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The Appeals Process against the Sanctioning and Removal of State Benefits

Volume 579: debated on Monday 28 April 2014

The Humble Petition of Jerry Lonsdale, a Lay Advocate/McKenzie Friend residing in Merseyside, England,

Declares that, the Petitioner's client, Miss Deborah Davies residing in Merseyside, England, who was a Litigant in Person, found herself in severe hardship for a period of over two years following significant delays in the determination of her appeal(s) against sanctions placed upon her by the Department of Work and Pensions, thus, accumulating in the none receipt of state benefits for these said periods:-

1. 20/04/2012-03/05/2012

2. 27/04/2012-25/10/2012

3. 11/05/2012-08/11/2012

The Petitioner assisted Miss Davies throughout the whole of the appeals process, over two years, which reached its conclusion on the 6th day of March 2014, the concluding decision was the Appeal was allowed and the sanctions were wrongly applied.

The Petitioner asserts that those hardships faced by his client as well as the lack of Legal Aid assistance further compounded the difficulties in the way in which his client was able to pursue her such appeal to its conclusion,

The Petitioner recognises that there is no legal aid support for those people who wish to argue against a sanction or sanctions made against them, through the Tribunal Process. The Petitioner believes that it is difficult for someone to believe the equality of arms when a Litigant in Person is challenging the appealed decisions, alone, whereas in matters contained within this Petition are opposed or challenged by the respective Departments, notably the Department for Work and Pensions, those oppositions are progressed through the process by the use of Tax Payer funded Counsel or Representing Officers.

The Petitioner raises that, in this specific appeal, the Department for Work and Pensions failed on all occasions to attend any preliminary, or directional hearings, nor was there any Representing Officer present during the final hearing of the said appeal, despite the requests made by Her Gracious Majesties Courts and Tribunals Service, on six separate occasions, over a two-year period, the respective Department failed to communicate or respond to those requests made by HMCTS, and, failed to attend on all six reported occasions.

The Petitioner raises that, during a directional hearing on the 25 May 2013, the Tribunal Judge, Mr Cooke, requested that, the Secretary of State for Work and Pensions, the Rt. Honourable lain Duncan Smith MP do attend at the next timetabled hearing in order to explain the notable failings of his Department, again the Petitioner notes that his attendance did not happen, however, the respective Department simply applied to the Tribunal for a stay of proceedings,

The Petitioner asserts that from the 25 May 2013 until the conclusion of the appeal on the 6 March 2014 the Department for Work and Pensions applied on four separate occasions for a stay of proceedings, those stays were granted because of the Department's exclusive powers contained within Section 26 of the Social Security Act 1998 to stay, any and all appeals within that calendar years legislation, pending the outcome of a test case, the Petitioner asserts that, that was an abuse of power due to the Petitioner’s Clients Appeal which fell outside the parameters of the test case and was made significantly prior to that of the test case being made, and, that the test case was challenging the consequential years legislation, that year being 2012 and not 2011 as in the Petitioners Clients Appeal.

The Petitioner had applied for the Tribunal Court not to accept the application made for the stays applied for by the Department of Work and Pensions, however, until the start of this year, the Petitioners applications were not responded upon.

The Petitioner wholeheartedly asserts that, due to the significant delays in reaching the conclusion of his Client’s Appeal, Miss Deborah Davies suffered undue and severe hardship and was prevented from concluding her appeal matters in a timeframe that reduced those hardships faced. The detrimental effect further compounded Miss Deborah Davies’s place in society in that she was on many occasions destitute and in significant risk of losing her home due to the sanctions placed upon her by the Department of Work and Pensions.

The Petitioner therefore requests that the House of Commons Justice Committee investigates the procedures that are used within the English and Welsh Tribunal Courts, and that the House of Commons Justice Committee calls for the provision of independent legal assistance for those people who wish to appeal against Department of Work and Pensions Sanctions, The Petitioner also requests that the same committee urgently review the benefit appeal process in the view that delays and not attendance by Representing Officers does not further delay any of the appeal process similar to those aforementioned above.

The Petitioner further requests that the House of Commons Work and Pensions Committee investigates procedures and formulates fresh legislation for when people who are faced with applied Sanctions, do not face compounded and further hardships until the outcome of any applied appeals are concluded, in that, the person appealing should still be entitled to receive State assistance through a state benefit, including any required Housing Benefit.

The Petitioner finally requests that the House of Commons Work and Pensions Committee make available a direct compensation scheme open to those people who through no fault of their own are faced with those difficulties outlined within this Petition, specifically, those people significantly affected by the noted failing state benefit appeal processes, most notably, when an appeal is found in favour of the appellant, costs incurred by the appellant should be recoverable and compensation should be duly made available to the appellant.

And your petitioner, as in duty bound, will ever pray, &c.—[Presented by John Hemming, Official Report, 17 March 2014; Vol. 577, c. 3P.]

[P001334]

Observations from the Secretary of State for Work and Pensions, received 22 April 2014:

First, it is important that this issue is put in context both in terms of the policy on sanctions and the background against which the handling of the appeal took place.

The policy

Claimants have responsibilities they must meet in order to receive Jobseeker’s Allowance (JSA). The action they will undertake each week to improve their employability and look for work is discussed and agreed with their adviser and then set out within their Jobseeker’s Agreement (JSAg) or Claimant Commitment (CC). We work to ensure that all such mandatory requirements are reasonable given the claimant’s capability and circumstances and they should be personalised to their specific situation, taking into account any restrictions such as health conditions or caring responsibilities.

We do not want to sanction claimants, and that is why this Government removed any sanction targets. The Department’s objective is that sanctions should only be imposed where, without good reason, claimants have not taken reasonable action to give themselves the best possible prospects of getting a job. Where they do fail to comply they have the opportunity to explain why. Each case is reviewed on its own merits and all evidence is considered by a trained decision maker. Where the claimant had “good reason” no sanction will be applied and their benefit will not be stopped. Even where a sanction is applied claimants can ask for the decision to be reconsidered, and can appeal to an independent tribunal. Hardship payments are also available to guard against destitution and sanctioned claimants can apply for such payments which, depending on a claimant’s circumstances, can be as much as 80% of normal JSA payments.

The background

On 6 August 2012 Caitlin Reilly and Jamieson Wilson were granted permission by the High Court to apply for a Judicial Review. This was a challenge to the validity of the Jobseeker’s Allowance (Employment and Enterprise) Regulations 2011 (“the Regulations”) and two schemes made by the Secretary of State for Work and Pensions (“the Secretary of State”) purportedly under the powers conferred by the Regulations.

At this point any further action on Miss Davies’s case, together with all other cases which were deemed to be affected by the High Court’s decision, was halted. The judgment potentially affected the sanctions imposed on Miss Davies and so until the issue had been finally resolved the decision was taken to halt any further action on affected cases.

On 12 February 2013 the Court of Appeal gave its judgment. The Department issued further guidance on the handling of the affected cases. This advised that no action was to be taken on affected cases whilst the Department considered its position. In the event this involved introducing retrospective amending regulations and appealing to the Supreme Court. In October 2013 the Supreme Court gave its judgment upholding (in part) the Court of Appeal’s decision. Action on affected cases was subsequently taken with Miss Davies's appeal being heard in March 2014.

The Petitioners requests

Legal aid. It is the Government’s position that claimants do not require paid representation before a First-tier Tribunal. This is an informal, non-legalistic forum where a claimant can get a fair hearing and justice can be done without paid legal representation. Indeed appeals can succeed even where the appellant does not attend.

Appeals process and attendance of Presenting Officers. In 2013 three major changes were introduced for the way Department handles disputes and appeals: Mandatory Reconsideration of decisions; direct lodgement of appeals with HMCTS; specific time limits for how long DWP has to respond to appeals.

Mandatory Reconsideration is the process all claimants must go through before they can appeal against a benefit decision. It gives a decision maker the opportunity to explain the decision and the claimant a further opportunity to clarify his circumstances and provide new evidence. The aim is to resolve disputes as early as possible and reduce unnecessary demand on HMCTS by resolving more disputes internally. With direct lodgement it means that HMCTS receive appeals without delay and can request a response from the Department much sooner. From October this year the response must in law be provided within 28 days for Jobseeker's Allowance—although the Department is already working with that target.

The Department’s current policy on sending Presenting Officers to tribunal hearings is to do so when directed and, for example, in complex cases be these around the evidence or the law itself. (It did not send one in Miss Davies’s case because it was not aware of the hearing date.)

Payment pending the appeal being heard. It is the Department’s policy that, save for Employment Support Allowance, benefit is not paid whilst claimants await the hearing of their appeal. First, from a decision making perspective the decision is not right in law but, moreover, in law it is final until changed on appeal; and it could potentially result in a large overpayment of benefit which may not be recovered.

Compensation payments. The Department accepts that appeals must be processed without delay. DWP and HMCTS work closely together to ensure that the end to end process is as efficient and quick as possible. But also appeals can be allowed for reasons beyond the control of the decision maker, for example, the appellant produces new evidence at the hearing, the oral evidence given on the day persuades the tribunal, the tribunal takes a different view of the same evidence but not in a way which means that the decision maker’s view was unreasonable or plain wrong. That a tribunal allows an appeal does not mean that any delay must be deemed to have been wrong from the start.