The beginning of the end for appeal hearings - CONSULTATION EXTENDED

In my last post, published on 18th October, I talked about worrying proposals that threaten to restrict claimants' access to justice if they have to appeal benefits decisions (you can look at that post here: http://benefitsowl.blogspot.co.uk/2016/10/the-beginning-of-end-of-appeal-hearings.html) if it doesn't appear just below this one.

In that post I said that the deadline to submit responses to the consultation was 27th October.

Well, it seems that the Ministry of Justice didn't give us all the right documents to look at. They have therefore closed that consultation early and split the matter into different consultations, and giving new deadlines for each one:

• For the assisted digital strategy (in which the stuff about restrictions in the right to oral hearings is located (if you look hard enough)) the deadline is now 10th November;
• For the constitution of appeal tribunals, the deadline is now 24th November.

For more information, and to access the new consultations, go to:

https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/


If you haven't made your own opinions clear yet, or want to add improve your previous thoughts, you've got more time!

The beginning of the end for appeal hearings?

Did you know the government is currently consulting on wide-ranging proposals to reform the UK's justice system?

If not, you could easily be forgiven: the consultation began just a month ago, on 15th September without much of a blaze of publicity. And it closes in not much more than a week's time, on 27th October. If some of the proposals become law, it will be even harder for benefit claimants to get justice when they are wrongly refused benefit.

You can find the consultation documents (and enter your own responses) here:
https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/

If the proposals become law:

• It will no longer be normal to have a tribunal hearing that you can attend, if you are refused benefit. Many people appealing decisions will have their cases decided by judges just looking at the documents they have received. Others will have their cases heard on the phone, or by videolink. Much of the work involved in dealing with cases will not be undertaken by qualified judges, but by case officers. Appellants will be encouraged to resolve their cases by agreement with the DWP through mediation.
• The tribunal administration process will be entirely digital, and will need to be accessed online.
• Disability and capability for work tribunals will not have to include medically qualified members or disability members.

The government's stated aims of the proposals are to create a system that is just, proportionate, and accessible. I think the key word here is 'proportionate', which I read as 'cheaper'. I see no evidence that the new system will be anything other than less just, and less accessible.

Here are a small selection of the reasons why I am worried, and angry:

• The evidence is clear that not having a hearing that you attend (an 'oral' hearing) reduces your chances of a successful appeal. For example,  The Guardian cites research by University College London that showed that people appealing against adverse Disability Living Allowance (DLA) decisions were almost three times more likely to succeed at oral hearings than if there cases were heard 'on the papers'. 
• Mediation does not appear to be appropriate to this arena. Mediation is valuable when two, roughly equal, parties need help to resolve an emotionally charged dispute where compromise is a crucial to achieving a satisfactory outcome. But in a benefit appeal:
•  the parties are not  equal: a individual is in dispute with a government department;
• The only emotional content in the dispute is probably the dispute itself: and there is presumably no emotional involvement on the part of the DWP. 
• Most importantly, compromise is neither appropriate or desirable. The purpose of a benefit tribunal is to decide whether a specific benefit, or rate of benefit, should be awarded or not (or, sometimes, whether an overpayment is recoverable or not). This is a matter to be decided on the facts. A compromise can only mean an outcome in which the appellant gets less than what they are entitled to, the quid pro quo presumably being that the DWP has to pay them more money than they would like to pay (which I imagine is nothing).
• How will video/phone appeals work in the real world? What if the client has no phone credit, or a bad internet connection. What if they have to call from a busy flat, accompanied by barking dog and crying baby? 
• More generally, how will a process that is entirely digitally mediated work for those claimants who cannot easily access the internet, whether through ability or resource limitations? The consultation document accepts that the proportion of the population who are 'digital excluded' may be disproportionately represented in those involved in benefit appeals, but doesn't go on to propose quantified solutions to this. (Ominously, though, it does suggest that 'legal service providers' may judge there is a sufficient demand for a paid-for digital service as a means to generating profit' [From Paragraph 37 of Impact Assessment: Assisted Digital].)
• The proposals regarding 'lay members' of tribunals look a bit weasel-wordy to me. They talk about giving the tribunal service flexibility to chose where best to direct the resource of medical and disability experts. Translated, I think this means that the service will not have enough experts to cover all the tribunals, so will have to make difficult decisions about how to ration them out. 

Whatever the motivations behind these proposals, what they seem to be saying to those who need to appeal benefit decisions is this: You are a nuisance. You have come to believe that you are entitled to your day in court, but you are wrong. You are not worth the state paying for a judge to hear your case in an oral hearing, or for medical experts to help the judge make an informed decision. The courts are for important people discussing important things: you should not be there.

You can find the consultation document here:
https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

You can also read an excellent article in the Guardian here:
https://www.theguardian.com/society/2016/oct/12/online-benefits-appeals-tribunals-disabled


(NB If you want to participate in the consultation (and I really hope you do) beware. If you look for a consultation question about the reduced role of oral hearings you won't find it. I've shoehorned my comments into the two questions on Assisted Digital (and, by the way, does anyone else think there Q1 in this section is almost completely meaningless?).

A question about tax credits

I recently received this query about tax credits and self-employment. With the person's agreement I have answered his questions as this public post. Both the person's name and some non-relevant information have been changed.

'I was receiving Self Employed Working Tax Credits for 3 years after claiming Jobseeker's allowance before that. I was earning an insufficient amount to make my situation sustainable so I moved onto Universal Credit in June.  In December I received a letter from HMRC re my tax credits award for the tax year 2014-15 with a 30 part questionnaire. I am nervous about how exactly I should answer some of these questions. If unhappy with my level of activity are HMRC likely to claim all my Tax Credits back? Are HMRC likely to charge me an additional penalty if they consider my activity does not constitute 30 hrs of work and I had not informed them? I know that HMRC changed their approach to Self Employed Tax Credits in April, but I thought this was for new and current claims

"Bill W"'

There's quite a few issues hidden inside this query: I'm going to tease these out and deal with them individually.

1. How does self-employment fit into the tax credit rules (and how did this change in April 2015)?
2. What powers does Her Majesty's Revenue and Customs ('HMRC') have regarding tax credits paid for previous years?
3. What should I do if I get a letter from HMRC's compliance team?
4. What rights do you have if they ask you to pay money back from previous years? 

1. How does self-employment fit into the tax credit rules (and how did this change in April 2015)?

To be entitled to Working Tax Credit you need to be in 'qualifying remunerative work'[1]. The work can be as an employee or as self-employed, but must be done 'for payment or in expectation of payment', and you must normally work at least 30 hours per week, or, for some people, 16 hours per week (for more details about this see www.benefitsowl.info/tax credits.html).

For employed earners showing this is easy enough: clearly for self-employed people it's a bit trickier: it may be hard to show that you're doing work for payment or in expectation of payment if you've only just started. It can also be hard to show how many hours you work.

All the above requirements have been in place since tax credits were invented.

Now let's look at what changed in April 2015.

The main change[2] was to add some wording to Regulation 2 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. Regulation 2 is a long list of definitions used in the rest of the regulations. The change was to add some words to the definition of 'self-employed'.

• Before April 2015 it said '"self-employed" means engaged in carrying on a trade, profession or vocation;'
• Now it says: '"self-employed" means engaged in carrying on a trade, profession or vocation on a commercial basis and with a view to the realisation of profits, either on one’s own account or as a member of a business partnership and the trade, profession or vocation is organised and regular;'

Who would fit the rules before April 2015 but not afterwards? This would need to be someone who was carrying out a trade, profession, or vocation, and receiving or expecting payment, but wasn't aiming to ever make a profit. For example, someone who was employed for 29 hours per week and then spent an hour each week making and selling jam as a hobby probably wouldn't be able to use the jam-making to bring the hours up to 30.

I suppose the use of the words 'commercial basis' is to rule out cases where there was a profit, but it was   never expected to be more than a trivial amount.

Note that you don't have to be making a profit to fit these rules: you just need to satisfy the authorities that you are aiming to make a profit eventually. 

As far as I can work out the change cannot be applied retrospectively (in other words, your activity shouldn't have to satisfy these rules before the rule change came in), although if someone was on Working Tax Credit before April 2015 they would have to meet the extra requirements from April 2015 onwards. If HMRC does try to apply the change retrospectively that decision should certainly be challenged (see below).

If you want to know more about the change, you might want to look at what the tax credit decision makers' manual has to say about it: http://www.hmrc.gov.uk/manuals/tctmanual/tctm02415.htm. (Note that when it says 'you' it means the decision maker, not you!). You could also look at the following page on the gov.uk website: www.gov.uk/government/publications/revenue-and-customs-brief-7-2015-new-rules-for-the-self-employed-claiming-working-tax-credit

2. What powers does HMRC have regarding tax credits paid for previous years?

As you probably know, tax credits are assessed on an annual basis. After the end of the tax year in early April, HMRC ask you for finalised information about your income for that year: they then issue a final decision: this is technically called a Section 18 decision[3]. As a result of this decision you may find that you have been overpaid, or underpaid, or paid just the right amount, for that - completed - tax year. Normally a Section 18 decision is the end of the matter.

However there are two scenarios in which HMRC can re-assess finalised decisions:

• It has the power to open an enquiry and revise a final decision up to one year after the deadline for the annual review, if it thinks it is necessary[4];  
• It can revise a final decision up to five years from the end of the tax year in question, if the decision was wrong due to fraud or neglect on the part of the claimant, or if a person's income liability was revised[5].

(The deadline for the annual review depends on a range of factors, but cannot normally be later than the first 31st January after the tax year in question ended.)

Unless they suspect fraud or neglect they can only look at the most recent year. If, of course, the investigations into that year suggest that there has been fraud or neglect they can then extend the investigation backwards.

The words 'fraud' and 'neglect' mean aren't defined in the rules: however the former is going to cover deliberate lies and omissions, and the latter is likely to come into play when a claimant simply can't be bothered to inform HMRC of changes, for example.

In practice, these exercises are normally carried out by the infamous compliance department. It's worth bearing in mind that just because an enquiry is started it does not mean that the compliance team are necessarily expecting to find something wrong.

So, if they compliance team ask you for information about the previous tax year, and you provide it (or their deadline to you expires) they could decide that everything checks out OK, in which case that's the end of the story.

Alternatively, they could decide that the Section 18 decision was wrong, and issue a new decision replacing it. This new decision could reduce your award for that year, remove it completely, or increase it (unlikely!). They also have the following options:

• If they reduce or remove your award, this will have the effect of creating an overpayment which they will ask you to pay back;
• If they think you have acted fraudulently or negligently, they can also: 
• impose a penalty of up to £3,000[6];
• open up the enquiry to cover previous years, up to the five year maximum.

They may decide that you were not actually in 'qualifying remunerative work', but also that you've not done anything wrong enough to count as fraud or neglect. If this is what they decide they cannot issue a penalty or investigate previous years. 

3. What should I do if I get a letter from HMRC's compliance team?

The obvious answer to this question is just to say that you need to respond to it, giving them any information they ask for. But there are some other things worth saying.

If you don't respond to the request for the information, or miss their deadline, you will still have opportunities to pass on information in the future. They will make a decision based on what they do know, but you will then have the write to ask them to look into the matter again (see below) and if that doesn't work you will have the right to take the case to an independent tribunal (ditto).

So if you're really struggling to give some information, or are reluctant to do so, that's OK. On the other hand, if there is information or documentation that supports your position, send it.

Here's some more guidelines:

• You'll probably notice that some of the things they are for in the letter are not relevant to you (it might ask for P45s, which will be irrelevant if you've not worked as an employee): this  is not surprising as the letter you're sent is likely to be a generic one. Remember that, for all they know, you were, say, an employee for part of the time, but didn't tell them.
• If there is information you think might be helpful but they haven't asked for, by all means include this. For example, you could talk about difficulties you faced in your self-employment, and explain how you came to your decision to move from tax credits to Universal Credit.
• Whatever you do don't guess, or even worse, invent, information, just to get your reply complete.

Once you send your reply in, they may send you further requests for information before they make their final decision. If you're worried this is going to drag on and you have nothing else to say, reply to them saying this, and asking them to make a decision. If they fail to do this, complain.

4. What rights do you have if they ask you to pay money back from previous years? 

• If HMRC makes a decision that you were previously awarded the wrong amount, you have the right to challenge that decision. 
• If HMRC decided to impose a penalty, you have the right to challenge that decision (against both the existence and the size of the penalty).
• You don't have the right to challenge the overpayment itself, but this doesn't matter because the overpayment is dependent on the decision changing the amount of the award, and this can be challenged.

If you want to challenge either a new entitlement decision or a penalty decision, or both, there is a two stage process:

1. You must first ask HMRC to look again at their decision: this is called 'asking for a mandatory reconsideration'.
2. If this does not resolve the matter, you have the right to appeal to an independent tribunal.

For more details about how to do these, check out http://www.benefitsowl.info/TCopay4.html.

At both stages, it's important to be clear about what you are disagreeing with, being careful to match this with the decision you are seeking to challenge:

• If HMRC hasn't accused you of fraud or neglect but is simply saying that what you were doing doesn't count as qualifying remunerative work, don't waste time saying you haven't been fraudulent or neglectful, instead say why what you were doing should count;
• If they are accusing you of fraud or neglect, look exactly at their reasons for saying this (if they give clear enough reasons), and respond to these point by point;
• If they are imposing a penalty, make sure you make clear that you are challenging this as well.

I said earlier in this post that I didn't see how they could apply the April 2015 change to previous years. If they do try this, make sure you make it clear at both stages that you believe that this is unlawful. (If they are trying to do this, this should be clear because the words from the change should appear somewhere (i.e. 'on a commercial basis and with a view to the realisation of profits, either on one’s own account or as a member of a business partnership and the trade, profession or vocation is organised and regular').)

HMRC may propose to you that you agree some settlement with you: I have previously seen letters which seemed to be urging claimants against taking their cases to tribunals. Be very careful about accepting such proposals. You ultimately have the right to have your case heard by an independent body if that is what you want. If you have difficulty getting them to issue a formal response to your request for a mandatory reconsideration you should complain.

Ultimately, cases like this are decided 'on the balance of probability'. It may not be possible for you to prove you were in qualifying remunerative work: but it may also not be possible for HMRC to prove that you weren't. A tribunal will need to consider and weigh all the evidence, including your testimony and how you come across at tribunal.

Summary

To be entitled to working tax credit you need to be in 'qualifying remunerative work': this normally means working enough hours, and as well as this, for self-employed people, you need to be means engaged in carrying on a trade, profession or vocation.

Since April 2015 self-employed claimants will need also need to show that the work is on a commercial basis and with a view to the realisation of profits.

It is hard to see how the April 2015 change can be applied to tax credits paid before April 2015.

HMRC have the right to re-open tax credits award up to one year after the deadline for the final review.

HMRC have the right to change decisions going back up to five years in cases of fraud or neglect.

If their compliance team writes to you, you should respond, but be aware that you will have the opportunity to supply further information if you need to challenge their decision.

You have the right to challenge an HMRC decision to reduce an award, or to impose a penalty. You need to ask HMRC to look at their decision themselves first (mandatory reconsideration) but if that does not succeed you have the right to take your case to an independent tribunal (appeal).

If HMRC does not progress your case properly you have the right to complain.

Ultimately your case must be decided on the balance or probability. Just because you cannot provide conclusive proof of something it doesn't mean that you are not telling the truth, and HMRC and the tribunal need to take this into account when they consider your case.

Information sources

[1] Regulation 4 of the The Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002: http://www.legislation.gov.uk/uksi/2002/2005/regulation/4/made
[2] The Working Tax Credit (Entitlement and Maximum Rate) (Amendment) Regulations 2015
[3] Tax Credit Act Section 18: http://www.legislation.gov.uk/ukpga/2002/21/section/18
[4] Tax Credit Act Section 19: http://www.legislation.gov.uk/ukpga/2002/21/section/19

[5] Tax Credit Act Section 20: http://www.legislation.gov.uk/ukpga/2002/21/section/20
[6] Tax Credit Act Section 31: http://www.legislation.gov.uk/ukpga/2002/21/section/31

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.

The latest threat to the Bedroom Tax?

The bedroom tax has been a frequent visitor to this blog; unsurprisingly, given the impact it has had on many benefit claimants. In my last post I looked at the government's own report on it, which found, amongst other things, that only 41% of claimants had paid the full shortfall, and that only 4.5% of tenants have actually downsized as a result of the shortfall.

However there are signs that the days of the bedroom tax, as we currently know it, are numbered. The most recent development comes in the form of a private member's bill that has been brought to Parliament. The bill's sponsor is Liberal Democrat MP Andrew George: at its second reading on 5th September 2014 MPs voted 306 to 231 in favour, and it has now awaiting scrutiny by the Public Bill Committee.

(If you want to see who voted in favour of the bill, and who didn't, check out http://www.theyworkforyou.com/debate/?id=2014-09-05a.603.0)

What is the bill intended to do?

(If you want to check out the details of the bill yourself, you can find it here: 

http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0013/cbill_2014-20150013_en_2.htm)

Let's be clear: the bill is not designed to end the bedroom tax (the 'housing benefit size criteria restrictions' to give it its official name).  However it is intended to address some of the most problematic issues.

Remember that the main effect of the bedroom tax is to reduce the maximum Housing Benefit available by 14% if a claimant has one 'too many' bedrooms, or by 25% if they have more than one. For more details see my website: http://www.benefitsowl.info/bedroom%20tax.html.

The bill addresses situations where the claimant, their partner, or a close relative is disabled. Under the current rules many people in this situation will be expected to share a room: couples, for example, are normally only entitled to one room, and some children will be expected to share. At the moment, therefore, people in this situation will have to chose between sharing where it is not appropriate, and having a 14% reduction in their maximum Housing Benefit.

If the bill were accepted there would be no reduction for a claimant in this situation, provided the disabled person was getting any component or any rate of Personal Independence Payment or Disability Living Allowance, and provided that the local authority was satisfied that it was reasonable for the disabled person to need a separate room.

Note that, in the scenario described above, a claimant would still be subject to reduction in their maximum Housing Benefit if there were additional bedrooms not needed to accommodate the disabled person. For example, if a family is currently treated as having two spare bedrooms, even though a disabled person is actually using one of them, there would still be a reduction, although it would now be 14% rather than 25%.

However, there is another provision in the bill that specifies that there should be no reduction at all, irrespective of how many bedrooms there are, if the home has been adapted to meet a disability need of the claimant, their partner, or a close relative, provided the cost of the adaptation exceeds a certain amount (the last proviso presumably existing to prevent a person making minimal changes to a property, that could easily be replicated elsewhere, in order to benefit from the rule).

The bill also addresses another very common scenario: what if there is no alternative accommodation available? Currently, if a claimant is 'under-occupying', and is willing to move to a smaller home, they are still subject to the bedroom tax even if they can find nowhere smaller to move to.

If the bill were accepted, no reduction would be made if the claimant's landlord and the local authority are not able to make a 'reasonable offer of alternative accommodation'.

Finally, the bill does something that will not affect individual claimants, but may assist tenants in the future. It proposes a review of the availability affordable and 'intermediate' housing, to assess: the extent of the need; what progress has been made to meet the need; and the availability of resources to meet the need. It also empowers the government to contribute to any solution. I doubt that this proposal will find its way into any final bill, but would be happy to be proved wrong: it would be nice to have policy that was evidence-based rather than inspired by dogma or political expediency. 

How does the bill compare to repealing the bedroom tax legislation?

For people who need an extra bedroom because of disability, and for people who would downsize if they could, the bill would be great news if it became law. However the bill does not help people who maintain that they need an extra room for other reasons (including disabled people who use the 'spare' room to store disability-related items). It also does not directly help people who are affected by the bedroom tax now, but need to stay in the same property because their children are getting older and so will need additional bedrooms soon, although it is possible that claimants in that position might be able to argue that alternative accommodation is not 'reasonable'. 

The bill also does not resolve the thorny question of what constitutes a bedroom in this context. The legislation that created the bedroom tax (the Housing Benefit (Amendment) Regulations 2012) does not define what a bedroom is, which has caused problems for claimants and for tribunals alike. In a previous post I noted a tribunal judge who used overcrowding regulations as a guide, but as this was a 1st Tier tribunal his findings do not set a precedent. If the bill became law this confusion would still exist.

On the other hand, the bill may satisfy those MPs who are unhappy about the affects of the bedroom tax on disabled constituents and those for whom alternative accommodation is not available, but nonetheless sympathise with the government's stated aim of increasing availability of homes for larger families.

If Labour win an outright majority at the next general election, they have undertaken to abolish the bedroom tax. The most recent statement I have from the Liberal Democrats is a commitment to reform the legislation: these proposals look very similar to the contents of the bill. And the Conservative party want to keep the bedroom tax (or, as they call it, the spare room subsidy) unchanged (for details of all these see my last post).


When I have more news about the bill, I'll let you know.

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.