Discretion is an injustice: DWP threatens to sanction disabled people challenging flawed health assessments under Universal Credit

Over 112,000 signed our petition, many of whom are shocked and upset about the DWP' discouraging GPs from providing fit notes and allowing people to access the appeal rate of Employment and Support Allowance (ESA). But under Universal Credit no equivalent exists, leaving disabled people like “Aaron” threatened with sanctions.

Andy McCarthy, Caseworker

Like many of our clients, Aaron’s Employment and Support Allowance (ESA) claim was turned down. He had no choice but to move onto Universal Credit (UC), and was put forward for another Work Capability Assessment under the new benefit. He was told to make a claim for UC by the Job Centre, it was before the rules came in so that people receiving Severe Disability Premiums (SDP) were still told to migrate over. Predictably, he was found fit for work for a second time within 6 months.

Aaron has HIV, mobility problems and depression. He has frequent thoughts of suicide, and is receiving the Disability Living Allowance (DLA) at the highest rate for both care and mobility.

With Z2K’s help, Aaron was able to challenge his negative ESA decision, being placed in the support group. However, because of the second health assessment being negative, his entitlement to the Support Group rate (called LCWRA rate under UC) stopped from the new decision date.

Applying for a mandatory reconsideration, we forwarded the tribunal’s decision notice to the decision maker, but this did not change their negative decision:

“It is accepted that you have made previous appeals which have been allowed, however this has no bearing on the decision under reconsideration. A person’s medical condition and functional abilities are subject to change and the Decision Marker has to consider your condition at the date the decision is made.” – Aaron’s mandatory reconsideration notice

So Aaron has now been forced to go through the grueling appeal process twice in less than a year. Under the legacy benefit system this would be stressful enough, but under Universal Credit disabled clients are also threatened with sanctions.

Last year I highlighted the regulation changes under Universal Credit which leave disabled clients financially vulnerable , including the removal of an “appeal rate” of the benefit.

Sarah Newton, the previous Minister for disabled people, last year referred to the appeal rate of ESA being a “very long standing policy in relation to sickness benefits” in response to our report Access Denied.  

In the absence of an appeal rate, the Department for Work and Pensions (DWP) have repeatedly told us that work coaches will use their discretion to avoid undue hardship for vulnerable clients. However, this discretion seems to be completely void for clients challenging negative LCW decisions. This work coach’s message on Aaron’s journal typifies the problem:

“I am sorry to see Aaron did not satisfy the criteria to be recorded as having limited capability for work.  I see the decision has already been appealed (mandatory reconsideration) therefore Aaron is required to attend all Job Centre appointments. Whilst I acknowledge your request not to sanction Aaron, I have to ask that you remind him that he does need to attend the Job Centre to make plans as to how he can make steps to go back into work or will face a sanction.”

Aaron already has maximum deduction from his Universal Credit (40% of his personal allowance), leaving him with just £44 a week to live on. He has also already proved that he cannot work due to his disability after a 9 month wait to receive justice at an ESA tribunal. The idea that he should be sanctioned for not looking for work is an affront to common sense, and surely a system which values discretion would plainly see this.

In addressing this lack of an equivalent of the ESA appeal rate under Universal Credit last year, I was unsure whether the move was a naïve oversight in government policy, or a deliberate way to disincentivise people challenging an unfair system from receiving justice. In our experience, it seems to be the latter.

We are repeatedly told that the great thing about Universal Credit is that there is more discretion for Work Coaches to exercise. However, the idea that disabled people’s financial dignity while challenging a demonstrably flawed assessment process should be anything other than a statutory right, is a cruel injustice.

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