Comment :
Getting Benefit Decisions Right First Time
(July 2006)
Bernard Pidcock, manager of Blyth Valley Citizens Advice Bureau, and Professor Hugh Brayne, a legally qualified panel member in the Appeals Service were members of the now-abolished North East Regional Legal Services Committee (NERLSC). It set up a project to see if it could help decision-makers at the Department for Work and Pensions (DWP) to make the right decision first time. Views expressed in this article are personal to the authors.
This article first appeared in the June 2006 Journal of the Legal Action Group, and we have reproduced it by kind permission of the authors and the Legal Action Group.
Introduction
The Access to Justice Act 1999 created a Community Legal Service (CLS) intended not just to throw resources at disputes, but to promote the elimination of disputes. This is one of the three priorities of the latest five-year strategy for the CLS.[1]
In this article, we will explain the problem of payment for advice on avoidable disability living allowance (DLA) appeals, as NERLSC saw it, and the committee's attempts to address it. We talk about DLA but the same issues affect attendance allowance (AA) claims.
The problems with DLA decisions
Only 55 per cent of DLA and AA decisions are considered by the DWP's auditing as accurate,[2] and 54 per cent of DLA appeals succeed at tribunal.[3] According to DWP statistics in August 2004, 13 per cent of new DLA awards required an appeal.[4]
Many claimants are not getting their correct entitlement immediately, some possibly never. Presumably some claimants are getting DLA when they are not entitled to it – but they do not appeal, so numbers are speculative.
Many factors account for this unsatisfactory record. According to Appeals Service research,[5] the reasons for a successful appeal are:
- New evidence (72 per cent);
- Credible evidence wrongly rejected (22 per cent);
- Improper weighting of evidence (13 per cent);
- Reaching a different conclusion on the evidence (42 per cent) or on the medical evidence (25 per cent);
- The medical evidence underestimated the disability (27 per cent);
- The decision was simply wrong (7 percent).
More than one reason could apply in any case so the figures exceed 100 per cent.
Many errors are rectified at appeal, but the appellant has faced uncertainty and stress. Some claimants may give up. Also, claimants will resent the implicit accusation of having lied or exaggerated in the claim.
The DWP's performance is kept under review by the Comptroller and Auditor General, who has suggested several approaches which might improve accurate decision-making, including the following:
...obtain more evidence about customers' conditions from professionals involved in their treatment, such as consultants, occupational therapists, social workers and community psychiatric nurses, to help achieve better decisions, as well as reducing the need for medical examinations.
...Develop better feedback on the outcomes of appeals. Decision-makers and doctors receive little or no notification of the outcomes...[6]
DLA pilot to improve decision making
In the northeast, disability probably affects a larger number of people than the average. For example, in August 2004, 6.2 per cent of the population received DLA, as against 4.5 per cent for Britain as a whole. Only in Wales is the figure higher.[7]
So there was good reason for NERLSC to explore these problems. It organised a seminar for key agencies: the Appeals Service, doctors, the Legal Services Commission (LSC), claimants' representatives and DWP decision-makers.
It was the first time that these individual parties in the DLA process had been brought together to share their experiences. After working through two case studies, several improvements seemed blindingly obvious. These included more training for GPs and for advisers who complete claim forms, and feedback to decision-makers when decisions are overturned at appeal. GPs needed to know how their reports are used in making DLA decisions.
The seminar recommended a pilot to see if, with better medical evidence at the start of a DLA claim, successful appeals would reduce. Could the claimant who was entitled to the benefit get it first time? The rest of this article discusses that approach.
Reducing appeals through early information
NERLSC invited the Citizens Advice service in Blyth, Northumberland, to work with local GPs to see whether better medical evidence could be made available at the application stage. This would reduce the chances of the decision-maker making a wrong finding at the outset.
Blyth was chosen because there is an excellent local partnership infrastructure, where professionals talk to each other. From the outset, participants were enthusiastic about the pilot and open to taking suggestions back to their organisations.
The initial meeting of the pilot was able to bring together local GPs, DWP decision makers and caseworkers. An indicative pro forma of medical and functional questions about a claim was tabled to indicate issues where initial medical information might lead to better medical evidence for the decision-maker.
Soon into the discussion the focus changed unexpectedly. The doctors rejected the suggestion that they are competent to give advice about a patient's functional needs. They describe the patient's condition, symptoms, self-report and history, but not how this affects care or mobility, the key issue for DLA. They also identified an inherent conflict between this process and their relationship with patients, which is potentially undermined by any perception that they do not believe patients' versions of their problems. Medical expertise did not equip them to make functional assessments.
They advised that functional ability is the realm of an occupational therapist. However, in Blyth Primary Care Trust (PCT), there are 50 GPs and two occupational therapists. The likelihood of occupational therapists being able to help with assessments is remote. The doctors' suggestion was that the pilot should explore the potential for occupational therapists to supply the evidence that would support (or not) the claim to DLA entitlement.
The pilot project reports to the CLS Partnership (CLSP) in Northumberland. The CLSP agreed that the Blyth pilot, if successful, would be rolled out to the rest of Northumberland. It agreed to explore the possibilities of funding the post of 'occupational therapist assistant'. This person would be employed by an independent organisation such as a PCT or NHS trust, and would supply decision makers with an independent report on the claimant's care and mobility needs. This report would enable decision-makers to make a better adjudication at the first stage. (Such a report might also lead to abandonment of non-viable claims.)
Unfortunately, Blyth PCT, which is a member of the CLSP, was unwilling, at the time, to pay for occupational therapist assistants because of funding pressures. Both the DWP and the LSC, as a source of funding for the pilot, had been ruled out from the start. In any event, LSC targets at the time prioritised new matter starts and not dispute reduction.
The CLSP agreed that this project will remain part of its agenda and that, come a better financial situation in the PCT, lobbying for 'assistant occupational therapists (DLA/AA)' will be resurrected. Goodwill and good communication between advice agencies, primary care trust committees, decision-makers and tribunal members has been generated.
Conclusion
In Northern Ireland (NI) accurate decisions are made in 85 per cent of claims – 30 per cent more than in Britain, but a figure the NI department is keen to improve on. Initial decision-making can be improved. However, there is little will at high levels of funding or decision making bodies to try new approaches. Investment in improved decision-making would save other resources, including legal aid funding for advice and medical reports on avoidable appeals.
But for now the DLA pilot has run out of steam and, with the abolition of regional committees, lost its sponsor. But the ideas could mean a better deal for claimants, a reduction of inappropriate pressures on doctors, better information to decision-makers, fewer appeals and wrongly granted awards, less money spent on medical reports, less time spent on submissions by case-workers and, most importantly to those who have the right to DLA, the benefit of the correct award. For now, money will instead continue to be spent on avoidable appeals.
Footnotes:
- Making legal rights a reality. The Legal Services Commission's strategy for the Community Legal Service 2006–2011, March 2006 (download pdf, 356KB) p13. [back]
- Secretary of State's report on the standards of decision making in the Benefits Agency, Child Support Agency and Employment Service – 2001–2002. [back]
- Progress in improving the medical assessment of incapacity and disability benefits. Report by the Comptroller and Auditor General, HC 1141, Session 2002–2003: 17 October 2003. [back]
- See: www.dwp.gov.uk/asd/asd1/dla/dla_quarterly_statistics_aug04.asp. [back]
- The results of the research are set out in Getting it right, putting it right. Improving decision-making and appeals in social security benefits. Report by the Comptroller and Auditor General, HC 1142, Session 2002–2003: 7 November 2003. [back]
- See note 3. [back]
- See note 4. [back]