IB to ESA migration – NAWRA’s report to the Public Accounts Committee

NAWRA has submitted a response to the Public Accounts Committee inquiry into the errors made when incapacity benefit claimants who were migrated over to contributory ESA (cESA) were not assessed for income-related ESA (irESA).

A big thank you to all those who took the time to respond to the survey in the very short timescale allowed.

NAWRA has also been invited to give oral evidence to the Committee on Monday 21 May.

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IB and ESA conversion – letter to Damian Green, MP

We have written to Damian Green MP, Secretary of State for Work and Pensions, to raise concerns about what we see as the DWPs failure to follow correct legal procedures on conversion of incapacity benefit claimants to employment and support allowance.  The full text of our letter is reproduced below.

Our members have identified many former Incapacity Benefit/Severe Disablement Allowance claimants who have been migrated to Employment and Support Allowance (ESA), and only been awarded contributory ESA as the Department for Work and Pensions have failed to apply the regulations and their own guidance and undertake a financial assessment to check entitlement to any top up of Income Related ESA.

The DWP guidance states:

Obtaining Information:

45413:  The claimant’s duty to disclose information relevant to their existing award of benefit is modified to enable the Secretary of State to require from the claimant information or evidence for the purposes of determining whether that award should be converted to ESA 1.  [1 ESA (TP, HB, CTB) (EA) (No2) Regs, Sch 1, para 13 (a); SS (C&P) Regs, reg 32 (1)]

 45414:  Enables the Secretary of State to establish whether a claimant whose existing award is IB or SDA and who is not entitled to IS, might be entitled to ESA (IR) as well as ESA(Cont) on conversion.

The legal requirement for conversion decisions from incapacity benefit to ESA to consider entitlement to income-related ESA is confirmed in [2015]UKUT 342 (AAC)

The migration process started in March 2011 and we are calling on the Department for Work and Pensions to revisit all claimants nationally where they failed to adhere to the legal requirement and their own guidance and assess them any entitlement to an income related top up.

Many of our members have taken up cases in respect of individual claimants and found that they have been underpaid by thousands of pounds (see rightsnet discussion thread for more details). This is only the claimants that have been in a position to obtain advice. There are likely thousands more who have had their benefit incorrectly calculated due to DWP failing to follow the law. NAWRA believes that the DWP is obliged to correct those cases and seeks to ensure that the DWP trawl all cases to pick up any outstanding errors of law.

NAWRA strive to challenge, influence and improve welfare rights policy and legislation, as well as identifying and sharing good practice amongst our members.  It is in this vane that we request this piece of work is undertaken to ensure that all claimants receive the correct amount of benefit that is due to them.

We look forward to hearing your response, and the action you will be taking to ensure that any cases where the legislation has not been applied correctly will be picked up and arrears paid.”

We will update members when we receive a response.

 

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Welfare Reform and disability

NAWRA welcomes the recent announcement from the new Secretary of State for Work & Pensions, Stephen Crabb MP, to abandon further cuts to PIP. NAWRA hopes that his promises not to seek “alternative offsetting savings” in this Parliament will also be honoured.

Let us not forget however that according to recent research by the Centre for Welfare Reform, vulnerable and disabled citizens have been the “number one target for cuts”.  Indeed the present and former Governments have already presided over the single largest decimation of welfare support for disabled communities in modern history with further cuts expected to ESA and the worst cuts yet to come under Universal Credit.  Cognisant of the Government’s public sector duties, NAWRA calls on the Secretary of State to review these other planned cuts as a matter of priority in order to encourage a more inclusive society for all.

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Regulation 35(2)b of ESA Regulations and subsequent submissions by SoS following this precedent

These paragraphs from a submission made by the Secretary of State are a new indication of how the Secretary of State is attempting to meet the requirements as set out by the decision of IM v SSWP (ESA) [2014] UKUT 412 (AAC). The Secretary of State in the paragraphs 16 to 17 of this submission considers that the most demanding work-related activity would be a referral to Disability Action Dundee.  The least demanding work-related activity everyday would be leaving the house every day.

Suffice to say that the appellant met the requirements not under regulation 35(2b) but under descriptor 1 of schedule 3.  Given the Secretary of State at para 17 when considering work-related activity least demanding stated “ I believe having Mr ….. walk even a couple of metres from his home would benefit him physically….” it is not surprising the First tier Tribunal decision of a schedule 3 mobility descriptor.

I would further add that over the last 4 weeks all other ESA appeal papers have not contained such detail and have returned to “Eastern and Central Scotland” work-related activity provision, which a Regional Judge at First tier Tribunal considered did not meet the requirements of IM.”

Tom Lamb Dundee North Law Centre

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Is the writing finally on the wall for the WCA?

Eri Mountbatten writes:

NAWRA members will be aware of prominent reports being published that have highlighted significant problems with the application and administration of the Work Capability Assessment (WCA) by the Department of Work and Pensions (DWP) and by its contractors, most notably Atos. In July 2014, the Work and Pensions Select Committee published their report on the WCA and called for a “fundamental redesign of ESA”. Following that report, in August 2014, NAWRA published its own response to the final Independent Review of the WCA calling for a “radical change” in the way claimants are treated under the scheme.

Dr Paul Litchfield has now published the fifth and final ‘Independent Review of the Work Capability Assessment’ (available at http://tinyurl.com/litchfield5). Dr Litchfield says that despite the WCA being operational since 2008, it has not yet had a chance to “bed down” due to various changes. Although Dr Litchfield has shied away from recommending a fundamental redesign of the system, he says that if such change were to take place then he would recommend a number of key issues to be taken into account.

NAWRA welcomes the fact that the vast majority of his recommendations reflect the findings and recommendations highlighted in our own response to the consultation (available at http://tinyurl.com/pjq67c7).

We trust that the Government will act promptly to make meaningful and radical changes to the culture of the DWP, and of its contractors, to help ensure that claimants are not treated with suspicion ‘by default’ and instead are treated as a “whole person” with sensitivity, value, dignity and respect.

Eri Mountbatten is the NAWRA committee representative for North Wales

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