likely to see a much greater backlog of tribunal cases because panels will be faced with clients who are unable to put together a coherent case because of their lack of welfare benefit knowledge.
... To make matters worse, the Bill is being proposed at a time when the Government are carrying out one of the most substantial reforms of the welfare system in a generation. This will almost certainly result in a huge number of mistakes and a similar increase in the need for appeals. Surely our overriding duty in this House is to protect those people who are unable to protect themselves ... This amendment would allow some of the most vulnerable people in our society to fight for the benefits to which they are entitled."
The Lords voted by 237 to 198 in favour of Lady Doocey's amendment. In addition, the Lords voted by 28 votes in favour of a second amendment extending the right to appeal cases in the higher courts. Click here for link to Hansard.
The Lords also rejected the compulsory use of a telephone gateway in certain categories of cases. Lady Grey-Thompson's amendment was supported by 234 votes to 206, a majority of 28.
Click here for Guardian story :'Legal aid reforms: peers inflict fresh defeats on government'.
Human Rights Joint Committee Report
In a report, 'Implementation of the Right of Disabled People to Independent Living', published on 1 March 2012 the Human Rights Joint Committee expressed concern about the cumulative effect of government reforms - including welfare reforms and teh proposed restrictions in local authority social care eligibility criteria - on the ability of disabled people to live independently, and said that there is a risk that the UK may be in breach of its obligations under Article 19 (right to independent living) of the United Nations Convention on the Rights of Persons with Disabilities. The Report noted that many of the arrangements underpinning independent living in the UK are currently the subject of reform. Four developments were of particular concern to witnesses before the Committee: reduction of social care expenditure at local authority level; the replacement of Disability Living Allowance by Personal Independence Payment (PIP); the closure of the Independent Living Fund; and the cap on housing benefit. Many of the witnesses provided examples of how the proposed reforms could lead to retrogression. In relation to welfare reform, the Committee noted that:
153. Reforms to housing benefit, such as the proposed cap contained in the Welfare Reform Bill, have caused particular concern for disabled people. Disabled people often live in adapted housing, and rely on local formal and informal support mechanisms, and would therefore likely to be more affected than the general population by any need to move house.
The Minister for Disabled People told the Committee that the government recognised the problem and this was one of the many reasons why the Discretionary Housing Payment budget has been increased so significantly [trebled to £190m]. The Committee's assessment is set out below::
160. We welcome the increase in the Discretionary Housing Fund, but are concerned that its discretionary nature means it will not provide an adequate guarantee that the right of disabled people to exercise choice and control over where they live will be consistently upheld in the light of reductions in Housing Benefit.
161. The range of reforms proposed to housing benefit, Disability Living Allowance, the Independent Living Fund, and changes to eligibility criteria risk interacting in a particularly harmful way for disabled people. Some disabled people risk losing DLA and local authority support, while not getting support from the Independent Living Fund, all of which may force them to return to residential care. As a result, there seems to be a significant risk of retrogression of independent living and a breach of the UK's Article 19 obligations.
Click here for the link to the Human Rights Joint Committee report, Implementation of the Right of Disabled People to Independent Living which is available from the parliament website.
Case law
In JP v Secretary of State for Work and Pensions (ESA) [2011] UKUT 459 (AAC) (Deputy Judge Poynter) the Upper Tribunal examined a First-tier Tribunal's ('FTT') failure to consider an adjournment where the claimant did not attend the hearing. The claimant had passed a personal capability assessment (PCA) in September 2009 when a Dr B awarded her 6 points under the physical discriptors and 9 points under the mental health descriptors by Dr B. However, when the claimant was examined again in November 2010 by Nurse P, she was only awarded 1 point under the mental health descriptors. In relation to the tribunal's duty to consider an adjournment the Judge said that the claimant had not said that she would not attend a hearing if the tribunal decided to hold one: she had only said that she did not herself wish to have a hearing. If she had been contacted to say that the tribunal felt it was necessary to hold a hearing and had replied that she would not attend in any event, the position would have been different but no such contact was made' (para 19). The Upper Tribunal having looked at the clinical findings of Nurse P, in comparison with Dr B's clinical findings, said it was unable to identify the any significant improvement in the claimant's condition. The judge set aside the decision of the FTT and substituted his own decision to the effect that the claimant satisfied the conditions of the personal capability assessment (click here for transcript).
In ML v Secretary of State for Work and Pensions (ESA) [2012] UKUT 503 (AAC) (Judge Parker) a FTT hearing the claimant's appeal against an employment and support allowance decision went out to test the distance between the claimant's home and a local supermarket after she told them that the distance was 100 yards and that she habitually walked there. Having found, as a result of this expedition, that the distance was 539 yards, the FTT decided that she was not entitled to descriptor 1(d) (of the descriptors before they were amended in March 2011) - 'Cannot walk for more than 100 metres on level ground without stopping or severe discomfort.' The Upper Tribunal held that the FTT had not acted correctly in going out to test the distance between the claimant's home and her local supermarket. This was because the only proper rationale for a view of a location is where it is essential for the purpose of understanding the evidence. Whereas the FTT was testing the accuracy of a proposition that the distance between two given points was a 100 yards. This use of a site visit in order to confirm or challenge the evidence, rather than better to understand it, rendered the FTT’s subsequent decision erroneous in law (para 6). The Upper Tribunal set aside and remitted the appeal for rehearing by a new tribunal. (Click here for transcript).
