Presenting and incorrect?

Would you like a new job? The hours might be difficult, but you will get to meet judges, doctors and people with experiences of disabilities. You might have to get used to severe, crushing blows and knocks in your confidence for things that are not your fault. You may have to get used to judges, doctors and people with experience of disabilities justifiably haranguing you for the actions of others.

A recent parliamentary question has confirmed that the Department for Work and Pensions are recruiting presenting officers- those long fabled people who will turn up at tribunals to represent the decision making power of the Secretary of State. When I was a welfare rights worker the chance of a presenting officer turning up to appeal was somewhere lower than zero. Indeed, the answer confirms that not one presenting officer was recruited between 2012 and 2017, with more than 200 now recruited in 2017.

Now, if you’ve read my blog you’ll know I’ve shown a strong interest in this process and have suggested that the DWP need to be fronting up for appeals- so in a very limited way I support this change. What I want to look at this time is what impact it will have and whether the presenting officers will be allowed the kind of changes that will allow a real impact on decision making across the health related benefits.

But what will the role of presenting officers be? They’re very lucky (in one way) in that their role is government by a statutory instrument (a piece of secondary legislation) setting out their duties (and everyone else’s) in an appeal. There’s also, for universal credit and personal independence payments, a whole chapter on the decision makers guide which goes into great detail about what they should be doing. Let’s try and precis them!

Presenting officers aren’t lawyers- but they don’t necessarily need to be. What they need to have is a very good understanding of the benefit system and the operation of the tribunal. Their job is to:

  1. Check that the original decision was right in light of the evidence in hand. If it isn’t (and do remember than two thirds of ESA decisions are overturned at Tribunal) then they can and should change the decision- at the very least sending it back to the decision makers. For universal credit and personal independence payments the decision makers guide is very clear that the presenting officer must satisfy themselves that the decision is right before they attend the appeal.
  2. Attend the appeal and put explain the Secretary of State’s decision, including how the evidence has been weighed. The presenting officer can ask questions of other people present (including the claimant) but these shouldn’t be combative and should be focused on understanding any disagreement in the written submissions. In benefit appeals people aren’t there to win or lose, but to find the truth through collaboration. I know that sounds otherworldly, but it is an important point- if you do a victory dance at the end of an tribunal you are likely to be rebuked pretty quickly!
  3. After the appeal- reflect, consider and think on what happened and what could have been done better. In a way, this is simply number 1 restated- the next time they have a similar case they have to ask themselves if they should be taking it at all to appeal.

Now, anyone who has spent any time working with benefit claimants will know that there is often a gap between what the legislation and guidance says and what actually happens on the ground. If you’ve ever had to sit there (usually on the phone) whilst a decision maker pulls up the guidance (trying to talk legislation on the phone is often pointless), turns to the page you are talking about, looks at the paragraph you are talking to, reads it through, tries to justify their existing argument then grudgingly accepts you are correct will know that what happens on paper and in real life are two different things.

So what am I worried about? Primarily, that 1 and 3 above won’t happen. The presenting officers will not use their powers to spot cases that don’t stand a chance of winning, will go to the appeal, the decision will be overturned by the tribunal and they won’t learn anything about why this was. This is perhaps unfair, or even cynical. Perhaps I should give it a chance before I predict doom?

Well, in any case it won’t be long. For ESA alone the number of appeals attended by a presenting officer has shot up since April 2017. The number of attendances between April and December last year is nearly 10 times the total number for the year before, which we know again due to a parliamentary question! Perhaps in their early months presenting officers are there to comprehend and understand, but you’d hope that pretty soon they will get to grips with which cases have a chance at having the decision upheld and which should be overturned quickly now to save the bother of a failed appeal.

As they get better at this you would hope that the original decision makers understand which decisions are unlikely to get past the presenting officers (ie. those people who have to try and make the case) and start amending their decisions. You’d also hope that presenting officers would get better at spotting marginal cases (where their presence may make a difference) and start attending these- rather than being sent on fools errands either by decision makers or even worse an algorithm telling them which to attend.

If this change to the system worked perfectly it could have a huge impact. When I look at the stats in the next few months I’ll be looking for some big changes. If decision makers know they have to make fully reasoned cases then a lower proportion may be turned down in the first place, followed by a lower proportion of appeal cases making it to the tribunal (as they have been sent back by presenting officers) and finally a higher proportion of decisions being upheld (ie. staying the same) rather than overturned as the unwinnable cases have been weeded out and presenting officers have been able to argue the case in some cases successfully.

If the system doesn’t work perfectly the presenting officers will be receiving payment for turning up and being told off, which isn’t fair on them or anybody else. I’ll be looking through the stats as soon as they come out, and so should you.

What I’d prefer to see, instead of a separating out decision making into different sections is decision makers having responsibility for the whole process, holding onto a case and having to present it at appeal. As I’ve spoken about before, the process of decision making is becoming incredibly mechanistic. Indeed, some good soul has been able to winkle out of the DWP their set lines for appeals. Yes, we all knew they existed, but how can individual people with their individual health needs be reduced to set words? If decision makers actually saw what happened in cases that go to appeal they may think twice before making a sloppy decision a second time.

But, as a final point, all of this is essentially moot because of one thing. Mandatory reconsideration still means that a huge proportion of people being turned down for health related benefits are not formally appealing them. Whilst this is the case we won’t know if these claimants are genuinely entitled to benefit. I have no reason to believe those decisions aren’t as second rate as those getting to appeal.

So let’s hope the presenting officers make a big difference, far bigger than their relatively small numbers may show. But that will only happen if they are empowered to act and able to get the department to understand how obvious the failures of decision making are to tribunals and independent observers.

WRAGs or riches

What do you mean you don’t check the government’s statistical publication lists every few days? Well, you should be glad I do!

I was having a quick check through the most recent quarterly benefit summary release (as you do) and was reminded of an odd fact. Currently (well, August 2017- the closest we have to currently), about two thirds of people who receive Employment and Support Allowance (ESA) are in what is known as the support group, with 17% in the work related activity group (WRAG). I’m going to argue that this is pretty telling about decision making- I’ll explain why in a minute, but perhaps first I should remind everyone what I’m talking about.

[Skip to “Now, here” if you’re already more aware of ESA than you’d like to be]

Employment and Support Allowance tries to separate out claimants into three groups based on their symptoms:

  1. Those who are fit for work- who need to go back to work or claim another benefit like jobseekers allowance.
  2. Those who are not fit for work, but with some help may be able to move in that direction. This is the ‘work related activity group’.
  3. Those who are not fit for work and also cannot undertake activities to move them closer to being able to work. This is the ‘support group’.

There are different rates of payment between the bottom two groups, whereas the only option to stay on ESA for first time claimants put in the first group is an appeal, which whilst it is going through the motions comes with a rate of pay equal to jobseeker’s allowance.

People who made a new claim, or people who had made an appeal and were waiting for it to be heard were bundled together into something called the ‘assessment phase’, a sort of limbo where they waited for an outcome.

ESA has changed significantly, mostly via a series of incremental tweaks, in the 10 years it has been up and running, but these points have stayed the same.

Now, here (to me at least) is the interesting bit. When the government originally created ESA it thought that the number of claimants in the work related activity would be higher than the number in the support group. I’ll put that another way, the work related activity group was going to be the main group, with the support group being just for the smaller number who were too unwell to engage in classes and tutoring to get people closer to the labour market. The focus of policy making, the thing that made ESA different from the previous sickness benefits was this group.

Here’s what the explanatory memorandum to the legislation said:

Screenshot 2018-03-15 at 2.57.57 PM

I’ve had a little play on stat-xplore to show what actually happened- here are my sheets, which is all derived from the stat-xplore info.

Screenshot 2018-03-18 at 1.57.50 PM

Reliable information started coming out from early 2010. To begin with there were more people in the work related activity group, but the numbers placed into the support group started soaring through 2011 all the way up to late 2015 where, potentially as a result of the number of migrations moving to a trickle, it has now plateaued. The numbers in the work related activity group rise at first, but have been on a slight downward trend since the middle of 2013.

The number in the support group passed the number in the work related activity group in February 2013 and have never looked back.

If you look at the total caseload stacked together we can see that the growth of the support group really underpins the whole of the benefit:

Screenshot 2018-03-18 at 1.59.38 PM

This isn’t what it was supposed to look like. But what can be the cause of it?

This issue was actually flagged in the Year 5 independent review of the benefit from Dr Paul Litchfield. He was particularly interested in the number of young people coming forward with very high mental health needs, a situation he accepts ESA results will only reflect rather than necessarily being able to solve.

Following his report the government looked at the data. Their view was that a big part of the issue related to the widening of who was included in the support group. By incremental changes the scope of the support group has widened, but it still does not cover the vast majority of illnesses and disabilities people have when they claim a benefit.

A second issue pointed to by the government was due to the delays in assessments. The government got into a hole where they couldn’t process claims fast enough (this is an understatement), leading to claimants being in the assessment phase for far longer than originally planned. According to the government, many claims were closed in this period (ie. the people got better or stopped sending in sicknotes) which they believed was skewed towards claimantrs who would have failed the ESA. I don’t know on what evidential basis they have decided this- almost all welfare rights professionals I know have seen claimants with very strong cases having claims closed on them.

Finally and in connection with the delays, the government claimed that to clear the backlog they were making decisions on paper in some cases. Where this happened, the only things they could decide was to put someone in the support group or to let their claim continue on to a full assessment. The argument was that this inflates the proportional size of the support group whilst those who will eventually end up in the work related activity group linger in the assessment phase.

I’m not saying that any of these responses is inaccurate, but they don’t seem to capture the issue fully. The second and third issues relate to delays in assessment and we are not quite in the same place with this anymore. So if the delays and paper processing aren’t happening at the same rate, why are double the number of assessments leading to the support group than to the work related activity group- a circumstance the DWP’s own explanatory notes state is stabilising?

There are other possible explanations and I’m not surprised that the government aren’t dwelling on them. The first possibility is that the scheme was, or has become, badly designed for the purpose it was intending. I’ll put that another way- whilst the intention was for a majority of people to end up in the work related activity group, the actual scheme didn’t achieve this. Many claimants may have been more afflicted than was predicted- people had symptoms that placed them in the support group. Alternatively, and especially with the medical descriptors (the points-based test most claimants go through to quality for ESA) becoming harder over time, claimants who were originally envisaged to qualify for the benefit are turned down.

Another set of explanations relate to the application of the medical test by health care professionals and decision makers. We know that the majority of people who take their claim to appeal are successful. We know there are serious, long-lasting concerns about decision making and the medical assessments. I’d argue that a significant proportion of people turned down for ESA would, on balance (perhaps once they’ve sat down with a welf to talk it through), argue that they should be in the work related activity group. So is decision making part of the reason people aren’t getting into the work related activity group in the numbers originally predicted?

Add into this changes to manual reconsiderations, stopping many people from receiving payments if they apply again following a refusal and paying those in the work related activity group the same as jobseekers allowance and you start to see something that looks a lot like a squeeze on exactly the groups of people who might eventually end up in the work related activity group. With regular(ish) reviews of claims for people in the work related activity group (and less often in the support group) placement in this group looks difficult to achieve and then precarious once it is achieved, even if the claimant’s symptoms are unchanged.

Finally, the government did change the rules for people receiving the contribution based ESA, in order to limit the amount of time they could claim it. I thought this might be part of the issue but when you look at it, the numbers receiving contribution based ESA have been fairly stable over a long period (this doesn’t mean it is the same people claiming) so it’s not quite clear if this is a factor.

Maybe there’s another way to put all this. The original intention of ESA was to figure out who could, with support, move more towards work and provide them with extra help. In one sense it doesn’t matter whether this is a majority of claimants or not. But what does matter is whether or not people receive support relevant to their needs.

At the start of the post I referred to the difference between the intention and reality as “telling”. What I mean is it looks exactly like restricted and temporary access to the work related activity group seems to be the outcome the system as a whole produces. Having people with health conditions claim jobseekers allowance with all the expectations that entails isn’t necessarily helpful. Similarly, putting people on a carousel of assessment, reassessment and appeals isn’t helpful either.

So a system operating (by design or implementation) to exclude marginal cases means a significant skew towards those cases where there is no argument. A system intended to help people get closer to employment doesn’t work if it excludes precisely those people who would benefit most. I’d argue that’s exactly what we are seeing and that these statistics are just further evidence that something has gone very wrong with ESA.

Numbers and numbness

Has everyone seen the video of the man who uses excel to paint? Well, I can’t say I’m anywhere near as interesting as him, but I can usually hold down a spreadsheet and extract some valuable information from it.

The heart wrenching testimony from the work and pensions committee have shown, once again, that the systems looking into what benefits people with health issues receive are not working properly.

As regular readers will know, I have already shared my two pennies on one of the reasons I think employment and support allowance (ESA) and personal independence payments (PIP) appeals are going through the roof and why mandatory reconsiderations (the new-ish process the DWP is forcing on claimants) are not helpful. I’m not alone in wanting to look at this, indeed, the work and pensions committee have an ongoing investigation into PIP and ESA assessments, where that recent testimony came from. As part of this the DWP has given them some supporting statistics, which are a treasure trove of interesting information.

That said, like most treasure you do have to do some digging. I’m always very interested in looking at government responses to select committees (or, for many local authorities, scrutiny committees). If you know what to look for you can often find what information the authors are trying very, very hard to avoid saying, whilst putting the data out into the open.

And so it is with the data tables the DWP have released, alongside an explanatory document that explains far more than it is trying to let on. That said, if you read just the explanatory document you wouldn’t see much of interest. But when you actually look in detail, you can see what they are hoping you will miss.

Before we get into the data proper, let’s just take a quick step back and remind ourselves what mandatory reconsiderations are. Introduced in 2013, this was an additional step where a benefit claimant thought a decision was wrong. Instead of just being able to appeal straight away, they had to ask for the DWP to look again at the decision and then only once this was complete could they, separately, appeal against the decision.

This was controversial as it was adding another layer of decision making, expecting claimants to understand the process and to push forward through a difficult and complicated appeals process if they believed the decision was wrong. This is even more difficult when you think that simultaneous cuts to legal aid mean fewer and fewer people can be appropriately represented through the appeals process.

What I find odd about the explanatory document is that it consistently puts each statistic into the context of a larger cohort. So we don’t see just the outcomes from mandatory reconsiderations, we see that within the context of all claimants.

Screenshot 2017-12-05 at 7.23.42 PM

Similarly, we don’t see just the proportion of PIP decisions that are overturned at the first tier tribunal, we see that within the context of all mandatory reconsideration decisions.

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This makes issues appear smaller than they are. Sure, lots of people are asking for mandatory reconsiderations and then appealing, but they want you to look at it in the context of the whole benefit, where other people are not asking for a reconsideration and then appealing. Surely those people are happy with their decision?

Coming from that second graph, the second odd thing I notice is the insistence that there is a small (2 percentage points) gap between different health conditions. The suggestion seems to be that conditions are treated quite similarly and have similar results.

Well, both those oddities can be rectified by having a look at the actual data. As I suggested at the start of the post, I have held the statistics down and given them a bit of a thrashing out, which is available here. The graphs that follow all come from my tables, which are themselves simply rearrangements of the DWP statistics.

So, when we look at the actual data of decision making we can see some interesting results. Firstly, and coming straight from the government’s data, we can see that a whole lot of people stop after the mandatory reconsideration stage. Nearly 450,000 claims had PIP decisions upheld by mandatory reconsideration between 2013 and July 2017. All of those could have applied for an appeal if they still disagreed, yet only 126,000 have had appeals heard. Similarly, 448,000 ESA claims were upheld at mandatory reconsideration, but only 152,700 cases were heard.

What does this mean?  I suspect, particularly for the more recent decisions, appeals have been made but not yet heard; the tribunal service have a big backlog for obvious reasons. It also means mandatory reconsideration has been an exceptionally powerful tool for stopping people from appealing. It’s hard to tell why that is, perhaps some genuinely accepted the DWPs version of events? But perhaps along with this, people are giving up, or are unable to cope with the stress of further appeals or blindly accept what the DWP is telling them or, worst of all, think that the mandatory reconsideration was the appeal. Further research is most definitely required, because I don’t think society can see this as a win until we know what is really going on.

But more than that, when you look at the overall appeal outcomes, these statistics start to mirror those of the tribunal service itself. Wade through the data and this shows the DWP confirming that 62% of their PIP decisions are overturned on appeal. For ESA it is nearly 45% between 2013 and July 2017.

The ESA result sounds better, until you see that the proportion overturned has been going up each year since 2013, with the rate so far this year matching 2016/17s high point of 61%.

Screenshot 2017-12-05 at 7.51.15 PM

So whilst mandatory reconsiderations may be preventing many people from appealing, those that do appeal are winning their cases in droves. It’s just like Sir Henry Brooke said a few weeks ago.

Coming onto the second oddity from the explanatory document, this idea that diseases are treated approximately the same. That looks like it is a result of the contextualising data rather than the actual facts. Here is the chart for different primary health conditions for PIP:
Screenshot 2017-12-05 at 7.57.20 PM

In PIP the highest areas of tribunal overturns are for immune diseases (100% of the 100 cases over those years), visual disease (77% overturns) and neurological disease (70%). The lowest is metabolic disease, with just (just!) 50% of the cases being overturned at tribunal.

And here it is for ESA:Screenshot 2017-12-05 at 7.59.25 PM

For ESA the highest proportion of successful appeals was in cases with ear and mastoid processes (60% of the admittedly small 500 cases over the period) with a wide selection of health problems getting 50% of claimants being successful in their appeals. There are so many at 50% I had to check I wasn’t using the same data twice! The lowest is childbirth and related issues with no successful cases recorded. Due to the way the DWP has collated these figures (to the nearest 100) this means a small proportion of cases could have been successful. Injury and poisoning, one of the biggest groups of people appealing decisions,  has the next highest failure rate, with only (only!) 36% being successful at appeal.

Overall, if you aren’t aware of the DWPs terrible record at appeals you should be shocked by how high each and every one of these numbers is. The DWP is losing cases by the bucketload, which asks serious questions about their competence and about the process of mandatory reconsideration.

What’s more, and however they are trying to argue it, it is losing cases for some primary health conditions more than it is others, so they should be looking at this to work out what they can do to make better decisions the first (or second) time around.  Finally, especially on ESA, it is losing a higher proportion of cases each year, indicating something is very wrong with its decision making.

I think the DWP is trying to say that the focus from people like myself is on a small proportion of their decisions. Those of us on the outside only think about appeal decisions and not about those people who accepted the decision, either when it was first made or after the mandatory reconsideration. But that misses the point: we don’t know why people didn’t appeal. Some might have been happy with the decision, but are others simply unable to get through the process themselves? Many of the decisions (particularly the refusals) could have been just as bad as those getting to appeal, but we simply don’t know. The heartfelt responses the work and pensions committee have received in recent weeks point to the fact that people feel let down and confused about the whole process.

This is a key issue with mandatory reconsiderations- it has added another layer in decision making. A layer suggestive of a tickbox exercise that seems to put droves of people off appealing further, even if they may well have a case on appeal. It is another piece of paper to fill in, another time you have to explain your health condition to a stranger, placing yourself emotionally on the line and another place where -as does happen- there is a chance the award can go down as well as up.

I think we can all agree mandatory reconsideration isn’t working. I don’t want to put extra work on the tribunals service, but I can’t see how the DWP can justify maintaining the current mandatory reconsideration process when their appeal outcomes are so bad. The DWP used to always reconsider their decisions after an appeal in any case, so we have to ask why this obstructive layer is allowed to remain.


PS I’m aware that the charts have some of the primary health conditions names chopped down. It is basically impossible to do it any other way when you have such big names for conditions. All of the full condition names are available on the google document containing the charts and sheets for your persual.