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Appealing benefit cuts

December 01 2009
If you‘re on benefits, this could affect you - forewarned is forearmed Thousands of people could lose some or all of their benefit under changes being introduced in late 2009 and early 2010 in the way benefits are paid. This is part of a crackdown on work-shy claimants that the Government is calling "the biggest shake-up of the benefits system for 60 years". You can already have your money cut (or "sanctioned") for a number of reasons, but the Department of Work and Pensions (DWP) is gearing up for sanctions on a grander scale than ever contemplated by any Government.

The danger is that many thousands of wholly honest, innocent and jobseeking claimants may find they and their families are left with no money, perhaps for weeks at a time. If your benefit is cut, you have a right of appeal. Wherever possible, you should get help or advice with a tribunal, but people can win them by themselves.

What types of sanction are there?
You can have your benefit cut for failing to look for work, for missing meetings or checks at the job centre, or for failing to follow steps that an adviser recommends. Sanctions follow for convictions for certain offences such as benefit fraud. Benefits may also be cut off where you fail to supply information you are asked for or expected to supply. This happens when the DWP or local authority lose the information you send them.

What will be covered in the new sanctions?

Soon, a policy of workfare will be introduced whereby claimants will be compelled to work simply to receive benefit. Sanctions may also be imposed where you have been fined for certain offences, or have suffered a penalty, including offences for which you may be cautioned. These include alleged criminal acts committed towards benefit staff and could potentially include things as minor as little as making a noise in the benefit office. The sanction may be imposed in response to a caution, so you may not even be convicted of an offence.

What about drug testing?
Included in the Welfare Reform Bill are regulation-making powers to be used where a claimant is suspected of abusing drugs or alcohol. Ultimately, the Government wants to test claimants who are suspected of drug or alcohol abuse, and sanctions could be imposed where you refuse to be tested. Just how qualified job centre staff or hirelings will be to conduct such assessments remains to be seen.

What benefits are at risk?

Sanctions will be mainly aimed at unemployed claimants receiving Job Seeker's Allowance (JSA) or Employment and Support Allowance. (Income support is being abolished.) Under the Bill, "sanctionable benefit" can include housing and council tax benefit.

Which benefits may not be sanctioned?

Certain benefits are likely to be excluded. These may include joint-claim JSA; retirement pensions, disability living allowance, attendance allowance, child benefit and guardian benefit. Certain payments from the Social Fund and Christmas bonuses will be excluded. Sanctions may be imposed for any period from one week up to 26 weeks. Different rules will apply for couples with joint JSA claims.

What about pensioners?
Pensioners may be treated more lightly, as the Secretary of State has a wide discretion. Perhaps with a view to media reaction and calls of 'Scrooge', the Christmas bonus is omitted from the list of sanctionable benefits.

Are there risks?

Yes. A DWP officer may make a mistake, get your name confused with someone else's, misunderstand the facts, or lose your documents and details. You could simply fall victim to a careless or even a plain nasty individual who shouldn't be in the job and takes it out on you, the claimant. A sanction could be imposed out of incompetence, prejudice or spite. There may even be targets of how many people each centre is meant to reach, and cuts in DWP staff are likely. Sanctions may be imposed upon someone who is already subject to deductions - for example, for a Social Fund loan.

How many people will be affected?
Impossible to say, but it is likely to be thousands. Tom McNulty, DWP minister, told Parliament last year that his Department had sanctioned 280,000 claimants up to July 2008. When this happens, the person sanctioned disappears off the unemployment register, giving an impression in statistics that unemployment is falling. Who makes the decision to sanction? The initial decisions are made officials at the DWP, usually based on information from the adviser who works on the claimant's case.

What if you get a sanction?
The first thing to establish is why you are being sanctioned. The DWP should issue a letter explaining the reasons for their decision.

What should I do if I am wrongly sanctioned?

You must appeal in writing against the decision. Put a letter into the DWP office stating that you wish to appeal. Keep a copy and telephone them afterwards to check they have received it. In practice, DWP rules require that any letter that mentions an appeal should be treated as such.

How long do I have to appeal?

You must appeal within one month of the DWP letter.

What happens when I appeal?

Sometimes the DWP will reverse their decision on receiving your appeal letter. If they reject your appeal, then the matter will be sent to the Tribunal Service, which arranges hearings.

What happens next?

The Tribunal Service will write to you asking if you want to go ahead. You should reply in writing and the Tribunal Service will list a date and place for the Tribunal to be heard near you.

What will the DWP do if the case goes to Tribunal?

The DWP sends a bundle of documents to you via the Tribunal Service. Don't be put off by its size. The bundle will give details only of law that is favourable to the DWP. It will not include cases or points that are favourable to you, nor any facts in your favour. It is important that you tell the Tribunal the facts and your point of view.

What is the Tribunal?

Social Security Appeal Tribunals are now known as the 'Lower Tier Tribunal'. Tribunals used to have three members but they are now, increasingly, heard by a legally-qualified judge, who sits alone.

What arguments can be used?
There are lots of potential arguments; and, in most case, there will be an issue which the DWP has overlooked, known as "failing to consider a relevant fact". In a number of cases, sanctions should not be imposed where there is what is called "good cause" for the claimant doing what s/he did - in other words, there are reasons or mitigating circumstances. For example, if you are sanctioned for being late at an interview or not turning up, you may have good cause for not having done what you were told or what was expected of you. In one recent case, a person sanctioned for missing an interview was actually undertaking a DWP-approved study course at the time. The DWP may simply lose the information you have sent and cut off benefit. "Good cause" is not defined in law, so there may be all kinds of good reasons why you should not be sanctioned which the DWP decision maker did not know about.

What happens at the Tribunal?
Appeals are heard before a single judge and can be dealt with quite quickly. The DWP often do not turn up for the hearing. Tribunals concentrate on finding the facts. They tend to be informal, being held sitting round a table at the Tribunal office, and are thus different to courts. However, they are serious proceedings, and the Judges have wide powers to correct DWP errors.

Can a friend come with me?
Yes, a friend or relative can come along to advise or represent you as what is called a "McKenzie friend". S/he can help you take notes and present your case, and give you confidence and support.

What evidence should the Tribunal look at?

The judge will look at your appeal letter and the documents from the DWP and then ask questions. Anyone who knows about your circumstances can give evidence. A lot of evidence is given by simply answering the questions from the Judge. However, the Tribunal should look at any other evidence you bring along.

What sort of evidence can be considered?

A wide range of evidence can be considered. You can bring witnesses who can confirm what you say or talk to the judge direct. If you are on medication, bring a doctor's letter, hospital letters and examples of all your medicines to show the tribunal. Potentially any document, film or photo can be used as evidence.

What happens at the end of the hearing?

Sometimes you will be given the judge's decision immediately. Sometimes it will be later and a copy is always given in writing. If your appeal succeeds, the sanction will be cancelled and any money restored.

Are there further rights of appeal?
Yes, on points of law beyond the Tribunal, and cases eventually can reach the Courts. If you are appealing, get legal advice or guidance from any advice or support agency wherever possible. Useful books on all aspects of social security law are issued by the Child Poverty Action Group. The Government ought to be worried about the impact not just on claimants but also on how DWP centres will cope if they get lots of appeals. One DWP employee recently said that his office would struggle with more than six appeals in a month. In fact, it seemed to collapse with just one!
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