Has ICE Thawed? One Degree of Change – Progress with the Independent Case Examiner

The complaints process in public authorities is often a very slow and arduous one.  At times it seems as if it is designed to put people off at every step of the way.

By Daniel Wrapson

The complaints process in public authorities is often a very slow and arduous one.  At times it seems as if it is designed to put people off at every step of the way.  At DWP, for example, once a complaint has gone through the first two stages it is then escalated to the Independent Case Examiner (ICE).  There is currently a long backlog of complaints waiting to be assessed.  The complaint featured below was sent on 26th September 2016 and a final decision was determined on 6th August 2018.

Mr S has learning difficulties, depression and neurological problems causing pain in his back and knees. Despite these conditions, he failed a Work Capability Assessment on 12th March 2015.  The assessment did not identify Mr S’s learning difficulties and awarded him zero points.

He applied for Job Seekers Allowance on 1st April 2015 and had an initial work search review the following week.  At the interview Mr S’s learning difficulties were still not identified despite him having submitted letters from his GP outlining his conditions.  No reasonable adjustments were made and Mr S did not get a Disability Employment Advisor.

Mr S also requested a Mandatory Reconsideration of the ESA decision.  This came back negative on 1st May 2015.  He put in an appeal on 29th May 2015 in which he also requested that he should be paid the assessment rate of ESA pending his appeal.  However this was ignored and Mr S remained on JSA.

Mr S missed an appointment at the Job Centre and was sanctioned on 20th July 2015 for a period of four weeks.  He requested a hardship payment and was awarded £58.50 a week – 80 per cent of the minimum he was deemed necessary to live on.  At the same time, however, Mr S’s appeal was allowed.  At that stage, his ESA should have been reinstated and upgraded to ESA-Work Related Activity Group.  It wasn’t.  And when I called to chase this up, I was told he would need to cancel his JSA claim first.  It was not for another four weeks that DWP finally began to pay Mr S his ESA, but even then it failed to add the £29 a week extra Limited Capability to Work component.  It took another six months before this began to be paid.

DWP refused to offer Mr S any compensation for its poor service.  And so in September 2016, I escalated his formal complaint to ICE.  It was one of the first such referrals to ICE I had made.  And little did I realise it would be nearly two years before we got a decision.  The investigator said that he acknowledged that there was, “no information on the ESA 65 about what could happen if the decision does not change as a result of the MR and the claimant chooses to lodge an appeal with her Majesty’s Court ad Tribunal Service.”  He made it clear that Mr S should have been awarded ESA pending appeal when he notified DWP of his intention to appeal.  ICE also accepted that DWP got the payments of Mr S’s arrears completely wrong and then took much too long to correct that error.  As a result, it has ordered DWP to pay Mr S £250 compensation.

This is obviously more helpful than DWP’s original response to my complaint.  However, the investigator did not uphold those aspects relating to DWP’s failure to offer Mr S “reasonable adjustments” or refer him to a Disability Employment Advisor, or its decision to sanction his JSA.  I am also disappointed that ICE has told DWP to ensure all those refused ESA are notified of their right to get ESA Assessment Rate while they await their appeal or to make changes to its processes to ensure greater accuracy of calculating arrears and processing them quickly in the future.  Given this, Mr S has agreed that we now escalate his complaint to the Parliamentary Ombudsman.

It is now three and a half years since DWP’s woeful decision on Mr S’s ESA claim, and two and half years since I first formalized our concerns as a complaint.  I don’t think this kind of excessive delay is fair at all.  ICE is taking far too long to reach decisions on what should be straightforward complaints.  It is clearly understaffed, as was implicitly admitted in response to a Parliamentary Question back in June, which stated that, The Office has been allocated additional resource for the 2018/19 reporting year which should improve overall waiting times.”Exactly what this resource is and how it is being used wasn’t specified.  In my view, given it is actually part of DWP’s own complaints procedure, it needs to be enough so that ICE can reach a decision within a maximum of three months. If cases are not considered within this deadline, then complaints should be passed to the Ombudsman for a more impartial determination.

So the question is whether ICE has thawed?  A little, but not enough.

Published: 19th September, 2018

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