2012 08 Welfare Benefits

Saturday 1 September 2012

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The Controversy Surrounding Atos Healthcare

In an article dated 17 August 2012 the Independent reports that according to the National Audit Office (NAO) the DWP has failed to penalise Atos for underperformance and has not set sufficiently challenging targets. The following extract is taken from the article:

"The National Audit Office criticised Iain Duncan Smith’s Department of Work and Pensions (DwP) for setting performance targets too low, failing to adequately fine Atos for poor performance and not properly checking the accuracy of performance data that Atos submitted.

Atos Healthcare has a £110m-a-year contract with the DwP to assess whether disabled and sick people are entitled to claim the Employment and Support Allowance (ESA) or whether they are fit for work. The Work Capability Assessment, designed by the government but applied by Atos, has been subject to scathing attacks from claimants, doctors and charities who claim it is degrading and not fit for purpose.

The NAO report comes after numerous thwarted attempts by MPs to find out more about the performance targets and financial penalties in place. The government has refused to answer these questions claiming the information is “commercially confidential”.

The NAO said the DwP was failing to seek “adequate financial redress” for underperformance by Atos. “We do not consider that the current contractual targets are sufficiently challenging, and in our view this allows the contractor to deliver a significant number of assessments before financial penalties become due.”

Only one out of 10 breaches lead to penalties, or ‘service credits’ being enforced by the DwP. This was in part down to “inaccurate forecasting” of referrals which “undermined the Department’s negotiating position in discussions around performance and service credit application.”

For more information, see 'Atos contract does not offer value for money, says National Audit Office' on the Independent website (click here).

Responding to the NAO review of the Atos contract, Citizens Advice Chief Executive Gillian Guy said:

'We wouldn't allow a private contractor to let us down on the Olympics, we can't allow one to let down disabled people. Mistakes by Atos have a human cost and a cost to the tax payer. Getting medical assessments right first time is absolutely essential to ensuring that seriously ill and disabled people get the support they are entitled to, and cutting the number of unnecessary appeals.

Private companies on government contracts must be accountable to the public. Government should act now to put in place regular, independent monitoring of the accuracy of work capability assessment reports and look at imposing financial penalties on Atos for every inaccurate report that they produce.'

See the press release 'Citizens Advice calls for financial penalties on Atos' which is available on the Citizens Advice website (click here).

The Press Statement contains the folowing information about ESA appeals:

"CAB advisers helped with more than 97,000 ESA problems in the three months January to March 2012 - up 71 per cent compared with the same quarter last year, making ESA the fastest growing advice issue seen in bureaux.

In the same three month period, bureaux recorded an 82 per cent increase in advice about appeals against ESA decisions. Over a quarter of all advice given by bureaux about ESA concerns appeals. Latest official DWP figures say 32 per cent of appeals against an ESA decision are successful and CAB advisers estimate the success rate at appeal where someone receives specialist CAB advice and is represented is around 80 per cent."

On 30 August 2012 The Independent reported that the General Medical Council is currently dealing with 16 complaints about Atos Healthcare doctors, 12 of which relate directly to their conduct in carrying out the work capability assessment (WCA). In addition, that the Nursing and Midwifery Council is dealing with at least 27 complaints against nurses with similar allegations of misconduct in carrying out the WCA. The article contains the following comments on the controversy surrounding ESA appeals and the operation of the WCA:

"Information gathered by False Economy and the Citizen's Advice Bureau has found non-Atos doctors are charging up to £200 to provide medical evidence for WCAs and appeals which many claimants cannot afford. Just over 70 per cent of people who attend an appeal with a Citizen's Advice Bureau officer or lawyer successfully overturn the original DWP decision – the figure is 40 per cent for those who go it alone. But legal aid for most benefit appeals will stop in April 2013.

The Independenthas gathered dozens of stories which adds weight to the suggestion that the WCA is not fit for purpose. One of the most common complaints is that the conclusions recorded by the health professional in their WCA report do not accurately reflect what was said during the assessment. Atos said only eight assessments were sent back as below standard or incorrect by tribunal judges in the first four months of 2012.

Many also complain about rude, unhelpful assessors who refuse to look at medical letters or allow people to explain fully what they mean. A number of people have secretly recorded their assessments or asked someone to come along to take notes."

'Paralympic sponsor engulfed by disability tests row' is avaiable at independent.co.uk (click here).

DWP Guidance on Burnip

The DWP has issued new guidance to local authority housing benefit departments in relation to the amount of local housing allowance (LHA) where an extra bedroom is required due to the needs of a disabled person following the Court of Appeal judgment in Burnip v Birmingham City Council & Anor [2012] EWCA Civ 629 (15 May 2012) (click here for transcript) In HB/CTB Circular A6/2012 the DWP advises that local authorities are legally bound to apply the judgment when determining applications for housing benefit (HB) under the LHA size criteria and that awards should be superseded in the light of the judgment where it applies (i.e. where two disabled children under are required to share one room). However the DWP states that it has applied to the Supreme Court for leave to appeal against the Court of Appeal's decision but is unlikely to know if permission has been granted until at least October/November 2012. The Circular therefore suggests that local authorities should consider suspending the part of the HB award that relates to the extra room pending any appeal by the DWP. For the link to HB/CTB Circular A6/2012 on the DWP website click here.

Update on Zambrano

In the July update we reported that permission had been refused in R (Sanneh) v Secretary of State for Work and Pensions [2012] EWHC 1840 (Admin), (click here for transcript) in which a 'Zambrano primary carer' challenged the Secretary of State decision to suspend payment of Income Support following her successful appeal to a First-tier Tribunal pending the outcome of his appeal on a point of law to the Upper Tribunal. The High Court's decision has now been overturned by the Court of Appeal. In an order sealed on 22 August 2012 Maurice-Kay LJ granted permission for judicial review to proceed. The case has therefore been remitted to the High Court for a substantial hearing of the question of whether the decision to suspend payment of benefit is unlawful because it fails to ensure that the Claimant's EU law rights were respected having regard to the principle of effective protection of an individual's EU rights.

.Update on Judicial review of Work Capability Assessment

In the July update we reported that a judicial review challenge had been made to the Work Capability Assessment (WCA) on the basis that the current system discriminates against people with mental health problems. The permission judgment is now available on Bailii: R (on the application of MM & Anor) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin) (26 July 2012) (Edwards-Stuart J) (click here). The Court granted permission on the following basis:

" … I consider that it is at least reasonably arguable that the reasonable adjustments required by the Act include the early obtaining of independent medical evidence where the documents submitted with the claim show that the claimant suffers from mental health problems and that this has not been done, or at least not done on a sufficiently widespread basis." (paragraph 51).

Case law

In R (on the application of) Caitlin Reilly and Jamieson Wilson v Secretary of State for Work and Pensions [2012] EWHC 2292 (Admin) (Foskett J) the claimants argued that two government back-to-work schemes were unlawful. Ms Reilly had participated in the 'sector-based work academy scheme' ('sbwa scheme') against her wishes, working for two weeks in a branch of Poundland, and Mr Wilson had refused to participate in what for him was the compulsory Community Action Programme ('CAP'), under which he was required to undertake up to six months unpaid work for up to 30 hours per week, a refusal that led initially to the imposition of sanctions in the form of depriving him of his jobseeker's allowance for six months. The claimants advanced four challenges:

(i) that the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (2011/688) ('the Regulations) are ultra vires the governing statutory provision, namely, section 17A of the Jobseekers Act 1995 ('the 1995 Act'), because the Regulations fail to prescribe a description of each scheme or the circumstances in which an individual can be required to participate in the scheme as section 17A requires. There is therefore, no legislative authority for either scheme.

(ii) the Secretary of State must set out each scheme in a published policy that explains clearly the features of the scheme, including what type of work a person can be compelled to undertake, the circumstances in which they can be required to undertake such work and the period for which they can be required to do so, as well as the consequences of not participating, and that he has failed to do so in respect of either scheme. It is said that in consequence each scheme should be quashed.

(iii) Regulation 4 of the Regulations which requires specific notice to be given to individuals of various matters including the details of what is required by way of their personal participation in a particular scheme and notice of the consequences of not participating and In Mr Wilson's case this regulation was not complied with.

(iv) Both schemes involve a violation of Article 4 of the ECHR in that it required the performance of "forced or compulsory labour".

The High Court found against the claimants on all four grounds.

In relation to the Human Rights challenge the Court held that there was no distinction in principle between the matters to be considered in the instant case and those in Van der Mussele v Belgium(1983) 6 EHRR 163 (a professional requirement of the Bar Association in Belgium that trainee advocates should take cases for free for those in need of legal aid) as each could be seen as a step towards obtaining eventual employment for the person concerned. Foskett J continued:

"But whether that assessment is correct or not, it does have to be said that the sbwa scheme, and indeed the CAP, are a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Article 4. The Convention is, of course, a living instrument, capable of development to meet modern conditions, and views may reasonably differ about the merits of a scheme that requires individuals to "work for their benefits" as a means of assisting them back into the workplace. However, characterising such a scheme as involving or being analogous to "slavery" or "forced labour" seems to me to be a long way from contemporary thinking. Mr Walsh's first witness statement refers to details of research which it is suggested shows that schemes like the CAP can and do have a beneficial effect in relation to the obtaining of work by the long-term unemployed. It is no part of the court's function to evaluate that evidence or to comment on its validity. However, if valid, its existence would reinforce the view that a scheme like the CAP does not offend Article 4." (paragraph 174).

The Court did however accept that the notification in Regulation 4 had not been met in Mr Wilson's case (paragraphs 113-119) on the basis that the wording used in the notification letter – that his JSA "may be stopped for up to 26 weeks" was not sufficiently clear in for far as it (i) gave the impression that the sanctions are not mandatory, and (ii) it did not spell out in sufficiently precise terms that the benefit sanction for CAP only increases with repeated failure to participate in the scheme (2 weeks, 4 weeks and then 26 weeks). However, the Court concluded that the effect of a breach of the notification requirement in Regulation 4 did not render the requirement to participate in the scheme unlawful. There was a right to complain and the possibility of recompense if financial loss could be shown (paragraphs 160-168). (Click here for transcript).

For further comment on the judgment see

BBC news story 6 August 2012: 'Back-to-work scheme ruled lawful by High Court' (click here)

DWP news release 'Judge rejects claims that work schemes are forced labour' on the DWP website (click here).

The Press release: 'PIL: Judgment delivered on Government’s “Back to Work” schemes – Stripping of Benefits Unlawful' on the Public Interest Lawyer's website (click here).

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