London-based public legal education NGO, Law for Life provides another lesson in document self assembly to follow the two previous posts. Its self assembly tool has led to a successful threat of strategic judicial review litigation against a government department. This provides a good example of how the routine can evolve into the strategic and the need for a route which helps such a transition.
Law for Life, trading under AdviceNow, has for some time published a template request for the Department of Work and Pensions to review a decision in relation to a benefit payable for disability: its PIP Mandatory Reconsideration Request Letter Tool. The point of this post is not the letter but the way that AdviceNow and its allies have been able to respond to the problems that users have identified in the DWP’s practices and successfully resolve them. This required bolting onto their DIY draft a litigation capacity.
The tool is worth a quick look if you are not familiar with it. It takes you through the qualifying criteria in detail and shows you the points awarded for each of as separate elements. For example, ability to cook a meal only by using a microwave gets you two: that would leave you with a considerable number to accumulate elsewhere. The letter is produced in the context of a digital booklet produced on ‘How to Win a PIP appeal’. Users appear to find the tool useful. Around 8,000 personalised letters have been downloaded since last May.
But a consortium of AdviceNow, the Public Law Project and disability organisations Z2K and the Royal National Institute for the Blind have pulled off a major strategic collective victory in addition to individual successes. Last week, the Department of Work and Pensions caved in under the threat of judicial review litigation.
Users of the letter discovered that the DWP ‘cold called’ them to persuade them to drop their review for a lesser sum than they would otherwise receive. The claimant’s identity in the case was witheld. They were known only as ‘K’.
This is the Guardian’s explanation of the facts of the case (the newspaper had earlier covered the practice): ‘K had made a claim for the personal independence payment benefit in 2017 but was refused. She applied again in 2019 and was awarded only a small amount. She appealed against the decision after her GP advised her that her serious mobility problems meant she was entitled to the highest levels of benefit. After the appeal process started, she was called by the DWP, without warning, from a “withheld” number and told she had an hour to accept a deal that was higher than her award but less than she was entitled to. She was told “tribunals are not very nice to go to” and asked if she wanted to risk losing all her benefit. K, who has fibromyalgia and epilepsy, and needs help with daily washing, accepted the offer but said afterwards she felt pressured into making the decision. She said she was “haunted” by her choice and decided to challenge the DWP after seeing press reports exposing the practice.’
PLP’s comment on the case was that ‘Unfortunately, a practice has developed over the last few years at the DWP whereby benefits decision-makers have been putting pressure on eligible disabled benefits claimants to accept less than their statutory entitlement.’ The DWP had to pay most of the legal costs. Its comment was particularly mealy mouthed: ‘We have addressed PLP’s concerns by improving our guidance on telephone calls so options and appeal rights are always clearly set out, as well as stopping making contact when a tribunal is imminent, and we are pleased they have withdrawn their case.’
Amanda Finlay, Law for LIfe’s chair and herself a former civil servant, said, ’Interestingly this all started when successful users of our PIP and DLA mandatory request reconsideration letter tools, who were now appealing, started sending feedback to us that they were receiving calls from DWP pressuring them to abandon their appeal in return for a limited time offer – always way below what they were entitled to and would receive if they went to appeal. Many, desperate, in debt, and at their wits end accepted the offer and then regretted it. Over two years we accumulated feedback from clients , advisors, and from family and friends who were helping them … I think this is a fantastic example of the way in which online tools can connect with real people and – with a great deal of work- provide them and others like them with a strategic remedy through changing policy.’
Lisa Wintersteiger, LawforLife’s chief executive, filled in more detail and rubbed more salt into the DWP’s self-inflicted wounds: ‘Over 200 respondents to our own survey and widespread media and partner cases give sense of the scale of the problem. The DWP has conceded guidance changes that it is essential that appeal rights are advised, further amended guidance that claimants do not feel pressured, partial awards (more than awarded less than appealed for) should not be made, mandatory training for presenting officers , delivered by end October’.
So, a round of applause for LawforLife, the Public Law Project and the other partners to this successful campaign. For us all, a reminder of the perfidy of government whose commitment to the the rule of law can prove all too fragile. And for those interested in self assembly documents, an illustration of how they can be used – if you keep tabs with issues that are arising with their use – to feedback into policy work and the unending struggle to keep government departments honest. Oh, and if you were at all worried that any minister or civil servant was reprimanded or otherwise suffered as a result of the public revelation of their Department’s egregious secretive practice, fear not. No one did.