2011 09 Welfare Benefits

Saturday 1 October 2011

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  • In AD v Secretary of State for Work and Pensions [2011] UKUT 307 (AAC) (click here for transcript) the claimant was awarded employment and support allowance (“ESA”) and then asked to complete a ESA 50 questionnaire about limited capability for work. The main difficulties to which he referred in his answers were caused by heroin and alcohol misuse. The claimant was examined and on the basis of a medical report it was decided that the claimant no longer had limited capability for work and was not entitled to ESA. A tribunal confirmed the decision. In its statement of reasons the First-tier Tribunal observed:
  • “3. The Appellant’s case basically was that he was affected by and consequently unable to work by reason of his drug and alcohol abuse and addiction. Indeed, he said in evidence that he would be quite able to work if it were not for the alcohol and drugs … Blackouts are not caused by anything other than the effects of drug abuse.

    4. The Tribunal was satisfied that there was no evidence of any specific physical or mental disease or disability that gave rise to the implementation of any Descriptors. It seems clear to the Tribunal from the presentation of the evidence at the hearing that drugs and alcohol were a lifestyle choice and did not come about as a consequence of any specific physical or mental illness or disability.

    Allowing the appeal (and remitting the matter to a fresh tribunal) Judge Leveson made the following observation (at paragraph 12) on the legal issue of whether alcohol dependence was a mental condition such that it capable of being a specific disease or mental disablement: -

    I am aware that in CE/0903/2010, [2010] UKUT 301 (AAC) Upper Tribunal Judge May held that Judge Jacobs was wrong and that R (DLA) 6/06 does not apply to ESA. However, it seems to me that Judge May was mistaken in his approach. He sought to confine the decision in R (DLA) 6/06 to the effects of the wording in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 requiring a claimant to “so severely disabled physically or mentally that …”. However, if alcoholism (or drug addiction) amounts to mental disablement for the purposes of DLA, I simply fail to see how it does not amount to a “mental condition” for the purposes of the Welfare Reform Act 2007 and a mental disablement within the meaning of regulation 19(3).


    Campaigners demand choice on direct payment

    A group of 15 leading organisations including Citizens Advice, the Money Advice Trust and the National Housing Federation have written to Iain Duncan Smith expressing concern at the current proposals to pay universal credit housing element to tenants rather than direct to landlords. The letter states:

    ‘In a recent survey carried out by the research consultancy Policis, working with the National Housing Federation, 93 per cent of tenants in the social rented sector argued that it is better for housing benefit to be paid direct to landlords. In 2009, Shelter revealed that of those claimants who would choose payments to be made directly to their landlord, 95 per cent were struggling to manage their finances.

    By denying tenants the opportunity to opt for payments to be made to their landlord, the government is failing to provide them with options to be able to make informed decisions about what is best for their own circumstances. This is not compatible with the government’s objectives of personal responsibility and choice.’

    Click here for link to article ‘ Campaigners demand choice on direct payment' in Inside Housing.

    George Osborne is warned of disaster over welfare reforms

    Treasury Officials are reported to have warned Chancellor George Osborne that universal credit could be delivered late and over budget. The Telegraph reported that concerns centre on the ability of HMRC to deliver 'real time' information on claimant's earnings to the DWP, who will administer universal credit, through a new IT system:

    The fears within Whitehall echo alarm already expressed by independent observers. The National Audit Office has warned that the welfare reform programme faces major risks. The chairman of the Commons public accounts committee has called the plan “a train crash waiting to happen”.

    Much of the concern relates to information technology. Universal Credit will rely on up-to-date “real time” information tracking earnings, to be provided by a new HMRC computer system.

    Ministers want the real-time system in place by April 2013, to allow six months of testing before Universal Credit begins. Whitehall is well-known for its poor management of IT projects and MPs and industry experts have said that the timetable is unrealistically optimistic.

    However, the Telegraph reports the DWP as saying that suggestions that universal credit is in trouble are 'completely untrue and utterly without foundation'.

    Click here for link to article ‘George Osborne is warned of disaster over welfare reforms’.

    Crisis response to Professor Harrington’s call for evidence on changes to the WCA

    On 22 September 2011 Crisis, the charity for single homeless people issued a statement to say that it is 'very disappointed' that changes to the work capability assessment (WCA) have either not been implemented effectively or have failed to make the desired impact. In its response to Professor Harrington's Year 2 call for evidence (click here for link) , which will form part of his second review of the WCA, the charity says that, whilst some progress has been made over the last year:

    'The WCA itself is still not working adequately and in particular is failing to effectively pick up underlying or fluctuating conditions, particularly related to mental health issues. Face-to-face assessments are relied upon too heavily and there is not enough scope for introducing additional evidence. There are still problems with the way in which Atos Healthcare Professionals are carrying out assessments where they are far too often concentrating on the LiMA computer system and not the customer. ‘Rubber stamping’ of Atos Healthcare Professionals recommendations by Jobcentre Plus decision makers appears to be continuing and more attention needs to be paid to the appeals process.'

    Overall, Crisis says that it is very disappointed that Professor Harrington’s initial changes to the WCA have either not been implemented effectively, or have simply failed to make the desired impact, and that -

    'The stress caused to homeless and vulnerable people is outrageous and the spiralling costs, to quote Professor Harrington, are shocking. Clearly there is a lot more to do to improve the WCA – a key priority must be to make sure that all decisions are made right the first time.'

    Atos Healthcare doctors - allegations of improper conduct.

    According to a report in the Observer (click here for link) the General Medical Council (GMC) is investigating twelve Atos Healthcare doctors over allegations of improper conduct. The majority of allegations are understood to relate to the treatment of claimants during the work capability assessment (WCA) process and highlights that, last month, a report on incapacity benefit reassessment by the Work and Pensions Select Committee criticised Atos Healthcare for failing to provide the level of service that 'claimants can rightly expect' and 'contributing significantly' to claimant mistrust of the WCA process.

    The Observer also reports that two doctors employed by Atos Healthcare have already been taken by the GMC to an independent panel for adjudication on their fitness to practise, with one being cleared of failing to carry out a proper examination of his patient during an assessment.

    DWP Guidance to local authorities on DHPs

    The DWP has issued new guidance to local authorities on carrying over discretionary housing payment (DHP) funding for 2011/2012 to 2012/2013.

    In HB/CTB S8/2011 (click here for link), the DWP says that in the light of original announcement regarding the changes to local housing allowance, i.e. the cap and that it subsequently announced transitional protection measures to mitigate the effects of the reforms some local authorities anticipated less demand for DHPs in 2011/2012 than originally envisaged, and more demand in 2012/13. The DWP says that it accepts that, in these circumstances, there is a case for carry-over from 2011/2012 to 2012/2013.

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