Clause 99, Catch 22 and Penning is telling lies.

The Government are claiming victory because of a fall in the number of benefit tribunal hearings. Today, the Express boasts:

A HUGE drop in the number of people appealing against benefit decisions at tribunal hearings was yesterday hailed as a victory for the Government’s reforms.”

Actually, it’s a victory for the Government’s authoritarian information micro-management.

There were 32,546 tribunal cases between January and March this year, compared to 155,000 in the same period of 2013.

“Official figures” reveal an 89 per cent fall in people contesting the decisions to cut, deny or restrict Employment Support Allowance (ESA), long-term sickness and disability benefits.

Tribunals contesting Jobseeker’s Allowance decisions also fell 70 per cent this year.

Disability minister Mike Penning said: “Fewer appeals going to tribunal is welcome. Getting more decisions right first time avoids the need for protracted tribunal appeals.”

Under the Department for Work and Pensions reforms, officials look again at decisions and extra evidence in all disputed cases before they go to appeal.

However, the effectiveness of the mandatory review – the Department of Work and Pensions (DWP) second “look” at their decisions to end benefit claims – isn’t the reason behind the fall in appeals, as Penning claims.

Firstly, people can no longer appeal benefit decisions immediately after their assessment, the mandatory review process will inevitably slow appeal applications down considerably.

Secondly, another major reason for fewer appeals is not that the DWP suddenly got better at decision-making, but rather, it’s because of a cruel and despicable move by the government to remove basic rate ESA payments from claimants awaiting the outcome of the mandatory review.

Previously, claimants who were found fit for work could continue to receive ESA at the basic rate by immediately lodging an appeal if they thought their work capability assessment decision was wrong. ESA would then remain payable until the appeal was decided.

Under the new rules, people who wish to challenge a benefit decision are no longer allowed to lodge an appeal immediately. Instead, we have to go through a mandatory revision or review stage, during which a different DWP decision maker will reconsider the evidence and, if necessary, send for more information, before deciding whether to change the original decision.

There is no time limit on how long this process may take. The requirement for a mandatory review/revision before proceeding with appeal applies to all DWP linked benefits. During the review, no ESA is payable, not even the basic rate. However, once the review is completed, those wishing to appeal may claim basic rate ESA again, up until the tribunal. (It’s important that people request this continued payment from the DWP, once they have lodged their appeal.)

The ludicrous claim from Government to justify this move – clause 99 – was that this “simplifies” the appeal process, and  “the changes will improve customer service by encouraging people to submit additional evidence earlier in the process to help improve decision making. Resolving any disputes without the need for an appeal will also help ensure that people receive the right decision earlier in the process.”

Call me a sceptic, but I don’t believe this was the genuine reasoning behind clause 99 at all.

We now have to appeal directly to HM Courts and Tribunal Services, this is known as “direct lodgement,” as DWP no longer lodge the appeal on our behalf. That is assuming, of course, that people manage to circumnavigate the other consequences of this legislation. Having no money to meet your basic living requirements is something of an obstacle, it has to be said.

From 1 April 2013 we are no longer able to get Legal Aid for First-tier Tribunal hearings. Legal Aid is still available for appeals to the Upper Tribunal and Higher Courts, provided the case is about a point of law. (Legal aid act 2012 ).

There are some serious implications and concerns about these changes. Firstly, there is no set time limit for DWP to undertake and complete the second revision. Secondly, claimants are left with no income at all whilst they await the review, and until appeal is lodged.

The DWP stated that there is “no legal reason” to pay a benefit that has been disallowed during the review period. The only choice available to sick and disabled people is an application for Job Seekers Allowance. (JSA). However, we know that people in situations where they have been refused ESA have also been refused JSA, incredibly, on the grounds that they are unavailable for work, (and so do not meet the conditions that signing on entails) or they are unfit for work, because they are simply too ill to meet the conditions. We know of people who have had their application for JSA refused because they attend hospital for treatment once a week and so they are “not available for work” at this time, for example.

Furthermore, there is growing evidence that people are being told by DWP that in order to claim JSA, they must first close their original claim for ESA, since it isn’t possible to have two claims for two different benefits open at the same time. DWP are also telling people that this means withdrawing their ESA appeal.

Another grave concern is that although most people on income related ESA are automatically passported to maximum Housing and Council Tax Benefit, from the time that the claim ends, (and for whatever reason), eligibility to housing benefit and council tax also ends. (However, I would urge people in this situation to contact the Housing Benefit office promptly to explain the situation – the DWP automatically contact the Council to tell them when someone’s eligibility for ESA has ended. It is always assumed that the person claiming has found work when their DWP related benefit eligibility ends.)

It’s horribly true that Clause 99 has been introduced to make appealing wrongful decisions that we are fit for work almost impossible. Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, de-humanising, undignified and grossly unfair system of “assessment” is being hidden. More than 10,600 people have died because of the current system, and it is absolutely terrifying that our Government have failed to address this.

Instead, they have made the system even more brutal, de-humanising and unfair. What kind of Government leaves sick and disabled people without the means to feed themselves and keep warm? Clause 99 is simply an introduction of obstructive and Kafkaesque bureaucracy to obscure the evidence of an extremely unfair and brutal system. By creating another layer of brutality, the Government is coercing people into silence. Successful appeals were evidence of an unjust system, and now, having made the process almost impossible, we have ministers trying to claim that suddenly the system is fine. It’s FAR from fine.

This Government is oppressive, tyrannical and certainly bears all of the hallmark characteristics of authoritarianism. And they are blatant, unremorseful liars.


Please note that the DWP said “robust” data is not yet available to assess the impact of the legislative changes on tribunal receipts.

The DWP inform me that they are “looking to publish Mandatory Reconsiderations data when they judge it is of suitable quality to be published as Official Statistics.”

For further information, please see Appeals Reform

(That hasn’t restrained Mr Penning’s inferential leaps, though.)

Tribunals Statistics Quarterly:

April – June: 111,795
July – September: 76,430
October – December: 32,959 < Here is when the controversial DWP review procedure was introduced in October 013, though we have evidence that some people claiming ESA were made to go through mandatory review from APRIL, which was only legally introduced to apply to PIP and Universal Credit at that time.
January – March: 11,455
Total 232,639

ilegal have data to compare from previous years:

HMCTS ESA appeal yearly receipts                            Appeals received     
2013/2014 232,639
2012/2013 327,961
2011/2012 181,137
2010/2011 197,363







As we’ve pointed out, until people have gone through the mandatory review, they can’t appeal because no decision has been made against which they can appeal. 2013/2014 was still the second highest set of annual figures for ESA appeal receipts, and that indicates that the reality is much more likely that “wrong” assessment related decisions have actually soared, but the DWP have so far failed to provide statistics of those trapped in the added Kafkaesque bureaucracy of the mandatory review. We have no idea, yet, of the timescales this involves, but we do know that it will serve to filter appeal applications significantly.

Nick also provides us with another significant figure: over 700,000 people are in a massive queue awaiting assessments for ESA allowance.

The mandatory revision process applies to:
1. UC, PIP, JSA and ESA
2. decisions on credits

Government advice for decision making: staff guide

From the guidance document: Decision Makers should note that mandatory reconsideration is being introduced from:

8.4.13 for PIP
29.4.13 for Universal Credit
28.10.13 for JSA and ESA.

The mandatory review – clause 99 – was introduced solely to place barriers before those who need to appeal unfair decisions. It also, therefore, serves to hide the evidence of a system that is founded on unfairness, since the high number of successful appeal outcomes previously has indicated clearly that the assessment process is deeply flawed and has been used to remove lifeline benefits to people who need support the most.





BEGG, Anne (
To: Susan Jones
Thank you very much for this. I have passed a copy to my committee clerks so it can be considered as part of our inquiry into ESA/WCA.

Best wishes


Dame Anne Begg MP

On 13 Jun 2014, at 21:32

21 thoughts on “Clause 99, Catch 22 and Penning is telling lies.

  1. Reblogged this on Vox Political and commented:
    The government is claiming that a massive drop in benefit tribunals is down to its so-called reforms, which appears to be true – the operative ‘reform’ being the one in which benefit claimants are DEPRIVED of ALL THE MONEY DUE TO THEM if they appeal against a decision.
    Is this the action of an open, transparent and progressive, democratic government or the repression of an autocratic dictatorship?


  2. I worked as a tribunal rep for the CAB. I left that job 12 years ago. Things were getting worse then, but this government is claiming they are now getting better!? I returned to our local CAB for advice for my daughter this week and was told I had to fill in a means form and return home, then ring them the following day. The drop-in advice HAD to be stopped since they said there was a queue right out the door and across the car park!

    Had I been able to vote ‘properly’ in the last general election (in Northern Ireland we only have our pathetic wee local parties and it’s a one-issue election: the union. No, sorry, that’s not true, there are flags and parades too!), I would have voted LibDem. NOW if I lived in Great Britain (the mainland as it’s known by half the community here) any LibDem pollster visiting my door would be getting an earful and a slammed door. I fully understand Tories enacting these policies; they’re TORIES, and too many of the working class (and middle class) majority forget that, but WHY are the LibDems allowing this? They are in coalition, they now have power, they can use it. They do? My ARSE!

    Sorry to say that even I was unaware of these changes, and I count myself well-informed. They don’t report THIS in our papers (or maybe some do, but from the side of the government ‘cracking down on benefit cheats and cutting the exorbitant spending’ or ‘our great government are making it harder for benefit tourists’!)

    Re-blogging this!


  3. That enormous reduction in appeals shows how effective the reforms are at taking away the right to enough provision to live off.
    What do you do if you decide not to appeal against the decision to find you fit for work?
    I know that 6 months need to go by after the decision until you can start a new ESA claim.
    So you may as well appeal anyway and hope the reconsideration doesn’t take too long. Under the prev. rules, it took 50 days for my reconsideration.
    Any stats about the time these mandatory reconsiderations are taking in general?


  4. In the document ’21st Century Welfare’ and it’s counterparts – which I read thoroughly and that were released in the early phase of the coalition – it specifically stated that people who didn’t qualify for ESA, or JSA (because they’re too sick obviously) will have to find their own means of support!!!

    At the time, it felt that the government thought everyone had their ‘own means of support’! What? Trust Funds? Rich families? Savings?

    That one sentence summed it all up for me. All the many thousands of people that were going to fall between the cracks, denied even the most basic form of living from people who do have the trust funds, rich families, and plenty of savings.


  5. I read recently that there is now a time limit for the mandatory reconsideration. Unfortunately I can’t remember where I read it but I believe it was legit.


  6. I’m all for sharing articles like this but get a bit miffed when the author doesn’t credit the source of some of the data used. I’ve been working on the ESA figures for a long time now and have put endless hours of painstaking research in to them.

    It’s very clear from the article that the appeals data to which you refer was sourced from here >

    It’s a very good article which you have written; but please let’s be fair and give equal credit.

    Not only that but there’s a lot more to this which has yet to emerge over an interesting FOI reply which we have had from the DWP. The danger in not working in unison is that articles get an airing which don’t expose the full story.


    Nick @mylegalforum


    1. I did NOT get the stats from that site actually, otherwise I WOULD have cited that source. I have also put endless hours of research into my work, though not all of it is stat analysis. And I always credit sources, if you care to look through my work, you will see that this is true.

      The stats are actually up on the Government site. That’s where I looked.


    2. I have been working on this issue since the consultation back in 2012.

      I think you are out of order for accusing me of using ‘your’ data, some of which is actually available on the newspaper article, I hyperlinked on my article, amongst other places. I haven’t been on your site


    3. And the rest of the info came from DWP – some from the press office, some verified via MPs I communicate with and some came from my OWN work from last year, dated January 30, 2013. Here –

      I would hope that we remain mutually respectful, and open for collaboration if the need or opportunity arises. I do understand where you are coming from about feeling miffed: people lift my stuff all the time, without credit. But I write to get the info out as far and wide as possible, and try and keep that in mind…but it is a little annoying, yes.

      Best wishes to you Nick


  7. Actually I have just looked on your link, Nick, and you have more extensive data than I have – the previous years comparison from 2009 onwards,for example. I wonder if I may add that – with full credit of course, because that comparison is very useful to have, as it shows clearly the rise,of appeals from 2009 – significantly peaking, as well as the recent dip through the mandatory review being introduced in October. I never thought to do the comparison prior to the coalition taking office 🙂


  8. Hi Kitty, just a bit tetchy over this as it did appear very similar. The important thing though is we are fighting the same enemy which puts us on the same side 🙂

    Anyone is free to use anything from the site unless we say to the contrary, all we ask (as I’m sure you’ll appreciate) is credit and a mention. So by all means please post anything which helps Kitty.

    Trust me the reason for my safeguarding this is there is much bigger news to come. What we should then do is collaboratively shout this from the roof tops 🙂


    1. Agreed we have the same aims and the same common enemy, and I prefer working cooperatively and collaboratively where I can.

      Thanks, Nick, will add the earlier comparative stats later, when I can. I know there’s the online quarterlies, but I have problematic eyesight, and it takes me ages to wade through and faff with numbers. Thank you

      Let me know if there’s anything I can do to support any work.

      It’s good to ‘meet’ you Nick, now at least I know where you are, too 🙂


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