2014 08 Welfare Benefits

Monday 1 September 2014

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The Work Capability Assessment and Claimants with Mental Health Problems

A reported produced by the Institute for Public Policy and Research (IPPR) on 20 August 2014 concluded that the current regime for assessing claimants in receipt of Employment and Support Allowance (i.e. the work capability assessment (WCA) is “far from satisfactory” for people with mental health problems (MHPs) and argues that reforms to improve participant experience, test accuracy and employment support are “urgently needed”. The report recommends a number of changes to the WCA, including that additional evidence about people with MHPs should be collected by the assessor or the decision-maker if it seems likely that the application form and/or face-to-face assessment have not been able to provide a full and accurate picture of how the person’s condition impacts on them. The IPPR briefing In safe hands? Evaluating employment pathways for ESA claimants with mental health problems is available from ippr.org.

Statistics for all the main DWP administered benefits up to the end of February 2014

In a quarterly statistical summary published by the DWP on 15 August 2014 show that at February 2014 -

  • there were 5.3 million working age benefit claimants,
  • the number of working age claimants of employment and support allowance and incapacity benefits totalled 2.46 million, 16,000 less than in February 2013;
  • the number of lone parents claiming income support decreased by 25,000 to 480,000 in the year to February 2014;
  • there were 3.25 million recipients of disability living allowance, 1.47 million recipients of attendance allowance and 665,000 recipients of carer's allowance;
  • there were 12.9 million claimants of state pension; and
  • there were 2.34 million claimants of pension credit.

The DWP statistical summaries: Quarterly statistical summary: August 2014 from gov.uk.

Sanctions

In the quarterly bulletin 'Income Support Lone Parents Regime: Official Statistics', published 14 August 2014, the DWP sets out figures on income support lone parent work focused interviews (WFIs), and sanctions for failing to attend a WFI, for the period from April 2004 up to and including March 2014. The figures show that 42,900 sanctions applied to 39,600 claimants in that 12 month period, representing 5.6 of income support lone parent claimants. The August 2014 quarterly bulletin Income Support Lone Parents Regime: Official Statistics is available from gov.uk.

In the August 2014 statistical release, Jobseeker’s Allowance and Employment and Support Allowance Sanctions: decisions made to March 2014, published 13 August 2014, the DWP sets out figures for both ESA and jobseeker's allowance (JSA) sanctions. The report shows that since the new ESA sanctions regime was introduced on 3 December 2012 there has been an increase in the number of adverse sanctions decisions (i.e. a sanction was applied) made, from 1,092 in December 2012 to 7,507 in March 2014. This represents a more than six-fold increase in the number of ESA sanctions applied in March 2014 compared to December 2012. In respect of JSA claimants, the statistics show, since the new JSA sanctions regime was introduced on 22 October 2012, there has been an increase in the number of adverse sanctions decisions made, from 27,475 in December 2012 to 73,538 in March 2014.

Sanctions and Housing Benefit

On 14 August, 2014 the DWP has issued guidance concerning changes to procedures on notifying local authorities of employment and support allowance (ESA) and jobseeker's allowance (JSA) sanctions. HB Bulletin G8/2014 says that as an interim solution Jobcentre Plus agents will “signpost claimants” to the local authority if they are in receipt of housing benefit when a sanction is imposed so that they can explain the situation and avoid their claims being cancelled in error. The long term solution will involve the DWP making changes to its IT system to inhibit sanction notifications being created at source. This will mean that the local authority will only receive information about claim closure, disallowance and sanctions that result in a disallowance.

Measuring the cumulative impact of the changes introduced by welfare reform

The changes introduced by welfare reform are intended to reduce expenditure and increase work incentives but there is concern that it is also producing unintended consequences for vulnerable claimants who are in need of support. The Social Security Advisory Committee has called on the Government to carry out research on the cumulative impact of welfare reform which would “identify and evaluate the interaction between elements in the welfare reform agenda, particularly as they affect vulnerable groups” (SSAC, Occasional Paper No.12, The Cumulative Impact of Welfare Reform: A commentary, April 2014, p 48) The Government, however, has said that it is ”unable” to accept the SSAC’s call for a cumulative impact of welfare reform (Government response: SSAC report on the cumulative impact of welfare reform25 July 2014). On the other hand, a report published on 31 July 2014, commissioned by the Equality and Human Rights Commission, has concluded that the impacts of tax and welfare reforms are more negative for families containing at least one disabled person, and that women lose out compared to men. The report Cumulative Impact Assessment: A Research Report by Landman Economics and the National Institute of Economic and Social Research (NIESR) for the Equality and Human Rights Commission is available from the EHRC website. For further comment see ‘The gaps in the welfare ‘safety net’ and the scope for using judicial review’ by Desmond Rutledge (click here) on how welfare reform is leading to claimants suffering financial hardship due to delays in payment and a punative sanctions scheme.

Case Law

In SD v Eastleigh Borough Council (HB) (Housing and council tax benefits: other) [2014] UKUT 0325 (AAC) (Judge Rowland), the Upper Tribunal considered whether a claimant required overnight care 'regularly' as required by the terms of regulation B13 of the Housing Benefit Regulations 2006 (SI 213). The claimant lived in a three-bedroom house. She formerly occupied it with her three daughters, but two of her daughters had moved out. Therefore, she was entitled to only two bedrooms for bedroom tax purposes unless she was a 'person who requires overnight care'. The local authority decided that she was not such a person and this was upheld by a First-tier Tribunal. The Upper Tribunal allowed the claimant’s appeal on the basis that the Tribunal erred in law because it did not correctly understand the meaning of the word 'regularly' in the relevant context in the definition and so it did not apply the correct statutory test. The UT highlighted that it is a question of fact as to whether or not a claimant reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should 'regularly' stay overnight for the purpose of providing care. Judge Rowland said that what the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose: -

'A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period. Moreover, there is nothing in the word 'regularly' that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion. That may be why that word was chosen. It does not mean the same as 'normally' or 'ordinarily'. A bedroom may be required even if the help is required only on a minority of nights. Whether a carer must 'regularly' stay overnight must be considered in that context.' (At para [14]),

The UT Judge also observed that whilst the claimant's award of disability living allowance did not include an element for 'night needs', the UT held that: -

'... whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the 'night' attendance conditions cannot be determinative of the question whether claimant is a 'person who requires overnight care'. (At para [18]).

Click here for the judgment

In B v SSWP and Basingstoke and Deane Borough Council (Human rights law: article 14 (non-discrimination)) [2014] UKUT 223 (AAC) (Judge Wright) the claimant was a “substantial minority” carer for child. The child lived with her mother, who was in receipt of child benefit for her, but also spent time living with the claimant. The child was not included in the claimant’s claim for housing benefit as the child was “normally living with” the mother for the purposes of regulation 20(1) of the Housing Benefit Regulations 2006, The claimant argued that regulation 20 unlawfully discriminate against the rights of men who are equal or ‘substantial minority’ carers of children. The Judge accepted that regulation 20(1) indirectly discriminated against men who were substantial minority carers. However, for substantially the same reasons as given in TD v SSWP and London Borough of Richmond-Upon-Thames (HB) [2013] UKUT 642 (AAC), the discrimination was justified, whether or not the other carer was claiming HB. The Judge also rejected the claimant’s argument that in accordance with R v Swale BC HBRB ex p Marchant [1999] 1 FLR 1087 QBD; [2000] 1 FLR 246 CA, his daughter was a member of his household when she was living with him. In fact, Swale decided that a child was not a member of a claimant’s household where the claimant was not responsible for him or her under what is now regulation 20. Moreover, the provision in regulation 21 applied to the claimant, irrespective of whether the other carer was claiming HB, deeming that the claimant’s daughter could not be a member of his household because he was not responsible for her.

Click here for the judgment

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