Tuesday 25 February 2014

A busy week for benefit watchers... (Part 2)

In my last post, I looked at developments (mostly bad) with regard to the bedroom tax and the benefit cap.

In this post, I'll look at 

  • Food poverty
  • ATOS and ESA medicals
  • Restrictions for EEA Workers
  • Proposed fees for benefit tribunals 

Food Poverty

In my post of 23rd December last year (http://benefitsowl.blogspot.co.uk/2013/12/the-food-bank-debate.html) I noted that the government has commissioned Warwick University to write a report about food poverty, but had been sitting on the report for months.

The report has finally been published, possibly partly as a result of a campaign by 38 degrees.

The Guardian comments on the report's release here: www.theguardian.com/society/2014/feb/20/food-bank-review-undermines-ministers-claim

The report itself is available here: www.gov.uk/government/uploads/system/uploads/attachment_data/file/283071/household-food-security-uk-140219.pdf

To be honest, the report isn't that earth-shattering, and in fact raises more questions than it answers. Much of the material in the report is based on findings from a Rapid Evidence Assessment (REA), essentially a meta-analysis of more detailed research, often from other countries. However some original work was also done. The writers are frank about the limitations of the project.

The report confirms that providers of food aid report an increased demand, and that this appears to be driven by 'on-going problems of low income, rising food (and other) costs and increasing indebtedness'.  It says that 'there is no systematic evidence on the impact of increased supply and hypotheses of its potential effects are not based on robust evidence'. This looks to me like subtle criticism of the argument (advanced by ministers) that more people are using food banks because more food banks are available.

Importantly, the research finds that people access food aid only as a last resort, when all other avenues are exhausted. It also notes that many people, especially many older people, do not access food aid at all.

The report also finds that even where good food aid provision is available, this is only a short-term fix, and does not 'address the underlying causes of household food insecurity'. 

I feel the need to add to this last point myself. The picture given in the media suggests that visiting a food bank - one of the main sources of food aid - is a regular part of some benefit claimants routine. This is nonsense. The main provider of food banks, the Trussell Trust, can normally only give help to an individual or family three times a year, and each food parcel provides enough for three days food. So even where a person has access to a food bank, only 9 days of food are available each year. 

As it happens, a report was also commissioned by the Scottish government, which appears to be more detailed than the Warwick report. You can find it here: www.scotland.gov.uk/Resource/0044/00440458.pdf

I haven't had a chance to study it in detail yet, but I do note that it reports that over half of the referrals to the Trussell Trust in Scotland were due to benefit delays, benefit change, or benefit withdrawal, and this was an 11% increase over the previous year.

ATOS and ESA Medicals

It turns out that ATOS seems to hate doing work capability assessments almost as much as claimants hate having ATOS assess them. It had just made public the fact that it has been in negotiations since October last year to extract itself from its Employment and Support Allowance contract. It cites as the main reason the amount of abuse inflicted on its staff, including death threats. However it has also been under pressure from the government for the quality of its work.

There'll undoubtedly be a lot of celebrating about the possibility of ATOS leaving early. However I won't be celebrating. Don't get me wrong. I've seen at first hand the damage caused by poor quality medicals conducted by ATOS (these include a one-armed person who was told they could pick up an object with either hand). But I'm not comfortable with anyone being bullied or trolled, even ATOS assessors. And, more pertinently, I don't think it will make much difference.

If ATOS is replaced by another company tomorrow, that company will still be applying the same rules. The medical assessors will still be required to complete the same flawed (ESA85) forms, and, crucially, they will still be working under the same set of government priorities. In some respects ATOS has provided a useful smokeshield for the government, obscuring the reality that it is government policy that is the main problem.

You can read more about this story here: www.bbc.co.uk/news/uk-politics-26287199

The problems with ATOS may give some respite to ESA claimants in the short-term, though. The benefitsandwork.co.uk website reports that the DWP has instructed its staff not to refer any more repeat cases for medical assessments for the time being.

Restrictions for EEA Workers

The treaty of Rome and subsequent EU directives give freedom of movement to workers. The question this leaves is, of course: what is a worker? Until we have relied on the principle that the work must be 'genuine and effective'. The government has now given DWP offices new guidance as to how this should be determined. 

The government's press release on the change says:

'Migrants from the European Economic Area (EEA) who claim to have been in work or self-employed in order to gain access to a wider range of benefits will face a more robust test from 1 March 2014'. [www.gov.uk/government/news/minimum-earnings-threshold-for-eea-migrants-introduced]

This sounds like another draconian restriction is coming in, but, having looked at the details, I think that it might actually be a useful clarification, and doesn't, as the change is worded, restrict anyone's rights compared to what they were before. 

The clarification has not come in the form of any new law, but as a memo added to the Decision Makers Guide (Memo DMG 1/04). It uses something called the 'minimum earnings threshold', which is, broadly speaking, the amount you need to earn before you have to pay class one National Insurance Contributions (£149 for 2013/14, and £153 for 2014/15). The guide says that if an employee or a self-employed person has been earning at least this for the three months before a claim for benefit is made they will 'automatically'  be considered a worker. If this test is not satisfied, the decision maker 'will need to examine each case as a whole, taking account of all circumstances, to determine
whether the EEA national’s activity was genuine and effective'. This second bit is what the DWP was supposed to be doing with all EEA worker claimants anyway, before this memo.

So for people who have been earning above the minimum earnings threshold they can be certain that they will be treated as workers. Those who are earnings less will continue to be assessed as they were before.

Note that this guidance is unlikely to be applicable to people claiming Jobseeker's Allowance, Income Support, or Employment and Support Allowance, as they won't normally fit the rules for these benefits anyway, but will be relevant to claimants of Housing Benefit and Universal Credit.

Proposed fees for benefit tribunals

This is only a proposal: so don't get too scared: yet...

A government document has been leaked in which it is proposed that people refused benefits will have to pay to take the cases to appeal [www.theguardian.com/politics/2014/feb/20/people-stripped-benefits-charged-decision].

This follows the introduction of charges to take employment cases to tribunal, and a recent high court decision upholding the lawfulness of that change. 

Leaving aside the breathtaking cynicism of placing yet another hurdle in front of the most vulnerable in their search for justice, there also seems to have an illogicality at the heart of the proposal. In general, where fees are charged for taking cases to court fee remission is also available for those who cannot afford to pay. 

But by their very nature benefit appeals are likely to be submitted by people who are on low incomes. Not always, of course. Disability Living Allowance and Attendance Allowance are not means-tested, so claimants might, in principle, have income high enough not to need fee remission, for example. In general, though, we are looking at people whose main source of income has stopped, and for whom any replacement is likely to be means-tested. So either most of the appellants will have their fees remitted anyway, or a right afforded in most courts will be withheld from benefit cases.

It is my fervent hope that proper research along these lines will lead to these proposals being quietly dropped, on the basis at least of a cost-benefit analysis, if not for humanitarian reasons.

Friday 21 February 2014

A busy week for benefits watchers... (Part 1)

Having not managed to post anything for more than a month, I now find myself facing a deluge of events, all of which seem to have happened together. Which to comment on?

Dear me, I can't decide. Perhaps I'd better just summarise them all, and then see where it leaves us.

But I can't do it all at once. So today it's just the bedroom tax, and the benefit cap.

The Bedroom Tax 

In July last year the High Court ruled against disabled claimants affected by the bedroom tax (you can see my post on this here: http://benefitsowl.blogspot.co.uk/2013/07/disabled-people-and-bedroom-tax-update.html). The lawyers acting for these claimants were granted leave to appeal to the Court of Appeal, and this court has issued its ruling today. It is not good news, as you can see from this report, from the lawyers acting for two of the claimants in this case: http://www.leighday.co.uk/News/2014/February-2014/Bedroom-Tax-challenges-to-continue-following-Cou

Remember, this case is not about whether the bedroom tax is morally right, or even fair: The Law is not that interested in that kind of question. It is not even about whether disabled people are being discriminated by the bedroom tax: the courts agree that they are. The question is whether the discrimination is justified. The Court of Appeal has confirmed the High Courts opinion that it is. 

The odd thing is that the High Court has previously ruled in favour of families with disabled children and who are affected by the bedroom tax (see my earlier post as referenced above). Why is it OK for claimants to lose money if there's an adult in the house who's disabled, but not a child?

Lawyers acting for these claimants will now be considering whether a further appeal, to the Supreme Court, is possible.

A spokesperson for the DWP reiterated their standard line, including the comment that 'we have ensured extra discretionary housing support is available for vulnerable people'. Let's remind ourselves that this fund is (obviously) discretionary, and is cash limited, and is awarded for a limited period. Local authorities are placed in the invidious position of deciding who is in most need, and who is not.

Not incidentally, A disabled couple in Birmingham were refused a Discretionary Housing Benefit because they were getting Disability Living Allowance. The local authority argued that they could use the Disability Living Allowance to pay the shortfall in their housing benefit. Like many other claimants in this position, the couple are perfectly willing to move to a smaller home, but none is available. The couple are being helped by lawyers to judicially review the local authorities decision: http://www.irwinmitchell.com/newsandmedia/2014/January/Green-Light-For-Judicial-Review-Into-Sandwell-Councils-Housing-Benefit-Assessment

Also not incidentally, remember the loophole in the bedroom tax rules that came up last month (http://benefitsowl.blogspot.co.uk/2014/01/bedroom-tax-important-development.html). Well, it's being closed. From 3rd March 2014, to be precise. The closing of the loophole is not retrospective, however: claimants who fit the conditions (see my post on this) will still be entitled to get their bedroom tax paid back up to 2nd March. 

Finally, three cheers are due to Ian Lavery, MP, for bringing a bill to the house of commons to abolish the bedroom tax (under the '10 minute rule'): On 13th February the House voted by 226 votes to 1 in favour of the bill (Tories were instructed not to vote), and it's due to get its second reading on 28th February. It's unlikely to become law, of course.

Lavery says:

'Make no mistake about it, the full and sole intention of this Bill is to sweep away the dreaded bedroom tax. It seeks to restore justice for up to 660,000 people—some of our country’s most vulnerable citizens, two thirds of whom are disabled. They have been inhumanely let down by the Government's reforms to housing benefit in the social sector. 

'The tax has caused heartache and devastation to thousands of residents up and down this country. It is a tax whose forced implementation has put extreme pressure on councils, housing associations and social landlords. It is a tax that has put extreme pressure on the ordinary working people who are forced to deal with those unable to move and those unable to pay.'

You can read Lavery's bill here: http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140212/debtext/140212-0002.htm#140212159000001
And you can read more information about the bill here: 
The Benefit Cap

The High Court has also ruled on the lawfulness of the Benefit Cap. Regrettably, the court ruled that it is lawful. In this case, the full text of the decision is available: http://www.bailii.org/ew/cases/EWCA/Civ/2014/156.html

A useful summary of the issues is given by the claimants' solicitors: http://www.hmbsolicitors.co.uk/news/category/item/index.cfm?asset_id=1561
Both claimants were women with children, and each had fled a violent partner. Not being able to pick and choose their accommodation, each had ended up renting an overcrowded property in the private sector. As their solicitors put it, 'the benefit cap threatens to leave them with so little disposable weekly income that they will have to choose between feeding their children and paying their rent'.

In essence, the case was argued on the grounds of the cap being, in its effects, discriminatory against women and against children. As in the bedroom tax case, the court ruled that although the cap was discriminatory in its effects, the discrimination was justified.

A key statement in the decision, in my opinion, is this:

'The [benefit cap] scheme was not aimed at discriminating against women. If it had been, it would not have been justified. The justification lies in the Government's fundamental objective of changing the welfare dependency culture. In our judgment, that is a reasonable basis for the cap.'

In other words, the court appears to be saying (at least to me): 'The government didn't set out to discriminate against women. It set out to get people off benefit generally. The disproportionate effects on women happened by accident. That means the discrimination is OK'.

I realise I'm being disingenuously naive here. But the fact is that its a given in discrimination law generally that not intending to discriminate doesn't generally get you off the hook. If an employer takes the lift out of service in order to help their workforce get fitter, that won't help them when a wheelchair user complains they're being discriminated against. 

We wait to see if an appeal to the supreme court is considered.