Judges are rarely outspoken people, particularly when it comes to political issues. They studiously maintain their independence and political neutrality, restricting their judgements to matters of law. The same is true for those Judges that chair tribunal panels. Despite being forced to consider some truly appalling DWP decisions tribunal Judges rarely criticise the DWP, instead they focus on ensuring the correct decision is made in the end.
Given the strain on the tribunal service having to overturn obviously incorrect DWP decisions on a day to day basis must be beginning to rub tribunal Judges the wrong way. The latest statistics show a 47% increase in the number of appeals to the Social Security and Child Support Tribunal (SSCS) in the last quarter of 2016. The vast majority of these are for disability benefits Employment and Support Allowance (ESA) and Personal Independence Payment (PIP), which now account for 85% of all appeals handled by SSCS. Both PIP and ESA continue to have much higher overturn rates than other benefit appeals, at 65% and 68% respectively.
This is indicative of the high volume of poor decisions on both PIP and ESA entitlement. Not only are wrong decisions being made but they are often staggering in how wildly incorrect they can be. It is not uncommon for a Z2K client to be scored 0 points for either PIP or ESA then go on to receive the enhanced rate or be placed in the Support Group at appeal. This can’t of gone unnoticed by tribunal Judges who have to deal with such decisions every day.
Interestingly we are starting to see Judges take a much more critical attitude towards DWP decision making in their decision notices. In one recent case as Z2K client with Hepatitis C who suffering severe side effects from his medication was scored 0 points and found ineligible for PIP. In contrast the tribunal found him eligible for the Daily Living component at the enhanced rate and the Mobility component at the standard rate. In their decision notice the tribunal was unusually strident in their criticism:
The tribunal were obviously frustrated that all the same evidence which they had used to reach their decision was available to the DWP, but for reasons known only to themselves this evidence was discounted in favour of a flawed ATOS report. In our experience this is regular occurrence and the source of much bad DWP decision making. Where ATOS and the DWP ignore and discount claimant’s evidence the tribunal listens and evaluates it.
In another recent case a claimant with anorexia and other mental health issues who applied for ESA was scored 0 points and found fit for work. Her anorexia was so severe that her doctor described her current weight as life threatening. When the case got to appeal she was scored 30 points and placed in the Support Group. The tribunal decision notice gives a scathing indictment of the Work Capability Assessment report:
Given the fact that a BMI of less than 20 is generally considered unhealthy you would’ve of thought that a thorough assessment might have a little more to say about someone with a BMI of 12.4 than just describing them as a ‘thin’.
Similar cases appear before tribunal panels on a daily basis yet neither the DWP nor the assessment provider are never held to account for allowing such terrible decisions to be made (and failing to correct them at Mandatory Reconsideration). With the continued increase in disability benefit appeals putting pressure on the tribunal service radical changes need to be made to ensure such obviously wrong decisions are corrected before they get to appeal. Mandatory Reconsideration is meant to serve such a function but is obviously failing to do so at present. With evidence like this the tribunal service could play a role in making the case for improved decision making and we hope that they take up the opportunity.