John had made a claim for Employment and Support Allowance, the benefit for people who have “limited capability for work” a year or two ago. He was asked to attend a medical assessment and the claim was refused. He had not scored sufficient points on the “work capability Assessment.”
John entered an appeal. The case went to tribunal. He attended the hearing without representation and lost. He made a claim for Jobseeker’s Allowance instead. After signing on a few times a jobcentre worker told him he was “not well enough” for Jobseeker’s Allowance and closed the claim.
John claimed Employment and Support Allowance again. The claim was accepted but the Department of Works and Pensions (DWP) refused to pay out until he had been reassessed. They were unable to tell him when that might be.
When I started out in welfare rights, a case like this would be unheard of. Now, it’s commonplace. I invite you to read my opening paragraphs over again. Look at the effort John has put in. Imagine how difficult this would have been for a sick man. Ask yourself if there is anything more he could have done. Now imagine how many others are slipping through those same gaps.
To explain how this has happened will need the rest of this article and will take us to the very beginnings of the current run of “welfare reform”.
Welfare Reform Act 2007
It is 2008 and I am working at the CAB. I have just been promoted to Welfare Rights from generalist advice. A large part of my job is Incapacity Benefits Appeals. The Welfare Reform Act has introduced a new benefit, Employment and Support Allowance, to replace Incapacity Benefit but this is not yet a large part of my work.
To succeed in their appeals, my clients must score 15 points on an inflexible tick box system. It is particularly unsuited to chronic fluctuating conditions and mental health problems and these make up the majority of my caseload. The legal test consists of a list of “descriptors” and points are scored for each that applies. Some descriptors carry 15 points all by themselves (“Cannot stand unassisted” for example) others only 1 or 2 such as “Mental condition prevents them from undertaking leisure activities previously enjoyed” or “Is scared or anxious that work would bring back or worsen their illness”
I help a woman with depression and anxiety to win her case on a combination of low value descriptors. She tells me she feels like a fraud receiving benefits when she can walk and type. I tell her that the cumulative effect of many small descriptors is as legitimate a route to benefits as a high score on one or two. This is how the benefits system recognises chronic and moderate illness.
The new Employment and Support Allowance has a similar system but the lower scoring descriptors have been removed. I know that in future, this woman and others like her may not be able to claim sickness benefits. I do not mention this to her.
Employment and Support Allowance Regulations 2008
It is 2010. I am working as a Welfare Rights Officer for a large local authority. ESA appeals take up the majority of my work. Not only is the legal test harsher than the old incapacity benefit- the medical assessors routinely interpret the descriptors more harshly than the regulations intended. The assessment centre is known locally as “Lourdes” because of the daily miracles performed there.
When people claim ESA, I advise them to expect a refusal and set their sights on the appeal.
I win a case for a man whose medical assessment records “abdominal problems- under investigation.” He is later diagnosed with stomach cancer.
I win a case for a woman whose cancer was in remission when she developed a backache. The best case scenario would be osteoporosis, a side effect of aggressive radiotherapy. In the worst case scenario the cancer has returned in the bones.
I win a lot of cases like that. For people who sit in my office in visible pain. For people who do not look well enough to get out of bed to come see me. But I lose cases too.
There are a large subset of people who are not well enough to work and yet not unwell enough to receive Employment and Support Allowance. They would previously have received Incapacity Benefit. There is nothing for them now.
I talk them through their options. They can accept the decision and claim Jobseeker’s Allowance. Or, if 6 months have passed since the original decision (or if their condition has got worse) they can make a new claim for Employment and Support Allowance.
Since an appeal typically takes more than 6 months, the majority choose to make a new claim. I pencil their next appeal for next year and expect to lose that one as well. It becomes routine. They never receive the full rate of Employment and Support Allowance, but they never have to face signing on for Jobseeker’s Allowance either. It is now common knowledge that the jobcentre has targets for sanctions and the unwell are easy prey, and yet this is not the whole reason my clients choose claim after unsuccessful claim for Employment and Support Allowance. More fundamentally, they simply cannot accept that they are fit for work. The reality is that they are not.
Welfare Reform Act 2012 (s.102)
Its October 2013 and regulations made under the Welfare Reform Act 2012 bring in mandatory reconsideration. Now we can’t enter an Employment and Support Allowance appeal without first allowing the DWP to “reconsider” their decision. No benefit payments are to be made while this “reconsideration” goes on.
Apparently the government is concerned that there are too many benefits appeals. This will “streamline” the system and ensure that the “right decision is made at an earlier stage”.
I attend a conference and listen to a lecture by a tribunal judge. She is able to confirm that there has indeed been a large fall in Employment and Support Allowance appeals and speculates that incorrect decisions are being overturned at reconsideration stage. The audience of welfare rights advisors disagrees. Many of our clients are still waiting (for months) for their mandatory reconsiderations to be looked at. In the meantime they are claiming Jobseeker’s Allowance and struggling to meet the ever more stringent job search requirements.
I begin to see clients whose Jobseeker’s Allowance has been sanctioned while they wait for their Employment and Support Allowance refusal to be looked at again.
I see a surprisingly large number of people who are refused Jobseeker’s Allowance or taken off it altogether because jobcentre staff considers them too unwell to meet the requirement to be available for work. It is never clear if they are attempting to do a kindness or if they are simply under pressure to take people off Jobseeker’s Allowance any way they can. It happens so often that the issue is considered in the Upper Tribunal. The resulting judgement has no effect in the ground.
I have to remind the DWP, often, that the work capability assessment decision is binding for JSA. I rely on the legal fiction that a person can work to see them through until we can we can establish legally that they can’t. When I explain this to my clients they frequently fail to follow me. This is because they were expecting the system to make sense.
Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015
Fast forward to the present day and I’m wondering why John can’t get his Employment and Support Allowance; 6 months had surely passed. It turns out I’d missed something. The 6 month rule was abolished while I was on maternity leave. The speed of welfare reform is so fast that missing something is easy.
An Employment and Support Allowance decision is now effective until a new decision can be made; Even if it was years ago; even if it was wrong.
Ian Duncan Smith was explicit that the change was intended to push more people off of Employment and Support Allowance, stating: “We are making this policy change because we believe that the existing rules encourage claimants to claim ESA, rather than claim jobseeker’s allowance (JSA)”
John’s situation is result of cumulative welfare “reforms”: The harshness of the work capability test of Employment and Support Allowance, the additional harshness in the way the test is interpreted, the pressures on his jobcentre “advisor” to shift him off of Jobseeker’s Allowance, and finally the removal of the 6 month rule. All have contributed to his destitution.
Welfare Reform is a hot topic right now. But each individual “reform” tends to be discussed in isolation. What’s left out of the debate is an appreciation that these things build up. People like John are facing cut after cut after cut. Each change impacting on the next. It amounts to a wholesale destruction of the welfare state. It is this that we must chronicle.