Welfare News Service, on behalf of our readers, are deeply disappointed by the lack of any clear protection for those who may be forced onto ‘work schemes’ whilst appealing against a benefit decision, even though those people may have serious health concerns affecting their ability to partake in such activity. The DWP’s inability to provide us with any clear information on how people with potentially very serious health concerns will be protected or exempted from participation in work related activity whilst awaiting the outcome of a ESA reconsideration, such as work schemes, is deeply concerning.
We believe that being required to partake in work related activity for those who have being denied ESA and are seeking reconsideration (appeal), could have a detrimental affect upon that persons already poor health or disability. The result being further delays in their ultimate return to work. Furthermore, sick and/or seriously disabled people in the workplace run the very real risk of putting not only their safety at risk but also the safety of others around them if that person, despite initially being denied benefit, is not yet ready (well enough) to return to the work market – later discovered after reconsideration or appeal. Of course this mean a field day for injury lawyers.
The DWP are legally obliged to ensure the safety of those on their work schemes, as are their work placement providers. The rush to cut the welfare bill, and the introduction of policy legislation forcing seriously sick and/or disabled into a position where they may be required to take part in work related activity, including work placements, puts their health and safety at very real risk. The last thing anyone wants to see is future news reports of vulnerable people hurt, injured, (or worse) as a result of being forced to take part in work placements whilst awaiting the outcome of a benefit reconsideration. Note that there will be no limit on the length of time given to DWP decision makers in reconsidering an ESA application.
We trust that the DWP will ensure that all required protection is in place, and that no-one seeking reconsideration of an ESA decision, or future Universal Credit decision, on the grounds or poor health and/or disability affecting their work capability, will be required to take part in work placements under the Work Programme or any other similar scheme or activity.
Our Letter
I am writing to ask for clarification on how Clause 99 of the Welfare Reform Act will impact upon benefit claimants appealing against a decision to stop payment of Employment & Support Allowance (ESA), or other sickness and/or disability benefit including Disability Living Allowance and the future Personal Independence Payment.I am already aware of mandatory revision, and my understanding is that those going through an appeal process against a negative decision on ESA, could be required to claim Job Seekers Allowance (JSA) during this period and thus be subject to all the requirements of entitlement to this benefit, including and not limited to Work Programme participation/involvement.
Furthermore, one requirement for JSA entitlement is that the claimant declare they are ‘fit-for-work’, or capable of employment. The claimant could be forced to declare themself able to work when in fact they may not be, hence the reason for their appeal against an ESA decision.
What protections are in place to ensure that people who may have wrongfully been found ‘fit-for-work’ following assessment, and may have health complaints reducing their work capability, are not then required to undertake activities under Job Seekers Allowance which may be hazardous to their health and well-being?
Does claiming JSA during a claimants appeal affectively mean they are then declaring themselves ‘fit-for-work’, and so not eligible for ESA?
I look forward to your reply.
Department For Work And Pensions Response
Thank you for your recent correspondence, raising issues arising from Government policies which are the responsibility of this Department. Government Ministers receive a large volume of correspondence and they are unable to reply personally on every occasion. I have been asked to respond.As you know, with the introduction of Employment and Support Allowance (ESA), a new assessment, the Work Capability Assessment, was introduced to determine entitlement. The Work Capability Assessment looks at what a person remains capable of and looks at the help they need to overcome their challenges getting into work. Atos Healthcare is the private company which provides medical services to the Department. In introducing the new assessment, Atos Healthcare professionals who carry out the Work Capability Assessment have received training to cover the changes made. Atos healthcare professionals do not decide benefit entitlement. Entitlement is decided by the Department’s decision makers and is based on a person’s functional capacity.
I can assure you that there is no plan to withdraw the right of claimants to appeal decisions made on their benefits for either ESA or any of the benefits administered by this Department.
However, changes were introduced to the appeal process resulting from Section 102 of the Welfare Reform Act 2012, the mandatory requirement to request consideration of revision before appeal.
The changes will require claimants who wish to dispute a decision on their claim to contact this Department to request that the decision be revised. It is an opportunity for further contact with claimants which may generate additional evidence for the decision maker to consider. This will ensure that the decision has been checked thoroughly and the reasons for the decision explained to the claimant so that they are better informed before taking any action to make an appeal. Reconsideration, therefore, plays a crucial role within the decision-making and appeal process and currently takes four weeks, on average. The Department intends that a different decision maker reconsider the decision.
The change will enable this Department to ensure that decisions are changed at the earliest stage in the process and to provide a clear explanation. Claimants will then be able to make an informed decision on formally appealing to HM Courts and Tribunal Service, taking the outcome of the reconsideration process into account. These changes are necessary to deliver timely, proportionate and effective justice for claimants and to make the process for disputing a decision fairer and more efficient.
Claimants will still be able to appeal, if necessary, once this Department has notified them of the outcome of the reconsideration process.
Like all other social security benefits, ESA will not be payable during the reconsideration process. However where an appeal is lodged regarding a decision that a claimant does not have limited capability for work, ESA may be payable at the basic rate pending the outcome of the appeal – this includes the reconsideration period. Claimants also have the option of claiming other benefits like Jobseeker’s Allowance during the reconsideration period if they wish.
Mandatory reconsideration and direct lodgement will be introduced from April 2013 for Universal Credit and Personal Independence Payment, and October 2013 for all other DWP-administered benefits and child maintenance cases.
The Government recognises that disabled people or people with health conditions assessed as capable of work may need support to move into or towards work. The Work Programme was launched on 10 June 2011 and is now in place nationally. It provides support to a wide range of claimants, including those receiving ESA and Jobseeker’s Allowance.
The Work Programme has been designed for people who are more at risk of long-term unemployment and it will allow providers to innovate and design support based on the needs of individuals. The mainstream provision is complemented by specialist disability employment programmes including Work Choice, which continue to help people with more severe disabilities or complex needs to prepare for work and to undertake supported employment, with the aim of progressing into unsupported employment, where possible.
Welfare News Service
