Tuesday, 28 January 2014

ESA Claimants- 'Tried To Claim'


Language matters; our choice of words doesn't just communicate to others the ideas we want them to infer about the world they see, those words also communicate our intent.

To say that ESA claimants 'tried to claim' the benefit carries only two meanings. The first is that they made an attempt and failed, therefore they did not 'try and claim' but 'tried to claim'. The fact that they did claim ESA makes this gibberish, so only the remainder could possibly be true. You only get an assessment after spending a period of time in the assessment phase, during which you are claiming ESA at the assessment phase rate.

The DWP press office is trying to get those who follow the Twitter account to infer that these people were not merely found 'fit for work' and therefore ineligible following the assessment, but from the moment their attempt to claim began. The only reasonable conclusion that follows this inference is that over a hundred-thousand people were wrongly making ineligible claims.

In a world where the government is actually held to account by someone, a message like this put out by a government department directly into the public domain would be swiftly corrected. In a world where the government felt the slightest bit threatened by social security e-pamphleteers like myself, they would quietly remove that tweet and hope no one notices.

But we live in this world, so the most likely thing to happen is that this will be ignored, nothing will happen and they will get away with it as has been the case non-stop for three and a half years now.

Thursday, 2 January 2014

Double-Triple Jeopardy

Self-congratulatory journalists like to quote a saying, something like 'the relationship between the press and politics is like that of a dog and a lamp-post'. The intent is to assure the reader that their profession is inclined towards antagonism against politicians, therefore our leaders must be inclined towards the public good in order to address the balance rather than give writers rancid material to sling at them. The past few years have taught me how self-serving this comparison is; the relationship between news media and politics is more like that of relatives openly engaged in incest, in full view of the public and then not only blatantly lying about it but changing the definition of the word itself. 


About three years ago we started using the term 'bedroom tax' on Twitter to describe a policy in one of the white papers accompanying the draft for the Welfare Reform Bill- the policy to charge an 'under-occupancy penalty' on social housing tenants, to be levied as a charge on the benefit itself. This charge is 'positive' because there was no subsidy for rooms in any way, the benefit paid for a percentage of the rent for the domicile as a whole. The charge is not based on any calculation to do with the attributes of the rooms in question. For the charge to be 'negative', the withdrawal of a subsidy needs there to be a subsidy in the first place but there wasn't. The term spread to blogs and then to mainstream journalists and then the Labour party shadow cabinet, where it has enjoyed life as a 'Labour-coined lie'. The only bit about it that is a lie is its origin as accepted by the media and political establishment. Campaigners named it and used it because FIRST it was ACCURATE and only then because we knew it would catch on. The only people who seriously challenge the accuracy of the term 'bedroom tax' are those who were paying no attention to us when we were first trying to raise awareness of it well in advance of the Welfare Reform Bill becoming an Act of Parliament. They didn't read the white papers, they didn't read the drafts and I doubt they've even read the Act that has come of it since.

Unfortunately, we can thank journalists for this. Their interest has purely been in human interest; their focus has always been what has already happened or what is happening in the immediate now, all at the expense of what happens next even when the facts are waved directly in front of their faces. This is how Iain Duncan Smith has lasted this long and it's not just his friends in the media who have been generous to him, it's the supposed ideological enemies who have also given him the softest resistance. Last Summer they were warned of the policy of 'mandatory reconsideration' where an ESA claimant must wait for the DWP to reconsider their decision in their own time before the claimant can invoke their lawful right to seek redress at tribunal- journalists were told by myself and others "THIS is the next bedroom tax, if you have any interest in justice rather than simply human interest to sell newspapers, you'll start printing stuff about this NOW". The hope was that something would be done before the policy came into effect, but there was silence. November came and so did mandatory reconsideration.

2014 is the window of opportunity now because the first year is the best chance of forcing a U-turn after a policy is in effect. So we've been faced with a seemingly trivial but critically important question: what do we call it? The first bit is simple: we call it what it is, like we did last time with the bedroom tax, rather than allowing those perpetrating it to choose their own dishonest language. It also has to be no more than two words, which are common and widely understood. I have some suggestions, but it's likely others will come up with better- my only stipulation is that the term is ACCURATE. That is why it is important to talk about what the policy is, not what the government call it. Our aim is not to simply contradict them but form it into something that could be in a newspaper headline, eventually.

People will starve. When you are denied ESA, all the gateway benefits like Housing Benefit and Council Tax Relief stop almost immediately. If you opt to claim JSA, you will be told by the advisor at the Jobcentre Plus that this voids any appeal you would make against your ESA decision because a condition of Jobseekers Allowance is that you declare that you are not sick or incapacitated beyond the ability to seek and keep employment. The government has denied this happens, but the law for this piece of conditionality regarding JSA has not changed, it will not change under Universal Credit(but gets worse) and this is what advisors are telling people. The policy denies ESA indefinitely as claimants will not be given a time-frame where they can expect a decision and the policy is limitless because there is no statutory requirement in primary or secondary legislation nor even guidelines.

First words that came to mind here were 'parking, review, indefinite, limitless' but there is more to the policy, a sub-text that is not being discussed.

There is a misconception that the tribunal service does it's own assessment of your ability to work and decides whether the DWP got it right. They don't: their only purpose is to test in each case whether or not the DWP followed the law as it is written. So when 40% of appeals are successful, it does not mean the DWP have been proven wrong any more than they are proven right for the other 60%: it simply means that the decision was lawful. As statutory entitlement keeps playing even less of a role in determining eligibility and the whims of ministers take over as they've granted themselves unprecedented powers on this, more DWP decisions will be found to be lawful. But none have ever been found to be right.

The twist is that when you ask for a reconsideration, are the DWP sending your case files off to lawyers? As far as I've been able to tell- no, they do not. The DWP are not checking to see if the decision was legal, they're simply re-assessing your case, but the justification for this policy was to 'reduce the number of successful appeals by getting it right first time'. There is no test for whether the DWP got it right first time though, only whether they made the decision lawfully but this is not what the DWP are assessing in the reconsideration process.

You can guess accurately at the intent if these premises are true- Atos do assessments, DWP make decisions, tribunals look at the lawfulness of the decisions, but now DWP insist on reconsideration first which does not look at lawfulness but repeats the previous DWP action MINUS the legally-defined limits on time(which they breach in many cases), ESA claims for those given 'fit for work' status are stopped, the tribunal service then has to rule not just on the lawfulness of one decision but the reconsideration too if the reconsideration supported the initial decsion. What purpose does this serve?

Limitless Review. Indefinite Parking. Double Jeopardy? Yes that already exists, but to my mind this is Double Jeopardy- at the tribunal you have to win both rulings on the first decision and the reconsideration, the DWP only has to win one. But throw in the matter of benefits being completely cut-off during the reconsideration and you could reasonably call it Triple Jeopardy as you're facing trial by ordeal and 'confessing' is practically forced.