Ministers always assure critics of the Department for Work and Pensions (DWP) that their appeal process is fair. After all, the press is full of stories of people who have been declared fit for work even though their disability plainly makes it impossible for them. Given the quality of decision-making, there needs to be a thorough system in place for rejected applicants to appeal the ruling.
But scratch beneath the surface of the appeals system and you find a mess of confusing and inconsistent legal practice, which stack the odds in the department's favour.
A new appeal process was introduced in 2013 and was beset by problems from the start. Now a report by the Social Security Advisory Committee (SSAC) highlights the Kafkaesque deficiencies of the system.
Before a claimant can take an appeal to a tribunal they must first ask for the decision to be reconsidered by the DWP – known as a ‘mandatory reconsideration’ (MR). This process is a terrible mess. And the DWP has known about it for nearly 18 months without doing anything to change it.
An internal DWP memo from March 2015 outlines some of the key concerns within the department about the system.
The DWP is failing to action requests for reconsiderations because claimants use the wrong language.
They might ask for their decision to be looked at again or reviewed but because they don't use the specific words 'mandatory reconsideration' the request is often discarded
Back in 2015, the DWP told staff:
"It is not necessary for the customer to use those exact words in order to raise a dispute. If a customer advises us they disagree with a decision, want us to look at it again, ask for a review, ask to appeal etc. the request should be treated as a request for an MR whether it is made in writing or verbally."
But the SSAC report says that respondents making a request for an appeal over the telephone are still facing problems:
"If the correct language has not been used by claimants, staff have sometimes organised for ‘reviews’, or otherwise handled the dispute in a way that does not progress appeal rights."
DWP staff are trying to discourage claimants from appealing.
The DWP memo said:
"Customers must be given the correct advice when contacting the department to dispute a decision. If a customer thinks a decision is wrong we must follow the process outlined in this memo."
But according to evidence submitted to the SSAC by Parkinson's UK, DWP staff are still trying to deter claimants:
"We have received several examples from local staff of people with Parkinson's who were actively discouraged from making mandatory reconsideration requests, or in some cases, refused altogether."
Another respondent said:
"One particular problem I have started hearing again and again is that people were told to phone the DWP helpline and were told by helpline staff that there was no point in putting in an MR request because, without additional medical evidence, the decision would definitely not be overturned."
The DWP is not providing claimants with the documents needed to advance an appeal.
In order to apply to a tribunal, claimants must have a Mandatory Reconsideration Notice. Some people report never receiving it and others say it was not clearly labelled. This is important because if the letter is not properly named the tribunal service can't accept the application for an appeal.
The 2015 memo states that a Mandatory Reconsideration Notice should be sent in all cases where a decision has been made.
The SSAC report raises several concerns about this document. Any mention of a right to appeal is usually buried in the back of the letter and there is often confusion as to what the document actually is. It's a problem which also worries the child poverty organisation CPAG. Its rights and advice manager, Ros White, said:
"One of the big issues is that the DWP doesn't send a Mandatory Reconsideration Notice and instead just sends a standard letter out which the Tribunals Service won't accept. This leads to us having to make lots of calls to try to sort it out. But imagine if the claimant didn't have an adviser – they would be really up against it."
There are many other issues covered in the report which aren't included in the memo, such as access to medical reports. The reports play a major part in the decision making process for claimants of Employment and Support Allowance (ESA). But the committee says that claimants don't usually see the reports until reaching a tribunal. This naturally puts them at a disadvantage. Welfare advisers have long complained about this tactic, with many demanding the report is provided to the claimant at the same time as the DWP.
When Freedom of Information campaigner John Slater contacted the General Medical Council (GMC) and the Health and Care Professions Council (HCPC) to ask them to clarify the guidance on this issue, both said their guidelines insist reports should be provided to claimants in all but exceptional circumstances. This is an extract from the response by the HCPC:
"Our guidance also states that service users have a right by law to access information about them. However there may be circumstances where sharing this information with the service user would risk causing them significant harm or distress; in which case there may be a justification in the service user’s best interest not to do so. These would be exceptional circumstances, however, and not the normal expectation."
It appears that exceptional circumstances have become the norm.
Since 2013, there has been a big drop in the number of benefit appeals heard by a tribunal. The DWP might suggest this is because they are now making better decisions. For their critics, it is a sign they've made the process so confusing people are just giving up. Perhaps this was the intention all along. Or maybe it's just down to incompetence. After all, many of the DWP's other welfare reforms have also been plagued by problems. But with legal aid cut and advice centres closing, the failures of the appeal process is leaving many people with nowhere else to turn.
A DWP spokesperson said:
"We introduced Mandatory Reconsideration to ensure the benefit system remains fair by giving people the opportunity to present new evidence and have their case reviewed.
"We are already working on improvements to our systems. We will consider the findings of this report carefully and respond in due course."
Natalie Bloomer is a journalist at Politics.co.uk
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners
