Two further days of training were organised by Recovery in the Bin so that members could benefit from learning about challenging PIP and ESA decisions. RITB were very fortunate that Tom Messere agreed to deliver this training. Tom is a benefits expert, active adviser, trainer and the author of the Big Book of Benefits, revising this on an annual basis from the material created by his late wife the supreme welfare rights specialist Judy Stenger.
The aim of the two days was to increase the knowledge and confidence of members, most of whom had attended the first training event, in supporting peers in not only getting ready for applying for PIP and ESA but for challenging wrong decisions by the Department of Work and Pensions (DWP). Three of the eight participants had personal, current, experience of challenging a decision, one had recently been through a tribunal for PIP.
Tom started by giving a recap of the learning from the first training event which had covered in detail the barriers to claiming, the jargon used within the benefits system, the three steps to maximising entitlement and the difficulties experienced by those with mental health issues whose needs may not be understood or visible to decision makers.
The appeals system is run independently of DWP decision making and the chances of reversing benefits decisions on appeal are statistically high. In the case of PIP there is an overall success rate of 64% for claimants overturning original decisions to refuse or award a lower amount of benefit than was due. The chances of winning an appeal rise to 95% where the claimant has representation or support at the tribunal. There has been a recent consultation about the appeals system which suggests changes to the process behind independent tribunals. We await the outcome of this consultation with fear that claimants may be shortchanged and prevented from obtaining justice.
There are ongoing welfare reforms which amount to cuts to the social security budget. Several of these reforms are years behind schedule. Some claimants of sickness benefits are still waiting to be migrated to ESA and will remain on Incapacity Benefit or Income Support until this happens. The timetable set originally for the transfer to Universal Credit was that all claimants would move to UC between April 2014 and October 2017. This migration to UC has stalled and the roll out has so far only happened in most areas to ‘simple’ claims for single jobseekers. However, there are several parts of the country where all new claimants enter UC and the aspiration is that over the coming years that the coverage of UC will be extended. The migration in the case of UC amounts to an administrative changeover rather than a reassessment for benefit. However, many claimants will be worse off under UC given the loss of disability premiums, which is one of the social security cuts designed to raise in excess of £3 billion.
The ‘migration’ to PIP is on track again and all claimants, including those with indefinite awards of DLA, will be contacted before the end of October 2017 with their ‘invitation’ to claim this benefit. The change signifies the end of working age DLA. Whereas there is some protection in the case of ESA and UC to ensure that claimants don’t lose out financially, this doesn’t apply at all to PIP which is a different benefit with different criteria from DLA. Claiming PIP means in effect that the claimant’s disability is looked at afresh with no reference to their history and files for DLA.
ESA in brief
There are two kinds of ESA, one is means-tested which is calculated based on savings and income coming into the claimant and their household. Where a claimant has a partner then they will be assessed jointly, any children will also be part of the claim. Contribution based ESA is awarded where there are sufficient National Insurance contributions and means are not taken into account unless there is a claim for an element of income related ESA to top up the benefit to bring the award to a level the claimant is expected to live on. Contribution based ESA will remain outside of UC while income related ESA will be absorbed into UC using the same test of work capability. Payment of contribution based ESA is limited to one year unless the claimant is placed in the support group. New claimants of both types of ESA have a 13 week assessment period before they are allocated to the support or work related group. The test for this selection usually involves a face to face work capability assessment by a medical assessor working for a private provider appointed by the DWP (usually Maximus). Income related ESA can be paid indefinitely as long as the claimant continues to satisfy the criteria and ‘passes’ any reassessments of their award. However, a change coming in April 2017 is that claimants placed in the WRAG of ESA will not receive any payment for this component which is worth £29.05 per week. New claimants will receive the same level of benefit as jobseekers even though they require support to prepare to return to work due to their health condition.
There are linking rules with ESA so that if a claimant decides to start paid work for 16 or more hours per week they have 12 weeks in which to return to their ESA claim. If the claimant falls ill and needs to stop work after this 12 week period then they will need to make a completely new claim for ESA with the 13 weeks’ wait for assessment while on a basic rate of benefit. They will also be affected by the cut to the WRAG component if, after April 2017 , they are later selected for this rather than the support group. Participants on the course expressed a real concern for claimants who try out work only to find themselves in an endless cycle of reassessment when they are not able to hold down jobs.
Claimants on ESA can do permitted work of up to 16 hours, earning no more than £115 per week, and it may be advisable that they try this route to employment rather than coming off ESA and finding they need to be completely reassessed if work breaks down after 12 weeks. Those claimants on the support component can do permitted work for an indefinite period. While support group claimants are not mandated to get involved in work related activity they can volunteer to do so. These claimants may want to make sure that their permitted work does not contradict the reasons why they are claiming ESA and if managing to work without support or concessions it may be argued when it comes to any benefits review that they are fit for work. Individual advice should be sought by each claimant and the DWP will need to be notified about their starting this permitted work and its nature.
Part-time work under threat
One of the participants expressed fear for part-time workers who may receive working tax credits as a disabled worker but lose this status where turned down for PIP. There will be an expectation once on UC that the claimant will look to increase their hours to full-time, ie 30 hours rather than staying with part-time work eg 16 hours unless able to prove that this is all they can do due to their health condition. The work capability test used for ESA may be applied to these cases since it remains the same in UC for those both in and out of work. RITB members also expressed disillusionment and frustration with disability charities which seem to be working with the government to endorse reforms rather than campaigning against cuts which threaten the security of part-time workers.
There was discussion throughout the day about the bias against mental health in the benefits system. A RITB member on the course had recently been turned down for PIP and the decision twice mentioned the way she was not receiving ‘regular specialist input.’ It was agreed that mental health services were now firefighting and it was rare for them to keep service users on for long periods. The DWP decision makers don’t seem to grasp the way that mental health services are discharging vast numbers of patients, unless they have section 117 aftercare protection against this action. In contrast a claimant with a physical disability may be under a hospital specialist for years even though seen rarely. While PIP is meant to be a benefit paid to those in work it was questioned whether working could go against the claimant even though they may need additional support in order to carry out their working duties.
In a similar way to ESA, PIP is worked using a points system. Many mental health claimants are refused PIP even where they had long-term DLA awards on the grounds of needing supervision. Each activity within PIP is scored based on the claimant’s difficulties in completing that task. Some claimants previously on low level care of DLA are finding that they can obtain the standard rate of PIP as their points accrue when not being able to do a particular activity at their worst time of day. The most significant overall cut in awards has been to those receiving the mobility component. The introduction of PIP was planned based on a 26% cut in the amount spent on working age disability benefits. 29% of claimants should receive more out of PIP than they did on DLA, 29% of claimants will receive a lower award, 26% of claimants will receive nothing from PIP and only 16% of awards will stay at the same financial level. There is no transitional protection except for a four week run on in payment before DLA ends. PIP can’t be paid during any appeal.
There has been a mixed experience of PIP medical assessments among claimants and the success rate of PIP appeals is high. If a claimant is turned down for PIP they have 28 days to request a mandatory reconsideration – which is benefits jargon for a ‘review or revision’ of the decision. Once the claimant receives the mandatory reconsideration notice they can appeal against this decision.
There was a discussion about sanctions and Tom encouraged any affected claimant to appeal since over half of sanctions (for ESA WRAG and JSA) are overturned. There was agreement among participants that sanctions could be cruel to mental health claimants who may have difficulties with timekeeping due to their health issues but find themselves sanctioned. It appears that job centres may have targets for sanctions and staff will knowingly apply sanctions to vulnerable people.
Participants asked Tom if he could do a flow chart of the route to follow if turned down for a decision. This would go in either of two directions – a decision could be challenged in one month and end in a revision. If the claimant remains unhappy with the decision then they could appeal within one month. This appeal could lead to a better decision for the claimant given the good rates of success at appeal tribunals. The other branch of this diagram was supersession which is explained later in these notes. Tom made clear that he wasn’t expecting participants to become advisers or to represent eachother at appeals, but to offer support to peers while working with a benefits adviser, eg Citizens Advice volunteer or case worker. Many local Citizens Advice offices are willing to write submissions for clients even if they do not have the capacity to accompany them to tribunals.
There was a discussion around benefits decisions and how these are always legally binding and in writing. The time limit for challenging a decision is usually one month. Claimants should aim to keep within the time limit wherever possible, even if not sure of their challenge they could write two lines and submit this before the deadline eg ‘I disagree with the decision and I will be sending further details shortly.’ Challenging a decision can be done over the phone but preferably should be followed up in writing.
Bad decisions about entitlement to benefits do happen throughout the system and do so more often with sickness and disability benefits. While the mandatory reconsideration is the first step to challenging the decision only 15% of these are successful for the claimant. In the past there has been confusion by DWP phone operators about the advice they should give to claimants turned down for benefits, in some cases they have discouraged claimants not to appeal or not told them about asking for a mandatory reconsideration. The DWP has issued a memo to staff in order to improve the information given out to claimants so that they know their rights around challenging a decision. The message was not to be deterred from asking for a mandatory reconsideration and then appealing.
Most decisions in the DWP administered benefits system are appealable except for those which are procedural such as how the DWP will pay you. Any benefits decision can be revised. Local authorities each have their own rules for challenging decisions against council tax benefit and local welfare assistance.
In all cases where asking for the decision to be looked at again or appealing the decision, the claimant should seek advice and think carefully about the implications. The DWP can revise the award downwards or remove it entirely as well as keeping it the same or increasing it.
Decisions about benefits entitlement are made by the Secretary of State who delegates powers to decision makers working within the DWP. In the case of Tax Credits, the board of HMRC gives delegated authority to decision makers working for HMRC. Local authorities use benefits officers to rule on council tax and housing benefit decisions.
There are three ways of challenging a decision for the claimant
1) Mandatory reconsideration/revision
This can be done on any grounds whatsoever. The time limit is one month though this can be extended in some cases for up to 13 months where there are valid, recognised reasons for late submission eg being in hospital at the time of the decision notice. The mandatory reconsideration is usually completed within 4-6 weeks. 15% of decisions are changed. The next step would be appealing within the time limit of one month.
A supersession can be requested at any time but only on certain grounds. Supersessions are relevant only where someone is already receiving benefit. Any award made would result in arrears being paid from the date the supersession was requested eg the change of circumstances was reported. A claimant can go to a mandatory reconsideration if not satisfied with the outcome, there is usually one month in which to do this.
Independent tribunals hear appeals and will take a fresh look at the claim presented to them. Tom was positive about appeal tribunals and said that these may offer the first experience of the claimant feeling that they are heard and their evidence has been taken seriously. The tribunal will want to hear an account from the claimant, eg their typical day and the activities they have difficulty with. It is possible to withdraw an appeal at any time or to not turn up for the hearing leaving the panel to make a decision on paper. Oral hearings are far more likely to succeed than paper based hearings. Having someone with you, ideally a support worker or adviser, increases your chance of a successful hearing and while not speaking for the claimant they can share their knowledge which may flag up difficulties the claimant doesn’t think to mention. Parents are often crucial to appeals against refusals of benefit for their children as they can explain their caring routines.
A decision maker and the tribunal do not have to take into account any matter not specifically raised by the claimant.
Complaints about assessments
A participant asked if it was worth complaining about their Atos assessment which appears to have been preferred by the DWP over their own evidence. The assessment had felt wrong at the time and the conclusions drawn were wrong, including the way she had attended alone whereas she was with a friend at the medical. Tom thought that while Atos may not resolve a complaint to the satisfaction of the claimant, a tribunal would be interested in seeing the complaint letter and using it in their own weighing up of evidence. Tom encourages claimants to make notes after their experience of a medical, eg how long they were in the room for and what went on. Any inconsistencies or inaccuracies shown in the medical report could be highlighted to a tribunal. Medicals can be recorded but claimants would need to let the medical provider know in advance that they intended to do this. The provider would need an identical recording to that made by the claimant. It is advisable that the claimant would seek audio recording equipment (cds or tapes or two Dictaphones) if they are wanting to take this course of action as sometimes the provider will not be able to find the equipment on the day of the medical. A phone app wouldn’t be suitable since it can’t generate the recording to give to the provider. A RITB member offered to look up sound recording equipment and come back to the group with suggestions which comply with requirements. He has previously found tape recorders on ebay.
Supporting each other with appeals and full entitlement
One of the participants was concerned about a friend who had been turned down for PIP seemingly due to a lack of specialist medical evidence. She asked how she and others could encourage vulnerable people to appeal decisions when they may otherwise accept them or give in. Tom’s advice was to work with claimants on a step by step approach, introducing the idea of a mandatory reconsideration and working through each part of the journey with them. The claimant can withdraw at any time though should be made aware of the further they go in the process the more likely they are to be successful. Many claimants may find appeals intimidating since these can be heard in various buildings including a crown court. However, Tom explained that the tribunal tries to be as informal as possible while in a formal meeting. The tribunal values the claimant’s evidence in a way that they may not have experienced up to that point.
There was discussion throughout the day about the political climate and discourse about claimants as scroungers. The reality is that fraud in the benefits system amounts to 0.3%. The majority of welfare spend is on state pensions. There is a high amount of unclaimed benefits with estimates of around 40-70%. Claimants may be entitled to ‘any time revisions’ where the DWP accept there are grounds such as official errors, any money due can be claimed back for a period of up to 6 years. Claimants on ESA should check that they are getting the severe disability premium where they are in the support group since this may have been overlooked.
Where a tribunal awarded PIP then any award should apply to other benefits missed out on due to the first decision. This would include disability premiums within ESA and the claimant should notify their benefits office of this entitlement and arrears owing. If a claimant is already on income related ESA it is straightforward for arrears to be paid once the ESA section of the DWP is made aware. However, if ESA wasn’t in payment during the appeal time then retrospective backdating may be limited to three months. It is advisable that the claimant applies for ESA within 10 days of challenging the PIP decision. The ESA may be refused to begin with. However, a new claim for ESA could be made following the tribunal decision pointing out the date of the previous claim. Advice should be sought on this in order to protect the severe disability premium.
What to expect at a tribunal
Tribunals are independent and work outside of the DWP. You can apply for your case to be considered by a tribunal by completing form SSCS1 which goes to the Courts and Tribunals Service. The appeal needs to be in writing. If you are not using this form then you should ensure that you include all of the details that this form requires are submitted. A copy of the mandatory reconsideration notice should be included. The grounds for the appeal should be set out, for instance that you don’t think enough attention was given by the decision maker as to whether you could do activities reliably. You can also state the outcome that you are looking for, eg an award of PIP at the enhanced rate of care or ESA support group. It is advisable to send as much evidence as possible, this can come from friends and carers as well as health professionals.
At the ‘first tier tribunal’ there is usually a judge who is the legally qualified person on the tribunal, judges tend to be trained solicitors. The judge does not wear robes. There is a medical person, usually a GP who has knowledge of medical issues. The other tribunal member may either be a carer or a person with a disability. The tribunal tries to make a decision unanimously or goes to a majority verdict. The decision is made in private and the claimant is informed on the same day where possible. There may be a presenting officer from the DWP who acts as a ‘friend of the court’. The presenting officer is not there to defeat the claim but act in a neutral way.
Tribunals are held in public places, while members of the public could attend they are unlikely to do this. You should be asked if you consent to people sitting in the tribunal to watch proceedings, eg a law student or welfare rights adviser. If members of the public did come you could ask for them to be excluded. Appeals can be struck out for a limited number of reasons such as failing to comply with tribunal directions as with being outside the absolute time limit or making “frivolous or vexacious” claims. Claims that are struck out could be reinstated, do seek advice on the process.
The tribunal should give the appellant at least 2-3 weeks’ notice of the hearing. You can waive the right to be given two weeks’ notice but would need to think about whether this allowed you enough time to prepare. Once the date for the tribunal is given then it is hard to get this moved. You should notify the Courts and Tribunals service of dates which you or your representative cannot do in the next three months.
When preparing for an appeal you can nominate a representative who could receive papers on your behalf. The tribunal papers will be a bundle of documents with each page numbered. These papers should be sent to you within six weeks of your lodging an appeal. A reconsideration may take place again before the date of the tribunal but only a small number of decisions are changed at this stage. As the appellant at the tribunal you can prepare a statement and take in a notebook.
Any submission to the tribunal should ideally be made in advance and set out the number of points that should be applied to your care and mobility needs as found in the PIP or ESA criteria depending on the appeal decision being appealed against. When receiving this bundle of appeal papers do take a step back to consider where the decision maker is coming from, look for any weaknesses or mistakes in the medical report and at what points have been missed out. Do think about whether you can provide any further evidence. It was stressed that you can go to a tribunal even if you do not have medical evidence with you. It would be advisable that you take someone with you to the tribunal wherever possible as a support or adviser.
When you first arrive at the tribunal the clerk would usually have a chat with you and any representative/companion with you in the waiting room. In the room the judge will introduce the tribunal and your representative and any presenting officer from DWP will be asked if they wish to make initial comments.
The tribunal is inquisitorial and you will be asked many questions with answers probed and tested. This is usually done not to doubt evidence but to make sure that the judge’s decision making is robust. There was concern from participants about whether the tribunal could make judgements though it was noted that members should have wide experience of seeing claimants with different disabilities. Tom encouraged anyone making a claim to a tribunal to explain the mental health reasons behind any non compliance with medication.
The tribunal will always look at your health and needs at the time of the decision and will not generally be interested in what has happened since that decision. However, if something has occurred which may have done before the decision but has been triggered afterwards, eg the benefit result bringing on mental health crisis, you could explain how this related to your health before the decision was made.
With ESA it is important to look at the descriptors taking into account pain, fatigue, and repetition of activities. Regulations 29 and 25 can be cited where there is a risk to the claimant or others if they will be at risk of harm if not so treated as having limited capability for work or limited capability for work related activity. As for PIP the support needed in order to carry out an activity reliably and repeatedly, and within a reasonable time, needs to be stated. ‘Reasonableness’ runs through benefits legislation. Caselaw is emerging for PIP and ESA which can be used in arguments against the decision to refuse/not award the rate expected of PIP or ESA.
The DWP’s role at the tribunal
As already stated, the DWP can send a presenting officer to every tribunal. At present the DWP are recruiting 200 more presenting officers. However, the presenting officer is not meant to act as a prosecuting council. The officer should be detached and serve as a friend of the court. The DWP officer can advise on process. If you are in a tribunal and feel intimidated by the way a presenting officer is acting then you could speak with the judge. The DWP can refer tribunal decisions to upper tier tribunals. However, it is often welfare rights advisers or claimants who appeal to upper tribunals though the grounds for doing this are specific and defined eg an ‘error in law.’
Appeals are legal processes so references to the law behind benefits criteria does come up frequently.
This is primary law – eg the Welfare Reform Act 96
Secondary Legislation eg ESA and PIP regulations.
Reasonableness runs through all regulations and case law is created by upper tribunals based on case rulings. One of the participants pointed out how Social Care legislation didn’t refer to the same reasonableness test and there may be a conflict of opinion if sending in social services assessments for PIP evidence as the criteria are different. The reliability provision also applies to PIP activities which does not happen with social services assessments. Tom reminded members that they could select their own evidence and didn’t need to include everything they had received from services.
There was a discussion about whether paying for a solicitor or welfare rights adviser could be worthwhile. While free advice services do exist in the UK these are under pressure due to local authority funding cuts. One member recommended Fightback and will get more details from them about their services and share these with the group. It would be important to members to have a list of reliable, legitimate advisers with experience in social security legislation and appeals.
Overall ESA appeals have a 40% success rate. Around 90% succeed if a support worker or adviser is involved in supporting the claimant. It is possible to appeal being in the WRAG but do seek advice to ensure that you will not lose this status and ESA entirely. If evidence comes up in the appeal that contradicts the claim made then the tribunal sometimes may warn the claimant of this, and so allowing time for the appeal to be withdrawn. However, the claimant should consider an outcome where they do lose ESA as a result of a tribunal if there are weaknesses in their case. Independent advice should be sought when weighing up decisions.
ESA can be paid during the appeal but not during a mandatory reconsideration. The mandatory reconsideration usually takes 4-6 weeks and claimants may need to consider whether to claim JSA or see if they can manage without benefit if they have other resources, such as PIP, to live on for that period of time. However, losing ESA will trigger the loss of Housing Benefit and council tax support so the claimant would need to make a new claim with their local authority on the basis of having no income. If claiming another benefit such as JSA the local authority will need to be informed and any new claim made in line with local requirements.
It is important to appeal any ESA refusal since coming off the benefit but reapplying in future would mean starting again in the basic assessment rate group for the first 13 weeks. It is possible to claim JSA while appealing ESA and some claimants may be financially better off doing this though will need to meet jobseeking expectations ie actively seeking work and signing on. There is meant to be flexibility built into JSA where the claimant has a disability. However, there is a danger of being moved to UC and not able to go back to income based ESA even if this is later awarded on appeal. Being on UC will have disadvantages for many claimants due to the loss of disability premiums. In most areas of the country appealing ESA would be seen as too ‘complex’ for the UC cases they are processing as single jobseekers. However, parts of the country eg Croydon, Sutton and Southwark, implementing UC in full would move all claimants to UC on any change of circumstances like this. The message was to seek local advice before putting yourself in a position where you may be placed on UC.
It is advisable to claim ESA even if only getting NI credits and no income. Breaking a claim for contribution based ESA may mean that this would need to be claimed on the basis of different years’ NI contributions in future. NI contributions also matter for pension entitlement later in life.
Losing at Tribunal
While claimants have a good chance of winning a tribunal there is the possibility of the tribunal not changing the original decision or downgrading an award that was made. You should ask for full written reasons if this happens. Specialist advice is needed before appealing to an upper tribunal as that appeal must be on an error of law and not simply because you disagree with the decision reached on the day. There are further routes for appeal after the upper tribunal but decisions rarely go to these; the court of appeal and House of Lords. Where the upper tribunal agree that an error of law has been made then they may send the decision back for rehearing at a tribunal.
Means testing again
The second day of training concluded with further discussion and learning about means tested benefits. Jobseekers allowance set at £73.10 comes far short of meeting a single person’s needs for living. Tom explained applicable amount as reflecting the circumstances of the claimant and the amount the government determined was due for that type of household. There are various premiums in means tested benefits which can be very useful. Some benefits, such as carers allowance may not lead to an award of that particular benefit but instead an underlying entitlement could result in premiums. The day ended with an exercise looking at the impact of three types of individual claiming carers allowance for a person with a disability and whether money would be lost or gained, and to which party, as a result of that claim. The severe disability premium is worth £61.85 per week and care should be taken before Carers Allowance is claimed by someone else, whether or not already on benefits.
Tips from the sessions
Make sure that you are in receipt of the severe disability premium where already in the support group of ESA. You should refer to letters from the DWP setting out your award.
For claimants who have not yet been ‘invited’ to claim PIP, they may want to consider requesting their DLA files from the DWP. Though PIP is a different benefit, claimants may find that some of the material they submitted for DLA is relevant and medical evidence could be used selectively where it still applies to their current situation. This may help claimants who are no longer under specialists but whose health issues remain the same.
It does feel disappointing and unfair to claimants that years on indefinite DLA counts for nothing in the PIP process. A good way to prepare for the PIP invitation is to write a draft PIP form. This will help when needing to fill in the actual PIP form where only around three weeks is allowed in practice due to a return deadline date given by the DWP. You can find a sample PIP form on the internet and use this to practice.
If going for appeal do gather as much evidence as possible including letters on anything relevant, evidence can be for informal support such as friends and carers. You can be selective of medical evidence and choose not to send in professional letters where they do not help or add nothing to your case for benefit. Forms of medical evidence that you could send include medical letters, care plans, risk assessments and letters from a GP or ideally a consultant psychiatrist for mental health claims. However, don’t be deterred from going to a tribunal if you do not have evidence. The tribunal will see your verbal/written account as evidence. Be prepared to talk the tribunal through your reasons and points scoring. Go with someone eg CPN, support worker, adviser, friend.
Do photocopy pages 63 and 295 from the Big Book of Benefits for professionals so that they can see the descriptors for ESA or PIP when writing their evidence letters.
In writing the tribunal submission do go back to the descriptors and justify the points that you think should have been awarded and the difficulties you have around those activities. Check for law and DWP guidance that may be relevant. You can find case law on PIP on pages 346 and 347 of the Big Book of Benefits.
Some members were concerned about the date of their next ESA assessment. This date is not usually known to the claimant but tends to relate to their last assessment and the time indicated by the decision maker then. Other members feared PIP face to face assessments. The position from the introduction of PIP has changed where it was predicted that 97% of claimants would need this face to face assessment, the average is around 75% of claims with 25% decided on the papers alone.
The government has recently made announcements that regular testing for those with a deteriorating health condition will cease. The government has yet to set out a full list of conditions.
RITB extend heartfelt thanks to Alex for her excellent write up of all 4 training days and to Together for offering us a room for this training.
Big Book of Benefits