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Benefit Safeguards - policy issues

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Owen Stevens
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Hi all

Unfortunately the safeguarding amendment to the Welfare Reform and Work Bill was not successful.  If interested, you can read more here:
http://www.publications.parliament.uk/pa/ld201516/ldhansrd/text/151214-0002.htm#15121440000458

The reasons given by the minister for requesting the withdrawal of the amendment don’t seem to stack up for the following reasons:
1) The minister said that the Work and Pensions Select Committee report did not recommend that the safeguards should be put on a statutory basis.  These are the relevant recommendations:

“Review of the legislative framework for sanctioning
20.  Given the complexity of the existing legislation, there is a strong case for a review of the underpinning legislative framework for conditionality and sanctions, to ensure that the basis for sanctioning is clearly defined, and safeguards to protect vulnerable groups clearly set out. We recommend that the clarity and coherence of the legislative framework for benefit sanctions policy be included in the terms of reference of the full independent review which we have recommended. (Paragraph 112)
ESA sanctioning
21. […]
We call upon DWP also to review the programme of Core Visits as soon as possible, to clarify what changes to conditionality and the application of sanctions occur as a consequence of such Core Visits. (Paragraph 134)”

While the committee did not make explicit that they called for the introduction of the existing guidance I would argue it is safe to assume that that is what they meant given that they had the guidance (it was submitted to them by Disability Rights UK) and that they included a full section on ESA Safeguarding in their report (http://www.publications.parliament.uk/pa/cm201415/cmselect/cmworpen/814/814.pdf) which quotes from the existing ESA safeguarding chapter (see sub reference 124 in the footnotes of page 42).
2) The minister also takes issue with defining vulnerability too closely.  ESA safeguarding guidance already gives vulnerability has a tightly defined meaning.  It defines vulnerability as someone with a mental health condition, learning disability or condition affecting cognition.  This is the definition quoted on page 42 of the committee report.  It is also the definition DWP continue to write into the guidance for Work Programme Providers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/476639/wp-pg-chap-4b.pdf).  It is true that their new vulnerability guidance does not use this definition but this is not the definition which is relevant for safeguarding claimants of ESA.  It will become relevant for safeguarding claimants of Universal Credit who miss a Work Capability Assessment medical. 
3) The minister states that the guidance is easily accessible.  It was available in that location at the point at which the Chief Exec of Mind told the committee that he was not aware of core visit safeguards being followed at all (http://www.publications.parliament.uk/pa/cm201415/cmselect/cmworpen/814/81409.htm#n130). 
4) The minister states that the guidance is regularly reviewed.  DWP appear to have recently watered down the Work Programme Provider guidance to make it significantly weaker (see http://www.rightsnet.org.uk/forums/viewthread/9051/). They also appear to have removed the section on core visits from the chapter it was previously in, we hope that they have not also watered this down significantly but will now have to make a new set of FOIs to try to track this down again.  This emphasises the need for safeguards clearly set out in legislation rather than guidance.

     
Owen Stevens
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Safeguards and judicial review

There are significant inconsistencies and weaknesses to DWP safeguarding guidance (guidance can be found here: http://www.rightsnet.org.uk/forums/viewthread/9141/).

The following areas of weakness are particularly common:
- DWP refusing to safeguard after a client fails to attend a WCA because the client has already had their responsibilities explained to them
-DWP refusing to safeguard after a client fails to attend a WCA because the client provided reasons for their failure to attend
-DWP attempting to safeguard a client by making failed attempts at core visits and then refusing to notify third parties of benefit stopping

There are a number of possible grounds you might argue in a JR in relation to safeguarding:
1.    Failure to follow the Department’s own policy on safeguarding;
2.    Failure to make reasonable adjustments for disabled people under the Equality Act 2010;
3.    Breach of the Public Sector Equality Duty under the Equality Act 2010;
4.    Discrimination under Article 14 of the European Convention on Human Rights;.
5.    Irrationality – for example where there are arbitrary or irrational inconsistencies in the guidance.

You can find firms whch have a public law contract here: http://find-legal-advice.justice.gov.uk/

     
Owen Stevens
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“Between December 2012 (when the current sanctions regime was introduced) and
September 2015, 73,711 sanctions were imposed on ESA claimants.22 The Government
points out that safeguards are in place to ensure that ESA claimants are not sanctioned
inappropriately and to minimise adverse effects on vulnerable groups. However, a report
by the Work and Pensions Committee from session 2014-15 suggested systems may not
always work effectively.23 It noted concerns that the stringency of the ESA regime was
not currently balanced by effective support for claimants in the Work Programme, and
that there was limited evidence that financial sanctions were effective in moving claimants
who were some way from the labour market closer to work.”
http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7571#fullreport

Section mentioning safeguards in HoC briefing.

DWP constantly raise safeguards to deflect criticism of the sanction regime for people with LCW, While concerns have been raised there has been no detailed examination of the substance or operation of the safeguards by any select committees or similar.

     
Owen Stevens
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Link to my post on another thread also relevant to subject of this thread

http://www.rightsnet.org.uk/forums/viewthread/9051/#43947

     
Dan Manville
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Don’t forget that there is redress in private law as well. Work Programme Providers may be open to Employment Tribunal claims and DWP is subject to EQA damages via the County Court.

It is a rocky road to success but experience tells me that even failed claims lead to policy change…

     
Owen Stevens
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Putting these here as I have realised I have not posted them anywhere else. 

These FOIs show that DWP do not collect stats on safeguarding/core visits, that the only stats provided to parliament on core visits were estimates and were not exclusively limited to safeguarding, that DWP do not collect stats on WPP sanction referrals cancelled due to lack of safeguarding.

     

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Owen Stevens
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Disability Rights UK have included a section on safeguarding in their submission to the NAO on sanctions.  See: http://www.disabilityrightsuk.org/news/2016/april/our-submission-nao-sanctions-study

     
Owen Stevens
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Not a change to safeguarding guidance but may interest people interested in this thread: http://www.rightsnet.org.uk/forums/viewthread/9980/

     
Dan Manville
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Owen… save me surfing all these links again.

I’ve got a WP sanction that goes back to September ‘14; the following November (according to the WPP’s file that I’ve got a copy of) they tried to lift it because they decided my punter was in a vulnerable group.

I don’t suppose you’ve got a link to the guidance that was extant at that time?

Cheers

     
Owen Stevens
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Hello all

Comprehensive account of work so far on safeguards: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-accounts-committee/benefit-sanctions/written/44090.html (PDF: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/public-accounts-committee/benefit-sanctions/written/44090.pdf )

Over the next few weeks I hope to post a little more about the work going on within Greenwich on this topic.

     
Owen Stevens
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The following extracts are taken from the Work and Pension Committee report on the Disability Employment Gap (report: http://www.publications.parliament.uk/pa/cm201617/cmselect/cmworpen/56/56.pdf).

“Within JCP, the Department should also devote greater attention to protecting disabled benefit claimants from hardship related to sanctions, which may push them further from work. It should develop a code of conduct for Work Coaches on applying sanctions to disabled claimants, incorporating its existing safeguarding guidance and additional guidance on how to consider the impact on a claimant’s physical and mental health when deciding whether to make a sanction referral.”

“30. The Department has safeguarding procedures in place relating to some ESA claimants, intended to ensure that “no sanction is imposed inappropriately”; for example because a vulnerable ESA claimant has not fully understood the mandatory requirements of them and the consequences of noncompliance.  It has also trialled a Yellow Card scheme, whereby claimants would be given 14 days to produce evidence of “good reason” for noncompliance before receiving a sanction.  The Benefit Claimants Sanctions (Required Assessments) Bill proposes to extend DWP safeguards.  It would require the Department to take into account claimants’ mental and physical wellbeing (amongst other factors) in deciding whether to impose a sanction, and to assess automatically whether they would qualify for hardship payments. We heard such an approach could be beneficial for some disabled claimants: particularly those with mental health conditions. Witnesses told us that there is a substantial risk that imposing sanctions on such claimants can increase stress, and lead to a deterioration in their health. Rethink Mental Illness, a mental health charity, explained:

‘The evidence base for [sanctions] effectiveness in changing behaviour for people with mental health problems is not well-established. Putting people with mental health problems under pressure to engage with support or employment that they find unhelpful or inappropriate for them will be detrimental. This could make moving into work more difficult, undermining the objective of the policy.’

31. The Department must ensure that in attempting to ensure that disabled people comply with the conditions of their benefits, it is not inadvertently harming their work prospects. Sanctions, where applied, should be a means to an end rather than an end in themselves. We heard that inappropriate sanctions can cause significant hardship, which in turn can affect the health of disabled claimants and make a return to work less, not more likely. The Department must consider how it can enhance the protection that it offers to disabled claimants. Drawing on the outcome of the green paper consultation on the Support Group, and the Yellow Card trial, we recommend the Department develop a Code of Conduct for Work Coaches on applying sanctions to disabled people. This should incorporate existing safeguarding advice on protecting vulnerable ESA claimants. It should also include guidance on how to consider the impact on a disabled claimants’ mental and physical wellbeing when deciding whether to make a referral for a sanction.”

     
Owen Stevens
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Here’s a link to a briefing on the Benefit Claimants Sanctions (Required Assessment) Bill 2016-17
http://researchbriefings.files.parliament.uk/documents/CBP-7813/CBP-7813.pdf

The briefing has a section on safeguards in ESA which links to the CPAG article on safeguards.  DWP have made changes to the safeguards since that article was written.  For the most up to date details of the ESA safeguards see the most recent updates on this thread: http://www.rightsnet.org.uk/forums/viewthread/9141/

      [ Edited: 3 Feb 2017 at 01:03 pm by Owen Stevens ]
Owen Stevens
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The PAC has published their sanctions report.  It’s quite short but contains the following paragraphs relevant to safeguards.

From the conclusions and recommendations:
“Sanctions are imposed inconsistently on claimants by different jobcentres and providers. Sanction use varies substantially, some Work Programme providers refer twice as many people for sanctions as other providers in the same area. The Department for Work and Pensions (the Department) told us there will always be variation. This does not mean that current levels of unexplained variation are acceptable. It is important that the use of sanctions is fair and consistent and the Department has not analysed why some jobcentres use sanctions so much more than others. Jobcentres may be applying different standards. Citizens Advice and Crisis are concerned that inconsistency affects vulnerable claimants the most. Some vulnerable claimants can be excused from having to meet benefit conditions, but the Department does not monitor how often these exemptions are used, so it cannot be sure that vulnerable people receive the protection they are entitled to.
Recommendation: The Department should monitor variation in sanction referrals and assess reasons for the differences across jobcentres. It should monitor the use and take-up of protections for vulnerable groups, reporting back to us by the end of 2017.”

From the ‘Implementation’ section
“11. Citizens Advice and Crisis were concerned that inconsistency particularly affects the most vulnerable claimants. The Department accepts the importance of protecting vulnerable claimants and has introduced safeguards intended to ensure that they are not sanctioned inappropriately. More broadly the Department explained how it aims to improve relationships between claimants and work coaches, and to make conditions more sensitive to individual circumstances. However, Crisis told us that these safeguards are only imperfectly working in practice, and that homeless people are sanctioned at twice the rate of the general claimant population. Crisis told us vulnerable people are not necessarily being targeted, but are more likely to be unable to comply with the sanction regime. The Department can use formal rules to protect people with particular needs, for example to excuse victims of domestic violence from meeting conditions for a limited period. But it relies on claimants self-reporting their personal circumstances, and work coaches being aware of the protections available. The Department does not track use of the protections and cannot tell whether work coaches use them effectively.”

https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/inquiries/parliament-2015/benefit-sanctions-16-17/

      [ Edited: 21 Feb 2017 at 12:05 pm by Owen Stevens ]
Owen Stevens
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I’ve updated my document on the safeguarding work to take account of a few recent FOIs.  I’ve also included an extra section based on the SSAC annual report

      [ Edited: 1 Aug 2017 at 01:34 pm by Owen Stevens ]

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Owen Stevens
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A couple of very minor updates…

     

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Owen Stevens
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https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/651448/Treasury_minute_12_October_Cm_9505_Web.pdf

Responding to the PAC report mentioned above the government has committed to monitor the use and take-up of protection from sanctions for vulnerable claimant groups.

Edit: The January 2018 minute report provided the following update:
“2.4 The Department is still considering the best way to qualitatively assess the use and effectiveness of protections for vulnerable claimants, which are applied against a backdrop of dynamic and changing claimant circumstances. Protections are applied, but the Department’s systems do not support the central collection of this data. Ensuring protections are applied appropriately is a local management responsibility, which is underpinned in work coach quality standards and other supporting products.”
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/676345/CCS207_CCS0118804018-1_TM_2010-12_to_2016-17_Jan18_Accessible.pdf

      [ Edited: 7 Aug 2018 at 02:49 pm by Owen Stevens ]