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Secret, 'unlawful' disability living allowance briefings

13 January 2005

A government quango hostile to the current level of successful DLA claims has been providing secret and potentially prejudicial briefings to decision makers and tribunal members about the effects of different health conditions on entitlement to DLA. The secrecy of these briefings may mean that some tribunal decisions have been made unlawfully and calls into question the independence of the Appeals Service.

Don’t mention the report
The secret DLA briefings were provided by the Disability Living Allowance Advisory Board (DLAAB). The Board is a government quango set up in September 1991 to advise the Secretary of State on matters relating to DLA and AA. It also gives advice to medical services doctors on cases referred for “expert” advice.

In 1997 the DLAAB was asked by Baroness Hollis to present her with ideas concerning the ways that DLA and AA and its administration might be improved. The subsequent report did not recommend simpler claiming systems, better training for decision makers or advertising campaigns to increase take-up. Instead, it argued that too many people were being awarded DLA, that appeal tribunals too often found in favour of claimants and suggested ways of cutting the numbers of people eligible for DLA and AA. As far as I can recall, attempts to follow the DLAAB’s recommendations lost at least one junior Labour minister her job amidst scenes of disabled claimants chaining themselves to Downing Street’s gates. That report has now been quietly removed from the DLAAB’s website

You’ve been quangoed
In 2003 the government held a ‘consultation’ on a proposed change to the DLA regulations, the effect of which would be to prevent many people with physical health conditions claiming the lower rate of the mobility component of DLA. Only one organisation out of all those which gave evidence to the Social Security Advisory Committee was in favour of the change: the DLAAB. Even SSAC recommended that the proposals be dropped, arguing that:

“ . . .there are serious flaws in the proposals as they currently stand. We would question the necessity for the proposed changes . . . the proposal may cause significant difficulties for legitimate claimants in obtaining their entitlement."

But the government was able to argue that its proposal had the support of the “experts” on the DLAAB and the Social Security (Disability Living Allowance) (Amendment) Regulations 2002 were enacted. The result was that many people with conditions such as heart disease, asthma and bowel disease who were too fearful or anxious to walk outdoors in unfamiliar places alone were no longer eligible for the lower rate of the mobility component of DLA.

Unfortunate tendencies
The Board’s habit of siding with the DWP and against claimants is clearly illustrated in their 2003 Annual Report, when discussing what they had learnt during visits to several Disability Benefits Centres. They explain that:

“Many decision makers reported an apparent tendency by some welfare rights organisations, who assist with completing the claim forms, to over elaborate the claimant’s care and mobility needs.”

No evidence whatsoever is offered by the Board to support this allegation and the 70% success rate for claimants at DLA appeals where a representative attends, rather undermines any such claim. But of course, the DLAAB experts have little faith in the work of appeal tribunals.

Let me whisper in your ear
This lack of faith in tribunals may be one reason why the DLAAB produces an educational Update which it distributes to DWP decision makers and to disability members on DLA and AA appeal tribunals. (Appeal tribunals are made up of three members: a legally qualified chair, usually a solicitor; a doctor, many of whom also work for the DWP doing home visits on DLA and AA claimants; a disability member, who is either disabled or who has professional knowledge of disability issues).

The Updates contain articles on different health conditions, such as: Fibromyalgia, Chronic Fatigue Syndrome, Diabetes, mental health conditions, IBD, Hepatitis C, Haemophilia, MND, Post Polio Syndrome, MS, deafness and sight loss. The articles appear to act as updates to the Disability Handbook which decision makers use to learn about the ways in which different health conditions affect people’s care and mobility needs.

The big difference between the Updates and the Handbook, however, is that the Handbook is published on the internet and accessible to claimants and their representatives. Much of what it contains is inaccurate and out of date, but at least everyone knows what’s in it. Each of the Updates, on the other hand, contains the following warning:

“HEALTH WARNING
Please note- the articles in this news sheet are written for the benefit of Decision Makers, to help them with their job.
The articles are not to be quoted in any decision or communication with members of the public or their representatives.”

Unlawful secrecy
This lack of openness has serious implications for the legality of tribunal decisions. It is a basic rule of natural justice that claimants should have the right to see all the information used to make a decision. It is also a basic rule that tribunals should be impartial. Yet the information in the Updates is secretly shared between one of the parties to the appeal, the DWP, and one of the members of the tribunal whilst its existence is deliberately kept secret from the claimant.

If the information in the Update is more up to date and accurate than the Handbook on a subject such as fibromyalgia, the claimant or their representative might well wish to argue that the tribunal should take it into account when making their decision. But they can’t because they don’t know that the tribunal and the decision maker possess such information. On the other hand, if the information in the Update is inaccurate or misleading, the claimant might wish to explain why the decision maker and tribunal should not be influenced by it, but again, not knowing of its existence, they cannot do so.

Blame the parent
For example, a female single parent with a young son with ADHD appeal might well feel that a tribunal would have been prejudiced against her child’s case by the following “expert” guidance from the Board:

“Since ADHD is more common in boys than girls, it is easy to understand how a young, single mother may struggle to care for a very active little boy who finds it hard to contain his behaviour without some boundaries and in the absence of an appropriate male role model. ADHD, its assessment, diagnosis and treatment cannot be divorced from its social and cultural context.”

So, for single mothers, Decision Makers can assume that the child’s lack of an appropriate male role model, rather than his disability, accounts for at least some of his attention and supervision needs. And sadly, lack of a male role model is not grounds for an award of DLA.

The following question and answer session from another Update allows the Decision Maker to adopt a similar ‘judge the parents not the disabled child’ attitude:

Q The claim pack says that a 16-year-old boy needs close supervision four times a day for his diabetes and watching over at night in case he goes hypo. Is this usual?

A Most children and adolescents cope well with their diabetes and can do so by themselves. It is natural for parents to be anxious and sometimes over-protective of their children. A diabetes specialist nurse is the best person to give advice if a particular person’s needs seem above average.

If there was any likelihood of the DWP actually doing what is suggested and obtaining evidence from a specialist nurse, this answer might possibly be reasonable. But as any “expert” on DLA will know, the DWP almost never collect evidence from specialist nurses. Instead, they use a standard form that can be sent out to GPs and has to be completed for a low fixed price or send one of their own non-specialist visiting doctors.

Gongs all round
According to Ian Garland, the Board’s Administrative Manager, the reason for the health warning is that:

“Articles in the News and Update by DLAAB physicians and other health care professionals provide information on medical conditions, resultant disabilities and some general information on how these may affect the need for personal care, help with getting around etc. The authors do not always have detailed knowledge of the entitlement criteria, the area of expertise of the decision maker”.

A pity no-one explained this to the Board’s Psychiatric Consultant who, in relation to mental health, contributed to the Update “an overall framework of approach . . . that may be of practical help to Decision Makers in their everyday work.”

This included such forays into the “area of expertise of decision makers” as:

"The customer described in the following example would be unlikely to meet the criteria for entitlement. A 35-year-old man with a history of alcohol and drug abuse reports that he is in a fearful state all the time. He feels depressed, has panic attacks, cannot look after his own needs at home and is too frightened to go out unless he is accompanied. His girl friend confirms that this is the case and that she has to look after him. He reports having continual suicidal feelings, has previously taken an overdose and cut himself, and needs someone with him all the time to prevent this from happening. His partner also writes that this is the case."

I imagine there are quite a few welfare rights workers who would take issue with the statement that the customer “would be unlikely to meet the criteria for entitlement”. Certainly any claimant with similar symptoms might feel that his appeal had been hopelessly prejudiced by such an “expert” statement.

At the end of the article, the Update notes that the author’s “services to the Board were recognised by the award of an O.B.E. in the New Years Honours list 2003.”

More disclaimers
The Board’s 2003 Annual Report, whilst giving no details of what is actually in the Updates, states that the articles are “not intended to be used as a basis for decision making in individual cases”. This seems questionable in the extreme.

To begin with, no such stipulation is given in the actual Updates themselves. Moreover, the Updates state that the Board gives advice to the Secretary of State and gives “expert advice” to the DWP. Decision makers are thus provided with articles about fibromyalgia or mental health written by “experts” who advise their minister and which state that their purpose is “to help them with their job” They would, therefore, be forgiven for imagining they could rely upon them. The idea that they will banish all such information from their mind whilst making an individual decision is fanciful in the extreme.

Freedom of information
Benefits and Work obtained copies of all seven Updates by making a request under the Freedom of Information Act. The three Updates produced in 2004 have now been published on the DLAAB website The four Updates produced between March 2000 and December 2002 can be obtained by making a request under the Freedom of Information Act to:

Ian Garland
Administrative Manager, DLAAB
Floor 6, The Adelphi
1-11 John Adam Street
London WC2N 6HT

Ian Garland has now assured Benefits and Work that “Future issues will be placed on the website as soon as they are published.” That news comes rather too late, however, for many people who have lost their DLA appeal at a tribunal which may have been influenced by the previously secret briefings of the Board. It comes too late, as well, to save the reputation of the Appeals Service. What possible justification can there have been for allowing the DLAAB to provide tribunal members and one party to an appeal with potentially prejudicial briefings of which the other party were not aware?

Redress
If you think that you may have suffered an injustice as a result of the Board’s clandestine publications, please seek advice from a welfare rights specialist as to whether there is any possibility of redress. We would not, however, wish to encourage anyone to believe that the chances are good. Nowhere near as good, for example, as the chances of getting a medal from a grateful government for long service to an obliging quango.