Tag: Appeal

Court victory for disabled EU benefit claimants at appeal

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lady.justice.small

Two disabled people who moved to the UK from other EU countries have won an important Appeal Court case which entitles them to disability-related benefits in the UK from shortly after they arrived rather than having to wait two years.

The case, brought by Child Poverty Action Group and Harrow Law Centre, will ensure that disabled EU citizens and their carers who have a “genuine and sufficient” connection to the UK will receive social security support at an earlier point if they relocate to the UK.

The ruling overturns an Upper Tribunal finding that had denied both households benefits. And it confirms that the “genuine and sufficient” link which must be demonstrated by claimants in these circumstances is to the UK as a whole, rather than to its social security system.

One of the claimants, Ms Mohamed, is a Somalian-born woman who after 14 years’ residence in Germany as a German citizen came to the UK to settle here, aged 65.

When her health deteriorated to the point where she could no longer live alone and required the care of her daughter, a British citizen living in the UK, she claimed Attendance Allowance (AA). Her claim was refused.

The other claimant is 18-year-old Brandon Kavanagh, an Irish citizen who was diagnosed with Asperger’s Syndrome as a child.

His mother, a British citizen, moved to Ireland when she was a teenager but returned to the UK in 2013 with her children to escape domestic violence and to be closer to her family, from whom she receives support. Her son was then aged 12.

She claimed Disability Allowance (DLA) for her son when she arrived in the UK, but her claim was refused.

Between 2011 and 2013 she had received care allowances for her son and for herself from the Irish social security system.

Both were refused disability-related benefits on the grounds that they hadn’t been in the UK long enough to pass the so-called ‘past presence test’.

The test requires people claiming disability benefits to have been in Britain for 104 weeks of the 156 weeks before they claim. EU citizens may be able to meet this test by combining, in certain circumstances, the time they have lived in another EU state with the time they lived in the UK.

Alternatively, the test doesn’t apply to EU citizens if they can establish a genuine and sufficient link to the UK.

Both claimants appealed the refusal of their benefit claims. In Brandon Kavanagh’s case he lost the appeal while Ms Mohamed was successful in hers. Brandon appealed to the Upper Tribunal in his case and the Secretary of State for Work and Pensions appealed in Ms Mohamed’s case.

The cases then went jointly to an Upper Tribunal which found that although the “genuine and sufficient link” needed to be to the UK as a whole rather than limited to its social security system and that such a link may be established on the basis of presence alone, neither of the claimants could demonstrate a sufficiently strong link to the UK.

In a judgement handed down yesterday, the Court of Appeal ruled that both claimants had a genuine and sufficient connection to the UK when they claimed disability benefits shortly after their arrival and that the approach taken by the Upper Tribunal was flawed and unduly inflexible because it failed to take account of all the particular, personal circumstances and motives of the claimants which, in the round, proved the required sufficient link.

The Judges say: “… objective evidence of the [genuine and sufficient] link is plainly critical but evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing.”

In Kavanagh’s case, the judges found the fact that his mother was fleeing domestic violence explained and confirmed her settled intention to remain in the UK, her country of nationality.

She needed the support of her wider family in England, enrolled her children in English schools, closed her only bank account in Ireland, severed all ties with the Republic and had no intention of returning.

In the case of Ms Mohamed, she suffered a number of physical ailments including osteoporosis, rheumatoid arthritis and high blood pressure.

She used a wheelchair, required support with mobility and daily activities such as washing, cooking meals, dressing and administering medication and had moved to the UK to join her daughter, a British citizen who provides daily care for her.

Commenting on the judgement, Child Poverty Action Group’s Head of Litigation Carla Clarke said: “This is a strong judgement which recognises that justice requires decision makers to take a wide view of all the relevant facts and motives where a genuine and sufficient link to the UK must be proved for benefit purposes.

“Both of our clients already had strong family ties to the UK and a clear intention to settle here when they first claimed disability benefits yet they were denied help with the extra costs of disability because, as today’s judgement finds, the criteria for proving a sufficient link to the UK has been too narrowly applied.

“Today’s ruling means that disabled EU citizens, including UK citizens, who relocate or return to the UK from another EU country because their carer is fundamentally connected to the UK will receive the financial help they need because of their disability at a much earlier point.”

 

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Disabled people face a hostile environment of calculated, strategic ordeals to deny support

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PIP court

Disabled people face a hostile environment comprised of strategically placed and thoroughly demoralising ordeals, which are being passed off as arising because of bad administrative practices and simple errors. However, such ordeals are happening far too frequently to have arisen through random error. Furthermore, there is an identifiable pattern of government sponsored behaviours that has emerged within privately contracted companies hired to deliver disability assessments, and within the Department for Work and Pensions, which is aimed at simply denying people support.

Many people who have challenged a Department for Work and Pensions’ (DWP) decision not to award them Personal Independent Payment (PIP) in court successfully are finding that soon after they have won their appeal, they face a reassessment, and their award is taken from them again.

Even when people appeal, the system is rigged against them applying for legal support, and cuts to charities mean any support at all is shrinking away. Official figures last year showed that legal aid cuts mean ill and disabled people appealing their lifeline support through what have been consistently shown to be fatally flawed assessments and irrational, poorly evidenced DWP decision-making, are denied legal support in a staggering 99% of cases.

This means that someone with severe depression, or battling serious illnesses such as multiple sclerosis, cystic fibrosis or connective tissue illnesses for example, are left to take on a long, exhausting and complex legal case against the government, alone. 

The assessment process is set up to remove people’s disability benefits entirely because the evidence provided in medical notes by GPs and consultants, and the account of ill and disabled people, are not deemed by the state to be as credible as a snapshot report by a private company assessor, based on a half hour interview.

Private companies are motivated purely by making profit. This perverse incentive leaves no room for improving the dire situation that people, often at their most vulnerable, are facing. Improving performance as a service provider, or of prioritising human needs in a system that was originally designed to do so offers no reward for companies such as Maximus and Atos, because the government has been willing to pay them – from public funds – for atrocious failings that have harmed people and caused much distress. 

Since PIP was launched in 2013 to reduce the costs of disability support, the increasingly reduced access to financial assistance to help with the additional costs of being disabled has forced more than 75,000 people to give up their specially-adapted Motability vehicles. 

The UN have found that government policies have brought about “grave and systematic violations of disabled people’s rights” in the UK.

As someone who has gone through both PIP and Employment and Support Allowance (ESA) assessments and subsequent appeal, and as someone who co-runs a support group online for others going through this system, I know that both the assessment processes are beset by profound administrative failures and ordeals which seem to be wholly designed to work to the disadvantage of  ill and disabled people.

A report last year called Access Denied: Barriers to Justice in the Disability Benefits System, shows some of the immense suffering that the adversarial social security system causes disabled people and the long, exhausting and difficult process people who are ill have to go through to finally get the support they deserve and have paid into.

After being wrongly turned down at assessment, people must first go through mandatory review which can take anything from a few weeks to several months. The DWP argues that claims are fully reviewed at this stage, but the fact that 69 per cent of claimants win their appeal after having gone through MR proves that the MR itself is failing to correct the assessment’s flaws.

Case study: ‘Rose’

I spoke to someone this week who has faced two tribunals regarding her PIP award.  After successfully appealing the first, Rose (not her real name) had a face to face assessment when her review was due in July 2017.  The DWP decided to end her award, so she requested a mandatory review.  The DWP ‘lost’ Rose’s request twice after she had sent it, and then failed to log it and upload it onto their system.

Many other people have reported that they are not being notified of mandatory review outcomes, too, finding out after months of phone calls that the original decision was upheld. People cannot appeal until they have gone through a mandatory review, and several people told me they think the delaying tactics are deliberate, to discourage them from appealing DWP decisions. 

The mandatory review request in Rose’s case was sent in September 2017. The DWP acknowledged it had been received but had not been ‘logged’. As she was kept in the dark, Rose rang to find out what was happening over a month later in November, and was told once again hat the DWP had  ‘forgot’ to put it on the system.

She told me “They just said that there were always delays and to be patient and didn’t tell me why it had been delayed in the first place, then didn’t log it yet again”.

She added: “The DWP finally did the MR in a rush (and did not change anything from the original decision obviously) when I phoned again a month after that in Dec 2017 (as I still hadn’t heard anything) and they finally admitted what had happened both times. They sort of apologised on the phone but that was it. The MR document didn’t even change one letter of their original decision.”

Rose then waited almost a year for a tribunal date, which was arranged for 19 December 2018.

She told me: “The tribunal was very hard. It was not my first or even my second, as I fought and won before a couple of years ago after having two hearings adjourned because I was too upset to continue. But I won.

“It was an interrogation in a proper court room, with very quick fire questions and a very bizarre one, to presumably try to catch me out right at the end as I was standing up.

“The judge asked where I went to get my nails done!? I have never had my nails done in my life. I actually laughed and showed them my very short, bitten, discoloured nails. When I told my parents about that bit, they were furious and quite rightly said ‘would he have asked a man something like that?'”

The court didn’t reach a decision that day.

Rose said: “They did not decide on the day as it was 3.45pm (the hearing started at 3) and they were finished for the day – it was almost Christmas. The staff there definitely seemed to be winding down to say the least.

“Whilst I was crying in the waiting area, the receptionists were all screeching and laughing about their party plans, which I felt was pretty jarring and unprofessional. 

“I finally got my letter on Christmas eve telling me that they had awarded me standard rates on both daily living and mobility components, which I was relatively happy with.

“Although relieved, I do think it should have been enhanced rate on daily living but they never consider finances / therapy in most cases I’ve heard. I wasn’t so happy with the amount of time awarded (see below) but I was relieved to have an award.”

Rose waited for around five weeks to hear from the DWP, anxious that they may be considering appealing the tribunal’s decision. After being prompted to ring them by  someone online offering her advice, she was told it was usual for the DWP to contact people to check details before they can sort out an award and backpay.

Rose told me: “I don’t have my own phone so used my parents’. The DWP said that their self imposed deadline to ‘sort it out’ was within six weeks and it would be paid then.

“I  phoned up again to check something and they said the same… then phoned yet again when the six weeks was up, a few days later, and I still hadn’t heard anything.

“The guy on the phone said he didn’t know why I hadn’t heard anything (he was lying as they did know by then) but said that there was nothing he could do and to just to be patient.

“I was distressed, pretty hysterical and in tears at this point on the phone to him and felt a bit sorry for him, as I don’t think he could understand much of what I was saying.”

Rose became more and more anxious and worried, so emailed her MP  in the hope that she could find out what was going on. She told me she was petrified that the tribunal outcome was being appealed.

Her MP phoned a special DWP ‘hotline’ and immediately found out that there was a problem, as the tribunal decision letter that Rose and the DWP had received on Christmas eve had one tiny date error on it: the court had written that Rose’s  PIP award should be backdated from the 07/07/2017 rather than 02/07/2017 .

Rose said: “The error apparently meant that they couldn’t pay me until it had gone back to the courts service to be changed (and then back to the DWP and right back to the back of the queue) which could take months, depending on how busy they were. 

“I would NOT have known this if the MP’s office had not have got involved ….the DWP outright lied to me on the phone more than once when they knew what was happening and further to that should really have picked up on this earlier i.e. when it was received by them before Christmas, according to the MP’s assistant.

“The MP’s assistant emailed the courts email address (apparently the only way he could contact them as they don’t have a hotline to HMCTS like they do to other government departments) and told me that they had two weeks to respond to him with further details.

“The day before that deadline this week (now 9 weeks since the tribunal) they contacted him and said that apparently the courts are STILL waiting for my file to be sent from an ‘offsite storage facility’ and it has not even got to the judge yet to sign. They have known about this since the 25th January (which is when the DWP finally contacted them, they took over a month to realise the mistake)! You’d think sending a simple file would not take that long…..

“They refuse to give timescales (the MP’s assistant has emailed them back to ask for some but obviously they then have 2 weeks to respond to that request again!) ….and obviously after the judge deigns to have time to change it, it then has to go back to the DWP to sort out (and go to the back of their queue again).

Rose told me “I can’t believe this, I need this money to live on. I SHOULD have had it every month since July 2017 (20 months back dated almost)! I’m at the end of my tether and don’t think I can cope with much more.

“It has almost been 20 months that I have been living on the breadline, just on my ESA as I don’t claim anything else. This whole process has made me so very ill. I mean I’m ill anyway, very ill but the added of all of this and the constant mistakes and errors and not knowing what’s going on and waiting has out me on the verge of sending me into crisis again. I have started self harming more regularly, my psychiatrist has put my medication up yet again and I don’t think I can cope with this anymore.”

Rose added “There will be no respite either, even when /if this gets sorted out, as I have just had my ESA renewal forms (ESA50) through last week …which is what sent me into a [mental health] crisis a couple of years ago.

“I will also have to apply for PIP again at the end of this year presumably as most of the backdated PIP will then be gone, as they only gave me 3 years. They felt I ‘could get better’, which is utterly laughable.”

Rose has Ehlers Danlos Syndrome (EDS), which is a degenerative genetic connective tissue disorder which causes constant chronic pain, chronic fatigue and frequent joint dislocations, with it’s concurrent POTS [postural orthostatic tachycardia syndrome], MCAS [a mast cell autoimmune disorder]and IBS. Rose also has spinal scoliosis, kyphosis, three ruptured spinal discs and trigeminal neuralgia. She is undergoing investigations for dyspraxia as well. 

She also has bipolar with severe depression and chronic anxiety.

She told me: “I’m a relatively intelligent person who used to have a very good job before I became too ill to cope (something the DWP have repeatedly used against me, that and my degrees). 

“Obviously mental health can improve in some cases, which is probably what they were getting at (very unlikely though with this strain constantly happening. I can’t see anyone going through this terrible system having time to gather their thoughts and improve in any way, shape or form when they constantly make you fight and justify why you are ill).

“But EDS is a degenerative genetic illness and the symptoms severely impact on my mental health as it is. Trigeminal neuralgia also only gets worse with age. The latter is also known as the ‘suicide disease’ because of the amount of people who have killed themselves rather than live with the pain. It’s said to be one of the most painful things you can get.

“It’s ridiculous, these are things that aren’t just going to go away. I have already been ‘not well’ for 20 years now, but was forced to finally give up work in 2009 after years of struggling and disciplinary meetings for being off sick so much. Yet the judge only gave me an award for three years, as it is, because they thought I could ‘improve’, which is impossible. 

“I’m so scared, this can’t be right, living in constant fear like this. Why do they hate us so much? I still can’t get hold of my welfare advisor at the local council to help me with my ESA50 either. I emailed him on the 12th and have left phone messages on his mobile and with his colleagues.

“I’m just so petrified that they will find some excuse not to give this [PIP award] to me now altogether. At the same time I am terrified that my ESA will be taken away and I’ll be left with nothing. The timing of the ESA reassessment is atrocious (but not surprising). I’ve been on ESA, in the support group since 2013 and have never had an assessment for that. Not until now, anyway.”

The tribunal granted Rose’s appeal. Because of the date error on the court letter, it may be justifiable that the error needs to be rectified by the court before the DWP issue the money she is owed in PIP backpay – from the date of her claim. However, Rose is entitled to ongoing PIP payments too. The DWP know this, yet haven’t given her a single payment. There is no credible reason for not paying her ongoing award in the meantime.

Recently, I have seen a large number of cases where people are being re-assessed earlier than the DWP had stated and they are losing their awards. For those on PIP and ESA, it’s become commonplace for people to be going through appeals for both awards at the same time, or successively, which means there is no respite from the extreme strain that they are being put through. The thing that strikes me is that in every case, the decision to end someone’s award is irrational and cruel, most often with absolutely no reasonable justification provided in the assessment reports, which are invariably completely inaccurate.   

The endless ordeal of re-assessments and withdrawals of support for disabled people; the introduction of heavily bureaucratic mandatory reviews, designed to deter appeals; the withdrawal of support and the long periods people are being left without any means of meeting even basic needs; the fact that mandatory review very rarely changes the decision to end an award and then the awful experience of having to appeal again is certainly convincing evidence of an intentionally created hostile environment for ill and disabled people – those very people the government claims it protects. 

There are also the unofficial, undeclared and non-legislative means that the Department for Work and Pensions frequently use to try at every opportunity to end claims. For example, it’s fairly common for the DWP to try to end ESA claims because a disabled person has been awarded PIP – a non means-tested income to support day-to-day independence and meet the costs of the additional needs arising because of disabilities. The DWP often try to claim that this is “standard” process when someone has “another award.” But PIP does not affect people’s  eligibility for ESA at all.

The endless tactics deployed by the DWP are designed to force disabled people to go through the thoroughly demoralisng, anxiety-provoking and punitive claim process all over again – which means a huge reduction in income because during the mandatory review, people cannot claim any ESA, and following MR, they will then only be eligible for the basic rate ESA. This also means there will be another long wait for another harrowing assessment, which presents a further opportunity for the withdrawal of lifeline disability support, and so on.

This kind of ruthless tactic was probably also designed to ensure that people never feel secure while needing lifeline support – a kind of informal Poor Law-styled “deterrence”.

Earlier this year, through a parliamentary question from Labour MP Madeleine Moon, it was revealed that more than 17,000 people died waiting for a DWP decision on their PIP claim between April 2013 and April 2018.

Disclosed official DWP data also reveals that 7,990 people died within six months of having a claim for PIP rejected by callous DWP ‘decision makers’. This indicates that contrary to Conservative minister’s claims, those most in need of support are being catastrophically failed by the assessment and decision making regime. 

Of these, 3,680 died within just three months of having their PIP applications rejected by the DWP.

I’m wondering what it will take for the government to admit that the system is unacceptably cruel and to acknowledge the mounting empirical evidence that, rather than supporting those most in need, the system is intentionally set up to deny support to as many people as possible, regardless of their needs and regardless of the ethical red line that has been shamefully crossed by the Conservatives under the guise of ‘welfare reform’.

 

I don’t make any money from my work. I am struggling to get by, like many other ill and disabled people. But if you like, you can contribute by making a donation and help me continue to research and write informative, insightful and independent articles, and to provide support to others going through the disability assessment process, mandatory review and appeals. The smallest amount is much appreciated – thank you.

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Please let’s help Peter to maintain his mobility and independence

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Peter Nicholls's Profile Photo, Image may contain: 1 person

This is Peter, I’ve known him for a few years, through our mutual campaigning on Facebook to raise awareness of issues that affect disabled people.

Peter also has multiple health conditions – ME/CFS, fibromyalgia, chronic pain, chronic depression, painful nerve entrapments, and arthritic wear in his neck. These conditions leave him exhausted and debilitated for much of the time. Even doing the most simple tasks can severely exhaust him. Not only is Peter’s mobility substantially restricted at all times, there are many days when he is not even able to leave his bed due to profound fatigue,  a lack of energy and physical strength. He is unable to work, due to my impact of his health conditions.

For seven years, Peter received Disability Living Allowance (DLA) and then Personal Independence Payment (PIP). Under both awards, Peter also qualified for the enhanced mobility component. This meant that he could use this part of his lifefine benefit to lease a mobility car from the Motability scheme.

However, Peter was reassessed in January and despite the fact that Peter’s conditions are chronic, the assessor surprisingly decided that he now needs a lower level of support. This meant that Peter’s income was immediately cut by £50 per week.

Peter has appealed unsuccessfully through the Mandatory Reconsideration process, and is now going appeal the Department for Work and Pension’s decision at a tribunal court. However, the wait for appeals is currently long, and Peter has been told that his won’t likely happen until after Christmas 2018. In the mean time, Motability are taking back his car as they are no longer getting payments from the benefit agency.

The loss of income is becoming a struggle, but Peter tells me that the loss of his mobility car is absolutely devastating. He says: “A car gives someone like me freedom, it is autonomous mobility. I have no idea how I’m going to cope. Getting to and from bus stops is very hard. Buses end up causing me such pain and harm, that I cannot do anything once I’ve been on a journey. Taxis might be ok for one or two trips per week, but the cost soon becomes intolerable, and they restrict getting out of the house to just 2 or 3 times a week.

He added “I am appealing with the support of Disability Solutions West Midlands. They have an excellent record of overturning 90% of decisions on appeal, and on the evidence, they say my case is a good one. Therefore, once I finally get my appeal heard it is very likely I will have everything reinstated.”

Meanwhile, Peter is hoping to use crowd fund support to help him buy a car to help him over the difficulties and barriers he faces over the next six months or so. Without this support, Peter will be effectively housebound and unable to do everyday things, such as shopping, visiting the doctor and hospital, visiting friends, going for coffee or enjoying the outdoors. All of these things are vital his ongoing therapy, and basic inclusion in his community and wider society. 

Thousands of disabled people have already lost their specialist Motability vehicles because of the cruel Conservative cuts to PIP, and sadly, many more are likely to be affected. 

Personal Independence Payment is a non means tested benefit for people with a long-term health condition or impairment, whether physical, sensory, mental, cognitive, intellectual, or any combination of these. It is an essential financial support towards the extra costs that ill and disabled people face, to help them lead as full, active and independent lives as possible.

However, I’ve written at length about how the assessment process is unfit for purpose, and is creating distress and causing harm to disabled people. See for example: Government guidelines for PIP assessment: a political redefinition of the word ‘objective’, which discusses how, prior to the introduction of PIP, Esther McVey stated that of the initial 560,000 claimants to be reassessed by October 2015, 330,000 of these are targeted to either lose their benefit altogether or see their payments reduced.

Of course the ever-shrinking category of “those with the greatest need” simply reflects a government that has made a partisan political decision to cut disabled people’s essential income to fund a financial gift to the wealthiest citizens. There is no justification for this decision, nor is it “fair.”

That article also discusses government guidelines for PIP assessors or ‘health care professionals’. The PIP assessment is geared towards looking for “inconsistencies” in “functional limitations”. For example, if you say you can’t sit unaided for half an hour, but then say that you watch soaps on TV, it will be assumed you sit unaided for at least half an hour to watch TV, and that will be classed as a “discrepancy between the reported need and the actual needs of the claimant.”

The whole assessment is set up and designed to look for “inconsistencies.” In other words, the assessor is looking for any excuse to justify a decision that you are not among those in “greatest need” for a PIP award. The entire process happens within a framework of reducing welfare costs, after all. This makes a mockery of the government’s fondness for using the word “objective.”

As someone who went through a PIP assessment last year, I know how harrowing and utterly unfair they can be. I was awarded basic rate. I was one point short of an enhanced level award. In a report concerning the decision, I was told that because I had a degree (I graduated in 1996, Master’s in 2007), because I worked as a social worker (until becoming too ill to work in 2010), and because I had a driving licence in 1993 (I can no longer drive because of flicker induced seizures), I had “no evident cognitive difficulties” caused by my conditions. It seemed inconceivable to the assessor that my illness, which arose after I graduated, has caused cognitive difficulties since 2010. 

Assessors use any irrational and outrageous excuse they can to award the lowest amount possible.

I manage my health care and hospital appointments, shopping and so on because my son and other family members support me by taking me themselves.  I’ve been unable to drive for a few years now.

However, Peter depends on his motability vehicle to get out to appointments, to shop and to meet friends. Without his car he will be trapped in the house, and the loss will cause him hardship and distress. That’s why I thought a crowdfund appeal would be  appropriate. 

The appeal is to raise £1,500 to help replace the loss of PIP payments and replace or keep Peter’s essential mobility car, so he can stay mobile and remain able to leave the house. 

Please add your support for Peter here at Just Giving (Click).

 

 

 

Successful Appeals Against Disability Assessments – It’s As If There’s Something Wrong With The System

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PAY-Protesters-with-posters-outside-the-Dept-of-Work-Pensions

Source: the Independent, written by James Moor.

It’s rapidly becoming clear that Prime Minister Theresa May’s bold pledge to create a Britain that works for everyone should have an asterisk attached to facilitate the addition of “except for those pesky people with disabilities, can’t we pack them off somewhere else?”

In recent days the Government’s plan to cut people with serious mental health conditions out of eligibility for personal independent payments has justifiably come under sustained fire. 

However, the attitude problem displayed by both May’s administration, and that of her predecessor David Cameron, goes beyond that, as a delve into the latest statistics demonstrates.

What they show is that the number of appeals against decisions made by the DWP on the basis of assessments made by the private, profit driven contractors working on its behalf is increasing at a similar speed to that at which Lewis Hamilton exits Silverstone corners. 

They show that there were 60,600 Social Security & Child Support appeals between October and December 2016, an increase of 47 per cent. Even Lewis might think twice about acceleration like that. 

Some 85 per cent of those appeals were accounted for by the Personal Independence Payment (PIP) and the Employment & Support Allowance (ESA).

The rate at which the decisions made by the DWP on the basis of information supplied by the Government’s contractors – Capita and Atos – are overturned is also increasing. 

People started taking notice when it was running at 50 per cent. Now close to two thirds of appeals in the case of the PIP (65 per cent) are successful. The figure is higher still when it comes to ESA (68 per cent). 

I’m given to understand that the people who sit on tribunals have been asked to keep June clear, in an attempt to reduce a growing backlog. So forget about an early summer holiday. 

Needless to say, these people have to be paid, which puts extra cost into the system at a time when the Government says it’s trying to save money. 

Simply applying for either benefit causes a great deal of stress to people with disabilities. Having to go to appeal only exacerbates that. Applicants find themselves in the middle of a process that is humiliating and dehumanising.

That process also seems to throw up scandals with alarming regularity. Channel Four, for example, infamously filmed a Capita assessor saying a claimant had a “disability known as being fat”. Another claimed to have filled out forms before even seeing clients amid pressure to get as many done as quickly as possible. 

Other scandals have involved people with weeks or months to live being told they’re fit for work in the case of ESA, which is paid to people whose fitness to do so is impacted by medical conditions and disabilities. 

Set against that backdrop, is it any wonder that there has been so much criticism of the process, and so many successful appeals? 

If the assessment process worked effectively, and as it should, the number should be limited, and you wouldn’t expect such a large majority to be successful.

Ken Butler, welfare rights advisor at Disability Rights UK, says he is “very worried for all those disabled people who get turned down for benefits and don’t have the time or energy to challenge poor decisions made by the Department for Work and Pensions (DWP)”. 

He adds: “We’d advise all claimants to get benefits advice and, if they are turned down, to use the independent appeals process.”

Butler says that the high success rate of appeals clearly demonstrates that there is something wrong with the system. 

Unless, of course, the system, also savagely criticised by the United Nations, was deliberately set up to be this way. 

Before you suggest that is me indulging in a conspiracy theory, take a moment to think about this. If you make something difficult, stressful and painful, if you litter it with traps, and take the view that everyone getting involved in it is a dirty scrounger until proven otherwise, a lot of people will get put off and won’t apply. Still more won’t appeal when turned down, saving the Government money it can use for things like millionaires tax cuts. 

Dealing with a disability presents enough of a challenge as it is, without having to get to grips with a state that operates in a manner that would have impressed some of George Orwell’s darker characters. Would anyone be terribly surprised to find O’Brien working as a civil servant in the DWP?

The cynicism on display is breathtaking, if my assessment is correct. Alternatively, the situation I’ve discussed could simply have been created by a toxic mix of bureaucratic callousness and incompetence. 

The net effect is the same regardless, which is why there will be peals of bitter laughter emanating from Britain’s disabled community every time those words of Theresa May’s are trotted out. 

You’d be able to hear them if it weren’t for the fact that so many people with disabilities are now trapped in their own homes.  

Department for Work and Pensions Recruits Staff To Reduce ESA And PIP Appeal Success Rates

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Legal Aid funding became unavailable for welfare cases at First Tier tribunal in April 2013, because of the Conservative-led Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This included Legal Aid for appealing all benefit decisions. Legal Aid at Second Tier tribunal may be available if the case is about a point of law. Political lip service was paid to the legal human rights implications regarding the violation to the right to a fair trial (Article 6 of the ECHR), equal access to justice , and the Act provided that funding may be granted on a case-by-case basis where the failure to provide legal aid would be a breach of the individual’s rights under the European Convention on Human Rights (ECHR) or the rights of the individual to the provision of legal services that are enforceable European Union rights.

The Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests) clarified that in determining whether Article 6 ECHR would be breached, it has to be shown that the failure to grant funding would mean that bringing the case would be “practically impossible or lead to an obvious unfairness in proceedings” (para 63). But Ministry of Justice figures showed that from 1 April 2013 to 31 December 2013, of the 1,083 applications determined, funding was granted in only 35 cases (3% of cases). This indicates that the criteria are being applied in an intentionally “overly restrictive manner” and, in the case of welfare benefits, all 11 applications were refused: Exceptional Case Funding Statistics – April 2013 to March 2014. 

Considering this in a context that includes the introduction of the Mandatory Review, in 2013, and in light of more recent events, I think it’s fair to say that the Conservatives have shown they are determined to take away money that provides essential support from disabled people in particular, one way or another, no matter how much it costs to do so.

Many thanks to Benefits and Work for the following information:

The Department for Work and Pensions has been given £22 million to recruit presenting officers in an effort to reduce the number of claimants winning their personal independence payment (PIP) and employment and support allowance (ESA) appeals.

The Office for Budget Responsibility’s (OBR) “Economic and Fiscal Outlook” document lists the following amount:

“£22 million to DWP to recruit presenting officers across 2016-17 to 2017-18 to support the department in personal independent payments and employment and support allowance tribunals.”

Buzzfeed is reporting that the money will pay for 180 new presenting officers.

The number of PIP appeals is expected to skyrocket over the coming two years as the forced move from DLA to PIP takes place.

In addition, the proportion of successful PIP appeals has increased with every quarter since the benefit was introduced. PIP claimants won in 60% of cases from July to September 2015, up from 56% in the previous quarter.

58% of ESA cases are also won by the claimant.

The DWP is also concerned by the way that tribunal judges have been interpreting the very badly drafted PIP legislation in favour of claimants. In particular, the widening of what counts as aids and appliances for PIP activities by judges is what led to the disastrous attempt to change the point scores for PIP.

In theory, presenting officers should act a s a ‘friend of the court’, helping judges to reach a fair decision. In reality, they will be sent by the DWP to try to discredit claimants and argue as forcibly as possible for the DWP’s interpretation of the law to be accepted.

Attending an appeal tribunal is likely to be an even more gruelling process for claimants over the next few years.

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Update

Recovery In The Bin is a mental health social justice group, who are fundraising to help train 16 volunteers to support people with mental health difficulties before and up to ESA/ PIP tribunals. They say:

“Here’s what we’re doing about it

We have asked Welfare trainer Tom Messere, author of the Big Book of Benefits, if he would train 20 volunteers in the basics that they will support people up to these tribunals to give them a bit more of a fighting chance. And whilst we have Tom at our disposal we are also we will be training the volunteers to help fill out the often complex and confusing forms, so that less have to go to tribunal in the first place. The training will be on ESA and PIP, form filling, getting any available medical and informal evidence correctly pitched (what the person needs to ask for), possible calls, key pointers for accompanying, and up to tribunals.

You can join us

We are hoping you can donate to help pay for the training, the venue, transport and accommodation for Tom, and as we are recruiting volunteers, many on low incomes themselves, and as we will need to have representatives in as many places as we can (sorry, we wish we could provide for everywhere) then we are trying to raise as much help for their travel as well.

As such we are looking to raise £2250.”

 

You can support Recovery In The Bin in their aim to provide support for people who need to fight at tribunal for their ESA and PIP award, and donate here