Friday 27 March 2015

The Employment and Support Allowance rules are changing (and you won't like it)

An important right is being removed for anyone who makes a new claim for Employment and Support Allowance on or after 30th March. But unless you're in the benefits advice business I bet you haven't heard about it.

This is how things are before 30th March

If you make a new claim for Employment and Support Allowance you normally get paid (nearly) straight away. Provided you are able to give them a 'sick note' (aka a medical certificate) the Department for Work and Pensions (DWP) 'treats' you as being unfit for work ('having limited capability for work') from the outset. Once the claim is up and running you are sent a questionnaire to complete, and then - normally - you attend a medical. After this the DWP makes a decision about whether you do, or do not, actually have limited capability for work.

If the DWP decides against you, you can simply make a new claim for Employment and Support Allowance. However, if a capability for work decision has gone against you in the last six months, you are not 'treated' as unfit for work from the outset. You get no money unless and until the assessment process (including the questionnaire, medical, and decision) has been completed in your favour. This is, I suppose, fair enough: otherwise people could keep just making repeat claims and the decisions on fitness for work would become meaningless. Importantly, you can still be treated as unfit for work even if less than 6 months have passed since the last decision if you can provide evidence that you have a new condition, or an existing condition has got significantly worse.

For any new claim for ESA made on 30th March or later...

Everything I've written above remains the same, except for one tiny detail:

You need to replace 'in the last six months' with 'ever'.

If the last decision made under the Employment and Support Allowance rules found you fit for work, and you decide to make a new claim for ESA, you will get no benefit unless and until the DWP assesses you as unfit for work. It doesn't matter if the last decision was made five months, seven months, or seven years ago: you will have to wait until after the questionnaire and after the medical before you even have the chance of receiving any benefit.

The only exceptions to this are these:

  • As previously, if you can convince them that you have a new condition, or that an existing condition has got worse, they can treat you as unfit for work from the outset.
  • If the last decision refused you because you failed to return a questionnaire or failed to attend a medical, you will be treated as unfit for work, and get paid benefit from the outset, provided it is more than 6 months since that decision.
Actually, there's another change I nearly forgot to mention: if a claimant is found fit for work again (having been found fit for work in the past), and appeals this new decision, they will not be entitled to any ESA until and unless the tribunal makes its decision in favour of the person appealing.

The government gives its reasons for the change as follows:

"The Government is committed to supporting those who cannot work because of a health condition or disability. We are making this policy change because we believe that the existing rules encourage claimants to claim ESA, rather than claim JSA and get the help and support they need in order to return to work." [from the report on the proposed changes by the Social Security Advisory Committee, page 2]

I will resist the temptation to comment on this point of view.

Why is this bad?

If  Employment and Support Allowance decision making  worked properly, there shouldn't be a problem. But suppose it doesn't (if you can imagine such a thing)? Imagine a claimant who should meet the rules for getting ESA but is, instead, refused, perhaps as the result of a poorly conducted medical exam. For some clients this mistake will be corrected by a social security tribunal: some claimants will not take their cases to tribunal: others will be refused wrongly at the tribunal itself.

In the government's responses to the Social Security Advisory Committee [page 5], it is noted that of those claimants who submitted a new claim for ESA in 2013 following a negative previous decision, and whose condition was broadly unchanged, 65% were either found fit for work, or withdrew their claims prior to assessment. I suggest turning that statistic on its head: 35% of claimants who had just the same condition as before were found unfit for work, when previously the DWP had made the opposite decision.

For these claimants that negative decision, and its consequences, may remain with them indefinitely. Until this rule change, claimants in this position have been able to console themselves that, after a time on other benefits like Jobseeker's Allowance, they will be able to try again for Employment and Support Allowance. Once the rules have changed, although they will still have this right in principle, in practice they will struggle to exercise it, as they will not be able to receive any benefit payments while the assessment process is going on. This will mean not getting any money for around 13 weeks.

Even if the original decision was correct, the change is likely to result in injustice. Consider claimants who have life-long, intractable, health problems or disabilities: a claimant may experience worsening, or a flare up, of a long-standing condition, but this may not amount to a significant change in the eyes of the DWP. GPs will have to be especially careful in how they complete 'sick notes' - if they don't make it clear that a person is experiencing a substantial worsening of symptoms, and simply write, say 'osteo-arthritis' on the medical certificate, that person is going get no benefit during the assessment process.

And what about claimants whose limitations result from a learning difficulty? Unless they develop additional problems, one snapshot decision about their abilities is likely to come back to haunt them whenever they try to reclaim ESA.

All these considerations make the stakes very high for claimants who are being assessed under the capability for work rules. Completing the ESA50 questionnaire and going to the medical examination are already stressful experiences for claimants: knowing that this is the only chance you're likely to get is only going to add to this. And imagine going to a social security tribunal in the knowledge that the outcome of the hearing is likely to determine the course of your life until you reach retirement age.

What can people do about this?

If you are thinking about making a new claim for Employment and Support Allowance, having previously been found 'not to have a limited capability for work', or know someone else who is
in this position, you need to ask yourself the following questions?

  • Has your condition worsened significantly since the last decision was made? 
  • Or have you got a new medical condition that you didn't have then?

If you can't answer 'yes' to either of these, you need to be realistic: you will not receive any Employment and Support Allowance until the assessment process is complete, and then only if they agree that you meet the rules.

If you can answer 'yes' to either, you now probably need to have a meeting with your GP. You will need to emphasise to your doctor that there must be reference to a worsening, or to a new condition. It will not be sufficient for the sick note to name your long-term health problem or disability.

I have seen an interesting argument on the rightsnet website, which some people might find useful. The new regulation which brings in the changes (The Employment and Support Allowance (Repeat Assessment and Pending Appeal Awards)(Amendment) Regulations 2015 (No. 437)) makes it clear that the new rule kicks in only if the last decision made found that the claimant did not have limited capability for work. However, remember that for those who appeal (at least the first time round) the law allows them to get Employment and Support Allowance payments while the appeal is ongoing: they are 'treated' as unfit for work. If the appeal finally fails the DWP has to end this temporary entitlement: they make a decision not to treat the person as unfit for work. This means that in those circumstances, the last decision does not fit the requirement specified in the new rules: deciding that a person is not to be treated as unfit for work is not the same as deciding whether they are actually not unfit for work. However the DWP are likely to move quickly to close this loophole.

Note: the DWP's responses to the Social Security Advisory Committee appear to suggest that a claimant would be able to carry on receiving Jobseeker's Allowance after making a claim for ESA and while waiting for a decision to be made on their capability for work. This makes no sense to me. However if more information appears about this I will pass it on.

Monday 23 March 2015

'Time to rethink benefit sanctions'

'Imagine that your income stopped suddenly tomorrow. Perhaps you would cope for a while, living on savings, running down the food in your kitchen cupboards, maybe making a few lifestyle changes that helped you save money. If someone else in your household were earning, you might be able to manage on their income for a while.

But imagine that you’d exhausted all of those options; if you are an adult of working age, you might reasonably expect that you could turn to the benefits system to give you some basic support. But now imagine that the very same benefits system actually brought about such circumstances. Where would you turn then? Is this what you would expect of a benefits system to which we contribute our taxes, to provide basic support for those who have no other form of income?'

The quotation above, and the title of this post, are both from a report published this month, by Church Action on Poverty, The Baptist Union of Great Britain, the United Reformed Church, the Church of Scotland, and the Church in Wales.

You can find the report yourself here:

I'd strongly encourage you to read it. It's a thorough, well argued and well-researched criticism of the current sanctions regime.

In case you don't get a chance to study it in detail, here's a brief summary of some of the major points covered. This might also encourage you to download the full report.

If you want to know about the sanctions rules for Jobseeker's Allowance in detail, check out the relevant pages on Benefits Owl, which I've just rewritten and expanded:

Increasing numbers of claimants are being sanctioned

Here's some numbers to conjure with:
  • A million sanctions were imposed in 2014 (this compares to about 300,000 in 2000);
  • 22% of Jobseekers receive at least one sanction during their time on benefit'
  • 100 people a day who are classed as unfit to work due to mental health problems are sanctioned every day

Sanctions are frequently disproportionate to the issues that cause them

The report gives a hypothetical example from the department's own guidance to illustrate this:
'“Audrey attends the JCP [Jobcentre Plus] every other Thursday at 10am to sign a declaration.  On 25.10.12 she fails to attend to sign.  On  1.11.12 she attends to sign at her normal time saying she forgot to sign last week as she got muddled with her dates.  On 6.11.12 the DM [Decision Maker] determines that Audrey failed without good reason to participate in an interview as arranged to sign a declaration.  This is Audrey’s first failure.  A 4 week sanction is imposed.”
[Source: DWP Training Memo DMG 37/12]'
As the authors of the report point out, this is the first time "Audrey" has made a mistake, and was only in breach of her ageement for 7 days, but she loses her benefit for a month.

Here is a real example from the report:
'A 40 year old man from Glasgow was sanctioned for missing an appointment. A divorcee, he is a proud father who has worked for most of his life.  He now has no gas or electricity and has been reduced to shoplifting for food. While telling his story, shame, humiliation and desperation reduced him to tears.
[Source: Poverty Truth Commission]'

Sanctions disproportionately affect the most vulnerable

Sanctions are not now just applied to people who are expected to look for work. Claimants on Employment and Support Allowance are also at risk of sanctions, if they are in the work related activity group. As noted above, a hundred of such claimants, who are on ESA due to mental health problems, are sanctioned each day. Data in the report also appears to indicate, worryingly, that claimants with mental health problems form an increasing proportion of those sanctioned.

As the report observes:
'The most common reason for being sanctioned is that a person has been late or not turned up for a Work Programme appointment. For some the symptoms of their illness can be extreme tiredness, a lack of motivation, or an inability to face social situations. It is therefore not surprising that people experiencing these symptoms can find it very difficult to attend Work Programme appointments...Sanctioning such people is not a measured response to wilful misbehaviour. It is effectively punishing a person for the symptom of an illness, equivalent to sanctioning someone with a broken leg for limping.' 

Evidence compiled for the report indicates that sanctions have particularly severe consequences on young people not in education, employment, or training, care leavers, homeless people, single parents, and those experiencing domestic violence, as well as those with long-term health conditions.

It is not just the claimants themselves who suffer. Figures obtained via Freedom of Information requests show that around 100,000 children were affected by sanctions.

The report also argues that the sanctions system deliberately harms health. It refers to DWP guidance in which it is accepted that 'it would be usual for the normal healthy adult to suffer some deterioration in their health if they were without... essential items, such as food, clothing, heating, and accommodation or sufficient money to buy essential items for a period of two weeks' [i.e. due to sanctions]. I'm not sure this quite justifies the reports assertion: however, I think it can safely be said that the DWP is prepared to accept the health of claimants being harmed as a consequence of sanctions.

The provision of hardship payments for those on sanctions is inadequate

Although hardship payments are available, the report highlights a number of problems with these:

  • Most people are unable to apply for them for the first two weeks, and frequently don't receive them for a further two weeks;
  • Under the new Universal Credit rules hardship payments are loaned, recovered later by reducing benefit payments to 60% of normal.
Also (though this is not mentioned in the report) sanctions payments are much lower than normal benefit payments, typically 40% less for a single adult).

There is, in my opinion, an error in the report, as it states that claimants' have to ask friends and relatives for money before being considered for a hardship payment'. DWP Guidance makes it clear that this should not be required:

'Note: It is not considered reasonable to expect claimants to rely upon charities, such as food banks, increase debts by seeking credit or using or extending overdraft facilities, sell or pawn items to obtain cash, find cheaper housing or ask friends and family for help in order to meet their essential needs. Whilst claimants may be prepared to request such help there should be no requirement to do so and claimants should not be denied access to hardship payments if they don’t' [DMG Chapter 35 - Hardship (para 35212), emphasis mine]

Of course what actually happens is another matter.

There is very little evidence that sanctions are effective at getting people into work

'For every 100 sanctions imposed, 42 people will leave benefits but only 7 will enter work. There is not a clear picture of how the remaining 35 who leave benefit manage'

The report also notes that evidence does not show that the longer the sanction is, the better the effect of the claimant's ability to find work. If anything, analysis from the past suggests that longer sanctions results in claimants becoming 'disengaged and less likely to accept help'.

The regime's harshness is not evidence based

It's always interesting, when studying government initiatives, to look at the research and data that - at least notionally - underpins the changes. In this case, the report traces the origins of the changes to a research report by Professor Paul Gregg. The only problem is that the regime proposed by Gregg is manifestly a very different animal from what we actually have. He suggested a maximum sanction of one month (compared with the actual maximum of three years) and expected there to be less than 1000 one month sanctions per year (compare this with the actual figure for 2014 of 880,000).

I commend the Gregg report to you (I've attached a link below). It's thoughtful, carefully argued, and evidence based. Reading it is, however, a melancholy activity, given the differences between what it proposed and what is inflicted on claimants today.

And finally...

The report addresses a number of what it generously refers to as 'misunderstandings' about sanctions - assertions made by those who support the regime - and rebuts the assertions on a point by point basis.

I've done my best to give you a brief taster of what's included, but if you want to know more I highly recommend this authoritative, informed, and timely commentary.

If you want to know more about sanctions...

I've just given my pages on Jobseeker's Allowance sanctions an extensive rewrite: the information is now (certainly) more thorough and (possibly) clearer. Here it is:

You might also want to look at some of the information sources of the report, as well as the report itself.

The report - "Time to rethink benefit sanctions" - can be found here:
Church Action on Poverty:

The source for a lot of the raw data in the report is here:

The report also references the a briefing on sanctions statistics by the Child Poverty Action Group:

The Gregg Report: