Clause 99. A white elephant?

13thHouR/ August 5, 2012/ Uncategorized/ 0 comments

There has been a considerable amount of comments floating around concerning Clause 99, in which person being Migrated from existing benefits to that of Employment Support Allowance (ESA).

Rt Hon Chris Grayling MP gives his response here concerning amendments to that clause;  This is his response.

I am aware that there is a degree of misunderstanding about the purpose of clause 99, and I wish sometimes that some of the groups that are lobbying on the issue would simply ask the question. The purpose of the clause is straightforward, and the drive relates particularly to the incapacity benefit migration process. We are trying very hard to get this right in the wake of the Harrington review. We are trying to get more decisions right quickly within Jobcentre Plus to ensure that fewer people end up going to appeal and that there are fewer successful appeals, because long waits for successful appeals serve nobody’s purpose. I want us to get the decisions right quickly.

We will not always get the decisions right immediately; sometimes people come back very quickly after the initial decision with new evidence, and we want to be able to take that into account. One of the frustrations that many decision makers face, as Professor Harrington highlighted in his report, is that the judges considering an appeal often have more evidence available to them than the decision makers in Jobcentre Plus did. Our focus on strengthening the reconsideration process is all about making sure that we try to maximise the evidence available to us. We give people the opportunity to return with further evidence if they have frustrations, so that we can look again at that evidence and reconsider the decisions before they go to appeal. In that way, we can carry out the process more quickly and effectively. There will always be decisions that are got wrong the first time round, however hard we try to perfect the system. The focus on reconsideration aims to ensure that decisions are changed quickly if we get them wrong the first time.

The challenge that we face is that if people launch an appeal straight after the first decision—this happens now, even before we have increased the focus on reconsiderations—the two things can end up going in parallel. The judges tell us with some frustration that an appeal will often reach its due date and no longer be valid, because the person concerned is having reconsideration or has withdrawn their claim. It would be crazy if someone said on the same day that they would like a reconsideration and an appeal, and a couple of weeks later the reconsideration took place, as a result of which the decision was overturned, but the appeal carried on. A few months later, after the administrative work had been done within the tribunal service, somebody would turn around and say, “Oh, we don’t need that any more.”

It seemed entirely sensible to say to claimants that we want to get it right and that we will have a much more focused reconsideration process. If someone says that they do not agree with the migration decision on whether they should be found fit for work or put into the work-related activity group, it is their absolute right to come back to Jobcentre Plus and ask for a second opinion, but they should wait until they have received a second opinion before the start of the appeals process, with all its complexity of form-filling for the individual, and all the costs to the tribunal service for a process that might not be necessary. That is the reason for the clause, which is entirely sensible. It is not about making people wait for long periods; it is about making the system better, more efficient and more sympathetic to people who might have been given a wrong decision the first time round.

The question arises of whether the approach of someone being left to receive their full benefits while waiting for an appeal decision is right for appeals in general. If someone is going through incapacity benefit migration, for example, and is found to be fit for work but wants to appeal, they will be moved down to the assessment rate of ESA, which is the same level as jobseeker’s allowance, until the appeal is heard. If it is successful and they are put back on ESA, the money lost during that period will be reimbursed, so they do not lose out financially. Their claim will be backdated to the date of the original decision, which is right and proper.

The problem with the approach put forward by the hon. Member for Westminster North is that if someone is on the full ESA amount right through to the appeal, there will be two effects. First, it creates an absolute incentive for everybody to appeal. Appeals by people who go through the process and receive the right decision will be enough of a challenge, but to create a situation in which people have a tangible financial reason to appeal, because they will receive more money if they do, simply makes no sense.

Secondly, if the higher rate was paid up to the appeal date, and the original decision was upheld, someone might have received many hundreds of pounds in overpayment of benefits that we would have to seek to recover. People might not have that money anymore, and we would have to try to recover it from them in the county court, which will end up with a thoroughly messy situation that is almost impossible to handle.

That is why the Labour party in government, when the right hon. Member for East Ham was in the Department for Work and Pensions, presided over a system in which people could only lose a benefit as a result of an appeal. At the end of the application period for ESA, if people are not allowed to move on to ESA and have to return to JSA, but they want to appeal against that decision, they will continue to receive the assessment rate until the appeal is heard. That was the right decision at that time, and it is the right decision now.

In a whole variety of ways, it would be horrendously complex to change the system in the way described by the amendment. Fundamentally, the clause is not about creating extra barriers, burdens and obstacles for people going through the process of having their claims assessed; it is about streamlining and simplifying that process. I want decisions to be taken more accurately in Jobcentre Plus. That is why we are working to give decision makers greater training, why we continue to consider how to improve the quality of the decision-making process, and why I am absolutely clear that I want to get as much of this right as possible. Of course, people will still have the right to appeal, but I do not want them to start those appeals until we have at least had the chance to take the right decision.

However what Chris Grayling fails to mention is that;

1. The existing appeals process requires a further reconsideration (even if one has already occurred) to be carried out on all presented evidence prior to an Appeals Tribunal Taking place, otherwise it can be sent back down on this lesser point of law.

2. In respect of Existing benefit awards made under the Social Security Act (SSA) 1998. These can only be amended or terminated by means of a super session (The Welfare Reform Act 2007 or 2012 did not amend this requirement). Therefore even if a claimant is refused for ESA (of either type) their existing award cannot be legally terminated, unless done via a SSA1998 super session, given that the Departments that originally handled this have been phased out, it is not easy to see a resolution to this legal problem

3. For persons (being Migrated) to be paid at the lower ESA assessment rate during a reconsideration/Appeal, they would either have to be Migrated to ESA then downgraded and have their existing award terminated. Otherwise what Chris Grayling has proposed would legally result in persons being Migrated (Who challenges a decision) becoming entitled to both Existing awards under the SSA 1998 and ESA assessment rate during the Reconsideration/Appeal.

This Government is so determined to scupper the Welfare System that it seems it does not understand how complex Welfare Law really is. You cannot make law via rhetoric. You really have to get in to each issue and iron out the problems as much as possible before taking it live.

Rt Hon Chris Grayling MP Quote with courtesy of

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