Initial decision making, internal review & administrative justice - PowerPoint Presentation

Slide1

Initial decision making, internal review & administrative justice

Gráinne

McKeeverSlide2

Social security perspective on internal review & decision making

What is the

Social Security Advisory Committee (SSAC)?

What are we looking at through our

Independent Work

Programme

(IWP)?

What are stakeholders and decision-makers telling us

about mandatory reconsideration (MR)?

My views on whether the process is working as intendedSlide3

Statutory body, funded by DWP, but independent of Government, the Department and sectional interests;

Established

November

1980,

superseding

National

Insurance Advisory Committee & the Supplementary Benefits Commission Main UK advisory body on social security and related matters

What is the SSAC?Slide4

Chair

(Paul

Gray

) and

12 members.

Reserved membership for

members representing employers; workers; chronically sick or disabled people; Northern Ireland (and, by custom, Wales & Scotland)CompositionSlide5

SSAC’s role?

Gives advice and assistance to the Secretary of State and the Northern Ireland Department (either at the request of Ministers or under its own initiative);

Scrutinises proposals in the form of draft regulations;

Have

a similar role of scrutiny in relation to regulations in Northern Ireland;

will retain the power to scrutinise reserved social security matters for Scotland but not devolved social security matters

Has a memorandum of understanding with HMRC regarding benefits they administerSlide6

Independent Work

Programme

SSAC can undertake to provide advice on its own initiative and carry out

research

to support its IWP in order to:

provide an

evidence base for our work, improving members’ ability to scrutinise regulations and provide credible independent advice to ministersadd value to the debate on a topic that is of current interest to government or a broad range of our stakeholdersstimulate debate or discussion of a specific topicintroduce new thinking on data analysisSlide7

Decision making & mandatory reconsideration

IWP report, focused on:

ESA

fitness for work

decisions (DWP)

tax

credit awards (HMRC) Consultation from Feb-March 2016. 80+ stakeholder responses Discussions with DWP decision makers & HMRC case workersReport expected June 2016Slide8

DWP policy objectives for MR

To resolve disputes as early as possible;

To reduce unnecessary demand on HMCTS by resolving more disputes internally;

To consider revising a decision where

appropriate;

To

provide a full explanation of the decision; andTo encourage claimants to identify and provide additional evidence that may affect the decision, so that they can receive the correct decision at the earliest opportunity DWP (2013) “Appeals Reform: An Introduction”Slide9

1. MR Time limits: 28 days

Stakeholder

responses evidencing difficulties:

Knowing about time limits

Meeting them (including getting advice w/in time limits)

Providing additional evidence on time

Getting DMs to wait for new evidence Disputing time limits & securing extensionsSlide10

2. Communications – nature & content

Phone-calls difficult for (vulnerable) claimants -

reasonable

adjustments needed in

communications

Advisors

are not included in communicationsElectronic communications not used routinely (though HMRC currently trialling this)Calls are overly scripted and generalClaimants are receiving misleading info on likely success of MR – and appealSlide11

3. Evidence gathering

Claim forms are not eliciting the necessary information

Lack of specificity in departmental requests for further

evidence – nothing from stakeholders to suggest that DMs are identifying the evidential gap and specifically directing claimants to fill this gap

Undue emphasis placed on getting medical evidence when this may not be appropriate to the

claimSlide12

4. MR Notices (MRNs)

Not clear whether MR has been requested or completed – CPAG “three stage process”

Not clear to claimants what the

outcome of the MR is –

judicial evidence that MRNs are poor quality

MRNs not clear on further appeal routes and become a barrier to accessing appeal rightsSlide13

5. DM guidance

Extensive (and growing)

Accurate and reliable

Difficulties in searching and navigating, reducing reliance on guidance and increasing reliance on colleagues’ knowledgeSlide14

6. Interpreting (medical) evidence

HCP hotline for DMs, but difficult to get through

Failures by DMs to explore/clarify inconsistencies b/w HCP

reports and

other evidence

Seen as a missed opportunity to review decisions thoroughlySlide15

7. Process issues

Claimants having to appeal (with reasons) before seeing HCP evidence used by DMs

Judicial recommendation that sanctions (quasi-criminal) should be excluded from MR process, or expedited through to appeal to comply with art.5 ECHR

Need for separate MRs on separate decisions that claimant (incorrectly) thinks are one decision & only makes one application for MRSlide16

Meeting the policy objectives?

1. Resolve

disputes as early as possible:

Difficult to know – concern from stakeholders that the process was prolonging the resolution of disputes and creating a barrier to accessing justice

DWP

Claimant Experience Survey 2014/15

found that ESA appeal process was “perceived to be a lengthy, complex, and error-prone process, involving staff who were not always equipped with the knowledge required” Slide17

Meeting the policy objectives?

2. Reduce demand on HMCTS

R Thomas: important work on tribunal trends,

with current downward

trajectory.

Appeals

against ESA decisions decreased by 86% in July to September 2014 compared to the same quarter in 2013.Marked decline across other DWP benefits subject to MR but no similar decline in Housing Benefit/Council Tax Reduction, which have not been subject to MRMeets the objective but concern that appeal rights are not being accessedSlide18

Meeting the policy objectives?

3.

R

evising

a decision where appropriate

Limited data on overturn rates following MR – relates

to sanctions and Personal Independence Payment 6% of ESA sanctions decisions subject to MR & 63% of these overturned at MR (October 2013-March 2015 )Response to PQ (Oct 2015) stated DWP’s intention to publish data on MR outcomesNo data available from HMRCStakeholder evidence that it was rare for claimants to have their fitness for work

decisions overturnedSlide19

Meeting the policy objectives?

4. Provide

full

explanation of the decision

Communications with claimants not optimal

Process issues around requesting MR and receiving MRN

MRNs lacking claritySlide20

Meeting the policy objective?

5. Get claimants to provide additional

evid

to get the correct decision

asap

Requests for further info/evidence lacking specificity

Evidence gap not being identified to assist claimants to address thisBarriers in securing additional evidenceDMs are not notified if their decision is overturned & no mapping of DM performance to tribunal outcomesLast 4 quarters show tribunal overturn rates for ESA 55-59%Slide21

My conclusions

Still much to recommend the policy objectives but evidence submitted to the SSAC indicates that these objectives are not being met and that further barriers to administrative justice have arisen as

a result.

Further work needed to improve the process for claimants – recommendations by the SSAC will focus on these.Slide22

SSAC stakeholder event 19 May 2016, Manchester – further update on findings & recommendations

Meanwhile: follow

@

The_SSAC

for details of our work

IWP Report:

D

ecision making and mandatory reconsideration