Iain Duncan Smith is, a priori, determined to cut welfare benefits and wraps this up in a moral crusade with the not fit for purpose Work Capability Assessment. Here I attempt to show what a WCA means in reality with a real case that was decided at an appeal tribunal last week and the case of Mrs N.
I also state and why that social landlords need to do something about this as the vast majority of working-age disabled tenants live in social housing and they are getting totally shafted by the WCA while social landlords are oblivious to the fact that so many of their tenants are getting shafted by the system, losing benefit and exemptions and becoming a huge financial risk to landlords.
Background – the Mrs N case
- Mrs N is 59 and up until 2013 had always worked.
- In 2013 she was awarded Disability Living Allowance of the high rate for mobility and the medium rate for care.
- She was also awarded ESA given her medically assessed condition and placed in the Support Group.
- In January 2015 she is called in for a Work Capability Assessment (why?) and is given zero points after a Health Care Practitioner assessment and in a decision notified to her on 11 February 2015.
- In short the WCA says you are fit for work there is nothing wrong with you and her ESA premium is taken away. This I remind is a woman on high level DLA mobility and medium level DLA care!
- Mrs N asks for the case to be reviewed in March 2015 through a Mandatory Reassessment (MR) – a desktop based exercise conducted by DWP and introduced the other year to stop claimants appealing as they have to go for this desktop charade first before they are allowed to appeal.
- The MR is refused (surprise, surprise) leaving a formal tribunal appeal as the only option for Mrs N.
- The case goes before the tribunal on 28 August 2015, some 7 months after the WCA and the tribunal awards 36 points and overturns the zero points WCA.
The Tribunal Decision Notice is below and as you can see Mrs N
(a) cannot walk more than 100 metres and
(b) suffers from incontinence including seepage even if incontinence pads are worn and
(c) cannot raise her arms above her head. She also…
(d) gets extremely anxious with any form of social interaction.
All of which begs the question just what employment IDS and the HCP and the WCA decision maker think she could actually do?
Yet IDS is planning to make the WCA even more a feature and to ramp up the opinion of a civil servant DWP officer over the expert medical view which is what the WCA is all about. In a speech last week at the Reform think tank this is what IDS said:
Case for further reform – ESA and WCA
….what happens to a claimant on Employment and Support Allowance is very different….Under the existing system, there is a limited opportunity to work with the Jobcentre. Instead, they receive an assessment of their condition that focuses on what they can’t do rather than on what they can do…..We need a system focussed on what a claimant can do and the support they’ll need – and not just on what they can’t do.
A focus on what work CAN be done rather than a fit or unfit for work medically qualified opinion is what the above means. Or you could just imagine Tenko and a Japansese POW camp to see what fills the vast empty spaces of IDS’s head! This is political bullshit at its finest and all wrapped up in giving those disabled some self-esteem and given 59% of decisions are overturned and each appeal must cost thousands then the WCA system must cost more than it could possibly save …if claimants had the resources to appeal.
Returning to this case Mrs N going from zero to 36 points itself questions the validity and fit for purposeness of the WCA and her case is not unusual or exceptional.
A case I looked at yesterday saw another person go from zero points at WCA to 64 points in a tribunal, and this was one of 29 cases of ESA and PIP tribunals all of which have been won at appeal and the WCA decision overturned.
16 points is the number needed and you could perhaps understand if the WCA said 12 or 14 and the tribunal decided 18 or 20. That would clearly be within acceptable bounds of opinion and subjectivity. Yet to go from zero to 36 and from zero to 64 points beggars belief as to the credence and fit for purposeness of the WCA.
[Is purposeness a word by the way? If not it needs to be!]
100% turnover of WCA decisions appealed in Liverpool and by a grassroots unfunded organisation called FACE (Fight, Appeal, Challenge Everything) who stated that this was not the most complex case they had fought by far yet it still involved about 30 – 40 hours of input over the 7 month period from the minute Mrs N approached FACE to FACE representing her at tribunal. That is the real issue, the time needed given the complexity for the claimant to prove the bloody obvious after a sham WCA!
Nationally 59% of ESA and PIP tribunals overturn the WCA decision yet the system is geared up NOT to challenge or appeal. The CABx and other welfare rights teams and even solicitors cannot be funded to put in the amount of time that is required and so the vulnerable disabled person is well and truly shafted by the WCA system that fails in the vast majority of cases.
The ‘disabled’ are being systemically shafted without any real hope of ever challenging the WCA decisions. Mrs N had over £1600 taken from her as a result of this WCA and while she will get this back the impact on her daily life and on her mental and physical health she will not be compensated for and will not get back.
The system not only fails in terms of the ability to challenge the not fit for purpose WCA decisions it actually make vulnerable disabled people more vulnerable.
The CABx and traditional welfare rights organisations tend – due to outcome based funding – to cherry pick cases and can only spend ‘tick box’ time per case because of that meaning many disabled and other vulnerable people get shafted by the WCA. FACE by contrast take every case and do not cherry pick and what they do clearly works.
That outcome funding driven imperative has to change and the move from zero to 36 and even 64 points demonstrates the non fit for purpose of the WCA which IDS now wants to ramp up further despite the national 59% failure rate as reported here :
Student volunteers at the Bristol and Avon Law Centre have overturned 95 per cent of Department of Work and Pensions (DWP) decisions made over the last two years in relation to 200 claimants who challenged the DWP’s assertion that they were fit for work. The 95 per cent rate contrasts with the 59 per cent national rate. In order to win cases, students represented their clients at benefit appeals in front of a judge and doctor.
Almost three years ago I approached two universities in Liverpool to do precisely the same in terms of bedroom tax appeals with final year law undergraduates yet was rebuffed by the university authorities as I was told this would place too much pressure on them and distract and detract from their education.
Yet such schemes are hugely beneficial and needed and while only 29 PIP and ESA cases have been undertaken by FACE they have won 29 and have none of the infrastructure that a law centre has such as access to benefit regulations and Upper Tribunal decisions or even at times pen and paper!
I went to see FACE yesterday as they were originally an anti bedroom tax group and one of over 30 such unfunded grassroots groups in my home city many of whom I helped. They were set up by a bedroom tax tenant who wanted to give something back after I took her appeal and won and they were equally successful at bedroom tax appeals which can also be very time consuming and complex and equally CABx and welfare rights groups are not geared up to take in the main. There is a huge gap in provision that is getting wider the more IDS comes up with back of a fag packet policy
Once word got around people started coming through the door at FACE with all manner of benefit issues yet mainly ESA and PIP and the spectre of the unfit for purpose WCA, with the lack of anyone being able to take such appeals as they are too complex and time consuming for the usual suspects who have also had massive cuts and suffer from the removal of legal aid for benefit appeals.
All this does is shaft vulnerable and disabled people even further and IDS is kicking people while they are down with his promotion of the WCA under false and deceptive purposes.
Many grassroots groups have folded because they are unfunded and sometimes due to political in-fighting yet the need for the more often than not complex appeals and challenges only increases and is a shameful and offensive situation all brought about by the WCA.
The CAB refers people to FACE, as does the job centre as do the usual 3rd sector organisations that get all the funding to do such work and then can’t perform because that funding is outcome based and the complex cases don’t fit that criteria. Their service is very informal and for that reason may appear unprofessional.
Yet it is anything but and it is not just a case of what works, works and works well, they like all other grassroots groups speak the language of the tenants (all 29 cases are social tenants too) and so they reach those the ‘professional’ sector calls hard to reach. The informality is what makes such services work because they are immediately trusted by the tenants unlike landlords own welfare teams.
What was supposed to be a visit of an hour or so led to my staying all day to explore why they work and how they can hopefully improve their parlous financial state and discussions over if they appear more professional in order to get funded will that work and can we still take the complex involved cases with the outcome based funding regimes being the norm.
Of absolutely paramount importance and non-negotiable was they would never cherry pick cases and they take on all who are vulnerable and come through the front door.
I asked the rep who took the Mrs N case what the judge was like and the response was” The judge saw straight away this was the usual WCA cock-up” – which says it all really and especially as the judge has a stern or firm but fair reputation in bedroom tax appeal cases.
I am not singling out FACE here as there are many groups and individuals who do the same job though they are dwindling in number and many individuals have become so stressed out doing this that they have folded due to the stress a lack of funding creates. There is even a lack of awareness of their parlous financial state even amongst the people they help who sometimes shamefully do not even make a donation to them despite winning back thousands of pounds!
Yet now because they are successful by doing things right regardless of method and theoretical notions of supposed ‘professionalism’ they are being courted by funders who, surprise, surprise, all have outcome based funding streams which this highly successful model does not fit.
Rather than promote FACE which is precisely what they do not need at this time as they are snowed under I am finally getting around to drafting a blog on this issue of how the vulnerable and disabled tenants get shafted by the system.
The many bedroom tax FtT winners are now in the same boat with the unlimited budget DWP appealing cases to the Upper Tribunal and the tenants having no recourse or access to anyone to support them in this higher level challenge outside of a £200 award that sees a welfare rights officer attached to a legal aid solicitors practice pocket that for 90 minutes of woeful generic ‘advice’ and nothing more.
That frankly stinks and I get asked at least once every day from all parts of the country if I know a way such representation can be funded outside of begging stealing or borrowing. There isn’t (aside from the odd honourable social landlords who do support) and that bloody stinks too!
From my 20 plus years I have spent in supported housing or housing with support for all manner of vulnerable tenants over the last few years working with general needs tenants in challenging the welfare reforms (sic) has confirmed to me… there are as many if not more vulnerable tenants living in general needs social housing than there are in supported housing and supported living schemes.
The level of mental health need and physical health need amongst general needs social tenants is incredibly high. Last year I did a bedroom tax appeal surgery with another grassroots group called ReClaim and of the 19 tenants seen 17 of them had COPD and 13 of them were on some form of disability benefit. Social housing is the only place where such tenants can find housing in the main and the level of support need is scary!
Yet the only social tenant group who gets any in-depth and ongoing support from the social landlord tends to be the pensioner / sheltered tenant who is exempt from all of these cuts and from the WCA. That makes no sense whatsoever and with the reduced benefit cap soon to hit is bloody madness!
1 in 4 working- age social tenants is in receipt of DLA, PIP or ESA – the same percentage as older persons / sheltered tenants yet the comparative resources put into sheltered are way beyond that of disabled working age tenants … the ones that are affected massively and wrongly by the ‘reforms’ of IDS and this Conservative government.
The majority of these tenants are highly unlikely to work or be capable of work and the WRAG – Work Related Activities Group – is for those expected to need on average 2 years support to be able to take up employment yet they are hit from day one in the benefit cap with work or lose your home being the only options. 72% on ESA are in the WRAG group and most I would strongly wager because of the WCA being a charade and merely a device to save money. Indeed the Conservatives are propsing to pay those in the ESA WRAG the same money as those on JSA and taking away over £1500 per year from them.
Is landlords 100% support focus on the pensioner really a sensible use of resources? Social housing as its name suggests is about people and hugely so since the welfare reforms began: it is all about what choices and behavioural changes working-age tenants make and not at all about the pensioner and sheltered tenant who outnumber working-age under occupiers too!
Yet social landlords and especially housing associations are pulling back from social purpose and rapidly becoming ever more commercially focused at the time when your core tenants of working-age need you so much more.
Social landlords can’t evict all of the working-age tenants who because of HB reform become a financial liability. Supporting them to appeal the outrageous WCA decisions and becoming exempt from the benefit cap is far more cost-effective than evicting them. It makes absolute sense and cost-effective sense yet social landlords don’t even appear to have pilot programmes running for working-age sick and disabled tenants despite the necessity and indeed urgency given the benefit cap begins in 7 months time.
This means putting in place as much resource as landlords put into chasing the 1% of tenants who are on Universal Credit or funding others to do the same job as they are far more likely to be trusted by their tenants too. The impact on social landlord arrears would be hugely positive yet they still don’t realise the problems working-age tenants face and just how much the system prevents them from getting correct decisions made. This all means they are a ‘lifer’ tenant with no arrears just as they were before the welfare reforms (sic) began.
Not only would such projects more than pay their way they would (a) score huge PR for social landlords and (b) I would stop haranguing them over their alleged social purpose activities and how they do not manifest.
Social landlords still do not know just how inept and widespread the offensive WCA decisions are and what impact they will have because prior to welfare reform you never needed to know what benefits your tenants receive as they all passported them onto Housing Benefit. Yet now you do and where is the response you need?
- Where is this social purpose you repeatedly shout from the rooftops?
- Where is the social purpose you struggle to define?
- Where is the urgency to keep existing tenants which is the same urgency you have and had with the red-inked bombardment you undertook when the bedroom tax began?
- In fact where is this social purpose that also makes bloody good business sense?
Still in the ether perhaps with you other flights of fancy and fantasy?
Social landlords are not even piloting any of the eminently sensible suggestions above and still refuse to even contemplate that the reduced benefit cap means they cannot afford to house the disabled and vulnerable tenant so how the hell can you have any social purpose with that inevitability?! Will your social purpose move to the all new working tenants who just happen to be at work while social landlords are open?
I am torn between whether landlords heads are in the sand or so far up their own lazy consensus we have always done it this way we can’t see past RTB backsides with regard to supporting working-age tenants and especially those with a disability or sickness that makes them ‘workless’ in IDS rhetoric.
Do you really think that grab rails and other physical adaptations is your entire social purpose toward just the physically disabled? Don’t get me started on acoustic boards for D/deaf tenants (just 1 in 7 of the population) and other physical adaptations never mind ongoing support needs!
Social landlords are all talk and no action and I am frankly sick and tired of hearing how wonderful your founding ethos and social purpose is. A strong argument can be made that you only help sheltered housing as HB allows you to charge far more for a 1 bed flat there than for a 4 bed with front and back garden in general needs properties. So that ‘deserving’ cause has a clear financial incentive and not done out of any altruistic notion that you have a social purpose!
Of course it is not social landlord’s fault that this pernicious government has embarked on a wholesale attack on the working-age disabled benefit household; yet they live in social housing by a huge majority as that is the true social purpose of the social housing model. So to sit idly by and do bugger all about your vulnerable ‘customers’ is the landlords problem and is your concern as that is 1 in 4 of all your tenants that you are stuck with because of the purpose and use and history of social housing.
How about more than 2 in every 3 HB claimants is headed by a lone parent and they too are expected to work from day 1 of the benefit cap reduction next year even if that they give birth! 64% of all social households claim HB which means that over 42% of all social tenants claiming HB are single parents. How many of them have children under school age and are not expected to work and will find it nigh on impossible to work with childcare and other practical issues? How many of these are at risk of the average £75 per week benefit cap reduction in the regions to the 5 in every 6 social properties in the regions?
Have any social landlords lobbied government on that issue? I bet less than 1 in a hundred of those that have lobbied DCLG over RTB have submitted this to the Works & Pensions select committee yet this is a far greater operational risk to social landlords. Those same social(?) landlords will be shouting how much of a social purpose they have as well!
The time is long overdue for actions not hollow words. Or is it always somebody else’s job?
The WCA appeal decision notice is below. If the social landlord cannot see just how unfit for purpose the WCA is from this and why they have to support their working-age disabled and vulnerable and sick tenants….
If any social landlords won’t to expose their good practice in this area please feel free to counter the above.
Likewise, if any social tenant cares to support or disagree with the above again please feel free also.
PS – If anyone can suggest a job that Mrs N COULD do then please comment below too!