2014 06 Welfare Benefits

Tuesday 1 July 2014

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Implementation of PIP

On 20 June 2014, the Public Accounts Committee (PAC) said that the failure to pilot the personal independence payment (PIP) scheme properly has resulted in significant delays to benefit decisions and a backlog of claims. Commenting on the report Margaret Hodge MP, Chair of the Committee of Public Accounts, said:

"The implementation of Personal Independence Payment has been nothing short of a fiasco. The Department of Work and Pensions has let down some of the most vulnerable people in our society, many of whom have had to wait more than 6 months for their claims to be decided.

The Department’s failure to pilot the scheme meant that the most basic assumptions, such as how long assessments would take and how many would require face-to-face consultations, had not been fully tested and proved to be wrong. This resulted in significant delays, a backlog of claims and unnecessary distress for claimants who have been unable to access the support they need to live, and in some cases work, independently.

The personal stories we heard were shocking. We heard evidence of a claimant requiring hospital intervention as a result of the stress caused by the delays suffered, and another claimant who was unable to afford the specific diet required for diabetes and gastric problems while waiting for a decision.

By October 2013, the Department had only made 16% of the decisions it had expected to have made by that time. What was particularly alarming was that terminally ill people were having to wait on average 28 days for a decision, 180% longer than expected.

Some claimants have been forced to turn to food banks, loans and charitable donations to support the extra costs of living associated with their disability.”

As a result of its findings, the report makes a series of recommendations, including that the DWP should make the process easier for claimants by, for example, making paper claim forms available through recognised voluntary organisations, such as Citizens Advice. The PAC's report Personal Independence Payments is available from parliament.uk – Click here

89 per cent fall in ESA appeals

According to new tribunals statistics in 'Tribunals Statistics Quarterly January to March 2014', published on 12 June 2014, there was an 89 per cent fall in employment and support allowance (ESA) appeals in the first quarter of 2014 compared to the same period last year. The Ministry of Justice (MoJ) says that the decrease could be due to a number of reasons including the introduction of mandatory reconsideration across DWP benefits. In addition, of those cases cleared at a hearing in 2013/2014, 40 per cent had the initial decision revised in favour of the claimant. Tribunals Statistics Quarterly January to March 2014 is available from gov.uk – Click here

Changes to social security are a driver of food poverty

In 'Below the Breadline' according to a new report from Oxfam, the Trussell Trust and Church Action, published on 9 June 2014, the three charities calculate that 20,247,042 meals were given to people in food poverty in 2013/2014, representing a 54 per cent increase on 2012/2013. The report says that, despite their best efforts, many people cannot earn enough to live on, and that the combination of rising food prices, low and stagnant wages and insecure and zero-hours contracts mean that, for many low-income households, the money they are bringing home is less every month than their essential outgoings. In addition, the report says that changes to the social security system are a driver of food poverty: –

“The changes to the social security system which have been brought about through the Welfare Reform Act 2012 have had significant impacts on low-income households, and there is clear evidence that this is driving increasing numbers of people to food banks. The cash value of the majority of social security payments has been lowered in real terms. At the same time, entitlement to Housing Benefit has been cut, and Council Tax Support has been reduced (and localised). In April 2014, 780,000 of the poorest families were experiencing a shortfall in their Housing Benefit as a result of the social security reforms since April 2011. ... These changes are having a significant impact on food poverty. The proportion of clients accessing Trussell Trust food banks due to a change in social security payments increased from 12 percent in 2011/12 to 18 percent in the period April – September 2013. Fifty two percent of referrals between April and June 2013 were due to problems with social security.” (page 15-16)). Of the Trussell Trust food banks surveyed in March and April 2014, 83 percent reported that sanctions to social security have caused more people to be referred to them for emergency food in the last year. (page 17)

The Oxfam, Trussell Trust and Church Action on Poverty report Below the Breadline is available from the Oxfam website – Click here

Cases

In R (Rutherford and another) v Secretary of State for Work and Pensions and Pembrokeshire County Council (interested party) [2014] EWHC 1631 (Admin) (Stuart-Smith J) the court rejected a challenge to the bedroom tax in the case of a disabled child who needed an overnight carer on the basis that the discrimination is justifiable, as discretionary housing payments are meeting housing benefit shortfall. The claimants were the grandparents of a disabled child, who required 24-hour care from at least two people. They lived in a three-bedroom house that had been adapted. They acted as carers but receive help from professional carers funded by the LA. The third room used by overnight carers was subject to the bedroom tax. There were no alternative two bedroom homes within the area. A discretionary housing payment (DHP), fully covering the HB shortfall, was awarded from April 2013 to April 2014. The LA awarded a further DHP for the period to April 2015. The claimants relied on Burnip and others v Birmingham City Council and others [2012] EWCA Civ 629, [2013] PTSR 117 (15 May 2012): see Housing Benefit Update, November 2012 Legal Action 13) to argue that reg B13 was discriminatory as it allowed an extra bedroom for an overnight carer of an adult claimant or their partner, but did not allow one for an overnight carer of a disabled child. The claimants also argued that they did not have adequate assurance of future payments of DHP because the power of the LA to award a DHP was discretionary not mandatory. The High Court dismissed the claim on the basis that the award of DHPs had ‘plugged’ the discriminatory gap caused by reg B13 that might otherwise exist. The Court reasoned that:

  • the ruling in Burnip was a fact sensitive one, and among the facts relevant to the outcome was that the existence of DHPs had not plugged the gap between the appellants’ HB and their rent;
  • R (MA and others) v Secretary of State for Work and Pensions[2014] EWCA Civ 13, [2014] PTSR 584 distinguished Burnip on the facts, including the fact that the DHP fund has since been topped up;
  • the effect of Burnip and MA taken together was that, while a HB scheme including the use of DHPs as the conduit for payment may be justifiable, it would not be justified if the scheme failed to provide suitable assurance of present and future payment in appropriate circumstances;
  • the role of DHPs in the scheme designed to address under occupation was therefore critical.
  • the evidence in Burnip led to the conclusion that DHPs could not be relied upon to plug the identified discriminatory gap. In the present case, however, the evidence showed that the award of DHPs by the LA had plugged the gap and continued to do so.
  • the LA was obliged to exercise its discretion on whether to award DHPs in accordance with public law principles and Human Rights legislation. It was also obliged to have regard to the DHP guidance which identified people living in specially adapted accommodation as a group meriting consideration.
  • although it was argued that children should not be treated differently from adults, reg B13(5) was intended to enable adults to live independently. Children, on the other hand, would normally remain the responsibility of their parents or guardians and be cared for by them within the home.

Comment: The Claimants submitted a report produced by the Papworth Trust in February 2014 which provided evidence that three quarters of LAs were including disability living allowance (DLA) when looking at household income. The court however said that the report did not affect the outcome of the present case as the LA had not include the DLA when looking at the household income and had awarded DHPs for 12 months at a time. This issue will however, be considered in R (Hardy) v Sandwell Metropolitan Borough Council (CO/16824/2013) where permission has been granted in respect of the Council’s decision that DLA must be counted as income when assessing how much DHPs a couple should be given. Click here for transcript.

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