The issue of how the Department of Work and Pensions administers its assessments for ESA and PIP has been in the news recently, following a damning report by the House of Commons Work and Pensions Committee published in February 2018. The Committee sought to set out the stories of some of those who had undergone the process; and of course Ken Loach’s film I, Daniel Blake attempted – in a rather generalised and sentimental way – to tell a version of that story.
It is, however, in the details of individual cases that the cruelties and inadequacies – not to mention the ideological purpose and effect – of the assessment system is revealed. So this is an attempt to tell the story of one individual suffering from a severe mental illness, who lost benefits following an ESA assessment, and whose family took on the DWP and won. The story is inevitably long and detailed, and many other people will have gone through similar experience. But I believe it needs to be told in full; because it is only when one has the full narrative that the implications of what happened are clear – that this is not an isolated instance of poor management, but a story of how Government, in the form of the DWP, is not only changing the law in order to cut benefits, but appears to be doing everything within its power to prevent those who are entitled to benefits from receiving them in full. It is a story that needs to be told if one is to understand what Britain has become, and how our political culture is failing some of our most vulnerable fellow-citizens.
J is a 46-year-old man who lives with paranoid schizophrenia. He was diagnosed in 1991 and, following a serious attack on a member of his family, was hospitalised for more than two years. He now manages his condition through a very high level of medication – but is still deeply affected by it. In spite of the medication, he still hears voices every day. He is unable to go to the shops – or to any environment in which he is likely to meet strangers – on his own. As a result of the medication he is often lethargic and disoriented. He has not worked since the time of his diagnosis – which, as any respectable clinician will know, is permanent. His condition will never improve; it can only be managed. Nevertheless, he has sought to lead, as far as possible, an independent life. At the time of his assessment he was living in a house-share, although he needed considerable support from his family to undertake daily routine tasks.
In March 2017, J was called in by the DWP for an assessment in relation to his ESA claim. While he was at the assessment centre, he was accompanied throughout by two security guards, who escorted him on to the premises. The only time he was not accompanied was when he was in the lift; the security staff refused to get in with him. He was assessed by a “health care professional” who, despite being given clear evidence of J’s condition and medical history, recommended that he should be moved from the Support Group to the Work-Related Activity Group, with a consequent loss of benefits of £89.20 per month.
As J was escorted out of the assessment, the assessor’s parting comment was to ask J whether he had ever thought of joining a golf club. Leaving aside the obvious inapprorpriateness of this remark (how could J, who has lived for more than twenty years on benefits, afford to join? Where is the golf club that would accept a member with J’s history of illness), one has to stand back and remember that this was a person who is being touted as a health care professional, someone who is appointed to exercise judgement on behalf of the State about fitness to work. Not fit for purpose doesn’t begin to describe it.
One important change in the DWP guidance for assessors had taken place in the months preceding J’s assessment. The DWP had instructed assessors to work on the assumption that, when a claimant was placed in the Work-Related Activity Group (WRAG), the meaningful activity, and the likely progress into work, would improve their mental health; thus there was a greater expectation that those living with mental illness would be moved into the WRAG. One could argue that in some (and only some) cases of depression and anxiety that might possibly be the case. But J’s condition was severe paranoid schizophrenia – a condition that is clinical and incurable. The result of this was that increasing numbers of people were being moved into work-related activity without any consideration as to whether this would make their condition worse; and to whether by doing this the system was setting people up to fail to meet the conditions of work-related activity and face sanctioning as a result. It is as fine an example as any of how a glib, partially-informed piece of ideology – perhaps plausible on a Powerpoint slide in a room full of like-minded men in suits – is, in the real world, a brutal fast-track to destitution for the most vulnerable in society.
It is not clear whether that guidance had any impact on J’s assessment. But there is evidence that it has had a drastic effect on the number of people being placed in the Work Related Activity Group (WRAG) and therefore receiving a lower level of benefit – a differential that has increased as a result of the introduction of Universal Credit.
Challenging the assessment
The upshot of the decision was that J’s family decided to appeal . They did so because it was obvious that he wouldn’t be able to deal work-related activity. J’s inability to function in the presence of strangers, the impossibility of his getting to regular meetings, the lethargy caused by the powerful medication and his abruptly varying mood – all of these meant that he was heading for inevitable sanctions.
The process for appealing involves undergoing what is described as a Mandatory Reconsideration and, assuming that the appellant wants to go further, a Tribunal hearing chaired by a Judge. The Mandatory Reconsideration process has been subject to enormous criticism – as no more than a exercise in tokenism. The DWP revealed in response to a Freedom of Information request in May 2017 that it had an internal target of upholding 80% of the original decisions at Mandatory Reconsideration (although later, in response to the House of Commons Work and Pensions Select Committee, it later claimed that this was not a target but an internal management indicator that had since been dropped). What was clear was that between 2014 and 2016 there was a massive fall in the number of MRs that were ruled in favour of the claimant – from 70% in April 2014 to 12% in April 2016.
Applying for Mandatory Reconsideration is not easy. It involved filling in a long and complex form with extreme care. It entails several hours’ work even for someone who does not suffer from any mental illness. For many people living with mental illness, it would simply be a task too far; for others, the stress would exacerbate their condition.
J’s Mandatory Reconsideration fell into the expected pattern. He was told that his case had been re-assessed but the Decision Maker (whose qualifications were not revealed) had endorsed the original assessment. J would remain in the Work Related Activity Group.
Perhaps the most revealing comment in the DWP response was the claim that although J had supplied medical evidence of his long-term illness in the form of a letter from his GP, he had not demonstrated any symptoms. This appeared to be because the GP’s letter did not describe J’s condition on the day of the assessment. In other words, unless the claimant had seen the GP on the day, the evidence from the “health care professional” – in this case the person that had advised J to join a golf-club – trumped the considered opinion of a GP, who in this case had been treating J throughout his illness.
And this goes straight to the heart of the issue – that the DWP assessment has nothing to do with a claimant’s medical history, or least of all the advice of a practising medical professional, but comes down to the opinion of an assessor whose health-care experience – such as it is – may be wholly unrelated to the reasons why the claimant is entitled to ESA. During the Work and Pensions Select Committee hearings into the assessment process, Conservative MP Alex Burghart questioned the private sector assessment providers on the specific issue of how they managed assessments of people with paranoid schizophrenia (q167 in the link): it became very clear that the assessor – the “health care professional” was quite likely to have no mental health expertise or experience at all. They might be a physiotherapist or an occupational therapy assistant by background. The chances of their being a doctor was almost zero. All these so-called “professionals” were there to do was to fill out a form.
And this became clear from J’s assessment – which was poorly written and in places incoherent. It was self-contradictory; throughout the process the DWP argued that it recognised J’s condition, but clearly had no idea whatsoever of its practical implications.
Mounting an appeal
At this point the decision was taken by J’s family to take the appeal to Tribunal. It needs to be emphasised that this decision was not taken lightly. J’s illness meant that he found any dealings with officialdom more than stressful – it exacerbated his symptoms and mood-swings. The prospect of filling in a detailed seven-page form would be daunting enough. However, the first-tier Tribunal is the effective equivalent of a case in the Crown Court. It is heard in front of a Judge and the DWP would be represented by Counsel.
It is also important to recognise that there is no automatic right to a Tribunal hearing. In order to get to Tribunal the appellant has to reach a legal threshold, demonstrating that there are clear grounds for challenging the Mandatory Reconsideration. Clearing that threshhold is far from straightforward: it requires an understanding of the law and its application. Simply arguing the case over the detail of the assessment is not going to be enough without hard evidence; and preparing that evidence is not easy.
In J’s case, the grounds for challenge were not the assessment itself; they concerned a separate piece of legislation. The legislation that governs the assessment is Schedule 3 of the Social Security (Employment and Support Allowance) Regulations 2008. However, Regulation 35 of the same Regulations states that where it is demonstrated that if there would be a risk to the claimant’s health or mental well-being, or those around them, if they were required to undertake work-related activity, the claimant will not be required to undertake work-related activity.
According to ONS figures for 2013-16, of 1.2m ESA assessments, 180,000 cases went to Mandatory Reconsideration. In 160,000 of cases the DWP assessment were upheld – but only 40,000 went to Tribunal. In 58% of those cases in that period, the Tribunal found for the appellant. The fact that the DWP loses a large majority of cases at Tribunal has become a substantial political embarrassment.
And it is at this point in the process, too, that the difficulties facing the claimant mount. The bare statistic is that, as of 2017, 68% of ESA claimants who get to tribunal win their case. But the reality of course is much more complex than that. Obviously a key question is the number of cases that get to Tribunal; as I mentioned before, there is no automatic right to a Tribunal. But, additionally, there is clear evidence that the DWP has been using in many cases heavy-handed tactics to discourage – some people would say intimidate – claimants from going to Tribunal.
In J’s case these tactics included phone calls and texts from the DWP, telling him that he was likely to lose the case and he would be better off withdrawing – despite the fact that he was being represented by a family member to whom all contact from the DWP should have been addressed. This family member was told by a member of DWP staff that the decision could only be overturned by going to the Court of Appeal; when she challenged this obvious lie the member of staff repeated that she would need to go in front of a judge.
As it happens, this was not the dire threat it might seem. An important factor in J’s case – and a key reason why he eventually succeeded in overturning the DWP decision – was the fact that he had decent representation. The relative who acted as his representative, is an Oxford graduate with substantial experience at a senior level in the public sector, including considerable court experience. Their partner is also an Oxford graduate, again with substantial senior public sector experience; and, moreover, is retired and therefore had the time to dedicate to the case. They are sufficiently comfortably-off for such things as the costs of travel and even stationery not to be an issue. They were able to devote the substantial time and effort that such a case requires, and have the right intellectual and professional background to deal with the complexities of preparing a legal case.
In other words, J had access to a level of advice and support that simply was not available for many vulnerable people taking on the DWP machinery.
And support matters; if there is one thing that became abundantly clear as J’s family prepared their case it is the complete lack of support available for people facing an ESA tribunal. The Tory/Lib Dem coalition abolished legal aid in benefits cases in 2013 for all cases where there is no point of law at dispute; legal advice, where it is available, would have cost at least £750 per day. The Citizen’s Advice Bureau was able to do nothing; the advice they offered was, J’s representatives discovered, simply wrong. The mental health charities have apparently withdrawn from advocacy work – partly as a result of funding cuts, but partly, it seemed, as a matter of policy. Whatever the cause, they were unable or unwilling to offer support. J could have gone to his MP but he and his family had no confidence that their intervention would be of any use (since then, J’s representative has spoken to a former MP who said in his day he would have sought to involve the support agencies in a case of this sort: but as we have seen, those agencies appear to have given up on advocacy).
The simple fact is that very vulnerable people, facing the loss of a substantial part of their income, of losing their home or of becoming dependent on foodbanks, have nobody to speak for them unless they are fortunate enough to have family or friends with the resources to help. And all they are doing is trying to establish their rights – in the knowledge that, in two out of three cases, the Tribunal overturns the DWP decision.
So it is hardly surprising that so few cases actually make it to Tribunal: because the people who are seeking to overturn these decisions are usually ill, and often deeply impoverished; they do not have the resources to take a case the whole way. And, rather than acting as a public body should – and enabling people to obtain what is due to them – the DWP would rather intimidate, harass and bully vulnerable people into giving up. Even with the support that was available to him, J – was on a number of occasions during the process on the brink of giving up; the pressure – especially for someone with J’s illness – was simply too much.
It took eight months from the date of the original assessment to get to a tribunal hearing. J was unable to attend – he was simply too ill and unable to face it – and was represented by his family-member advocate.
All tribunals relating to benefits are managed by the Courts and Tribunals Service. The scene on arriving at the tribunal building was dispiriting and unacceptable. The waiting room was “managed” by security guards from a well-known (and controversial) private security company. There were two guards on duty; one behind a desk with a telephone, the other, looking after the airport-style metal detector, was sitting at a desk eating – despite the nearby notice banning food and drink in the waiting area . Both were surly and rude. The ban on food and drink seemed particularly difficult to justify; this, remember, was a place where people with a range of physical and mental illness were coming to argue the case for the restoration of their benefits; given that long delays can take place in Court, it simply isn’t acceptable for someone with, say, diabetes to be subject to such a rule – especially when the staff are eating in front of them.
But it is here, too, that you see the human face of the withdrawal of legal aid and the lack of any support for claimants at Tribunal. You see often desperate people who are simply unprepared for the rigour of a hearing in front of a Judge, with the DWP represented by Counsel. One of those attending was clearly unable to read the judgement that had been given to him, although the Clerk to the Court offered assistance – and it has to be said that, once one got past the private security staff, the Court staff’s behaviour was exemplary: tactful, helpful and concerned to ensure that those appearing before the Tribunal were treated decently and respectfully. It is notable that this one example of staff acting with what one might call the decency of authentic public service came from the one part of the process that was entirely out of the hands of the DWP.
Respect was not a word one would associate with the substantial number of DWP staff – Counsel and administrative staff – one of whom was heard to remark, quite audibly, that J’s case would be a pushover since it was only a family who was appearing. Despite that, even immediately before the hearing, the DWP representatives seemed anxious to cut a deal – to keep J in the Work Related Activity Group while ensuring that he was not required to do any Work Related Activity.
In the event, the actual Tribunal hearing was short and decisive. The Judge accepted that Regulation 35 applied in J’s case, and the expert psychiatrist supporting the Judge reiterated that J’s illness was never going to improve and that it was ludicrous to suggest that he would ever be able to work. It still took several phone calls – replete with reminders of what a Court Order actually entailed – from his representative to the DWP for J to get his backdated benefit, but after almost eight months to the day from the original assessment, J had been vindicated.
There are several conclusions that one can draw from this story. All of them, in one respect or another, are indicative of how our society – and in particular our political culture has come to treat the vulnerable.
Perhaps the most obvious is that achieving justice for J took eight months of hard work, by people with the education, professional background and, simply, the time to put in that work effectively. J was lucky – as I mentioned he was able to draw on the support of his family, who could provide the resources and the expertise to take on his case. In short, his family were articulate, educated middle-class professionals who were not intimidated by the tortuous process of getting his rights. And even for these people it wasn’t easy: perhaps the most precious asset they had was time. The accumulated paperwork fills four box-files.
A further point to bear in mind is that this whole exercise – the months of process culminating in a Tribunal, in front of a Judge, and at which the DWP had instructed Counsel – was over £89.20 per month. Life-changing money for a claimant like J; but of no significance to the DWP. There has been growing criticism of the extravagant cost of the DWP appeals process; but the real point is not the money. Everything I have seen of the process points in one direction only – that this process is not about saving money for the taxpayer, or good governance: it is a wholly and deliberately ideological strategy designed to bully and humiliate and, above all, to deny the citizen rights of some of the most vulnerable people in society. There is no respect, and the Beveridge principles of citizenship and inclusion are fundamentally broken; in modern Britain, respect is only earned by a tie and a crest. Citizenship is a quaint notion from the past.
And, remember: all J was seeking was a recognition of his rights as a citizen, enshrined in law. And at every stage he – and his representatives – were treated as second-class citizens.
It is perhaps the denial of Legal Aid that shows this mindset at its most obvious. If you are arrested for a criminal right, you have an automatic right to legal representation. But if you are a citizen fighting for your right to receive your legal benefits, against an error by an increasingly obviously incompetent state, the Tories and Liberal Democrats took your right to representation away from you – unless you can afford it (which ill people on benefits almost certainly cannot) or unless you are disputing a point of law (and in order to do so you will almost certainly have had legal advice in the first place to be able to make the claim). In other words, if you are ill and believe being denied your lawful benefits, our political system places you below suspected criminals in its pecking order. There is no empathy in the Big Society.
And that absence of empathy, moreover, has the force of consensus. The whole concept of capability assessments – as distinct from health assessment by properly-qualified clinicians – was introduced by a Labour government, increased to its current intensity by a Tory government sustained in office by Liberal Democrat cheerleaders, and largely endorsed by a 2017 Labour manifesto that set out a commitment to maintain the system largely intact, committing an incoming Labour government to no more than changes at the margin. There is nobody within the political mainstream (and I include Corbyn’s leadership within that term – read the 2017 election manifesto that promised to keep welfare spending within Tory targets) who is willing to stand up for these marginalised people; nobody who is prepared to stick their neck out against the tide of tabloid prejudice.
One of the most astonishing and crass political behaviours of recent times has come from the Left: Momentum’s decision to “train” activists to offer support to people facing Tribunal. As far as I can establish that means a couple of hours of briefing from CAB staff; and if there is one thing that J’s case shows it is the utter hopelessness of casual intervention from the well-meaning. Unless they are prepared to stick the course of months of detailed, draining work dealing with a powerful and obstinate bureaucracy, they’re useless – in fact, by raising people’s hopes while denying them the reality of proper advocacy, worse than useless. What is needed is a fundamental change, enacted through the detailed work of Government, rather than casually-applied sticking-plasters handed out by people wanting to feel good about themselves.
Permanent, fundamental change is what is needed. J’s family know that they cannot sit back and savour their victory; they know that there is likely to be a next time, and that the fight will go on. And they know that for ever J who has access to the necessary support, there are dozens who cannot take the system, for whom a spiral of further illness and destitution.
They know, ultimately, that this is ideological; that it is about the need to change how a generation of politicians has regarded welfare and illness, and – right across the mainstream political spectrum – continues to do so.
And will never legitimately be able to describe ourselves as a decent society until we do.