The DWP, the Law and Atos

Great news this morning - on the BBC and everything - that the National Audit Office have found "weakness" in the contract between Atos and the DWP.

Thanks to Tom Greatrex MP (Lab) who asked the NAO to look into the contract,

"The National Audit Office said the DWP had failed to penalise Atos for "under-performance", and had not set "sufficiently challenging" targets."

The NAO criticised the DWP for inaccurate forecasting and effectively, charging the taxpayer twice - once for spending £112 million last year on the Atos contract to assess sick and disabled people for their fitness for work, and again for spending £60m on tribunals to clear up the mess of wrong decisions. 

Although Atos have failed to assess claimants within agreed timescales, the National Audit Office also criticised the DWP for failing to seek "financial redress" in all but 10% of cases.

However, there is one part of the report that worries me and which I would like to clear up here.

"The NAO said it was unclear whether the quality of the tests was to blame for the number of wrong decisions......"It is difficult to assess, as the department does not routinely request feedback on the rationale for tribunal decisions"

This is a rumbling theme from ministers. In the year two Harrington report, there are several references to the tribunal system. Ministers are clearly irritated that they do not give their reasons for overturning Atos decisions, they refuse to modify their practices to come into line with Atos and rather emphatically, they refused to undergo "training" on "disability employment" suggested by the DWP. Their answer, that they merely there to interpret the law. 

And here is the point. In around 40% of cases, decisions are overturned at tribunal. This figure itself is misleading, as with a trained benefits advocate, the figure rises to 70% or in some cases 100%!! Yep, some advocates have successfully challenged ALL Atos decisions that went to appeal. 

Crucially, the tribunals make their decisions based on law. They decide, legally, whether or not a claimant is fit for work based on precedent, existing case law and employment law. Much as the DWP might wish it were not so, the decisions overturned by the tribunal system were not just wrong, they were illegal. 

The DWP have asked for "clarification" but in fact, they simply have to know the law. The tribunal judges have no need to explain their decisions, it is all there for ministers to see. 

By introducing a totally new benefit, ESA (Employment and Support Allowance, the replacement for the old Incapacity Benefit) ministers hoped that they were able to wipe all precedent from the decision process. What does this mean? It means that if you qualified before, you need not qualify under a totally new benefit. Not that you are a fraud in 2012 where you were not a fraud in 2005, simply that governments moved the goalposts. Or hoped they had. 

However, if it was dangerous to employ someone in 2005  (due to medication, inability to mobilise etc) it is still dangerous to employ them in 2012. Under the law. If someone's condition clearly limits their ability to work in 2005, it still limits their ability to work in 2012. Under the law. If someone's disability made them a danger to themselves or others in 2005, nothing has changed in 2012. Under the law. 

I would like to say very clearly that whatever ministers may attempt to undermine the tribunal system, however many times they remove this MoJ video from the internet, aimed at helping claimants with the appeal process, however much they harp and grumble, even the DWP cannot change the law.

They can remove legal aid from benefit claimants to make it harder for them to access justice. And they have. 

They can stop a person's benefits while they wait up to a year for a  tribunal to be heard. And they are trying to do this too. 

They can refuse to set a limit on how long that wait for a tribunal might be, effectively meaning a claimant might wait indefinitely for justice with no funds to survive. And they have. 

But they can't change the law. The simple fact is, that over 40% of Atos decisions go to appeal. The horrifying truth is that many more do not. Many more people simply give up. Beaten down by the horrific system designed to fail people in genuine need, desperate illness or constant exhaustion, they disappear from the figures, fall off the edge of the system and no-one knows what happens to them. 

Anecdotally, I hear every day of people selling their homes, going hungry and worse. I try to encourage them to appeal, but many thousands of people never will. Good honest people, they will believe that they are unworthy, believe that they must struggle into debt and poverty, believe that they do not have the strength to fight. 

So Atos, DWP, the descriptors you use to determine fitness for work are unfit. The system is unfit. You know it is unfit, you have been told by every major study into it. You cannot make the law bend to your flawed system, you must bend to the law. 

And I predict - because it is the only way - the law will not bend to you, you will bend to the law. 

It is only a matter of time, however you twist and turn and cheat. 

** Great thanks to Tom Greatrex (@tomgreatrexmp) for taking this route to expose the inadequacies of WCAs and to Liam Purcell, from Church Poverty Action Group for providing yet another copy of the infamous MoJ appeals video which has, YET AGAIN been removed from the internet on the instruction of the DWP. If you are facing an appeal, it is very helpful and I urge you to watch it. I imagine it will be censored from my site again fairly shortly.