In 2017, the then minister for disabled people, Sarah Newton, said that the Department for Work and Pensions (DWP) was “recruiting, training and deploying” approximately 150 presenting officers (POs) to attend Personal Independence Payment (PIP) and Employment and Support Allowance (ESA) tribunals “in order to present the Secretary of State’s case and support the first tier tribunal in arriving at the right decision”.
The question is the ‘right decision’ for whom? It’s certainly not disabled people.
Given that, at the point of appeal, the Secretary of State’s case has already been presented twice – at the first DWP decision following assessment and again during the mandatory review – it seems that the government is using an incredibly oppressive and authoritarian approach to prevent successful appeal outcomes for ill and disabled people trying to access disability-related social security alone, without legal aid and support in the majority of cases.
Last week I spoke to someone who won her PIP appeal following a reassessment which had resulted in the loss of her PIP award. After waiting two weeks for some communication from the DWP, she rang to see when her award would be reinstated. She was informed that the DWP had requested the full written reasons for the tribunal’s decision, and that they were considering challenging the court’s decision. If the DWP decide to proceed with their challenge, they must apply for permission to appeal.
The application must be made within one month of the date of the tribunals’ written statement of reasons. So far, the claimant has been left without her award for 13 weeks, and she is very distressed. Having gone through mandatory review and appeal, she is utterly exhausted and the stress of the process has significantly exacerbated her illness – she has multiple sclerosis. Since her assessment, she has also needed treatment for anxiety and depression.
The claim for PIP was in relation to her physical disabilities, but she has become mentally unwell as a direct consequence of her extremely distressing experiences. The DWP will be permitted to appeal the tribunal’s decision only if it is considered that the decision resulted from an error of law. Once the tribunal have received the request the chair of the tribunal will provide a written statement to the claimant and the DWP explaining why they awarded PIP. It can take up to 12 weeks for the written statement to be sent out.
I co-run a support group online for people going through ESA and PIP claims, assessments, mandatory review and appeals. We are seeing a rise in the number of cases where the DWP are requesting written reasons for the decision of the tribunal, but quite often, it eventually emerges that they are not proceeding with an appeal.
This leaves people waiting many months with the fear they may lose their lifeline award, causing a lot of additional and unnecessary distress. Furthermore, the DWP are not keeping people informed of their intentions in a reasonable and timely manner, which adds significantly to the distress and uncertainty that the whole awful process has created.
There are two people who have waited over 12 months after they won their appeal, while being told by the DWP that they are still awaiting the judge’s decision as to whether the DWP can proceed with a challenge. Meanwhile, the DWP refuse to discuss the details of the matter any further when people ask for details and an idea of a timescale.
One person told me he felt that the DWP are “intentionally playing mind games to demoralise and scare people”, and that leaving people feeling precarious was “a deliberate strategy” to undermine people’s expectation of support, and
Someone else who won their PIP appeal has been left for four months without any payments, the DWP claim he owes them money for an overpayment, and refuse to release the money he is owed. However, he told me that he does not owe any money, and has never been overpaid, as prior to his relatively recent claim for PIP and ESA, he was in work and received no social security. He ahs also been forced to appeal the DWP’s decision not to award him ESA.
The DWP were allocated £22m of public money to hire the “presenting officers” to “support” the DWP at disability benefit tribunals. Disability campaigners warn that these 180 presenting officers, rather than helping judges to make fair decisions about whether to overturn the DWP’s rejection of someone’s claim for benefits, will inevitably argue as forcibly as possible in the government’s favour. The aim is to cut the number of successful appeal outcomes for claimants. The reality is that PO’s are sent by the DWP to try to discredit claimants’ accounts and to argue forcibly for the DWP’s interpretation of the law to be accepted.
A freedom of information request by Disability News Service resulted in them being sent forms that have to be completed by presenting officers after each tribunal they attend.
Included in the documents are the following questions for presenting officers attending ESA and PIP tribunals, respectively:
“PO impact – Was SG [support group] award averted”
“PO impact – was enhanced PIP award averted?”
DNS quotes a DWP insider, saying that presenting officers are being given the ‘target’ of stopping enhanced PIP payments and that this was placing ‘immoral pressure’ on presenting officers. (See the full article: ‘Truly appalling’ revelations ‘show DWP is subverting justice’ at appeal tribunals.)
The DWP outline says: “The PO must be confident that the decision is accurate and prepared to lapse appeals where this is not the case. They must highlight inconsistencies and take appropriate action when new evidence comes to light, including making a critical assessment of its validity.”
But surely that is the role of an independent court.
At the time, Marsha de Cordova, Labour’s shadow minister for disabled people, described the DWP’s admission as “truly appalling”.
She said: “The idea that the ‘impact’ of DWP staff is being assessed on whether they managed to get ESA support group or enhanced PIP awards ‘averted’ is truly appalling.
“Presenting officers are supposed to be there to provide fair and balanced evidence of a claimant’s needs.
“In May last year , freedom of information requests revealed that the DWP was setting targets to reject 80 per cent of social security appeals at mandatory reconsideration.
“They clearly haven’t changed their approach.”
She added: “The whole system is broken: from assessments where, for example, only eight per cent of claimants think assessors understood their mental health, through to appeals where judges are overturning over 67 per cent of initial ESA and PIP decisions.
“Labour will scrap the current PIP and ESA assessments, bringing an end to the Conservatives’ failed, privatised assessment system.
“Instead of enforcing a culture of distrust and cost-cutting, we will work with disabled people to ensure that they have personalised, holistic support to live full and independent lives.”
The assessment process, from beginning to end, is almost entirely about providing opportunities for assessors and DWP decision makers to manufacture as many far fetched ‘inconsistencies‘ as they can to prevent awards and deter as any higher rate awards as possible.
This means that PIP is not about meeting the needs of disabled people, it is about how little the state can get away with paying out from public funds, regardless of a person’s needs and entitlement.
It was acknowledged in my own PIP assessment report that I had cognitive difficulties because of my illness. The HCP said that I had difficulty focusing when asked questions and needed prompting. She acknowledged that I rely on a 7 day pill organiser to ensure I take my medication safely and correctly.
However, the report said that I had a degree (I graduated back in 1996), I had worked in a profession – as a social worker (until 2010, when I became too ill to work) and I had a driving licence in 2005 (I haven’t been able to drive since 2005 because of flicker-induced partial seizures). The assessment took place in 2017. I was not awarded a point for cognitive problems, and was just one point short of an enhanced PIP award. The reasoning behind not awarding the one point was unreasonable, irrational pretty thinly stretched, given that I cannot drive, I was forced to give up work in 2010, and I graduated in 1996. The decision at mandatory review was exactly the same, with the same woefully incoherent reasoning presented again.
In November 2017, POs attended 23% of all first tier PIP tribunals, but the aim back then is to increase this to 50%.
It would seem likely that presenting officers are being used primarily to target claimants who are likely to be seeking enhanced rates of PIP or the support group of ESA. In which case their presence has nothing to do with improving decision making by feeding back to colleagues and everything to do with taking awards from disabled people, regardless of the high price disabled people have to pay in terms of loss of independence, loss of income to meet their basic and additional needs, placing them in unacceptable situations of severe hardship.
A claimant who secretly recorded his personal independence payment (PIP) assessment and provided a transcript to a tribunal has won his appeal against a disability living allowance (DLA) to PIP transfer decision, the BBC has reported.
Nev Cartwright, 45, received DLA because of breathing difficulties caused by a lung tumour which led to his left lung being removed.
Last year he was told to attend a ‘medical’ to assess him for PIP instead of DLA. Because he had seen a programme the night before questioning the fairness of PIP assessments, Nev decided to secretly record the interview on his mobile phone.
As a result of the assessment Nev lost his higher rate mobility and had to return his Motability car.
When he read the PIP assessors report he realised that there was information missing and other details such as his peak flow reading, had been altered. The effect was to make Nev seem much more mobile than he actually was.
Nev had a professional company write a transcript of his assessment recording and asked to be allowed to submit it as evidence for his appeal.
The DWP tried to prevent the transcript being admitted by the tribunal, but they failed and the transcript was taken into account. As a result Nev won his case and now has his Motability vehicle again.
Given the very costly restrictions attempt to place on openly recording your PIP assessment, it is not surprising that some claimants turn to doing so covertly. Although we have had members who have used relatively inexpensive cassette recorders at their assessment.
It is not illegal to secretly record your assessment.
But if you are caught doing so and refuse to stop, the interview is likely to be ended and you will be held by the DWP to have failed to take part in the assessment with the result that you will not be awarded PIP.
This imbalance of power is most certainly subverting justice for disabled people. We often hear about the outright unfair methods the DWP uses to cut disabled people’s income when they have been held to account. But for every case we hear about where justice prevails in the end, there are many more that slip under the radar, because perhaps some of us are simply too ill, exhausted and disheartened to appeal alone, without any legal support, while the government spends hundreds of thousands of pounds of public funds to prevent us from having a fair and balanced assessment and hearing, and accessing the social security support that most of us have paid towards.
Meanwhile, Atos and Capita have come under fire for the reported mishandling of as many as a third of the PIP assessments they carried out. The firms received a raise for their efforts last year, raking in more than £250 million each for the controversial disability welfare checks, despite Parliament’s Work and Pensions Committee recently suggesting vulnerable people had been “pushed to the brink of destitution” by the contractors’ handling of the scheme.
That’s because the private companies are contracted to do precisely that by the government.
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