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HomeBlogWRA S.102 Sched.11 ‘Clause 99’ has been introduced from April to ensure wrongful ‘fit-for-work’ decisions are practically impossible to challenge
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THINK LEFT

 

‘It’s horrific and true that Clause 99 has been introduced to make appealing wrongful decisions that we are fit for work almost impossible.

‘Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, de-humanising, undignified and grossly unfair system of “assessment” is being hidden.

‘More than 10,600 people have died because of the current system, and it is terrifying that our Government have failed to address this. Instead, they have made the system even more brutal, de-humanising and unfair.

‘Clause 99 is simply an introduction of obstructive and Kafkaesque bureaucracy to obscure the evidence of this. This Government is oppressive, repressive and certainly bears all of the hallmark characteristics of authoritarianism.’

~ Kitty S Jones

Appeal Scrapped

 

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

~ Article 6 ECHR

‘Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals’ 

First posted January 30th 2013 By Kittysjones

Section 102 and Schedule 11 of the Welfare Reform Act, (Clause 99) – Power to require revision before appeal. 

If there is anyone left in doubt that this Government’s policies are grossly unfair, and are punishing the most vulnerable of our citizens, whilst the Tories are claiming that they are benevolent and paternalistic, by utilising Orwellian Newspeak/Doublespeak methodology, you need look no further than Clause 99 for evidence to verify my conjecture.

Currently, claimants who are found fit for work can continue to receive Employment Support Allowance (ESA) at the basic rate by immediately lodging an appeal if they think the decision is wrong. ESA will then remain in payment until the appeal is decided.

That is all set to change, however, under Clause 99 of the Welfare Reform Bill, intended to be effective  from April 2013.

Under the new rules, claimants who wish to challenge a benefits decision – including ESA and DLA decisions – will no longer be allowed to lodge an appeal immediately.

Instead, there will be a mandatory revision or review stage, during which a different Department of Work and Pensions (DWP) decision maker will reconsider the evidence and, if necessary, send for more information, before deciding whether to change the original decision.

There will be no time limit on how long this process can take.

The requirement for a mandatory review/revision before proceeding with appeal applies to all DWP linked benefits.

The ludicrous claim from Government is that this “simplifies” the appeal process, and  ”the changes will improve customer service by encouraging people to submit additional evidence earlier in the process to help improve decision making.

“Resolving any disputes without the need for an appeal will also help ensure that people receive the right decision earlier in the process”

Say the DWP.

Call me a cynic, but I don’t believe this is the genuine reasoning behind clause 99 at all.

You will also have to appeal directly to HM Courts and Tribunal Services, this is known as “direct lodgement” as the DWP will no longer lodge the appeal on your behalf.

The DWP has agreed with the Tribunal Procedure Committee to introduce time limits to stipulate how long DWP has to respond to an individual appeal.  

The DWP is currently discussing what these time limits might be with the Tribunal Procedure Committee.

That is assuming, of course, that  people manage to circumnavigate the other  consequences of this legislation.

From 1 April 2013 you will not be able to get legal aid for First-tier Tribunal hearings.

Legal aid will still be available for appeals to the Upper Tribunal and higher courts.

See  appealing to the upper tribunal against a first tier tribunal decision here: www.disabilityrightsuk.org/legalaidact.htm for more information.

There are some serious implications and concerns about these changes.

Firstly, there is no set time limit for DWP to  undertake and complete the second revision.

Secondly, claimants are left with no income at all whilst they await the review, and until appeal.

The only choice available seems to be an application for Job Seekers Allowance. (JSA).

However, we know that people in situations  where they have been refused ESA have also been refused JSA, incredibly, on the grounds that they are unavailable for work, (and so do not meet the conditions that signing on entails) or they are unfit for work, because they are simply too ill to meet the conditions.

We know of people who have had their application for JSA refused because they attend hospital for treatment once a week and so they are “not available for work” at this time.

Furthermore, there is some anecdotal evidence of people being told by the DWP that in order to claim JSA, they must first close their original claim for ESA, since it isn’t possible to have two claims for two different benefits open at the same time.

DWP are also telling people that this means withdrawing their ESA appeal.

Another grave concern is that although most people on income related ESA are automatically passported  to maximum housing  and council tax benefit, from the time that the claim ends, (and for whatever reason), eligibility to housing benefit and council tax also ends.

However, I would urge people in this situation to contact the Housing Benefit office promptly to explain the situation – the DWP automatically contact the Council to tell them when someone’s eligibility for ESA has ended. It is always assumed that the person claiming has found work.

You can still claim for housing benefit and council tax benefit because you have a low income, but you will need bank statements to demonstrate this is true, and also, any other evidence you may have, such as your notification letter from the DWP, evidence of your tenancy and ID .

I am informed that when an appeal is pending, providing the housing benefit is informed of this, there should be some support towards rent and council tax.  However, this is going to place further strain and difficulty on people who are ill and disabled.

I can confirm that there was no risk analysis or risk register in respect of clause 99 of the Welfare Reform Bill.

I sent an FOI to DWP that asked about these issues, together with questioning that Clause 99 contains no reference to a time limit on ESA reconsiderations, although it makes them mandatory.

I asked :-

1) When is the intended implementation date?

2) As yet no decisions have been made regarding ESA payment levelsnduring the reconsideration period which could be indefinite. Can you give an assurance that this will be announced BEFORE implementation?

3) What data will you collect so that the effects of this
legislation can be accurately analysed subsequently?

4) Where are the risk assessment, impact analysis and risk register that show the effect this will have on claimants whose benefit payments could be affected indefinitely?

The response informed that the planned implementation date is April 2013, and:

“the DWP will conduct a  formal public consultation in line with the Government’s code of practice on consultation. This does not include publishing a risk register or conducting a risk analysis. This is because all aspects of the proposed changes are considered during the consultation process and in the impact assessment and equality impact assessments related to the changes”.

There are no plans to introduce a time limit, or to retain payments of basic rate ESA throughout the second revision and leading up to appeal.

The DWP published consultation document “Mandatory consideration of revision before appeal” that could be accessed via the DWP web site under the heading “Consultations”.

The consultation concerned issues relevant to the implementation and operation of the appeals reform provisions in the Welfare Reform Bill and invited comments on the draft regulations.

I worked on raising awareness regarding the issues that the Government’s draft raised, as well as prompting and garnering responses to the consultation.

I can also confirm that the Government response to the consultation did NOT take into account any of the concerns we raised collectively, in particular, regarding the lack of a time limit on the DWP to produce the mandatory review, and the withdrawal of basic rate ESA to those awaiting the review outcome .

So, the consultation was evidently a sham, nothing more than paying lip service to an increasingly perfunctory democratic process.

Given that the basic rate of ESA is exactly the same amount per week as JSA, we need to ask ourselves why the  Government have withdrawn the ESA safety net for those wanting to appeal DWP decisions that they are fit to work.

Why introduce another layer of DWP bureaucracy to the appeal process, and why is it the case that there is need for a second revision, if the first response is based on robust procedure and decision making, and yields accurate and fair outcomes?

Of course we know that the outcomes are neither fair, accurate, or based on robust decision making.

We know that some 40% of appeals for ESA were successful in 2011 and that this percentage rose to around 80% when claimants had representation at appeal.

That is pretty damning evidence against this Governments’ claims that the system is working, and that many disabled people “can work”.

It’s horrific and true that Clause 99 has been introduced to make appealing wrongful decisions that we are fit for work almost impossible.

Sick and disabled people are effectively being silenced by this Government, and the evidence of a brutal, de-humanising, undignified and grossly unfair system of “assessment” is being hidden.

More than 10,600 people have died because of the current system, and it is terrifying that our Government have failed to address this.

Instead, they have made the system even more brutal, de-humanising and unfair.

Clause 99 is simply an introduction of an obstructive and Kafkaesque bureaucracy to obscure the evidence of this.

This Government is oppressive, repressive and certainly bears all of the hallmark characteristics of authoritarianism.

We need to be pressuring for the introduction of a  time limit (on both legal and humanitarian grounds) as currently there is none.

I did enquire to see if DWP had any internal rules or guidelines yet regarding a time limit but so far they have not.

We also need to be pressuring for basic rate ESA to continue.

That was a major part of the consultation response, too.  

Meanwhile, legal challenges to this unfair and totally unacceptable addition to the Welfare Reform Bill will be going ahead.

Government’s response to the public consultation

The DWP published a short Mandatory consideration of revision before appeal – Government interim response to public consultation which stated that the Department did not propose to make any significant changes to the draft regulations included in the consultation document as a result of the comments received.

The Government’s final response to the consultation included the following:

  • There is to be no time limit for the completion of mandatory reconsideration of decisions.
  • No decision has yet been made with regard to paying ESA pending reconsideration but other benefits may be available to claimants where ESA has been disallowed.
  • It was confirmed that housing benefit and council tax benefit will not be included in the mandatory reconsideration process.
  • Where a person makes a late application for revision, the Department will be removing the requirement that an application for revision cannot be granted unless it has merit, and removing the regulation which requires that, in deciding whether an extension of time is reasonable, the decision maker cannot take into account the fact that the individual misunderstood the law or was ignorant that they could request reconsideration.

In considering a late application for revision, the decision maker will look at whether it is reasonable to grant the application for an extension of time, and what the circumstances were that meant that the application could not be made within the one month time limit.

The decision maker will still consider whether an any time revision can be made, or whether the decision should be superseded when considering a late application for revision as they do now.

Where a request for reconsideration is made out of time, and the decision maker refuses the application to revise the original decision, the effect of the draft regulations is that there can be no appeal as the Secretary of State must consider whether to revise the decision before an appeal can be made.


New ESA1 Form

GL24  and Appeal information.

From April, you will need to send your GL24  appeal form (DWP leaflet “if you think our decision is wrong” or a letter directly to HM Courts and Tribunal Services.

How to appeal by letter

. The appeal must contain:

  • the appellant’s name, address and National Insurance number
  • enough information to identify the decision under appeal (benefit claimed and date of decision);
  • the grounds for the appeal;
  • if late, the special reasons for lateness and/or why the appeal has a good chance of success;
  • the appellant’s signature (or the signature of a person with written authority to act on their behalf).

Further information will be made available on http://www.gov.uk and DWP

Further reading:-

ESA – Appeal statistics – before the MOJ spin!

Who is accountable and legally liable for the well-being of those deemed “fit for work”?

IMPORTANT: THE WOW PETITION

Sign the WOW petition – a call for a Cumulative Impact Assessment of all cuts and changes affecting sick & disabled people, their families and carers, and a free vote on repeal of the Welfare Reform Act.

It’s a call for an  immediate end to the Work Capability Assessment, as voted for by the British Medical Association.

Consultation between the Departments of Health & Education to improve support into work for sick & disabled people, and an end to forced work under threat of sanctions for people on disability benefits.

An Independent, Committee-Based Inquiry into Welfare Reform, covering but not limited to:

(1) Care home admission rises, daycare centres, access to education for people with learning difficulties, universal mental health treatments, Remploy closures;

(2) DWP media links, the ATOS contract, IT implementation of Universal Credit;

(3) Human rights abuses against disabled people, excess claimant deaths & the disregard of medical evidence in decision making by ATOS, DWP & the Tribunal Service.

Suspension of Human Rights by invoking a state of emergency recalls the actions of the Nazi Party after the Reichstag fire of 23rd February 1933 Picture: Robert Livingstone

Suspension of Human Rights by invoking a state of emergency recalls the actions of the Nazi Party after the Reichstag fire of 23rd February 1933 Picture: Robert Livingstone

 
Many thanks to Robert Livingstone for his outstanding art work.

Kitty Jones via Think Left

Comments
  • Maggie Hancock February 9, 2013 at 8:22 am

    Words Fail Me!!!
    We can all play a part endeavouring teary this Autocratic Unelected Coalition. If you think something small can’t make a difference you’ve never been in bed with a mosquito?

  • Pink Parrot February 9, 2013 at 10:00 am

    So…you’re refused ESA, because you’re classed as fit for work, but cant get JSA because you’re not fit for work (nor, presumably would a potential employer apprecate your dropping dead at the interview)…How can this possibly be legal?? Oh I was forgetting, we are living in Lord of the Flies Britain. Oh, just chuck us over a cliff and be done with it.

  • Elaine Hall February 9, 2013 at 12:20 pm

    There must be something in court human rights that protect us ?

  • Boadacia! February 9, 2013 at 12:54 pm

    They are certainly making sure all those with a brain remember them for the next 300 years and anyone voting Tory again, must have had a lobotomy! (Or sleeps with the Murdochs)

    I did wonder when they would attempt to stop the appeals. I believe they had the same policies in Auschwitz Berkenau, Bergen Belson, and Jasenovac. looks like the Nazties are back with a vengeance!

  • Purplewheels February 9, 2013 at 1:21 pm

    I had no idea that the right to appeal was so easily swept away by this government. Words fail me, they really do. (splutter, splutter) . What about the European Court of Human Rights? If people can use this to avoid deportation and have their prison sentences revoked/lowered, why can’t sick and disabled people use it? We are only fighting for our lives here!!

    • Beebs February 9, 2013 at 10:40 pm

      This is exactly what I predicted would happen. Protests will not help, sorry, but that’s the truth. Imagine the horrifying truth that this government is purposely engineering the culling of the sick, this butchery? Massive negative propaganda against those on welfare, and no media intervention on behalf of the chronically ill? Of course, they were going to make if even more difficult to over turn the fit for work decision. Unless, something dramatic, which will attract international media, this will not change.

  • Serenity February 9, 2013 at 2:32 pm

    Suspension of Human Rights by invoking a state of emergency recalls the actions of the Nazi Party after the Reichstag fire of 23rd February 1933 Picture: Robert Livingstone
    Remember too that it was the Nazi party who burned down the Reichstag, so they could use it as a false flag and scapegoat innocent parties.

  • jeffery davies February 9, 2013 at 2:55 pm

    ah that nazi party at it again better get my soap and towel as its whot they want us to do go quietly so that they can live free from our pointing our fingers humbugs as they are the social scroungers with their hands in the till never paying for nowt as we do can yo utell me why its called greed jeff3

  • myblackdog February 9, 2013 at 3:00 pm

    I have just been informed that I qualify for ESA, have been awaiting the decision since before Christmas. Unfortunately I have been placed in the WRAG, Work related activity, category. Amongst other problems I suffer with agrophobia, depression arthritis in my hands and a bad back. I have no social skills and when stressed tend to lash out violently. I gave evidence of this in my ESA50 form. I also said that I would be a danger to others if forced into a sitution or place I could not cope with. Which is basically anywhere outside my house, with anyone present that I do not know or trust.
    I wonder what kind of job they will have for me !!??
    BTW I was informed by phone. The lady said that I could ask for the decision to be looked at again and in the mean time I would still get my ESA. I guess that is all about to change then ?

  • Purplewheels February 9, 2013 at 3:07 pm

    I wonder if they will burn down 10 Downing Street?

  • Serenity February 9, 2013 at 3:30 pm

    No ! It will be the house of lords they burn as they are desperate too refurbish and modernise the place.

  • kittysjones February 9, 2013 at 4:21 pm

    Thank you very much for reblogging , many still don’t know about this, despite the campaigning we did at the time of the Consultation. I know Black Triangle worked very very hard to raise awareness of the issues at the time, back in February last year, and I also campaigned with the same aim. Despite a good response to the Government proposals, and collective unity in the criticism of those,at consultation stage, the Government nonetheless did not address our grave concerns in their response . Ask yourself what kind of Government would do that.

    Ask yourself what kind of Government refuses to listen to the evidence that their policies are killing the most vulnerable, accuses those who are horrified and concerned as “scaremongers” and refuses to even entertain the idea of an enquiry or investigation into those deaths that they certainly HAVE caused via their policies..

    John McDonnell has read this, and has said he is going to raise the issues in Parliament. Labour were unaware of the changes. Let’s not forget though, that we have an authoritarian government that is not big on accountability and transparency. One only need look at how the PIP legislation was not presented in a timely manner to the DWP Committee to see that details of their actions and intentions are being kept quiet. Even to the opposition.

    http://kittysjones.wordpress.com/2012/11/22/pip-and-the-tory-monologues/

    • JJ February 10, 2013 at 8:43 am

      Thank you so much for all this, Kitty. We have taken it up with the Scottish Parliament’s Welfare Reform Committee and are also working extremely hard to educate the medical profession on its implications as part of our campaign for the take-up of ESA Regulations 29 & 35 ‘Substantial Risk’ exemptions.

      In solidarity,

      John McArdle

  • Jupiter_Moonchild February 9, 2013 at 5:31 pm

    Personally, I think anyone who has been a member of the Bullingdon Club, even if it was just for one day, should automatically be ineligible to be a part of the Parliament system. Banned from the Houses of Commons altogether, for life, because they seriously have no idea what it’s like to be human. Anyone with a Bullingdon Club mindset, is NOT FIT FOR PURPOSE!

  • kittysjones February 9, 2013 at 5:36 pm

    Solidarity to my brothers and sisters here. This article, because it has been re-blogged and shared, has gone viral. We have collectively thwarted the Government’s intention to sneak this nasty piece of legislation in quietly . And Good on John McDonnell!

  • Qashie James February 9, 2013 at 5:53 pm

    This Govt’ment are to be held accountable for crimes against its people & the main person who is in charge of the DWP be charged with with crimes the sick / unemployed / disabled, and how Cameron declare war on these people who through no fault of their own are unemployed or sick or disabled & force these totaly unacceptable reforms and discriminate against these poor people and say if are in work these reforms don’t apply,

  • TRAVAIL February 9, 2013 at 6:34 pm

    Why are we tolerating this rabble why are we not bringing down this illegitimate Government NOW, people are starving, suffering, hurting, because of the terror that has come upon us like a woman in travail.

  • Thomas February 9, 2013 at 7:43 pm

    They certainly seem to want crime and riots, that’s for sure. Why should the poor pay to bail out the rich?

    • Boadacia! February 9, 2013 at 7:50 pm

      Because that has been the case for the whole of Britain’s history, and these morons in control aren’t going to allow us to live after they’ve gambled all our taxes away. Those working think they are safe, but will soon find out the wrath of the 4th Reich, as soon as they become sick or disabled.

  • GEOFF REYNOLDS February 9, 2013 at 9:40 pm

    Contrary to what most people see as an unassailable obstacle, i see it as an act of desperation of a coalition government who are slowly being driven into a corner!
    They are starting to panic because pressure is coming from all sides. They are like someone being chased and aware of being caught so are resorting to throwing things in the way of the pursuer to stifle their advance.
    What they are doing is digging a lot bigger hole, the more they dig, the sides start to cave in on them……
    Attempting clause 99, focuses the eyes of the judiciary upon them. There is a thin divide between what can be perceived as fair and what is seen to be both, immoral, and illegal.
    DWP are so desperate, they have crossed the line into unknown territory.
    Being in breach of so many statutes they are behaving like a man on a tightrope, hence, the only way is down…

  • JEFFREY February 10, 2013 at 1:39 am

    your right geoff i can see the public wakeing up all over the place none like america this place is next see the vids on Gerald Celente on youtube .. jeff lph..

  • Beebs February 10, 2013 at 9:27 am

    This is exactly what I predicted would happen. Protests will not help, sorry, but that’s the truth. Imagine the horrifying truth that this government is purposely engineering the culling of the sick, this butchery? Massive negative propaganda against those on welfare, and no media intervention on behalf of the chronically ill? Of course, they were going to make if even more difficult to over turn the fit for work decision. Unless, something dramatic, which will attract international media, this will not change.

  • Stephen February 11, 2013 at 9:35 am

    It makes me wonder what would happen if we just gave them what they wanted: i.e Every single disabled/sick person in this country signs on to JSA… Considering there aren’t actually any jobs in the first place, and the ‘official’ unemployment figure would jump to over 6 million, the country would go into meltdown. Atos would be sacked (there’d be no sick people to assess), DWP would be swamped and the government would be in a state of panic…

    Be careful what you wish for Mr C.A.Moron…

    • Qashie James February 11, 2013 at 11:57 am

      The answer from this Tory Govt’ment would the same as they did in 1990’s was to juggle the unemployment figures by sending unemployed on college courses & putting on incapacity benefits to make the figures look as unemployment has dropped? The Tories are very good given out false figures to cover their backsides full stop.

  • alf February 12, 2013 at 5:25 pm

    i have said this on a few sites, demonstrating outside the hoc will get you nowhere you need to take your demo to their backyard , a large delegation from each mps home town should demonstrate at the homes of mps until they get the message your not taking it any more, this lot sit in the hoc in the full knowledge they not going to help you while guarded by armed police,they brought it to your door give them the same back.

    • miss carole frost February 15, 2013 at 12:19 am

      this government are creating political genocide we are there victims there is a way to stop them via the HAGUE ..human rights act…protection of sick /disabled in europe and commonwealth ..these genocidal governments should be brought to trial.

  • Serenity February 15, 2013 at 10:17 am

    Notice how quickly the EU jumped in to say migrants must be paid benefits while 73 of our own nationals die a week , take it the EU is content with this situation.
    http://www.dailymail.co.uk/news/article-2043519/Now-EU-orders-Britain-Let-migrants-claim-benefits-soon-arrive-UK.html
    Our government have always been heartless ba*$a&d$, read and weep!
    http://www.bbc.co.uk/insideout/eastmidlands/series9/week_nine.shtml

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