It’s Just Not Cricket

By DeusExMacintosh

Trevor Chappell bowls underarm against New Zealand

In an interview this weekend, PM David Cameron has revealed that he’s hoping for a new kind of fairness in the coming year.

While emphasising there will be no let up in dealing with the deficit, Mr Cameron clearly wants 2012 to be different. He wants to establish a new “fairness” agenda that will, he hopes, resonate through everything his government does. This means getting tough — instead of just talking tough — on sky-high executive pay, reforming public services, attacking unfair use of human rights legislation and even establishing a final settlement on the vexed question of Scottish independence.

“We need to redefine the word fair,” the Prime Minister tells The Sunday Telegraph. “We need to try to give people a sense that we have a vision at the end of this, of a fairer, better economy; a fairer, better society, where if you work hard and do the right thing you get rewarded.”

I’m rather hoping to see a new kind of fairness myself due to being forcibly migrated from Incapacity Benefit across to the new Employment and Support Allowance, so it will be interesting to see which of us has been most disappointed by the time 2013 rolls around.

Fair weather friends

As mentioned in a previous post my Xmas present from the Department for Work and Pensions was the notice of migration so I am currently completing the ESA50 Capability for Work questionnaire and its twenty pages of questions as you read this, and fervently praying I can get it printed and in the post by the weekend. The nice lady from the Reassessment Team at Jobcentre Plus told me they expect to see brand new medical evidence from GP, neurologist etc. which is a bit annoying as they had this just a year ago for a change in my Disability Living Allowance. Apparently the private ATOS Medical Services who will be conducting the Work Capability Assessment won’t actually be allowed to see any of the evidence that the DWP already holds on me (none of which will be changing anytime in the next five years, peripheral nerve damage is permanent). Oh, and I’m supposed to get this document and associated evidence returned no later than February 3rd or they’ll stop my benefits. This is DESPITE the fact that it will take me at least twelve weeks just to get an appointment to see my Neurologist and even then he may consider another nerve conduction test a waste of money and not authorise it on the NHS, leaving me to pay God knows how many hundreds of pounds to get it done privately.

Can you say “monumental waste of everyone’s time and money”?

I’m actually willing to BE ‘fair’ and admit that welfare cheats faking for sickness benefits deserve to be tackled on principle, even though they represent a minority of the mostly disabled people who dominate the current claimants. Less than 0.5% of the Incapacity Benefit caseload is attributed to fraud for example, this is less than the rate of DWP error. I don’t even have an issue with periodically retesting those of us who have been given ‘indefinite’ awards. Yes, they were made indefinite for a reason but I think it would be entirely fair to ask for medical updates every five years or so and accept the independence and expertise of our NHS Consultants by empowering them to write “Fit Notes”, which is how the reformed Swiss disability system works.

“Indian” Givers For your Work Capability Assessment

What I do have is huge issues with the wholesale abolition of Incapacity Benefit. Apologies for endlessly hammering on this point but IB is a contributions-based benefit, possibly a foreign concept to Australian readers. Those of us who receive it qualified by “doing the right thing” and working hard to make sufficient National Insurance contributions. Yes, many others qualified for Income Support on the basis of Incapacity, which is means-tested and not linked to contributions (I actually receive both as my IB is so ‘generous’ it has to be topped up with means-tested Income Support) and they will also be migrating, but how can Mr Cameron expect to create a something-for-something society when he’s already welched once on a something-for-something deal? People on Incapacity Benefit did do “the right thing” as he puts it, but the British Government have pulled the financial rug out from beneath them in order to save money by making us requalify under ESA’s much tougher rules and its “invisible wheelchair” test (where you’ll be tested on your ability to mobilise with equipment you don’t actually have).

Even the princely £25 a week each that will be saved by “defining disability down” and dumping the new excess onto Jobseekers’ Allowance becomes significant when multiplied by a couple of hundred thousand, but has the British Government recognised that the REAL cost of breaking its word in this way is that no-one will trust them to manage a new form of something-for-something society either? (And there is little hope of serious opposition by Labour,  as it was the party that started this whole process.) If a Government is willing to default on their sovereign obligations to their own citizens in this way, won’t this increase the perceived risk of default on their sovereign obligations to the bond market (which is the threat their whole austerity programme is meant to defuse)?

Fair dues

At the same time the DWP has been conducting a thorough, and thanks to the Ayelsbury Mushroom case [1972] mandatory consultation on the abolition of Disability Living Allowance and replacement with the Personal Independence Payment as from 2014 (there is a good essay on delegated legislation and the grounds for judicial review here for non-lawyers).

As today’s Responsible Reform report by disabled people and representative charities makes clear, the overwhelming response to the proposals has been negative, and the DWP has been busy misrepresenting the results, which included a critical submission from the Mayor of London, Boris Johnson.

We find that the Government’s response to the DLA consultation presented a highly misleading view of the responses it received. Overall,

? 74% of respondents were against the proposals for PIP;
? 19% had mixed views; and
? Only 7% supported it fully.

Whilst Agricultural Training Board v. Ayelsbury Mushrooms Ltd [1972] primarily affirms that the government has a duty to consult affected bodies (the legislation is ultra vires or invalid without doing so) according to CONSTITUTIONAL AND ADMINISTRATIVE LAW, Bradley & Ewing 2011…

“Where there is duty to consult, either because of a statutory duty or a consistent practice of consultation, the courts have laid down the criteria for proper consulation: it must be undertaken when the proposal is at a formative stage;”

Evidence suggests that the policy had already been decided.

“sufficient reasons must be given for the proposal to enable an informed response to be given;”

Our choices were: like it, or lump it!

“adequate time must be allowed for the response to the proposals;”

The consultation was two weeks shorter than usual, and was held over Christmas.

“and the product of consultation must be conscientiously taken into account when the decision is made.”

Pity the consultation didn’t actually finish until two days AFTER the Welfare Reform Bill had been presented to Parliament, meaning that none of the feedback was taken into account when drafting the legislation to bring in PIP.

Two very different benefits but the same problem at the core, I suspect. I am reminded of the occasion very different “legitimate expectations” were thwarted when Australia met New Zealand in the Benson & Hedges Cricket Cup Final circa 1981 and Trevor Chappell bowled underarm to prevent a possible draw on the orders of his captain… not against the strict rules of the game but certainly a gratuitous offense against its spirit.

Fair evaders

Personally, I think the legal challenge against the ‘reforms’ could be two-pronged, with an appeal to legal principle alongside the one querying procedures, focusing in particular on the common AND civil law presumption against retroactive laws. Claimants (particularly those with indefinite awards) have legitimate expectations and it could create a breach of natural justice to deny them. That is, private persons need to know when they can rely on statements by officials concerning their individual circumstances, viz ‘you have been given an indefinite award: it will not be reviewed’. As the severely disabled claimants in R v North Devon Health Authority, ex parte Coughlan [2001] argued (successfully), they had been told that they could live in their adapted facility for as long as they wished. The NHS could not then close the facility and throw them out. This principle may also be a problem for the proposal to time-limit contributions-based Employment and Support Allowance to one year. It also appears to be similar to retrospective taxation (another no-no), because eligibility has always been constructed around a taxation and insurance scheme. All we need now is someone to test this in court.

I don’t think you can validly argue that this would amount to an attack on the sovereignty of an elected parliament and its powers to determine public policy, but in any case perhaps it IS time to determine whether we are legally entitled to that ‘fairness’ the Prime Minister says he wants – I don’t know, IANAL. Disabled people have included a lot of alternative ideas in their responses to the various consultations; perhaps Mr Cameron should be reading them.

A game can’t be fair without trust in the umpire, or trust that the umpire will at least follow its own rules. Unless the committment to those who made their contribution is honoured by ‘grandfathering’ those on Incapacity Benefit while preserving the terms under which they qualified, as well as addressing the valid procedural criticisms raised by today’s Responsible Reform report, you’re making a mockery of any kind of ‘fairness’, Mr Cameron.


UPDATE 13/1/12: And in case you were wondering “how low can they go?”, a LOT lower it would seem. People with disabilities were over-the-moon on Tuesday when the House of Lords threw out three provisions of the Welfare Reform Bill. So Lord Fraud came back to the house later that evening and put one of them back. I may blog further about this but am currently too angry. The Guardian explains…

The row erupted after Lord Freud, the welfare reform minister, surprised peers late on Wednesday night by tabling a new amendment. Freud acted after peers rejected plans to means-test employment and support allowance (ESA) payments for disabled people – plus cancer patients and stroke survivors – after only a year. Peers also rejected plans to time-limit ESA for cancer patients and to restrict access to ESA for disabled or ill young people.

But the minister’s amendment partially reversed the vote on young people.

Lady Hollis of Heigham, Labour’s former welfare minister, criticised the Freud amendment – tabled after most peers had left parliament for the evening in the belief that there were no further substantive votes.

Hollis told peers: “I am sure Lord Freud doesn’t wish to appear to be subverting the view of the entire house, which was expressed in the full knowledge that the amendment which we voted on was devised as a paving amendment to a substantive one so that we could debate it in good time.”


  1. Darren M
    Posted January 10, 2012 at 2:19 am | Permalink

    Indian Givers

    Given what I’ve read in the past, I’m sure this is unintentional — but that term is a fairly racist one.

    It comes from an early American misunderstanding that the Native Americans were giving gifts that were later taken back — but in fact, the intent was a loan rather than a gift.

    Using the term unfairly suggests that Native Americans (aka “American Indians”) are dishonest.

  2. Posted January 10, 2012 at 2:33 am | Permalink

    Will put in quotes to differentiate, Darren. That was the story and point I was trying to reference.

  3. kvd
    Posted January 10, 2012 at 3:48 am | Permalink

    I’m supposed to get this document and associated evidence returned no later than February 3rd or they’ll stop my benefits. This is DESPITE the fact that it will take me at least twelve weeks just to get an appointment to see my Neurologist and even then he may consider another nerve conduction test a waste of money and not authorise it on the NHS, leaving me to pay God knows how many hundred of pounds to get it done privately.

    You mentioned ‘natural justice’ in your post, but the above words seem to indicate that at the very least you will be denied the right to a fair hearing – which I’ve always understood to be pretty basic to any government-individual dealing.

    Specifically, how can you provide something by Feb 3rd which requires a 12 week appointment lead time and appears to be at the optional decision of the specialist anyway?

  4. Posted January 10, 2012 at 7:19 pm | Permalink

    I can’t, kvd. And I suspect that may be the point given that the response time was recently REDUCED from six weeks to four. The pressure is all pushed onto me.

    Remember all they ask for is “new medical evidence” which could be anything. In my particular case that involves accessing an NHS Consultant, which is not a quick process given that the UK health system rations by time rather than price. I’m not complaining about that – I get very good healthcare and it doesn’t cost me a bean.

    In my case I’m extremely lucky as one of my other benefits changed last year which means I have evidence from the right test to hand so I’ll just have to send them the ‘old’ evidence and cross everything.

    The clear instruction from the DWP masters is to fail as many people as possible to force numbers down (they’re talking a 20% reduction in the DLA to PIP transfer), which I guess is easier for THEM when it comes to implementing reform – the results of adjusting incentives (like raising the personal tax allowance to £10,000 to ‘make work pay’ for low earners and scrapping the couples penalty to slash housing benefit costs) wouldn’t be measureable in the life of a single parliament – but it is a bit rough on US.

  5. kvd
    Posted January 11, 2012 at 3:31 am | Permalink

    What a sorry mess it has all become. Best wishes for the slight hope that you will be treated fairly, but how that could possibly be, I just cannot imagine.

  6. Posted January 11, 2012 at 3:52 am | Permalink

    By being totally paranoid and crossing every ‘t’ and crossing every ‘i’ with my paperwork I suspect.

  7. kvd
    Posted January 11, 2012 at 5:13 am | Permalink

    DEM, yesterday afternoon I finally watched right to the end a doco called “Inside Job” which is about the people and companies (i.e. more people) involved at the heart of the financial crisis. The politicians, the regulators, the masters of the universe. I say watched right through, because a couple of earlier times I had to turn it off, walk away, lest I put my foot through the tv.

    It is impossible to say just how far down into society the ramifications of their lack of ethics and integrity (and just plain common sense) has reached – even to the point you have now reached where ‘due to budget constraints’ you find one of governments’ most basic roles – providing adequate resources for people in genuine need – has to be fudged around the basic fact that a small group of people have managed to piss up against the wall a couple of generation’s worth of collective wealth.

    There was a learned judge in the UK just the other day opining that “you can’t prosecute executives for bad business decisions”. What an absolute cop out imo. It makes my blood boil.

  8. Posted January 11, 2012 at 6:49 pm | Permalink

    This has been Peter Oborne’s argument since the England riots (IIRC we featured his first major piece on the issue on this blog) – that is, public life has become almost irremediably bent during the last 15 years or so, it is very difficult to see the wood for the trees when it comes to moral behaviour. And this covers every major institution, from Parliament to the media to the banks to the public sector. There are even reports coming in that nurses are turning into jobsworths.

  9. Posted January 11, 2012 at 7:56 pm | Permalink

    [email protected] A quote for you:

    As either Deputy Secretary or Secretary to the Treasury, I was called on by scores of investment bankers seeking to advance their interests. Two clear impressions emerged: first, they were often highly intelligent people; and second, they were almost entirely without scruple.

    John Stone, “Floating the Dollar: Fact and Fiction”, Quadrant January 2012.

  10. Posted January 12, 2012 at 4:01 am | Permalink

    And this from a man who’d had to work with Paul Keating!

  11. kvd
    Posted January 12, 2012 at 5:35 am | Permalink

    Thanks Lorenzo. I’ve now read that whole piece, and it is quite interesting. “Success has many fathers” springs to mind.

    DEM, please lay off Mr Keating. He supplies endless amusement with his language; the man who dares to lift the veil off veiled insult. A genuine Salome.

  12. Posted January 14, 2012 at 9:43 am | Permalink

    [email protected] Yes, an appropriate response to the piece.

    And I suspect DEM was referring to the issue of scruples re:PK. Senator Ray, said of the Hawke-Keating contest, that it was egomania versus meglomania. To his credit, as a Hawke supporter, he was on the side of egomania.

  13. Posted January 14, 2012 at 9:44 am | Permalink

    DEM I think you need to close a bold edit.

  14. Mel
    Posted January 14, 2012 at 11:33 am | Permalink

    As a newly minted libertarian I condemn DEM’s immoral attempt to parasitise the able bodied.

    Here’s a little snippet of Ayn Rand wisdom. Listen and may your moral compass be restored:

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