Law Centre NI DLA Reform and Personal Independence Payment - Completing the Detailed Design Law Centre
Law Centre (NI) welcomes the opportunity to respond to the Department for Social Development s Personal Independence Payment-completing the detailed design consultation. 1. About the Law Centre (NI) Law Centre (NI) is a public interest law non-governmental organisation. We work to promote social justice and provide specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland. It provides a specialist legal service (advice, representation, training, information and policy comment) in five areas of law: social security, mental health, immigration, community care and employment. Law Centre services are provided to over 400 member agencies in Northern Ireland. We responded in detail to the White Paper and to the draft regulations on PIP. We now welcome the opportunity to examine further details regarding the non-disability tests and the claims process including the model of migration. We look forward to receiving further information about PIP as the regulations are published. 2. Northern Ireland Circumstances DLA provides a weekly sum to assist with the extra costs associated with a disability. The analysis of the proposals, by the Department for Work and Pensions, estimate that 500,000 individuals will lose out on receiving PIP under the new modelling by 2015/2016 across Great Britain. In Northern Ireland there are currently 187,950 recipients of DLA, of those 120,829 are working age and therefore the group affected by these proposals. 1 Mental health causes is listed as the most frequently occurring disabling condition in Northern Ireland with 41,381 people receiving DLA for this matter. 2 A report by the Centre for Social Justice noted the majority of people claiming illness-related out of work benefits do so on account of mental and behavioral disorders...this demonstrates a significant and widespread problem in Northern Ireland given its comparatively small population. 3 The Law Centre is concerned about the impact, timing and intention of the proposed changes to DLA given the high number of people in receipt of DLA in Northern Ireland. The Department for Social Development has estimated that the proposed changes to 1 DSD Benefit Summary of Statistics, Disability Living Allowance, November 2011 2 DSD Benefit Summary of Statistics, Disability Living Allowance, November 2010 3 Centre for Social Justice, Breakthrough Northern Ireland,September 2010 pg15 2
DLA will result in a 20 per cent reduction in working age claimants once the proposals have been fully implemented. A recent report by the Institute for Fiscal Studies found that, after London, Northern Ireland will be the hardest hit by tax and benefit cuts announced and to be implemented between January 2011 and April 2014/15. 4 Northern Ireland will be particularly badly hit because of the high proportion of people relying on Disability Living Allowance and larger families who will see a reduction in benefit. As a benefit specifically designed to contribute to the extra costs of disability, if removed from claimants, it will impact on services and resources provided by other public agencies. Indeed, a recent analysis by Disability Rights UK on the impact of the lower numbers of claimants who will be eligible for support under PIP found that there will be a knock on effect in other areas of government spending i.e dependence on other benefits, loss of Treasury NI/income tax losses through inability to access and remain in employment, and increased NHS and assessment costs. Consideration of cutting welfare has appeared to view DLA payments as deadweight expenditure. 5 The idea that DLA represents a nil return means of supporting people is inaccurate and it is essential that accounting for the additional cost of disability remains at the forefront of PIP development. We recommend that the Department carries out more detailed assessments of the wider impacts of DLA reform and consults further with the NHS on the implications for their provision of services for disabled people, now that the updated EQIA has been published. 3. Eligibility to the benefit Reclaiming the Benefit - Linking Rules Law Centre NI welcomes the government s decision that the qualifying period should remain at 3 months as opposed to the original proposal of 6 months. There is anecdotal evidence, however, that significant financial hardship is experienced by claimants during the three-month DLA qualifying period, particularly for those with sudden onset conditions such as the loss of limbs after a car accident. We believe that claimants with sudden onset conditions, which can be medically evidenced to last at least 12 months, should qualify for immediate support. We recommend that DSD implements a facility for early eligibility which could operate in the same way as that for terminal illnesses to prevent the qualifying period pushing vulnerable individuals into debt. We are 4 James Browne The impact of tax and benefit reforms to be introduced between 2010 11 and 2014 15 in Northern Ireland IFS Report December 2010 5 Disability Rights UK., Impact Assessing the Abolition of Working Age DLA, April 2012 3
concerned that this runs counter to previous Government commitments to supporting early intervention. We would welcome further comment on this matter. We do not support the proposal to lower the linking rule from a two to one year period of elapse between claims which may have a negative impact on those with fluctuating conditions in particular. Fluctuating conditions reveal difficulties caused by exertion, exhaustion and repetition of tasks and reflect the broader spectrum of disability and can affect people differently and at various times. We remain concerned with the mathematical approach to fluctuating conditions. A person with a severely debilitating condition 40% of the time will fail the test against someone with a less debilitating condition over 50% of the time who will qualify. This is not an equitable reflection of the impact of a condition. As a result, severity and frequency should be reflected in the assessment and, consequently, in the linking time rules. We are concerned that reclaims to PIP by individuals who have developed new conditions will be treated as a fresh claim and will, therefore, have to fulfill the qualifying period. We believe that they should be considered under their existing claim, for example, how will the decision be reached on what is a new claim and if a condition is a symptom of the original condition. We believe this issue also needs reconsideration. Law Centre NI does not support the four weeks abroad rule which we believe is too short to account for claimant s particular needs including occasional trips to see family members abroad, therefore we recommend that it is extended. We welcome that provisions relating to the 26 weeks absence for medical treatment have been retained. We support the payment of PIP for 28 days when an individual enters prison or legal custody. We agree that this period of payment will enable claimants to deal with any outstanding financial matters. We would welcome assurance from the Department that this financial assistance will be paid directly to the claimant to ensure that they can manage their personal finances. However, it is not clear whether PIP will be backdated where a person is on remand and is subsequently released without trial or found not guilty. We would argue that equity and natural justice should not penalize a claimant to compound the error of wrongful incarceration. Claims from young people at age 16 We welcome the Government's decision not to include child recipients under 16 years of age in the current DLA reforms. We believe that DLA for children should not be considered until the reassessment of working-age claimants has been completed and fully assessed. For clarity, we would welcome a commitment from the Department that it 4
will conduct a full and separate consultation on any future changes to DLA relating to children. Under PIP, young people who are coming up to the age of 16 will have to be reassessed into PIP. We recommend that there is a robust communication strategy, for parents and young people, especially in cases that are in receipt of an indefinite award. We would also welcome further provision and transitional safeguards for young disabled people as they make the transition from DLA to PIP. 4. Payability of the benefit for certain groups We are disappointed by the proposal to withdraw existing transitional protection arrangements. Although a claimant may be in hospital or rehab for over a year they may still return home at regular intervals, or take part in community activities for holistic purposes. The retention of the lower rate of the mobility component is essential in such cases to maintain the person s independence and mobility. A recent Court of Appeal judgment in Slavin highlighted an anomaly in DLA and AA regulations. Although concerning a case in relation to the local authority model of delivering care in England, further consideration needs to be given as to how this judgment will be applied under the Northern Ireland care system. We are concerned by the proposals to remove provisions allowing PIP to be paid to residents whose care is funded by the NHS which will essentially overturn the effect of this judgment. Any future regulations in relation to rates payable to those undergoing medical treatment should be tailored to Northern Ireland circumstances and reflect the different system of health and social care provision in place. 5. Reassessment Process In respect of information requirements and the way in which claimants will be managed under the reassessment process, we believe that four weeks is too short a time in which to make a claim for PIP. Claimants may need a longer period of time in which to access additional medical information or support from the advice sector. We recommend that this timeframe is extended to at least six weeks. In addition, we understand that when they have completed this stage they will again be subject to a short timeframe in which to return the form. We are concerned that the consultation document states that where a questionnaire is not received, anybody requiring additional support will automatically be given a face-to face consultation. As a result, claimants will miss out on a vital opportunity of providing supporting evidence. We recommend that additional support should be provided to help claimants fill in the form rather then going straight to a face-to-face assessment. 5
Although the document does not give any specific details regarding the reassessment process in Northern Ireland, we understand that the Department intends to reassess 1000 applicants per week under the managed reassessment process. We are concerned by the enormity of this task, in particular, how it will work in practice to ensure that everybody has a just reassessment of their needs. In our experience, it is likely that there will be a substantial number of appeals against refusals or benefit and reduced awards, loss of income forcing many to obtain advice, evidence and representation from advice organizations or other professionals. At present advice services are under exceptional pressures as a result of the welfare reform changes and this will undoubtedly continue during the parliamentary passage of the Northern Ireland Welfare Reform Bill. This is all happening at a time when the voluntary and community sector is experiencing funding cuts. We are concerned that the voluntary and community advice sector will not have the capacity or resources to provide claimants with advice during the reassessment period due to the large caseload. We recommend that DSD contracts for the delivery of the PIP assessment reports that are "right first time" with commensurate penalties built in for poor assessments. We believe that healthcare professionals carrying out the assessments should take an empathetic approach allowing claimants to describe the impacts of their disabilities or health conditions on their everyday lives. We also recommend that DSD sets out this principle in published guidance for healthcare professionals on the assessment process. This approach will have implications for the time allowed for face-to-face assessments, which in turn must be reflected in the contract arrangements with the third party providers of the assessments. We would seek assurances from the Department that this will be taken into account in the contracting process. Indeed, experience of the Work Capability Assessment has demonstrated the need for contracts with private suppliers which involve sensitive health and disability assessments to be properly monitored. We therefore request further information on how the Department plans to oversee and regulate the contracts for the PIP assessments. 6. Award duration and reviews Law Centre NI welcomes the indication that longer term awards of five and ten years may be applied, however, we recommend that the Department monitors the practicality and the effectiveness of these durations as the benefit is rolled out, particularly in relation to non-altering conditions. Law Centre NI will seek to observe such trends through our casework and advice. 6
We are concerned that the frequency and format of the reviews has yet to be decided. Although the intention is to produce guidance on the duration of the reward and the frequency of reviews, we are disappointed that the Department is only keen to involve disabled people and their representatives in this process. We believe that it is essential to include the views of disabled people and their carers in the development of guidance. In addition, we do not support the decision not to consult on the guidance. 7. Passporting Arrangements We would welcome further clarification about which rate of PIP mobility component will confer eligibility for the Motability Scheme, for example, will a three-year lease for a Motability car, signed when the claimant was a recipient of higher rate DLA mobility component, be terminated if that person is found ineligible for the Motability Scheme under PIP. We believe it is important for the Department to provide certainty on these issues before reassessment of the working-age DLA caseload commences. Furthermore, we are disappointed that the extension which applies to DLA Mobility will not be carried over into PIP. We would welcome further clarification as to whether there will some transitional safeguards for those claimants who are in hospital for over 28 days and have leased a vehicle or equipment under the Motability Scheme. The document states that the Government has been in discussions with Motability, however, we would welcome further information on this matter. Ideally, existing contracts should be honored. We are concerned that there is a lack of clarity about how passporting arrangements will work from a Northern Ireland perspective. For example, the document refers to a consultation by the Department for Transport in GB on blue badges, but no further information has been provided for Northern Ireland. Currently DLA passports to a blue badge in addition to a wide range of areas such as SmartPasses, door to door transport, legal aid and charitable grants. We recommend that further consideration is given to the Northern Ireland specific passporting process under PIP. 8. Residence and Past residence We are concerned that the proposed habitual residence test represents a substantial change to the current DLA test. Although not outlining an express right to reside (R2R) requirement, it is likely that a R2R requirement will be included as well if to align it with the current habitual residence test for other means tested benefits. A habitual residence 7
test alone would not be that substantially different from the current ordinarily resident test (especially when the presence requirement is going to be two years rather than 26 weeks), however we not believe it is appropriate to impose a right to reside test for a disability benefit which is available for those both those in work and out. We envisage that this could lead to a significant amount of test cases in the European Court of Justice. Moreover, the test proposed is likely to be unlawful (see for example, the recent decision of the European Court of Justice C503/09 Stewart v SOS for Work and Pensions on the current residence and presence test). The Department should introduce arrangements which are compatible with European Law. We deprecate the apparent unwillingness to do so on this matter. 9. Conclusion Law Centre (NI) encourages the Department to highlight the different circumstances in Northern Ireland particularly the significantly greater incidence of mental health problems and the objective ramifications of the proposals to replace DLA with PIP for claimants here. We are pleased to respond to this consultation. If there is any further way in which we can contribute to the consultation process we would welcome the opportunity to do so. For further information about this response contact: Policy Unit Law Centre (NI) 124 Donegall Street BELFAST BT1 2GY Tel: 028 90 24 44 01 FAX: 028 90 23 63 40 Textphone: 028 90 23 99 38 8