Removing claimant error underpayments from fraud and error statistics - where it could end?

Looking at the item in News & Case Law today on DWP invites feedback on its proposal to remove claimant error underpayments from its fraud and error statistics in Great Britain, there are some worrying things in the quotes.

As part of its current review, it advises that -

‘... it was raised that the policy intent for receipt of benefits is that claimants need to engage with the department to receive the benefits they are entitled to.  If a claimant does not engage, and so does not receive the benefit or full payment they are entitled to, then this should not be defined as an underpayment.   

We have further confirmed that claimants who do not provide the full and correct evidence requested to support their entitlement, have no legal entitlement to that benefit or element of benefit payment. Therefore, there is no underpayment in law. ’

Couldn’t that imply that the same status applies where claims haven’t been made, and that therefore there is no unclaimed benefits amount?

Seems the thin end of a very dangerous wedge indeed and I had come to the same conclusion. It presents as being a stats. issue but it’s a poorly disguised attempt to remove “underclaiming” as an issue.

It’s nice to think that the primary goal of a functioning social security agency is to ensure that people receive exactly what they are entitled to, not more or less, and that a statistic showing that people are annually underpaid £1.5bn for whatever reason tells us something valuable about the operation of that agency which policy makers should be aware of.

They could well decide that it is a good idea to look into what, if anything, the DWP could do differently to avoid people, many of whom may be vulnerable, being paid less than is due to them. Are the right questions asked? Are there clear mechanisms to provide information? Are misleading or incoherent systems to blame?

There are plenty of situations where an underpayment which is classed as ‘claimant error’ might in fact prove to be evidence of a systemic issue. (Some examples which come to mind are (1) underpayments of LHA to under-35s due to the DWP not gathering information to establish whether a shared rate exemption applies and (2) underpayment of carers elements due to DWP not cross-referencing entitlements and relying on claimants to report DLA/PIP/CA awards.)

Perhaps it might be decided that there is nothing at all which could be done differently or that there are more important things to prioritise. But to just erase the statistic on semantic grounds seems to deprive policy makers and the wider public of valuable information.

I scrolled down a quick response, below, and it might be useful for others to send comments as well.

Please take these comments as a formal response of feedback to the proposed methodology change.

“In this year’s review it was raised that the policy intent for receipt of benefits is that claimants need to engage with the department to receive the benefits they are entitled to.  If a claimant does not engage, and so does not receive the benefit or full payment they are entitled to, then this should not be defined as an underpayment. ”

This proposal seems to be astonishingly broad. If read literally, it would abolish the concept of under-claimed benefits. There are many reasons, even where a claim has been made, for the assessment to understate the entitlement of the claimant.  These include capability,, ignorance, assessment errors, poor process, delays in information or evidence gathering and many others. Recognising and quantifying the numbers and amounts involved should enable the Department and others to identify areas of concern and to address them.

It is unclear, from this note, how claimant error has been defined but in the absence of a clear causal link it will be too easy for ‘error ‘to be widely drawn. There is much research to demonstrate that even where there are issues of error, the causes are frequently linked to poor process design, administrative failings and difficulties in obtaining required information. This proposal seems to assume, very questionably, that the ‘blame ‘must always fall upon the claimant.  Again, absence of any statistics, even as to the number and amount of such cases, will mean that identifying and correcting many issues will become virtually impossible. The duty to provide, in your terms, ‘full and correct evidence ‘, means of course that the claimant must be aware of what that means and what it is. Past experience has shown that, for many claimants, such awareness cannot exist without a corresponding clarity in the data collection process. If the Department is proposing to move to the type of duty found in the insurance industry then they risk removing support from many of the most vulnerable of their customers. Without statistical evidence that this was happening, once again the risks are self-evident.

In short, without much more detailed work on the types and causes of claimant ‘error’ this change is foolish and risks significant consequences.

What others have said.

Also,

‘... it was raised that the policy intent for receipt of benefits is that claimants need to engage with the department to receive the benefits they are entitled to.  If a claimant does not engage, and so does not receive the benefit or full payment they are entitled to, then this should not be defined as an underpayment.   

We have further confirmed that claimants who do not provide the full and correct evidence requested to support their entitlement, have no legal entitlement to that benefit or element of benefit payment. Therefore, there is no underpayment in law. ’

Who is the arbiter of whether or not the claimant has engaged? Who is the arbiter of whether or not they have provided full and correct evidence requested?

It also seems to me that the assertion that

claimants who do not provide the full and correct evidence requested to support their entitlement, have no legal entitlement to that benefit or element of benefit payment. Therefore, there is no underpayment in law. 

is predicated on the assumptions that;

- the Department will have asked only for evidence that is actually required.
- that in order to help establish entitlement, in each instance it will have proactively examined its own records and those records of other government departments that it can more readily access than a claimant as per its obligations as confirmed in Kerr

Those who work representing claimants know that this is routinely not the case. The DPA is cited as a reason why evidence cannot be produced, directions from the FtT to produce evidence are ignored or result in a response indicating ‘no evidence exists’ in cases where the claimant’s own request to HMRC subsequently produces fulsome evidence. None of this is unusual. And where it does occur, the statement that there is ‘no legal entitlement to that benefit’ is dubious at best.

I’ve had a very rapid response, saying:

Thank you for your email, we truly appreciate your constructive feedback.

All the points you’ve mentioned are completely valid and we, as a department, realise the significance of measuring the amounts of under-claimed benefits. We would like to assure you that we are not planning to stop measuring and publishing the statistics on claimant error underpayments. As mentioned in our external engagement guidance, there is an internal user need as well as the high public interest that we need to satisfy.

Our intention is to remove the claimant error underpayments from our headline underpayment figures found in our main publication “Fraud and error in the benefit system”. However, this does not mean that these figures will not be published at all – we intend to publish a separate report, purely focused on the under-claimed benefits, on the same date as our main publication.

The reason for excluding the claimant error underpayments from our headline figures is, like mentioned in the guidance, legislation. This states that, if we are not provided all correct information which could lead to the entitlement change, there is no entitlement until DWP is made aware of these.

That last paragraph, my emphasis, encapsulates the real concern that I have.  It fundamentally changes the meaning of ‘entitlement’.