As part of September 2022’s ‘mini budget’ (now largely reversed),1The Growth Plan 2022 speech, HM Treasury, 23 September 2022. the government announced plans to further expand in-work conditionality, placing a further 120,000 universal credit claimants at greater risk of sanctioning.2See also ‘New changes to universal credit put over 100,000 people at greater risk of sanctioning’, PLP news release, 26 September 2022. While the proposals affect a relatively small number of claimants, the choice to highlight the sanctions element raised further concerns about the government’s ongoing commitment to the current sanctions regime.

This follows on from the government’s latest benefit sanctions statistics, which showed that sanction rates have continued to increase to above pre-pandemic rates.3Benefit sanctions statistics to April 2022 (experimental), Department for Work and Pensions, 16 August 2022. In light of the extensive evidence of its potential harm, and the government’s ongoing refusal to publish its evaluation of whether they are effective,4HC Written Question UIN 49219, 7 September 2022; answered 27 September 2022. the current sanctions regime requires urgent wholesale reform. In the meantime, it is important that claimants have access to effective remedies when they are imposed incorrectly. However, research published by the Public Law Project (PLP) this summer5Benefit sanctions: a presumption of guilt, July 2022. suggests that isn’t currently the case, with claimants facing multiple barriers to effectively challenging sanction decisions.

One of those barriers is the requirement for them to go through an internal review process (mandatory reconsideration) before they can appeal to an independent tribunal. Introduced as part of the Welfare Reform Act 2012, at least in part due to the high volume of tribunal appeals at that time, concerns have long been raised about the impact of mandatory reconsideration on claimants’ access to justice. PLP’s research found that in the context of sanctions it created a number of barriers including:

The Department for Work and Pensions (DWP) argues6Shaping future support: the health and disability green paper, CP 470, DWP, July 2021. that mandatory reconsideration is a more efficient way for claimants to access justice without having to go through the stress of a potentially lengthy appeal process. It is unclear why those same benefits could not be achieved through the option of a voluntary or parallel internal review process, while still allowing claimants to progress to appeal.

While the DWP continues to require mandatory reconsideration, there are steps that can and should be taken to improve the process to bring it more into line with the positive features of a tribunal appeal. Unsurprisingly, PLP’s research found that the tribunal’s independence was a key supportive factor in claimants trusting the process and therefore being more likely to proceed with an appeal. Conversely, the research found low trust in the internal DWP process, due to, among other things, concerns about potential bias, a perception of the system as one that was disinclined to believe claimants and fear that seeking to challenge could lead to a negative reaction in response.

Issues of trust are deep-seated and require fundamental change if they are to be meaningfully addressed. In the meantime, however, there are steps that the DWP can and should take to mitigate its consequences. Messaging matters, and the DWP needs to both ensure and project that it has a culture that welcomes challenge. It is not well known that mandatory reconsideration decisions are taken by different members of staff from the original decision-maker and that they sit in a different team. That separation is no substitute for a genuinely independent procedure, but greater promotion of that fact is one small way to improve trust in the process.

A further theme within the PLP research was the importance at the tribunal stage of oral evidence, both in reaching the truth and feeling like the process was fair. The DWP recently published data on the main reasons that personal independence payment (PIP) appeals were successful.7HC Written Question UIN 42121, 21 July 2022; answered 5 September 2022. Worryingly, by far the most common reason was the tribunal reaching a different conclusion from the original DWP decision-maker on substantially the same facts. The second most common reason, though, was the provision of oral evidence. However, currently both the mandatory reconsideration and the original sanction decision-making processes keep claimants at a distance from those making decisions on their case. In 2019, the DWP introduced changes to the mandatory reconsideration process to give decision-makers the power to contact the claimant if they feel additional evidence is needed. The DWP should build on this by ensuring contact between decision-makers and claimants, and therefore the provision of oral evidence at an earlier stage, in all cases.

The DWP has indicated that it is committed to ensuring both that correct decisions are reached at the earliest possible stage and that when decisions are appealed, the process is as easy and efficient as possible.8Shaping future support: the health and disability green paper, ibid. It must now make good on that aspiration by taking some of the practical actions needed.