Saturday, 30 November 2013

Mandatory Reconsideration

Employment & Support Allowance (ESA) is a welfare benefit for people who are not well enough to work. It's had quite a bit of media attention over the last couple of years; it's a relatively new benefit which was brought in when Incapacity Benefit was scrapped and its administration, particularly the way that claimants are assessed at their medical exams, has had - to put it offensively mildly -  some teething problems.

Appeals against ESA decisions have been going through the roof; they more than doubled between the last quarter of 2011/12 and the last quarter of 2012/13. Until very recently, when a person received an adverse decision about their ESA claim, the claimant had an automatic right of appeal for up to one calendar month after the decision was made. The claimant would be required to complete a simple form and briefly state why he or she disagreed with the decision. As soon as the appeal was received by the Department, the appellant would continue to be paid the basic, weekly amount of ESA until the appeal was resolved. The thinking behind this was simple: ESA is for sick people; if someone is appealing an ESA decision, there is a chance that they are sick and vulnerable and that they need money to survive while the appeal is being processed.

Not anymore, apparently.

Since October 2013, claimants' automatic right of appeal against decisions has been taken away. There now exists a process that can only be described as cynical and hostile gate keeping: the Mandatory Reconsideration.

Here's how it works:

Ms H is in receipt of Incapacity Benefit because of post-traumatic stress disorder, depression and chronic back and leg pain due to gunshot wounds.

Incapacity Benefit is scrapped and Ms H is invited to make a claim for the new sickness benefit, ESA, which she does. She is paid the basic, weekly amount of ESA while her claim is processed.

Before a final decision is made about her claim, Ms H is required to attend a medical assessment. There is no interpreter present and the medical professional - a physiotherapist in this case - examines her for 17 minutes and seems to focus only on her physical condition.

Ms H receives the decision about her ESA claim in the post. Her claim was not successful. She wants to appeal.

Ms H approaches an advice centre for help. She is advised that, before she is allowed to appeal, she has to ask for a mandatory reconsideration. Most people understand the word, appeal; it's quite an accessible word. But the phrase, mandatory reconsideration is meaningless to Ms H. She's told that this means that the Department for Work and Pensions (DWP) will look at its decision again internally. If the DWP does not change the decision in her favour, Ms H's case will then be forwarded to Her Majesty's Courts and Tribunals Service so that an independent Tribunal can hear the appeal. There is no telling how long the mandatory reconsideration will take.

a phone call is made to the DWP by a caseworker at the advice centre. The caseworker explains that Ms H would like to request a mandatory reconsideration. The DWP says that Ms H needs to give her grounds for such a request. The caseworker says that the grounds are that Ms H feels that the DWP has not taken all her conditions into account. the DWP says that these grounds are not compelling enough. The caseworker says that they are and that actually, at this stage in the process, all that is required is the request for the reconsideration and that further evidence can be provided later. The DWP says that this is not true and that the grounds aren't compelling enough. The caseworker says that it is true and asks again for the request to be accepted. The DWP says no.

The phone call ends.

The caseworker calls the DWP again in the hope that the next person will accept the request for a mandatory reconsideration.

Again, the DWP asks for specific grounds. The caseworker cites the lack of attention paid to Ms H's mental health at her medical assessment and, this time, also suggests specific areas in the law where Ms H might have 'scored' more points. The DWP tells the caseworker that the request for a mandatory reconsideration cannot be accepted unless their is further evidence. The caseworker says that this neither acceptable nor possible as Ms H has not gathered further evidence yet. The phone call ends.

During the third phone call, the request for a mandatory reconsideration is accepted without question.

Having successfully lodged the mandatory reconsideration request, the caseworker then has to explain a few things to Ms H. These few things are as follows:

While she is waiting for the Decision Maker to look at the mandatory reconsideration request, Ms H will not be paid any money.

There is no time limit within which the DWP must carry out a mandatory reconsideration so Ms H could be without an income for quite some time.

The only way Ms H can have any hope of an income while the DWP looks at her case, is to apply for a benefit that is totally inappropriate for someone who is sick: Jobseekers Allowance (JSA).

One of the qualifying conditions for JSA is that claimants actively seeking work.

If claimants do not adhere to this condition, they face harsh sanctions.

Ms H looks confused.

She looks confused because what she's just been told is very confusing.

Ms H asks why it is like this.

The caseworker wants to say something along the lines of, well, you know, it's like this because of a hostile culture of gate keeping within the Department for Work and Pensions that has been designed in the most cynical fashion by the Secretary of State in order to deter people from accessing their legal rights and to mislead the public by taking vulnerable people like you and forcing them onto Jobseekers Allowance (with all the pressure and expectation such a claim entails) so that the Department can be seen to be reducing the number of people on sickness benefit no matter how much genuine suffering it causes.

But the caseworker doesn't say that. She just shakes her head and does one of those understanding smiles.


  1. It's not just the large number of appeals but also the astonishing proportion of those appeals which are successful. If the assessments were working properly there shouldn't be nearly that many successful appeals, because more people would be correctly seen as needing state support, rather than being pushed into an unfriendly job market.