Back to the future - 30 years of Adviser
As Adviser celebrates its 30th anniversary, Richard Machin looks back at the
benefit issues that were being discussed in issue 1 of the magazine and finds
some striking similarities with current themes in the social welfare law sector.
December 1986… Margaret Thatcher has been the Prime Minister for more than seven years and has overseen an unprecedented period of political and social change. Norman Fowler is the Secretary of State for the (much maligned) Department of Health and Social Security (DHSS).
Unemployment has fallen to a four-year low but still stands at well over three million and British Gas becomes the latest public company to be floated on the stock exchange (a high-profile media campaign encouraged the public to become shareholders using the strapline ‘If you see Sid…tell him!’). December 1986 also marks the publication of the first edition of Adviser. Three issues dominated Adviser 1: the assessment of ‘sick claimants’ for Invalidity Benefit, unacceptable delays in the payment of Housing Benefit and changes to the Industrial Injuries Benefit Scheme. This article looks back at the themes that were being discussed in that first edition and finds many parallels with current issues in the advice sector.
Assessing incapacity for work
In Adviser 1, Jill Wilson explored the significance of two commissioners’ decisions (R[S] 6/85 and R[S] 7/85) which provided guidance on how DHSS adjudication officers should make decisions on a claimant’s incapacity for work. It is striking to note that the article reminded advisers that proof of incapacity via a GP’s sick note was generally accepted for six months (often longer). Following this claimants were called to a Medical Board where a second opinion was provided. Problems were often experienced at the Medical Board with claimants being assessed as ‘fit for light work’ or ‘work within limits’ even though it was accepted that they remained incapable of undertaking their normal occupation. The burden of proof rested with the claimant to show that they could not perform alternative work. Adjudication officers would provide a list of jobs that they believed the claimant was capable of doing (remember the classic ‘DHSS security guard’?). R[S] 6/85 and R[S] 7/85 moved the emphasis away from claimants and towards adjudication officers. It was found that an affirmative conclusion on incapacity could only be reached if adjudication officers provided specific job descriptions which related to the individual circumstances of the claimant. The author of the article welcomed this move stating that the need to supply job descriptions would greatly assist representatives in proving that a claimant could not perform alternative work. R[S] 7/85 urged adjudication officers to deal with ‘actualities’ rather than ‘general statements’.
The technical detail of these commissioners’ decisions is interesting and will be familiar to many current Adviser readers. Of broader significance is the fact that 30 years later politicians, policy makers and advisers are still debating what an affordable, consistent and proportionate test of ‘incapacity for work’ looks like. To emphasise this the Government published the ‘Work, Health and Disability’ Green Paper in October 2016(1) and a consultation on ‘what it will take to transform employment prospects for disabled people with longterm health conditions’ runs until 17 February 2017. The outcome of this consultation will be interesting. The Green Paper acknowledges the need for a more personalised and straightforward approach to assessing entitlement to disability benefits. However concerns have been raised in the advice sector about the emphasis that the Green Paper places on reducing the number of claimants in the ESA support group (50% in 2015) and the plans to move far greater numbers of people away from the benefit system and into work. The tension between providing meaningful financial support for those who can’t work and ensuring those that can work do work is as evident now as it was in 1986.
The think-tank Demos published a report in 2015 (‘Rethinking the work capability assessment’)(2) which advocated a ‘real world assessment’ of out-of-work disability benefits. This study looked at a range of countries with similar assessment systems to the UK (for example, Canada) and countries with marked differences (for example Sweden). The authors argue that in its current form the work capability assessment measures the wrong things as ‘it simply does not assess claimants’ capability for work. It assigns points to functional impairments, but never considers whether there are any actual jobs that a claimant could do’. The report cites systems used in the US and Netherlands where occupational databases (detailing the requirements of different jobs) are used as a tool against which the functions of a claimant are assessed. This perhaps suggests a more sophisticated approach to the one reported in the first edition of Adviser where adjudication officers were directed to use job descriptions to improve their decision making (and illustrates the cyclical trends in the debate at incapacity for work).
Delays in housing benefit payments
‘Thousands of people moving into new tenancies are running up arrears because of benefit delays’ wrote Bob Prew in 1986. His article in Adviser 1 described the Catch-22 for many claimants who could not move into a new property until they received a DHSS single payment for furniture, but were unable to claim Housing Benefit until they were resident in their new property. The article cited the Tribunal of Commissioners’ decision R (SB) 7/86 which stated that a new address does not constitute a home until it becomes ‘normally occupied’. The strategies suggested to advisers to deal with this restriction were to apply to the DHSS for an ex-gratia payment and to apply for housing benefit (for a maximum of four weeks) for the overlapping period.
The description of rent arrears as a result of problems with benefit adjudication and the reliance on discretionary payments has obvious links with issues that we are currently seeing with the roll-out of universal credit (see Adviser 175 ‘Universal Credit - teething problems or one big headache’). In June 2016 the National Federation of ALMOs (NFA) and the Association of Retained Council Housing (ARCH)(3) published the results of research conducted with 20 local authorities and Arm’s Length Management Organisations (ALMOs) into the impact of the introduction of universal credit. Of the 3,000 households surveyed they found that 79% of those receiving universal credit were in rent arrears, compared to 31% of tenants overall (the total level of rent arrears for universal credit claimants was also slightly higher, £321.05, than the average rent arrears level of £294.57). The research shows the six-week assessment period for universal credit claims combined with the initial seven-day waiting period for universal credit entitlement is the main reason for the accrual of rent arrears. My own Staffordshire University research(4) into the impact of the ‘bedroom tax’ in North Staffordshire indicates how many of the most vulnerable tenants rely on discretionary housing payments and how the system creates a postcode lottery depending on which area of the country, and the time of year, in which you apply. On reading Bob Prew’s article we can substitute the DHSS ex-gratia payments he described in 1986 with local authority discretionary housing payments in 2016 and the delayed housing benefit payments of 30 years ago equate to the problems many claimants currently face with delays in housing support under universal credit. We are witnessing different systems creating similar vulnerabilities for claimants who should be able to rely on a more robust safety net.
The changing shape of industrial injuries
In Adviser 1, Peter Jones analysed an Appeal Court case (Nancollas v Insurance Officer 1985) which provided clarification on the term ‘arising out of and in the course of employment’. He noted that this term could be traced back to the 1897 Workmen’s Compensation Act and has been a blessing and curse for advisers dealing with Industrial Disablement benefit claims. The Court of Appeal heard together two cases from the Commissioner and finding in favour of the claimants urged adjudicating authorities to take a broad approach: ‘There are no rules, other than that which is contained in the statute: if looking at the whole factual picture, the claimant suffered the accident whilst in the course of employment, he is eligible for benefit.’ The author welcomed this decision, stating that many adjudication officers had taken an overly restrictive view of the ‘arising out of and in the course of employment’ test and that this decision provided a wider interpretation for advisers to pursue on behalf of their claimants (the article ‘Industrial injuries - the medicolegal minefield’ in Adviser 171 discusses some of the tactics that are currently available to advisers seeking to challenge Industrial Injuries Disablement Benefit decisions). Of more concern, the article reported that changes taking effect from October 1986 would see Special Hardship Allowance replaced by Reduced Earnings Allowance. Jones stated that this move would see 180,000 claimants losing benefit at a saving of £55 million to the Government. With clear parallels to more recent cuts to disability benefits it was noted that ‘despite the general opposition to the proposals (from the disability lobby) the Government have introduced the cuts’.
Reflecting on the state support provided to workers it is interesting to note the changes in the type of jobs that the UK workforce is currently engaged in compared to 1986. Statistics from the latest census(5) in 2011 showed that only 13% of men are employed in construction, 13% in manufacturing and 71% in the service industry (the figure is even higher for women with 92% of working women employed in the service industry). This changing employment landscape brings new challenges for employees and social welfare law professionals (e.g. zero hours contracts, enforcing the minimum wage, disability discrimination) and Adviser remains a key resource in analysing these issues.
The expertise and passion of the authors of Adviser 1 can be clearly seen in their writing and this has remained a feature throughout the magazine’s history. Countless professionals (and volunteers) have reached for Adviser since the first edition for its technical guidance and interpretation on a huge range of social welfare law issues. A final point of interest: the ‘Guide to Housing Benefit’ and ‘Fuel Rights Handbook’ are advertised as essential reading and cost £4.95 each. How many Adviser readers still have those 1986 editions somewhere on the bookshelf?
1. Department for Work and Pensions and Department for Health (2016) Work, health and disability green paper: improving lives. Available at: https://www.gov.uk/government/
2. Demos (2015) Rethinking the Work Capability Assessment. Available at: https://www.demos.co.uk/project/rethinking-thework-capability-assessment/
3. National Federation of ALMOS and Arch (2016) Universal Credit: One Year on. Available at: http://www.almos.org.uk/include/getDoc.php?did=7534&fid=8807
4. Poverty (Journal of Child Poverty Action Group) Issue 52. Staying put: The impact of the ‘bedroom tax’ on tenants in North Staffordshire. Available at: http://cpag.org.uk/content/staying-putimpact-bedroom-tax-tenantsnorth-staffordshire
5. Office for National Statistics (2011) 170 years of industrial change across England and Wales. Available at: http://webarchive.nationalarchives.gov.uk/20160105160709/
Richard Machin is a lecturer in social welfare law, policy and advice practice at Staffordshire University.
This article was first published in Issue 179 of Adviser magazine (January/February 2017).