SOLVING ESA PROBLEM AREAS

Transcription

1 SOLVING ESA PROBLEM AREAS 7

2 ESA Problem Areas: Notes for Conference Workshop Introduction Employment and support allowance (ESA) has been dogged by numerous problem areas since its inception These have largely stemmed from the complexity of the law and administration governing the work capability assessment, delays in carrying out assessments by contracted providers, and the standard of assessments and subsequent decision-making by the DWP. More recently new problems have emerged with the introduction of tougher conditionality, mandatory reconsideration, universal credit, and restrictions on payment pending assessment and disputes. Helping claimants through the process of claiming ESA and disputing decisions remains a prominent element of the work of many advice agencies. Purpose and structure of Workshop The purpose of the Workshop is to identify and examine significant ESA problem areas, and share and discuss practical solutions. The focus is on learning from each other s experiences. To this end, the structure of the Workshop comprises an introduction to some of the common problem areas, followed by discussion in small groups and a concluding plenary session for feedback and further discussion. Context ESA replaced incapacity benefit, severe disablement allowance and income support (where claimed on the basis of disability) from October The conversion of existing claims to ESA was due to be completed by April 2014, but delays in arranging ESA assessments mean some claimants are still awaiting conversion. ESA was partly designed to reduce the number of claimants on sickness benefits, but progress has been slower than anticipated. The most recent statistics show that 77% of claimants assessed for LCW between July and September 2014 were entitled to ESA, with 64% of them qualifying for the support group. Over 2 million claimants are getting ESA (compared with 2.6 million on incapacity benefits in October 2008, some of whom remain on those benefits. Meanwhile, universal credit (UC) has been introduced to replace income-related ESA (IRESA) and other means-tested support for working age claimants. Claimants eligible to claim UC will no longer be able to claim IRESA. Existing IRESA claimants will be transferred onto UC but the process is yet to start. The delays in UC implementation mean that IRESA is likely to remain in existence for several years. Contributory ESA will continue to exist alongside UC. 8

3 Claims and payments Deciding whether to claim involves consideration of whether a person is likely to satisfy the conditions of entitlement (including the WCA), is entitled to payment pending a decision, or could claim an alternative benefit (notably JSA, or UC if the claimant satisfies the gateway conditions ). Making a claim for JSA while sick can be problematic (being allowed to claim, understanding and meeting the jobseeking conditions and avoiding sanctions). Claimants who become sick while on JSA can stay on JSA for up to 13 weeks without having to satisfy the jobseeking conditions. Many claimants need a lot of advice and assistance to get through the assessment process e.g. with completing the ESA50 questionnaire and obtaining supporting medical evidence. Missing medical certificates, ESA50s and Maximus medical examinations are common problems which often require detailed case work and advocacy to resolve. Delays in assessments (now carried out by Maximus instead of Atos) have been a chronic problem since 2008, but reached crisis proportions in 2014 (580,000 backlog on 30 September 2014, with more than a third of claims made from July and September 2014 still awaiting assessment in June 2015). Rules restricting payments have become a major problem area. The extension of the waiting period at the start of a claim for 7 days from October 2014 means that many claimants need help to claim a short-term benefit advance (only 1/3 of applications currently succeed). From 30 March 2015, new rules preclude payment pending a limited capability for work (LCW) decision if a claimant was found not to have LCW on the previous claim unless s/he is suffering from a new or significantly worsened condition. Many claimants will need help to make representations, obtain supporting evidence, and deal with negative decisions. The time limiting of CESA to 365 days entitlement for claimants not entitled to a support component and understanding the rules for requalifying is another significant problem area. Transfers to and from ESA The conversion process from incapacity benefits continues to cause problems with incorrect awards (e.g. refusal of the enhanced disability premium and wrongly calculated transitional additions) and inadequate notifications. Refusals of ESA can be challenged by mandatory reconsideration (MR) and appeal (ESA is payable pending appeal but not MR, so need to get through MR to appeal as soon as possible). 9

4 The process of transferring IRESA claimants onto UC (on prescribed changes of circumstances and via managed migration ) is yet to begin. New claims for IRESA are still possible in most areas because of the gateway conditions. Better off issues are emerging (e.g. avoiding meeting the gateway conditions by obtaining a fit note, and the possibility of relinquishing a claim for UC if a claimant becomes sick and would qualify for a severe disability or carer s premium on IRESA, but there are uncertainties and complexities. Limited capability for work This is the heart of ESA and the source of many of its problems. Understanding and helping claimants understand limited capability for work and limited capability for work-related activity is a major challenge, including the exemptions ( treated as ), the descriptors and scores, and the exceptional circumstances (particularly the substantial risk to health provision). Much about the way the test should be applied is also determined by case law, which is extensive (sometimes conflicting) and emerging all the time, making it difficult to keep up to date. Assisting claimants through the process of completing ESA50s and attending medical examinations is at the heart of successful ESA case work. The standard of assessments and subsequent decision-making by the DWP remains open to heavy criticism. The permitted work rules represent a particularly significant provision for many claimants, but it is easy to fall foul of them without proper advice. Conditionality There have been over 60,000 benefit sanctions imposed on ESA claimants since tougher conditionality rules were introduced in December Around 50,000 related to work related activity (WRA) failures (the rest work focussed interview WFI - failures). Understanding the requirements and dealing with Work Programme providers is a major challenge and the fact that there are no formal dispute rights (MR / appeal) until a sanction is imposed by the DWP causes major difficulties. Avoiding WFI sanctions by deferral, re-arrangement, taking part, or showing good cause within 5 working days; and avoiding WRA sanctions by requesting reconsideration, making representations that a requirement is unreasonable, complying to avoid a sanction, or showing good cause within 5 working days (doesn t apply to new style ESA ) can be problematic. 10

5 Disputing sanctions can be a long a difficult process because of MR, but around 50% of disputed sanctions have been overturned on MR or appeal. It may also be possible to challenge decisions on the basis of discrimination, using the Equality Act A structured approach is helpful. Is the person exempt? Was the WRA reasonable, making employment more likely, and short of applying for work? Was proper notice given? Was there a failure without good reason? The time limits can cause problems. There is no time limit for a revision (MR) of a sanction decision if it contains an error to which the claimant did not contribute, but the time limit for appealing runs from the date of the original decision. Claimants caught by the 5 day time limit for showing good cause could argue that the WRA was not reasonable. Securing hardship payments can be a lifeline for many claimants. Challenging decisions The requirement for MR prior to appeal causes confusion, delays and a host of other problems which many claimants need help with. Potential problems include ensuring a MR is requested and accepted, time limits, establishing grounds with supporting evidence, and dealing with delays and initial and partial revisions. There is no entitlement to disputed benefit pending a MR (client may need to claim JSA or local welfare assistance). The number of ESA appeals has plummeted (81% decrease in the first quarter of 2015 compared with 2014). This may be due to MR and the huge backlog in ESA assessments in The success rate is high, however (nearly 60%). Most claimants need advice and assistance to successfully appeal. An oral hearing with a written submission and / or representation and supportive medical evidence affords the best chance of success. Under new rules from 30/3/15, there is only entitlement to ESA pending an appeal against a no LCW decision on an initial claim, or after the disallowance of an existing award. Entitlement is backdated to the date ESA was stopped, so it is important to get through the MR and appeal as soon as possible, although there are often delays in getting restored on appeal. If there is no entitlement, it is possible to claim JSA pending the appeal. Postscript The Government announced significant cuts to ESA announced in July 2105 Budget which are likely to cause additional problems for claimants when they take affect: From April 2016, most ESA rates are frozen for four years 11

6 From April 2017, the WRA component is abolished for new claimants From April 2016, there will be a 39 waiting period for housing costs From April 2018, IRESA housing costs will only be loans. 12

7 ESA PROBLEM AREAS Conference Workshop September 2015 DAVID SIMMONS INTRODUCTION ESA dogged by problem areas since it was introduced in 2008 Complexity of law and administration governing the WCA, delays, standard of assessments and decision making More recently, tougher conditionality, mandatory reconsideration, introduction of UC, restrictions on payment pending decisions and appeals Helping claimants through the claims and disputes process remains a prominent element of welfare rights case work 13

8 OBJECTIVES To identify and examine significant ESA problem areas To share and discuss practical solutions Focus is on learning from each other s experiences STRUCTURE Introduction to common problem areas Small group discussion Plenary session feedback and discussion 14

9 CONTEXT ESA replaced incapacity benefits from October 2008 conversion process not yet fully completed Slow progress in reducing numbers on sickness benefits 75% of those assessed for LCW July Sept 2014 were entitled to ESA, 64% qualifying for the support group more than 2 million claimants are getting ESA UC will replace IRESA but delays in implementation mean process unlikely to be completed for several years. CESA will remain. Claims and payments Transfers to and from ESA Limited capability for work Conditionality Challenging decisions PROBLEM AREAS 15

10 DECIDING WHETHER TO CLAIM Does claimant satisfy conditions, including LCW? Is there entitlement to payment pending a LCW decision? Could claimant claim an alternative benefit? Requirement to claim UC if gateway conditions are satisfied Pitfalls of claiming JSA while sick Option of staying on JSA for up to 13 weeks while sick CLAIMS AND ASSESSMENTS Many claimants need a lot of advice and help e.g. to complete the ESA50 questionnaire and get supporting evidence Missing fit notes, ESA50s and Maximus medical examinations are common problems, often requiring detailed case work and advocacy to resolve Delays in assessments a chronic problem since ESA started, reaching crisis proportions in 2014 (will Maximus be any better than Atos?) 16

11 PAYMENT RESTRICTIONS 1 7 day waiting period at start of claim (extended from 3 days from October 2014), unless exempt Many claimants will need help to get a shortterm benefit advance (less than 1/3 applications are successful) PAYMENT RESTRICTIONS 2 New rules preclude payment pending a LCW decision, following previous decision that claimant does not have LCW, unless claimant has a new or significantly worsened medical condition. 6 month rule remains for claims prior to 30/3/15, or following failure to attend medical or return ESA50 Claimants will need help to make representations and obtain medical evidence to show new or significantly worsened condition (guidance and case law suggests this means likely to satisfy WCA), and deal with negative decisions 17

12 PAYMENT RESTRICTION 3 CESA is only paid for 365 days, but days in the support group do not count Claim IRESA if eligible Get into the support group Re qualify by satisfying amended NI contribution conditions TRANSFERS TO ESA Recent statistics show over 90% of claimants qualify for ESA on conversion (over 85% of them for the support group). Incorrect calculation of ESA not uncommon (e.g. no enhanced disability or carer premium) as is inadequate notification (now difficult to challenge because of case law). Negative conversion decisions can be challenged by mandatory reconsideration and appeal (ESA payable pending appeal, but not MR so need to get to appeal asap) 18

13 TRANSFERS TO UC Transfer of existing IRESA claimants yet to begin New claims still possible because of gateway conditions May be better off issues e.g. avoiding UC by getting a fit note, and relinquishing a claim if claimant gets sick and would be better off on IRESA (e.g. if entitled to a SDP via PIP) but uncertainties and complexities UNDERSTANDING LCW The heart of ESA and source of many problems Understanding and explaining terminology (LCW/WRA) and legal tests Adopting systematic approach: can claimant be automatically treated as having LCW or LCRWA? if not, does s/he satisfy descriptors test? If not, does substantial risk condition apply, or for LCW only, does uncontrolled / uncontrollable condition apply? 19

14 UNDERSTANDING LCW CASE LAW Determines how tests should be applied. Binding, extensive, sometimes conflicting, emerging all the time not easy to keep up to date Main categories: general approach to WCA ( non snapshot, reasonable regularity ) individual descriptors treated as having LCW / LCRWA on grounds of substantial health risk weighing of evidence LCW PROCEDURES Helping claimants understand procedures and deal with delays Completing ESA50s and attending medicals with relevant information and understanding of the legal tests Flawed assessments and ESA85 reports (rushed, judgmental, formulaic) rubber stamped by DWP 20

15 PERMITTED WORK Significant provision for many claimants, but easy to all foul of the rules without proper advice and information CONDITIONALITY 60,000 ESA sanctions since tougher rules end 2012, causing hardship for many sick and disabled claimants Understanding conditionality requirements (work focussed interviews and work related activity / work preparation) and sanctions (loss of personal allowance until compliance, plus 1 / 2 / 4 weeks) No formal dispute rights (MR / appeal) until sanction imposed Dealing with Work Programme providers 21

16 AVOIDING SANCTIONS Seeking exemption e.g. via support group Avoiding WFI sanctions by deferral, re arrangement, taking part, or showing good cause within 5 working days Avoiding WRA sanctions by requesting reconsideration, making representations that a requirement is unreasonable, complying to avoid a sanction, or showing good cause within 5 working days (doesn t apply to new style ESA ) DISPUTING SANCTIONS 1 Lengthy and difficult process because of MR, but over 50% of ESA sanctions overturned on MR / appeal Can also challenge decisions on the basis of discrimination using the Equality Act 2010 Grounds for disputing WFI sanctions are no requirement or failure to take part, or good cause for failure Grounds for disputing WRA sanctions are no requirement or failure to take part, or good cause reasonableness of requirement in light of claimant s medical condition and other circumstances likely to be particularly relevant 22

17 DISPUTING SANCTIONS 2 Structured approach useful: Was client exempt? Was WRA reasonable, making employment more likely? Was proper notice given ( prior notice and action plan)? Was there a failure without good reason? Was length and amount correct? Time limits can be problematic. Revision at any time if due to error not caused by claimant, but time limit runs from original decision date. Those caught by 5 day limit for good cause could argue WRA not reasonable. HARDSHIP PAYMENTS Lifeline for many claimants but difficult to claim Involves giving detailed relevant information on application form and at interview Refusals can be challenged by MR and appeal claimant may need local welfare assistance to survive 23

18 PURSUING A MR Requirement for MR prior to appeal causes confusion, delays and a host of other problems and many claimants need help Potential problems include ensuring a MR is requested and accepted, dealing with the time limits, establishing grounds with supporting evidence, dealing with initial and partial revisions, explanations and delays and getting a MR notice No entitlement to disputed benefit pending a MR (may need to claim JSA or local welfare assistance) PURSUING AN APPEAL The number of ESA appeals has plummeted (81% decrease first quarter of 2015 compared with 2014 due to MR and assessment delays?) but success rate is high (nearly 60%) Most claimants need advice and assistance to successfully appeal, with an understanding of the law and procedures. An oral hearing with a written submission and / or representation and supportive medical evidence gives best chance of successful outcome. Under new rules from 30/3/15, only entitled to ESA pending an appeal against a no LCW decision on an initial claim, or after the disallowance of an existing award. If entitled, backdated to date ESA stopped, so need to get through MR and appeal asap. If not entitled, can claim JSA. 24

19 POSTSCRIPT Significant cuts to ESA announced in July 2105 Budget, likely to cause additional problems for claimants when they take affect: From April 2016, most ESA rates frozen for four years From April 2017, WRAC abolished for new claimants From April 2016, 39 waiting period for housing costs From April 2018, housing costs will only be loans GROUP DISCUSSION Identify top six ESA problem areas encountered in your case work Discuss practical solutions to each problem Make jointly agreed notes and be ready to feed back 25

20 FURTHER ADVICE CPAG advice line for advisers Tel: Mondays to Friday 10am 12pm 2pm 4pm Ask CPAG online Online information and advice (including advice service) on ESA Problem Areas and other topics 26