DWP Central Freedom of Information Team
e-mail: [email address].
Our Ref: VTR 4300
30 September 2013
Dear C. Robinson,
Thank you for your Freedom of Information request received on 8 September 2013. You
asked:- Dear Department for Work and Pensions,
I am writing this FOI because I have seen many differing views regarding clause 99 and the
catch 22 situation that it puts sick and disabled claimants in,
So my questions are thus:
Q1 When a person is refused ESA and appeals against the decision, what benefits can he
claim if s/he has no income?
Q2 If an ESA refusal claimant is too “fit” for ESA, but too sick or disabled for JSA what is there
(i) How will they pay their bills?
(ii) How will they be able to get medication? (as they will not be on any benefits to qualify
for free prescriptions)
(iii) What about their homes? Will you still cover the rent? Or will you be setting up modern-
(iv) Where are their human rights? I refer to article 6 and 25 respectively. Article 6 of the
European Convention on Human Rights act is a provision of the European Convention which
protects the right to a fair trial. In criminal law cases and cases to determine civil rights it
protects the right to a public hearing before an independent and impartial tribunal within
reasonable time, the presumption of innocence, and other minimum rights for those charged in
a criminal case (adequate time and facilities to prepare their defence, access to legal
representation, right to examine witnesses against them or have them examined, right to the
free assistance of an interpreter). Article 25. (1) Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to security in the event
of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.
Q3 How can someone have a fair hearing (see article 6 above) at a tribunal when you have
driven them into a catch 22 situation? i.e. A claimant refused ESA, through sheer destitution
has to sign on and as soon as they do it cancels out their appeal, even though they are too ill
to work and have no chance of getting a job. How legal is this since the UK signed the Human
Rights act? Pursuant of this how many appeals will be made to the ECHR?
Q4 When a person is turned away from the JCP because s/he doesn’t fit the criteria to sign on
(their illnesses means hospital appointments, etc) what are their rights if any?
Q5 What impact will Clause 99 have on the Infrastructure? i.e:
(i) The NHS?
(iii) Social Services?
(iv) The Police (people HAVE turned to crime when they have no income whatsoever)
(v) Local Councils (How can people pay the council tax with no money)?
Q6 How long will it be before the application of Clause 99 causes chaos and meltdown?
Q7 How many deaths will this cause?
Contrary to your interpretation, I can confidently say that Clause 99, which became section 102
of the Welfare Reform Act 2012, does not create a catch-22 situation.
When someone is found fit for work, in the period whilst their application for mandatory
reconsideration is being considered, that person can claim Jobseeker's Allowance, Carers
Allowance, Personal Independence Payment or Income Support. It is accepted that for the
majority it will be Jobseeker's Allowance which is where you see the catch-22 arising. But this
is not correct.
Although someone who is seeking a reconsideration may protest to the Jobcentre adviser that
they are not fit for work, the adviser is trained to work with those who so present themselves.
Disability Employment Advisers, trained by specialist staff from the department’s Disability
Employment Service, will work with those who identify themselves as having a health condition
or disability. They will take into account individual circumstances and will consider placing
limitations on a claimant’s availability or modifying their work conditionality. Even if an
individual provides a Fit Note from their doctor they can still claim and be entitled to
Jobseeker's Allowance if they meet the eligibility rules.
Against this background your questions about paying bills, buying medication, paying rent,
human rights, a fair tribunal hearing, the NHS, food banks etc., all fall away. Your concerns are
not new having been raised by welfare groups and in Parliament. But Parliament has agreed
that the right safeguards are in place to mitigate the effects you and others believe will arise.
If you have any queries about this letter please contact me quoting the reference number
DWP Central FoI Team
Your right to complain under the Freedom of Information Act
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