A tale of welfare reform destitution

1000300_617183238321593_1861918521_nI recently spoke to a man, let’s call him John, who, despite serious illness had not received a penny in benefits for over six months.

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.

Comments (13)

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  1. Born Optimist says:

    The price of Austerity politics is clearly too high and the most unfortunate are paying the price instead of those who caused and benefited from banking/financial mismanagement. See Mark Blyth’s book Austerity: The history of a dangerous idea or the half dozen or so videos on Youtube, one session having been recorded at the University of Glasgow.
    Born in Scotland, teaching in the USA, he really does a belter on the notion of Austerity and its causes.

    1. Ellenor Hutson says:

      Great recommendation Born Optimist. I actually wouldn’t even characterise these Welfare “Reforms” as Austerity. What little might be saved from stopping someones ESA is dwarfed by the costs of employing some to make the decision, administrate their subsequent claim for JSA, sit in judgement on the appeal, run the tribunal building, etc, etc..
      Presumably their frantic attempts to dissuade people from entering appeals are partly motivated by cost. But then they have to administrate a whole other layer of internal reconsideration and that adds up. All to prevent sick people getting an additional £28.75 (the difference between ESA and JSA in most cases) per week.
      It costs a lot to be this stingy

  2. mojca posavec says:

    Great article as always,I published a bit of it and linked back here.I wish people wouldn’t listen more and see how very serious the cliff we are approaching is.There need to be many more voices raised in protest and yes anger at the obscenity of wealth by some when others are starving.

  3. C Rober says:

    I had the same problems a few years ago , trying to represent a claimant for DLA , both mental and physical.

    What I found then that the SNP were allowing English law to be applied in Scotland , bent English law protected by scots law. I will explain.

    The hearings were to be done without any real legal right for the claimant , in fact to deny it at every chance.

    Only one person as witness , not allowed to take notes or record interviews. Having to name and book only one expert , thus only one person to accompany the claimant – total. The interview could not be booked , or cancelled for a new one if the expert was not available. Where the DSS both ignored and qouted laws , and of course the maths of Atos.

    At the time I qouted all the legislation being ignored , and English law being used in Scotland in private on Scottish soil to an Email to K MacAskill , his reply he forwarded it to the DSS.

    His action therfore , nothing new for the SNP of mcbuck passing , this as a justice minister responsible for ALL law in Scotland , including the protection of Scottish law which is supposedly enshrined into the act of union itself.

    I also reminded the former justice minister that even though benefits were not a devolved matter , he was though responsible for ensuring that the DLA appeal itself has to conduct itself within Scots Law during its operation , and that he was failing in his duty to do so , while yet allowing the DLA the protection from it that they denied others.

    Result – claimant like Scots law itself lost.

    It is more important that the SNP appear to be the victim for the voter than to use any legislation they have to empower them , plus of course to fill the wallets of the lawyers for appeals is also a bonus.

    Snp , party of lawyers that make the legislation , choosing what legislation to ignore to get votes , win win.

    Until now.

  4. abcd says:

    yes the system is so designed to fail the people it allows to claim .
    also there should be a survey then an enquiry as to how many claimants applications and their supporting evidence is deemed never recieved like wise mandatory reconsiderations . your bucket lorry should have dwp waste management for binned unlogged when recieved then binned paperwork on its otherside personal experience and i know its not just me being unlucky twice
    also paperwork that goes awol in the post usually is returned to you after being opened up in an office in ireland belonging to the post office to get the senders details then sent back to sender .
    in my case this never happened so somewhere my very personal medical details are sitting around . how would mr smith like his personal medical details to be lying around dont think so hopefully they have been shredded as i suspect what happens t0 a percentage of applications well it reduces the work load of these poor civil servants who have to trawl through the litany of illness the sick and disabled seem to have . if it was not for the sick and disabled these people would be on the dole themselves . fillng in forms and being made to jump through hoops but at least they will be fit enough to jump.soon ther will be no welfare state and the sick and disabled will just have to go and die . watch out you may have a fall or get hit by a bus and then you will find out what its like to be on the scrap heap scrabbling around at the will of the dwp for a crust- oh sorry forgot youll be fine theres always foodbanks or bins to raid if you can still climb the fences round them .

  5. Darren Owen says:

    I have an even better story for you.

    I injured my right thumb while in full time employment, I applied for Incapacity benefit at the time and was awarded it. Two operations later and one year later I was going through Triage Dundee back to work program and obtained employment again. Now Triage said that they would look after me in my employment for one year in case there was any problems with my injuries and the job may not be suitable for me, they were meant to regularly contact me which they never done and were meant to check with my employer ever month which they did not do. At the 8 month mark I had to call them concerning health and safety in the work place and that I had obtained more injuries because of this, I was then told my file had been shelved as it was at that point Incapacity was getting phased out and ESA phased in. I had to them come off on the sick because of arm problems, neck problems and what I thought was a strain in my left leg as it turns out over a 4 month period I was diagnosed with Tennis elbow in both arms, a hernia and a collapsed disc in my neck. I then went to the job center and they said they could not help me and I would have to apply for ESA, now comes the good part, TWICE I was disallowed one off them being a Tribunal, this was over a 1 year period, waiting on medicals from ATOS etc, there’s more, third time I applied I was accepted????? I then I was told I could apply for PIP 18 months it took to for them, to finally it came to a tribunal and I was disallowed, Okay I thought and re applied for PIP 3 weeks later and holy shit it only took them 2 weeks to give me a medical and 3 weeks to tell me I was awarded????
    I really do not know where I stand as all that time I spent applying and reapplying and getting refused and going though god awful Tribunals putting me under severe stress, I think that my first application to both ESA and PIP were legitimate and I should have been awarded earlier

  6. Rowan Alison says:

    I think you have a missing ‘not’ in this bit “More fundamentally, they simply cannot accept that they are fit for work. The reality is that they are not.” Do you mean ‘not fit’?

    1. RabMac says:

      As I read it the author is saying that it’s the claimant who “cannot accept that they are fit for work”, not the DWP.

  7. Dougie Blackwood says:

    Perhaps the sensible thing is to raise a close of “Crimes Against Humanity” against Ian Duncan Smith. He and Tony Blair would make good cell mates.

  8. duncan says:

    i disagree with the welfare system. i take care of my sick mother. I find i can provide healthy food, soups and other vegetables based recipes which keeps us all warm and fed, cheaply. I think taking responisbility for yourself is important, the idea that we are all entitiled to benefits has created a state depenedent mentality. I come from a strong community, although I am alone now, but I work and try and help my neighbours. The thing is the attitude needs to change. If i drink, smoke and eat double cheesbugers for fifteen years, I’m going to run into bother. But, as my great grandfather taught me how to cook with barley, oats and lentils I can provide food for the family and keep them healthy. I’m not commenting on this individuals case. I am talking in general. It is the same with education. We live in a country where it is available but few people value it. I live in a third world country and the children work from the age of five, with only a dream of school. The only way Scotland can be different from all state dependent societies is to build a society which teaches values. Not all the bollocks schools talk about now. The governments will always take the piss as well as the intellectuals as long as the masses are dispossessed of their ability to take care of themselves.

  9. David Allan says:

    I grew up in the era of a meaningful “Social Security”system , there can be no doubt that it certainly had flaws. What flawed replacement protections IDS and the tories have created will inevitably be eroded still further .

    Slowly bit by bit all the post WW2 Welfare State provisions are unravelling.

    Yet so many disadvantaged by these changes remain in ignorance of the Ideological agenda, voting NO to an opportunity to end this trend. The referendum YES campaign was to “soft” Independence will not be won by deploying similar tactics next time.

    A more robust campaign will be necessary and it should be underway now .

    The SNP control Holyrood and have an unprecendented number of MP’s yet there remains uncertainty over the inclusion of a manifesto commitment to permit a second ref.

    Stronger for Scotland – HOW???

    Thanks to folks like Elenor Hutson and her colleagues at CAB for all the help they provide , staff employed by MP’s and MSP’s in their constituency offices should serve their apprenticeship on the frontline like Elenor . Perhaps then a greater awareness would develop at constituency level.

    Perhaps SNP staff should volunteered at their Local Citizen Advice Office.

  10. Annie Harrower-Gray says:

    I would just like to tell my story of a 25 year ongoing battle with the DWP’s Industrial injuries in the hope that there may be something in there to help others.
    In 1990, I had an accident while working on ambulances, a colleague dropped a patient on me and I was knocked down a steep fllight of stairs. I landed on my neck. As it was an industrial accident, my examination etc went through the then DSS. That was my fiirst mistake, I shouldn’t have trusted them but had a second opinion from my own doctor. The DSS diagnosed pulled muscles in my neck that would soon heal. There was little improvement over 3 months, I tried going back to work but couldn’t lift and was awarded reduced earning allowance for one year.
    In this year, an independent surgeon examined me, the accident had caused not pulled muscles but damaged nerves in my back. She wrote a letter to this effect. I asked for another DSS medical assessment and was awarded REA for ten years and the condition classed permanent.
    When the ten years were up the now DWP sent me forms to complete if I still wanted to receive the allowance. In 2003 they wrote to me saying there had been an offiicial error and an over payment and the allowance discontinued. I claimed again and although I was have one the spasms that can occur in my back on the day of the medical assessment, the doctor avoided those areas and gave me an 0% disability rating. I appealed and lost, the tribunal said 10 years was over generous for soft tissue damage.
    In 2014, a benefits councellor suggested I claim again. I did and had a medical assessment, asked for copy and was give pages that looked like hens had marched to the midden over it. It took fiive people including my doctor to decipher it. The Atos doctor said my problems weren’t due to the accident (again the doctor had carefully avoided the problem areas in his assessment) but arthritis. I don’t have arthritis.
    There was something not quite right about the DWP decisions and I asked for my fiile under SARS although the DWP were at fiirst reluctant to give it to me. I would advise anyone with an ongoing claim to do this because what I discovered was astounding.
    I appealed and during a long tribunal after the judges had examined the fiile it was discovered that the reason the 2003 medical and appeal failed was because the medical evidence had been stripped from my fiile along with other supporting documents. All that remained was the wrong diagnosis from 1990 and this is what the tribunal was working with.
    I won the appeal and was given a 5% disability rating for life, and Secretary of States decision not to award me REA set aside. The DWP will not implement the decision of the appeal tribunal.
    So, I’m fiighting on, I complained to the Senior Complaints Manager of maladministration and it was dealt with in Glasgow. I received a point by point reply which, any fiiction writer would have been proud of writing. I did learn one thing though.
    I’d asked several times for the 2003 ‘official error’ to be explained because this is what caused the gap in the claim which the DWP now say means I cannot claim again. These requests were ignored. It seems it was due to the wrong date being typed in as the end of the ten years award. Someone inputed 2002 instead of 2000 when I should have been given another medical assessment before my claim ended. Now between 2000 and 2002 my fiile was active at least seven times. One person made the mistake and at least six people missed it. This error caused me to lose my disability percentage and the DWP did nothing to correct the error. It was the DWP who caused the gap they are now saying stops me from claiming.
    Well, the complaint is now with the Director General of the DWP as it crawls through the DWP complaints procedures, this has to be done before a complaint is taken to the Parliamentary Ombudsman. I’ve received a letter saying my complaint will take three weeks to investigate. I’m reading this as it’ll take three weeks to fiind a get out clause. Next is the External complaints whichever, which isn’t really external as it’s part of the DWP. More get out clauses no doubt before I can take it to the Parliamentary Ombudsman, then I might get somewhere. Onwards and upwards.
    PS. Sorry about the i’s before the f’s I don’t know what’s gone wrong with the keyboard.

  11. Jake says:

    If you want the truth please research population control. We have seen in recent history that when the disabled are targeted, when trade unions are squashed, when freedom of expression is suppressed the consequences are dire.

    Educate yourselves and don’t rely on what is presented to you.

    Those suffering from mental illness and disability deserve a lot of love and understanding at this time.

    Help them and you will be blessed.

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