Mandatory reconsideration

The government’s assessment processes for Employment & Support Allowance (ESA) and Personal Independence Payment (PIP) are denying hundreds of thousands of disabled and seriously unwell people the benefit they are entitled to – driving them into poverty. For most, their only hope of overturning that decision is by an appeal to the social security tribunal.

These tribunals can be incredibly worrying for people who have never faced the legal justice system. Tribunal panel members usually go out of their way to try to put appellants at ease, but there’s no escaping the sense you are on trial about whether you are telling the truth about your condition. Of course, when legal aid was available for such matters, claimants could access help with preparing for the tribunal. But along with the cuts to social security benefits, the past eight years have also seen the end of support for this kind of appeal – a double whammy for disabled people.

So with tougher eligibility criteria and no right to legal support you would expect very few appellants would win. And yet the reality is the opposite. The latest Ministry of Justice figures show that the tribunal finds in favour of 70 per cent of claimants appealing against DWP’s denial of ESA or PIP.  This figure is even higher when appellants do have legal representation. At the Zacchaeus 2000 Trust, our success rate this year is nearly 90 per cent and many other advice services achieve similar results.

Most of those claimants who win their appeal will have spent months trying to live on far less money than they are entitled to, often borrowing from friends and family just to survive. Many have fallen into rent and council tax arrears and faced the threat of eviction and bailiffs removing their possessions. Our recent research Access Denied – Barriers to justice in the disability benefits system, which is based on in-depth interviews with some of our own clients, shows how bad the consequences of these wrong decisions can be.

The government’s initial response to criticism of the woeful quality of DWP’s decision making was to create an internal review stage: mandatory reconsideration (MR). Anyone who wants to appeal against the refusal of ESA or PIP must now go through this before they can get to tribunal. You would have thought these reviews would correct obvious mistakes and therefore reduce the percentage of successful appeals at the tribunal. Again, however, the opposite is true. Ministry of Justice statistics show success rates for appeals rising every quarter.

DWP’s own statistics explain why: only 11 per cent of ESA refusals and 18 per cent of PIP refusals are reversed at MR stage. Last year, over 100,000 disabled or seriously unwell claimants won their appeal for ESA or PIP at tribunal. That is 100,000 initial decisions DWP got wrong and which it then failed to pick up at the MR stage. No wonder so many people feel this discredited MR stage offers false hope.

The Work & Pensions Select Committee recently recommended that DWP start sampling its MR decisions to understand why these are wrong so often. The government’s response was an emphatic “no”. Ministers argue that only a minority of those whose MR upholds the original refusal go on to pursue an appeal to the tribunal. That is true. But in our experience that is because many claimants think the MR is their appeal and don’t realise they have a right to have their case heard by an independent Tribunal. Others are so disheartened by a second refusal or daunted by the prospect of a formal hearing, that they simply accept it and struggle on.

At Zacchaeus 2000, we are determined to put a stop to this situation. As well as encouraging MPs to challenge DWP much more on hehalf of their disabled constituents’, we are also scaling-up our own efforts. Thanks to the support of the Equalities & Human Rights Commission (EHRC), the Access to Justice Foundation, Porticus and increasing pro bono support from city law firms, we are doubling the number of people we represent at tribunal to 500 this year. Other advice services are trying to increase the number of appeals they do too.

But it shouldn’t have to be this way. Disabled people should not have to rely on charities to secure the social security benefits they are entitled to. That’s why we were so pleased to see Lord Bach’s report on Access to Justice published by the Fabian Society last autumn, especially its calls for a Right to Justice Act and the reinstatement of legal aid for benefit claimants. Obviously, this government won’t agree to that willingly. But the past 12 months have seen them bow to public and political pressure and make significant concessions on universal credit. Labour MPs need to be arguing hard for the Bach Commission reforms too.

In the meantime, Labour in local government can contribute by upping its financial support to local law centres, CABs and other advice agencies specifically to increase the number of disabled residents they help appeal at tribunal.

Thirty years ago, a small group of activists, demonstrating against Margaret Thatcher’s “poll tax” decided to take more direct action. Over the next couple of years, they helped dozens of those on sickness or unemployment benefit argue they were too poor to pay. So began the Zacchaeus 2000 Trust, which remains rooted in a commitment to justice for those unfairly treated by the social security system.

Back in 1990, the sight of tens of thousands of the nation’s poorest and most vulnerable people being dragged to court to prove they didn’t have the means to pay helped end the poll tax. A similar all-out effort to help disabled people secure the social security they are entitled to now might just achieve the same result.