Written evidence from the Child Poverty Action Group (HAB0048)

 

Summary

About this submission

Child Poverty Action Group works on behalf of the more than one in four children in the UK growing up in poverty. It doesnt have to be like this. We work to understand what causes poverty, the impact it has on childrens lives, and how it can be prevented and solved – for good. Almost 40 per cent of children in poverty live in a family where someone is disabled. Providing appropriate and adequate supports to people with a health condition and disability is a crucial part of ending child poverty.

We have particular expertise in the functioning of the social security system, through our welfare rights, training and policy work. We author and publish The Welfare Benefits and Tax Credits Handbook (the annual authoritative guide to social security in the UK), and provide specialist advice to frontline advisers through a telephone and email service. CPAGs Early Warning System collects case study evidence from advisers across the UK on the impact of social security reform. Relevant cases from the Early Warning System are included throughout this submission.

 

Do the descriptors for PIP accurately assess functional impairment? Do the descriptors for ESA accurately assess claimants’ ability to work? If not, how should they be changed?

  1. Through our Early Warning System, we have found that a claimant’s work history is often used inappropriately as evidence for WCAs and PIP assessments. If a claimant has recently managed to do some work, even part-time and with multiple adjustments, this is often used to demonstrate that they are ‘fit for work’ or do not meet PIP descriptors. The case below is one example of this:

A womans PIP was stopped and she was informed that she had been overpaid after it transpired she had been working for a period of time. The adviser is confident that the work the client did, did not undermine any of the reasons that the client had been awarded PIP in the first place so will be appealing the decision.

  1. Remedying this does not necessarily require a change to ESA or PIP descriptors, instead more nuanced questions should be asked during an assessment to better identify how a claimants work experience corresponds to the descriptors. We recommend that DWP train assessors to ask claimants about their experiences in work rather than just what job they did and when. For example, asking which parts of the job were easy and which were more difficult; what adjustments were made by the employers; did the claimant take any sick leave, and if so, how often, for how long and why. This will ensure that assessors have the information they need about a claimants work experience to make a decision.
  2. Further to this, we recommend that the department stop using the phrase ‘fit for work’ for ESA assessments as this is not the opposite of ‘limited capability for work’. A person with LCW/LCWRA has limited capability but depending on their circumstance they may be fit for some work or work-related activity. Continuing to use ‘fit for work’ would reinforce the current practice of some assessors who assume that any work experience amounts to sufficient evidence to reject an ESA application.
  3. Before recommending that the DWP makes changes to the PIP assessment, the Committee must consider the implications for the Scottish Social Security system. At present the Scottish Government is applying the PIP eligibility criteria to the Adult Disability Payment (which will replace PIP in Scotland) to ensure a smooth transition. If the qualifying criteria for disability benefits in Scotland and the rest of the UK significantly diverge, this could affect a claimant’s ability to access ‘passported’ assistance.

DLA (for children under the age of 16) usually use paper-based rather than face-to-face assessments. How well is this working?

  1. From our experience of providing welfare rights advice, DLA’s paper-based assessment process has led to fewer issues than face-to-face assessment for ESA or PIP. However, we are concerned about the experiences of young people who transition from DLA to PIP at the age of 16. The Early Warning System case below demonstrates the complexities families can face when transitioning from child to adult disability benefits.

A disabled young person with a respite care package is about to turn 16. There is huge complexity for the young person and his father to make sure that their respective benefits are accurate and maximised. This includes having to make and claim ESA in order to be referred for a work capability assessment, as disabled students can only claim UC if they are in receipt of DLA or PIP and have been determined to have limited capability for work. The father also asked DWP to become his sons appointee for PIP but was given the wrong information.

  1. The assessment process is stressful for everyone, particularly for 16-year-olds. In one case submitted to our Early Warning System, a mother and her 16-year-old argued about whether to challenge his PIP refusal. He had been receiving awards of both components of DLA before turning 16, but his PIP claim had been refused after a particularly fraught assessment. The young claimant wanted nothing more to do with the process. He felt doubted and looked down on, and did not want to “beg”. His mother tried unsuccessfully to persuade him to change his mind, knowing the family’s financial challenges.
  2. We recommend that DWP delay the age at which DLA claimants are invited to claim PIP to make the treatment of young people on DLA more consistent with disabled young people elsewhere in the benefits system. In the short term, DWP can do more to minimise the risks of young claimants falling through the cracks by:

How practical would it be for DWP’s decision makers to rely on clinician input, without a separate assessment, to make decisions on benefit entitlement? What are the benefits and the drawbacks of such an approach?

  1. In many cases, existing medical records do not provide the information needed to decide about a claimants entitlement to benefit as most medical professionals are not trained to describe someone’s condition in terms of their ability to complete certain day-to-day tasks. However, welfare rights advisers have found that, if asked appropriate questions, medical professionals can readily provide the relevant information. To facilitate greater reliance on clinician input for decision making, GPs and other medical professionals need support to provide evidence specifically helpful to a decision maker completing a functional assessment. In the absence of this, a greater reliance on clinician input may not result in more correct decisions.
  2. We have also come across cases of GPs trying to charge for the provision of medical reports, and there is no clear legislation that these reports fall within a doctors’ NHS duties. Legislation is needed to ensure that clinicians provide evidence for health assessments without charge to ensure that claimants do not face unnesseracry barriers in obtaining the required evidence for their assessment.

Appeals data shows that, for some health-related benefits, up to 76% of tribunals find in favour of the claimant. Why is that? a. What could DWP change earlier in the process to ensure that fewer cases go to appeal?

  1. The main reason Tribunal judges give for overturning a benefit decision at appeal is that they received further evidence from the individual regarding their condition. This is an issue that the Committee highlighted before in its 2018 report. We would like to see the DWP take further action to help claimants to provide a full and accurate account of the way their illness or disability affects their day-to-day lives so that more correct decisions can be made in the first place. As we have recommended above, supporting medical practitioners to provide evidence specifically framed for a functional assessment would also help decision makers and may reduce the number of wrong decisions that are later overturned at Tribunal.
  2. Some claimants see their benefit award end or reduced following a reassessment. A decision maker has the power to overturn the decision of the previous assessment based on a new medical report, however, there is no safeguard in case the new medical report simply takes a different view of the claimant’s unchanged health conditions. We recommend that the rules are amended so that a decision maker can only alter the decision of the previous assessment if it can be shown that the claimant’s situation has changed since the previous assessment or that the previous assessment was wrong. That would give claimants more certainty as to their entitlements and prevent the risk of exposing them to changes of opinion leading to arbitrary changed awards. It would also reduce the number of reassessment decisions that go to appeal.
  3. In 2013, in order to reduce the number of appeals, the DWP introduced an internal review process for claimants to raise a Mandatory Reconsideration (MR) which aimed to accelerate the resolution process and reduce the number of appeals. However, if an MR is severely delayed, the claimant cannot appeal to the Tribunal and their only option is to commence proceedings for judicial review. This prolongs the stressful experience of awaiting the outcome of a decision and increases the amount of time claimants go without the benefit income they may be entitled to We recommend that claimants are granted the right to appeal if no decision has been made a month after an MR has been requested. While this would not reduce the number of appeals, it is an important safeguard to ensure that the measure intended to prevent tribunals do not further delay dispute resolution.

Is there a case for combining the assessment processes for different benefits? If not, how else could the Department streamline the application processes for people claiming more than one benefit (eg. PIP and ESA)?

  1. While we recognise that assessments can be traumatic for individual claimants we do not support the combination of PIP and WCA assessments. These are two distinct types of benefit, with distinct eligibility criteria, albeit with areas of overlap. Given that we have seen experienced Tribunals wrongly apply rules for PIP to a decision regarding ESA, we anticipate that there would be a much higher chance of error if a single assessor was tasked with considering the distinct criteria for ESA and for PIP simultaneously. A single assessment would risk wrongly ending both benefits, often the entirety of a claimant’s income.
  2. It is important to consider the implications of a combined assessment process for Scottish claimants as, in Scotland, individuals will no longer be claim disability benefits from DWP, but DWP will remain responsible for paying earnings replacement benefits such as ESA and Universal Credit.
  3. When considering the best way to undertake assessments, the Department should take into consideration evidence that shows the negative impacts the assessment process can have on individuals[1] and recognise that a point-in-time assessment is often unrepresentative.

What lessons should the Department learn from the way that it handled claims for health-related benefit claims during the pandemic: for example, relying to a greater extent on paper-based assessments, or using remote/telephone assessments? Is there a case for making some of the changes permanent?

  1. Throughout the pandemic CPAG has been monitoring the impact of social security changes on benefit claimants through our Early Warning System.
  2. At the beginning of the pandemic face-to-face health assessments for benefits were paused and alternative arrangements, such as telephone and paper-based assessments were put in place. Reviews or reassessments for PIP, LCW and LCWRA elements of UC were postponed with temporary extensions provided to those whose award was due to expire. These changes were welcomed by CPAG as they provided a degree of financial security to disabled people during an uncertain time. However, those who were still required to have an assessment faced significant delays.
  3. Through our Early Warning System, we identified the following problems and inconsistencies with the assessment process during this time:

 

  1. Examples of claimants in these positions were regularly reported on in our Mind the Gaps briefings and a sample has been included in the table below.

Delays in accessing an assessment

A woman with physical and mental health conditions has been waiting for a WCA for over a year. She had a phone interview in June 2020 which was deemed inconclusive and she was told she required a face-to-face assessment. She was unable to provide further evidence as her GP said they would charge £100 for further medical evidence, and then refused as they had already provided some evidence direct to the DWP. The GP is now complaining about needing to provide regular sick notes.

Expiring contributory-ESA awards

A claimant’s contributory ESA is about to end due to the time limit, however the claimant is struggling to get a work capability assessment in order to assess their eligibility for other benefits due to the coronavirus.

Expiring PIP award that were made by a Tribunal

A private tenant who has a learning disability and mental health problems lives alone. She is vulnerable and her prescriptions are limited to avoid overdose. Her mental health has been affected by the lockdown. Her housing benefit doesn’t cover her rent (as it is capped by the local housing allowance) and she usually uses her PIP to make up the shortfall. Her PIP award expired and is struggling to make ends meet. The DWP refused to extend the PIP award because it was made by a Tribunal.

Cancer patients denied the LCWRA element of UC

A cancer patient should be automatically entitled to the LCWRA element in UC, by virtue of receiving chemotherapy treatment. This has not been added to their entitlement yet as the DWP has said that they are not currently processing WCAs. This is causing them financial hardship as they are currently not receiving any money from UC, however if they had the LCWRA element included they would be receiving some financial support.

 

  1. To avoid these problems following any future change to the health assessment process, the Department must:
  1. be clear who qualifies for paper-based assessments, remote assessments and face-to-face assessments, and
  2. extend awards when DWP is the cause of a delayed assessment.

 

  1. While the current system allows people to request an alternative to a face-to-face assessment, this can be difficult to access. The Early Warning System case below demonstrates the challenges that disabled claimants can face when they are compelled to undertake a face-to-face assessment.

A man who had been awarded DLA for life claimed PIP when invited but did not attend an assessment and so his DLA stopped. He had requested a home assessment but said this was refused without reason. The man is struggling to manage on ESA alone and his physical and mental health have been deteriorating.

  1. We would welcome greater use of paper-based assessments but we recommend that, where possible, claimants are given a choice in the way that they are assessed. This will allow claimants to opt for the format that is most accessible to them. For example, someone suffering from anxiety or mobility issues may prefer a paper-based assessment, while an in-person assessment may be better suited to people with cognitive disabilities or facing language barriers. Ultimately, the best person to make that decision is the claimant themselves.

DWP believes that applications for some benefits dropped sharply at the start of the pandemic because claimants weren’t able to access support (for example, from third sector organisations) to complete their applications. What are the implications of this for how the Department ensures people are able to access health-related benefits consistently? a. How can the Department best help the third sector to support claimants in their applications?

  1. Throughout the pandemic CPAG raised concerns that claimants were not accessing the most suitable benefits for their situation, including claimants who were eligible for contribution-based ESA being directed towards UC. Applying for contribution-based ESA would have allowed claimants to access financial support sooner, rather than wait five weeks their first UC payment, and access more frequent payments. Those who were not eligible for UC may not have known they could have applied for ESA or may have wasted time making an unsuccessful UC claim before arriving at the right benefit.
  2. We have seen a number of cases through our Early Warning System of families who received incorrect information from the DWP to the detriment of the claimant. They did not concern a specific aspect of the benefit system but a range of areas which included the benefit entitlements of disabled people, for example:

A couple receiving ESA were moving home to a property bought for them by their family. Their ESA will continue and they will not have housing costs, so do not need to claim UC. The DWP incorrectly told the couple that they would have to claim UC. Fortunately, they sought advice and were able to make an informed decision about whether to claim UC instead of ESA.

A man with cystic fibrosis and his wife received UC with the LCWRA element. Her income increased and they were no longer entitled to UC. Less than 6 months later her income dropped and they claimed UC again. The DWP incorrectly told them that they had to wait for three months to get the LCWRA element.

  1. It is likely that in many of the instances where the DWP provides incorrect information, mistakes are not rectified because claimants will assume that the information provided by DWP officials is correct. In cases involving a transition to UC, once claimants have made a claim for UC they cannot then move back to legacy benefits, making it even more important that the DWP is providing the correct information to claimants. This is particularly important for claimants of a health or disability related benefit as they are often better-off on legacy benefits.
  2. It is a basic principle of a rules based social security system that people should be informed about their entitlement and which benefits they are eligible to claim, so that they can consider the pros and cons of different options, before making a decision which may have a considerable implication on their financial situation in the future. Given the impact that the wrong information can have on low-income families, affecting their access to financial support to meet their basic costs, it is essential that the DWP provides consistently accurate information and that it makes claimants aware of how they can access independent, free to access, specialist welfare rights advice. This will also help DWP as claimants will be better informed when they claim and there will be fewer errors. To enable this, welfare rights services need to be provided with adequate and reliable funding.
  3. We welcomed DWP’s interest in expanding advocacy support as outlined in the recent health and disability green paper, but we are concerned that “this support would not be available for everyone; it would only be offered to the people who need it most.” This suggests some form of eligibility criteria to access advocacy which would create accessibility barriers for people already struggling to understand their rights within the benefits system. As the complexity of the system poses significant barriers to many applicants, not just the most disadvantaged, advocacy support should be available on a universal basis.
  4. CPAG welcomed the approach of the Scottish Government which, through the Social Security (Scotland) Act 2018, requires Social Security Scotland to make independent advocacy support available to anyone who “requires an advocate’s help to engage effectively with the process for determining entitlement”. We recommend that the DWP evaluate and learn from both of these provision that Social Security Scotland is putting in place.

The Scottish Government intends to introduce its own assessment process for the Adult Disability Payment, which will replace PIP in Scotland from 2022. What could DWP learn from the approach of the Scottish Government?

  1. The Scottish Government has taken some promising steps in developing the Adult Disability Benefit that we encourage the DWP to evaluate and learn from. First, through the eight social security principles created by the Social Security (Scotland) Act 2018 which are reflected in the charter that the Scottish Minister are obliged to produce, Social Security Scotland has a clear rights-based framework for developing its Adult Disability Payment.
  2. Second, the Scottish Government approach towards assessments for disability benefits reflects the recommendation of its Disability and Carers Benefits Expert Advisory Group and has adopted a lighter-touch process to verifying the evidence provided by claimants. In a 2020 position paper, this process was described as: “Case managers will start by assuming that the client has provided an accurate account of how their disability or condition impacts on them. Social Security Scotland will not seek to gather an exhaustive list of supporting information. In most cases, case managers will seek only one source of formal supporting information (such as confirmation of a diagnosis from a GP).”
  3. Third, as mentioned earlier in this submission, the Scottish Government requires Social Security Scotland to make independent advocacy support available to anyone who requires an advocates help to engage effectively with the process for determining entitlement. The Act also requires Scottish Ministers to produce strategies to promote the take-up of Scottish social security assistance.

Recent developments of concern

  1. We want to bring to the Committee’s attention to recent developments in the Departments plans for health assessments, which are a cause for concern.
  2. First, the recent health and disability green paper outlined the Departments plans to “explore providing earlier and more comprehensive support through jobcentres for people who have fallen out of work because of a health condition or disability. This support could be provided before people have a WCA.” While we would welcome greater availability of early return to work support tailored to the needs of people with a health condition or disability, we are concerned by the green paper’s proposal to provide this before people have a WCA.
  3. WCA’s are a gateway for claimants to access the financial support they are entitled to and the conditionality regime that reflects their situation. DWP should therefore provide this return to work support alongside a WCA rather than as a way to delay a health assessment. In addition, participation in this early support offer must not be mandatory as, prior to a WCA, the work coach will not know if it is appropriate for a claimant to undertake work related activity and take up the support offer.
  4. Second, the government recently confirmed that it has abandoned its manifesto commitment to reduce the frequency of health assessments required by PIP recipients. The Budget 2020 outlined plans to introduce a minimum award review length of 18 months to claimants whose condition was deemed unlikely to change significantly. We are concerned that this reversal will increase the number of unnecessary PIP reassessments and risks creating financial insecurity and anxiety for claimants.
  5. Both of these developments could create unnecessary obstacles for claimants to accessing the financial support that they are entitled to.

 

November 2021


[1] A 2016 academic study found that for every 10,000 WCAs there were 6 additional suicides, 2,700 additional mental health problems reported and 7,020 additional prescriptions for anti-depressants.