Archive for August, 2013


 

31 July 2013

The new Parliamentary Joint Committee on the Draft Deregulation Bill has published its Call for Evidence.

The Committee, comprised of Members of the House of Commons and House of Lords, has been formed to scrutinise the Government’s draft Deregulation Bill and make recommendations for its improvement.

The draft Bill proposes new powers for Ministers to abolish regulation “no longer of practical use” and a requirement for regulators to have regard to the impact on economic growth when proposing new regulation.

Questions

The Committee is inviting evidence on the Bill, which is intended to reduce the burden of regulation on business, civil society and individuals. Questions on which the Committee seeks evidence include:

  • The draft Bill covers a broad range of legislation. Could the same results have been achieved using existing secondary legislation?
  • Are the changes in the draft Bill evidence-based and have any associated risks been properly taken into account?
  • Does the draft Bill achieve its objectives effectively and fairly?
  • To what extent does the draft Bill benefit consumers as well as businesses?
  • Are safeguards regarding the use of the “no longer of practical use” power adequate and appropriate?
  • Are there other changes to deregulatory powers, procedures and parliamentary oversight which should be included in the draft Bill and if so, why?
  • Will the duty to have regard to promoting economic growth compromise the independence of regulators?

Further information

Image: iStockphoto

 

More news on: Parliament, government and politics, Parliament, House of Commons, House of Lords, Commons news, Lords news, Parliamentary business, Bill news, Committee news, Public administration, Legislative process

Advertisements

Memorandum submitted by HH Judge Robert Martin (DM 27)

Posted: August 31, 2013 by rainbowwarriorlizzie in Uncategorized

Summary

 

 

 

· The President of Appeal Tribunals has produced an annual report since 2000 on standards of decision making, based on a sample of cases coming before tribunals.

 

· The department’s decisions are overturned by the tribunal in nearly one half of the appeals. This rate has remained largely unchanged since 2000.

 

· The main reason for overturning departmental decisions is that the tribunal engages directly with the claimant to elicit and make findings of fact to underpin its decisions.

 

· The information that should be provided to claimants to assist them to decide whether to appeal is limited by problems of distribution and format.

 

· The review stage by the departmental offers little advantage over appealling straightaway.

 

· The new tribunal procedure rules are proving useful in removing obstacles in the appeals process.

 

· The continuing failure of DWP to be represented at hearings compromises the neutrality of the tribunal.

 

· The time-frame of appeals is uneven and poorly monitored.

 

· There are regional variations in the level of support provided to claimants. Support can play a critical role, particularly in the early stages of the appeal.

 

· The Administrative Justice and Tribunals Council is a beneficial influence on claimants’ experience of the appeals process.

 

 

 

Introduction

 

 

 

1. In most cases a decision on entitlement to benefit carries a right of appeal to an independent tribunal. Since 3 November 2008 such appeals have been dealt with by the Social Entitlement Chamber of the First-tier Tribunal. Prior to that date benefit appeals were dealt with by the Appeal Tribunal established by the Social Security Act 1998. The Social Entitlement Chamber was formed by an amalgamation of the Appeal Tribunal with 2 other jurisdictions, namely the Criminal Injuries Compensation Appeal Panel and the Asylum Support Tribunal.

 

 

 

2. The Chamber comprises some –

 

 

 

78 salaried judges

 

630 fee-paid judges

 

650 fee-paid members who are medically qualified

 

440 fee-paid members who are disability experts

 

15 fee-paid members who are accountants.

 

 

 

3. In 2008-09 the Chamber received 242,825 social security and child

 

maintenance support appeals. The intake is expected to rise by 10% in 2009-10.

 

 

 

4. I am the Chamber President. I was formerly the President of the Appeal Tribunal. I have been a judge/tribunal chairman handling benefit appeals since 1985. Before my appointment to the judiciary I represented claimants for 10 years. This memorandum of evidence draws upon my own experience and that of judicial colleagues. It is also informed by research studies.

 

 

 

 

 

Decision making

 

 

 

The Effectiveness of the Decision making Process

 

 

 

5. Appeals may be regarded as one measure of the effectiveness of departmental decision making. The value of appeals as a measure is limited because –

 

 

 

· appeals are actually made in a very small fraction of cases, perhaps some 2% of the appealable decisions made by DWP.

 

 

 

· appeals are unlikely to constitute a representative sample of departmental decisions. They are self-selected. Unsurprisingly, appeals are, in the main, brought against decisions to refuse benefit, but the tribunal does encounter a number of cases where the validity of a decision to award benefit is in issue. Such cases typically involve the recovery of an alleged overpayment or derive from an application to change or renew an earlier decision awarding benefit.

 

 

 

· the appeal is by way of a fresh determination. In other words, the appeal may succeed not because the department’s decision is flawed but because the tribunal arrives at a different conclusion. Many benefit appeals are finely balanced on their facts and a decision to uphold or to dismiss the claim can be equally rational. It is these ‘borderline’ cases that are arguable either way, that constitute much of the tribunal’s workload.

 

 

 

· the tribunal may get it wrong.

 

 

 

6. The Social Security Act 1998 placed a duty on the President of the Appeal Tribunal to supply a report annually to the Secretary of State (for Work and Pensions) on the standards achieved by the Secretary of State in decision making. That duty has now been carried forward as part of the reporting functions of the Senior President of Tribunals. The annual report is published by the relevant Secretary of State and copies placed in the libraries of both Houses.

 

 

 

7. The President’s report is based on cases coming before the tribunal, using a method of sampling and analysis originally agreed with the department for the compilation of the first report in 2000-01. The most recent report covers the period 2007-08. A sample of 1,886 appeals was used. The sample reflects the range of appeals by type of benefit, save that child support maintenance appeals (which constitute only about 1% of the overall intake) are slightly over-represented in order to generate meaningful data.

 

 

 

8. The crude success rates (from the claimant’s perspective) of appeals across the overall intake are available from the Tribunals Service’s computerised case administration system. Thus, in 2007-08 the tribunal overturned the department’s decision in 44% of the 165,265 appeals that reached a hearing and upheld the department’s decision in 56%.

 

 

 

9. The object of the President’s report is to shed light on why departmental decisions are overturned. It does so through the device of the tribunal, in the sampled appeals, completing a questionnaire that sets out a list of possible reasons. Examples include –

 

 

 

· ‘The tribunal was given additional evidence that was not available to the decision maker’

 

· ‘The facts were not in dispute but the decision maker had misconstrued their effect in law’

 

· ‘The decision maker did not give relevant facts/evidence due weight’

 

 

 

The tribunal may give more than one of the standard reasons or add its own explanation.

 

 

 

10. The proportion of departmental decisions overturned on appeal and the reasons why vary from benefit to benefit. If we look, for example, at the category of disability living allowance and attendance allowance appeals, the proportion of decisions overturned in 2007-08 was 48%. The commonest reasons given in the sampled cases for overturning included –

 

 

 

· The tribunal was given additional evidence not available to the decision maker 73%

 

· The tribunal formed a different view of the same evidence 30%

 

· The tribunal accepted evidence that the decision maker had available but was not willing to accept 24%

 

· The tribunal formed a different view based on the same medical evidence 19%

 

· The medical report under-estimated the severity of the disability 17%

 

 

 

The tribunal is also asked whether, in its opinion, the department could have avoided the appeal. In this category of benefit, only 4% of the sampled appeals were thought to have been avoidable.

 

 

 

11. The analysis contained in the President’s report has to be read in the context of what actually happens in tribunal hearings. The “additional evidence” given to the tribunal and not available to the departmental decision maker is seldom an influential document such as a consultant’s report presented to the tribunal at the eleventh hour by the claimant. This does happen but rarely. In the majority of cases the critical additional evidence is the oral evidence of the claimant. It is not so much “given” to the tribunal as carefully and skilfully elicited by the tribunal through questions asked of the claimant. Similarly, the tribunal’s willingness to accept evidence or, indeed, form a different view of the same evidence is influenced by its opportunity to engage with the claimant face to face and use question and answer to test the evidence. Many appeals concerning disability or incapacity turn on the credibility of the claimant’s evidence. It is not surprising that the success rates of appeals where the claimant attends the hearing are more than double those where the claimant does not attend, leaving the tribunal to reach its decision on the basis of the appeal papers only. Very few departmental decisions are overturned for getting the law wrong.

 

 

 

12. The assessment that the department could have avoided the appeal in only 4% of the overturned cases similarly has to be interpreted in the context of the appeals process. The tribunal tends to reserve this assessment to those cases where the decision maker has demonstrated a conspicuous error, for example, overlooking a material piece of documentary evidence among the case papers. The tribunal does not ask itself whether the appeal could have been avoided had the department adopted a different approach to its decision making. Nor does the tribunal take the view that evidence might reasonably be considered “available” to the decision maker where it only needs the decision maker to ask the right questions of the claimant.

 

 

 

13. Before the introduction of major changes to departmental decision making by the Social Security Act 1998, there was a degree of consistency of approach across the different levels of the “adjudicating authorities”, namely adjudication officers, appeal tribunals and Social Security Commissioners. The characteristics of the approach involved proactively gathering evidential material, a deliberative weighing of evidence and an independent-minded exercise of judgment, supported in the case of adjudication officers by a Chief Adjudication Officer, who produced an annual report on standards of adjudication.

 

 

 

14. The changes introduced pursuant to the 1998 Act removed adjudication officers, including the Chief Adjudication Officer. The power to make decisions was vested instead in the Secretary of State, who, of necessity, could only exercise that power through administrative staff labelled, almost in default, “decision makers”. Evidence gathering by engagement with the claimant gave way to data processing from forms. The exercise of judgment was displaced by increasingly prescriptive regulations, which did nothing to simplify the conditions of entitlement from the claimant’s point of view.

 

 

 

15. In contrast, the appeal tribunal continues to occupy what now appears to be a relatively privileged position. This centres upon the hearing as a means of establishing the facts of the case by engaging directly with the claimant. While a hearing can prove taxing for the claimant, many comment that the tribunal is the first human face they have seen in the entire process of claiming benefit. Bearing in mind that many claimants struggle to cope with official forms, meeting the tribunal to explain their circumstances plainly is a demonstrable advantage.

 

 

 

16. Finance has clearly been a strong, if not the strongest factor in the department moving away from a system of adjudication. The approach epitomised by the tribunal is not, however, extravagant. The unit cost to the government of an appeal is in the range of £235, of which the judicial cost is about £175. It may have been a false economy to strip out at departmental level key features of adjudication, saving money on administration at the expense of wrongly awarding benefit where the qualifying conditions have not been met and wrongly denying benefit to those entitled.

 

 

 

 

 

Appeals

 

 

 

The Appeals System from the Claimant’s Perspective

 

 

 

17. Insight into the claimants’ perspectives of the appeals process is gleaned by the tribunal from –

 

 

 

· feedback given at tribunal users’ forums. There is a National Customer Representatives Liaison Forum, which involves disability organisations, welfare rights services and advice agencies. At the local level, some 50 user groups meet twice a year with members of the judiciary and the Tribunals Service

 

· the complaints procedure

 

· surveys

 

· engagement with claimants in the course of appeals.

 

 

 

18. The start of the appeals process is preceded by a decision on the part of the claimant to seek redress. The idea of challenging a government department by instituting legal proceedings is a big step for most people.

 

 

 

19. There are two initial obstacles. Firstly, public awareness of tribunals generally is very low. Media coverage of tribunals dealing with benefit appeals is particularly rare. The notion of being involved in legal proceedings typically conjures up images of the courts, and especially the criminal courts. Trying to create a distinctive and welcoming image for something called “the Social Entitlement Chamber of the First-tier Tribunal” is a marketing challenge that the Ministry of Justice has yet to take up. Two-thirds of claimants have never been involved in any kind of legal proceedings.

 

 

 

20. The second obstacle is the low level of knowledge of the appeals process. To make an informed choice to appeal requires an appreciation of what would be involved in time, cost and effort, set against the chances of success. The Tribunals Service has produced a 30 page step by step guide (available in hard copy and on the net), which provides this information but its distribution has proved a problem. The best time to read the guide is when you’ve received a letter from the department turning down your claim and notifying you that you have a right of appeal. However, the department has declined to add a strapline to its decision letters, giving a Freephone number where claimants can obtain a copy of the guide.

 

 

 

21. Bearing in mind that nearly half of appellants struggle with official correspondence, it would be helpful if the guide were also available in a DVD format. The Ministry of Justice has funded an informative DVD for prospective appellants in criminal injuries compensation appeals. The scale of operation in benefit appeals (some 100 times greater than criminal injuries) will always be deterrent in cost.

 

 

 

Reconsideration or Appeal

 

 

 

22. DWP’s own literature on challenging a departmental decision may lead to confusion. The department is rightly concerned to offer alternatives to an appeal, for the tribunal itself would be among the first to admit that pursuing an appeal can be a daunting experience. The department’s preference is to divert claimants away from the appeals route into its own “disputes process”, which invites claimants to ask DWP to “reconsider” decisions that they feel to be wrong.

 

 

 

23. Reconsideration involves the department looking its original decision again. The outcome may be confirmation of the original decision or a fresh decision. The fresh decision may be wholly or partly more favourable to the claimant or could leave the claimant worse off than before. If the claimant remains dissatisfied, he or she can choose to appeal against the original or revised decision.

 

 

 

24. What is the advantage for the claimant in asking for a reconsideration rather than lodging an appeal straightaway? Lodging an appeal is free, informal and involves scarcely more effort than writing in asking for a reconsideration. Asking for a reconsideration carries the risk of delay and further correspondence should the outcome be no improvement over the original decision. If a fresh decision does bring an improvement, the appeal will automatically lapse without the need for the claimant to withdraw it.

 

 

 

25. The key question is whether the department will look at a case with fresh eyes when a request is made for a reconsideration. The tribunal does not have access to statistics showing how many departmental decisions are changed as a result of reconsideration. It does, however, see many appeals where the reason given by DWP for abiding by its original decision is “No new medical evidence provided”, which suggests an unduly narrow approach to looking at the original decision – one without an open mind.

 

 

 

26. Looking at a case again, once an appeal has been lodged, ought to bring about a different approach, since the department is now, strictly speaking, engaged in legal proceedings. The approach that the tribunal believes should be adopted by DWP is not for the original decision maker, or a fellow decision maker, to say, “Would I have made the same decision as before?” but rather, “Could I defend this decision in front of a tribunal?” The Compensation Recovery Unit (which deals with appeals concerning the recovery of benefits paid to accident victims) has consciously adopted the latter approach and seen the number of appeals against its decisions plummet. Other departmental agencies have yet to follow suit.

 

 

 

The Appeals Process

 

 

 

27. Once an appeal is under way the procedure is kept to the minimum necessary to ensure a fair and speedy resolution. One major obstacle to the smooth progression of the appeal is currently being tackled. Prior to 3 November 2008, the regulations covering tribunal procedure stipulated that DWP should send the appellant an enquiry form for completion (the “TAS 1” form). That form asked the claimant for information that would assist the Tribunals Service in making arrangements for handling the appeal, such as whether the claimant wanted a hearing, had a representative, need an interpreter. A notice accompanying this innocuous form contained a warning that if it was not completed and sent to the Tribunals Service within 14 days of receipt, the appeal would be struck out. Each year the Tribunals Service automatically struck out 70,000 appeals for non-return of the TAS 1. Some 20,000 claimants whose appeals had been struck out in this summary fashion felt so aggrieved that they complained and had their appeals reinstated. What happened to the other 50,000 was never pursued. Their appeals were simply closed down, without passing through judicial hands and regardless of their prospects of success.

 

 

 

28. The introduction of new procedural rules on 3 November 2008 (rules which were for the first time drafted by an independent body) has brought about a significant improvement for claimants. The new rules removed the administrative power of strike out and the Tribunals Service has adopted, notwithstanding the additional cost involved, a new user-friendly approach. Instead of the TAS 1 form issued by the department, now the Tribunals Service sends out a welcoming information pack containing a modified enquiry form. A reminder letter and offer of telephone contact follows if the enquiry form is not returned. If there is still no response from the appellant, the file is referred to a judge to decide how the case should be moved forward to a fair conclusion. Where, for example, it appears that the appellant may have difficulty in dealing with official correspondence, the judge may direct that the appeal goes straight to a hearing before the tribunal. Early analysis of the results of these procedural changes indicate that some 1,200 claimants a year who would, under the old rules, have had their appeals automatically struck out, are now having their appeals upheld by the tribunal.

 

 

 

29. Appeal hearings are held at throughout a network of over 120 venues. The importance of the claimant attending the hearing means that the tribunal strongly believes in local access to justice. It has consistently resisted attempts to “rationalize” the network, being acutely aware that the closure of a venue can result in serious travelling difficulties for tribunal users who, disproportionately, are disabled, poor or otherwise disadvantaged, and their representatives, who are mainly drawn from the voluntary sector.

 

 

 

30. The emphasis at a tribunal hearing is upon striking an appropriate balance between creating an informal atmosphere, which counters the tension of appearing before a tribunal, and maintaining sufficient structure to comply with the requirements of due process. So –

 

 

 

· the hearing takes place in a room unadorned with the trappings associated with courts

 

· everyone is seated around a table

 

· no one wears wigs and gowns

 

· the judges are called “Mr” or “Mrs/Miss/Ms”

 

· evidence is not usually given on oath or affirmation

 

· there are no strict rules of evidence

 

· the tribunal will take the lead in asking questions.

 

 

 

31. A conspicuous absence from the hearing is the department. In only 16% of hearings does the department send a representative (traditionally known as a “Presenting Officer”). The failure of DWP to participate in the hearing has been the subject of adverse comment in every President’s report since 2000-01 (when the attendance rate was comparatively high at 40%) and has also attracted criticism from the Social Security Commissioners. The Child Maintenance Enforcement Commission (formerly the Child Support Agency) is an honourable exception, sending a Presenting Officer in 80% of its appeals.

 

 

 

32. It is a matter for DWP whether it thinks its non-attendance results in more or fewer appeals being allowed or, indeed, makes no discernible difference. From the tribunal’s perspective, the department’s non-attendance creates two problems. Firstly, the neutrality of the tribunal is compromised in the claimant’s eyes. So that the claimant (particularly an unrepresented claimant) is able to participate fully in the proceedings, the tribunal will do its best to ensure that the claimant understands the decision under appeal and why it was reached. In the absence of the department, it is left to the tribunal to explain the department’s case. In explaining the department’s case, it is difficult for the tribunal to avoid being seen as the department’s spokesman. The commonest complaint against the tribunal is that it does not appear even-handed.

 

 

 

33. The second drawback is that, by opting out of the hearing, DWP loses a valuable source of feedback on the quality of its own decision making. A Presenting Officer can act as the eyes and ears of the decision maker, relaying what was said by the claimant and witnesses, how the tribunal approached the evidence, what carried weight with the tribunal, how similar cases might be handled differently in future by the decision maker.

 

 

 

34. The proportion of departmental decisions that have been overturned on appeal has remained more or less constant since 2000-01.

 

 

 

35. There is a right of appeal against the tribunal’s decision. Prior to 3 November 2008 appeal lay to the Social Security Commissioners. Since that date the Commissioners have formed part of the Upper Tribunal. An appeal to the Upper Tribunal can only be made for error of law and leave to appeal is required. The majority of applications for leave are refused. In 2007-08 1,930 appeals granted leave were heard by the Commissioners. In more than half, the tribunal’s decision was set aside and the case remitted to a fresh tribunal for rehearing.

 

 

 

The Time-frame for Appeals

 

 

 

36. The time-frame of appeals is uneven and difficult to monitor. From the claimant’s perspective what counts is the time taken from the start of the process (namely, lodging the appeal) to the final outcome (typically, the tribunal giving its decision). Unfortunately, government does not track an appeal by the end to end process but measures the involvement, at various stages, of the different departments.

 

 

 

37. The time-limit for appealling was reduced in 1999 from 3 months to one month. Although the limit may be extended by the tribunal, it places considerable responsibility upon claimants and is very tight in comparison to other court and tribunal jurisdictions. In 2008-09 the tribunal received some 15,000 applications for an extension of time, most of which were granted.

 

 

 

38. An appeal is lodged by sending it to the office of the department which made the decision being appealed. Unlike most other jurisdictions, the proceedings are not started by being filed at the court or tribunal. The next stage in the appeal process is for the department to produce a submission (now known as a “response”). The submission outlines the facts of the case, as found by the department, a summary of the applicable law and copies of documents used to support the decision. It can run to between 100 and 500 pages. The procedural rules do not oblige DWP to produce its submission within a specific time. Target- times (varying between 28 days and 90 days, according to the category of benefit) are contained in “Service level agreements” between the department and the Tribunals Service but such agreements are meaningless so far as the claimant is concerned. In 2007-08 the average time taken from the appeal being lodged to the department producing its submission was 63 days. Being an average, there were instances of delays of 6 months or more.

 

 

 

39. The Tribunals Service has been set a target by the Secretary of State of bringing 75% of appeals to hearing within 14 weeks of the receipt of the appeal from the department. In April 2009 the average waiting time for all appeals was just under 13 weeks. Again, the use of an average is perhaps not the most useful statistical measure. No attempt is made to have different tracks according to the urgency of the appeal.

 

40. In approximately 98% of appeals the tribunal will deliver its decision on the day of the hearing. In most cases the decision is announced at the end of the hearing. A printed decision notice handed to the appellant and a copy e-mailed to DWP, if no Presenting Officer attends.

 

 

 

Supporting the Appellant

 

 

 

41. Unsurprisingly, the ability of claimants to manage their appeals without support varies greatly. The complexity of social security law defeats all but a few. Its opacity has drawn critical comment from the higher courts and the Commissioners. Its obtuseness increases. By way of example, there used to be fairly straightforward rules of review which provided that a decision on benefit could be changed if it had been based on a mistake or there had been a subsequent change of circumstances. In 1999 a more prescriptive regime was introduced which replaced straightforward “review” with the twin concepts of “revision” and “supersession” and attempted to codify the circumstances in which revision and supersession might apply. At the last count, those circumstances ran to 81 paragraphs and 33 sub- paragraphs.

 

 

 

42. Skilled advisers can play an important role at the point when a claimant is considering whether to appeal or not. The adviser can generally indicate when an appeal would have no realistic prospects of success. (Not every decision of the department, for example, carries a right to an appeal.) Conversely, the adviser can encourage the claimant to pursue a case that is strong.

 

 

 

43. Prior to the hearing, the value of the adviser primarily lies in assisting the claimant to gather evidence. An adviser with access to funds may, for instance, be able to pay for the expense of a medical report.

 

 

 

44. At the hearing, the inquisitorial role of the tribunal may reduce the “added value” of being represented, since it is usually the tribunal that will take the lead in asking questions of the claimant and any witnesses. The scope for advocacy is circumscribed. This observation should not be taken as diminishing the immense benefit to the claimant of having the presence at the hearing of someone to provide support.

 

 

 

45. The level of professional representation varies across the country. It is usually a function of local authority expenditure. Currently, representation varies from 64% of cases in Scotland to 13% in the south-east of England. The absence of legal aid for tribunal representation is a substantial saving for government.

 

 

 

The Administrative Justice and Tribunals Council

 

 

 

46. The Administrative Justice and Tribunals Council has an impact on claimants’ experience of tribunals in two ways. Firstly, the Council plays an influential part in the process of drawing up the tribunal’s procedural rules by championing the users’ interests. Secondly, it performs a monitoring function by carrying out observations of tribunals in action and appraising their performance. It is a little too early to say whether the AJTC is more effective in its role than its predecessor, the Council on Tribunals.

 

 

 

September 2009

 

 

 

 

 

 

 

 

 

 

 


 

 

WELFARE REFORM – REDRESS FOR DISABLED PEOPLE 

 

 

 

A confidential independent report by Mo Stewart 

 

 

 

EXECUTIVE SUMMARY 

 

 

 

This detailed evidence report is offered to members of the House of Lords as a contribution to the delayed debate on Welfare Reform, now planned for September 13th, and was prepared at the personal invitation of noble members from the House.   

 

As a retired Healthcare Professional I have invested in excess of 12 months of my time, health permitting, to investigate the relationship between the American insurance corporate giant UNUM Insurance, the Department for Work & Pensions (DWP) and Atos Healthcare (AH). AH is the private contractor engaged by the DWP to conduct the medical assessments of the chronically sick and long-term disabled population of the UK, who are in receipt of disability benefits, yet this company is not regulated by the Care Quality Commission and so the public have no protection.  The parent company, Atos Origin – another foreign corporate giant – have been awarded several significant government contracts, including the very lucrative IT contract for the 2012 Olympic Games, that the government ensured was awarded as part of “fair and open competition.” 

 

 

 

It is cause for enormous concern that, when engaged as UK government advisers on welfare reform, in 1994, Unum Insurance were known as Unum Provident Insurance.  This corporate insurance giant dominates the income protection (disability) insurance market, worldwide, with 25 million clients in the US alone.  Unum Provident Insurance have a diabolical reputation, with strong evidence of atrocious tactics, and a resistance to funding the income protection insurance once a client made a claim following the onset of chronic ill health or permanent disability. (A*)  

 

By 2005, following copious numbers of successful legal cases throughout the USA, the California Department of Insurance Commissioner, John Garamendi, stated that “Unum Provident is an outlaw company. It is a company that has operated in an illegal fashion for years…”  By 2007, the American Association for Justice identified Unum Provident as “..the second worst insurance company in the US.”(5)  Therefore, given this company’s proven record of sustained misconduct, one must surely enquire why they were ever permitted to be involved with the welfare of British citizens on a statutory basis.   

 

 

 

Following the statement by the American Association for Justice in 2007 Unum Provident Insurance once again changed its name and is now known as Unum Insurance. Unum Insurance deny culpability for the past history of the company and, mysteriously, the majority of the evidence of past wrongdoing by Unum Provident Insurance has disappeared from the public domain, including the transcript of a BBC News report, from 2007, happily rescued from obscurity by researchers who predicted that the UK was at risk of adopting a copy of the American healthcare system, funded by insurance.  With the latest press release from Unum Insurance, announcing that they are about to flood the UK market with mass marketing for income protection insurance, it looks like this is about to become a reality. 

 

 

 

EXTRACT FROM BBC REPORT: UNUM PROVIDENT – BBC News 10pm  6th November 2007: 

 

 

 

Mark Daly, presenter:  But, there are still dozens of bad faith cases and allegations outstanding against the company on both sides of the Atlantic.  Despite all of this Unum had senior executives sitting on key government working groups last year, and has provided detailed memorandum on transforming the benefits system. (The government also awarded grants worth £300,000 to Unum’s research centre in Cardiff.  See page 4.  MS) 

 

 

 

Mark Daly, presenter:  The BBC has discovered internal documents revealing that Unum believes it is driving Government policy.  The Department for Work and Pensions refused to comment on Unum’s past. 

 

 

 

WELFARE REFORM – REDRESS FOR THE DISABLED – THE REPORT 

 

 

 

The government’s devotion to its main priority, which is a dramatic reduction of the welfare budget, has meant that the concerns of respected frontline charities such as Citizens Advice(1), Macmillan(2), Scope(3), and the Disability Alliance(4) are all seemingly ignored.  These welfare organisations, and many others, have collectively expressed serious concerns regarding growing evidence that the disability assessment system, using the Work Capability Assessment (WCA), is flawed and totally unworkable – but the government doesn’t appear to be listening.  On this basis there is a legal challenge now being undertaken by the Disability Alliance, which may lead to a Judicial Review of the government’s welfare reforms. 

 

 

 

Government concern expressed for the welfare of the chronically sick and disabled people of this nation can only be considered to be totally insincere when employing the services of Atos Healthcare (AH) to assess them.  Indeed, the assessment of the long term sick and disabled population by a private contractor with no formal accountability structure, using computer  

 

 

 

      (A*) New York Attorney General Spitzer’s ruling: 

 www.insure.com/articles/healthinsurance/unum-settlement.html  

 

         (1) Citizens Advice: 

www.citizensadvice.org.uk/not_working_march_2010_final.pdf 

 

 

 

         (4) Disability Alliance: www.disabilityalliance.org/dbcpress3.htm  

 

 

 

 

software instead of a detailed physical examination, has been identified as unnecessarily traumatic.(1-4,7)  This dangerously flawed medical assessment system uses a computer questionnaire, based on a points system, as recommended by government advisers Unum (Provident). Why does a UK government use a discredited US corporate insurance giant as advisers if not to adopt their system? 

 

 

 

Successful government propaganda has the able bodied general public convinced that the majority of people in receipt of Incapacity Benefit(IB) or Disability Living Allowance(DLA) are mainly ‘scroungers.’ This is despite the fact that all evidence supports the fact that, out of the entire DLA budget, less than 0.5% were bogus applications with 1.5% admin error.(1,4)  So why do the other 98% need to suffer other than because the chronically sick and disabled population make very easy targets?  Since when is the opinion of medical experts, namely consultants and specialists in the relevant fields of the claimants’ disability, unacceptable as a level of a patient’s ability to work other than when the DWP need to reduce costs?  This is a very dangerous and medically unacceptable precedent, imported from America, that has administrators without relevant qualifications and an unaccountable medical assessment system deciding the fate of often desperately ill and chronically disabled people.  Many people in receipt of DLA do work as the award of DLA is unrelated to employment, but they work because they are well enough to engage in employment, and not when forced to look for employment by DWP medical tyranny because Job Seekers Allowance is much cheaper to fund than disability benefits. 

 

 

 

The DWP’s resistance to employing qualified medical administrators has meant that basic grade administrators, known as “Decision Makers”, who have confirmed that they lack the ability to interpret medical evidence,(7) have betrayed the sick and disabled people the WCA was meant to protect. The actual disability assessment, as reported by the AH contracted healthcare professional (HCP), is simply one extremely limited opinion derived from a dubious computer evaluation programme, as confirmed in the WCA review by Professor Harrington.(7) The main responsibility of the DWP Decision Makers, as identified in the government contract with Atos Origin Healthcare Services, is to correlate all presented medical evidence including the detailed reports of GPs and consultants, who know the claimant and have actually treated them.  Given that the opinions of these medical specialists are accepted in every court in the land, it seems more than reasonable to consider their clinical judgement when deciding if anyone is fit to return to work or to retain disability benefits.   

 

 

 

However, the Harrington Review (7) confirmed that Decision Makers routinely failed in their responsibility and exclusively accepted the opinion of the contracted HCP from Atos Healthcare, who enjoy “total immunity from all medical regulation” according to the General Medical Council (GMC) and the Care Quality Commission.(6)  Because of this, large numbers of chronically sick and genuinely disabled people are being forced to appeal the often alarming decisions of under qualified junior civil servants.(1-4)  Welfare agencies now advise that nothing has improved since the Harrington review, hence the challenge by the Disability Alliance.  

 

 

 

This deeply flawed medical assessment process was identified for a long time by His Honour Judge Robert Martin as President of the Appeal Tribunals. For over a decade Judge Martin’s consecutive annual reports constantly identified serious problems with the AH medical assessments (8). Indeed, Judge Martin was insistent that “..the same problems and errors are repeated year after year, with no sign that anyone takes any notice of feedbacks from Tribunals” as confirmed in evidence to the Work and Pensions Select Committee.(9) The evidence confirmed that almost half of the Appeal Tribunals find in favour of the applicant (9) with 70% of claims being upheld for claimants who have representation at the Appeal Tribunal.(10) However, the stress and distress of the need to wait for several months to attend an appeal, in order to retain financial support to which these claimants are morally entitled, is totally ignored. If these were civil cases, generous compensation would be offered as an acknowledgement of the unnecessary distress and suffering caused to the many victims. However, all successful applicants can expect is a reluctant reinstatement of their disability payments, and a back dated award to when they were forced to accept Jobseekers Allowance instead of Incapacity Benefit or, more recently, the new Employment Support Allowance.(ESA) DWP letters to their many victims remain unnecessarily hostile and the enforced disability debt is an ever growing problem. These victims of this AH assessment system loose their disability funding instantly, when they fail to obtain the necessary points at assessment. Yet their DLA payments are already committed to fund their Motability car or to identify the need for essential home care as provided by local authorities.  This is brutal, and these consequences appear to be dimissed by the government. 

 

 

 

With plans to rapidly transfer Incapacity Benefit to the new ESA and DLA being renamed and reallocated to the Personal Independence Payment (PIP), all reference to incapacity or disability is being systematically removed.   How can a chronically sick and/or disabled person, who will never again be fit enough for paid employment, be allocated a benefit named Employment Support Allowance when employment is not a realistic possibility?  How does this support anyone with a permanent serious illness or profound disability?  What happened to welfare?  The Minister for Welfare Reform happened to  

 

 

 

       (1)  Citizens Advice: 

www.citizensadvice.org.uk/not_working_march_2010_final.pdf 

 

 

 

         (4)  Disability Alliance: www.disabilityalliance.org/dbcpress3.htm 

 

 

         (6)  Care Quality Commission: http://www.cqc.org.uk/aboutcqc.cfm  

 

         (7)  The Harrington WCA Review: www.dwp.gov.uk/docs/wca-review-2010.pdf 

 

         (8)  HH Judge Robert Martin: President of Appeal Tribunals, Report 2007-08  

 

         (9)  Decision making and appeals in the benefit system.  Second Report of Session 2009-10 

 

                – the House of Commons Work and Pensions Select committee: 

 

 

       (10)  Citizens Advice Scotland: Unfit for purpose:  

 

 

welfare… and it is cause for  serious concern that the input of this one unelected official can threaten the welfare provision for millions with care, concern and compassion replaced with a price tag (11).    

 

 

 

The Minister made his intentions clear in a press interview (11) in 2008 when he claimed that: “… somebody will see a gap in the market and make their fortune” and the article went on to claim that the Minister’s idea was to eventually put the private sector in charge of the long-term unemployed.  “There will be bonuses for hard cases, and no special treatment of disabled people or lone parents with children at school.”(11) As Minister for Welfare Reform, Lord Freud’s past history in finance demonstrates a dangerous lack of any comprehension that a serious illness or chronic disability can indeed be permanent, hence past awards of DLA offered to recipients who, by definition and especially by diagnosis, are profoundly disabled or very ill. These conditions can be exacerbated by exhaustion that often accompanies chronic ill health and serious disability.  American style medical tyranny can’t make them well, and can’t make these genuine claimants fit for work, but constant threats of losing their financial support can and does cause unnecessary distress. 

 

 

 

Now, the most vulnerable people in our society, already faced with a limited quality of life, are being terrorised by the DWP with the threat of an annual review of their DLA financial support, despite their confirmed and permanent illness and/or physical limitations.  Any annual assessment is therefore, by definition, a total waste of limited resources for the vast majority of these people.  The sudden removal of DLA may remove a Motability car, or funding for taxis, and may remove the County Council funded home carers as County Councils will not provide carers unless the client is in receipt of DLA for care at the highest level. Any AH assessment is simply one day in the life of the disabled claimant, and cannot be presumed to identify their permanent state of health.  Government claims that AH assessments are to establish ability, and not to emphasise disability, whilst demonstrating a dangerous lack of concern for identified consequences is offensive to many. 

 

 

 

Urgent decisions need to be made to enable justice to be seen to be done.  

 

 

 

CONCLUSION: 

 

 

 

The DWP should employ qualified Medical Administrators, as real Decision Makers, who will comprehend when a given diagnosis means that the patient is far too ill or profoundly disabled to ever consider paid employment.  They would even comprehend that the majority of chronic disability and ill health are, by their definition, variable conditions, and therefore it is  absurd to expect such people to be fit enough to look for paid employment, only to become too ill to work within a short period of time.  Not only would Medical Administrators be able to remove the totally unnecessary distress faced by the innocent victims of this assessment process, but it would also save a great deal of money by greatly reducing the numbers of people going to these AH assessments and, hence, reduce the numbers of Appeal Tribunals.  Any increases in salary costs will be negated by the very significant savings from the reduced costs of tribunals and appeals, as well as the reduced requirement for continued reassessment in many cases.  It would also remove the distress now faced by this vulnerable community.  

 

 

 

The DWP can then either cancel this fatally flawed disability assessment contract with AH, or introduce a generous compensation scheme. There are now many thousands of genuine chronically sick and/or seriously disabled victims of this DWP funded medical tyranny, masquerading as medical assessments, as conducted by Atos Healthcare following guidance by Unum Insurance, formerly known as the totally discredited American corporate giant Unum Provident Insurance.  

 

 

It is no coincidence that Unum Insurance are about to launch a massive UK media campaign to promote their Income Protection Insurance as, clearly, it has been planned since 1994 as the UK takes another step forward towards the American style health service, funded by insurance. (12) 

 

 

 

Costs can’t be the only concern in any civilized society.  Care, concern and compassion must be returned to the UK to arrest  tyranny, using foreign companies, against those least able to find social justice.  5000 disabled people and carers didn’t march in London for no reason, and it’s time someone listened to them. 

 

 

 

More detailed information may be found in a book by Ray Bourhis, namely Insult to Injury: Insurance, Fraud and the Big Business of Bad Faith, published in 2005, and in the published papers at the Yale School of Law: The Unum Provident Scandal. (13)                                                                                                             

 

 

 

 

 

Mo Stewart                                                                                                                                     Contact: Mozzas01@gmail.com                                                                                                                                                                                                                                                                                                           

 

Disabled female veteran – WRAF 

 

Retired healthcare professional                                                                                                                           5th September 2011 

 

 

 

       (11)  Welfare is a mess, says adviser David Freud: 

 

 

                The Daily Telegraph – 2nd February 2008.  David Freud interview with Rachel Sylvester and Alice Thomson  

 

 

 

  1. http://www.ifaonline.co.uk/cover/news/2083156/unum-unveils-consumer-campaign 

  2. http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1483&context=fss_papers&sei-redir=1#search=%22Yale%20Law%20School%3A%20Unum%20Provident%20Scandal%22 


Draft Deregulation Bill: Government moves to shut down judicial supervision and criticism of DWP-Atos decision making by abolition of duty by Tribunals’ President to publish annual report

fREEDOM IN pERIL

 

There is a proposal in the Draft Deregulation Bill, which was presented to Parliament in July, to repeal the Senior President of Tribunals’ duty to prepare & publish;

an annual report on standards of decision-making in the making of certain decisions by the Secretary of State against which an appeal lies to the First-tier Tribunal.’

http://www.official-documents.gov.uk/document/cm86/8642/8642.pdf Section 35 (Page 32).

Draft Deregulation Bill Published July 2013

Administration of justice

35 Repeal of Senior President of Tribunals’ duty to report on standards In section 15A of the Social Security Act 1998 (functions of Senior President of Tribunals), omit subsections (2) and (3) (which require the preparation and publication of an annual report on standards of decision-making in the making of certain decisions of the Secretary of State against which an appeal lies to the First-tier Tribunal).

In the past the Senior President’s report has been highly critical of the DWP and Atos:

‘This deeply flawed medical assessment process was identified for a long time by His Honour Judge Robert Martin as President of the Appeal Tribunals. For over a decade Judge Martin’s consecutive annual reports constantly identified serious problems with the AH medical assessments (8).

Indeed, Judge Martin was insistent that:

“..the same problems and errors are repeated year after year, with no sign that anyone takes any notice of feedbacks from Tribunals”

as confirmed in evidence to the Work and Pensions Select Committee.(9)

The evidence confirmed that almost half of the Appeal Tribunals find in favour of the applicant (9) with 70% of claims being upheld for claimants who have representation at the Appeal Tribunal.(10) However, the stress and distress of the need to wait for several months to attend an appeal, in order to retain financial support to which these claimants are morally entitled, is totally ignored.

If these were civil cases, generous compensation would be offered as an acknowledgement of the unnecessary distress and suffering caused to the many victims.

However, all successful applicants can expect is a reluctant reinstatement of their disability payments, and a back dated award to when they were forced to accept Jobseekers Allowance instead of Incapacity Benefit or, more recently, the new Employment Support Allowance.(ESA) DWP letters to their many victims remain unnecessarily hostile and the enforced disability debt is an ever growing problem.

These victims of this AH assessment system loose their disability funding instantly, when they fail to obtain the necessary points at assessment. Yet their DLA payments are already committed to fund their Motability car or to identify the need for essential home care as provided by local authorities. 

This is brutal, and these consequences appear to be dismissed by the government.

See: DWP/UNUM/ATOS SCANDAL ~ ‘WELFARE REFORM – REDRESS FOR DISABLED PEOPLE’ ~ Report by Mo Stewart WRAF (RTD) Posted on September 8, 2012

 

(8)  HH Judge Robert Martin: President of Appeal Tribunals, Report 2007-08 

http://appeals-service.gov.uk/Documents/SSCSA_PresRep07_08FINAL.pdf

Memorandum submitted by HH Judge Robert Martin

http://www.publications.parliament.uk/pa/cm200809/cmselect/cmworpen/memo/decision/ucm2702.htm

Senior President of Tribunals’ Annual Report 2012:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/spt-annual-report-2012.pdf

Senior President of Tribunals’ Annual Report 2013:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/SPT%20Annual%20Report_2013.pdf

(9)  Decision making and appeals in the benefit system.  Second Report of Session 2009-1 – the House of Commons Work and Pensions Select committee:

www.publications.parliament.uk/pa/cm200910/cmselect/cmworpen/313/313.pdf

 __________________________
There’s an invitation to submit evidence to the joint committee considering the Bill – see:
 
Black Triangle Campaign in union with DPAC and other campaigning groups and individuals will be expressing our concern that taking away this duty from the Senior President of Tribunals is utterly inappropriate at a time when such a large number of DWP decisions are being appealed and a high proportion of those appeals are successful.
We encourage all groups and individuals to do the same and for everyone to contact their local MPs to protest. 
Plunder
This again bears unmistakable parallels with the 1930′s where the Nazi régime moved to shut down all criticism, including judicial oversight, of its activities curtailing the fundamental human rights of its citizens. 
Related: WRA S.102 Sched.11 ‘Clause 99′ has been introduced from April to ensure wrongful ‘fit-for-work’ decisions are practically impossible to challenge Posted on February 9, 2013

Amid the avalanche of welfare reforms being implemented by a government intent on reducing the benefits bill by £18bn, one controversial measure that seems to have fallen below the radar is a change to the appeals process for welfare benefit claimants.

There are fears that the change, which will deny people the right to appeal decisions about sickness and disability benefits until the Department for Work and Pensions (DWP) has first reconsidered their case, could leave claimants penniless.

Moreover, its introduction, just as legal aid is abolished for many welfare benefit cases, could leave thousands of vulnerable people unable to access the law to secure the income they are entitled to. The double whammy has been attacked as “a disgrace and a scandal”.

The revised appeals process, called “mandatory reconsideration”, will be applied to anyone who, from October, fails the controversial work capability assessment (WCA) and wants to challenge the decision to deny them sickness benefits.

The government has refused to set a time limit for how long the DWP could take to reconsider a judgment by the mainly computer-led fit-to-work test, but while cases are being reconsidered, claimants who were on employment and support allowance (ESA) will no longer be allowed to claim this sickness benefit and will be automatically transferred to jobseeker’s allowance (JSA)…

Change to disability benefits appeals process could leave people penniless A double whammy of a revised appeals process and the abolition of legal aid threatens to deny benefits to vulnerable claimants The Guardian, Tuesday 2 April 2013

Suspension of Human Rights by invoking a state of emergency recalls the actions of the Nazi Party after the Reichstag fire of 23rd February 1933 Picture: Robert Livingstone

Suspension of Human Rights by invoking a state of emergency recalls the actions of the Nazi Party after the Reichstag fire of 23rd February 1933 Picture: Robert Livingstone

Peak Patience

Posted: August 30, 2013 by rainbowwarriorlizzie in Uncategorized

juxtaposed

Recovery bubbles with form
And reform is forlorn,
Pawned to social relapse,
In lock-step with statistical
Scaffold’s collapse.

Aah, but Poverty is the new black.

Modern Babel is built
On old blood and derivatives,
Bonded and conned
Without mercy or guilt;
Trade is algoed for speed,
Predetermining need,
Unlike money’s velocity,
Creeping to low.

System D, growing strong;
Going long on ferocity.

Let no atrocity be without profit
Ensured by Insurance most certain
To be the next pop in a whole world of
Fiat legality –

Currency propped up
By flags of sheer fallacy.

Peak oil, peak water, peak credit
Indebted, indentured, incensed at
The big empty plate of the
Corporate state and its taste for
Full time become part-time or no time.

The time of peak patience
Is here and is mine.

As integrity spills with the drilling
And killing and spying condoned
By the meek and the…

View original post 25 more words

These disability deniers have no incentive to do the right thing

Posted: August 30, 2013 by rainbowwarriorlizzie in Uncategorized

Vox Political

Those of you who read the comments on this blog will be familiar with Nick. He’s a gentleman who has been ill for a very long time. The effects of his illness are readily apparent just by looking at him – he describes himself as having the appearance of an inmate in a Japanese POW camp during World War Two.

The Department of Work and Pensions still wanted to tell him he was able to seek work; they only stopped trying to cut his benefits because his MP intervened.

This is how he describes the attitude of the Coalition government: “David Cameron … is not to be trusted as he has a way of killing people in a very barbaric way, the way of silence, in the privacy of one’s home, to have a letter dropped on them to place that person in a deliberate panic, knowing and hoping it…

View original post 1,567 more words

Monsanto = Chemical Invasion in our Foods – Why Not Bomb Them?

Posted: August 30, 2013 by rainbowwarriorlizzie in Uncategorized