No Equality of Arms for Disabled Benefit Claimants 25 Mar 2019

A great deal of criticism has been aimed at the Department for Work and Pensions (DWP) regarding how they assess whether a claimant is entitled to Employment & Support Allowance (ESA). ESA is a benefit designed for people who are incapable of work, rather than those who are capable of work who would instead claim Jobseekers Allowance (JSA).

To consider a claimant’s capability for work the DWP arrange an assessment with an Atos healthcare professional. It is the assessment itself as well as the reports prepared thereafter that have come under intense scrutiny.

This article explains the assessment process and failings of the DWP when coming to final decisions.

Atos health report

It is the decision-makers at the DWP who ultimately decide whether or not a claimant is capable of work. They decide this on the basis of the Atos report as well as the work capability questionnaire, which is completed by the claimant prior to the Atos assessment. As advisors in this field it has become apparent to us that decision-makers place a great deal of emphasis on the Atos report with little, if any, consideration given to the claimant’s work capability questionnaire. This leads to unlawful decisions being made which often when challenged are set aside by the Tribunal.

Unlawful decisions and Tribunals

Sadly, it appears decision-makers have their own targets in mind rather than the welfare of the individual concerned. There is little incentive for decision-makers to make lawful decisions: the decision-makers can make unlawful decisions risk-free knowing that in the worst-case scenario the Tribunal will set them aside. If a decision is set aside by the Tribunal the DWP will only be liable to pay the claimant the sum equivalent to what they would have been paid had a lawful decision been made in the first place. So, in practice the DWP can make an unlawful decision in the hope that a claimant will not bring an appeal to the Tribunal and without penalty. This not only applies to ESA decisions but also decisions made by the DWP in relation to Disability Living Allowance (DLA), which can be appealed in the same way to the Tribunal.

Legal aid funding

It does not help that legal aid funding for welfare benefits is now out of scope. Therefore, whereas previously claimants were more likely to challenge unlawful decisions they are less likely to do so now as they would have to tackle the quagmire of legislation and statutory instruments themselves or pay for the assistance of a legal advisor. As a result it will only be the brave claimants and those with capacity who will be in a position to bring an appeal to the Tribunal and the DWP are likely to get away with making a vast number of unlawful decisions.

To bring back equality and fairness legal aid welfare benefit advice needs to be brought back into scope. Secondly, the DWP need to be penalised for making unlawful decisions. If cost consequences and/or compensation payments are introduced, this may go some way in addressing this issue.

Unfortunately, as it stands, the DWP can make unlawful decisions risk-free. Further, claimants cannot seek advice and assistance under legal aid. Unless and until this is changed welfare benefit legal advisors are only able to assist clients on a private paying basis and clearly most welfare benefit clients cannot afford to pay for legal advice and assistance.

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