Northern Ireland Assembly Flax Flower Logo
Session 2008/2009
First Report
Committee for Social Development

Report on the Committee for
Social Development’s Consideration
of the Administration of
Disability Living Allowance

TOGETHER WITH THE MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE
AND WRITTEN SUBMISSIONS RELATING TO THE REPORT

Ordered by Committee for Social Development to be printed 2 October 2008
Report: 11/08/09R (Committee for Social Development)

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Membership and Powers

The Committee for Social Development is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 46.

The Committee has power to:

The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.

The membership of the Committee since 9 May 2007 has been as follows:

Mr David Simpson MP (Chairperson) 2
Mr David Hilditch (Deputy Chairperson)
Mr Mickey Brady
Mr Alban Maginness
Mr Thomas Burns
Mr Fra McCann
Mr Billy Armstrong 3
Ms Carál Ní Chuilín 1
Mr Jonathan Craig
Miss Michelle McIlveen
Ms Anna Lo

1. With effect from 20 May 2008 Ms Carál Ní Chuilín replaced Mrs Claire McGill
2. With effect from 9 June 2008 Mr David Simpson MP MLA replaced Mr Gregory Campbell MP MLA as Chairperson of the Social Development Committee.
3. With effect from 29 September 2008 Mr Billy Armstrong replaced Mr Fred Cobain

Table of Contents

Report

Executive Sumamary

Recommendations

Recommendations 1-8

Recommendations 9-13

Introduction

Aim of the Report

Disability in Northern Ireland

Background

The benefit

Data Collection

Decision-making

Appeals

The Application Process
The Decision-Making Process

What happens when a claim is made?

Clearance times

General Practitioners Factual Report

Examining Medical Practitioners

Periods of awards

Renewal claims

Periodic review

Accuracy of decisions

The Disputes Process

If a claimant is not content with a decision on entitlement

Reconsideration of decisions following an appeal

Appeals

Learning lessons

Appendix 1 – Minutes of Proceedings

Social Development Committee Meeting – 10 April 2008

Social Development Committee Meeting – 22 May 2008

Social Development Committee Meeting – 29 May 2008

Social Development Committee Meeting – 3 July 2008

Social Development Committee Meeting – 11 September 2008

Social Development Committee Meeting – 2 October 2008

Appendix 2 – Minutes of Evidence

Department for Social Development – 22 May 2008

Appendix 3 – Written Submissions

Briefing from the Department for Social Development on the Administration of Disability Living Allowance – 6 May 2008

Further information from the Department for Social Development on the Administration of Disability Living Allowance – 23 June 2008

Clarification received from the Department for Social Development relating to evidence dated 23 June 2008 – 18 July 2008

Evidence received from President of Appeal Tribunals Northern Ireland – 28 August 2008

Further clarification from the Department for Social Development – 16 September 2008

Appendix 4 – List of Witnesses

Mr Brian Cullen Department for Social Development

Ms Lesley Morgan Department for Social Development

Mr John Nevin Department for Social Development

Executive Summary

There are currently 170,000 people in Northern Ireland receiving one or both components of Disability Living Allowance. Unfortunately, many claimants are not getting their correct benefit entitlement immediately. There may be others who are getting Disability Living Allowance when they are not entitled to it, but they do not appeal so numbers are speculative. However, entitlement to Disability Living Allowance is not just about figures and statistics. It is about real people getting the help they are entitled to, often the most vulnerable people in our society.

Excellence in the administration of Disability Living Allowance is what the Department should be striving for. It is vital that those who are entitled to Disability Living Allowance get the correct award, for the correct period, without any undue delay. Incorrect decisions can have a devastating effect on claimants. Stress and financial hardship, including loss of other benefits, are only some of the repercussions of poor decision-making.

The Committee restricted its consideration of Disability Living Allowance to its administration, therefore the Report does not address any issues in relation to the benefit legislation. It identified a number of areas where it believes administration can be improved, including:

Data collection - The Committee was impeded in its consideration of the accuracy of decision-making on claims. A considerable lack of relevant and reliable data on the administration process was uncovered. The Committee does not believe that the Department can effectively monitor and analyse decision-making practices and standards without such data.

Self-assessment claim form – The introduction of the self-assessment claim form was intended to herald a new beginning for those eligible to access disablement benefits. Self-assessment was designed to allow claimants to describe in their own words how a disability affects their daily lives. However, the self-assessment claim form has come under severe criticism from many quarters and the Committee accepts that much of the criticism is justified. The Committee is extremely concerned that the claim form is so complex and repetitive that it is almost impossible for some claimants to complete and could put people off claiming altogether.

Gathering evidence at initial claim stage - The Committee has no doubt that the quality of decision–making could be improved, and the number of appeals minimised, by improving the quality of evidence gathering at the initial claim stage and by making better use of medical records.

General practitioner reports - General practitioners have expressed some concern in the past about their ability to give information on a patient’s functional needs. They are able to describe a patient’s condition and symptoms but some feel that they cannot describe how this affects their care or mobility, which is the key issue for Disability Living Allowance. The Committee believes that the whole issue of general practitioner reports needs to be looked at in some detail.

Examining Medical Practitioners - It is of the utmost importance that the reports produced by Examining Medical Practitioners are a fair reflection of the effect a person’s disability has on his/her mobility or care needs. The Committee considers that the overall issue of Examining Medical Practitioner’s reports needs to be looked at in depth.

Equality of treatment - The Committee is not wholly convinced that claimants in similar circumstances, or with similar needs, are treated equitably in terms of periods of awards and believes that this issue needs to be considered by the Department.

Official to oversee decision-making - The Committee is concerned that the Northern Ireland Standards Committee has limited adjudication expertise which might hinder it in considering the information provided to it by the Standards Assurance Unit. The Committee believes that this gap could be addressed if the Department was to appoint a senior official, with adjudication expertise, to oversee all Departmental decision-making.

Attendance of Presenting Officers at appeal tribunals - The Committee believes that the Department should adopt a ‘spend to save approach’ by sending Presenting Officers to all appeal tribunal hearings. The Committee considers that this approach, along with other efforts to reduce the number of unnecessary appeals, could have a very positive effect on administration costs and enable the Department to learn valuable lessons.

Closer working with the President of Appeal Tribunals - The Committee believes that the Department should supply the President of Appeal Tribunals Northern Ireland, with all relevant information to allow him to have independent oversight of the entire appeal process.

Recommendations

Recommendation 1

The Committee recommends that the Department implements a robust, efficient and cost effective system to collect data on disallowances/unsuccessful applicants who enter into the disputes process.

Recommendation 2

The Committee recommends that the Department consults widely with its customers; advice bodies; general practitioners; health visitors; Decision-Makers etc. to ascertain their views on how the current Disability Living Allowance claim form could be improved.

Recommendation 3

The Committee recommends that the Department implements a robust, efficient and cost effective system to collect data on all further evidence sought by Decision-Makers, to allow proper monitoring and analysis.

Recommendation 4

The Committee recommends that the clearance time targets for those cases that require particular types of evidence, or further evidence, should be redefined to ensure that decisions are both timely and correct.

Recommendation 5

The Committee recommends that the Department, in consultation with general practitioners, the advice sector and other relevant stakeholders, considers the issue of general practitioner reports, including standards of completion; relevance of questions; the amount of reliance placed on the reports by Decision-Makers; and, the fee paid for completion.

Recommendation 6

The Committee recommends that the Department carries out a survey of all Disability Living Allowance claimants who have undergone a medical assessment, to seek their views and establish a level of satisfaction.

Recommendation 7

The Committee recommends that claimants are notified of the identity of the Examining Medical Practitioner in their appointment letter.

Recommendation 8

The Committee recommends that the Department examines whether claimants in similar circumstances or with similar needs are treated equitably in terms of periods of awards.

Recommendation 9

The Committee recommends that the Department appoints a senior official, with adjudication expertise, to oversee all Departmental decision-making.

Recommendation 10

The Committee recommends that in reconsideration cases, the Department revises its procedures to allow a second request for an appeal to be processed within the same timeframe as the first appeal, had the decision not been reconsidered.

Recommendation 11

The Committee recommends that Decision-Makers seek and consider evidence from a wider variety of sources before reaching their decisions, and make better use of medical records.

Recommendation 12

The Committee recommends that Presenting officers are present at every appeal tribunal hearing.

Recommendation 13

The Committee recommends that the Department supplies the President of Appeal Tribunals Northern Ireland, with all relevant information to allow him to have independent oversight of the entire appeal process. In particular, the President should be supplied with timely information on appeals made.

Introduction

Aim of the Report

The aim of this short Report is very simple - to open up discussion on the administration of Disability Living Allowance in Northern Ireland and to make recommendations that the Committee believes will lead to its improvement.

In producing this Report, the Committee has not taken evidence from claimants, appellants or advice bodies; it has compiled the report based on the experiences of Committee Members in dealing with claimants and representing appellants and on evidence received from the Department for Social Development (the Department) and the President of Appeal Tribunals Northern Ireland. Depending on the response from the Minister for Social Development to the Report, the Committee may consider an inquiry into this area in the future.

A copy of relevant Minutes of Proceedings, Minutes of Evidence and written submissions can be found in the Appendices to this Report.

Disability in Northern Ireland

Disability affects the lives of a huge number of people in Northern Ireland. In 2007, the Northern Ireland Statistics & Research Agency published figures detailing the extent of disability in Northern Ireland. The figures published were a product of the Northern Ireland Survey of People with Activity Limitations and Disabilities which was conducted throughout 2006/07.

The survey used a broad definition of disability. It took account of limitations in daily living that would commonly be associated with disability and included the impacts of long-term illnesses and conditions. The survey found that:

At the time of writing this Report, the approximate number of people in Northern Ireland receiving one or both components of Disability Living Allowance was 170 000 – this equates to roughly 10% of the total population of Northern Ireland.

Background

Disability Living Allowance was introduced in 1992, in recognition that Attendance Allowance and Mobility Allowance were not meeting the needs of some groups of disabled people e.g. people with learning disabilities and people with visual impairments. A major objective of the 1992 changes was to introduce “self-assessment”. It was hoped that the self-assessment claim form would allow claimants to describe clearly, in their own words, how their disability affected their daily living. The self-assessment/claim form is still in use and although it has undergone some changes over the years, people with a disability must still describe the effects of their disability on what can only be described as a lengthy, repetitive and complex claim form.

The benefit

Disability Living Allowance is a tax-free social security benefit for people aged under 65 with an illness or disability who need help with getting around, or help with personal care. It consists of two separate components, the mobility component and the care component.

The mobility component consists of two separate rates:

High - payable to people who are unable or virtually unable to walk, taking account of the time, manner, distance and speed at which they can make progress on foot without severe discomfort;

Low - payable to people who can walk but who need guidance or supervision from another person when walking out of doors on unfamiliar routes.

The care component consists of three separate rates:

High - payable to people who are so severely disabled, physically or mentally, that they require, throughout the day, frequent attention from another person in connection with their bodily functions, or they need continual supervision from another person to prevent substantial danger to themselves or others, and at night they need prolonged or repeated attention from another person in connection with their bodily functions, or they need another person to be awake for a prolonged period or at frequent intervals to watch over them in order to avoid substantial danger to themselves.

Middle - payable to people who have the needs associated with the high rate, but by day only or by night only.

Low - payable to people who are so severely disabled, physically or mentally that they require attention from another person for a significant portion of the day in connection with their bodily functions, or are unable to prepare a cooked main meal for themselves, even if they have the ingredients (this only applies to people over the age of 16). In addition, where the case is of a child (under 16) they must require attention or supervision substantially in excess of that normally required by a person of the same age in normal physical and mental health.

The rules governing entitlement to Disability Living Allowance are particularly complex because eligibility is based not on a person’s particular illness or medical condition, but the impact it has on a person’s daily living. Decisions on entitlement involve a high degree of judgement and interpretation of detailed medical evidence.

Data Collection

Decision-making

The Department uses a computer system, which is owned and used by the Department for Work and Pensions, to input and extract data on Disability Living Allowance for Northern Ireland. The computer system is able to give a snapshot at any given time of those people currently receiving Disability Living Allowance. However, the system does not hold data on disallowances/unsuccessful applicants. Surprisingly, the Department does not have a local database to capture such information.

The Committee finds it very concerning that the Department has absolutely no idea of how many claimants who were unsuccessful in their applications for Disability Living Allowance entered into the disputes process (reconsideration and/or appeal). The Committee fails to understand how the Department can effectively monitor the accuracy of decisions on entitlement if this information is not available to it. If the Department is to take excellence in the administration of Disability Living Allowance seriously, it needs to bridge this data gap to allow for proper monitoring and assessment of accuracy. The Committee believes that any proper analysis of the Department’s accuracy in its decision-making is almost impossible without such data. The Committee was extremely hindered in its consideration of this area because of the lack of relevant data.

Recommendation
The Committee recommends that the Department implements a robust, efficient and cost effective system to collect data on disallowances/unsuccessful applicants who enter into the disputes process.
The Committee also finds it concerning that the data held on further evidence sought by Decision-Makers in assessing a claim for Disability Living Allowance is limited and unreliable. This issue is discussed further under THE DECISION-MAKING PROCESS.
Appeals

The Committee requested information from the Department on how many appeal tribunal decisions, over the past five years, had been:

The information requested was only available from 1 July 2007, as the computer system used by The Appeals Service Northern Ireland (TAS(NI)) before this date did not capture such information. The Committee welcomes the introduction of the improved computer system within TAS(NI) and hopes that the Department will use the new information available to it to improve its own monitoring systems. However, the Committee was again hindered in its consideration of this area because of the lack of relevant data.

The Application Process

Applying for Disability Living Allowance can be an upsetting and difficult experience for some. Applicants must fill in a lengthy (48 pages) and detailed self-assessment form which can take many hours to complete. While the Committee agrees that a self-assessment claim form is an effective method of obtaining information from a claimant on how a disability affects his/her daily life, it is concerned that the claim form is so complex and repetitive that it is almost impossible for some claimants to complete and could put people off claiming altogether. This is particularly true of those who have literacy or numeracy deficiencies. Members have also found that claimants are so overwrought by the form that they tend to overcompensate and provide information that is neither relevant nor helpful to their claim. Bearing that in mind, the Committee was extremely surprised to learn that the current Disability Living Allowance claim form had received a Crystal Mark for its use of Plain English and can only assume that the Mark was awarded solely for the use of simple language and not for design or ease of completion.

The Disability Living Allowance claim form, which is the same as that used by the Department for Work and Pensions (DWP), is constantly under review and is updated regularly to reflect the views of customers; the Voluntary Sector; and Decision-Makers. The Department considers that using the same claim form as that used by DWP ‘is a key contributor to ensuring Disability Living Allowance is administered consistently across the United Kingdom and meets the existing demand for parity between ourselves and DWP’. The Committee would like to point out that the maintenance of parity would not be compromised if a different claim form was used in Northern Ireland.

The Committee firmly believes that the existing claim form could be improved. For example, often those with mental health difficulties complain that the form is more suited to those with physical disabilities than those with mental health disabilities i.e. they cannot make their situation ‘fit’ the questions. Perhaps this issue could be addressed and the form simplified by introducing a separate section on mental health? The Committee does not wish to make specific recommendations on the design of the claim form but would recommend that the Department consults widely with its customers, advice bodies, general practitioners; health visitors; Decision-Makers etc. to ascertain their views on how the claim form could be improved.

The Committee appreciates that a considerable amount of work has been done by DWP to improve the claim form and would not normally advocate ‘re-inventing the wheel’. However, it is clear that the wheel is not turning as smoothly as it should be in Northern Ireland and something needs to be done about it.

We must not forget that those who are eligible to apply for Disability Living Allowance are quite often the most vulnerable in our society. The financial hardship and impact of the anxiety and stress experienced by those who find the claim form difficult or impossible to complete, should not be underestimated or ignored.
Recommendation
The Committee recommends that the Department consults widely with its customers; advice bodies; general practitioners; health visitors; Decision-Makers etc. to ascertain their views on how the current Disability Living Allowance claim form could be improved.

The Decision-Making Process

What happens when a claim is made?

When a claim for Disability Living Allowance is received by the Social Security Agency’s Disability and Carers Service, it is assessed by a trained Decision-Maker. The Decision-Maker can either:

In all cases, the Decision-Maker must apply complex rules and complex law to reach a decision on entitlement. As previously highlighted, decisions on entitlement also involve a high degree of judgement and interpretation of detailed medical evidence.

The Committee would have liked to have been able to draw some conclusions between the number of successful/unsuccessful claims and the steps taken by the Decision- Maker as outlined above. However, the Decision-Maker can only record a single source of evidence on which he/she places the greatest reliance and cannot show that other sources may have been considered.

Again the Committee was extremely hindered in its consideration of this matter because of the lack of available and reliable data.
Recommendation
The Committee recommends that the Department implements a robust, efficient and cost effective system to collect data on all further evidence sought by Decision-Makers, to allow proper monitoring and analysis.
Clearance times

The Committee acknowledges that there are certain advantages to certain types of evidence in certain cases, but has some concern that Decision-Makers may feel under pressure to seek evidence that takes the least time to obtain to allow cases to be cleared within the target time. The Committee appreciates that clearance times are extremely important but stresses the need to get the balance right between clearing a case in a timely manner and obtaining the most appropriate evidence to allow the Decision-Maker to make the correct decision.

The Committee believes that the key to improving decision-making is obtaining the right kind of evidence that illustrates the claimant’s own particular circumstances and not just their disability. This may involve requesting information from social workers, health visitors, psychologists, psychiatrists, teachers etc. This matter is discussed further under THE APPEALS PROCESS.
Recommendation
The Committee recommends that the clearance time targets for those cases that require particular types of evidence, or further evidence, should be redefined to ensure that decisions are both timely and correct.
General Practitioners Factual Report

In assessing a claim for Disability Living Allowance, the Decision-Maker may decide to contact the claimant’s general practitioner for a factual report on his/her medical condition(s). General practitioners are paid a relatively small sum (£33.50) for completion of the form which is fairly detailed and would necessitate a certain amount of research before it could be completed fully.

General practitioners have expressed some concern in the past about their ability to give information on a patient’s functional needs. They are able to describe a patient’s condition and symptoms but some feel that they cannot describe how this affects their care or mobility, which is the key issue for Disability Living Allowance. Claimants have also questioned the amount of reliance that is placed on general practitioner’s reports which are sometimes completed scantily or completed by a doctor who is not the patient’s own doctor.

The Committee is particularly concerned about the questions asked in the factual report. While the form asks about washing, dressing, toileting and feeding, it does not ask about communication difficulties, which is a crucial issue for deaf or hearing impaired people; people with speech impediments; and some people with mental health difficulties. Although the report template used in Northern Ireland is the same as that used in Great Britain, the Department is not obliged to use the same.

This issue is discussed further under THE DISPUTES PROCESS – Appeals.

Recommendation
The Committee recommends that the Department, in consultation with general practitioners, the advice sector and other relevant stakeholders, considers the issue of general practitioner reports, including standards of completion; relevance of questions; the amount of reliance placed on the reports by Decision-Makers; and, the fee paid for completion.
Examining Medical Practitioners

The Committee understands that as part of their training, all doctors undertaking Disability Living Allowance examinations are given specific training on the assessment of mental health issues. In addition, they are specifically trained in the benefit legislation and administration to enable them to have a better understanding of the purpose of their visit and the requirements of the Decision-Maker. Based on experiences in dealing with claimants with mental health issues, the Committee has some concerns that the full impact of mental health conditions on an individual’s daily living may not be fully understood or taken into consideration by Examining Medical Practitioners.

The Committee is also concerned about the perception of claimants who undergo medical assessments. Over the years, Members have heard accounts from claimants of Examiners who did not understand their condition; claimants who had problems communicating with the Examiner; and, claimants who felt that the examination was rushed. The Committee is unaware of any survey undertaken in Northern Ireland to ascertain the views of claimants regarding medical assessments and considers that the Department should commission such a survey to seek those views. The Committee believes that the results of such a survey would aid the Department in reviewing the training offered to Examining Medical Practitioners and aid it in its overall consideration of the administration of Disability Living Allowance.

It is of the utmost importance that the reports produced by Examining Medical Practitioners are a fair reflection of the effect a person’s disability has on his/her mobility or care needs. It is the Committee’s experience that Decision-Makers rely heavily on the content of an Examining Medical Practitioner’s report when making a decision on entitlement.

Recommendation
The Committee recommends that the Department carries out a survey of all Disability Living Allowance claimants who have undergone a medical assessment, to seek their views and establish a level of satisfaction.

The Committee recognises that the Department has fairly robust procedures in place to minimise the occurrence of a claimant’s own family doctor being the Examining Medical Practitioner. However, there have been occasions where the system has failed and an examination has had to be cancelled for that reason. The claimant is not told the name of the Examining Medical Practitioner when notified of the appointment, therefore the error may only be discovered at the time of examination. Given the robust procedures in place to minimise this happening, the Committee appreciates that this is not a common occurrence. However, it believes that every step possible should be taken to make the process as stress-free as it can be for the claimant. The Committee therefore considers that the claimant should be informed of the identity of the Examining Medical Practitioner when he/she is notified of the appointment. This would serve as an additional check for the Department and avoid any undue stress to the claimant.

Recommendation
The Committee recommends that claimants are notified of the identity of the Examining Medical Practitioner in their appointment letter.
Period of awards

The Committee is particularly concerned about the anomalies that exist in the length of time Disability Living Allowance is awarded for the same condition, and in particular, a condition that is degenerative or is with someone for life. The Committee does, however, appreciate that each case must be decided on the personal circumstances pertaining to an individual claim, as disabilities can affect claimants in different ways.

There are two types of awards:

Indefinite awards - these are made where the evidence suggests that there is no improvement expected in the customer’s disability and the level of care and mobility needs are unlikely to change.

Fixed period awards - these are made where there is a likelihood that the claimant’s condition may change due to planned surgery or because they have only recently started treatment, and as a consequence, their care or mobility needs may change. In the case of children’s issues, natural developmental milestones are taken into consideration when determining the period of the award.

There are therefore twelve potential outcomes on a claim for Disability Living Allowance as illustrated at Table 1.

Table 1 - Potential outcomes

Mobility Component

Care Component

High

High

High

Middle

Low

High

Nil

High

High

Low

Low

Middle

High

Nil

Nil

Middle

Low

Low

Nil

Low

Low

Nil

Nil

Nil

The Committee is not wholly convinced that claimants in similar circumstances, or with similar needs, are treated equitably in terms of periods of awards and believes that this issue needs to be considered by the Department.

Recommendation
The Committee recommends that the Department examines whether claimants in similar circumstances or with similar needs are treated equitably in terms of periods of awards.
Renewal claims

The Committee understands that renewal claims are invited six months before an existing award runs out. The Committee appreciates that a renewal award is not based on a person’s continuation of a particular illness or medical condition, but on the current impact a person’s disability has on their daily living needs, which may have increased, decreased or remained unchanged. The Committee therefore believes that renewal claims are important to ensure that an award reflects current circumstances. However, given the complexity of the claim form, it is not surprising that some claimants delay in completing the renewal claim and their benefit runs out, resulting in the withdrawal of Disability Living Allowance and other ‘passported’ benefits. Claimants have also been known to rush into filling in the claim form early without the necessary care and attention, again leading to the withdrawal of benefit. This is one of many reasons why the Committee believes that the claim form needs to be made more user-friendly and relevant to all.

Periodic Review

The Committee understands that the Periodic Enquiry Process was introduced in September 1999 to address concerns raised by the Public Accounts Committee that the changing needs of customers with indefinite awards of Disability Living Allowance were not being addressed, and to ensure that the rate of benefit paid accurately meets the needs of the claimant. Table 2 provides details of those categories that are exempt from a periodic review.

Table 2 – Exclusion categories

Exclusion Categories - Periodic Enquiry Process

Aged under 16

Aged 64 and over

Fixed awards

Special Rules

Terminally ill (mobility or care component)

Not currently receiving benefit

Renewals

Conversions

Start dates not between specified dates

High rate Care and High rate mobility with one of the following disabilities

Cystic Fibrosis

Neurological Diseases

Multiple Sclerosis

Parkinson’s Disease

Motor Neuron Disease

Traumatic paraplegia/tetraplegia

Mental subnormality

Dementia

Hyperkinetic syndrome

Total parenteral nutrition

Multiple Allergy syndrome

Severely mentally impaired

Double amputee

Deaf/blind

Haemodialysis

- Terminally ill

When the Process was introduced in 1999, cases for review were selected at random by the Department’s statisticians (excluding exemption categories). In later years, an analysis of the cases re-examined under this Process was conducted. The analysis identified that there were particular cases that had a high propensity to change due to an improvement or deterioration in a claimant’s overall disability. The outcome of the analysis resulted in a new targeted selection process being introduced in April 2006 in line with the 3 year Disability and Carers Programme Protection Strategy which ends in March 2009.

The Committee would hope that the end of the Disability and Carer’s Protection Strategy will not see the selection process revert to random selection.
Accuracy of decisions

The Committee understands that the Standards Assurance Unit has responsibility for monitoring the accuracy of decisions made on Disability Living Allowance claims within Northern Ireland. Its findings are used to give an assurance to both the Northern Ireland Standards Committee and Northern Ireland Audit Office on the overall accuracy and financial expenditure of the benefit.

The Committee is concerned that the Northern Ireland Standards Committee has limited adjudication expertise which might hinder it in considering the information provided to it by the Standards Assurance Unit. The President of Appeal Tribunals Northern Ireland, has recommended that the Department addresses this lack of expertise by appointing a senior official, with adjudication expertise, to oversee all Departmental decision-making. Unfortunately the Department did not accept his recommendation. The Committee would urge the Department to reconsider the President’s recommendation and appoint such an official.

Recommendation
The Committee recommends that the Department appoints a senior official, with adjudication expertise, to oversee all Departmental decision-making.

The Disputes Process

If a claimant is not content with a decision on entitlement

If a claimant is not content with the decision on his/her claim for Disability Living Allowance, he/she can challenge that decision through the disputes process. There are two elements to the disputes process:

Reconsideration - In the first instance, claimants ask the Department to reconsider the decision given (they can go straight to the appeal stage if they so choose). A different Decision-Maker will look at all the available evidence again and will make a determination as to whether the original decision should be upheld or changed. As part of the disputes process, they can request a copy of all the evidence that the original Decision-Maker used when making the decision. They can challenge this evidence and supply any further evidence that they think would help the new Decision-Maker come to a different conclusion. If the claimant still remains dissatisfied after the reconsideration determination, they can go on to appeal.

Appeal – If a claimant goes on to appeal, their case is heard by an independent tribunal panel which consists of a legally qualified member; a medically qualified member; and a member who has experience of dealing with the needs of the disabled in a professional or voluntary capacity, or because they are themselves disabled. The panel will consider all the evidence available to it (it may request access to general practitioner notes or hospital records) and come to its own decision, totally independent of the Social Security Agency.

Reconsideration of decisions following an appeal

The Committee considers that the reconsideration stage is an extremely important stage to allow incorrect decisions to be rectified at an early stage and to avoid the need for a case to go to an appeal tribunal. However, it has some concerns that if a decision is made at reconsideration stage that is more advantageous to the appellant than the original decision, but is not to the appellant’s satisfaction, it is treated as a new decision and the appellant has to appeal again and go to the back of the queue in relation to his/her case being processed. In this respect, the Committee shares the concerns expressed by the President of Appeal Tribunals Northern Ireland, “This causes considerable additional delay as the second appeal goes to the back of the queue. I am very concerned about this problem in Disability Living Allowance cases as appellants are often in poor health and it is unfair that the procedures of the Department adds to the delay in resolving the dispute. I can see no practical reason why the new appeal cannot go to the tribunal at the same time as the first appeal would have done”.

Recommendation
The Committee recommends that in reconsideration cases, the Department revises its procedures to allow a second request for an appeal to be processed within the same timeframe as the first appeal, had the decision not been reconsidered.
Appeals

Many decision-making errors are rectified at appeal. However, it cannot be ignored that the appellant has faced uncertainty and stress and has had to endure a sometimes lengthy appeal process. There are some claimants, who find the process too harrowing or resent the implicit accusation of having lied or exaggerated in the claim, that they simply do not appeal.

The Committee had asked the Department to provide statistical information, for the past five years, on appeal tribunal decisions that were:

a) more favourable than the decision appealed against;

b) the same as the decision appealed against;

c) less favourable than the decision appealed against.

The information requested could only be provided for the period 1 July 2007 to 31 March 2008 – see Table 3. Prior to this period, the IT systems in place within The Appeals Service Northern Ireland to track appeals did not contain this level of detail. Table 4 provides details on the number of appeals allowed and disallowed prior to 1 July 2007.

Table 3 - Appeal tribunal decisions, 01/07/07 – 31/03/08

Year

Same Decision

Less Favourable

More Favourable

01/07/2007 – 31/03/2008

2391

79

1252
Table 4 - Appeal tribunal decisions, 01/04/03 – 30/06/07

Year

Disallowed

Allowed

01/04/2003 – 31/03/2004

5979

1732

01/04/2004 – 31/03/2005

3790

1478

01/04/2005 – 31/03/2006

3752

1543

01/04/2006 – 31/03/2007

2985

1560

01/04/2007 – 30/06/2007

839

464

It is clear from the information at Tables 3 and 4 that many claimants are not getting their correct entitlement immediately. As mentioned previously, the Department has no idea of how many claimants who are refused benefit enter into the disputes process, so it is impossible to draw any conclusions as to how many people are not getting the benefit they are possibly entitled to. One can only assume that some claimants are getting Disability Living Allowance when they are not entitled to it. However, they do not appeal, so numbers are speculative.

Many factors account for the number of decisions that are overturned at appeal. According a report by the President of Appeal Tribunals Northern Ireland[1], almost 2% of the appeals monitored by him were found to be incorrect for the following reasons:

In one of the cases identified the legal member considered that insufficient weight was given to the evidence available. This case involved a child with Aspergers Syndrome. The substantial educational reports on the child were ignored in favour of a scant report by the child’s general practitioner. It was clear from the general practitioner’s report that the child was under the care of a consultant paediatrician. However, this source of evidence was not investigated.

In another case identified, the general practitioner’s report was poorly completed. The legal member commented that the Decision-Maker should have commissioned a report from an Examining Medical Practitioner, or a specialist report, to obtain adequate information on daily living as the appellant has significant eyesight problems.

The Committee views the President’s findings as evidence that there is a clear need for Decision-Makers to seek and consider evidence from a wider variety of sources before reaching their decisions. Taking into account evidence from more than one source also allows Decision-Makers to offset the natural weaknesses in evidence from any individual source, leading to smarter decisions all round.

In a staggering 38% of the remaining cases monitored, 2 decisions were overturned because the tribunal accepted evidence that the Decision-Maker was unwilling to accept, and in 45 cases, additional evidence was available to the tribunal that was not available to the Decision-Maker.

In 14 of the 45 cases, where additional evidence was made available to the tribunal, the direct evidence of the appellant or witness was instrumental in the decision being overturned. In the 31 remaining cases, a combination of oral evidence and medical evidence resulted in the tribunal overturning the original decision.

The President highlighted in his report that these results demonstrated that relevant information is available from both the claimant and his/her doctor prior to the decision being made on a claim. The President goes further to recommend that Decision-Makers make greater use of medical records in an effort to reduce the number of appeals, “There is no reason why information held on medical records which is relevant to the claim cannot be requested. As the records are computerised in almost all medical practices, an extract can be obtained”. The Committee understands that claimants are entitled to see their own medical records and that Departmental officials may also view them with the claimant’s consent.

The Committee has no doubt that the quality of decision–making could be improved and the number of appeals minimised, by improving the quality of evidence gathering at the initial claim stage. This in turn would lead to a more cost-effective decision-making process.
Recommendation
The Committee recommends that Decision-Makers seek and consider evidence from a wider variety of sources before reaching their decisions, and make better use of medical records.
Learning lessons

The Committee is concerned that the Department does not revisit cases where decisions were overturned at appeal, to ascertain if mistakes/misjudgements had been made and to identify learning points. The Department depends on the reports of the President of Appeal Tribunals Northern Ireland, and limited feedback from Presenting Officers, to identify areas that need to be addressed.

In the Northern Ireland Audit Office’s report on Decision-Making and Disability Living Allowance,[2] it is acknowledged that the Social Security Agency intended to have 100% Presenting Officer attendance at all Disability Living Allowance appeal hearings. The Committee understands from evidence given by Departmental officials that this intention has never been realised.

Table 5 details the percentage of appeal hearings over the last 5 years that have been attended by a Presenting Officer, broken down by tribunal centre.

Table 5 - Presenting Officer attendance rates at Disability Appeal Tribunals (by tribunal centre)

Tribunal Centre

Years

 

2002/03

2003/04

2004/05

2005/06

2006/07

to 31/8/07

Armagh

21.43%

47.40%

53.80%

42.22%

45.00%

15.69%

Ballymena

13.24%

49.03%

50.95%

41.26%

31.84%

29.63%

Ballymoney

0.00%

0.00%

0.00%

50.00%

39.29%

38.46%

Banbridge

25.86%

50.00%

60.53%

44.44%

62.26%

47.22%

Belfast

11.91%

33.29%

37.12%

35.08%

29.24%

23.35%

Coleraine

21.49%

45.68%

57.11%

64.04%

41.92%

36.64%

Cookstown

36.57%

45.38%

65.12%

56.67%

32.80%

17.50%

Craigavon

12.68%

34.04%

55.04%

43.18%

28.22%

23.13%

Downpatrick

19.12%

51.74%

45.62%

37.22%

23.98%

45.78%

Dungannon

30.33%

43.18%

55.92%

58.05%

34.86%

24.47%

Enniskillen

24.87%

54.22%

62.11%

63.01%

34.58%

9.82%

Limavady

30.15%

43.75%

71.07%

58.93%

43.85%

12.99%

Londonderry

30.93%

59.55%

59.27%

56.49%

50.63%

31.91%

Magherafelt

12.12%

45.09%

57.64%

42.50%

42.70%

19.05%

Newry

29.95%

59.63%

55.19%

39.01%

41.36%

55.06%

Newtownards

14.93%

36.00%

55.38%

49.83%

37.84%

36.59%

Omagh

30.43%

43.93%

60.31%

50.63%

48.00%

23.53%

Strabane

35.88%

52.36%

66.21%

57.84%

46.41%

35.80%

It is of great concern to the Committee that Presenting Officers are not in attendance at all appeals. It is of particular concern that, according to the attendance figures provided by the Department, the situation is actually getting worse.

At present, Presenting Officers only attend appeals that are considered by the Department to be complex:

If any of the above cases are listed for hearing, a Presenting Officer will attend all other cases listed within that particular session.

The Committee believes that it is essential for Presenting Officers to attend appeal tribunal hearings so that lessons can be learnt and that unnecessary appeals can be avoided in the future. This view is echoed by the President of Appeal Tribunals Northern Ireland,

“I strongly support the attendance of presenting officers in all appeals and I have pressed the Department to make arrangements to achieve this objective. I do so for many reasons. When an officer attends, in the time before the hearing begins he has an opportunity to consider any additional documents, reports and medical records made available for the hearing. He will then have an opportunity to discuss the appeal and the additional evidence with the appellant and his representative, if he has one. This may enable him, or her, to make a fresh decision which is acceptable to the appellant, thus avoiding a hearing. Most appellants find hearings stressful.

At the hearing, the officer can explain the decision under appeal and how the evidence has been evaluated. Where there is no officer in attendance, the tribunal must explain the decision to the appellant and there is therefore an impression that the tribunal is in some way associated with the Department. Many appellants are therefore concerned about the independence of the tribunal.

The presenting officer may also see and hear the appellant and may, if he or she wishes, question the appellant and his, or her, witnesses. It is regrettable that Decision-Makers rarely either see or speak to appellants.

The presenting officer will also hear the questions asked by the members of the tribunal. The medical member, in particular, will elicit evidence about medical conditions, symptoms and treatment. Many disability qualified members are expert in occupational therapy and physiotherapy.

I have no doubt that by attending many hearings, presenting officers will inevitably have a much better understanding of the medical problems of claimants and the decisions of Appeal Tribunals”.

The Committee believes that the Department should adopt a ‘spend to save approach’ by sending Presenting Officers to all appeals tribunal hearings. The Committee considers that this approach, along with other efforts to reduce the number of unnecessary appeals, could have a very positive effect on administration costs.
Recommendation
The Committee recommends that Presenting officers are present at every appeal tribunal hearing.

The Committee understands that the Department does not advise The President of Appeal Tribunals Northern Ireland of when an appeal is made – he therefore has no knowledge of how many appeals are outstanding and for what period. The Committee believes that there needs to be independent oversight of the entire appeal process and considers that the provision of such information to the President is essential for this to happen. The Committee would therefore urge the Department to work more closely with the President to allow for independent oversight of the entire appeal process.

Recommendation
The Committee recommends that the Department supplies the President of Appeal Tribunals Northern Ireland, with all relevant information to allow him to have independent oversight of the entire appeal process. In particular, the President should be supplied with timely information on appeals made.

[1] Report by the President of Appeal Tribunals on the Standards of Decision Making by the Department – Period 06 April 2005 to April 2006.

[2] Getting it right, putting it right – Improving decision-making and appeals in social security benefits. Report by the Comptroller and Auditor General HC 1142 Session 2002-2003: 7 November 2003

Appendix 1

Minutes of Proceedings Relating to the Report

Thursday, 10 April 2008
Room 135, Parliament Buildings

Present:
Mr David Hilditch MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Mr Thomas Burns MLA
Mr Fred Cobain MLA
Mr Jonathan Craig MLA
Ms Anna Lo MLA
Mr Alban Maginness MLA
Mr Fra McCann MLA
Mrs Claire McGill MLA
Miss Michelle McIlveen MLA

In Attendance:
Ms Marie Austin (Assembly Clerk)
Mr Neil Currie (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)
Mrs Lorraine McFarland (Clerical Officer)
Mr Martin Wilson (Bill Clerk)

Apologies: Mr Gregory Campbell MP MLA (Chairperson)

The meeting opened at 11.08am in public session.

7. Forward Work Programme

The Committee noted the Forward Work Programme.

Agreed: To write to the Department requesting a written briefing on the administration of Disability Living Allowance. The Deputy Chairperson asked Members to inform the Clerk, by close of play on 14 April 2008, of any other points that should be included in the letter to the Department.

Thursday, 22 May 2008
Room 135, Parliament Buildings

Present:
Mr Gregory Campbell MP MLA (Chairperson)
Mr David Hilditch MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Mr Fred Cobain MLA
Mr Jonathan Craig MLA
Ms Anna Lo MLA
Miss Michelle McIlveen MLA Ms Carál Ní Chuilín MLA

In Attendance:
Ms Marie Austin (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)

Apologies:
Mr Thomas Burns MLA
Mr Fra McCann MLA
Mr Alban Maginness MLA

The meeting opened at 11.04am in public session.

5. Administration of Disability Living Allowance

The following officials from the Department for Social Development joined the meeting at 11.33am:

John Nevin – Assistant Director of Disability, Incapacity & Benefit Security
Brian Cullen – Head of Disability & Carers Service
Lesley Morgan – Head of the Administration of the Appeals Service (NI).

The officials briefed the Committee on the administration of Disability Living Allowance (DLA). This was followed by a question and answer session.

Agreed – It was agreed that the Clerk should write to the Department to seek further information on the administration of DLA.

The Chairperson thanked the officials for attending the meeting.

The officials left the meeting at 12.38pm.

Mr Cobain left the meeting at 12.35pm.

Thursday, 29 May 2008
Room 135, Parliament Buildings

Present:
Mr Gregory Campbell MP MLA (Chairperson)
Mr Mickey Brady MLA Mr Thomas Burns MLA
Mr Jonathan Craig MLA
Ms Anna Lo MLA
Mr Alban Maginness MLA
Mr Fra McCann MLA
Miss Michelle McIlveen MLA
Ms Carál Ní Chuilín MLA

In Attendance:

Ms Marie Austin (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)
Mrs Lorraine McFarland (Clerical Officer)

Apologies: Mr David Hilditch MLA (Deputy Chairperson)

The meeting opened at 11.01am in private session.

4. Matters arising

ii. Administration of Disability Living Allowance

Members noted a draft letter from the Clerk to the Department for Social Development requesting further information on the administration of Disability Living Allowance.

Agreed: Members agreed the content of the letter and that it should be submitted to the Department.

Thursday, 3 July 2008
Room 135, Parliament Buildings

Present:
Mr David Simpson MLA (Chairperson)
Mr David Hilditch MLA (Deputy Chairperson)
Mr Mickey Brady MLA Mr Jonathan Craig MLA
Ms Anna Lo MLA Mr Fra McCann MLA
Miss Michelle McIlveen MLA
Mr Alban Maginnes MLA
Ms Carál Ní Chuilín MLA

In Attendance:
Ms Marie Austin (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)
Mrs Lorraine McFarland (Clerical Officer)

The meeting opened at 11.02am in public session.

9 Administration of DLA

Members considered a response from the Director of Operations for the Social Security Agency to questions asked by the Committee on the administration of Disability Living Allowance (DLA).

Agreed: It was agreed that the Committee Clerk would write to the Department to seek further clarification on the administration of DLA and that the Chairperson would write to the President of The Appeals Service NI, to seek his views on correspondence received from the Social Security Agency.

Thursday, 11 September 2008
Room 135, Parliament Buildings

Present:
Mr David Simpson MLA (Chairperson)
Mr David Hilditch MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Mr Fred Cobain MLA
Mr Jonathan Craig MLA
Ms Anna Lo MLA
Mr Fra McCann MLA
Miss Michelle McIlveen MLA
Mr Alban Maginness MLA
Ms Carál Ní Chuilín MLA

In Attendance:
Ms Marie Austin (Assembly Clerk)
Mr Peter McCallion (Assembly Clerk)
Mr Oliver Bellew (Assistant Assembly Clerk)
Mrs Clairita Frazer (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)
Mrs Lorraine McFarland (Clerical Officer)

The meeting opened at 11.02am in private session.

5 Matters arising

5.1 Administration of Disability Living Allowance

The Committee noted correspondence received from the Department and from the President of the Appeals Service in relation to Committee queries on the administration of Disability Living Allowance.

Agreed: It was agreed that the Committee Clerk would draft a report on the administration of Disability Living Allowance for Members’ consideration at a future meeting.

Thursday, 2 October 2008
Room 135, Parliament Buildings

Present:
Mr David Simpson MLA (Chairperson)
Mr David Hilditch MLA (Deputy Chairperson)
Mr Mickey Brady MLA
Ms Anna Lo MLA
Mr Fra McCann MLA
Miss Michelle McIlveen MLA
Mr Alban Maginness MLA
Ms Carál Ní Chuilín MLA

In Attendance:
Ms Marie Austin (Assembly Clerk)
Mr Peter McCallion (Assembly Clerk)
Mrs Clairita Frazer (Assistant Assembly Clerk)
Mrs Joy Hamilton (Clerical Supervisor)
Mrs Sheila Mawhinney (Clerical Supervisor)
Mrs Lorraine McFarland (Clerical Officer)

The meeting opened at 10.35am in closed session.

2 Consideration of Committee report on the Administration of Disability Living Allowance

The Committee considered the draft report on the Administration of Disability Living Allowance paragraph by paragraph. The Committee agreed the main body of the report:

Executive Summary, read and agreed

Introduction, read and agreed

Data Collection, read and agreed

Application Process, read and agreed

Decision-Making Process, read and agreed

Disputes Process, read and agreed

Action: It was agreed that the report should be published and that the Clerk would make the necessary arrangements for laying the report in the business office for debate in the House.

Mr Hilditch left the meeting at 11am.

The meeting moved into open session at 11.05am.

Appendix 2

Minutes of Evidence

22 May 2008

Members present for all or part of the proceedings:
Mr Gregory Campbell (Chairperson)
Mr David Hilditch (Deputy Chairperson)
Mr Mickey Brady
Mr Fred Cobain
Mr Jonathan Craig
Ms Anna Lo
Miss Michelle McIlveen
Ms Carál Ní Chuilín

Witnesses:

Mr Brian Cullen
Ms Lesley Morgan
Mr John Nevin

Department for
Social Development

1. The Chairperson (Mr Campbell): I welcome Messrs John Nevin and Brian Cullen and Ms Lesley Morgan to the Committee. I remind everyone to switch off their mobile phones, as they interfere with the recording. You are here to brief us on the administration of disability living allowance (DLA). If you wish to make a few comments, we will ask questions later.

2. Mr John Nevin (Department for Social Development): Thank you for the opportunity to address the Committee. DLA is a very important benefit in Northern Ireland, and 117,000 people claim it.

3. The Chairperson: How many people claim it?

4. Mr Nevin: One hundred and seventeen thousand.

5. The Chairperson: I read somewhere that 170,000 people claim DLA.

6. Mr Nevin: I apologise; you are right — I got my figures wrong. Some 170,000 people claim DLA. As DLA is an important benefit, it has been subject to several studies by the Northern Ireland Audit Office (NIAO) over the years. In fact, one study on the end-to-end appeals process is nearing completion, and we look forward to the results of that.

7. Disability living allowance is a tax-free social security benefit. It is paid to people who are under 65 who have an illness or disability that necessitates help with getting around or help with personal care or, indeed, help with both. It provides a contribution towards some of the extra costs faced by severely disabled people as a result of their disabilities.

8. One of the complexities of the benefit is that it is not based on a person’s condition, but on how the illness affects them in their day-to-day life; therefore it requires a high degree of judgement and interpretation of detailed medical evidence by decision-makers. As the briefing paper states, there can be 12 different outcomes to a claim for disability living allowance. Therefore it is very important to train the decision-makers, because our emphasis is on quality and on getting things right rather than on dealing with a claim quickly. Decision-makers receive a comprehensive 12-week training programme, which is specifically aimed at disability living allowance requirements.

9. They have access to online medical guidance that gives them information on the likely effects that medical conditions can have on people’s lives, their care and mobility needs. Medical officers who have experience with disability and with training in the legislation are also available to help decision-makers to arrive at proper decisions. When they have finished their 12-week training, decision-makers are assigned to mentors who are experienced decision-makers for a further six weeks, which helps to ensure that they have a full understanding of the training and the legislation and that there are, as far as possible, no gaps in their knowledge of the benefit.

10. As I am sure you are aware, doctors visit people in their homes to help to assess the degree of disablement from which they suffer. Those doctors have had training on disability living allowance and on specific needs beyond what they would normally have as GPs.

11. Our main aim is to strive for quality. In order to do that, we have, over the years, introduced special measures in the branch, including the formal establishment of a disability living allowance quality council. The council is headed by one of the senior managers in disability and carers service and includes key players from other areas. A standards assurance unit measures the accuracy and equality of claims and decision-making; it is a member of the forum because of its expertise on the benefit. It can provide feedback and advice on disability living allowance and on the nature of mistakes and where they happen. The quality council analyses the information that is gained from monitoring so that we know the areas where training needs must be tackled.

12. A quality-control team in the branch also provides advice and guidance to decision-makers on difficult or complex cases. A one-hour team slot is set aside every week throughout the agency to advise staff of changes in instructions, and, if any trends or particular types of mistakes have been discovered through monitoring, to help them to learn and to ensure that accurate decisions are made.

13. Management checks are carried out during the evidence-gathering stage to ensure that, from the outset, required evidence is sought from relevant sources so that claims are processed quickly and that quality decisions are made. The senior medical officer in the agency carries out disability-education awareness seminars; for example, on conditions that cause difficulty for decision-makers such as traumatic brain-injury cases and fibromyalgia.

14. As well as internal matters, we conduct a special forum with the voluntary sector that meets quarterly and at which its representatives can raise concerns with us about decisions and how the benefit is administered. The forum consists of the Citizens Advice Bureau, Advice NI, the Law Centre, and Disability Action. Those organisations have dedicated contact points in the branch where they can raise queries with us so that we can resolve issues before they go on for too long.

15. I mentioned quality and accuracy standards. During the past five years, we have made considerable improvements in the accuracy of cases. The number of correct cases has risen from about 88% in 2003-04 to 97% case accuracy in monitoring in 2007. That case accuracy of 97% can be converted to a financial-accuracy level, as regards the amount of money that was paid out after monitoring, which, in 2007 was 98·8%.

16. We concentrate on quality and on getting the decision right and on paying the right money to those who need it, and we have evidence that we have made considerable progress in the past three or four years.

17. The Chairperson: Thank you, Mr Nevin. You know that the number of people claiming the benefit greatly heightens public interest in the issue, and you have outlined some of the complexity.

18. The Committee asked:

“Over the last five years, what percentage of applicants who were unsuccessful in their applications for DLA lodged an appeal? This information should be broken down into components and rates.”

19. The response was:

“The Department’s Statistics and Consultancy Branch, which has responsibility for data capture from the Disability Living Allowance computer system, has advised us that the data held is a snapshot at any given time showing only those people currently receiving the benefit. Statistics and Consultancy Branch does not hold data on disallowances/unsuccessful applicants, therefore, we cannot ascertain how many unsuccessful applicants went on to make an appeal. Because Disability Living Allowance has 12 potential outcome determinations, with the exception of those awarded the highest rate of both components, an appeal can be made against any of the other 11 possible outcomes and the computer system we use to pay this benefit, which is owned and used by the Department for Work and Pensions, does not capture this level of detail.”

20. That answer reflects the complexity of the problem. In layperson’s language, will you explain how to establish the numbers and percentages of people who lodge an appeal after being refused DLA, regardless of whether the appeal succeeds?

21. Mr Nevin: Mr Cullen will comment on that. We did try to answer in layman’s language.

22. The Chairperson: It did not work.

23. Mr Nevin: Obviously not. Explaining the issue of appeals from a DLA point of view is difficult, partly because appeals in relation to other benefits are often solely against a disallowance; with DLA, however, people can get an allowance but appeal for a higher rate. Furthermore, our statistics branch does not retain data on the number of appeals heard over disallowed cases. Mr Cullen will elaborate.

24. Mr Brian Cullen (Department for Social Development): The system that our statistics branch uses for analysis pays the benefit into claimants’ bank accounts. Entitlement work is done offline. The computer system collates the names of customers, their benefit entitlement, and details of bank accounts to be credited. The statistics branch cannot access information on the number of people whose claims are allowed or disallowed, nor can it provide a further breakdown of those figures.

25. On the issue of appeals in general, every outcome decision is open to appeal, and it is wrong to assume that people appeal only against being refused benefit. There are 12 permutations, ranging, in monetary terms, from the highest level of £113 a week, to the lowest rate of either component, which is £17·75 a week, or — in the worst-case scenario — no entitlement at all.

26. The Appeals Service captures information on appeals and tribunal outcomes, such as whether the customer has won a higher payment.

27. Therefore, if the tribunal awards a rate to someone who has no entitlement, whether the lowest rate or the highest, that is considered a successful appeal. Equally, if someone with a current rate of benefit, whether the lowest or the middle rate, is awarded a higher rate on appeal, that, too, is regarded as a successful appeal. However, if the tribunal upholds the Department’s decision in a case, whether a disallowance or a current rate of benefit, that is classified as an unsuccessful appeal.

28. In cases where benefits are already being paid, the tribunal might decide that an individual is entitled to a lesser amount. Nevertheless, that means that we got it wrong, since we had been too generous in our determination. The tribunal has the authority to remove or reduce entitlement, which is also classified as an unsuccessful appeal. Only three types of data are captured: successful, unsuccessful or disadvantageous. The Appeals Service captures those data and feeds them to us. However, it is not possible to carry out an individual analysis of each of the 173,000 cases to which Mr Nevin referred.

29. The Chairperson: There are 173,000 recipients of DLA entitlements. Is it possible to establish how many people in any 12-month period applied for DLA?

30. Mr Cullen: There are 60,463 activities in any given year. An activity can be a fresh claim application or a renewal application; some people are awarded DLA for a restricted period because their condition might change and they will later have to reclaim. Claimants who receive the current rate of benefit can at any time report a deterioration or improvement in their condition and ask for a supersession to have their case re-examined or a previous decision reconsidered.

31. The Chairperson: Do those 60,000 claimants encompass all groups?

32. Mr Cullen: Yes.

33. The Chairperson: Of those who were not entitled to DLA last year, how many are fresh applicants in the current year?

34. Mr Cullen: There were 21,796 fresh applications.

35. The Chairperson: Is that a consistent year-on-year figure?

36. Mr Cullen: There have been about 21,000 to 22,000 applications in each of the past five years. In 2003-04, there were 23,000 applications, which was the highest number in the past five years; in the following two years the figure fell to 22,700 and 22,100. In the last full year, the figure was 21,796, of which 47% were successfully awarded benefit.

37. The Chairperson: Has the total number of recipients remained constant or increased in the past five years?

38. Mr Cullen: The live flow usually increases year on year; however, there are on-flows and off-flows, and it is wrong to make a correlation. If 21,796 people claim benefit — say 22,000 — and 50% are successful, it is wrong to say that that will add another 11,000 to the 173,000 because, depending on the nature of the condition, we might decide to restrict awards, so a certain percentage of people will come off benefits as a certain percentage comes on. In the last published figures, on 31 August 2007, there were 173,000 on our live load.

39. The Chairperson: Let us keep this simple. There are 173,000 claimants at the moment: what was the number five years ago?

40. Mr Cullen: I do not have that statistic in front of me.

41. The Chairperson: There are 173,000 recipients in the system and approximately 20,000 applications each year, roughly half of which are likely to be successful.

42. Mr Nevin: There are roughly 23,000 new applications each year.

43. Mr Cullen: Forty-seven per cent were successful in the last full year.

44. The Chairperson: I am trying to understand the scale of benefit entitlement. By how much is the number of applications increasing and how many fresh people are coming into the system? How does that affect the administration of the system?

45. Mr Nevin: In September 2003, there were 155,000 DLA recipients; in September 2004, there were 162,000; in September 2005, there were 167,000; in September 2006, there were 170,000; and in August 2007, there were almost 174,000 recipients.

46. The Chairperson: Has the Department been able to work out what percentage of the population of Northern Ireland is theoretically entitled to apply for disability living allowance?

47. Mr Nevin: Research shows that about 18% to 20% of the population in Northern Ireland suffers from a limiting health complaint. That does not necessarily mean that all those people are entitled to disability living allowance, but it gives an indication of the potential pool of applicants.

48. For example, there are people with cancer who are receiving treatment, but their lifestyle is not sufficiently —

49. The Chairperson: I am sorry, but I am not talking about medical conditions; I am asking about the number of people theoretically entitled to apply for disability living allowance. Are people over 65 entitled to claim?

50. Mr Nevin: There can be no fresh applications from the over-65s.

51. The Chairperson: Therefore it should be possible to determine the number of people over 65 who live in Northern Ireland who can be removed from the mathematical equation.

52. Mr Nevin: Yes.

53. The Chairperson: If there are 1·7 million people in Northern Ireland, 250,000 of whom are over 65 — I do not know the exact figure, but I am sure that the Department could establish it — the number of people who can theoretically apply for DLA, whatever their condition, is about 1·4 million. Can other categories be removed from the equation? Can a claim be made for a very young child?

54. Mr Cullen: One can claim from birth, Mr Chairman. There is a three-month qualifying period before one is entitled to claim, but if a child is born with a substantial disability, a claim can be made at the outset and we would make an award in advance of that three-month period.

55. The Chairperson: I suspect that the number of applications for very young children is quite small.

56. Mr Cullen: For the purpose of benefits, a child is classified as anyone under 16. A high number of children with disabilities claims benefit; however, we cannot break it down by age profile.

57. The Chairperson: I would like to simplify the matter: we are talking about a potential applicant pool of approximately 1·4 million to 1·5 million people under 65 who could theoretically apply for disability living allowance. The number of successful applicants is increasing by about 5,000 per year, is that right?

58. Mr Nevin: That is correct.

59. The Chairperson: What sort of administrative problems does that present?

60. Mr Cullen: The same resource requirement is needed whether a claim is successful or not, and that requirement relates to the volume of applications and not to their outcome. Once entitlement has been established, the maintenance on a claim is limited, with the exception of a customer writing to report a change in their condition, bank details, general practitioner and so forth.

61. Ultimately, most of our resources are targeted at determining claims and applications. At present, 53% of claims are unsuccessful, but we still have to go through the same determination process of evidence gathering that we would for a successful claim.

62. I have a rough understanding of where you are coming from — although correct me if I am wrong — in wanting to understand the percentage of the population in Northern Ireland eligible to claim. Statisticians, through commissioned research, estimate that roughly one in 10 of the population receives disability living allowance.

63. The Chairperson: Does that statistic include the proportion of people who cannot apply for DLA because they are over 65?

64. Mr Cullen: No; it covers people who fall within the age-band criteria.

65. Mr Nevin: A total of 173,000 — approximately 10% — of the 1·7 million people in Northern Ireland receive DLA. However, if the over-65s are excluded, the remaining recipients represent 12% to 13% of the 1·4 million people who are entitled to receive DLA.

66. Mr Cullen: There is an alternative and equivalent benefit — a form of attendance allowance — available to people over 65, which mirrors the DLA entitlement conditions, with the exception of the mobility programme.

67. The Chairperson: At the moment we are just looking at DLA.

68. Mr Brady: Whether you like or not, our concerns have been instigated by the inconsistency in DLA decisions; I have been dealing with that issue since the introduction of DLA in 1992.

69. An example of such inconsistency is where two children with Down’s syndrome, one of whom will get an indefinite award while the other will get a two-year allowance.

70. I am aware that you look at how each applicant’s condition affects them, but it is the inconsistent decisions that I find hard to reconcile. Another concern with DLA administration is that of commissioners’ decisions over the years. I am not quite sure how they are factored in.

71. Another issue is periodic reviews. I was involved in a consultation in the mid-1990s when periodic reviews were introduced to ensure that people received their entitlements. However, from then until last year, I did not meet one person in the advice centre where I worked who had their circumstances periodically reviewed and subsequently allocated more money. I am not saying that it does not happen; I am just saying that that has been my experience.

72. We accept that we cannot change the legislation; however, we can question the administration and its inconsistency. I recently came across a case where a 1998 examining medical practitioner report on a person who suffers from the progressive condition of osteoarthritis was quoted in 2000. I am not sure how the two can be reconciled.

73. I have also found that favourable GP reports for claimants are often ignored, whereas unfavourable ones are quoted ad nauseam. Those are personal observations from my dealings with the issue over many years.

74. Another administration issue relates to the treatment of people with mental-health problems. Commissioners’ decisions have said that an examining medical practitioner should not assess people who have mental-health problems unless they have some knowledge of the illness. However, the opposite often happens: examining medical practitioners who have no experience of working with mental-health problems examine people who have severe mental-health problems.

75. Are all those issues factored in?

76. You spoke about accuracy; however, the accuracy to which you refer is the accuracy that you apply to your criteria in administrating the benefit, not necessarily the legislation. I could go on about that all day.

77. I am aware that the design for the DLA form won an award a few years ago. I am not sure who gave the award, but it certainly was not someone who had applied for DLA. The problems with that could be looked at and streamlined with proper medial evidence and consultation.

78. The disability handbook is frequently quoted to DLA claimants. However, it is often inconsistent with what is quoted by the Department.

79. The North has a high percentage of people per head of population who have a disability. The area where I live has one of the highest incidences of MS in the world, which has been documented by the Mayo Clinic. There are also high incidences of ME and fibromyalgia. There are commissioners’ decisions that are consistent with what you said about looking at the effect and not the cause of an illness.

80. Unfortunately, in my experience, that seems to be ignored. Therefore, huge issues must be considered; however, I do not want to go on about it all day.

81. Mr Nevin: Without wanting to sound facetious, Mr Brady has covered quite a few points and, although I will try to answer them all, I apologise if I miss any of them out in my response.

82. We appreciate the work that the Assembly does, as well as the help that we get from the voluntary sector, constituency offices and public representatives, although it may not always appear that way. Professor Eileen Evason, who is well known in the field of welfare rights and voluntary work, recognised that people working in the welfare and voluntary sectors tend to deal with people who are dissatisfied and have complaints as a result of mistakes that we have made. I do not claim that we are perfect — far from it. Therefore, those who contact their representatives have had problems. There are probably too many such people.

83. Accuracy monitoring is carried out by an independent unit in the branch. That unit follows the guidance that we have been given through the commissioner’s decisions, and has found that 97% of cases are dealt with accurately. That means that, of the 170,000 case papers, we recognise that 3% of them — approximately 5,000 — are wrong.

84. Believe it or not, over recent years, the statistics show that over 50% of cases that are reviewed in the periodic enquiry result in the claimants’ benefits being increased. Those people will go to their representatives because they are probably reasonably happy; therefore, I accept that Committee members, as elected representatives, may not have met many — if any — such people.

85. We have attempted to improve the general accuracy and equality of the amount of disability living allowance. The regulations state that an award should be indefinite when there is no evidence to indicate that the conditions will remain satisfied. Mr Brady mentioned reviewing, on the basis of 10-year-old evidence, the case of someone who suffers from osteoarthritis. That should not have happened; that evidence should not have been used. However, using that case as an example, osteoarthritis is a degenerative condition. When the person initially applied for disability living allowance, he or she may have qualified only for the lower-rate mobility component and, possibly, not for care. Those conditions are likely to continue to be met as long as that person remains alive; so that would be an indefinite award. It is likely, however, that after, say, between three and 10 years, that person’s condition will deteriorate.

86. We have worked with our statisticians to identify such cases that — to use Civil Service-speak — have a high propensity to change; that is, for example, cases where someone suffers from a degenerative illness. The conditions for that claimant’s receiving a benefit will continue to be met; however, those conditions may have deteriorated to the extent that the person becomes entitled to a higher rate of benefit. We review such cases, over 50% of which result in the claimant’s receiving an increased benefit.

87. Mr Brady: Is the periodic review therefore instigated as a result of a desire to increase a person’s benefit? My understanding, — and I have been told by the Department — is that periodic reviews are chosen at random by the computer from the list of people whose benefit award is indefinite. We were told that cases for review are selected at random. If that is not the case, that should be made known in the public domain.

88. Mr Nevin: To explain the background to that, in 1990 a review of benefits by the Audit Office found that there were too many indefinite awards in NI, compared to the number of such awards across the water. The Department examined that and, five or six years ago, I became involved in that review. At that stage, we decided to ask our statisticians to target cases that were likely to change. At the beginning, that amounted to over 80%. At that stage, the ratio of reduction to increase was 51% to 49%. Those figures remained until the last couple of years. The purpose is not to increase or decrease awards; it is to ensure that the correct award is paid.

89. Mr Brady: With regard to logistics and bringing forward, if, in the periodic review, the case of a person with a condition that is likely to worsen is entered into the computer, will that case be picked out in five years’ time?

90. The Chairperson of the Committee for Social Development: Some sort of DGI or something?

91. Mr Nevin: I asked that question in preparation for today because I thought that our system could possibly be improved. The system does not allow us to bring cases forward three, four or five years ahead. Our data on the impact of benefits, how they change and how decisions are passed were given to the statisticians and fed in. A code is assigned to any benefit awarded which reflects the nature of the person’s complaint that most contributes to that award. Statisticians take that information into account.

92. Conditions that will deteriorate — for example MS, osteoarthritis or fibromyalgia — can be flagged up fairly well; they can be identified and pulled out. Equally, where people have conditions that are likely to improve, those cases can be identified from the system. We had agreed with the Audit Office on a programme, through the periodic enquiry, to tackle those cases with the highest propensity to change, and there are approximately 28,000 of those. We were examining about 2,000-3,000 of such cases each year, and the Audit Office asked if that could be extended. We wrote to cases in that pool that were less likely to change, asking the recipients of DLA if there had been any change in circumstances. We hope, over a period of three or four years —

93. Mr Brady: In the case that I am talking about, of osteoarthritis, there was an award — a low award — but it was in a supersession where DLA 434 was sent out and completed, with medical evidence as to the worsening of the condition.

94. There was a recent case where someone who was said to be in the top 10% of people with rheumatoid arthritis — the person is actually undergoing a form of chemotherapy, which should be some indication that he or she has a serious condition — and the medical evidence from the specialist and GPs was clear that the condition had deteriorated rapidly. It had spread to the spine, yet that person was turned down. I refer to that kind of inconsistency.

95. Regarding the periodic review, when we were involved in the consultation in the mid-1990s, we were told that it was being done in a better way here because it had been made such a mess of in England. That is why the voluntary sector was called in — to make sure they got it right. Unfortunately in my experience, that simply has not happened, but that is the personal observation of someone who has worked in that field for the last 26 years.

96. The Department needs to stand back and look at big issues around the whole administration of DLA. I make the point that accuracy means applying your criteria. I do not say that everyone who applies for DLA should get it; that would be nonsense. There are people who receive DLA who, I am sure, should not. However, genuine cases of particular conditions that would receive DLA, were the criteria applied, are not.

97. That is the problem. You referred to people who receive DLA after a periodical review. That is great, but the people I refer to are not just dissatisfied. People who have genuine conditions, supported by medical evidence, have had their DLA reduced. That is despite the fact that, in many cases, the condition has become worse.

98. The complexity of the benefit system has been illustrated by yourselves and by the questions that the Committee members have asked. Ultimately, however, the decisions are made by civil servants without the necessary medical knowledge. Members referred to senior medical officers. I have read appeal papers that were returned because a condition may or may not improve. If someone has a broken leg, they hope that that will get better. However, some complex medical conditions are dismissed by the decision-makers — and therein lie many of the difficulties.

99. Mr Nevin: I know that Mr Cullen is champing at the bit to speak. Over the years, the Department for Social Development has improved the consistency of correct decisions; however, I accept that there are cases when the Department does not get those decisions right. Those constitute approximately 3% of the case load, although that means thousands of cases.

100. The Department draws some comfort from the report that was produced by the president of appeals tribunals. Mr Maclynn last reported on 2005-06, when he said that the decisions in relation to DLA were of a high standard. The right decision was made in 98·4% of the cases that went to appeal. That is not to say that some cases were not overturned because of different interpretations, where new evidence was considered by the tribunals, or where, having seen the person, the tribunals decided that a change should be made.

101. The Department was given some consolation from the consistency and the correctness of the decision-making in accordance with the law. Obviously, we cannot discuss individual cases; however, if members have examples of individual cases, Brian Cullen will be very happy to consider those.

102. Mr Brady: With respect, Mr Maclynn’s figures would be more accurate if it was known how many people had their request turned down and did not appeal that decision. Presumably, he only deals with appeals that go through his office. It is perhaps the case that quite a few people who were turned down did not appeal because they did not think that it was worthwhile. That is another issue that should be considered.

103. Ms Ní Chuilín: My question concerns the periodical review. Mickey Brady referred to categories of conditions that may or may not improve: a form of random selection exists even in those cases. I do not deal with many constituents who have the expertise to appeal their DLA decision. I do not hear of many people who successfully appeal their decision and receive more money as a result.

104. My question relates to lessons that could be learned from DLA decisions that were successfully overturned after appeal. I am alarmed to hear that that figure is so high. Are any mechanisms in place to undertake a review and to learn lessons about how decisions are made?

105. I am aware of a case in which one of my constituents had various mental-health problems. The doctor who undertook the assessment told him to catch himself on and give himself a shake. That is not conducive to making assessments. That doctor had medical training, but no training in empathy or understanding of mental-health conditions. The decision did not go in favour of the claimant. However, that claimant won the appeal and was awarded DLA. That is a clear example of a process from which lessons could be learned.

106. I do not say that consultants should be sent out to deal with different conditions; however, when people apply for DLA due to mental-health difficulties, surely a simple suggestion is that the person who undertakes that assessment should at have a background in mental health.

107. Mr Nevin: I do not know about individual cases and cannot comment on them.

108. Ms Ní Chuilín: I do not expect you to.

109. Mr Nevin: The doctors who are employed by the Department are managed by the senior medical officers in the branch. However, that is not to divorce the agency from its responsibility. Complaints are dealt with by the senior medical officer and the director of our medical service.

110. We try to learn lessons. In complicated cases, including mental-health ones, presenting officers go to tribunals. We ask them for feedback, especially where decisions are overturned. From a learning perspective, the difficulty is that we are not privy to the reasons for the tribunal’s decision. We can make some inferences from the questions that the appellant and the presenting officer were asked.

111. We have been in touch with the president of appeals tribunals to reach an arrangement to receive feedback on cases that are overturned. Under our proposal, the tribunals would give us quick feedback on cases that they monitor. That is necessary because, although we try to use the information in the president’s report, that usually takes a year or more to publish, and some cases are between two and three years old by then. Therefore, the learning is not current. If an arrangement is agreed, we hope that the tribunal will tell us its experience of where the cases were wrong, so that we can tell our decision-makers what needs to be examined. Hopefully, that will improve the quality of their decisions.

112. Ms Ní Chuilín: It is very hard for anyone to learn lessons when he or she does not receive the information necessary to understand the reasons for decisions, and to make decisions more transparent.

113. A section on the form does not leave much room to write about, for example, mobility restrictions due to mental-health problems, or the emotional or physical impact of more than 30 years of conflict. You said that there are more DLA claimants here than in Britain. Our society is poorer and unhealthier, and has a particular set of circumstances. Is there room for that to be fed in centrally?

114. I am glad that to hear that a proposal has been submitted to help you learn lessons because, unless you have the ability to examine your mistakes and use them to help you make better decisions, we will continue to have these conversations with old data.

115. Mr Nevin: Brian knows more about the mechanics of the form than I do. However, in an attempt to improve the application form and make it easier for people to complete, it is subject to continual review. The current form was subject to extensive consultation with the disability lobby across the water, and Brian spoke to the disability lobby here when the form was introduced.

116. With regard to mobility and mental health, if someone can walk, but requires mental support to do so, there are spaces in the form to explain that. The form is under review, and changes in its design will take representations into account.

117. The Chairperson: I ask everyone to be concise when asking and answering questions. Although I realise, and accept, that we are discussing a complex subject, we are in danger of running severely over time.

118. Mr Cullen: Members raised the issue of how we learn from complaints, appeals, and so forth. The robust mechanisms in the processes enable us to do that. The first lesson is internal to the Department. The first stage of any dispute, before it goes to an appeal, involves an individual’s request that a decision be reconsidered. A different decision-maker examines the case to ensure that the Department had sufficient evidence to justify its original decision. If the second decision-maker deems the original decision to be incorrect, he or she can revise it accordingly. A mechanism is in place, whereby the reasons for overturning or changing a disputed decision are — in every single case — fed back to the original decision-maker.

119. As a manager, dealing with disputed decisions can be resource-intensive. I must ask whether an incorrect decision was made because of a mistake based on the available evidence, or whether the customer raised new issues and provided supporting evidence. In such cases, the Department can better educate customers on the evidence required to prove their entitlement to the benefit.

120. As Mr Nevin mentioned, the main source of feedback from the appeals service is in the form of reports by its president, which highlight why cases were overturned. In his most recent report, for 2005-06, only 1·6% of decisions were found to be incorrect. The reason for changes to the remainder was that the tribunal received evidence that had not been available to the decision-maker.

121. Members probably wonder why that evidence was not available to the Department, or why it was not requested. The constraints of data protection mean that only questions relevant to the benefit claim can be asked. In over 70% of cases, the Department writes to general practitioners about received claims, and a standard report asks the questions deemed relevant to the benefit. In contrast, when the tribunal hears the case, it is standard practice in Northern Ireland for it to receive all available GP records, which are taken straight from the GP’s surgery and made available to the tribunal. However, it is not within our gift to have those records, because we would be in possession of information that was not necessarily relevant to the benefit claim and might be of an extremely personal or sensitive nature.

122. The Chairperson: There will be a series of questions from members, but we will have to follow up in writing to the Department, because we will not cover all the necessary ground today.

123. Mr Cobain: It worries me when I hear Ministers on television saying that they will cut the number of people claiming benefits for A, B, C, D or E over the next couple of years, because, in Northern Ireland, the number of fresh claims is down by 20% — which could be considered a success — and the number of appeals is up by 20%. The officials know more about the subject than I do; if I were in their position, I would be worried by an increase of 20% in the number of people winning appeals.

124. The Chairperson: The same thought struck me just as Mr Cobain was asking the question. Is it possible to establish a reason for the difference in success rates between Northern Ireland and GB, not only in the reduction of fresh claims that Mr Cobain highlighted, but in the huge disparity in the number of reconsiderations and appeals? In 2007-08, for example, the Northern Ireland success rate for reconsiderations was 21%: less than half of the 44% rate in GB.

125. Mr Nevin: Our explanation is that our original decision is correct in approximately 97% of cases. The more evidence that is received, the more it reinforces the quality of the original decision.

126. The Chairperson: Sometimes, Planning Service officials use those criteria to assess planning appeals, and they can be difficult to substantiate.

127. Mr Nevin: I appreciate that, Chairman. The fact is that 21% of decisions are changed on reconsideration. I would be worried if none was changed, or if only 5% or 10% were changed.

128. The Chairperson: My point is that, assuming that the criteria are the same, the success rate of appeals in GB is more than double that of NI. Why is that?

129. Mr Nevin: As I said, we have looked at that. Our original decisions are correct, and, therefore, few of them will be subject to change upon reconsideration.

130. The Chairperson: Does that mean that your counterparts in GB are incompetent?

131. Mr Nevin: I hesitate to say that.

132. The Chairperson: I am sure that you do.

133. Mr Nevin: We may not always be successful, but, in the majority of cases, we try to get as much evidence as we need at the beginning. As I said, if no cases succeeded on reconsideration, I would be concerned. To be honest, I would also be concerned if the success rate of reconsideration was around 40% to 50%, because that would call into question the quality of the original decisions. I am not acquainted with the GB cases, so I cannot comment on that Department’s standard of work.

134. Mr Cobain: Talking of appeals, do you worry that the number of cases successfully appealed — meaning that the original decisions were wrong — has increased by 20% in the last five years?

135. Mr Nevin: At 30% —

136. Mr Cobain: Does 20% not worry you?

137. Mr Nevin: A 30% success?

138. Mr Cobain: The number of people who win appeals has increased by 20% in the last five years. Does that worry you? Does that suggest a trend of original decisions being wrong? You mentioned the quality of service; however, over the last five years, there has been a trend of more people winning appeals.

139. Mr Nevin: More appeals have been successful. The actual trend shown by the president of appeals tribunals’ annual reports is that the accuracy of the decision-making in appeals has improved. As we said earlier, it has increased to, 98·6% or 98·4%. The cases that the appeals tribunals overturn usually involve new evidence, although in some cases the tribunal takes a different view of the same evidence that was considered by the original decision-maker. That is why we wish to have feedback from the Appeals Service.

140. Mr Cobain: Do you not know what that feedback is?

141. Mr Nevin: No, we do not know much of it yet.

142. We are concerned about the figures. However, I would be happier with 25% of successful appeals. If the appeals system was not working, and people were not winning appeals, others might think that appealing was not worthwhile, as Mr Brady said. If people knew the statistics, and if they were aware that they had a one-in-four or one-in-three chance of gaining something by appealing, they would be encouraged to exercise their right to dispute the decision.

143. The Chairperson: You talked earlier about presenting officers. Was the Department’s intention to have presenting officers attending 100% of DLA appeal hearings? Has that occurred yet? If not, do you know the actual percentage?

144. Mr Cullen: It is around 40%.

145. Mr Nevin: We had hoped to achieve 100% attendance. However, there are several appeal centres and a wide spread of hearings. Hearings can take place on the same day in several centres, and they are not co-ordinated, so they might occur in Derry, Newry and Enniskillen at the same time. Hearings are also extremely resource-intensive.

146. We drew up criteria for the cases that we would attend. Some DLA cases are regarded by experts as being less complex than others.

147. The Chairperson: I presume that all the circumstances that you outlined were equally applicable five years ago. Are you saying that, five years later, a presenting officer is not present at 60% of appeal hearings?

148. Mr Cullen: In 2002-03, presenting officers were present at slightly under 20% of appeal hearings; in 2003-04 the figure was 42%; in 2004-05, 47%; in 2005-06, 42%; and in 2006-07 it was 35%. Until August last year, presenting officers were present at 27% of appeal hearings.

149. Whether presenting officers attend appeal hearings is subject to the availability of resources, and whether a case is considered to be complex. Findings from previous tribunals prove that sometimes the presence of a presenting officer has no bearing on the outcome of the tribunal. A decision is made by a panel. The role of presenting officers is that of amicus curiae. Their job is to state the facts, not to say whether an appeal should be successful.

150. The Chairperson: Let us be clear: the Department did not set a target of presenting officers being present at 100% of tribunal hearings, because it was thought that such attendance would not make any difference. Departmental officials thought, rightly, that it is appropriate for a presenting officer to be present at every hearing. You said that in the past year, presenting officers were present at only 27% of appeals. That is a decrease from approximately 40% in previous years.

151. Mr Cullen: That is the figure for April 2007 to August 2007, which is the latest available information. The figure for the entire year will change. For 2006-07, the figure was 35%.

152. The Chairperson: On looking around the table, I detect that Committee members will want to investigate that issue in substantially more detail with the Department than we have done today.

153. Mr Brady: It was interesting that you said that presenting officers, although useful, are not that important. A few years ago, the president of appeals tribunals, Mr Maclynn, subpoenaed presenting officers to attend hearings.

154. Mr Cullen: Mr Maclynn subpoenaed presenting officers because, at that time, written submissions for cases were not being received. Detailed written submissions are now supplied, which is over and above what currently happens across the water.

155. Mr Brady: There were cases in which no written submissions were available and no presenting officers were in attendance, although written submissions may have been available for other cases. My point is that the president of appeals tribunals places a lot more weight on the presence of presenting officers than does the Department.

156. The figures that were quoted for both Britain and here highlight the need for the reconsideration of all administrative procedures. The point was made earlier that legislation cannot be changed. The Department here works to the same regulations as exist in Britain. I would be shocked to be told that your accuracy was not as good, or better, than that in Britain. The same legislation is in place, therefore there has to be a reason.

157. Mr Nevin: As Brian said, when the president of appeals tribunals said that he wanted presenting officers in attendance, written submissions were not being sent. At one stage, shorter versions were sent. Currently, comprehensive explanations are provided of the decisions that have been appealed, detailing the reasoning for that decision.

158. Mr Brady: When I started working on appeals in the early 1980s, statistics found that, rather than going alone, someone had a 60%-better chance of winning an appeal if granny went along. With respect, written submissions are good and serve a purpose, but they are not as good as having a representative or a presenting officer in attendance.

159. Mr Nevin: I accept that. There is logistical and administrative pressure in attending all appeal hearings, which has an impact on the preparation of new appeals.

160. Mr Brady: I accept that. However, the Chairperson said that the figure of 27% is less than acceptable.

161. The Chairperson: Forty per cent was not acceptable, and 27% is less so.

162. Mr Cullen: That 27% is for a limited period only — from April to August 2007.

163. The Chairperson: You said that before, Mr Cullen. However, percentage terms would not be affected by the period of time in which a figure is determined, because — whether it is six months or six years — a percentage is still a percentage of the total; it is not a quantifiable number. The Committee would be interested to see figures for the full year. Whatever way it is cut, if the Department’s objective was to reach 100% attendance by presenting officers from a 40% benchmark, it has certainly not made progress towards that.

164. Mr Cullen: The current objective is not to be at the 100% stage, bearing in mind —

165. The Chairperson: It certainly is not.

166. Mr Cullen: The Department’s criterion is to send presenting officers to what are defined as complex cases. To date, the president of the tribunal has not raised any issues with regard to our level of attendance at hearings.

167. Mr Brady: Do you think that the president has just given up? It is inclusive and parochial at the same time. I do not want Ms Morgan to think that she came to the Committee and wasted her morning entirely. The figures show that it takes 11·94 weeks for an appeal in Newry, because it is one of the busiest centres outside Belfast. A lot of appeals are going through. Recently, Newry has tried to offload some cases to Banbridge to save time. Is that accurate?

168. Ms Morgan: That is correct. Several issues come into play. Our Newry venue is the third-largest in the Province, although Londonderry, too, is a big venue. We have issues around the fact that disability-living-allowance appeals require three tribunal members, as well as the logistics of getting three members together, one of whom must be a medical member — as I am sure that you are all aware.

169. A pool of 74 doctors is available, the majority of whom have surgeries and, therefore, are limited in the amount of time that they can give. Obviously, they cannot travel very far. As a result, only 33 out of that pool can go to Newry because of their other commitments. That must be balanced off against the fact that DLA appeals make up about 53% of our intake. Furthermore, we have to work with doctors in relation to incapacity benefit appeals, so balancing all of those areas can cause problems.

170. Moreover, with regard to Newry, there is a high volume of adjournments for DLA appeals in Northern Ireland — just over 24% — compared to 18 % in GB. However, there is a 29% adjournment rate in Newry, and those cases must be fed back into the system.

171. Mr Brady: That has nothing to do with me, honestly.

172. Ms Morgan: I did not say that it had. [Laughter.]

173. The Chairperson: Is that due to the complexity of the situations?

174. Ms Morgan: It is a judicial decision to adjourn cases, and I cannot comment on that. However, obtaining GP records is the reason given in the majority of cases. Many of the adjournments take into account the fact that GP records are needed in Northern Ireland, whereas that does not happen in GB.

175. The Chairperson: The subject has had a fairly broad airing, and yet it is intensely complex and comprehensive. A great deal of ground has been covered and much still has to be covered. If Members are content, we will write to the Department covering a range of the areas that we have not been able to deal with today, due to the complex nature of the subject, and see what response we receive and take it from there. Are members content?

176. Members indicated assent.

177. The Chairperson: Mr Nevin, Mr Cullen, Ms Morgan, thank you very much for attending.

Appendix 3

Written Submissions

Briefing from the Department for Social Development on the Administration of Disability Living Allowance – 6 May 2008

Social Security Logo

An Agency of the Department for Social Development

Director of Operations
5th Floor, Lighthouse Building, 1 Cromac Place, Gasworks Business Park,
Ormeau Road, Belfast BT7 2JB
Tel: 02890-829074 Fax: 02890-829555
E:mail: colin.sullivan@dsdni.gov.uk

Ms Marie Austin

6 May 2008

Your Ref: CSD/DLA/2008/MA

Ms Marie Austin
Committee Clerk
Social Development Committee
Room 412
Parliament Buildings
Stormont
Belfast
BT4 3XX

Dear Marie

In your letter of 16th April 2008 you indicated the Social Development Committee, at its meeting on 10th April 2008, requested briefing on the administration of Disability Living Allowance. I attach the briefing as requested. The officials attending will be John Nevin, Assistant Director of Disability, Incapacity & Benefit Security, Brian Cullen, Head of Disability & Carers Service and Lesley Morgan, Head of Administration of The Appeals Service (NI).

If you need anything further prior to the Committee meeting on 22nd May, please do not hesitate to contact me.

Yours sincerely

Colin Sullivan signature

Colin Sullivan (Dr)
Director of Operations

The Administration of Disability Living Allowance

Briefing for Social Development Committee
(May 2008)
6 May 2008
Introduction

1. Disability Living Allowance is a tax-free social security benefit for people aged under 65 with an illness or disability who need help with getting around, or help with personal care, or help with both of these. Disability Living Allowance provides a contribution towards some of the extra costs faced by severely disabled people as a result of their disabilities. If awarded before age 65 Disability Living Allowance will remain in payment until the customer’s conditions change.

2. The rules governing entitlement to Disability Living Allowance are particularly complex because eligibility is based not on a person’s particular illness or medical condition but the impact it has on a person’s daily living. Decisions on entitlement involve a high degree of judgement and interpretation of detailed medical evidence. The level of complexity is further illustrated in that a Disability Living Allowance claim can have 12 potential different outcomes. (See Appendix 1 for more details).

Qualifying Criteria

3. Disability Living Allowance consists of two separate components, the mobility component and the care component.

4. The mobility component is payable to people who are unable or virtually unable to walk taking account of the time, manner, distance and speed at which they can make progress on foot without severe discomfort or the low rate which is available to people who can walk but who need guidance or supervision from another person when walking out of doors on unfamiliar routes.

5. The care component consists of three separate rates, high, middle and low. To qualify for the highest rate care component the customer must be so severely disabled physically or mentally that they require throughout the day frequent attention from another person in connection with their bodily function, or they need continual supervision from another person to prevent substantial danger to themselves or others, and at night they need prolonged or repeated attention from another person in connection with their bodily functions, or they need another person to be awake for a prolonged period or at frequent intervals to watch over them in order to avoid substantial danger to themselves. To qualify for the middle rate care component the person must have these needs by day only or night only. To qualify for the lowest rate care component the customer must be so severely disabled physically or mentally that they require attention from another person for a significant portion of the day in connection with their bodily functions, or be unable to prepare a cooked main meal for themselves, even if they have the ingredients (this only applies to people over the age of 16). In addition, where the case is of a child (under 16) they must require attention or supervision substantially in excess of that normally required by a person of the same age in normal physical and mental health.

Administration of Disability Living Allowance

6. The average monthly intake of Disability Living Allowance fresh claims during 2007/08 was approximately 2000 cases. In addition, the branch also received approximately 1400 renewal applications, 1000 supersession requests, 800 reconsideration requests and 600 appeal requests per month. The tables at Appendix 2 detail the volumes, over the last 5 years, in each of these areas along with the percentage success rates in Northern Ireland. Comparisons with Great Britain (GB) in the same periods are also provided.

7. Decisions on entitlement involve a high degree of judgement and interpretation of detailed medical evidence. As a result, Decision-makers are specifically trained and have guidance that gives them information on the likely effects that medical conditions can have on a person’s care and mobility needs. Decision Makers can also call upon the support of Medical Officers who are experienced in disability assessment and have received additional training in benefit legislation and its administration. If customers are not content with a decision, for example if Disability Living Allowance has been disallowed or if they believe that it should have been paid at a higher rate, there are ways to challenge this decision through the disputes process.

8. There are two elements to the disputes process, namely, reconsideration and appeal. In the first instance customers ask for the Department to reconsider the decision given, although they can go straight to the appeal stage if they so choose. As part of the disputes process they can also request a copy of all the evidence that the Decision Maker used when making the decision. They can challenge this evidence and indeed supply any further evidence that they think would help the Decision Maker come to a different conclusion. Under the reconsideration process a different Decision Maker will then look at all the available evidence again and will make a determination as to whether the original decision should be upheld or changed. If the customer still remains dissatisfied after the reconsideration determination they can ask for their case to be determined by an independent tribunal. For Disability Living Allowance independent tribunals consist of legally and medically qualified members who consider all the evidence and come to their own decision, totally independent of the Social Security Agency.

DSD Committee asked the following specific questions:
Question
What procedures are in place to ensure that DLA is administered consistently across Northern Ireland and in comparison with the United Kingdom?
Answer

9. Disability Living Allowance is administered centrally from within the Disability and Carers Service in Castle Court, Belfast. Claims are scanned onto the branch’s computer system and are referred to Decision Makers via an electronic work flow system. Claims are referred for processing by case event, fresh claim, renewal application etc rather than by geographical area. They are also referred in date order of receipt to Decision Makers who open the next available case presented to them in the work queue. The electronic system does not allow for “cherry picking”. Once a case is referred electronically to an officer for processing it remains with them until all clearance action has been taken.

10. There has been a long-standing policy of parity between Great Britain and Northern Ireland in social security matters in what is in effect a single system of social security. The qualifying criteria and legislative requirements for an award of Disability Living Allowance mirror those of our counterparts in Great Britain, as does the claim form. With the introduction of new On-Line Medical Guidance since 30 April 2007, which provides Decision Makers with more comprehensive up to date information in relation to disabilities, medication, prognosis and the likely impact it would have on a customer’s day to day living, our Fresh Claims success rates are broadly in line with those in GB (Appendix 2 – table 1 refers).

11. Standards Assurance Unit has responsibility for monitoring the accuracy of decisions made on Disability Living Allowance claims within Northern Ireland. Its role is independent of the branch and its findings are used to give an assurance to both the Northern Ireland Standards Committee and Northern Ireland Audit Office on the overall accuracy and financial expenditure of the benefit. The tables at Appendix 3 show their findings over the last 5 years.

12. Disability and Carers Service also have formal engagement arrangements in place with the Voluntary Sector in the form of a forum, which meets quarterly, to enable it to tell us of any concerns it may have with regard to the administration of Disability Living Allowance. Membership of this forum consists of representatives of Citizens Advice Bureaux, Advice NI, The Law Centre and Disability Action. In addition to this forum, these organisations also have dedicated contact points throughout our business areas.

Question
Are there any procedures in place to minimise the occurrence of a DLA applicant’s own family doctor being the Examining Medical Practitioner?
Answer

13. When a case is referred to Medical Support Services to arrange a medical examination Disability and Carers Service also provides the name of the customer’s GP. If the GP in question is employed by the Department to conduct medical examinations they will automatically be excluded from any involvement in the case. A check of each GP’s practice will also be completed to ensure that examining medical practitioners are not asked to examine a customer who is a patient of another GP within their practice.

14. As a further safeguard all doctors employed by the Department are advised during their training that they are forbidden to examine, for benefit purposes, any of their patients or any customer known to them. In the year ended March 2008 a total of 63 cases were returned by Examining Medical Practitioners without a medical examination having been completed, as the customers concerned were known to them.

Question
Over the last five years, what percentage of applicants who were unsuccessful in their applications for DLA lodged an appeal? This information should be broken down into components and rates.
Answer

15. The Department’s Statistics and Consultancy Branch, which has responsibility for data capture from the Disability Living Allowance computer system, has advised us that the data held is a snapshot at any given time showing only those people currently receiving the benefit. Statistics and Consultancy Branch does not hold data on disallowances/unsuccessful applicants, therefore we cannot ascertain how many unsuccessful applicants went on to make an appeal. Because Disability Living Allowance has 12 potential outcome determinations, with the exception of those awarded the highest rate of both components, an appeal can be made against any of the other 11 possible outcomes and the computer system we use to pay this benefit, which is owned and used by the Department for Work and Pensions, does not capture this level of detail.

Question
Over the last five years, what percentage of DLA appellants were successful at appeal? This information should be broken down into components and rates.
Answer

16. The percentage of Disability Living Allowance appellants who were successful at appeal is shown in Appendix 2 – table 5. As advised at paragraph 13 above, we are not able to provide specific details broken down by components and rates as our computer systems do not hold this level of detail.

Question
Over the last five years, how many appeal tribunal decisions have been:

a) more favourable than the decision appealed against;

b) the same as the decision appealed against;

c) less favourable than the decision appealed against.

Answer

17. Unfortunately the information you requested above can only be provided for the period 1 July 2007 to 31 March 2008 only – see Appendix 4 -table 1. Prior to this period the IT systems in place within The Appeals Service (TAS) to track appeals did not contain this level of detail. Appendix 4-table 2 provides details on the number of appeals allowed and disallowed during the last five years and prior to 1 July 2007.

Question
Are there any procedures in place to minimise the occurrence of a DLA appellant’s own family doctor sitting on the DLA appeal tribunal?
Answer

18. The Appeal Service has procedures in place to minimise the occurrence of a Disability Living Allowance appellant’s own family doctor sitting on the DLA appeal tribunal, these are detailed below:

Question
What is the current average waiting time for a DLA appeal to be heard in Northern Ireland and how does this compare with the rest of the United Kingdom? The information relating to Northern Ireland should be broken down by tribunal area.
Answer

19. There are two distinct functions within the process of referring cases to the tribunal panel. The Social Security Agency has responsibility for the first stage of the process to prepare and complete a written submission of all the facts of the case which is then referred to The Appeal Service which is independent of the Agency. The Appeal Service has responsibility for the second stage of the process to arrange the actual appeal hearing.

20. With regards to stage 1 the Agency has an internal benchmark target for processing an appeal within 40 days. Up and until September 07 this target had been consistently achieved however our current year to date performance is 49.1 days. A recovery plan is currently in place which will bring us back within target by the end of September 08.

21. With regards to stage 2, in the 2007/08 Business year Disability Living Allowance appeals on average had a first date of hearing within 10.26 weeks of the appeal submission being received by The Appeal Service. This compares with The Appeal Service(GB) average of 9.3 weeks. Please see Appendix 5, which provides details of waiting times broken down by Tribunal Centre. It is important to note that there are a number of differences in procedure between the two offices e.g. in GB the owning Department issues the submission to the Appellant whereas in NI this function is performed by The Appeal Service; in addition General Practitioner records are requested for Disability Living Allowance appeals heard in NI however this does not apply in GB.

Question
Does the Department revisit cases that were turned down at application but successful at appeal, to ascertain if mistakes/misjudgements had been made and to identify learning points? If so, the Committee would appreciate detailed information on the procedure followed by the Department and details of any findings.
Answer

22. The Department does not revisit each case overturned on appeal because since the introduction of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 we no longer receive a statement of reasons for the decision given by the tribunal. The Northern Ireland Audit Office in its last report on Disability Living Allowance in 2005 identified this as a weakness and recommended that feedback mechanisms should be put in place to learn from appeals. The Department subsequently suggested the introduction of a feedback proforma for each overturned decision however this suggestion was rejected by the President’s Office due to resource implications.

23. Our main source of feedback is therefore taken from the findings contained within the annual reports produced by the President of Appeal Tribunals, which focus on the Standard of Decision making by the Department, which has shown a year on year increase on the standard of Disability Living Allowance decision making. In his last published report there was an improvement of almost 3% on the previous year with only 1.6% of the cases monitored considered to be incorrect, with the remainder being considered correct although overturned by the tribunal because of additional evidence which was made available to it.

24. As explained in paragraph 19 above, in Northern Ireland the tribunal panel request the medical records from the General Practitioner which has often resulted in the tribunal reaching a different conclusion to that made by the Department. While the President has recommended in past reports that the Department should obtain such evidence, we are restricted from doing so under the Data Protection provisions, as we can only ask specific questions relevant to the benefit claimed. A robust evidence gathering process is fundamental to good decision making and the introduction of the On-Line Medical Guidance has ensured we only request evidence from the most appropriate source.

25. We also seek direct feedback from our Presenting Officers who attend oral hearings and have in place a local database to capture their feedback in any overturned cases. While such information is useful it’s based solely on the Presenting Officer’s perception of the hearing and is not conclusive.

26. Our overturned rate in Disability Living Allowance appeals is currently 12% less than the GB overturned rate, which is excellent bearing in mind that GB tribunals don’t have GP records made available to them. This provides us with a level of assurance on our decision making standards.

Appendix 1
Potential outcomes on DLA Claims

The table illustrates the 12 different potential outcome decisions:

Mobility Component

Care Component

Weekly Monitory Value

High

High

£113.75

High

Middle

£91.60

Low

High

£84.75

Nil

High

£67.00

High

Low

£64.50

Low

Middle

£62.60

High

Nil

£46.75

Nil

Middle

£44.85

Low

Low

£35.50

Nil

Low

£17.75

Low

Nil

£17.75

Nil

Nil

£Nil
Appendix 2
DLA Success rates in NI and GB
Fresh Claims – Table 1

Year

Received In NI

NI Success Rate

GB Success Rate

2007/08

21796

47%

45%

2006/07

21313

56%

47%

2005/06

22102

58%

47%

2004/05

22733

51%

47%

2003/04

23374

58%

47%
Renewal Claims – Table 2

Year

Received In NI

NI Success Rate

GB Success Rate

2007/08

16527

74%

88%

2006/07

18007

76%

89%

2005/06

17932

77%

88%

2004/05

16111

84%

88%

2003/04

12866

84%

88%
Reconsiderations – Table 3

Year

Received In NI

NI Success Rate

GB Success Rate

2007/08

9585

21%

44%

2006/07

7893

18%

40%

2005/06

7898

22%

37%

2004/05

8277

25%

35%

2003/04

5842

20%

34%
Supersession – Table 4

Year

Received In NI

NI Success Rate

GB Success Rate

2007/08

12555

51%

55%

2006/07

10373

66%

55%

2005/06

9193

59%

53%

2004/05

7728

55%

54%

2003/04

10633

57%

54%
Appeals –Table 5

Year

Received In NI

NI Success Rate

GB Success Rate

2007/08

7630

32%

45%

2006/07

7527

31%

46%

2005/06

7179

25%

47%

2004/05

7336

26%

46%

2003/04

4769

25%

50%
Appendix 3
Standards Assurance Unit’s Accuracy Findings 2003/04 to 2007/08

2003/04

2004/05

2005/06

2006/07

Case Accuracy

88%

86%

87%

95%

 

2005

% Correctness

% Correctness

% Correctness

% Correctness

Financial Accuracy

93.5%

93.5%

93.5%

98%

* Figures to be finalised.

MVE Monetary Value Error

Appendix 4
Disability Living Allowance – Appeal Tribunal Decision Outcomes
Table 1

Year

Same Decision

Less Favourable

More Favourable

01/07/2007 – 31/03/2008

2391

79

1252
Table 2

Year

Disallowed

Allowed

01/04/2003 – 31/03/2004

5979

1732

01/04/2004 – 31/03/2005

3790

1478

01/04/2005 – 31/03/2006

3752

1543

01/04/2006 – 31/03/2007

2985

1560

01/04/2007 – 30/06/2007

839

464
Notes:

1. From 1st April 2004 DLA appeals were no longer counted per component, but instead by case. Existing DLA case load (prior to 1st April 2004) was largely cleared during the 04’05 business year, with the remainder cleared the following year.

2. Due to the introduction of a new IT / Management Information system last year it is possible from 1st July 2007 to report appeal tribunal decisions in the required format - Table 1 above refers, prior to this period it was not possible to differentiate in this way.

Appendix 5
Average Waiting Times For DLA Appeal Hearings – NI &GB
Northern Ireland

Tribunal Centre

Average Weeks

Armagh

11.33

Banbridge

8.81

Belfast

9.68

Ballymena

10.58

Ballymoney

8.61

Cookstown

8.93

Craigavon

9.19

Coleraine

10.38

Dungannon

9.96

Downpatrick

10.79

Enniskillen

9.75

Londonderry

11.40

Limavady

10.84

Magherafelt

9.79

Newtownards

11.02

Newry

11.94

Omagh

9.38

Strabane

10.27

Weighted Average

10.26
Great Britain

Tribunal Centre

Average weeks

Birmingham

8.80

Cardiff

9.00

Glasgow

9.20

Leeds

10.30

Newcastle

8.50

North West

9.60

Nottingham

9.30

Sutton

9.10

Weighted Average

9.30

Further information from the Department for Social Development on the Administration of Disability Living Allowance – 23 June 2008

Social Security Logo

An Agency of the Department for Social Development

Director of Operations
5th Floor, Lighthouse Building, 1 Cromac Place, Gasworks Business Park,
Ormeau Road, Belfast BT7 2JB
Tel: 02890-829074 Fax: 02890-829555
E:mail: colin.sullivan@dsdni.gov.uk

Ms Marie Austin
Committee Clerk
Committee for Social Development
Room 412
Parliament Buildings
Belfast
BT4 3XX

23 June 2008

Dear Marie

In your letter of 27 May 2008 to John Ball you stated that the Committee for Social Development, following its meeting on 22 May 2008, requested further information on the administration of Disability Living Allowance. I attach the briefing as requested. I would also like to suggest that if the Committee would find it helpful members could visit Disability and Carers Service to see the process in action. If the Committee wishes to take up this offer the visit can be arranged for a time that is most suitable to the members.

If you need anything further prior to the Committee meeting on 3rd July 2008, please do not hesitate to contact me.

Yours sincerely

Colin Sullivan signature

Colin Sullivan (Dr)

The Administration of Disability Living Allowance

Response to Supplementary Questions Raised by DSD Committee

June 2008
Department’s introduction: Administration of DLA
Para 7 of Department’s response

“Decisions on entitlement involve a high degree of judgement and interpretation of detailed medical evidence. As a result, Decision Makers are specifically trained and have guidance that gives them information on the likely effects that medical conditions can have on a person’s care and mobility needs. Decision Makers can also call upon the support of Medical Officers who are experienced in disability assessment and have received additional training in benefit legislation and its administration”.

1. Supplementary Question:

Who trains the decision makers and what level of training do they receive?

Answer:

Decision Makers are specifically trained on a comprehensive 12 week programme which is delivered by experienced senior decision maker trainers in partnership with experienced Medical Officers, who cover complex medical conditions and the likely impact they will have on daily living. These Training Officers are fully versed in the legislative conditions governing entitlement to Disability Living Allowance (DLA) and the application of it. Immediately following completion of their training Decision Makers are assigned to mentors for a further 6 week period, the consolidation period, to ensure they have grasped a full understanding of the training and no weaknesses exist. This training is further enhanced by the provision of Educational Awareness Seminars delivered every 6 months in relation to disabilities that cause Decision Makers particular difficulty or where there have been advances in the treatment of specific disabilities. Decision Makers also have access to on-line medical guidance that gives them up to date information on the likely effects that medical conditions can have on a person’s care and mobility needs. This on-line medical guidance is also used by Decision Makers in GB and is available externally to advice organisations on our internet web site www.dwp.gov.uk/medical/med_conditions/a-z.asp

Supplementary Question:

Do decision makers receive refresher training? If so, how often?

Answer:

As mentioned in the previous answer, there are regular six monthly Educational Awareness Sessions, attended by all Decision Makers. In addition to this any quality issues identified through monitoring are fully discussed through weekly Team time meetings with all decision making staff.

Supplementary Question:

How often would decision makers call on the support of Medical Officers?

Answer:

Decision makers call on the support of Medical Officers on average 700 times per month to seek their assistance on specific cases. We do not hold statistical information in relation to the types of disabilities that are referred for such advice.

Supplementary Question:

Are there any Medical Officers/Examining Medical Practitioners specifically trained in mental health issues? If so, are they used for all cases where there are mental health issues?

Answer:

Medical Officers and Examining Medical Practitioners have in general a wide range of expertise gained from many years working across a range of clinical areas. Because every examination has to consider the full impact of any disability on the individuals daily living, the effect of any mental health conditions are also considered during the examination. Therefore, as part of their training, all doctors undertaking Disability Living Allowance examinations are given specific training on assessment of the mental health issues. This training is delivered by a consultant psychiatrist. In addition all Examining Medical Practitioners who undertake visits for the Social Security Agency are specifically trained in the benefit legislation and administration to enable them to have a better understanding of the purpose of their visit and the requirements of the decision maker.

Supplementary Question:

How often would decision makers contact claimants to collect initial or follow-up information? How effective is this?

Answer:

The Department does not hold data in relation to how often decision makers contact customers directly however this practice is covered in training when clarification is required in relation to the content of the customer’s responses on the claim form. It is an effective method of collecting information and Decision Makers find it helpful because they can clarify directly any ambiguity that may exist on the claim form.

Supplementary Question:

Why is it that anomalies exist in the length of time DLA is awarded for the same condition, and in particular a condition that is degenerative or is with someone for life?

Answer :

The starting point for the decision maker is to decide if an indefinite award can be made. The rules governing entitlement to Disability Living Allowance are particularly complex because eligibility is based not on a persons particular illness or medical condition but the impact it has on a person’s daily living. Decisions on entitlement involve a high degree of judgement and interpretation of detailed medical evidence. Each case must be decided on the personal circumstances pertaining to that individual claim, as disabilities can impact customers in different ways. Thus every case is decided on the level of care and mobility needs an individual may have and not on the actual condition they have. Indefinite awards are made where the evidence suggests that there is no improvement expected in the customer’s disability and the level of care and mobility needs are unlikely to change. Fixed period awards are made where there is a likelihood that the customer’s condition may change due to planned surgery or because they have only recently started treatment and as a consequence their care or mobility needs may change. In the case of children issues such as the child’s natural developmental milestones also need to be taken into consideration when determining the period of the award.

Supplementary Question:

It is noted in the Northern Ireland Audit Office Report on Decision-Making and DLA (2005) that the Agency planned to locate Disability Advisors in local offices to help improve the exchange of information between the Agency and claimants. Has this happened? If so, how many Disability Advisors are there and how effective has this approach been?

Answer:

In September 2003 Macmillan Cancer Relief and the Social Security Agency worked in partnership to identify mechanisms to provide additional help to customers/carers suffering with cancer. It was agreed that a Disability Benefits Adviser pilot should be established. The pilot was undertaken within the Antrim and Banbridge areas due to their close proximity to the cancer units operating in those areas. The pilot was designed to provide information, advice and a form filling service for customers/carers affected by cancer and other appropriate referrals from health and social care professionals. However shortly into the pilot their advice role extended to more client groups than just cancer patients. Following the conclusion of this pilot in June 2007 it was determined that the uptake of the service was not at a sufficient level to warrant its continuation and it was withdrawn.

Help with, and advice on all benefits, including DLA, is available at each of the 35 Jobs & Benefits and Social Security Offices and at the Benefit Shop in Belfast. This service has been enhanced through Disability and Carers Service (DCS) having dedicated contact points which staff from the offices and the information and advice sector can ring to receive help, advice or answers to queries on individual claims. Added to that DLA has a fast track system in place that ensures terminally ill customers, including those with cancer, can access services and support more easily and more quickly thus providing informed advice on relevant benefit related matters.

The Agency also has 20 Outreach Officers located throughout Northern Ireland who provide information and advice to older people to ensure they are claiming their full entitlement to benefit. This service is also used by DCS where appropriate.

Overall the Agency believes the provision it has made for advice and information on DLA is very effective.

Supplementary Question:

What criteria are used to assess renewal claims?

Answer:

Renewal claims are issued to customers 6 months prior to the current award expiring. The criteria used to assess renewal claims is identical to that used when deciding a new claim to Disability Living Allowance in that entitlement is considered afresh from the day following the expiry of the previous award. Entitlement to a renewal award of benefit is based not on a person’s continuation of a particular illness or medical condition but on the current impact it has on their daily living needs which may have increased, decreased or remained unchanged. On this basis the Decision Maker then decides on the rate of allowance that is payable.

Supplementary Question:

How exactly are cases for periodic review selected?

Answer:

The Periodic Enquiry Process was introduced in September 1999 to address concerns raised by the Public Accounts Committee that the changing needs of customers with indefinite awards of Disability Living Allowance were not being addressed and to ensure the rate of benefit currently in payment accurately meets the needs of those in receipt of them. Following extensive consultation with the Voluntary Sector, it was agreed the following categories of customers should be excluded from the exercise:

Exclusion Categories from the DLA Periodic Enquiry Process

Aged under 16

Aged 64 and over

Fixed awards

Special Rules

Terminally ill (mobility or care component)

Not currently receiving benefit ie not on the payload

Renewals

Conversions

Start dates not between specified dates

High rate Care and High rate mobility with one of the following disabilities

- Cystic Fibrosis

- Neurological Diseases

- Multiple Sclerosis

- Parkinson’s Disease

- Motor Neuron Disease

- Traumatic paraplegia/tetraplegia

- Mental subnormality

- Dementia

- Hyperkinetic syndrome

- Total parenteral nutrition

- Multiple Allergy syndrome

- Severely mentally impaired

- Double amputee

- Deaf/blind

- Haemodialysis

- Terminally ill

When the process was introduced the selection was made at random by the Department’s statisticians from among those remaining customers who currently had an indefinite award of Disability Living Allowance. After a number of years when the process had bedded in, an analysis of the cases re-examined under this process was conducted which identified particular cases by disability types and rates of benefit currently in payment that have a high propensity to change due to an improvement or deterioration in the customer’s overall disability. The selection process was then refined to select indefinite awards from within these particular groups and the Voluntary Sector and Northern Ireland Audit Office were fully briefed on this revised selection process. The same exclusion criteria were applied and the following table details the number of cases examined year on year, the percentage of cases increased, decreased and maintained with no change. It is interesting to note that about half of the cases examined under periodic enquiry process to date have resulted in a change of which more than half, 52% had their benefit increased.

Periodic Enquiry Decisions 00/01 – 07/08
Year
No. of Decisions
 Increased Decreased No Change

No.

%

No.

%

No.

%

00/01

1,006

147

15%

228

22%

631

63%

01/02

1,508

243

16%

421

28%

844

56%

02/03

1,842

444

24%

611

33%

787

43%

03/04

1,494

458

31%

333

22%

703

47%

04/05

2,079

500

24%

355

17%

1,224

59%

05/06

3,117

614

20%

626

20%

1,877

60%

06/07

3,368

860

26%

748

22%

1,760

52%

07/08

3,835

1,110

29%

695

18%

2,030

53%

Total

18,249

4,376

24%

4,017

22%

9,856

54%
Para 8 of Department’s response

“There are two elements to the disputes process, namely, reconsideration and appeal. In the first instance customers ask for the Department to reconsider the decision given, although they can go straight to the appeal stage if they so choose. As part of the disputes process they can also request a copy of all the evidence that the Decision Maker used when making the decision. They can challenge this evidence and indeed supply any further evidence that they think would help the Decision Maker come to a different conclusion. Under the reconsideration process a different Decision Maker will then look at all the available evidence again and will make a determination as to whether the original decision should be upheld or changed”.

2. Supplementary Question:

What percentage of decisions is changed following reconsideration process?

Answer:

The change rate following reconsideration for the 2007/08 year is 21%. This compares favourably with the GB rate of 44% for the same period.

Supplementary Question:

Is there a target time for processing disputes?

Answer:

The branch has a target of 40 days to clear a reconsideration. The performance against this target for 2007/08 was 26 days.

Supplementary Question:

According to the legislation, if a decision is made at reconsideration stage that is more advantageous to the claimant than the original decision, but is not to the claimant’s satisfaction, it is treated as a new decision. Does this mean that the whole reconsideration process starts over again? i.e. does the claimant go to the back of the queue in relation to his/her case being processed, or does the clock keep ticking in terms of targets for processing the dispute?

Answer:

Yes the new decision made following the reconsideration process has fresh dispute rights against that decision. If the customer remains unhappy with the new outcome they can exercise their new dispute right. The new reconsideration request will be dealt with in date order of application so as not to disadvantage any other customers awaiting an outcome from their reconsideration process and will be subject to the target of 40 days.

Committee question:

What procedures are in place to ensure that DLA is administered consistently across Northern Ireland and in comparison with the United Kingdom?

Para 10 of Department’s response

“The qualifying criteria and legislative requirements for an award of Disability Living Allowance mirror those of our counterparts in Great Britain, as does the claim form”.

3. Supplementary Question:

Is there scope to change the format of the claim form: a) to make it easier to complete (shorter/avoiding duplication) while still capturing the necessary information, and b) to increase writing space where necessary?

Answer:

Using the same claim form is a key contributor to ensuring Disability Living Allowance is administered consistently across the UK and meets the existing demand for parity between ourselves and DWP. The form is constantly under review and is updated regularly taking account of feedback from customers, the views of the Voluntary Sector and comments from decision making staff. The current claim form has recently received the Crystal Mark award for its use of Plain English and is designed in such a way as to allow the customer/carer to explain fully in lay terms the nature of their care and mobility needs and the effect of the disability on their daily lives. It leads the applicant through the process to tie in with the way claims are decided, addressing care needs and helping the applicant identify the information he/she should be providing and then on to mobility needs. The existing claim form is reviewed twice yearly in line with processes in DWP and our forms mirror the GB version. There is a blank page at the back of the claim form for customers to enter free hand text if they wish and they can also attach additional pages to clarify or expand on any issues they believe to be relevant to their individual claim which is explained in the notes contained on the claim form. The Social Security Agency consults with the Northern Ireland Disability Lobby i.e. Citizens Advice Bureau, Advice (NI), the Law Centre and Disability Action when reviewing Disability Living Allowance claim forms. Their comments along with the Social Security Agency comments are fed into the National review process so that we can influence the outcome of the final claim form.

Para 11 of Department’s response

“Standards Assurance Unit has responsibility for monitoring the accuracy of decisions made on Disability Living Allowance claims within Northern Ireland”.

4. Supplementary Question:

What is the remit of Standards Assurance Unit?

Answer:

Standards Assurance Unit (SAU) was formed to achieve the following objectives: to provide a reliable and independent measure of accuracy and customer fraud and error against Ministerial targets and internal Social Security Agency benchmarks; to respond to criticisms made by the Public Accounts Committee and Northern Ireland Audit Office; and to assist operational staff in the drive to improve accuracy and reduce customer fraud and error in benefit administration. SAU processes are subject to validation and review by the Department for Social Development’s internal auditors, the Northern Ireland Audit Office and the National Audit Office.

Supplementary Question:

What methodology is used by the Unit to monitor accuracy of decisions?

Answer:

The Departmental statisticians select a representative sample of cases in each benefit which Standards Assurance Unit (SAU) check to estimate decision making standards. The sample is designed to provide a statistically valid result with a 95% confidence level. The purpose of the check is to establish if the actual decision, e.g. decision awarding a new claim to benefit or changing the rate of benefit is correct. SAU checks the case to ensure that the decision maker has considered all the evidence, established the facts and applied the law, including any case law, in each case. The standard of decision making is expressed as a simple percentage of cases found to be correct. The associated monetary value of error is also established in order to determine the Financial Accuracy which is expressed as a percentage of the overall expenditure on the benefit. The outcome of SAU’s checking is used to report against the Agency’s published Public Service Agreement targets for Financial Accuracy and Fraud and Error. These are reported in the Agency’s Annual Report and Accounts.

Supplementary Question:

Does the Unit produce reports on its findings?

Answer:

Standard Assurance Unit (SAU) produces quarterly reports on findings and these are sent to the Chief Executive, Agency Management Board, Operational Grade 7s, Programme Protection Group and the Northern Ireland Standards Committee. SAU is also responsible for preparing and arranging publication of the SSA Annual Report on Decision Making and Case Accuracy. The 2006 SSA Annual Report on Decision Making and Case Accuracy was published on 28th January 2008, following approval by Minister and was laid before the Assembly on the same date under reference NIA 76/07/08. It is intended to lay the 2007 report before the Assembly in the Autumn of 2008.

Para 12 of Department’s response

“Disability and Carers Service also have formal engagement arrangements in place with the Voluntary Sector in the form of a forum, which meets quarterly, to enable it to tell us of any concerns it may have with regard to the administration of Disability Living Allowance. Membership of this forum consists of representatives of Citizens Advice Bureaux, Advice NI, The Law Centre and Disability Action. In addition to this forum, these organisations also have dedicated contact points throughout our business areas”.

5. Supplementary Question:

Given that the engagement arrangements are formal, are the minutes of the Forum’s meetings available? Are reports produced on the Forum’s work?

Answer:

The Forum’s meetings which are held quarterly are minuted and the minutes are agreed by all parties present and can be made available. In advance of the meetings all attendees are invited to put forward items for discussion and inclusion on the agenda. Reports are not produced on the Forum’s work.

Supplementary Question:

Does the Forum actively seek the views of other organisations/individuals that may have experience in providing advice to DLA claimants?

Answer:

The overall objectives of this forum are two fold:

(1) To enable Disability & Carers Service to seek the views of intermediary organisations that represent a broad spectrum of our customer base on operational delivery and proposed change initiatives that we are considering,

and

(2) To enable intermediaries to tell us of their concerns and also what they think is going well in terms of service delivery.

The majority of independent advice groups are affiliated to one of the four member organisations who therefore have ready access to a wide range of other organisations likely to have experience in providing advice to DLA claimants.

In addition to this forum we have also held separate meetings with individual groups, such as the Aspbergers Network, Social Workers from the Royal Victoria Hospital dealing with children suffering from Cystic Fybrosis etc, who raise issues specific to their customer base.

Committee question:

Are there any procedures in place to minimise the occurrence of a DLA applicant’s own family doctor being the Examining Medical Practitioner?

Para 13 of Department’s response

“When a case is referred to Medical Support Services to arrange a medical examination Disability and Carers Service also provides the name of the customer’s GP. If the GP in question is employed by the Department to conduct medical examinations they will automatically be excluded from any involvement in the case. A check of the membership of each GP’s practice will also be completed to ensure that examining medical practitioners are not asked to examine a customer who is a patient of another GP within their practice”.

6. Supplementary Question:

Is there anything to stop the claimant from being told the name of the EMP at the time they are informed of their examination appointment?

Answer:

There is no reason for the Department not to provide the name of the EMP before an examination. It is currently normal procedure for notification of an examination appointment to be issued to the claimant by letter. The EMP will also contact the claimant by telephone on the day prior to the visit to confirm the details. At this stage it is general practice for the EMPs to introduce themselves rather than have their name on the appointment letter as the EMP can be changed between the issue of the letter and the date of the examination.

Committee question:

Are there any procedures in place to minimise the occurrence of a DLA appellant’s own family doctor sitting on the DLA appeal tribunal?

Para 18 of Department’s response

“The Appeal Service has procedures in place to minimise the occurrence of a Disability Living Allowance appellant’s own family doctor sitting on the DLA appeal tribunal, these are detailed below:” [followed by details of procedures]

7. Supplementary Question:

Is there anything to stop the appellant from being given the name of the medical member when they being notified of the date/time of hearing?

Answer:

There is no legal reason why a party to the appeal could not be given the name of the medical member or any other panel member when they are being notified of the date/time of hearing. The President of Appeal Tribunals has requested that this information is only provided as the parties attend the hearing venue on the day of the hearing.

As previously documented there are procedures in place within The Appeals Service to minimise the occurrences of an appellant’s own family doctor sitting on the Tribunal and in 2007/08 there was only 1 out of 7,430 cases, that went to hearing, where the application of these procedures failed and the case had to be adjourned as the medical member on the panel was the appellant’s GP.

Committee question:

What is the current average waiting time for a DLA appeal to be heard in Northern Ireland and how does this compare with the rest of the United Kingdom? The information relating to Northern Ireland should be broken down by tribunal area.

Para 20 of Department’s response

“… the Agency has an internal benchmark target for processing an appeal within 40 days. Up and until September 07 this target had been consistently achieved however our current year to date performance is 49.1 days. A recovery plan is currently in place which will bring us back within target by the end of September 08”.

8. Supplementary Question:

What are the reasons for the increase in processing time for the current year?

Answer:

The increase in processing time which had lead to the non achievement of target from September 07 onwards is due to the difficulty in filling the number of vacancies within the Disability & Carers Service Appeals Unit. The vacancies have since been filled and the new staff are currently undergoing training and consolidation. However, because of the complex nature of the job it can take up to 3 months before new appeals officers become fully proficient and productive.

Supplementary Question:

What does the recovery plan involve?

Answer:

A number of actions are included in the Recovery Plan as follows:

The recovery is currently on schedule to meet target by September 2008.

Para 21 of Department’s response

“… in the 2007/08 Business year Disability Living Allowance appeals on average had a first date of hearing within 10.26 weeks of the appeal submission being received by The Appeal Service. This compares with The Appeal Service (GB) average of 9.3 weeks. Please see Appendix 5, which provides details of waiting times broken down by Tribunal Centre. It is important to note that there are a number of differences in procedure between the two offices e.g. in GB the owning Department issues the submission to the Appellant whereas in NI this function is performed by The Appeal Service; in addition General Practitioner records are requested for Disability Living Allowance appeals heard in NI however this does not apply in GB”.

9. Supplementary Question:

Are there any other likely reasons for the difference in waiting times for an appeal hearing date in GB and NI (apart from issuing submissions and requesting GP records)?

Answer:

There are a number of reasons which contribute to the difference in waiting times in addition to the issuing of submissions and requesting of GP records. These include: -

The decision to postpone or adjourn an appeal hearing is a judicial matter and any queries with regard to the reasons for them is a matter for the President of the Appeals Tribunals.

Committee question:

Does the Department revisit cases that were turned down at application but successful at appeal, to ascertain if mistakes/misjudgements had been made and to identify learning points? If so, the Committee would appreciate detailed information on the procedure followed by the Department and details of any findings.

Para 22 of Department’s response

“The Department does not revisit each case overturned on appeal because since the introduction of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 we no longer receive a statement of reasons for the decision given by the tribunal. The Northern Ireland Audit Office in its last report on Disability Living Allowance in 2005 identified this as a weakness and recommended that feedback mechanisms should be put in place to learn from appeals. The Department subsequently suggested the introduction of a feedback proforma for each overturned decision however this suggestion was rejected by the President’s Office due to resource implications”.

10. Supplementary Question:

A statement of reasons can be requested by any party to the appeal, therefore the Department could request it. Why doesn’t this happen?

Answer:

At appeal hearings the Legally Qualified Member of the tribunal makes a summary recording of the record of proceedings and reasons for the decision. A copy is not automatically issued to parties to the hearing. However, any party to the proceedings (including the Department) can under Regulations 53(4) and 55(4) of the Social Security & Child Support (Decisions and Appeals) Regulations (NI) 1999 request a copy of record of proceedings and reasons for the decision. The Department does not request a record of proceedings/reasons for decision in every case because the Department agreed with the President of the Appeal Tribunals that it would request such a record only if it was considering making an appeal to a Social Security Commissioner. This was agreed on the basis that it would be too labour intensive for the Legally Qualified Members to do so and it would also reduce their availability for sitting on appeal tribunals.

Para 23 of Department’s response

“Our main source of feedback is therefore taken from the findings contained within the annual reports produced by the President of Appeal Tribunals, which focus on the Standard of Decision making by the Department, which has shown a year on year increase on the standard of Disability Living Allowance decision making. In his last published report there was an improvement of almost 3% on the previous year with only 1.6% of the cases monitored considered to be incorrect, with the remainder being considered correct although overturned by the tribunal because of additional evidence which was made available to it”.

11. Supplementary Question:

In the last report published by the President of the Appeal Tribunals it was stated that 1.6% of the cases monitored were considered to be incorrect with the remainder being considered incorrect but overturned because of additional evidence. What percentage did the ‘remainder’ make up and what was the nature of the additional evidence e.g. medical or other?

Answer:

In the last report published by the President of the Appeal Tribunals 122 DLA cases were monitored and of these the Tribunal considered 1.6% (2 cases) to be incorrect at the initial decision stage.

A further 39% (47 cases) were altered by the Tribunal even though the initial decision was considered correct. In 4% (2 cases) of these the Tribunal accepted evidence that the decision maker was not willing to accept and in 96% (45 cases) the Tribunal was given additional evidence not available to the decision maker. The nature of the additional evidence was: -

Para 24 of Department’s response

“…the tribunal panel requests the medical records from the General Practitioner which has often resulted in the tribunal reaching a different conclusion to that made by the Department. While the President has recommended in past reports that the Department should obtain such evidence, we are restricted from doing so under the Data Protection provisions, as we can only ask specific questions relevant to the benefit claimed”.

12. Supplementary Question:

The Department can obtain a factual report from a GP. Should the factual report cover all the relevant information that would be included in the medical records?

Answer:

The form sent to the GP requesting a report consists of clinical based questions specific to the customer’s disability and asks only questions that are relevant and which will enable the Department to determine a customer’s entitlement to Disability Living Allowance. It should therefore cover all the information relevant to the claim that is held in the medical records. The issue of GP reports recently attracted media interest when concern was expressed that doctors other than the customers own regular GP, were completing these reports. However this issue has been previously addressed by a Chief Northern Ireland Commissioner who held that as the report was based upon notes held by the surgery the report is still a valid piece of evidence - A75/05-06(DLA).

Para 25 of Department’s response

“We also seek direct feedback from our Presenting Officers who attend oral hearings and have in place a local database to capture their feedback in any overturned cases. While such information is useful it’s based solely on the Presenting Officer’s perception of the hearing and is not conclusive”.

13. Supplementary Question:

Is Presenting Officers’ feedback analysed?

Answer:

Following the Office of the President of Appeals Tribunal’s notification on 26th April 07, that they could not implement a Feedback proforma for all overturned decisions, work commenced within Disability & Carers Service to develop a database to provide Presenting Officer’s feedback to the Decision Makers. This was implemented with effect from April 07 and has been working effectively. The information is scrutinised closely and any issues including trends identified are discussed at the Quality Council meetings and with the individual Decision Making teams. However the value of the feedback is limited as the Presenting Officer is not privy to the Tribunal’s consideration of the evidence nor are they provided with the reasoning behind the decision such as the weight given to different and possibly conflicting evidence in arriving at a decision.

Supplementary Question:

In the Northern Ireland Audit Office’s report on Decision-Making and DLA (June 2005) it is acknowledged that the Agency intended to have 100% Presenting Officer attendance at all DLA appeal hearings? The Committee understands from oral evidence given by officials that this is not the case. The Committee would appreciate information on the percentage of appeal hearings over the past 5 years that have been attended by a Presenting Officer. This information should be broken down by tribunal centres.

Answer:

In the NIAO report referred to above the Agency said that since 2004 it had strived to achieve 100% attendance at all hearings. This has proved to be not possible because of operational pressures and demands on financial resources. For example, in the year 2007/08 there were 2,813 Disability Appeal Tribunal Panels sittings, which equates to an average of 12 sessions per day. Assuming that each tribunal panel sat at the same venue for a whole day and heard 2 sessions, which is rarely the case, a minimum of 6 Presenting Officers would be required to present on a full-time basis every day. This does not take account of the time needed beforehand to prepare the case for presentation in advance of the actual hearing, which in turn would equate to a minimum of 9 additional staff being required in total at a yearly salary cost of £214, 000. This is very much the minimum resource that would be required as it does not include additional staff and travel costs in terms of time spent travelling to the various Tribunal venues and associated mileage allowances. To help the Committee members gain some appreciation of the spread of hearings and the staff commitment that would be required to attend every sitting, a table is attached which shows the number of Disability Appeal Tribunals held at each centre in 2007/08.

Disability Appeal Tribunal Sessions - By Tribunal Centre (2007/08)

Type of Session

DAT

Venue

Total

Armagh

56

Banbridge

38

Belfast

1149

Ballymena

142

Ballymoney

46

Cookstown

48

Coleraine

138

Craigavon

102

Dungannon

89

Downpatrick

101

Enniskillen

97

Londonderry

287

Limavady

57

Magherafelt

42

Newtownards

108

Newry

159

Omagh

84

Strabane

70

Grand Total

2813

Please see details below in relation to percentage of appeal hearings over the last 5 years that have been attended by a Presenting Officer broken down by tribunal centre.

Presenting Officer Attendance Rates at Disability Appeal Tribunals (By Tribunal Centre)

Tribunal Centre

Years

 

2002/03

2003/04

2004/05

2005/06

2006/07

to 31/8/07

Armagh

21.43%

47.40%

53.80%

42.22%

45.00%

15.69%

Ballymena

13.24%

49.03%

50.95%

41.26%

31.84%

29.63%

Ballymoney

0.00%

0.00%

0.00%

50.00%

39.29%

38.46%

Banbridge

25.86%

50.00%

60.53%

44.44%

62.26%

47.22%

Belfast

11.91%

33.29%

37.12%

35.08%

29.24%

23.35%

Coleraine

21.49%

45.68%

57.11%

64.04%

41.92%

36.64%

Cookstown

36.57%

45.38%

65.12%

56.67%

32.80%

17.50%

Craigavon

12.68%

34.04%

55.04%

43.18%

28.22%

23.13%

Downpatrick

19.12%

51.74%

45.62%

37.22%

23.98%

45.78%

Dungannon

30.33%

43.18%

55.92%

58.05%

34.86%

24.47%

Enniskillen

24.87%

54.22%

62.11%

63.01%

34.58%

9.82%

Limavady

30.15%

43.75%

71.07%

58.93%

43.85%

12.99%

Londonderry

30.93%

59.55%

59.27%

56.49%

50.63%

31.91%

Magherafelt

12.12%

45.09%

57.64%

42.50%

42.70%

19.05%

Newry

29.95%

59.63%

55.19%

39.01%

41.36%

55.06%

Newtownards

14.93%

36.00%

55.38%

49.83%

37.84%

36.59%

Omagh

30.43%

43.93%

60.31%

50.63%

48.00%

23.53%

Strabane

35.88%

52.36%

66.21%

57.84%

46.41%

35.80%

To demonstrate value for money Disability & Carers Service provide Presenting Officers to attend tribunals on complex cases as follows:-

If any of the above cases are listed for hearing the Presenting Officer will attend all other cases listed within that particular session.

Supplementary Question:

How many appeals over the last 5 years have been adjourned to allow a Presenting Officer to attend?

Answer:

A total of 66 cases have been adjourned over that last 5 years to allow a Presenting Officer to attend. This equates to 0.2% of the total 32,669 appeals registered by The Appeals Service during this 5 year period. Please see the breakdown as follows:

Year

No. Appeals adjourned
to allow PO to attend.

% of all DLA adjournments

2003/04

36

0.94

2004/05

9

0.41

2005/06

10

0.57

2006/07

6

0.41

2007/08

5

0.27

Clarification received from the
Department for Social Development
relating to evidence dated
23 June 2008 – 18 July 2008

Social Security Logo

An Agency of the Department for Social Development

Director of Operations
5th Floor, Lighthouse Building, 1 Cromac Place, Gasworks Business Park,
Ormeau Road, Belfast BT7 2JB
Tel: 02890-829074 Fax: 02890-829555
E:mail: colin.sullivan@dsdni.gov.uk

Ms Marie Austin
Committee Clerk
Committee for Social Development
Room 412
Parliament Buildings
Belfast
BT4 3XX

18 July 2008

Dear Marie

In your letter of 4th July 2008 to John Ball you stated that the Committee for Social Development, following its meeting on 3rd July 2008, asked for clarification in relation to the information sent to them on 23 June 2008. I attach the clarification you have requested on the administration of Disability Living Allowance.

As stated in my previous letter, the Agency would be very happy to accommodate a visit by the Committee to Disability and Carers Service to provide them with a first hand experience of the process and working environment. If you need anything further, please do not hesitate to contact me.

Yours sincerely

COLIN SULLIVAN Signature

COLIN SULLIVAN (Dr)

The Administration of Disability Living Allowance

Response to Further Clarification of Issues Raised by DSD Committee July 2008

1. Supplementary Question: When was the new process for selecting cases for periodic review introduced?

Answer: The new process for selecting cases for periodic review was introduced from April 2006 in line with the 3 year Disability & Carers Programme Protection strategy which ends March 2009.

2. Supplementary Question: How often do the relevant organisations attend the DLA Forum and what is their level of input?

Answer: The forum meets 4 times per year and at each meeting there is usually representation from Citizens Advice Bureaux, Advice NI, The Law Centre and Disability Action. Agenda items are agreed in advance of each meeting and representatives fully participate at them. Topics covered include:

3. Supplementary Question: It is stated that Presenting Officers only attend appeal hearings on complex cases. Can you give any reasons for the large number of complex cases being from areas outside of Belfast? I would appreciate as much detail on this as possible.

Answer: The Presenting Officers attend all sessions which contain complex cases, as defined on pages 26 and 27 of the previous briefing, irrespective of the location. In the case of hearings at remote centres eg Londonderry, Strabane, Omagh, Limavady, Enniskillen etc., the Presenting Officer would stay for the whole day if two sessions have been listed irrespective if only one session had a complex case listed. This demonstrates better value for money than getting the officer to return to Belfast where outputs upon return would be very limited having regard to the travel time involved in getting back to the office. However this is not the case for sessions held nearer Belfast where the Presenting Officer will only attend the session which contains the complex case(s) and then return to the office immediately to process outstanding appeals. This would explain the reason why there is a higher Presenting Officer attendance rate at the remote tribunal centres.

Evidence received from
President of Appeal Tribunals
Northern Ireland – 28 August 2008

Mr David Simpson MP MLA
Chairperson
Northern Ireland Assembly
Committee for Social Development
Room 347
Parliament Buildings
Belfast
BT4 3XX

28 August 2008

Dear Mr Simpson,

Thank you for your letter of July 4th 2008. I note the proceedings of the Committee and the responses of the Department.

Tribunals are entirely independent of the Department and my response is therefore limited to comments on tribunal procedures and matters of general importance. I cannot comment on the outcome of individual appeals, or on the statistics of tribunal decision making. Whilst those statistics may indicate trends at particular times, each tribunal must apply the legal rules of entitlement correctly and comply with Article 6 of the Human Rights Act with regard to providing a fair hearing.

Presenting Officers

I disagree with the view expressed by the Department that feed back from presenting officers is ineffective as emphasised in the letter from my office to the Department on June 5th. A fully trained and competent presenting officer who has heard all the evidence, questioned the appellant and any witnesses and considered all the documents presented, including medical records, will have a very good understanding of the outcome where the decision under appeal is altered by the tribunal. The proposal made by the Department that a short form completed by the tribunal chairman is an alternative to attendance by an officer is both inappropriate and misguided.

I strongly support the attendance of presenting officers in all appeals and I have pressed the Department to make arrangements to achieve this objective. I do so for many reasons. When an officer attends, in the time before the hearing begins he has an opportunity to consider any additional documents, reports and medical records made available for the hearing. He will then have an opportunity to discuss the appeal and the additional evidence with the appellant and his representative, if he has one. This may enable him, or her, to make a fresh decision which is acceptable to the appellant, thus avoiding a hearing. Most appellants find hearings stressful.

At the hearing, the officer can explain the decision under appeal and how the evidence has been evaluated. Where there is no officer in attendance, the tribunal must explain the decision to the appellant and there is therefore an impression that the tribunal is in some way associated with the Department. Many appellants are therefore concerned about the independence of the tribunal.

The presenting officer may also see and hear the appellant and may, if he or she wishes, question the appellant and his, or her, witnesses. It is regrettable that decision makers rarely either see or speak to appellants.

The presenting officer will also hear the questions asked by the members of the tribunal. The medical member, in particular, will elicit evidence about medical conditions, symptoms and treatment. Many disability qualified members are expert in occupational therapy and physiotherapy.

I have no doubt that by attending many hearings, presenting officers will inevitably have a much better understanding of the medical problems of claimants and the decisions of Appeal Tribunals. No form, however detailed, could possibly encapsulate such detailed experience and information.

Reconsideration of Decisions Following an Appeal

I have no direct knowledge of how reconsideration works internally. It is obviously essential that the letter of appeal is carefully considered, together with any additional documents produced. The Department is reluctant to obtain additional reports as the policy underlying Disability Living Allowance is that claims are based on self assessment. In contrast, claimants for Incapacity Benefit and Industrial Disablement Benefit must undergo a medical examination.

Tribunals are not bound by Departmental policy and for this reason, medical reports and records are frequently sought to clarify the medical condition of the claimant.

Where the Department makes a new decision on reconsideration which is advantageous to the appellant, the appeal lapses and if the appellant remains dissatisfied, he must appeal again. This causes considerable additional delay as the second appeal goes to the back of the queue. I am very concerned about this problem in Disability Living Allowance cases as appellants are often in poor health and it is unfair that the procedures of the Department adds to the delay in resolving the dispute. I can see no practical reason why the new appeal cannot go to the tribunal at the same time as the first appeal would have done.

Selection of Tribunal Members- Appellants GP

Any medical practitioner who has examined the appellant is precluded by regulations from sitting on the tribunal. There have been very few practical difficulties arising from this rule as medical members are sent the papers some weeks before the hearing and usually recognise current or former patients. Tribunal administrators also take steps to avoid such problems.

Disclosure of the Names of Tribunal Members

The members of the tribunal are not disclosed in advance as changes are not unusual. The practice followed is similar to that in the ordinary courts.

Waiting Time for Appeals In Northern Ireland and Great Britain

(1) Medical Records

The practice of obtaining medical records does not delay the administrative arrangements for listing appeals. The system is based solely on the consent of the appellant and the General Practitioner. The consents are obtained as soon as the appeal papers are received, together with other information from the appellant necessary for arranging the hearing.

(2) Listing Appeals

Listing is based on the complexity of the issues under appeal both in Great Britain and in Northern Ireland. The number of cases listed for hearing therefore varies in both jurisdictions. Four appeals per session is not the norm in Great Britain in my experience.

(3) Adjournment and Postponement

The decision to adjourn is a judicial matter and decisions are made consistent with fair hearing rules, including the right to be represented.

I am puzzled at the details of postponements due to cancellations by tribunal members. There is an issue here of definition. All members sit on a sessional part-time basis, apart form one full-time legal member. There are 187 members in all. Available dates are sought three months in advance but the hearing dates are not finalised until some weeks later. Consequently, availability will have changed to some degree as most members are professionals with other commitments. Some sitting dates are therefore refused at this juncture. In my experience, only a very small number of sittings are cancelled after this time due to the unavailability of members.

It is very common for representatives to request a postponement due to limitation of resources or because of other public commitments.

Feedback from Tribunals to the Department

I have emphasised above the very useful role of presenting officers in feedback to decision makers. In addition, I publish an annual report on the standards of adjudication by the Department in cases taken to appeal. Tribunals are obliged to issue a summary decision immediately after the hearing and this is done on the day in most cases. Brief reasons are also given by many tribunal chairmen. In Incapacity Benefit appeals, the score assessed by the tribunal is attached to the summary decision.

Until 1999, tribunals were obliged to issue full decisions in all appeals. The Department changed the rules when the Appeal Tribunal was established so that full decisions would only be issued if requested by one of the parties. Appellants and the Department often argue before the Commissioners that the reasons for the decision are defective in some way. Consequently, full decisions are now much more detailed and take a lengthy time to prepare. It is for this reason that I have asked the Department to limit requests to those cases where an appeal to the Commissioners is under consideration.

The burden imposed on tribunals is considerable as they are answerable not only to the Commissioners on substantive legal issues, but also to the High Court in Judicial Review proceedings in relation to tribunal procedures.

In my view there are very adequate procedures available to enable both parties to have a full understanding of the outcome of appeals.

I have recommended that the Department appoint a senior official with adjudication expertise to oversee all Departmental decision making. The Standards Committee is made up of part-time members for the most part with limited adjudication expertise. Senior executives are not experienced in adjudication. The Department has declined to accept my recommendation.

Availability of Additional Medical Evidence to Decision Makers

Claimants are entitled to see their own medical records and officials may also view them if the claimant consents. Such consent is consistent with Data Protection Act rights provided the records are not retained after the decision on entitlement has been made. As adjudication on entitlement is based on self assessment, the Department is less likely to request records than the tribunal.

Back Log of Cases

I am very concerned at the information presented to the Committee about the backlog of appeals. Regrettably, the Department has repeatedly refused to advise the Appeal Tribunal when an appeal is made and as a result, neither I nor the Appeal Tribunal has any information on what appeals are outstanding or for what period. I would urge the Department to inform the Appeal Tribunal when an appeal is made so that there can be independent oversight of the entire appeal process.

Yours sincerely,

C G Maclynn

Further clarification from the
Department for Social Development
16 September 2008

From: Nevin, John [mailto:John.Nevin@dsdni.gov.uk]
Sent: 16 September 2008 17:14
To: Austin, Marie
Subject: RE: dla

Marie:

This information is not held in a reliable from. The decision maker does enter the source of evidence on which he places the greatest reliance, but as he is limited to only one source he cannot show that he may also have considered several others.

John

From: Austin, Marie [mailto:Marie.Austin@niassembly.gov.uk]
Sent: 16 September 2008 15:58
To: Nevin, John
Subject: dla

Hi John, further to our telephone call… does the Department hold data on:

Can you give me data on the above for the last 5 years?

Thanks Marie

Marie Austin
Assembly Clerk
Committee for Social Development
Room 412
Parliament Buildings
Stormont
BT4 3XX
Tel: 028 9052 1864

Appendix 4

List of Witnesses who Gave Evidence to the Committee

Mr Brian Cullen Department for Social Development
Ms Lesley Morgan Department for Social Development
Mr John Nevin, Department for Social Development