Opinion: Lauren Wood

In 2014-15, appeals to the Social Entitlement Chamber within HM Courts & Tribunals Service were expected to climb to 680,000. Of the Department of Work & Pensions (DWP) decisions which were appealed to tribunal, the overturn rate was around 40%, reaching around 70% in represented cases. Against this backdrop, the Welfare Reform Act 2012 provided for an internal reconsideration of all DWP decisions before recourse to independent appeal.

On 30 April 2012, the minister stated in the Commons that “these measures aim to ensure timely, proportionate and more efficient dispute resolution”. The provisions came into effect in October 2013 and, amongst other measures, have had a stark impact on applications to the tribunal. In the period January to March 2013, there were 155,235 receipts by the Social Entitlement Chamber across the UK. In the same period of 2014, receipts had fallen to just 32,546 – a drop of 79%. 

In itself this decline is marked, but in the context of a forecast increase in numbers the decline is all the more noteworthy: far from reaching the expected 680,000 for the current financial year, receipts may reach just 130,000.

There are certainly fewer cases reaching appeal. However, one year on, have the regulations improved the decision-making process?

In principle, internal review which works to promote reaching the right decision for each individual in a timely, accessible and transparent manner is a desirable aim. In practice, however, the evidence reported from citizens advice bureaux (CAB) across Scotland shows the lived reality is far from this. This further and internal step in DWP process represents a substantial barrier with very real practical consequences. Far from shortening the journey, current practice can have the effect of lengthening the process without limit.

When a claimant wishes to challenge a decision, they must ask for mandatory reconsideration within four weeks from notice of decision. The DWP is under no statutory or recommended timescale to respond. Case evidence from CAB suggests the time can, in some cases, reach 26 weeks. As there are no timescales to rely on, benefit claimants do not have any opportunity to speed up the process. 

This not only delays the claimant’s ability to appeal the decision, but can leave people with no sources of income whilst they wait for the reconsideration to take place. This is a particular problem for those claiming employment and support allowance (ESA), a benefit to support those with serious physical and mental health problems. As there is no entitlement to ESA during the reconsideration period, it is not uncommon for claimants awaiting a decision to require the assistance of crisis payments and food banks. Without access to information about how long their reconsideration is likely to take, claimants can feel powerless and may be unable to afford to buy sufficient food or heat their homes. Many food banks now offer food parcels with food which does not require to be heated, as the person in receipt of the parcel often has no money for the electricity or gas needed to cook.

This distinct power imbalance is a worrying factor in the internalisation of decisions. Arguably – in any situation – the greater the power imbalance, the greater the necessity for independent review.

This opens the forum to serious questions of access to justice, especially when there is no clear statistical evidence that mandatory reconsideration is making a difference in the quality of decisions. Published statistics show that the overturn rate at appeal decisions has remained static at around 40%. However, there is a clear impact on the quantity of cases. So, in the 79% of cases which no longer reach independent adjudication, what solutions are those claimants being offered, and are they truly happy to accept them? 

With the DWP’s large portfolio of pensions, working age, disability and health benefits being claimed by over 22 million people in the UK, it is essential that claimants can challenge decisions in an effective way. Returning to the Government’s aims of “timely, proportionate and efficient”, it seems there is still a way to go before these stated aims become an established reality.