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344 Chapter 13

replace net loss of earnings precisely, and for short periods of incapacity this aim
can be achieved without too much diļ¬ƒculty. The main advantage which social
security beneļ¬ts have over tort damages is that the former are paid more or less
immediately, and periodically, whereas tort damages will usually be paid in a lump
sum, and many months or even years after the injury is suļ¬€ered. Tort also provides
damages for short-term non-pecuniary loss, and such damages tend to be a larger
proportion of the total award in less serious than in more serious cases. By contrast,
industrial injury beneļ¬ts for loss of faculty do not become payable until 15 weeks
after the injury.

13.4.3.2 Long-term incapacity
Long-term incapacity arising from industrial injury is treated in a very complex
way. It is in this area that the industrially injured are privileged when compared
with those suļ¬€ering from non-industrial injuries and diseases or congenital dis-
ability chieļ¬‚y because they are entitled to beneļ¬ts referable to non-pecuniary loss
(a ā€˜disablement pensionā€™ or, as it is more commonly known, ā€˜disablement beneļ¬tā€™)
as well as to beneļ¬ts to cover the extra ļ¬nancial costs of disability.75 Entitlement to
industrial disablement beneļ¬t can add very considerably to a personā€™s total entitle-
ment to social security beneļ¬ts.76
We will consider disablement beneļ¬t ļ¬rst. Incapacity is assessed for each indi-
vidual claimant under the IIS in terms of percentages of total (i.e. 100%) disable-
ment according to guidelines laid down in the SSCBA 1992 and with the assistance
of a ā€˜tariļ¬€ā€™ for speciļ¬ed types of disability laid down in regulations made under the
Act.77 Degrees of disablement of less than 14% do not, in most cases, qualify for
beneļ¬t.78 Degrees between 14% and 19% are rounded up to 20%. Other degrees are
rounded up or down to the nearest 10%. Disablement beneļ¬t is paid in the form
of a pension, which bears the same relation to the maximum pension as does the
individual claimantā€™s degree of disability to 100% disablement.
The basic principle for assessing degree of disablement is that the assessment
must be based on all disabilities ā€˜to which the claimant may be expected, having
regard to his physical and mental condition at the date of the assessment, to be
subject . . . as compared with a person of the same age and sex whose physical and
mental condition is normalā€™.79 The assessment is almost wholly objective and
ignores the personal characteristics of the claimant ā€“ the particular pleasures they
may have lost, the particular hobbies they may no longer be able to pursue and so

75 Some existing recipients are also entitled to reduced earnings allowance (REA, formerly special
hardship allowance) which was abolished for new claims in 1990.
76 The maximum rate of disablement beneļ¬t payable to a claimant over 18 is higher than the basic
incapacity beneļ¬t payable to a couple. Incapacity beneļ¬t is the main income-replacement beneļ¬t
payable to the disabled generally. A person disabled at work may be entitled to both disablement
beneļ¬t and incapacity beneļ¬t.
77 Social Security (General Beneļ¬t) Regulations 1982, Sch. 2.
78 Lump sum gratuities for minor disablement were abolished in 1986.
79 SSCBA 1992, Sch. 6, para. 1(a).
The social security system 345

forth. ā€˜The assessment shall be made without reference to the particular circum-
stances of the claimant other than age, sex and physical and mental condition.ā€™80
This contrasts with the common law approach, which is partly subjective.81 A
departmental committee, which examined the principles of assessment of disable-
ment beneļ¬t in 1965, rejected the introduction of subjective factors which (it
thought) ā€˜apart from being impossible to quantify, would clearly have no place in
the determination of equitable and consistent assessmentsā€™.82 It has been argued
that too little attention is paid to the functional eļ¬€ect of the disablement ā€“ what
actually does the disability prevent the person from doing?83 More importantly,
perhaps, disablement beneļ¬t tends to be regressive because it focuses on physical
disabilities, and these typically aļ¬€ect the earning power of lower-paid (typically
manual) workers more than they aļ¬€ect the earning power of higher-paid (typically
non-manual) workers. For example, the loss of a leg would have no eļ¬€ect on the
earning power of a judge, but a great eļ¬€ect on that of a construction worker.
The ā€˜tariļ¬€ā€™ is not, and is not intended to be, exhaustive; nor, in fact, is it rigidly
binding in any given case. It merely prescribes the percentage assessment appro-
priate to certain kinds of disability (such as loss of a hand or loss of sight), where
no special features present themselves. Schedules of this kind are in widespread use
throughout the world,84 but they have given rise to much dissatisfaction. This is
partly because they often appear arbitrary, and partly because the main diļ¬ƒculties
in the assessment of disabilities are associated with less readily identiļ¬able handi-
caps. Low back injuries, for example, are very common and notoriously diļ¬ƒcult to
assess. No schedule is likely to help much in such cases.85 Moreover, the assessment
of disabilities in percentages gives a misleading impression that it is possible to
make comparisons across the whole ļ¬eld of disability in precise terms. Attempts
have been made to work out more objective methods of measuring disabilities, by
allocating points to a simple series of tests to be done by the subject.
The pension is payable for the expected period of the disability. Many disabil-
ities are only temporary. In fact, according to the Pearson Commission, about 70%
of disablement pensions last for less than 5 years, and 30% last for only 6 months.86
Determination of the claimantā€™s entitlement to beneļ¬t may be ā€˜provisionalā€™ or
ā€˜ļ¬nalā€™. At the termination of the period of a provisional assessment, a new assess-
ment (either provisional or ļ¬nal) will be made. Once a ļ¬nal assessment has been
made, the pension cannot be reduced, although it can be increased if there is an
unforeseen aggravation at a later date.
80 Ibid., para. 1(c).
81 6.5.3.
82 Cmnd 1847, 1965, para. 14.
83 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 753.
84 It has been suggested that the common law should adopt one: N.J. Mullany, ā€˜A New Approach to
Compensation for Non-Pecuniary Loss in Australiaā€™ (1990) 17 Melbourne ULR 714, 727ā€“32.
85 A Report of the IIAC on Occupational Deafness gives some idea of how diļ¬ƒcult it is in practice,
even in relation to a single disability, to measure disablement in percentage terms: Cmnd 7266,
1978.
86 Pearson Report, vol. 2, table 7.
346 Chapter 13

So far as the rates of disablement beneļ¬t are concerned, the more severely
disabled seem, in relative terms, to be treated less well than the less severely dis-
abled. It is dubious whether one can really say that a 100% disablement should only
be worth ļ¬ve times the compensation awardable for a 20% disablement. Once a
person is assessed as more than 70% disabled (or thereabouts) it is likely that
the incapacity will have serious eļ¬€ects on the whole life of the disabled person, and
also of their family. It may also be noted that there are very few cases of disablement
at the 100% rate, so that it would cost relatively little to increase the proportion
payable at the top end of the scale. In 1981 the government proposed a re-alignment
under which, for example, a 30% assessment would attract a 25% pension and an
80% assessment would attract an 85% pension.87 This proposal was not put into
operation.
It is by no means easy to compare the value of disablement beneļ¬t with its
common law equivalent, namely damages for non-pecuniary loss (disablement
beneļ¬t is not intended to replace lost earnings and is payable even if the claimant
has suļ¬€ered no loss of income as a result of the injury). A meaningful comparison
can only be attempted in relation to permanent disability. The fact that disablement
beneļ¬t takes the form of a pension means that the total value of the beneļ¬t will
depend crucially on the age of the claimant at the time of the injury, whereas at
common law, the age of the claimant is likely to have a substantial eļ¬€ect on the
amount awarded for non-pecuniary loss only in cases of extreme youth or old-age.
Comparison is also rendered diļ¬ƒcult by the fact that the concept of ā€˜disablementā€™
under the IIS is quite diļ¬€erent from the concepts of ā€˜pain and suļ¬€eringā€™ and ā€˜loss of
amenitiesā€™ at common law: the latter are much more concerned than the former with
the eļ¬€ects of particular disabilities on the injured personā€™s capacity to lead a full life.
To take a stark example, total deafness and loss of speech might attract damages of
between Ā£60,000 and Ā£77,000 at common law88 which represents about 30 or 35%
of the largest awards for non-pecuniary loss; but ā€˜absoluteā€™ deafness qualiļ¬es as
100% disablement under the IIS tariļ¬€. Even more extreme is the case of severe facial
disļ¬gurement, which the IIS tariļ¬€ assesses at 100% but which, at common law,
would attract damages of between Ā£16,000 and Ā£53,000 (depending partly on the
sex of the claimant).89 On the other hand, the common law is prepared to award
extra damages for the psychiatric eļ¬€ects of injury and, to a limited extent, to take
account of personal characteristics of the claimant; whereas such factors are ignored
under the IIS. Probably the only worthwhile generalization is that young claimants
under the IIS are likely to do much better than older claimants; and at the extremes,
the young IIS claimant will probably do better than a similarly placed tort claimant,
while an older IIS claimant will fare worse than their tort equivalent.

87 A.I. Ogus and N.J. Wikeley, Ogus Barendt and Wikeleyā€™s The Law of Social Security, 4th edn
(London, 1995), 339ā€“40.
88 Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases,
7th edn (2004), 16.
89 Ibid., 59.
The social security system 347

In addition to disablement beneļ¬t, other allowances are payable to claimants who
suļ¬€er income loss. Since entitlement to disablement beneļ¬t arises 15 weeks after
injury, while SSP is payable for the ļ¬rst 28 weeks of incapacity and short-term incap-
acity beneļ¬t for weeks 29ā€“52, there is an overlap between disablement beneļ¬t and
the latter two beneļ¬ts. If the injuries are so serious that the claimant has been incap-
able of work for a period of 52 weeks,90 they will normally be entitled to the non-
industrial incapacity beneļ¬t91 and an age-related allowance at one of two rates
depending on how old the claimant was at the time of disablement (the higher rate
for those incapacitated before the age of 35 and the lower rate for those incapacitated
between the ages of 35 and 45). Increases for dependants are payable in some cases.
An earnings-related addition to incapacity beneļ¬t, which was introduced in 1975,
has been abolished for new claimants and has been frozen in cash terms for existing
claimants. Where a recipient of incapacity beneļ¬t is in receipt of an occupational or
private pension worth more than a certain amount a week, their incapacity beneļ¬t is
(since 1999) reduced by 50 pence for every pound over the speciļ¬ed amount.92 This
change introduced an important element of means-testing into provision for the dis-
abled. Incapacity beneļ¬t is not payable to people over retirement age (65).
Until 1990 the industrially disabled who were incapable of following their
regular occupation or similar employment were also entitled to an income-
replacement beneļ¬t called reduced earnings allowance (REA). REA, unlike inca-
pacity beneļ¬t (and its predecessor, invalidity beneļ¬t), was payable to those who
were able to work but had reduced earnings as well as to those who were incapable
of work.93 REA was abolished in 1990 on the ground that it overlapped with inva-
lidity beneļ¬t. But this was true only in relation to recipients who were wholly inca-
pable of work, and not in cases of partial incapacity. However, there is a beneļ¬t for
people ā€“ including disabled people ā€“ who are able to work, called working tax credit
(WTC), which was introduced in 2003 as an ā€˜integratedā€™ successor to two beneļ¬ts
ā€“ disabled personā€™s tax credit (DPTC) and working familiesā€™ tax credit (WFTC).
DPTC was, in turn, introduced in 1999 as a successor to disability working
allowance (DWA). DWA was a means-tested94 income-support beneļ¬t designed to
encourage and enable partially disabled people to return to work. For the ļ¬rst time
with the introduction of DWA, the British social security system contained a


90 There are two tests of incapacity for work, namely the less stringent ā€˜own occupationā€™ test and the
more stringent ā€˜personal capabilityā€™ test. For those who have been in remunerative work, the own
occupation test applies for the ļ¬rst 28 weeks, and the personal capability test applies for the period
from 29ā€“52 weeks. The personal capability test applies to other claimants except those in exempt
categories, who are subject to a less stringent test analogous to the own occupation test. The per-
sonal capability test is based on controversial ā€˜objectiveā€™ assessments of incapacity for work.
91 Concerning proposed changes to this beneļ¬t see ā€˜Editorialā€™ (2005) 12 JSSL 49.
92 See Bonner, ā€˜Work for Those Who Can and Security for Those Who Cannot?ā€™, 220ā€“1.
93 Disablement beneļ¬t is a beneļ¬t for partial (as well as total) incapacity but it is not, in theory, an
income-replacement beneļ¬t.
94 At the time, this was the only beneļ¬t speciļ¬cally for the disabled that was means-tested. However,
as already noted, the Welfare Reform and Pensions Act 1999 introduced an abatement of inca-
pacity beneļ¬t for those with occupational pensions or private health insurance.
348 Chapter 13

general beneļ¬t for partial incapacity. When DWA was introduced, it was antici-
pated that about 50,000 people would claim it; but by 1999, only some 18,000 had
done so. Most claimants were in work: the beneļ¬t helped very few people to ļ¬nd
work.95 DPTC was more generous than DWA and, like WFTC (and now WTC), was
administered by the Inland Revenue (now Her Majestyā€™s Revenue and Customs).
The tax credit system is designed to reinforce the link between the receipt of beneļ¬t
and participation in the labour market.96 Thus, a disabled person has to work for
at least 16 hours a week in order to qualify for WTC. But despite its name, WTC is
not a form of tax-break but a means-tested social security beneļ¬t.
Finally, we must mention social security beneļ¬ts designed to meet the extra expen-
diture which people disabled at work may incur because of their disablement.97
Constant attendance allowance is payable in cases of 100% disablement where the
injured person requires continuous attendance;98 and there is a further ā€˜exceptionally
severe disablement allowanceā€™ for the worst cases in which constant attendance is per-
manently required.99 These beneļ¬ts are technically additions to a disablement
pension. Very few people receive these allowances.100 People injured at work may also
be entitled to disability living allowance (DLA), which was introduced as from 1992.
DLA replaced and extended the scope of both attendance allowance101 (which was the
non-industrial equivalent of constant attendance allowance and exceptionally severe
disablement allowance) and mobility allowance, and has two components: a care
component (which is payable at three rates) and a mobility component (which is
payable at two rates). A personā€™s entitlement to DLA may consist of either component
or both. A person in receipt of constant attendance allowance, with or without excep-
tionally severe disablement allowance, would not be entitled to the care component.
As under the tort system, the recipient of social security beneļ¬ts designed to
meet speciļ¬c needs is under no legal obligation to use the amount received to meet
that need. On the other hand, the social security system, unlike the tort system,
caters for only two needs associated with disability, namely the need for care and the
need for mobility. These are by no means the only needs generated by disability.102

95 Social Security Advisory Committee, Social Security Provision for Disability: A Case for Change?ā€™
(TSO, 1997), 21; K. Rowlingson and R. Berthoud, ā€˜Social Security and Disincentives to Work:
The Case of Disability Working Allowanceā€™ (1997) Industrial LJ 198.
96 Between 2000 and 2003 the number of people classed as unemployed fell by 15% (156,000) and
the number claiming beneļ¬ts for sickness and incapacity rose by 5% (137,000).
97 For detailed analysis of the ā€˜costs of disabilityā€™ see R. Berthoud, ā€˜Meeting the Costs of Disabilityā€™
in G. Dalley ed., Disability and Social Policy (London, 1991), ch. 4; M. Tibble, Review of the
Existing Research on the Extra Costs of Disability (DNP Working Paper 21, 2005). See also P. Large,
ā€˜Paying for the Additional Costs of Disabilityā€™, ibid., ch. 5. As in the case of tort damages, recipi-
ents of social security beneļ¬ts to meet extra costs of disability are not required to use the bene-
ļ¬ts for their intended purpose.
98 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 760ā€“1.
99 Ibid., 761.
100 In 1994ā€“5 (the last year for which ļ¬gures are available), 1,000 people were receiving exception-
ally severe disablement allowance, and 2,000 were receiving constant attendance allowance:
Social Security Statistics 1996, table F2.07.
101 Which is, however, retained for those over 65.
102 Berthoud ā€˜Meeting the Cost of Disabilityā€™ in Dalley, Disability and Social Policy, 92ā€“3.
The social security system 349

The social security equivalent of damages for gratuitous nursing and domestic
services is carerā€™s allowance, which is payable to a person over 16 who spends at least
35 hours a week caring for a disabled person who is in receipt of one of various
beneļ¬ts, including constant attendance allowance. Tort damages under this head
are likely to be more generous in many cases than the equivalent social security
beneļ¬ts; tort damages represent the ā€˜reasonable valueā€™ of the services actually pro-
vided, whereas carerā€™s allowance is a low ļ¬xed amount which takes account neither
of the nature nor the market value of the care provided nor of the earning power
of the carer.103 It is assumed that the carer will be a close relative or a friend who is
prepared to forego substantial paid employment.
Just as under the tort system there are rules designed to prevent ā€˜overlapā€™ between
diļ¬€erent heads of damages,104 so too under the social security system there are reg-
ulations designed to ensure that claimants do not receive more than one beneļ¬t in
respect of one and the same need.105 For example, someone who is looking after a
disabled person could not claim both carerā€™s allowance and jobseekerā€™s allowance,
since both are income-replacement beneļ¬ts. As in the case of tort compensation, the
proceeds of private insurance are not set oļ¬€ against social security beneļ¬ts. On the
other hand (as we noted earlier) there is a partial set-oļ¬€ of the proceeds of occupa-
tional and private pension beneļ¬ts against entitlement to incapacity beneļ¬t.
For several reasons, it is very diļ¬ƒcult in general terms to compare the value of all
these social security beneļ¬ts for pecuniary and non-pecuniary loss with tort
damages. First, tort damages are fully earnings-related whereas those long-term
social security beneļ¬ts for the disabled that are intended to replace lost earnings are
not. This means that high earners are, in principle, likely to do better out of tort
damages than under the IIS. Secondly, most social security beneļ¬ts are periodical
and index-linked whereas at common law, only structured settlements and period-
ical payments have these characteristics. Thirdly, whereas tort damages for loss of
earnings are only payable up to the end of the claimantā€™s expected working life, long-
term income-replacement social security beneļ¬ts for the disabled are payable so
long as the person remains disabled. Fourthly, the impact of taxation complicates
the comparison. Lump-sum tort damage awards are not taxable, but income from
the investment of such an award is subject to tax unless it has been put into a struc-
tured settlement. Some social security beneļ¬ts (such as SSP and incapacity beneļ¬t)
are taxable, while others (such as disablement beneļ¬t106) are not. Fifthly, the amount
received by tort claimants in cases settled out of court may well be signiļ¬cantly less
than would be required by a strict application of the rules governing assessment of
tort damages; whereas social security claimants can normally expect to receive their


103 The recipient is allowed to earn a small amount per week. By contrast, constant attendance
allowance and the care component of DLA are payable without reference to the earning capac-
ity of the carer.
104 E.g. Administration of Justice Act 1982, s. 5.
105 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 259ā€“65.
106 Including constant attendance allowance and exceptionally severe disablement allowance.
350 Chapter 13

full legal entitlement. Despite the diļ¬ƒculties, however, the comparison is an impor-
tant one because of the operation of the provisions, for recovery of social security
beneļ¬ts, examined later (15.4.5). There is little point in bringing a tort claim unless
the damages are likely to exceed by a signiļ¬cant amount the total sum of the social
security beneļ¬ts that will be deducted from the award ā€“ although this is only a rele-
vant consideration in cases where the only compensation awarded is for past loss.

13.4.3.3 Beneļ¬ts for bereavement
Until 1986, the widow of a person who had died as a result of injury sustained at
work was entitled to beneļ¬ts under the IIS diļ¬€erent from (and originally substan-
tially greater than) those payable to ā€˜non-industrialā€™ widows. This aspect of the
ā€˜industrial preferenceā€™ in the social security system became unpopular, and the
diļ¬€erential between industrial and non-industrial widowsā€™ beneļ¬ts was gradually
eroded. The Pearson Commission recommended that industrial death beneļ¬ts
should be abolished on the ground that ļ¬nancial provision for dependants should
not vary according to the cause of death.107 This was done in 1986.
Until 1999, death beneļ¬ts were payable only to a woman who was married to a
man at the time of his death. Now, a bereavement payment of Ā£2,000 is available108
both to widows and widowers and, since 2004, to bereaved ā€˜civil partnersā€™ ā€“ i.e. part-
ners in a formal same-sex relationship, called a civil partnership. This is not an
income-replacement beneļ¬t but can be seen either as compensation for bereavement
as such (i.e. for non-pecuniary loss) or as providing ļ¬nancial assistance to meet
special needs arising from the death.109 For qualiļ¬ed persons with dependent chil-
dren the relevant beneļ¬t is widowed parentā€™s allowance (WPA),110 which is payable
from the date of the spouse or civil partnerā€™s death. WPA is based on the assumption
that the parent will not be working; but, inconsistently with this, there is no limit to
the amount the recipient can earn while receiving it. WPA consists of a basic pension
and an additional amount for each dependent child. If there are no dependent chil-
dren, a bereaved spouse or civil partner will receive a bereavement allowance (BA),
but only if they were over 45 at the date of the spouse or partnerā€™s death or upon
ceasing to be entitled to WPA. The full rate of BA is payable only to qualiļ¬ed persons
aged 55 or over at that date. Refusal to pay bereavement beneļ¬ts regardless of age and
need goes back to Beveridge himself. He took the view that a young childless
widow111 should not expect to be maintained by the State. ā€˜If she is able to work, she
should work.ā€™112 This principle was reinforced in 1999 by introduction of the rule that
BA is available for only 52 weeks. After that, bereaved spouses and civil partners are
expected to become self-supporting or to transfer to another beneļ¬t.

107 Pearson Report, vol. 1, paras. 835ā€“44.
108 Subject to an easily satisļ¬ed contribution condition.
109 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 575.
110 For the contribution conditions for WPA and for BA see Wikeley, Ogus and Barendtā€™s The Law of
Social Security, 576ā€“7.
111 Until 1999, bereavement beneļ¬ts were payable only to widows.
112 Beveridge Report, para. 153.
The social security system 351

In relation to bereavement, the tort system113 is generous by comparison with the
social security system. First, a widow can receive substantial damages under the Fatal
Accidents Act 1976 for the loss of her husband despite the fact that she is young,
childless and able-bodied.114 Moreover, the amount awarded in respect of a widowā€™s
loss of support115 under the tort system is not aļ¬€ected by the fact, or her prospects,
of remarriage. By contrast, WPA and BA cease to be payable if the recipient enters a
new marriage or civil partnership, and are not payable during any period of hetero-
sexual or same-sex cohabitation (as the case may be).116 Secondly, although tort
beneļ¬ts for dependants are not directly related to the income of the deceased, they
are indirectly related in that the more the deceased earned, the more the dependants
are likely to have lost in ļ¬nancial support. Social security beneļ¬ts, by contrast, are
modest and only limited earnings-related beneļ¬ts are available. Thirdly, under the
Fatal Accidents Act 1976117 the value of social security beneļ¬ts is not set oļ¬€ against
tort damages.118 So far as concerns earnings by the bereaved spouse or partner, these
are ignored by the social security system; and they are not directly relevant to tort
compensation either, although they may have an indirect eļ¬€ect on compensation if
the fact that the bereaved spouse or partner was earning at the time of the death or
was likely to enter paid employment meant that they were receiving or could expect
to receive less by way of support from their spouse or partner.
The result of these diļ¬€erences in approach is that it is not easy to make mean-
ingful general comparisons between the value of the social security beneļ¬ts for a
bereaved spouse or civil partner and damages awarded to a spouse or civil partner
under the Fatal Accidents Act 1976. What can be said, however, is that both the
social security system and tort law treat bereaved spouses and partners more
favourably than any other class of claimant.

Administration119
13.4.4
A claim for an industrial injury or other social security beneļ¬t must be submitted
in writing on an oļ¬ƒcial application form to an oļ¬ƒce of the DWP (Jobcentre Plus).
Applications are initially assessed entirely on the basis of the documents submitted.

113 And the Criminal Injuries Compensation Scheme.
114 An equivalently placed female cohabitee is much less likely to receive a substantial award: she will
not recover damages for bereavement, her prospects of marriage will be taken into account, and
the operation of s. 3(4) may work against her.
115 But the amount awarded in respect of dependent children may be aļ¬€ected.
116 The so-called ā€˜cohabitation ruleā€™ is much disliked because of the intrusions into privacy which it
may involve. The basis of the rule is that it would be inequitable to treat a person who marries
or enters a civil partnership less favourably than a person who cohabits without doing so.
Short of paying bereavement pensions without regard to remarriage/entering a new civil part-
nership, there seems no other solution to this problem. The lump sum payment is not lost on
remarriage/entering a new civil partnership, but it is not payable if the claimant was cohabiting
at the time of the spouseā€™s/partnerā€™s death.
117 But not under the CICS.
118 Fatal Accidents Act 1976s. 4; Social Security (Recovery of Beneļ¬ts) Regulations 1997, reg. 2(2)(a).
119 Wikeley, Ogus and Barendtā€™s The Law of Social Security, chs. 5 and 6; J. Baldwin, N. Wikeley and
R. Young, Judging Social Security (Oxford, 1992). The main statute is the Social Security
352 Chapter 13

However, since 1999 applicants for certain beneļ¬ts, including bereavement beneļ¬ts
and certain beneļ¬ts for the disabled (but not industrial injury beneļ¬ts) must attend
a ā€˜work-focusedā€™ interview. This is one manifestation of a more general policy of
seeking to get people oļ¬€ welfare and into the paid workforce. In cases where the
claimantā€™s medical condition is relevant to entitlement (as in the case of beneļ¬ts for
sickness and incapacity), a certiļ¬cate from a medical practitioner may be required.
Simplifying a little, a claimant who is dissatisļ¬ed with the initial decision on a
claim has a month in which to apply for it to be reviewed. If the claimant is
dissatisļ¬ed with the outcome of the review process, he or she has a further month
in which to appeal to an appeal tribunal.120 Such a tribunal may consist of one, two
or three members (depending on the issue at stake), of which at least one must be
legally qualiļ¬ed. The members of individual tribunals are chosen from a panel for-
mally appointed by the Lord Chancellor.121 At the apex of the social security tri-
bunal system are the Social Security Commissioners who hear appeals on points of
law from appeal tribunals.122 There is a right of appeal (with leave) on points of law
from a Social Security Commissioner to the Court of Appeal,123 and from thence
to the House of Lords. Appeals to the courts are very rare indeed.
In 2004 there were some 174,000 appeals to social security tribunals, but this rep-
resents a tiny proportion of all claims for social security beneļ¬ts.124 Moreover, in the
quarter ending March 2005, of more than 41,000 tribunal hearings, only 2,310 con-
cerned claims for industrial disablement beneļ¬t. On the other hand, more than
10,000 concerned claims for incapacity beneļ¬t and more than 18,000 claims for dis-
ability living allowance. The power to revise decisions, which was mentioned above,
is designed to prevent cases entering the appeals system unnecessarily.
The social security decision-making process generally operates rather faster
than the tort system. Appeals are lodged with the DWP, and may take 10 weeks to
make their way to the Appeals Service.125 In 2004ā€“5 the average waiting time from
receipt of an appeal by the Appeals Service to hearing by an appeal tribunal was
about 10 weeks.126 Of course, if a case is appealed to the Social Security Com-


Administration Act 1992 (SSAA) as amended by the Social Security Act 1998. For a brief
overview of the 1998 Act see N. Wikeley, ā€˜Decision Making and Appeals under the Social
Security Act 1998ā€™ (1998) 5 J. of Social Security Law 104.
120 However, applying for a review is not a statutory precondition of exercising the right of appeal.
121 In the case of panel members who are medical practitioners, the Lord Chancellor must consult
the Chief Medical Oļ¬ƒcer before appointment.
122 Micklethwait, The National Insurance Commissioners; D. Bonner, ā€˜From Whence the Social
Security Commissioners?ā€™ (2002) 9 JSSL 11. The relative importance of the Commissioners in
cases of disability can be gauged by the fact that in 1999, 74% of all determinations by the
Commissioners concerned disability beneļ¬ts (mainly incapacity beneļ¬t). The average success
rate in such appeals was about 75%: D. Bonner, T. Buck and R. Sainsbury, ā€˜Researching the Role
and Work of the Social Security and Child Support Commissionersā€™ (2001) 8 J. of Social Security
Law 9, 20ā€“1.
123 The Court of Session in Scotland.
124 Work and Pensions Statistics 2005, Appeals 1.
125 Report of the President of Appeals Tribunals 2004ā€“5, 9.
126 Appeals Service Annual Report 2004/5, 8.
The social security system 353

missioners (or even further) it is bound to take longer. An appeal can be made only
with the leave of an appeal tribunal or a Commissioner. In 2004ā€“5 the average time
taken by the Commissioners to decide applications for leave to appeal was about 9
weeks; and the average time taken for an appeal to the Commissioners to be
resolved was around 20 weeks.127 The Commissioners may return a claim to an
appeal tribunal for re-hearing; in 2004ā€“5 the average waiting time for re-hearing
was about 8 weeks. In the extreme case, therefore, the waiting time from lodgment
of an appeal with the DWP to rehearing by an appeal tribunal could be 60 weeks
or more. Given that social security claimants may be in extreme ļ¬nancial need, such
waiting times may cause considerable hardship.
Social security tribunals diļ¬€er considerably from the ordinary courts.128 There
is an oral hearing only if the claimant requests one; otherwise, the appeal will be
decided on the basis of written submissions. For instance, in the quarter ending
March 2005 about 73% of appeals to appeal tribunals received an oral hearing.129
The success rate of claimants in appeals heard orally was much higher (52.2%) than
in cases decided on written submissions (22.5%).130 Overall, rather more than 40%
of appeals are decided in the claimantā€™s favour.
Procedure tends to be relatively informal and the person chairing the tribunal
tends to take a more active part in the proceedings than do judges in civil courts,
especially when the appellant attends the hearing unrepresented. Presenting oļ¬ƒcers,
who sometimes represent the DWP at tribunal hearings, do not see it as their role
(nor, indeed, is it their role) to argue the Departmentā€™s case in an adversarial way;131
they tend to play a passive or reactive role. Where the appellant is represented by
someone with experience of tribunal hearings, the proceedings tend to become
more formal and the tribunal less active. But a majority of appellants who attend
tribunal hearings are unrepresented, and by no means all representatives have rele-
vant experience or expertise. Furthermore, legal aid is not available for representa-
tion before social security tribunals. The oļ¬ƒcial view is that representation is not
necessary because tribunal members, by taking an active part in the proceedings, can
make up for the lack of representation. But most appellants, like most tort claimants,
have had little experience of dealing with the law, and empirical evidence has shown
that represented appellants are signiļ¬cantly more likely to be successful than unrep-
resented ones.132 It is widely accepted outside government circles that appellants
before social security tribunals should have access to experienced representatives.

127 The Oļ¬ƒce of the Social Security and Child Support Commissioners of Great Britain, Annual
Report 2004ā€“5, 13.
128 Baldwin, Wikeley and Young, Judging Social Security, ch. 4. Concerning plans to overhaul the
system of tribunals, including social security tribunals see ā€˜Editorialā€™ (2004) 11 JSSL 179.
129 Social Security Statistics 2005, The Appeals Service, table 3. The ļ¬gure for industrial injuries dis-
ablement beneļ¬t was 76.6% and for incapacity beneļ¬t 76.2%.
130 The corresponding ļ¬gures for industrial injuries disablement beneļ¬t were 41.5% and 21.3%
respectively; and for incapacity beneļ¬t 56.7% and 16.8% respectively.
131 Baldwin, Wikeley and Young, Judging Social Security, ch. 7.
132 H. Genn and Y. Genn, The Eļ¬€ectiveness of Representation at Tribunals (Lord Chancellorā€™s
Department, 1989); Baldwin, Wikeley and Young, ibid., 109ā€“14.
354 Chapter 13

An important consideration is that much of the law of social security (including the
law governing entitlement to industrial injury beneļ¬ts) is very complex and not
easily understood by many appellants; a signiļ¬cant number of appellants even have
diļ¬ƒculty in understanding the appeal documentation,133 let alone in presenting a
coherent and relevant case at the hearing.
Hearings before social security tribunals are typically quite short; indeed,
researchers found that only 36% of cases in which the appellant was not present
took more than 10 minutes, compared with 86% of cases in which the appellant
was present.134 The length of the hearing is also aļ¬€ected by the ability of the person
chairing the tribunal to control the ļ¬‚ow of the proceedings135 and the complexity
of the issues involved. Hearings at which the appellant is unrepresented are likely
to take longer than those at which a representative is present.136 Nevertheless, it is
undoubtedly true that hearings before tribunals are very much shorter than trials
in the ordinary courts. This is partly because witnesses are unlikely to be called at
such hearings, and because time is not spent in expounding the relevant law for the
beneļ¬t of the tribunal.
The decision of the tribunal is usually communicated to the parties immediately
it has been arrived at on the day of the hearing. If requested within one month, a
full statement of the decision with reasons and ļ¬ndings of fact will be sent to the
parties with notiļ¬cation of the right of appeal to a Commissioner. Leave to appeal
to a Commissioner must be sought within one month of the notiļ¬cation of the
decision of the appeal tribunal. If leave is granted, the respondent to the appeal is
informed and has a further month in which to make written submissions. Most
appeals are resolved without an oral hearing.137 In 2004ā€“5 the Commissioners
decided 2,219 appeals.
Oral proceedings before a Commissioner are more formal than before a tri-
bunal;138 but as in the case of appeal tribunals, it is basically for the Commissioner
to decide the procedure to be followed, subject only to the rules of natural justice.
Nothing like the Rules that regulate High Court and county court procedure
governs the procedure before a Commissioner.139 The Commissioners have power
to summon a person to attend as a witness to answer questions or produce docu-
ments. Strict rules of evidence do not apply, and the Commissioners have no power
to award costs.140
There are eighteen full-time Commissioners and a Chief Commissioner (all of
whom are qualiļ¬ed barristers or solicitors of at least 10 yearsā€™ standing), and in
cases of special diļ¬ƒculty they may sit as a tribunal of three. Legal representation by

133 Genn and Genn, The Eļ¬€ectiveness of Representation at Tribunals, 157ā€“8.
134 Baldwin, Wikeley and Young, Judging Social Security, 107.
135 Ibid., 114ā€“123.
136 Ibid., 109.
137 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 203.
138 See generally Micklethwait, The National Insurance Commissioners.
139 Contrast the CPR and the Social Security Commissioners (Procedure) Regulations 1999.
140 Wikeley, Ogus, Barendtā€™s The Law of Social Security, 203.
The social security system 355

the Department before a Commissioner or a tribunal of three Commissioners is
not uncommon; and a full reasoned judgment is typically given by the Com-
missioner(s). Some of the decisions of the Commissioners are reported by the
DWP.141

13.4.5 The tort system and the IIS compared
By way of summary, we can say that the IIS has a number of advantages as compared
with the tort system. First, the decision-making process under the IIS is generally
faster than that under the tort system, and it is designed to determine the legal enti-
tlement of the claimant to beneļ¬t, rather than to produce a compromise ļ¬gure
determined as much by the bargaining strengths of the parties as by their legal
entitlements and obligations. Secondly, all industrial injury beneļ¬ts, except the
initial lump sum for bereavement, are payable periodically. Thirdly, as under the tort
system, it is for the IIS claimant to prove entitlement to payment; but the claimant
is assisted in doing this by a regulation which imposes on the employer obligations
to investigate and to report to the DWP on the circumstances of industrial acci-
dents.142 The adverse eļ¬€ects of the passage of time on the proof of claims are also
mitigated by a provision which allows the question of whether an accident arose out
of and in the course of the claimantā€™s employment to be decided at an early stage of
the claim process.143 The procedure for determination of medical questions under
the IIS also seems more satisfactory than what happens in a tort claim where the
claimant will often shop around to ļ¬nd the doctor whose report will justify the
highest possible damages award. Fourthly, the IIS system solves some of the prob-
lems of the tort system caused by the need to speculate on the future. Provisional
assessments may be made which are open to review; disability assessments may be
increased even after a ļ¬nal assessment if there is any unforeseeable aggravation;
bereavement payments terminate when the recipient remarries or enters a new civil
partnership, and are suspended during cohabitation.
But in some respects, the tort system is superior. The commitment of the tort
system to full compensation and to earnings-related compensation makes it, in
principle at least, much more generous than the social security system, which aims
only to meet certain minimum needs. The tort system also deals with partial incap-
acity in a much more satisfactory way than the social security system. The disable-
ment tariļ¬€ under the IIS is unsatisfactory in a number of respects. The IIS embodies
a preference in favour of the industrially injured which is simply indefensible.


13.5 Non-work-related disablement
People injured at work, together with those injured on the road, are very much
more likely to obtain tort compensation than any other group of disabled people.
141 Ibid., 204ā€“5.
142 Social Security (Claims and Payments) Regulations 1979, reg. 25.
143 Social Security Act 1998, s. 29.
356 Chapter 13

Those injured at work are also better treated by the social security system than any
other group of disabled people in terms of the beneļ¬ts available. But those injured
at work represent only a small proportion of the disabled.144 Many more suļ¬€er sick-
ness and disability as a result of non-industrial accidents or of natural causes. With
the exception of road-accident victims, such people are unlikely to obtain anything
from the tort system; and unless they are covered by private insurance or an occu-
pational sickness scheme, the social security system will provide the main source of
ļ¬nancial support for those disabled people who ļ¬nd it diļ¬ƒcult or impossible to
obtain well-paid work. The most disadvantaged group of the disabled are those
who have never been able to work, because they are not eligible for contributory
beneļ¬ts and they will be unable to satisfy any contribution conditions attached to
particular beneļ¬ts.
As we have seen, short-term beneļ¬ts for those who suļ¬€er periods of incapacity
for work do not vary according to the cause of the incapacity. Long-term beneļ¬ts
under the IIS are more generous than those under the general social security
system: no disablement beneļ¬ts are payable to those whose disability is not work-
related. Victims of workplace injury receive these in addition to the incapacity
beneļ¬ts available to disabled generally. The provisions governing basic incapacity
pension and allowances are the same for all disabled workers, and there is a special
qualifying route for WTC for disabled workers on low earnings. But the care
beneļ¬ts available to those whose disability is work-related (constant attendance
allowance and exceptionally severe disablement allowance) are more generous than
the care component of disability living allowance, which is available to the disabled
generally. The mobility component of DLA is the same for both groups; and the
provisions for carerā€™s allowance apply to the disabled generally. Disabled people
who did not qualify for incapacity beneļ¬ts (because they have never been in paid
employment) used to be entitled to severe disablement allowance (SDA) (plus an
age-related supplement), but the basic rate of SDA was lower than that of incapac-
ity beneļ¬t. SDA was abolished (except for existing recipients) in 1999, and there is
now no non-contributory incapacity beneļ¬t for those incapacitated in later life.145
The only income-replacement beneļ¬t to which such people have access is income
support, a means-tested beneļ¬t of last resort. Since 1986, bereavement beneļ¬ts
have been the same regardless of the cause of death.


13.6 Preferences within state provision for the disabled
It can be seen, therefore, that the social security system embodies two important
preferences: a preference in favour of those disabled as the result of an accident at


144 Expenditure on the IIS is a small fraction of total social security expenditure on sickness and
disability.
145 Those incapacitated in youth may qualify for incapacity beneļ¬t despite not having satisļ¬ed the
contribution conditions.
The social security system 357

work or of a prescribed work-related disease;146 and a preference in favour of
disabled people who were in paid employment at the time they became disabled.
These preferences ignore the fact that people in diļ¬€erent groups but suļ¬€ering from
similar disabilities have similar needs for ļ¬nancial support. In the 1980s the
Conservative government espoused the idea that provision for the disabled should
depend on need, and so earnings-related additions to beneļ¬ts for the disabled were
phased out and means-testing was extended. This commitment to the need prin-
ciple could have been carried much further and used as a basis for undermining
these two preferences and for making even more beneļ¬ts subject to a means test.
There are yet other preferences in social provision for particular groups of the
disabled which have resulted from the creation by government of ad hoc com-
pensation schemes in response to political pressure exerted by interest groups.
The most notable of these is the Criminal Injuries Compensation Scheme. Others
include the vaccine damage payments scheme147 and a scheme for compensating
former slate-quarry workers suļ¬€ering from certain lung diseases.148 The Family
Fund (administered by the Joseph Rowntree Memorial Trust) provides ļ¬nancial
support for severely handicapped children under the age of 15;149 and
haemophiliacs who contracted the HIV virus as a result of being transfused with
infected blood products have beneļ¬ted from a special compensation scheme
(administered by the Macfarlane Trust).150 Such responses to lobbying on behalf
of particular groups of the disabled are hard to justify when viewed in terms of
need. It is always easy to make an impassioned emotional plea for special treat-
ment of one group for this or that reason; but all the disabled are entitled to equal
sympathy and equal support from the State, and ad hoc treatment of special


146 For an estimate of the ļ¬nancial value of this preference see Jones, ā€˜Social Security and Industrial
Injuryā€™ in Harris, Social Security Law in Context, 468ā€“9.
147 4.10.1.
148 The workers were entitled to industrial injury beneļ¬ts, but they could not sue their former
employers in tort because they had gone out of business before the symptoms of lung disease
became apparent. Their claim to special treatment was considered and rejected by the Pearson
Commission (Pearson Report, vol. 1, paras. 88ā€“92) on the ground that any decision in their favour
would have to be applied to anyone in a comparable position, which it thought unjustiļ¬able. But
the government of the day sought to obtain the support of the independent Welsh Nationalist
Members of Parliament in a vote of conļ¬dence by oļ¬€ering special treatment for the quarrymen.
In due course the pledge was redeemed by the passing of the Pneumoconiosis etc. (Workersā€™
Compensation) Act 1979 providing for lump-sum payments to the quarry workers. In 1974 the
government provided Ā£100 million to assist the National Coal Board to arrive at an agreement
with the trades unions for a special compensation scheme covering a number of miners suļ¬€ering
from pneumoconiosis: Pearson Report, vol. 1, paras. 788ā€“91; Coal Industry Act 1975.
149 The fund was set up as a response to the Thalidomide tragedy. Another incident arising out of
this tragedy is worth mentioning. When the terms of the settlement were negotiated between the
parents and the Distillers Company, the parents were apparently unaware that income from the
trust fund into which the money was put, when paid to the children, would be subject to income
tax. When the parents discovered this they appealed to the government, which decided to waive
the tax liability. Subsequently, it was found that this would produce too many anomalies, and the
government therefore made a once-for-all grant to the charity in lieu of waiving the childrenā€™s
tax liability.
150 4.10.2.
358 Chapter 13

groups can only lead to the abandonment of rationality in policy. Ad-hockery of
this sort beneļ¬ts only those disabled whose supporters are well organized and
have loud voices.
One laudable preference within the social security system is that beneļ¬ts for
long-term disablement are more generous than those for short-term disablement.
Entitlement to disablement beneļ¬t does not arise until 15 weeks of incapacity for
work has elapsed; the rates of long-term incapacity beneļ¬t are higher than the rate
of SSP and short-term incapacity beneļ¬t; and there is a 3-month waiting period for
DLA. By contrast, the principle of full compensation under the tort system does
not, in theory, distinguish between injured people in this way. However, in practice,
the tort system tends to treat the long-term disabled less well than those with short-
term injuries because if the amount claimed is small, the damages received are likely
to represent a greater proportion of the total loss suļ¬€ered than if the amount
claimed is large. This is partly a result of the fact that small claims are dispropor-
tionately expensive for insurers to contest; also, seriously injured claimants may be
under much more pressure than claimants with minor injuries to settle quickly for
an inadequate sum.151


13.7 Income-support beneļ¬ts
13.7.1 Beneļ¬ts
Income-support beneļ¬ts are designed to provide people with a minimum level of
income necessary for subsistence. They are, therefore, means-tested (or ā€˜income-
relatedā€™). The only means-tested beneļ¬t speciļ¬cally for the disabled is the variant
of WTC for low-paid disabled workers.152 The main income-support beneļ¬ts are
WTC and income support (IS). Broadly stated, WTC is paid to families which
contain a disabled or low-paid earner, while IS is paid to individuals and families
without an income from employment. Assistance with paying rent is also available
on an income-related basis, but this is administered by local authorities, not by
central government. IS was introduced as from 1988 to replace supplementary
beneļ¬t (SB). SB performed two functions: to provide a regular weekly income cal-
culated in the same way for all claimants, and to provide lump-sum payments to
meet the special needs of individual recipients of SB. This latter function is now
performed by the Social Fund (SF) which has two parts: the non-discretionary part
covers maternity, funeral, cold-weather and winter fuel payments; and the discre-
tionary part covers other special needs. Payments from the discretionary part can
be in the form either of a grant or a loan, but grants are made only to meet a few
speciļ¬ed needs. The discretionary part of the SF has an overall annual budget and
each social security oļ¬ƒce has an SF budget.

151 10.6.
152 Tax Credits Act 2002, s. 10 and Working Tax Credit (Entitlement and Maximum Rate)
Regulations 2002, reg. 4(1). This was formerly disability working allowance (DWA) and disabled
personā€™s tax credit (DPTC).
The social security system 359

The disabled receive preferential treatment in this part of the social security
system. First, additional amounts (called ā€˜premiumsā€™) are payable to disabled
recipients of IS.153 Disability premium, severe disability premium, enhanced
disability premium and disabled child premium are designed to cover extra
expenses incurred by disabled people. A premium is also payable to recipients of
IS who receive carerā€™s allowance. Secondly, in calculating the income of the
claimant for IS, the amount of income which is disregarded is greater in the case
of disabled than of non-disabled claimants (but disablement beneļ¬t is taken into
account). Thirdly, in calculating the income of claimants of both IS and WTC,
amounts received, inter alia, by way of DLA or from the Macfarlane Trust are dis-
regarded. Fourthly, in calculating the capital of claimants of both IS and WTC,
payments from the Macfarlane Trust or from any trust fund set up to compensate
for personal injury (but not from the CICS or by way of tort damages)154 are dis-
regarded.
In 2004 about 2.2 million people under 60 years of age were receiving IS; and 2.3
million people over 60 were receiving the equivalent beneļ¬t for older people. Of the
recipients of IS, 51% were disabled. In 2004, 1.5 million people were receiving inca-
pacity beneļ¬t, and about 342,000 were receiving disablement beneļ¬t. These ļ¬gures
show that disability is a major cause of poverty: the disabled are disproportionately
represented amongst recipients of income-related beneļ¬ts.155 The poorest group
amongst the disabled are those who become disabled during the course of their
adult working life but do not qualify for National Insurance beneļ¬ts because of
failure to satisfy the contribution conditions and who are, therefore, at best eligible
for IS.
Widespread reliance on income-related beneļ¬ts, which are funded out of
general taxation, has transformed the social security system since it was ļ¬rst estab-
lished from a predominantly insurance-based system to one which eļ¬€ects very
signiļ¬cant income redistribution.


153 Wikeley, Ogus and Barendtā€™s The Law of Social Security, 297ā€“302. In 1988 the government set
up a fund (the Independent Living Fund), outside the social security system, to provide
ļ¬nancial assistance for severely disabled people who wanted to live ā€˜in the communityā€™ rather
than in institutional care, to pay for personal or domestic care provided by a personal assistant
or care agency. It was initially designed to help people who would suļ¬€er a reduction of beneļ¬t
as a result of the changeover from SB to IS. The fund was wound up in December 1992 (at
which time about 18,000 people were receiving an average of Ā£105 per week from the fund),
but people who were being assisted are now helped by the ILF (Extension) Fund. A new (less
generous) Independent Living (1993) Fund was set up in April 1993 to deal with new cases. In
2003ā€“4 the Independent Living Funds paid out more than Ā£189 million in grants to more than
16,000 people, at an administrative cost of about 2.9% of total expenditure: Independent Living
Funds Annual Report 2003/4. Extension fund grants can be up to Ā£715 a week, and 1993 Fund
grants up to Ā£420 a week. In 2003ā€“4 the average award under both funds was less than Ā£250 a
week.
154 Even though IS is set oļ¬€ against tort damages under the Social Security Act (Recovery of
Beneļ¬ts) Act 1997; and against compensation under the CICS.
155 N. Wikeley, ā€˜Social Security and Disabilityā€™ in N. Harris et al., Social Security Law in Context
(Oxford, 2000), 389.
360 Chapter 13

13.7.2 Administration
We have already considered the system for administering the social security system
in some detail. This system covers all the beneļ¬ts for the non-industrially disabled
as well as IS beneļ¬ts, with the exception of the discretionary part of the SF. Claims
for discretionary SF payments are handled in accordance with the Social Fund
Manual which contains binding directions and non-binding guidance issued by the
Secretary of State. There is no appeal from a discretionary SF decision to an exter-
nal body but only the possibility of an internal review by an ā€˜appropriate oļ¬ƒcerā€™
(which is the term used in the Social Security Act 1998) and a further review by a
Social Fund Inspector. The extent of the Secretary of Stateā€™s control over discre-
tionary SF decisions, coupled with the lack of external review and the fact that the
SF is subject to a budget, have been the cause of much criticism.


13.8 Fraud and abuse
It may be worth concluding this chapter by discussing the eļ¬€ectiveness of tort law
and social security in guarding against fraudulent claims for compensation and
beneļ¬ts.156 Discussion about and attitudes to abuse of the social security system is
often aļ¬€ected by political opinions about the Welfare State. Despite continuing
concern about fraud and a constant stream of legislative and other measure to
tackle fraud,157 it seems that the level of fraudulent claims and fraud-induced over-
payment is relatively low. In 2000 the Department of Social Security (now the
DWP) estimated that across the social security system as a whole around Ā£4 billion
(or 4% of total expenditure) is lost each year through fraudulent claims and over-
payments. A DWP press release of 15 June 2004 had reduced this ļ¬gure to Ā£2
billion;158 but even so asserted that ā€˜people think itā€™s more important to stamp out
beneļ¬t fraud than litter, graļ¬ƒti or tax evasionā€™.159 An investigation in 2001 by
the DWP estimated that the amount of overpayment of incapacity beneļ¬t attrib-
utable to fraud was in the region of Ā£19 million, or less than 0.5% of expenditure

156 The converse problem is failure to claim beneļ¬ts to which a person is entitled. In relation to tort
compensation, claim rates were discussed in ch. 8. Low take-up of social security beneļ¬ts is
mainly associated with means-tested (income-related) beneļ¬ts. It is estimated that IS is claimed
by between 86% and 95% of those eligible (representing 91ā€“98% of the total entitlement in
money terms), and that the total unclaimed is between Ā£220 million and Ā£880 million: DWP,
Income Related Beneļ¬ts ā€“ Estimates of Take-up 2001/2002 (DWP, 2004). A report in 1993 said
that family credit (the predecessor but one of WTC) was claimed by only 64% of people entitled
to it: Policy Studies Institute, Families, Work and Beneļ¬ts (London). When DWA was introduced
in April 1992, the estimated take-up was 50,000, but by 1999 there were only about 18,000
current awards.
157 See e.g. G. McKeever, ā€˜Tackling Beneļ¬t Fraudā€™ (2003) 32 Industrial LJ 326.
158 By 2005 the estimate had fallen further to Ā£900 million: National Audit Oļ¬ƒce, Dealing with the
Complexity of the Beneļ¬ts System (2005), para. 17.
159 One report concluded that the general public see beneļ¬t fraud as much less serious than crimes
against the person or property, such as burglary, but more serious than prostitution or petty
shop-lifting, and much more serious than TV licence or fare evasion: K. Rowlingson et al., Social
Security Fraud: The Role of Penalties (DSS, Research Report No. 64, 1997).
The social security system 361

on incapacity beneļ¬t. In 2004 the DWP estimated the overpayment rate for DLA at
9.1%, but also that most of this was the result neither of fraud nor error but of
changes in the circumstances of recipients, which were not reported to the
Department.
In 1973, the Fisher Committee160 identiļ¬ed six principal types of abuse of social
security beneļ¬ts: failure to disclose earnings where means-tested beneļ¬ts are
claimed; misrepresentations relating to incapacity for work and the cause of such
incapacity;161 voluntary unemployment; cohabitation and ā€˜ļ¬ctitious desertionsā€™;
itinerant frauds; and failure to report changes in the maintenance of dependants
where dependantsā€™ allowances are being paid. Misrepresentations relating to cap-
acity for work are an ongoing problem.162 Medical certiļ¬cation by GPs plays a
central gate-keeping role in the process of determining entitlement to sickness and
incapacity beneļ¬ts. The doctorā€™s task may be problematic, especially in relation to
symptoms and conditions that are diļ¬ƒcult to measure objectively, such as back pain
or anxiety. Research has shown that doctors vary considerably in their attitudes to
and the way they perform the certiļ¬cation function. Factors other than the patientā€™s
medical condition ā€“ such as the relationship between doctor and patient, and the
patientā€™s domestic circumstances ā€“ may inļ¬‚uence the doctorā€™s decision whether or
not to provide a certiļ¬cate and for what period.163 Medical examinations for incap-
acity beneļ¬t are held at DWP oļ¬ƒces. Failure to attend for medical examination is
certainly not unknown, and the eļ¬€ort required to attend may inhibit at least some
baseless claims. On the other hand, there is reason to believe that some people ļ¬nd
the medical examinations, required for entitlement to care beneļ¬ts (in particular),
humiliating and intrusive; and for this reason they may not apply for the relevant
beneļ¬t, or having done so may not attend the medical examination.164
In addition to the sort of relatively small-scale fraud by individuals identiļ¬ed by
the Fisher Committee, there is also a certain amount of large-scale ā€˜organizedā€™ social
security fraud, involving the theft and counterfeiting of and traļ¬ƒcking in identity
documents and beneļ¬t books. This sort of fraud aļ¬€ects sectors such as jobseekerā€™s
allowance and housing beneļ¬t in particular, but appears not to be prevalent in the
disability area.
The Criminal Injuries Compensation Board once said that it identiļ¬ed only a
small number of fraudulent applications.165 So far as the tort system is concerned,
there is really no data on the question of abuse,166 though some generalizations can

160 The Abuse of Social Security Beneļ¬ts (Cmnd 5228, 1973) (Fisher Committee Report), para. 129.
161 So e.g. a person may fraudulently claim to have been injured at work in order to qualify for
beneļ¬ts available only to the industrially disabled.
162 Fisher Committee Report, paras. 185ā€“90.
163 J. Hiscock and J. Ritchie, The Role of GPs in Sickness Certiļ¬cation (DWP, 2001).
164 Berthoud, ā€˜Meeting the Cost of Disabilityā€™ in Dalley, Disability and Social Policy, 87ā€“8, 90, 92.
165 CICB Thirty-Third Report (Cm 3921, 1998), para. 8.1.
166 It was estimated that an undercover anti-fraud unit within the London Fire Service (which was
disbanded in 1990) had saved the Fire Service Ā£2.2 million in 3 years by uncovering ā€˜bogus and
inļ¬‚ated injury compensation claimsā€™: The Times, 22 October 1990. But many of these claims
may have been for sick pay.
362 Chapter 13

probably be safely made. The tort system shares with the social security system the
problem of assessing the validity of claims of unļ¬tness for work when the alleged
symptoms are not easily veriļ¬able. In most serious cases, the adversary procedures
of the tort system probably operate as a very eļ¬€ective control over fraud and abuse.
When every claim is scrutinized with a jaundiced eye by the insurer who is going
to pay the claim or by a court, it is reasonable to suppose that few serious cases of
abuse escape undetected. On the other hand, this is not true of minor claims. As we
have already seen, because of the disproportionate cost of contesting minor claims,
insurers often agree to pay without serious examination of the claimantā€™s case. On
the other hand, it is possible for anti-abuse measures to be too vigorous. Because of
the claimantā€™s need to prove fault on the part of the defendant in a tort case, some
fraudulent claims may be prevented; but a great many more perfectly genuine
claims fail too. Furthermore, the dynamics of the settlement process probably result
in a certain proportion of deserving claimants never receiving compensation. On
the other hand, there are some respects in which tort law may be liable to encour-
age the malingerer. In particular, the fact that loss of earnings can be recovered in
full in claims for damages is thought by many to be a serious disincentive to a
prompt return to work by a person who may think that he or she has a good claim.
This is one reason why social security systems normally do not provide full replace-
ment of lost earnings. The willingness of the tort system to compensate for mental
distress and pain and suļ¬€ering also lays it open to claims which may, at least, be
diļ¬ƒcult to verify.
Whatever the fact of the matter, recent research suggests a widespread belief that
fraudulent tort claims are more common than fraudulent social security claims.167

167 DCA, Eļ¬€ects of Advertising in Respect of Compensation Claims for Personal Injuries (March 2006),
para. 1.2.4.
14

Other forms of assistance




So far we have considered the main sources of what might loosely be called ā€˜com-
pensationā€™ for personal injury, and physical and mental disability; or, in other
words, monetary payments designed to give ļ¬nancial support to the injured and
sick on account of their disabilities. There are some other forms of assistance, not
in the form of money payments, which also deserve to be considered brieļ¬‚y.
To provide some context for the discussion, we can note a recent estimate that
there are 11 million disabled people1 aged 16 or over in Britain. Of these, 45%
(compared with 15% of non-disabled people) are over State pension age (SPA). The
majority of disabled people over SPA become disabled later in life. Amongst dis-
abled people under 45, around 20% were disabled from birth and another 20%
from childhood. Disabled people tend to be less qualiļ¬ed than non-disabled, and
are more likely to be in skilled or unskilled, as opposed to professional, jobs.
Overall, 44% of disabled people (as opposed to 79% of non-disabled people) are
economically active. About a quarter of disabled people surveyed said they could
work and expect to do so in the future. Only 13% of disabled working people have
special working arrangements because of their disability.2


14.1 The taxation system
The tax system as a whole is, of course, designed to raise revenue. But, by exempt-
ing some people from tax liability to which they would otherwise be liable, ļ¬nancial
assistance of a negative sort can be provided to victims of accidents, disease and dis-
ability. So far as social security beneļ¬ts are concerned, SSP and carerā€™s allowance
are taxable, as is incapacity beneļ¬t (except for the ļ¬rst 28 weeks). Industrial
1 According to the deļ¬nition of disability in the Disability Discrimination Act 1995.
2 I. Grewel et al., Disabled for Life? Attitudes Towards, and Experiences of Disability in Britain (DSS
Research Report No. 72, 2002). According to another survey, two-ļ¬fths of disabled adults aged
under 50 were in work, but fewer than a quarter aged between 50 and retiring age were in work:
E. Grundy et al., Disability in Great Britain: Results form the 1996/7 Disability Follow-Up to the
Family Resources Survey (DSS Research Report No. 94, 1999). It was also found that the percent-
age of disabled people permanently unable to work had increased greatly since 1985 consistently
with ā€˜a deterioration in the labour market prospects of disabled workers and with increasing avail-
ability and attractiveness of disability paymentsā€™; and that very few disabled people were engaged
in full-time education or training schemes: ibid., 78.


363
364 Chapter 14

disablement beneļ¬t is not taxed; nor, for instance, is income support, severe dis-
ablement allowance, disability living allowance or attendance allowance. The policy
of paying beneļ¬ts (other than income-related beneļ¬ts) free of tax is arguably unde-
sirable because it beneļ¬ts the better-oļ¬€ (who pay higher taxes) disproportionately.
So far as tort damages are concerned, lump-sum awards are not taxable, but income
from the investment of a lump sum is subject to tax unless it is derived from a struc-
tured settlement. The (non-) taxability of tort compensation is taken into account
in calculating the amount of the compensation.
The link between the tax and social security systems is being strengthened. In
2000, the collection of National Insurance contributions was transferred from the
Contributions Agency (a part of what is now the DWP) to the Inland Revenue (now
Her Majestyā€™s Customs and Revenue, HMCR); and in 1999, disability working
allowance was replaced by disabled persons tax credit (now working tax credit), and
family credit was replaced by working families tax credit (now working tax credit).
Both credits are administered by HMCR; although they are eļ¬€ectively social secur-
ity beneļ¬ts rather than tax concessions ā€“ i.e. they are payments by the State rather
than reliefs from liability to make payments to the State. These changes are part of
a larger ā€˜welfare to workā€™ policy designed to maximize the participation of the dis-
abled in the labour market.
There are a number of (true) tax reliefs for the disabled. For example, a regis-
tered blind person receives an allowance to set against taxable income, as does
a person who maintains a disabled relative.3 Disabled people are also eligible
for some relief from liability to pay tax in respect of a car provided by an employer
and in respect of travel expenses met by an employer. A disabled personā€™s vehicle
maintenance grant is not taxable.4 Tax concessions are hard to defend as part of
a rational system of compensating the disabled and sick. For one thing, they tend
to be available only to selected groups of the disabled. The blind are particularly
favoured. Secondly, income tax reliefs beneļ¬t only the better-oļ¬€ ā€“ they do not
help those whose earnings are too low to attract signiļ¬cant tax liability. Another
objection to tax concessions is that they make no allowance for the fact that other
compensation methods may exist. A person disabled in circumstances in which a
tort claim lies may get substantial compensation but will still be entitled to tax
concessions.
There are also a large number of other reliefs available to the disabled, such as
free dog licences (for the blind), public transport concessions, free medicines, free
dental and optical treatment, free milk for disabled children and so on.
Taxation, or rather the absence of it, is also indirectly relevant to compensation
for injuries in that the income of many charities deriving their funds from sub-
scriptions, donations and legacies is exempt from income tax. In one sense, this
form of tax relief makes little diļ¬€erence to the ultimate burden which falls on the

3 Income and Corporation Taxes Act 1988, ss. 265 and 263 respectively.
4 Income and Corporation Taxes Act 1988, s. 327.
Other forms of assistance 365

public, since if charities were taxed and were therefore able to do less themselves
to help the disabled, the sick and the injured, a correspondingly heavier burden
would fall on the taxpayer. Thus, what the taxpayer surrenders in the form of tax
reliefs may be saved in social welfare expenditure. But it does mean that rather more
is devoted to relief and assistance of a kind which might not be possible under the
Welfare State; and it also means that the large amount of voluntary work which is
done is not completely starved of funds. To the extent that tax reliefs encourage vol-
untary work which might otherwise not be forthcoming, the taxpayer gets a good
deal by granting these reliefs. But since some groups of the disabled attract more
charity than others, the question does arise whether it is equitable to enlarge this
diļ¬€erential by tax reliefs. On the one hand, it could be said that the diļ¬€erential
should be narrowed, and that if charities had to pay tax, the tax paid by the wealth-
ier charities could then be partly devoted to the relief of less popular charitable
causes. On the other hand, it might be argued that this would be essentially an
undemocratic procedure, since it would mean overriding the deliberate choice of
members of the public to favour, by their free donations and subscriptions, some
charities over others.


14.2 Social services
Britain has an elaborate system of social welfare services5 in connection with
employment, education, housing, health and so on. Most of these services are
provided by local authorities in pursuance of statutory powers and duties under
Part III of the National Assistance Act 1948, the Local Authority Social Services
Act 1970, the Chronically Sick and Disabled Persons Act 1970 and the Housing
(Homeless Persons) Act 1977. Few involve the payment of cash beneļ¬ts. In 2002ā€“3,
local authorities spent a total of Ā£15.2 billion on personal social services, of which
about 27% was spent on people with disabilities and mental health needs. It is
sometimes said that beneļ¬ts in kind are preferable to cash payments because they
cannot be wasted. On the other hand, such a belief might be thought to smack
of paternalism and class prejudice, and to deny freedom of choice to those in need
of welfare beneļ¬ts and services. Whether it is better to provide services for disabled
people or to give them money with which to purchase services (whether from
public or private providers) is partly a question of political ideology, but also partly
a question about how goals of assisting the disabled can be most eļ¬ƒciently
achieved. At all events, no comprehensive inquiry into provision for the disabled
can ignore social services because they perform some of the same functions as
monetary compensation.6
The social service which is, perhaps, of most obvious importance to the sick and
disabled is the National Health Service. Despite a growth in the private sector of

5 OPCS Disability Survey, Reports 4 and 6.
6 Beveridge Report, Appendix 13, para. 15.
366 Chapter 14

health care in recent years, it is only of marginal importance, especially to the
chronically sick or disabled, who still look predominantly to NHS general practi-
tioners and hospitals for medical services. The Harris 1984 Survey found that road
accident victims were more likely to require hospitalization than work accident
victims, while the latter are more likely to use outpatient and general practitioner
services; but accident victims are much less likely to use any of these services than
the ill.7 The NHS is also a major provider of residential care for disabled people.
But there are other social services of considerable importance to the disabled.

14.2.1 Employment
Compensation for lost income is obviously vital for many sick and disabled people.
But for those with long-term disabilities, cash beneļ¬ts for lost income may be very
much a second best. Both from a personal and an economic point of view, it is at
least as important to focus on what a person can do and to assist them to enter or
re-enter the ordinary workforce.8 If this is not possible, an alternative may lie in
providing the disabled with employment in special (ā€˜shelteredā€™) conditions, which
take account of their disabilities. These objectives may be met to some extent by
payments of money to disabled people, but facilities provided by the State or by
private charities can also play an important part. Provision was ļ¬rst made to assist
in the rehabilitation and employment of the disabled during the First World War,
and these services, which were increased during the Second World War, continue
as a component of social service provision.
Payment of social security beneļ¬ts on account of disability rests on a ā€˜medical
modelā€™ of disability in which people are seen as disadvantaged by their impair-
ment. In the late 1980s and the early 1990s the number of people receiving long-
term incapacity beneļ¬ts increased enormously. One oļ¬ƒcial reaction to this
development was to make such beneļ¬ts less attractive by tightening eligibility cri-
teria and reducing the amounts payable. The underlying assumption was that a
certain proportion of claimants were in some sense ā€˜choosingā€™ incapacity in prefer-
ence to economic activity in the workforce. Many people saw this assumption as
one of the darker aspects of a broad policy of ā€˜welfare to workā€™, which came to
prominence at this time. Another response, launched by the New Labour govern-
ment in late 1990s, was the so-called ā€˜New Deal for Disabled Peopleā€™ (NDDP). This
initiative can be understood in terms of a ā€˜social modelā€™ of disability in which the
problem to be overcome is societyā€™s failure to accommodate the disabled so that
they can function as full members of society.9 According to the oļ¬ƒcial website, the
New Deal for Disabled People is ā€˜a voluntary programme delivered through a
network of Job Brokers who have been chosen by Jobcentre Plus because of their

7 Harris 1984 Survey, 240ā€“3.
8 M. Floyd, ā€˜Overcoming barriers to employmentā€™ in G. Dalley ed., Disability and Social Policy
(London, 1991), ch. 11.
9 Social Security Advisory Committee, Social Security Provision for Disability: A Case for Change?
(TSO, 1997), 6.
Other forms of assistance 367

experience working with people with health conditions or disabilitiesā€™. The basic
aim of the NDDP is to assist disabled people to ļ¬nd jobs and to provide some
support once work is found. According to DWP ļ¬gures, as at March 2005, 174,390
people had taken part in the New Deal programme, and some 76,000 had found
jobs. A recent assessment of the NDDP concluded that: ā€˜Job Broker interventions
[have] clearly had a signiļ¬cant impact at the level of individual customers, partic-
ularly in terms of . . . conļ¬dence and access to post-recruitment support . . . Some
of the appointments would not have been made without the support of the Job
Broker.ā€™10
Besides NDDP, Jobcentre Plus runs various programmes to assist disabled
people into work. These include the provision of Disability Employment Advisers
and Access to Work Advisers; employment assessment interviews, work prepar-
ation courses and a job introduction scheme, which provides short-term ļ¬nancial
subsidies to employers who take on disabled workers. The background to all this
activity is the problematic relationship between disability and employability.
Successive governments have been keen to reduce the numbers of people claiming
long-term incapacity beneļ¬ts and to move them on to less attractive unemploy-
ment beneļ¬ts (jobseekerā€™s allowance) or income-related beneļ¬ts. Because incapac-
ity is partly a social as well as a medical concept, whether people are disabled
depends partly on how they are viewed by themselves and others. There is a cohort
of people, described in the literature as ā€˜moversā€™,11 who rotate around part-time or
full-time work, jobseekerā€™s allowance and incapacity beneļ¬ts even in the absence of
substantial change in their medical condition. The best question to ask in relation
to such people is not whether they qualify for incapacity beneļ¬ts at any particular
point of time, but rather how they can best be helped to maximize the quality of
their lives.
For many years there was a register of disabled persons12 maintained for
employment purposes under the Disabled Persons (Employment) Act 1944. How-
ever, because a high proportion of people who were entitled to register did not do
so,13 it was very diļ¬ƒcult to ascertain the rate of unemployment14 amongst disabled
people. Most estimates are that it is at least twice the rate of unemployment in the

10 J. Aston et al., Employers and the New Deal for Disabled People: Qualitative Research, Wave 2 (DWP
Research Report 231, 2005), 3.
11 A. Hedges and W. Sykes, Moving Between Sickness and Work (DWP Research Report 151, 2001);
K. Ashworth et al., Well Enough to Work? (DWP Research Report 145, 2001).`
12 The term ā€˜disabledā€™ was not precisely deļ¬ned in this context; to register, people had to show that
they had a substantial handicap (resulting from impairment) in obtaining or keeping employ-
ment which was likely to last at least 12 months.
13 The OPCS Disability Survey found that only 20% of men and 8% of women under pension age
were registered; this represents about 300,000 people. Department of Employment statistics for
1992 put the ļ¬gure near 370,000. The OPCS Disability Survey also found that registration rates
increased with severity of disability. A survey in 1971 found that only 16% of those registered
under the 1944 Act thought that being registered had helped them to ļ¬nd employment:
Handicapped and Impaired in Great Britain (HMSO, 1971), Part II, para. 8.5.
14 I.e. of those willing and able to work. There is still no evidence on the point: Social Security
Advisory Committee, Social Security Provision for Disability, 22.
368 Chapter 14

population as a whole. The 1944 Act imposed an obligation on an employer15 of
more than twenty people to recruit at least 3% of its labour force from persons on
the disabled personsā€™ register; but permits dispensing from the obligation to emp-
loy a disabled worker were readily available (although some employers did not
bother to obtain such permits even though this put them in breach of the scheme).
There were only ten prosecutions for failure to meet the quota during the time the
system operated. In 1981 the Manpower Services Commission estimated that dis-
abled people represented only 1.5% of the workforce,16 and it is thought that sub-
sequently, this ļ¬gure fell to below 1% in both the public and the private sector. In
1987 a report by the National Audit Oļ¬ƒce called the quota scheme ā€˜ineļ¬€ective,
unenforceable and incapable of achieving its aimā€™.17 The proportion of employers
meeting the quota dropped from 53% in 1965 to 27% in 1986.18
The register and the quota scheme were abolished by the Disability Discri-
mination Act 1995. Under the Act, a disabled person is one who ā€˜has a physical or
mental impairment which has a substantial and long-term adverse eļ¬€ect on his
ability to carry out normal day-to-day activitiesā€™ (s. 1(1)). The Act makes it unlaw-
ful to discriminate against disabled people in matters of recruitment and terms of
employment. Discrimination consists in treating a disabled person less favourably
than the able-bodied without justiļ¬cation, or failing (without justiļ¬cation) to
ā€˜make reasonable adjustmentsā€™ to arrangements or physical features of premises
which place a disabled person at a substantial disadvantage in comparison with
the able-bodied. Justiļ¬cation consists of a relevant and substantial reason for the
discrimination. Victims of discrimination can complain to an industrial tribunal,
which has power to award compensation for pecuniary and non-pecuniary
loss resulting from unlawful discrimination. The Act also makes it unlawful to
discriminate against the disabled in the provision of certain goods and services,
including (since 2002) education.
Potentially, at least, the Act considerably improved the lot of the disabled in the
labour market. However, it had several important shortcomings. First, like the
quota scheme before it, the Act did not apply to employers with fewer than twenty
employees.19 Secondly, it seemed that it would be easier to justify discrimination
against the disabled than it was to justify discrimination on grounds of race
under the Race Relations Act 1976 or on grounds of sex under the Sex Discrimina-


15 Except government departments, other government bodies and the NHS; but public sector
employers voluntarily accepted the quota target. See generally The Employment of People with
Disabilities (Employment Department Research Paper No. 77, 1990).
16 Review of the Quota System for the Employment of Disabled People (MSC, 1981), 6ā€“7.
17 Employment and Assistance to Disabled People (HC 367).
18 This was partly a result of the fact that compliance was assessed in terms of registered disabled
people, and the number of people registered in the 1980s was less than half what it was in 1956.
19 It was estimated that about 85% of employers fell into this category, but that in total they
employed only about 22% of the workforce: J. Bryant, ā€˜Disability Discrimination Act 1995 ā€“ An
Estimate of the Number of Employers and Employees Aļ¬€ectedā€™ [1997] JPIL 251. In 1998 the
exemption threshold was reduced from twenty to ļ¬fteen.
Other forms of assistance 369

tion Act 1975.20 Thirdly, whereas there is an enforcement agency to deal with sex dis-
crimination (the Equal Opportunities Commission) and race discrimination (the
Commission for Racial Equality), the 1995 Act did not establish such a body to
investigate allegations of systemic discrimination against the disabled or to assist
disabled people to bring discrimination claims. The last defect was remedied by
the establishment in 2000 of the Disability Rights Commission, which operates
along the same lines as the other anti-discrimination Commissions. As for the ļ¬rst
shortcoming, from 2004 the operation of the Act has been extended to cover all
employers.
The 1944 Act enabled the Minister to designate certain types of employment as
specially suitable for the disabled, and it was illegal for an employer to employ a non-
disabled person in such a capacity unless no disabled person was available. Only two
types of job were ever designated under the Act, namely lift attendant and car park
attendant. The power to reserve jobs for the disabled was abolished by the 1995 Act.
On the other hand, provisions of the 1944 Act under which assistance is available to
persons who are so severely handicapped that they could not ļ¬nd employment in
open competition in the labour market have been retained. The government makes
grants to local authority and private undertakings which provide employment in
sheltered factories and workshops. By far the largest provider of sheltered employ-
ment is Remploy Ltd, which is a non-proļ¬t-making, publicly owned company
employing some 5,700 disabled people in eighty-three business locations. In 2004,
it helped 3,500 disabled people ļ¬nd jobs with other employers. It also supports
about 2,800 people through the WORKSTEP programme (of which it is the largest
provider), which is designed to make it easier for more seriously disabled people to
get mainstream employment by providing support and advice to both the employer
and the employee. Remploy is funded partly by its commercial activities and partly
by a government grant (Ā£111 million in 2005ā€“6). Workers in sheltered employment
are paid at union-agreed rates of about 70% of the rate in the open market, reļ¬‚ec-
ting the lower productivity of disabled people.
The importance of these employment opportunities for disabled people must
not be exaggerated. Although estimates vary, on its website Remploy says that 2.5
million disabled people are ā€˜out of workā€™. The proportion of disabled people with
no work qualiļ¬cations is signiļ¬cantly higher than the proportion of unqualiļ¬ed
but non-disabled people. Disabled people are twice as likely to be unemployed as
non-disabled people. It remains to be seen whether the Disability Discrimination
Act 1995 will change this situation signiļ¬cantly.

14.2.2 Mobility
Besides mobility-related social security beneļ¬ts, there is an independent non-proļ¬t
organisation, called Motability, which provides subsidised hiring and hire-purchase

20 On this point see K. Monaghan, Blackstoneā€™s Guide to the Disability Discrimination Act (Oxford,
2005), 21ā€“4.
370 Chapter 14

facilities on cars, scooters and electric wheelchairs to disabled people in receipt of
mobility allowance. Lack of mobility is a problem that cannot be entirely overcome
by aid to the disabled themselves. Buildings and public transport need to be
designed so as to facilitate movement and access by the disabled. Public expenditure
to improve mobility for disabled people generally is surely a higher priority than, for
example, disablement beneļ¬ts for the industrially injured.
Important progress was made in this respect by the Disability Discrimination
Act 1995. Failure to provide suitable access to premises for disabled people can
amount to unlawful discrimination under the Act, of which complaint can be
made to an Industrial Tribunal (in employment cases) or to a county court (in non-
employment cases). Part V of the Act gave the Secretary of State power to make reg-
ulations prescribing minimum access requirements for taxis, public service vehicles
and rail vehicles. Failure to comply with such regulations constitutes a criminal
oļ¬€ence but (unlike unlawful discrimination in employment or the provision of
goods and services) is not actionable at the suit of individuals. The Disability
Discrimination Act 2005 contains new measures relevant to mobility. The 1995 Act
did not apply to transport services. This exemption has been narrowed so that it
now applies only to transport vehicles themselves; and there are new provisions
dealing with accessibility of rail vehicles.

14.2.3 Housing and residential accommodation
The provisions of the Disability Discrimination Act 1995 dealing with the provi-
sion of goods and services will apply in certain cases to housing and residential
accommodation. Local authorities have power under the National Assistance Act
1948 to make grants to disabled persons to cover the cost of conversions or adap-
tations to a house, necessitated by the disability; and s. 2 of the Chronically Sick
and Disabled Persons Act 1970 requires them to make such grants where they
are satisļ¬ed that they are necessary. A survey conducted in the late 1960s found
that half of those severely disabled had beneļ¬ted from this facility, but that there
was still scope for a ā€˜massive expansion of activity hereā€™.21 The OPCS Disability
Survey found that 24% of all disabled adults had a home adaptation of some sort;
that 41% of these people had paid for the adaptations entirely out of their own
resources and that 41% had had them provided by the health or social services, a
housing department or a voluntary organization. It also found that 35% of those
with locomotor disabilities and 42% of those with personal care disabilities
thought they might be helped by an adaptation they did not have.22 Another survey
in the early 1970s found evidence that about half of severely handicapped people
needed to be re-housed because of inaccessibility of toilets or because they were
unable to get upstairs and had to sleep in their sitting-rooms.23


21 P. Townsend, The Disabled in Society (London, 1967), 10.
22 Report 4, Martin, White and Meltzer, Disabled Adults, 59.
23 Handicapped and Impaired in Great Britain (HMSO, 1971), Part II, table 117.
Other forms of assistance 371

Local authorities also have a duty to provide residential accommodation
for persons who by reason of age or inļ¬rmity or other circumstances are in need
of care and attention not otherwise available, as well as urgently needed temporary
accommodation arising from unforeseeable circumstances.24 The provision of
such accommodation accounts for one-third of the total expenditure of local
authorities on personal social services, and half of the expenditure on residential
care is for elderly people.25 The OPCS Disability Survey found that of all disabled
residents of communal establishments, 80% were aged 65 or over, and 67% were
aged 75 or over. In 1986 there were over 14,700 younger disabled persons being
looked after in such institutions.26 About 12% of residential accommodation is
run by voluntary organizations with the assistance of grants from local authorities;
and about 22% of such accommodation (much of it for the old) is provided by the
private commercial sector. The rest is run by local authorities and the NHS.
During the 1980s the Conservative government adopted a policy of encourag-
ing people to leave institutions and to live in the community,27 and of shifting
expenditure from the provision of residential care to helping people to live outside
institutions. One manifestation of this policy is the availability from the Social
Fund of community care grants.28

14.2.4 Other social services
There are many other social services which lie on the extreme fringe of the subject
matter of this book, and which it is impossible to discuss fully here. Some mention
should be made of the more important of these because their very existence is a
continual reminder of the need to strike a balance between cash beneļ¬ts and ser-
vices. For example, home-helps are provided by local authorities (often at a charge)
mostly for the beneļ¬t of the elderly and the chronically sick, but also for the dis-
abled and handicapped.29 Day-centres (mostly run by local authorities) provide
some social, recreational and also health and educational facilities for the old and
the disabled.30 Some also provide employment services.31 Teachers visit blind

24 National Assistance Act 1948, ss. 21ā€“8, as amended by Health Services and Public Health Act 1968
and National Health Service and Community Care Act 1990 Part III. See H. Qureshi, ā€˜Social Care
Services for Disabled Peopleā€™ in Dalley, Disability and Social Policy, 125ā€“37.
25 Qureshi, ā€˜Social Care Services for Disabled Peopleā€™, 122.
26 Ibid., 131ā€“2.
27 The meaning of the term ā€˜live in the communityā€™ is complex: Ibid., 133.
28 Wikely, Ogus and Barendtā€™s The Law of Social Security, 608ā€“13.
29 The 1989 OPCS disability survey found that 30% of people over 75 and 8% of people aged 16ā€“49
who were in the two categories of most severe disablement received the services of a home-help.
But most home care for disabled people is provided by family, friends or neighbours: Department
of Health White Paper on Community Care Caring for People (1989), para. 2.3. See generally
S. Baldwin and G. Parker, ā€˜Support for Informal Carers ā€“ the Role of Social Securityā€™ in Dalley,
Disability and Social Policy, ch. 8.
30 In 1989 there were 8,471 day-centre places for younger disabled people (16.6% fewer than in
1979) but more than 24,000 for old people and more than 54,000 for the mentally handicapped:
Qureshi in Dalley, Dsiability and Social Services Policy, 137ā€“40.
31 S. Beyer et al., Working Lives: The Role of Day Centres in Supporting People with Learning
Disabilities into Employment (DWP Research Report 203, 2004).
372 Chapter 14

people in their homes and teach them to read Braille. There are provisions for a
home-laundry service in some areas,32 and for the ā€˜meals on wheelsā€™ services, pri-
marily for the old but also for the disabled. There are special schools for the phys-
ically and mentally disabled, although current thinking favours integrating such
children into normal schools.33 All of these personal social services are important
in improving the quality of life of the disabled.34
Not-for-proļ¬t organizations play an important part in providing, or supple-
menting public provision of, personal social services to the disabled. For example,
special holiday houses for the disabled are almost all provided by voluntary agen-
cies. In recent years, the role of voluntary organizations has become more and more
important as a result of government pressure on local authorities to reduce spend-
ing, and also because of an ideological belief in encouraging the voluntary sector,
and that social welfare provision should be a matter for partnership between the
public and private sectors.35 There are statutory provisions under which grants can
be made by local authorities and health authorities to voluntary agencies for the
provision of relevant services. Local authorities can also make cash payments
directly to disabled people in need of services, leaving the person to procure and
pay for the services. Research suggests that this is cost-eļ¬€ective and popular with
the disabled. But in the view of the Social Security Advisory Committee, it is
unclear how widely such arrangements could be fairly and eļ¬€ectively applied to the
disabled.36


14.3 Conclusion
The most important point to emerge from this very brief consideration of social
services available to the disabled (amongst others) is that cash compensation and
beneļ¬ts are not the only way of helping the disabled to cope with their disabilities
and live decent and fulļ¬lling lives. The provision of facilities for rehabilitation
and for enabling disabled people to engage in remunerative work is of very great
importance, especially for those with long-term disabilities; and such facilities are
unlikely to be provided by the private sector, at least without public encouragement


32 The Harris 1984 Survey found that ā€˜for every local authority and community health service used,
illness victims as a group made nearly three times as much use of these services as did accident
victimsā€™: 243ā€“4.
33 86% of disabled children attend mainstream schools, mostly without special provision for dis-
abled students. A recent survey found that the majority of these has positive educational experi-
ences. Non-disabled people are twice as likely as disabled people to engage in higher education:
Grewel et al., Disabled for Life?.
34 See Handicapped and Impaired in Great Britain (HMSO, 1971), Part I, tables 38, 39 and 40.
35 See generally M. Brenton, The Voluntary Sector in the British Social Services (London, 1985); also
D. Morris, ā€˜Charities in the Contract Culture: Survival of the Largest?ā€™ (2000) 20 LS 409. One
source of funding for such bodies is the National Lottery. For instance, more than Ā£2 million was
awarded by the Millennium Commission in 1998 for projects to help disabled people. The
National Lottery Charities Board also makes grants to voluntary organizations for the disabled.
36 SSAC, Social Security Provision for Disability, 29ā€“30.
Other forms of assistance 373

and ļ¬nancial support. But monetary compensation is the only help which the tort
system provides. It should not be assumed that compensating injured people for all
their losses and providing individuals with enough money to meet all the needs
arising from their injuries is socially the best course of action. It may be that some
needs are better met and some losses (such as non-pecuniary losses) better dealt
with by the provision of services to which all disabled people, whatever the cause
of their disabilities, have access.
Finally, it should not be forgotten that one of the most important sources of
assistance for all disabled people are family, friends and neighbours.37 Some of
these may receive carerā€™s allowance, but many receive no payment at all.38


37 According to Grundy, Disability in Great Britain,ā€˜nearly two-ļ¬fths of people needing some regular
care relied on their partners for at least one task (one sixth of all with disability) and a similar per-
centage relied on informal care within the householdā€™: 112.
38 Harris 1984 Survey, 244ā€“8; How Much is Enough?, 160.
Part 5

The overall picture
15

A plethora of systems




15.1 The concept of over-compensation
The question we must now ask is how the various systems for providing compen-
sation and monetary beneļ¬ts to disabled people ļ¬t together. Where a person is
entitled to payments from two diļ¬€erent sources (or ā€˜compensation systemsā€™),1 three
principal alternatives present themselves. First, the person may be allowed to
receive and keep money from both systems so that in the result they receive more
than either system alone allows. This is sometimes called ā€˜cumulationā€™.2 Secondly,
the person may be allowed to receive compensation from one source only, and in
this case it will be necessary to decide which that source will be. Thirdly, the person
may be entitled to receive a particular amount (perhaps the larger of the two
amounts on oļ¬€er) partly from one source and partly from the other.
Where a person receives money payments from more than one source, they may

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