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.

Screenshot 2017-12-05 at 7.25.10 PM

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.

Until the PIP squeaks

Even for a non-lawyer like myself, there is something deeply interesting about Henry Brooke’s arguments showing how the tribunals service are trying to cope with social security appeals.

His most recent comments focus on the issues the quality of evidence from the Department for Work and Pensions (DWP), especially in health related benefit decisions, for Personal Independence Payments (PIPs) and Disability Living Allowance (DLA) that PIP is replacing. Try and remember those acronyms- I’m going to be using them a lot!

From my time as a welfare rights worker (ending just as PIP was being brought in) I’ve seen the confusion and upset that poor decision making can have first hand and the successes and failures of individuals as they go through the tribunal system. What I want to try and spend a little bit of time contemplating is how we got here and what can be done to overcome this dire situation.

I believe Henry’s arguments can be boiled down to the concerns that decision makers often rely too heavily on medical evidence provided by the DWPs own contractors, that this contracted medical evidence is, itself, often of quite a low quality and that the loss of legal aid for most social security cases has made life much more difficult for applicants.

If you want my two pennies on why this seems to be happening, it is the DWPs approach that tries to turn decision making and then appeals work into a bulk job. Indeed, that’s something that really come through when you consider how PIP works in comparison to DLA.

I’m not about to argue that DLA was perfect or that there were no bad decisions; far from it. But there’s a real policy point here about what we want from disability benefits. If you’ve been reading my blog from the early posts you’ll know what I’m going to say next: reality is complicated.

In that post I looked at the ways complexity can come about in policy. Hopefully I got across that complexity can pop up either from law not being detailed enough (in which case ambiguities arise) or being too prescribed and not flexible enough to cope with people’s real circumstances. DLA was arguably the former, but PIP is most definitely the latter.

Who got what under DLA was one of those situations where the law itself could be summed up in a few sentences. But what that meant filled entire books, could change based on caselaw and often turned on very small facts in individual cases. Decision makers would have to consider each of these points when coming to a view and, if needed, would be required to justify this in light of the available evidence.

Coming on to the evidence, this was mostly the account provided by the applicant on their claim form and any other medical evidence that had been collected. Applicants could provide evidence alongside their claim, but the DWP often wrote to some of the people working with them (whether it was the GP, specialist, counsellor, etc) for further information. This usually included the set questionnaire which asked general questions when what was really needed was specific information. The final decision often relied very heavily on this third party information. Whenever I filled in a DLA form (and at times that was 4 a day) I would ask the person what their GP knew of their condition. If they said not much (for example they’d referred to a consultant years ago) I would always expect their claim to be knocked back in the first decision, whether or not I thought they had a good claim.

At least information from a GP was someone who could be aware of the condition. Under PIP the government has moved further towards carrying out their own assessments and this usually means a generalist health professional making very quick decisions.

What’s worse is that many of the assessments appear to be very generic and generalised, with it feeling like it is a tick box exercise rather than a robust assessment of someone’s specific needs.

Coming back to the underlying policy, PIP uses a points system with a range of different descriptors. So those few sentences for DLA are now 7 pages of finely gradiated areas. Each of these descriptors lead to points and points, eventually, mean prizes. So where once a decision maker had to weigh a few big areas together, based on the evidence they had to hand, now they have to look at descriptor after descriptor and make a decision on each individual area.

With the DWP contracted report in their hand, I’m not surprised that decision makers just follow this. It essentially advises them how to make a decision. Do we expect them to unpick a consultant’s circumlocutory response to the wrong question (DWP requests for information are often oblique and I don’t think anyone trains medical staff in how to reply to these questions) or look at what the nurse from Capita says about the exact descriptor?

Over time the reports from the DWPs contractor get very samey, but at least the answer the questions we are expecting decision makers to answer. So, as is the case with Employment and Support Allowance, what the contracted health professional says becomes more and more right, even when it is wrong. What’s more, do decision makers feel that the contracted report is “their” version of events, which has to be weighed against, but is somehow more virtuous or accurate than another health professional’s?

Henry is right to point to mandatory reconsiderations as a way to try and improve this. Too often it looks like these are there to provide a final check on truly ridiculous decisions and to ensure that the the DWP hasn’t totally erred before confirming the decision and seeing whether the applicant will formally appeal.

What really needs to happen is for the decision makers undertaking the mandatory reconsiderations to put themselves in the position of the judge and panel. Is it reasonable to weigh this evidence in this way? Is everything in the right place to ensure this evidence is verified and we know who it is from? Will the medically qualified panel member read something in this report that the original decision maker has not? Do we need more evidence to make the decision we have come to?

Making disability benefits a points game and then basing the points overwhelmingly on medical reports from your own contractor sounds like a recipe for poor decision making and plenty of appeals. Indeed, as Henry says, lots of appeals are coming through and the DWP is losing a high proportion of them.

At the moment it feels like this bad decision making has too low a risk for the DWP and high externalities for other people. Applicants are left in limbo for months as appeals wind their course, tribunals are full of basic decisions that can be made easily on paper in the applicant’s favour. The Courts and Tribunal Service may suffer, but is that a worry for the DWP? Whatever the underlying thinking of decision makers, the idea that political rhetoric is impacting on how we think about those claiming benefits means trying to make arguments about improving benefit processing to the public can be a sticky wicket.

So can these externalities be internalised? At the very least the DWP should be offsetting some of the costs of HMCTS whilst decision making is so poor. But should they be nudged further, maybe by a surcharge on each overturned decision- with a waiver for hard cases? Should successful applicants receive a generous rate of interest on any backpayments? Do DWP need to be forced to represent themselves in person at appeals, so that only those worth fighting for get through? Or is there something about the process, particularly about how medical evidence is compiled and then examined, that needs to be sorted out first?

The choke chain

It is a provocative title, but give me a few minutes and I’ll try and explain why I think there is a worrying trend in policy making.

Why am I comparing a government policy to to a particularly nasty type of canine control? Well, a choke chain gives a dog the sense of freedom, but the owner can at any time pull the chain and bring them to heel.

In the policy version of the choke chain, one part of government gives power to create a policy to another bit of government, but retains a power of oversight and strict, almost self-defeating, conditions. This allows them to argue that they have also passed responsibility to the other party, but I’m going to try and show that this isn’t really the case.

It is probably best to give you some examples early in this one, as without them it can sound pretty theoretical.

As part of their long-ranging (and failing) attempts to reduce the overall benefits bill, one of the measures put forward by DWP was the localisation of Council Tax Benefit. Under the old Council Tax Benefit scheme any household could receive a discount on their Council Tax up to 100% of the bill.  Under the replacement, each individual local authority has been given the ability to design its own Council Tax Support scheme.

Now, councils are often asking for powers to do things. The LGA’s unofficial motto is “Council’s could do this better, just give us the money”. And herein lies the rub, because the government didn’t fund Council Tax Support at the same rate as Council Tax Benefit. In the first year they took a 10% cut.

This meant local authorities had to not only design their own scheme, but that scheme had to cost less than the previous one. What’s more, central government insisted pensioners had to be protected and couldn’t lose one penny compared to the previous scheme.

This was a challenge every local authority had to grapple with. Who is the cut passed on to? Those looking for work? Those in work but on low incomes? Those unable to work due to an illness or disability? Councils could have chosen to put extra resources into Council Tax Support, but where would that money have come from?

At the end of it central government could step back, see the mess and pain the policies had caused and criticise local government for what they themselves have created. They stated they had given away policy making power, but the conditions that they set doomed it to failure (or at least increased hardship for somebody) from the start.

In the second example, I’ll need you to cast your mind all the way back to early 2017. The government at the time, in between Brexit court cases, was compiling a housing White Paper. Every so often there was a flutter of suggestion that policy on the green belt might change. Indeed, in November 2016 Sajid Javid –in front of assembled housebuilders– announced that the Birmingham local plan had been released from department imposed purgatory, even though it used a small amount of green belt land.

The government could have chosen to undertake a review of the greenbelt. It could have issued clear guidance that it would accept greenbelt reductions or replacement across the board, effectively (prepare yourself for the metaphor) unbuttoning the belt one notch. It could have set a clear test for the quality of greenbelt land, removing some of the lower quality scrubland and replacing it with decent land that is worth saving. The rumours persisted, and therefore we must presume so did the discussions in central government, right up until the white paper was published.

Now, I’ve tweeted recently on the green belt and I can understand it isn’t the topic where the most rational and reasonable debates take place. I can only imagine what it is like in central government, particularly between Conservative ministers who represent rural, semi-rural and suburban areas. Actually making a decision on changing the green belt would be brave, but those were the rumours.

The final answer in the white paper was boring and unhelpful: only councils can set their green belt boundaries and they can only change this if they have considered everything else. In essence this was a clarification of the existing policy.

But they added something else: woe betide any council that is considering even Birmingham-style green belt changes, they are unlikely to get the support they require from the Inspector and the Secretary of State unless they can show a lot of their working, catch them on a good day, have support of the local MPs and local planning groups, etc.

So councils have a duty to assess the housing need in their area and set what land should be used to meet it. But with only a very limited power to change greenbelt boundaries all they can do is push harder and harder on every other area (including land that is green field but not green belt), intensifying proposed development and increasing density until something pops. It can look like rearranging the deckchairs.

What central government has retained is the ability to sit in judgement of plans, perhaps occasionally letting the odd very hard case through, but can argue that failures to meet housing need are council’s fault, denying them one thing (a thorough, national review of the green belt) that could make a difference. They can play one council off against another whilst maintaining a holier than thou attitude to green belt use. Local authorities have to make the hard decisions and central government is there to chime in with any criticism for a scheme they have effectively implemented. When councils don’t have enough land for development, this will allow the planning inspectors and Secretary of State to open the floodgates for all “sustainable” development short of green belt use.

That said, and as a postscript to this example, with so many councils now looking at a higher housing need, we could see this issue re-emerging on a national scale, even in conservative areas.

The final example is the most up to date and one of the most fundamental failures of central government to live up to their responsibility. Court after court after court have told the government it needs a clear plan on improving the air we breathe.

With a self imposed election looming central government tried to get out of publishing their detailed plans but eventually had to give something.

Why is this so hard? Well, the only policy many people think will make a difference on congested roads is limiting or charging for vehicle use in the worst areas. So it may be the only option in policy terms, but it is ironically toxic to political popularity. Telling people they cannot drive their cars where they want (or, more accurately cannot drive their cars without being charged for it) is understood politically to be almost anathema to a wide variety of voters.

So what did central government do? Instead of biting the bullet itself it demanded councils come up with a plan, but made it clear that banning or charging for private cars (in particular diesel cars) are the very last thing they want to see. They’ve said they will only accept that if they can be convinced there are no other solutions.

In essence, the government is trying to both insist on the only practicable policy but also prevent it from taking place. They certainly want to be able to criticise anyone brave enough to make a decision that could make a difference. All because they don’t want to be the people to upset car users. This is, I predict, going to lead to more court cases (which even the government will expect to lose), more time wasted playing pass the parcel and more damage to the environment.

Each of these policies on their own are interesting. But as a whole they add up to something concerning. Setting other people up to fail is one thing, and should probably be expected in politics, but the consequences of these policies are, respectively, increased poverty, inadequate housing and environmental destruction.

Pretending to give away power but setting significant and insurmountable conditions, and retaining oversight to stop those brave enough to try and call their bluff, means the most likely outcome is failure. Benefit cuts will be passed on to hard pressed residents, who will then rely on handouts (because reality is complicated), councils will shy away from changes to the green belt , meaning homes either won’t be built or already densely packed areas will become more so, more time will be wasted going backwards and forwards trying to get decent environmental policies that may make a difference.

Right now I would be highly cautious of government ministers bearing gifts. This even goes so far as to be a little cautious of devolution, which to be fair doesn’t usually come with such significant constraints as the policies I have been talking about.

If government is serious about passing policy making power to other groups it also has to be serious about giving them the free hand to make the changes that are required. If it only wants people to implement its decisions (benefit cuts, maintenance of the green belt, limited action on climate change) then it should be honest and open about it.