Binary arithmetic

News that the global Covid19 lockdown has led to two pandas in Hong Kong Zoo mating for the first time in ten years seems as good a reason as any for me to blog, for the first time, about sex. Or, more accurately, about sex and gender.

The ongoing and often toxic debate around sex and gender can feel intimidatingly complex and difficult to understand. So complex, indeed, that it is easy to conclude you need a PhD in human biology or Queer Theory, or both, to venture even just a mild opinion on the matter. And, when I say toxic, I mean toxic. Which is partly why I’ve not blogged about the issue before now. As Helen Lewis wrote in the New Statesman in 2018:

Most people have taken one look at the current debate over gender and decided to read [or write] about something less inflammatory, like the Israel-Palestine conflict.

But having read and thought about it (quite) a bit more, I’m not sure it is that complex, really. And I suspect the impression that it is complex serves the interests of the intellectually incurious people who think they can win a debate on the subject by shouting “clownfish”, “bimodal distribution”, or simply “there is no debate”.

Yet there is a debate to be had. Boris Johnson and his Cabinet of Fools are in power, and those undemocratically chanting “No Debate!” may come to find themselves on the wrong side of that argument. On the contrary, we desperately need to have a debate, as that is the only way we will identify and implement equitable and sustainable public policy solutions to the challenges faced by people who identify as trans. And those challenges are real.

At the same time, the sex-based oppression, violence and discrimination experienced by women is just as real (*understatement klaxon!*). Modern societies have made considerable progress in addressing this long-standing and acute inequality in the life experience of women and men, but there is still a very, very long way to go. So any debate about sex and gender – including how to address the challenges faced by trans people – needs to respect and be informed by this context. In particular, it needs to respect women’s hard-fought rights to single sex spaces. If the ever-growing number of trans identities are ‘valid’, then so are decades (if not centuries) of rape, domestic violence and murder statistics.

I’m not usually regarded as much of an optimist, but on this I do think it should be well within our capacity to navigate the potential tensions, and find equitable and sustainable policy solutions (which means they have to be accepted if not supported by a majority of the general population). If we can put a (cis)man on the moon, etc etc. I just think we need to be clear and honest about some basic facts of life.

Of course, it doesn’t actually matter what I think. I have no particular expertise on these matters (probably the main reason why I have not blogged about them before). And I have even less influence. I certainly don’t have anything ‘new’ to say that would add to what’s already been said by others. But as the barrister Allison Bailey noted recently, in the wake of trans activists slandering the world’s favourite author, JK Rowling, by publicly suggesting she is a sexual predator and child abuser:

For those of you on the sidelines, your silence will not protect you (but it will shame you). Speak up & stand with us.

So what follows is simply what I think are the basic, science-based facts that should be the starting point of the debate that we so clearly need to have. As I see it, we can agree on these facts, and then start to look for sustainable policy solutions to the evident conflict between the rights of women, and the rights of transwomen (men don’t appear to be too troubled one way or the other by the activities or rights of transmen). Or we can deny these facts, and continue to go nowhere fast (just ever more toxically).

Fact 1: Human biological sex is real, and matters. And, while biologically complex, it is binary: it is not a spectrum, and there are only two human sexesnot six (or ten). In the words of the blogger Andrew R (@excelpope): “obviously there is a huge amount of biological complexity here, which makes it easy to obfuscate the issue, but fundamentally, if you want a baby you need one person from each sex. You can talk about gametes, chromosomes and DNA until the cows come home, but if you start with two people from the same sex you will still never get a baby.”

OK, you’re not interested in making a baby, especially with me. (That’s fine, by the way – I’ve already fathered two more babies than I originally intended). But, were it not for biological sex, none of us would be here to have this debate.

So, sex is not “an ideological concept designed to exclude trans people from spaces”, and is generally observed and recorded, not assigned, at birth. If you disagree with this, then presumably you can explain how the sex of baby elephants is assigned when there are no elephant doctors to do the assigning. And, if you insist that we are very different to elephants – yet somehow similar to clownfish or that lone Komodo dragon in Chester Zoo – then try chimpanzees, with whom we share 98.8% of our DNA. There are no chimp doctors, either.

Not unrelated to the baby-making thing, sex is the basis for a great deal of oppression, violence and discrimination. Male humans (boys and men) tend to expect to be able to do and get whatever they want, even if that means disadvantage or even violence to female humans (girls and women). It’s the patriarchy, stupid. Or, as someone else has said, “empirically, penises have done bad”.

Yeah, I know, #NotAllPenises.

Fact 2: The existence of (very rare) Differences of Sex Development (DSDs) – some diagnosed at birth (about 0.02% of newborns are diagnosed with a DSD), but others only in later life – and of intersex people is entirely consistent with sex being binary. It is not evidence of sex being a spectrum. As the developmental biologist Dr Emma Hilton says,“DSDs are variations of anatomy, not variations of sex”. And no, intersex people are not as common as people with red hair, whatever Amnesty International says.

Fact 3: Along with other mammals, humans cannot change their sex. They can change the appearance of their sex, through surgery and/or the taking of hormones. However, most of those who identify as transwomen are, and evidently intend to stay, male-bodied. Indeed, not a few seem inordinately proud of their ‘girl dick’. But putting some glitter in your beard as you trawl the internet for PIV sex (look it up) does not make you a lesbian. Not to beat about the bush (no pun intended), but only a man could genuinely think it does.

(That ‘genuinely’ is important, btw, as it is clear there is an awful lot of groupthink going on in this debate – TWAW, and Line 3 is definitely the same length as the line on the left, even though everyone can see it is shorter.)

Whatever, a modern, liberal society should accept and make appropriate legal provision for those who do change the appearance of their sex, as well as for those who simply believe that they have changed their sex by putting on lipstick, just as it should for those who are gay, lesbian, disabled, or female, and those who believe that there is an invisible, bearded guy living in the sky who created Earth in seven days. But the fact that some simpler species such as clownfish can change sex (in one direction only, as it happens), and that (female) Komodo dragons can produce offspring by parthenogenesis, adds absolutely nothing to this debate.

Fact 4: Despite the words often being used interchangeably, gender is not the same as sex. As to what gender is, there are any number of theories, but one is that it is a combination of (a) our own innate perception of being male or female (our ‘gender identity’), and (b) societal expectations of how we should look and behave, based on our sex (our ‘gender role’, or just ‘gender’). However, there is no scientific consensus that (a) even exists, outside the imagination of gender ideologists (who seem to me to be making it up as they go along). And (b) is simply a social construct, which therefore varies from region to region, and changes over time.

Or maybe gender is something else. As Andrew R (@excelpope) has suggested – possibly in jest – maybe gender was invented by bureaucrats in the 1960s to stop men answering “Yes please!” to the sex question on forms. But whatever gender is, it is not the same as sex, and sex is what matters. Women have been systematically discriminated against, raped and murdered by men for thousands of years because of their sex, not because of any ‘innate sense of their gender identity’ that they may or may not have. Put simply, if sex doesn’t matter, then nor do sexism and misogyny.

Of course, gender roles are problematic, as historically much if not all of the ‘social construct’ was constructed (mostly by men) to reinforce the sex-based roles of men and women (and of boys and girls), and so sustain the patriarchy. Modern societies have made much progress in breaking down the most harmful aspects of these gender stereotypes (and especially their coercive imposition), but they persist and indeed remain attractive, to a greater or lesser degree, to a great many people. And, generally speaking, that’s OK, even if it sometimes feels to me as if we’ve still not escaped the sad sexism and malevolent misogyny of the 1970s (when I had the misfortune to grow up).

Similarly, it’s OK, if you have a beard and a penis, to believe that you are woman, and that you are single-handedly broadening the bandwidth of ‘woman’ to include people with a beard and a penis who like to tinker with car engines. You just can’t expect anyone outside your narcissistic cult to share your belief, let alone expect the law to compel them to do so. In any case, maybe your energy would be better spent trying to broaden the definition of ‘man’ to include people with a beard and a penis who like to wear skirts, lipstick and a lot of bangles. That would seem to me to be a less scientifically-challenged endeavour.

Fact 5: Transwomen are not women, and transmen are not men. They cannot be, because humans cannot change sex (see Fact 3). They are transwomen, and transmen (even if they have had surgery and/or taken hormones to change the appearance of their sex). And there’s absolutely nothing ‘wrong’ with being a transwoman or transman.

Which means a modern, liberal society should accept and make appropriate legal and other provision for the specific needs of transwomen and transmen, to ensure they can live their lives free from discrimination and abuse. As already noted, we accept and make appropriate legal and other provision for people who believe that some invisible guy who lives in the sky created the Earth in seven days, and will stop us getting cancer as long as we go to church and sing a few songs every Sunday. So, we can do the same for men who believe that they are a woman, and vice versa.

To take a mundane but important example, in workplaces and other public spaces, transwomen and transmen should not have to use communal, single sex toilet, shower or changing facilities in which they might feel uncomfortable or unsafe. But that does not mean all such communal single sex facilities should be redesignated as gender-neutral. It simply means there should always be adequate provision of gender-neutral (or single user) facilities, in addition to single sex communal facilities for women and men.

Many businesses and organisations have ticked the ‘Stonewall Law’ box simply by spending £15 on changing the signs on the doors of their single sex facilities. But – doh! – women and girls can’t use urinals. And why should women and girls have to use communal, gender-neutral facilities in which they might feel uncomfortable or unsafe? Why should the feelings of a numerically tiny group of mostly male-bodied and male-socialised people trump those of 51% of the population? As lawyer Naomi Cunningham says on the Legal Feminist blog:

What some male commentators on this subject fail to grasp is what a rigorous training in fear women receive from an early age. We are taught that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm.

We are systematically trained in fear.

And then we are told that we must lay aside the fears we have obediently learned at a moment’s notice if a person with a male body asserts a female identity. Well, fear doesn’t work like that.

Sure, it will cost businesses and organisations more than £15 to ensure adequate provision of gender-neutral or single user facilities, alongside communal single sex facilities, to provide for the needs of the less than 1% of the population that identifies as trans. But doing the right thing is rarely the cheapest option.

Similarly, male-bodied transwomen should not be incarcerated alongside female prisoners, and transwomen should not be playing in women’s sport: it’s potentially dangerous to their female opponents, in contact sports such as rugby, but more importantly it’s unfair to the women left out of the teams/crews or denied a place on the medal rostrum.

There’s a simple reason why you hear about transwomen playing in women’s rugby teams, for example, but never about transmen playing in men’s rugby teams. It’s the very reason we have ‘women’s sport’. As sports scientist Ross Tucker explains, if we didn’t, “the champion in every single event would be male. In fact, the top 3,000 (at least) would be. That’s not how it’s meant to be.”

Oh, and men do not get pregnant – if they did, the world would look very different, and we almost certainly wouldn’t be having this debate. Some transmen get pregnant, but only if (and because) they have retained the necessary (i.e. female) reproductive organs.

Finally, if you believe that TWAW because ‘some people are born in the wrong body’, you should maybe read this 20-year-old article. A long and disturbing read, it describes the phenomenon of people who hack off their own (perfectly healthy) limbs – or persuade a surgeon to do so somewhat less violently – because “I have always felt I should be an amputee” or “I have a desire to be myself, as I ‘know’ or ‘feel’ myself to be.” This once extremely rare ‘identity disorder’, apotemnophilia, has become vastly more common since – you guessed it – the invention of the internet, where hundreds of apotemnophiles have now formed online communities, in which they share images of amputees (including amputee porn), affirm each other’s beliefs and desires, and discuss how best to procure a surgical amputation. Some apotemnophiles trace the onset of their absolute belief that they should have fewer than the four limbs they were born with back to when they were a young child. Sound familiar?

Fact 6: Er … there is no Fact 6. To my mind, five simple, science-based facts are all you need to start working on solutions. It’s not actually necessary to delve into “the cis privilege of white, middle-class feminists” (to quote one white, middle-class and ostensibly feminist former colleague of mine with whom I strongly disagreed on this issue), acquire a detailed knowledge of 17-beta-hydroxysteroid dehydrogenase deficiency, or speculate about the prevalence of autogynephilia and ‘Pornhub culture’ among transwomen. Except that, as journalist Jo Bartosch was one of the first to point out, the latter might actually be highly relevant – even central – to what’s going on:

In this era of apparent sexual freedom, the suggestion that sexual arousal might be the reason behind the rising numbers of people ‘coming out’ as transgender is still strictly verboten. Perhaps I’m a cynic, but to my mind kink is a more convincing explanation than the trapped female ‘souls’ that Layla Moran MP claims to be able to see.

But acknowledging the possible sexual driver for many of those who transition is directly at odds with the mainstream media narrative. Transgender women are almost always portrayed as victims, with late-transitioning white computer programmers in the Home Counties weaponising the deaths of Brazilian transsexuals to bolster their standing in the oppression stakes. This insistence of vulnerability plays into a sexist stereotype of femininity, and in my opinion is part of the fetish.

A case in point: self-styled ‘defender of extreme pornography’ and transgender activist Jane Fae has claimed that trans women are at risk from the likes of the allegedly ‘transphobic’ veteran broadcaster Jenni Murray. This is ludicrous. It is, after all, men who most often kill trans women.

Whatever, there’s certainly no need to start calling women ‘womxn’ or ‘menstruators’. As the Australian academic Petra Bueskens wrote in the wake of the furore over JK Rowling daring to suggest that transwomen are not women and that ‘woman’ is “not a pink brain, a liking for Jimmy Choos or any of the other sexist ideas now somehow touted as progressive”:

When Daniel Radcliffe repeats the nonsensical chant trans women are women, he’s not developing an argument, he’s reciting a mantra. Trans women are women is not an engaged reply. It is a mere arrangement of words, which presupposes a faith that cannot be questioned. To question it, we are told, causes harm—an assertion that transforms discussion into a thought crime. If questioning this orthodoxy is tantamount to abuse, then feminists and other dissenters have been gaslit out of the discussion before they can even enter it.

This is especially pernicious because feminists in the West have been fighting patriarchy for several hundred years, and we do not intend our cause to be derailed at the eleventh hour by an infinitesimal number of natal males, who have decided that they are women. Now, we are told, trans women are women, but natal females are menstruators. I can’t imagine what the suffragists would have made of this patently absurd turn of events.

If we are prepared to spend (quite a bit) more than £15.00, we can change society’s infrastructure (and laws) to meet the needs of the relatively small number of trans people, just as we have made some progress in doing so for, say, the much larger number of disabled people. When I was a kid, accessible facilities for people with a disability were practically unheard of, as were (gender-neutral) baby-changing facilities. Now, they are commonplace.

And before you shout “But disabled people are still discriminated against!”, I know they are (not least because my son is disabled). As are black and ethnic minority people, and women. So maybe Fact 6 is that, whatever changes we make to society’s infrastructure and laws, trans people will, sadly, continue to face a degree of discrimination and unfair treatment. Maybe eventually we’ll get to nirvana, but we’re not there yet.

This means that some trans people will have to assert their rights by, for example, bringing employment tribunal claims, just as all too many disabled and BAME people have to assert their rights at work by bringing employment tribunal claims for disability and race discrimination, and very large numbers of women have to assert theirs by bringing claims for sex or pregnancy/maternity discrimination, or unequal pay. Unfortunately, there is no magic, pink and powder blue-striped policy wand that government ministers can wave to make life trouble-free for everyone. For many people, life will sometimes involve serious struggles.

In my experience, women tend to understand this unfortunate ‘fact of life’, even if many activist transwomen (and their equally vocal male ‘allies’) appear not to. I refer you to Facts 1 and 3, above.

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ET claims: no sign of the end of garbage press reports

Previously on this blog, I have noted that this year sees the 50th anniversary of the passing of the Equal Pay Act 1970. And I suppose it was only to be expected that one or more law firms would use such a milestone to try and drum up some business, by getting their name in the paper as experts in defending employers against equal pay claims.

So, step forward the global behemoth DLA Piper, whose public relations people secured a nice little piece in Monday’s Guardian. Under the headline “29,000 claims a year despite 50 years since Equal Pay Act”, this reveals that:

A consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles, according to research [sic] released to mark the 50th anniversary of the Equal Pay Act.

The act, which established the legal principle that workers should receive equal pay for equal work [as equal pay lawyer Stefan Cross QC points out, that’s not quite right, but hey], was given royal assent on 29 May 1970.

However, 50 years on, the number of cases [they are claims, not cases, but hey] brought to employment tribunals are showing no sign of decreasing, according to research [sic] by the law firm DLA Piper.

Since the 2007-08 financial year, employment tribunals in England and Wales have received more than 368,000 complaints relating to equal pay, an average of almost 29,000 complaints a year.

Yes, the regular reader(s) of this blog – Hi @Wonklifebalance! – will recognise this as yet another classic of its kind: the old ‘Get Our Law Firm’s Name in The Papers in The Hope of Drumming-up Some Much-needed Business by Issuing a Press Release With an Eye-catching But Rubbish Story About ET Claim Numbers’ trick.

This involves your PR people finding a willing journalist who probably isn’t even aware that the HM Courts & Tribunals Service (HMCTS) publish detailed sets of ET claim statistics every quarter, then presenting them with your ‘research’ – which is in fact no more than a couple of autosums you’ve done in one of the HMCTS spreadsheets – on some topical employment law subject, and Bob’s your uncle! Your law firm’s name is in the paper, and employers can read how you are just the legal hotshots to go to should they face a no doubt wholly unfounded employment tribunal claim, or indeed if they just want to pay for your advice on how to avoid such a claim. Because the claim numbers are “consistently high”.

You probably think that most journalists are too smart to fall for this kind of PR trickery, but you’d be surprised. It’s an old trick, yet it works again, and again, and again. Most recently on this blog, we’ve seen it work for the law firms Fox & Partners (disability discrimination claims and mental health) and GQ Littler (sex discrimination claims and the #MeToo movement, then pregnancy discrimination claims and the #MeToo movement, and then ET waiting times.)

Anyway, back to equal pay. Have there been “more than 368,000” such claims since 2007/08? Well, yes. According to the freely-available HMCTS statistics, there were 375,225 equal pay claims between April 2007 and March 2020 (including my projection for the period January – March 2020, as the statistics for that quarter are not published until next month). Which, over the 13-year period, is an average of 28,863 claims per year.

However, as the following chart shows, those headline figures do not tell the whole story. Moreover, the assertion that equal pay claim numbers “show no sign of decreasing” is what we policy analysts call ‘utter bollox’.

Yes, what DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon refers to as “the consistently high number of [equal pay ET] claims” is, well, not terribly consistent. So inconsistent is it, in fact, that the average annual number of claims in the first five years, on the left of the above chart – 42,043 – is almost twice that in the most recent five years, on the right of the chart: 22,909. And, just over the last two years, claims have fallen by 33% from the post-ET fees spike. Yet Jane Hannon sees ‘no sign [of the numbers] decreasing’. Maybe she should have gone to Specsavers.

But ‘the number of equal pay claims fell in ten of the last twelve years, and is now half what it was 13 years ago’ is not the message that DLA Piper want to get across to all the employers who might read their friendly journo’s article in the Guardian. No, they want those employers to be so worried about where that next equal pay claim might be coming from that they make a mental note of the name DLA Piper. You know, just in case. Or even get them in to provide some precautionary advice (for a fee). Because the claim numbers are ‘consistently high’.

Of course, none of this was in the minds of the steady stream of leftie employment lawyers and feminist activists who happily tweeted out the Guardian article on Monday. Fifty years of the Equal Pay Act, and still no sign of claim numbers decreasing! Yeah, we all know that. It’s an outrage, and a damning indictment of decades of misogynistic Tory misrule. Or something. Tweet sent! Extend gender pay gap reporting now!

But I’m not really sure that DLA Piper are as keen as all those happy tweeters (and me) to see the end of the scandal of unequal pay, after half a century of the Equal Pay Act. Not when they charge up to £200,000 (plus barrister fees) a time just to defend employers against unfair dismissal claims. Which tend to be shorter lived (and less complex) than equal pay claims.

No, at those rates, I suspect DLA Piper would not be completely devastated to see unequal pay claims continue for another 50 years.

Posted in Equality, Justice, Workers' rights | Tagged , | 1 Comment

Dominic’s cumming home

He’s cumming home, He’s cumming home, Dominic’s cumming home.

But which home? On what date? And by what means of transport?

These and many other questions remain unanswered, 24 hours after 14 out of 26 Cabinet ministers took to Twitter to express their outrage at the politically-motivated attacks on a senior political adviser just doing what any good person would do to look after their toddler. Even though the guidance said any good person shouldn’t do that.

However, it is possible to piece together approximate answers to at least some of these questions, using publicly-available information, such as the published account of the events by Dominic Cummings’s wife, Mary Wakefield.

From these information sources, it is pretty clear that Mary Wakefield developed coronavirus symptoms – including “a nasty headache” – on Friday 27 March, the same day that the Prime Minister tested positive for coronavirus and began to self-isolate in Downing Street. Luckily for Mary, her “extremely kind” husband, Dominic Cummings, “rushed home from work” to look after her. And, indeed, Dominic Cummings was filmed running out of Downing Street, carrying a large and seemingly heavy bag, towards the end of the day on Friday 27 March.

According to Mary, the extremely kind Dominic himself collapsed with coronavirus symptoms just 24 hours later, and “for the next 10 days he lay doggo with a high fever and spasms that made the muscles lump and twitch in his legs”. And, indeed, by Monday, Downing Street sources were confirming to journalists that Dominic had developed “mild” coronavirus symptoms – including a cough – over the weekend, and was now self-isolating. By this time, we now know, both Dominic and Mary, and their toddler, were in Durham.

So it seems pretty certain that Dominic, Mary, the toddler and their coronavirus travelled from their home in Islington, north London, in breach of the law, to the evidently quite extensive home of Dominic’s parents in Durham, late on Friday 27 March, or early the next day (so, possibly in the middle of the night). Whether they drove, flew or took a train (see below), we don’t yet know. But starting on Saturday 28 March, or possibly on Sunday 29 March, poor Dominic spent 10 days in his Durham bed, lying “doggo”.

Then again, Dominic was evidently well enough to read and retweet tweets on Saturday 28 and Sunday 29 March; to read and reply to tweets on Monday 30 March, when he tweeted “train” in reply to those asking why he had needed to run out of Downing Street on 27 March; to retweet a press article on Tuesday 31 March; to retweet the Prime Minister’s thanks to “everyone who is doing their bit in the fight against coronavirus” on Thursday 2 April; and to retweet the PM on Saturday 4 April. Maybe not so “doggo”, then.

What “train” was Dominic running for late on Friday 27 April, I wonder? A ‘train’ from Westminster to Islington? Most of us would call that a ‘tube’. Or a train from London to Durham? Maybe we should be told.

 

 

 

 

If the lucky Mary’s account is to be believed, Saint Dominic then rose from his sick bed on Tuesday 7 April or (if his doggo-ness started on Sunday 29 March) on Wednesday 8 April. However, according to the Guardian and Daily Mirror, Dominic was seen, with the toddler, in the garden of his Durham home on Sunday 5 April. They may or may not have been dancing to ABBA. Maybe Dominic was only a little bit “doggo” by then.

Similarly, if Mary developed her symptoms on Friday 27 March, the day that Dominic does seem to have rushed (a) for a train and (b) home to look after Mary, then Dominic’s 14 days of self-isolation (as required by the Government’s coronavirus guidance) would have ended on Friday 10 April. So, he was out of self-isolation on Sunday 12 April (Easter Sunday, and Mary Wakefield’s birthday) when, according to the Guardian and Sunday Mirror, he and Mary made the 60-mile round trip from their Durham home to Barnard Castle, in breach of the Government’s then guidance to ‘stay at home, save lives’.

And, on Tuesday 14 April, Dominic was photographed back at work in Downing Street, clutching “a bag containing a carton of soup, a tangerine and a carrot”.

Subsequently, Dominic and Mary may or may not have returned to Durham, where – according to the Guardian and Sunday Mirror – they were seen walking among bluebells on Sunday 19 April, in full compliance with the Government’s then guidance not to “leave your home for any reason, other than to walk among bluebells”.

Bluebells, shmuebells. The key questions, it seems to me, are: on what date (at the end of March) did Dominic, Mary and the toddler travel unlawfully from London to Durham, and how did they get there? Did they travel by train and/or other public transport? If so, how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

Or did they unlawfully drive the 265 miles from north London to Durham? In which case, did they stop for petrol? Was this the first known case of a toddler spending four hours or more in a car without needing to go to the toilet? And, if they did stop en route, who got out of the car, and how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

FWIW, my working theory is that Johnson can’t sack Cummings, because then it would only be a matter of time before it comes out that Johnson sanctioned the road trip to Durham. It is inconceivable that the Prime Minister’s closest adviser would go to the far end of the country without at least telling the Prime Minister. And, if Cummings has to go for making the unlawful road trip, Johnson would have to go for sanctioning it. So, they have no option but to try to ride it out. They sink or swim together.

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Shared Parental Leave: No need for candles

Until it got wiped out by the Covid19 pandemic, this year was a busy one for #ukemplaw anniversaries. And many of them are (or, at least, were) a cause for celebration: the Equal Pay Act 1970 is 50 years old this year, and the Equality Act 2010 is ten years old. Light those candles on your cake. But please do comply with social distancing rules.

However, there was another anniversary this year that is less a cause for joyous celebration, than a timely opportunity for reflection on whether we are on the right path. For 5 April 2020 was the fifth anniversary of the coming into force of the right to Shared Parental Leave, created by the Conservative and Liberal Democrat Coalition Government under Part 7 of their Children and Families Act 2014.

Since 5 April 2015, while new mothers are still legally required to take the first two weeks of maternity leave, they can then cut their maternity leave short, exchange if for Shared Parental Leave, and then share up to 50 weeks of that leave (up to 37 weeks of it paid) with the father or other parent. Well done, Jo Swinson.

At the time, the TUC and others warned that many new parents would not even qualify for the new right, leaving many new fathers with no statutory right to time off work in the year following the birth of their child, other than two weeks of paternity leave. And employers fretted about the sheer complexity of the new Regulations.

Sadly, those warnings and concerns have proven to be well-founded. As the journalist Alexandra Topping noted recently in the Guardian:

“Only around three in seven families are eligible (agency workers and those on zero hours contracts are excluded), and of those only about 1% have shared any leave at all. By any reckoning it is, according to Adrienne Burgess of the Fatherhood Institute, ‘an inequitable and failed policy’.”

In fact, robust data on take-up of Shared Parental Leave is pretty much non-existent, with the TUC basing its “just over 1%” figure, regularly cited by journalists, on an estimate published in early 2019 by the University of Birmingham, which in turn seems to have lifted it from a 2018 guesstimate by an employment law firm seeking to drum up business.

One key problem is that no one knows exactly how many new fathers are eligible for Shared Parental Leave. But we do know the number is most likely in excess of 250,000 (there were 660,000 births in 2018, and in 2013 the Coalition Government suggested there would be some 285,000 eligible fathers each year).

And we know, from various Freedom of Information requests to HMRC, that only 8,500 fathers received shared parental pay in 2018/19. So, five years after implementation, few believe that take-up of Shared Parental Leave has reached much beyond the lower end of the Coalition Government’s somewhat gloomy 2013 prediction of 2-8% of eligible fathers (or about 1-4% of all new fathers).

That is simply not good enough, if the aim is to tackle the widespread pregnancy and maternity discrimination in our workplaces, and the Gender Pay Gap, by enabling a societal shift towards more equal parenting. And five years is long enough to tell us that we cannot expect much more from Shared Parental Leave. As Alexandra Topping concludes:

“We have to overhaul parenting policy and parenting culture in this country, and we have to start now.”

The good news is that five years’ experience of Shared Parental Leave confirms the lessons we could and should have learnt from the impact of parental leave policies in other countries. In short, the most successful approaches in other countries – such as those in Sweden, Norway and Iceland – are based on individual, non-transferable rights for both the mother and the father, and on all leave being moderately well paid.

Which does not mean mothers and fathers have to have identical rights to leave in the first year of their child’s life: fathers do not play an equal part in the biological and physical endeavours of pregnancy, childbirth and breastfeeding. But we do need to greatly enhance new fathers’ right to paid parental leave, while protecting mothers’ existing rights to paid leave in late pregnancy and to recover from the often considerable physical and/or mental impact of pregnancy and childbirth.

In recent years, a (very) small number of employers such as the drinks conglomerate Diageo, the insurance provider Aviva, and the finance company Investec have justly garnered approving press coverage for introducing contractual rights to six months of parental leave, on full pay, for both new mothers and fathers. But their experience tends to confirm that such equal entitlements to well paid leave do not, by themselves, lead magically to equal parenting: at Aviva, mothers still take an average of 311 days of parental leave, while fathers take an average of only 158 days (i.e. not even their full contractual entitlement to six months’ leave on full pay).

In any case, while such supposedly equitable schemes might work well for large and highly profitable companies, it is simply fanciful to think that any government would move from our existing system of grossly underpaid maternity, paternity and shared parental leave to one that includes six months of statutory parental leave on full pay for each parent. The role of the statutory system will always be to provide a minimum level of provision that meets the basic needs of pregnant women and new parents. And, in the first year, women have greater needs than men. Really, it’s true. I’ve had two kids. So I know.

This is partly why the fab feminists at Maternity Action have proposed a simple, 6+6+6 model of statutory leave, to replace the chronically failing Shared Parental Leave: six months of maternity leave reserved for the mother, and six months of non-transferable (‘use it or lose it’) parental leave for each parent. This parental leave could be taken together or separately, giving a combined maximum of up to 18 months, if all leave is taken consecutively. Plus, as now, all new fathers (and adoptive co-parents) would get two weeks of paternity leave, available to be taken at or near the time of birth.

At least as important as fathers’ statutory entitlement to parental leave, however, is the rate at which it is paid. The currently, ludicrously-low rate of statutory maternity, paternity and shared parental pay – £151.20 per week – equates to just 49% of the national minimum wage (for someone aged 25 or over, working a 35-hour week), and to only 40% of the Living Wage Foundation’s living wage (outside London), which is independently-calculated as the minimum that people need to get by. Maternity Action suggest that, at the very least, this standard rate should be doubled, to £300 per week. And, in the longer run, it surely needs to go higher still.

Finally, as the experience of Aviva demonstrates, as much as we need to ditch Shared Parental Leave and replace it with a simpler, more equitable statutory system based on individual, non-transferable rights to leave and pay, such reform will fail to deliver equal parenting unless it is accompanied by robust action to increase the supply of good quality, affordable childcare, a shift to a ‘flexible by default’ approach to job design and recruitment, and a major effort by political and business leaders to drive a change in parenting culture.

How about we make sure that, five, ten or 50 years from now, we do have something to celebrate when talking about equal parenting? Once the Covid19 pandemic and lockdown is over, let’s not go back to the bad old normal.

Posted in Equality, Parental rights, Workers' rights | Tagged , , | 1 Comment

Latest ET claim stats: onwards and upwards

Once again, there is some good news this morning for any underemployed employment lawyers, with the latest set of quarterly employment tribunal (ET) statistics, covering the period October to December 2019 (Q3 of 2019/20), showing yet another small increase in the number of single ET claims/cases.

In Q3, there were 10,887 new single claims/cases, up from 10,307 in the previous quarter (after allowing for the 1,700 single claims/cases that the Ministry of Injustice still says, in its commentary on the statistics, “will be reclassified as multiple claims once fully vetted”). This represents a 25% increase on the same period a year ago, and – as the following chart shows – the current trend is slowly but steadily upwards.

The number of disposals of single claims/cases also increased, to 7,098, up from 6,036 in Q2, and 5,610 in Q1. Which may mean the 58 additional ET judges recruited in April last year are having an impact. However, the Ministry notes that, at 33,000, the “caseload outstanding [i.e. single claims/cases + multiple claimant cases] has almost reached the peak levels seen in 2009/10 (when it was 36,000 in both Q2 and Q3 of that year)”. And the mean age on disposal of single claims/cases has continued to rise, to 36 weeks (six weeks more than in the same quarter a year ago). As the following chart shows, this has now risen steadily since late 2017.

So, no wonder that, earlier this week, I heard someone describe the ET system as “creaking at the seams”.

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It’s a shame about BEIS

So, just like James Bond, naming & shaming of employers who breach the national minimum/living wage is back. Well, almost back. Having been suspended since the last round of naming & shaming in July 2018, pending the outcome of a ministerial review, the scheme will resume shortly, according to the Minister’s answer to a written Parliamentary Question on 23 January, and a report in the Financial Times on 11 February.

And, with the outcome of the ministerial review having now been published (see pp 18-23), the only remaining question is whether the next round of naming & shaming will come before the UK release of No Time To Die on 3 April. Except … well, the ministerial review has resulted in a few changes to the scheme, and the TUC, for one, is not happy. In its Valentine’s Day card to BEIS, the TUC notes that:

A controversial change to the rules means the minimum arrears threshold for naming and shaming will rise from £100 to £500. If this threshold had been in place under the old rules, it would have excluded about a quarter of cases.

Going forward, it will mean employers who deliberately try to shave relatively small amounts off minimum wage pay stay under the radar. Think cafes and bars demanding unpaid trial shifts, or home care providers who do not pay for travel between clients, for example.

The new threshold is simply too high – ministers must think again.

In fact, if the new £500 threshold had been in place for the last three rounds of naming & shaming – in December 2017, March 2018 and July 2018 – it would have excluded 218 (32%) of the total of 678 employers named. However, between them, those 218 employers accounted for just £60,352.55 (1.4%) of the total of £4.3 million of arrears owed by the 678 employers named, and just 778 (1.6%) of the total of 47,967 workers involved.

The lists of named & shamed employers published by BEIS have always had a long tail of relatively minor offenders. And it is a moot point whether the naming & shaming of such relative small fry – in addition to them having to pay the arrears owed plus a financial penalty – actually achieves very much, in terms of overall deterrence.

Then again, those who would have escaped being named & shamed in the last three rounds include the Wolverhampton Wanderers football club (which owed a total of £450.79 to 17 workers), the Derbyshire County cricket club (which owed £225.16 to one worker), and the London Irish rugby union club (which owed £131.73 to one worker). So it’s not true to say that none of the ‘small fry’ are household names, and the TUC is right to highlight that the naming & shaming scheme will now be even less transparent that it was.

However, in my view, the raising of the threshold from £100 to £500 pales into insignificance when set against the fact that, as previously noted on this blog, large employers who ‘self-correct’ sometimes substantial sums of arrears when challenged by HMRC already get away with not being named & shamed for those ‘self-corrected’ arrears (even if they are named & shamed in respect of smaller sums of HMRC-enforced arrears).

Having been quietly introduced by BEIS and HMRC in 2015, and never formally announced, such self-correction by employers now accounts for almost half of the arrears identified, directly or indirectly, by HMRC enforcement of the minimum wage.

Over the three-year period 2015/16 to 2017/18, no less than £16.5 million (45%) of the total of £36.8 million of arrears identified through HMRC enforcement was identified through such ‘self-correction’ (see chart below, sourced from Figure 9 on page 29 of the Low Pay Commission’s April 2019 report, Non-compliance & enforcement of the National Minimum Wage).

Yet not a single employer has been named & shamed in respect of that £16.5 million of arrears, and not a penny has been imposed in financial penalties. Which means those employers have evaded (and the Government has kissed goodbye to) up to £33 million worth of financial penalties (the current penalty rate is 200% of the arrears owed). That’s more than the current annual budget for enforcement of the minimum wage.

Strangely, the TUC doesn’t appear to be the least bit concerned about this, as the issue is not even mentioned in its complaint about the new £500 threshold. But, as I have asked previously on this blog, is it fair that the very worst offenders are thus able to minimise both their ‘shame’ and the sum of penalties imposed? Do the public not deserve to know the full extent of an employer’s disregard of the law? As things stand, we do not know the name of a single employer involved in cheating their workers of that £16.5 million.

“I’ve never been too good with names,” sang Evan Dando and The Lemonheads on the title track of their fifth album It’s a shame about Ray in 1992. Someone at BEIS should have a listen. Because not only does their naming & shaming scheme lack transparency – essential to the very purpose of the scheme – but it is not even being applied to the biggest and worst offenders.

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New Year, new enforcement body?

So, Boris Johnson held and won the general election that, back in August, I predicted he might well hold and win on the back of a ‘deal’ with the EU27 that, at that time, most commentators thought less likely than a disastrous ‘no deal’ exit on 31 October. Sadly, the People’s Vote campaign is dead and buried alongside the political careers of some of its leading advocates. And the second Queen’s Speech in as many months is not simply more substantive than the first, but is brimming with Bills good, bad and ugly.

In short, life goes on – for policy wonks at least. And chief among the Queen’s Speech bills, for this policy wonk, is an Employment Bill that, according to the Government’s somewhat sketchy background briefing notes, promises:

●  Creating a new, single enforcement body, offering greater protections for workers.

●  Ensuring that tips left for workers go to them in full.

●  Introducing a new right for all workers to request a more predictable contract.

●  Extending redundancy protections to prevent pregnancy and maternity discrimination.

●  Allowing parents to take extended leave for neonatal care; and introducing an entitlement to one week’s leave for unpaid carers.

●  Subject to consultation, the Bill will make flexible working the default unless employers have good reason not to.

As noted previously on this blog, the proposal to create a new, single enforcement body not only has a long history featuring yours truly, but also appeared in the election manifestos of both Labour and the Liberal Democrats. Whether these near-identical (albeit somewhat vague) manifesto commitments will translate into cross-party parliamentary support for this element of the Bill remains to be seen, not least as the TUC and major trade unions such as Unite remain (unreasonably) hostile to the idea.

However, with organisations such as Acas and the Law Society welcoming the proposal in their responses to the BEIS consultation that closed in October, it may well be that a Fair Employment Agency is now a real possibility. Which is (probably) good news. For, as Acas notes in its response to the consultation, the potential benefits of such a single enforcement body include

“raising the visibility of enforcement options overall, as well as bringing greater clarity for both workers and employers. Having a single agency instead of three could make it more straightforward to signpost both workers and employers and raise their awareness of where to seek help and advice. This is particularly important for reaching high risk sectors and the more vulnerable workers in society, many of whom are likely to have limited understanding of their employment rights and possibly poor English, and are thus likely to need special help. As the [BEIS] consultation document makes clear, a single agency would also allow for more coordination across the different employment rights covered by the existing bodies and provide users with a more integrated service.”

That said, such a proposal is arguably at odds with suggestions of a post-Brexit erosion (or “bonfire”) of EU-derived (and even other) employment rights, and with the Johnson government’s somewhat less than concrete commitment to a ‘level playing field’ with the EU on such matters. For the whole point of a new, single enforcement body would be to protect and strengthen that level playing field, to the benefit of both workers and employers.

Other elements of the Bill, such as making flexible working the default and the proposed neonatal leave and pay – the latter a deserved policy win for the campaign group Bliss – may well receive cross-party support, while ministers are likely to face pressure from Labour to go further than planned on redunduncy protection, and adopt the so-called German model advocated by Maternity Action and others, which was pledged in Labour’s general election manifesto. And the inclusion of such measures in the Bill might even facilitate a much-needed debate about replacing the deeply flawed and chronically unsuccessful system of Shared Parental Leave.

So, many details yet to be seen, and many important questions still to be answered. But, after three years of brain-dissolving Brexit madness and policy-making constipation, (policy) life seems set to move on. Maybe.

Happy New Year.

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New ET claim stats: don’t hold the front page

On Friday, when you were possibly too busy drowning your sorrows to notice, the Ministry of Injustice published the latest set of quarterly employment tribunal (ET) statistics, covering the period July to September 2019 (Q2 of 2019/20). And, at first glance, there seemed to be good news for underemployed employment lawyers: a stonking 23% rise in the number of single claims/cases, from 9,722 in Q1, to 12,007.

However, in its commentary on the data, the Ministry notes that this increase is largely due to “the inclusion of 1,700 [single] cases that will be reclassified as multiple claims once fully vetted”. And a quick scan of Table C3 of Annex C (ET receipts) suggests that most of these 1,700 single cases awaiting reclassification as multiple claims were lodged in Scotland in August. Removing these 1,700 cases from the data leaves the increase in single claims/cases looking somewhat less dramatic, but it is worth noting that the number of such claims/cases was nevertheless above 10,000 for the first time since Q2 of 2013/14.

Then again, it is not at all clear from the data on jurisdictional claims what is driving the relatively mild but steady upwards trend in the number of single claims/cases since Q3 of 2018/19. For, as the following table shows, in all but three of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the year-on-year trend is either downwards (15 jurisdictions) or only marginally upwards (four jurisdictions). So, this quarter, we should at least be spared from garbage press reports about the impact of #MeToo on ET claim numbers.

Jurisdiction Jan – Sept 2018 Jan – Sept 2019 % change
Age discrimination 1979 1365 -31.0
Breach of contract 10382 10540 1.5
Disability discrimination 5025 5443 8.3
Equal Pay 24804 20268 -18.3
National Minimum Wage 311 231 -25.7
Part-time workers Regs 204 213 4.4
Public Interest Disclosure 1990 2007 0.9
Race discrimination 2617 2561 -2.1
Redundancy (inform & consult) 4817 3628 -24.7
Redundancy pay 3687 4321 17.2
Religion/belief discrimination 549 511 -6.9
Sex discrimination 7954 4670 -41.3
Sexual orientation discrimination 338 327 -3.3
Suffer detriment/UD – pregnancy 1222 1181 -3.4
TUPE 585 468 -20.0
Unauthorised deductions 17808 16306 -8.4
Unfair dismissal 16455 15024 -8.7
Working Time Directive 42680 19876 -53.4
Written pay statement 2065 490 -76.3
Written statement (dismissal) 222 224 0.9
Written statement (T&Cs) 1053 932 -11.5
Others 14455 21544 49.0
Total 161202 132130 -18.0

Finally, the Ministry’s commentary on the latest set of data confirms that the mean age at disposal of single ET claims/cases continues to creep upwards, and in Q2 was greater than in any quarter since 2014.

However, talk to almost any employment lawyer, and they will tell you that even this figure fails to reflect the long delays that they are currently experiencing in the processing of their ET cases. Which is setting off an alarm deep inside this wonk’s sleepy brain: We currently have a situation – a steadily rising number of claims (singles, at least), and a chorus of complaint (from employment lawyers) about the ET system being clogged up – that is not unlike the situation in 2011 – a steadily rising number of claims (all claims, at least – single claims/cases were actually falling, but no one yet knew), and a chorus of complaint (from employer bodies such as the CBI) about the system being clogged up – that was used by ministers to justify the proposed introduction of ET fees.

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Brexit: Never really over

(With apologies to Katy Perry)

I’m losing my self-control
Fuck, the Tories got back in
But I don’t wanna fall down the rabbit hole
Cross my heart, I can’t do it again

I tell myself, tell myself, tell myself, “Draw the line”
And I do, I do
But once in a while, I trip up, I cross the line
And I think of the EU

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Oh, we’re in such a mess
Brexit isn’t the best
Boris said “get it done”
But I know it’s never really over

Just because it’s over doesn’t mean it’s really over
Boris said “get it done”, but he’ll be negotiatin’ again
And we’ll face a ‘no deal’ cliff edge all over again

Just because it’s over doesn’t mean it’s really over
We’ll never get a ‘final say’, we won’t be voting again
Now we just get to ‘do Brexit’ all over again

Thought we kissed goodbye
Thought we meant this ‘deal’ was the last
But I guess it’s never really over
Thought we drew the line
Right through EU and I
Can’t keep going back
I guess it’s never really over, hey

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
And I’ll have to get over EU all over again

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
Over EU all over again

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Personal Independence Payment – a saga

This post – about my son’s recent reassessment for Personal Independence Payment (PIP) by the DWP – will only be of interest to those applying for PIP or advising those doing so, and is posted in case it is helpful in any way. It is also a case study in how poor the DWP’s decision-making is, and possibly offers a couple of lessons to claimants and advisers.

Sam’s disabilities result from him having suffered severe pneumococcal meningitis in December 1999, when aged 20 weeks. The meningitis left him profoundly deaf, hemiplegic, epileptic (since resolved), and with mild learning difficulties (not apparent and diagnosed until some years later). In June 2001, Sam received a cochlear implant at Great Ormond Street Hospital, and in 2007 he received a bilateral cochlear implant.

In March 2016, having been in receipt of Disability Living Allowance (DLA) for more than a decade, Sam was reassessed and transferred over to Personal Independence Payment (PIP), at the standard rate for both Daily Living (a total of 8 points for ‘communicating verbally’, ‘reading’, and ‘budgeting’) and Mobility (10 points for ‘planning & following a journey’). And, as Sam was assessed by the DWP as not being able to manage his own financial affairs, including his PIP claim, I was made his ‘Appointee’.

Looking back now, I could perhaps have queried some of the DWP’s allocation of ‘descriptors and scores’ in 2016, such as just 2 points (out of a possible 12 points) for ‘communicating verbally’, which to my mind seemed a bit harsh for someone who is profoundly deaf.

However, overall, the PIP award did not seem unreasonable, given that Sam was still a child, and in financial terms it was not dissimilar to what Sam had been receiving previously under DLA. Furthermore, the award letter only gave the ‘descriptors’ that had been allocated to Sam, so I had no way of knowing whether he actually fitted better in different descriptors (I was not aware that the full set of descriptors is in fact available online). And, as a family, we had other priorities, such as challenging our local education authority in relation to their funding of Sam’s place at his residential school for the deaf.

Fast forward to June 2018, when the DWP called Sam for reassessment. However, as the DWP was only able to offer a ‘consultation’ on a week-day, at an assessment centre in London, and as Sam was away at his residential school (near Newbury) most weeks, the assessment did not take place until 4 March 2019, when Sam was home for half-term. I accompanied Sam to the ‘consultation’ as his Appointee.

The ‘consultation’ was a joke. At the outset, the assessor apologised for English not being her first language, and explained that she had only moved to the UK (from the Philippines) two months previously. Perhaps this shouldn’t have mattered, but it did mean, for example, that we later wasted 15 minutes after the assessor leapt on the fact that Sam has a provisional driving licence, which she immediately assumed must mean Sam has passed a driving test and drives a car. In fact, Sam has never sat behind the wheel of a car, and (like many of his deaf peers) only has the licence as a handy means of ID. But the assessor had never heard of and did not understand the concept of a provisional driving licence, so – while I was only supposed to be observing – I had to intervene repeatedly to explain it to her, as Sam himself was (understandably) unable to do so.

Whatever, on 12 March, the DWP terminated Sam’s PIP award, having allocated him just 2 points for Daily Living (for ‘communicating verbally’), and zero points for Mobility. So I lodged a request for Mandatory Reconsideration, which in July resulted in the DWP adding just 2 points for Daily Living (making budgeting decisions).

Sam’s disabilities are permanent, and will never improve. He will always be profoundly deaf, so will always rely on his cochlear implants for (less than perfect) communication, and he will always have the learning difficulties that prevent him being able to make even the most simple budgeting decision. So, surprised and disappointed by this ‘nil award’ by the DWP, and its confirmation on Mandatory Reconsideration, I lodged an appeal to the Tribunal.

However, on 22 August, I was equally surprised to receive a one-page letter from the DWP offering to grant PIP at the standard rate for Daily Living (i.e. at least 8 points), and the enhanced rate for Mobility (i.e. at least 12 points), on condition I withdrew my appeal to the Tribunal. This ‘Lapse Appeal Offer Letter’ did not include any reasoning for this somewhat dramatic change of position (see image below), and when I telephoned the DWP caseworker (as requested), he was unable to offer any explanation for the (somewhat unexpected) Mobility element of the award, other than that it is “for health and safety reasons”. Given that, only a few weeks previously, the DWP had twice allocated Sam zero points for this activity, and that in 2016 (i.e. when not yet an adult) he had only been allocated 10 points for this activity, I concluded that this 12-point element of the offer was unsustainable, and that it was an attempt to induce me into withdrawing my appeal, only to have the award reviewed (and lowered) at some point in the future.

Furthermore, the DWP’s letter did not set out which descriptors (and points) had now been allocated to Sam for each Daily Living activity, and the caseworker was unable to answer my questions on this, as he said he no longer had the file. So, for all I knew, Sam might only have been allocated 8 points for Daily Living, the lower threshold for the standard rate, in which case that allocation might also be at risk from a future review. Accordingly, I decided to decline the ‘offer’ and continue with my appeal, in the hope that the Tribunal would clarify these matters and confirm the correct allocation of points for Daily Living and Mobility.

I was then further surprised, on 16 September, to receive a telephone call from a clearly more senior caseworker, who first bewildered me with a rapid-fire monologue about the various descriptors – most of which I had never seen or heard of before, of course – and then offered to grant Sam enhanced rate for both Daily Living and Mobility, if I withdrew the appeal. Still suspicious, and not having any of the past documents to hand (as the telephone call had come out of the blue), I asked the caseworker to set out the details of the offer – including the points allocated for each activity – in writing, so that I could consider the offer properly, together with the past documents.

At that point, the caseworker adopted a bullying tone, stating: “You have to make a decision now, as I have to tell the Tribunal what is happening”. Noting (with respect) that this was her problem, not mine, I repeated my request for written details of this latest assessment of Sam’s disabilities. The caseworker then said she would put the offer in writing.

A few days later, I received a one-page letter from the DWP, but this did not set out the details I had requested. It simply gave the letter of the descriptor now allocated to four activities (three under Daily Living, and one under Mobility), without stating the full text of those descriptors (see image, below). So, when the DWP caseworker telephoned me again, chasing a decision, I rejected her offer and decided to continue with the appeal to the Tribunal, despite her offer being the highest possible award (in monetary terms).

Yep, that’s the DWP’s explanation of its new decision, in its entirety.

Just two weeks later, however, I received the 145-page appeal ‘bundle’ from the DWP, with all the documentation relating to Sam’s PIP claim since 2016, including a detailed reasoning – spread over a full five pages – of the latest allocation of points in relation to the four activities above, totaling 14 points for Daily Living, and 12 points for Mobility (planning & following a journey). And this five-page explanation of the award was dated just the day after I had last spoken to the (more senior) DWP caseworker. Had she provided me with this written explanation at that time, I would have been happy to accept the offer and withdraw the appeal. So, I wrote to the Tribunal, setting this out.

However, it is not possible to withdraw an appeal once the bundle has been issued, it seems, so at the end of October I found myself nervously taking a seat before a judge and two lay panel members at a hearing centre in central London. I had prepared a short speech, explaining why I had insisted on coming this far despite the DWP having offered the highest award possible (in financial terms), but it was not needed. With the two lay members smiling and nodding in agreement, the (kindly) judge quickly explained that, having read all the papers, they had already decided to allow the appeal and confirm the DWP’s award of PIP at the enhanced rate for both Daily Living and Mobility. Barely 20 minutes after arriving at the hearing centre, I was back on the street, clutching a letter from the Tribunal confirming their ruling.

So, a happy ending, with Sam on a higher rate of PIP than I most likely would have settled for in March 2019, had it been offered at that point. And Sam now has a Tribunal-confirmed benchmark of descriptors and points to take into the next reassessment in five years’ time: 8 points for communicating verbally; 2 points for reading & understanding signs, symbols & words; 4 points for making budgeting decisions; and 12 points for planning & following a journey.

But this is no way to run a disability benefits system. I wonder how many claimants, and especially those lacking basic computer skills or confidence – both the Mandatory Reconsideration request and appeal to the Tribunal have to be completed online – drop out when faced with the kind of nil award given to Sam by the DWP in March, and confirmed at Mandatory Reconsideration in July. And what if I had accepted the DWP’s first telephone offer, in August? Sam would have lost out on more than £7,500 (the difference between standard and enhanced rate for Daily Living) over the next five years.

My advice to any PIP claimant, therefore, is twofold: firstly, get your hands on the full set of descriptors at the outset, so that you can arm yourself with your own assessment of which descriptors should be allocated to you; and secondly, be prepared to stand your ground, even if that means going all the way to the Tribunal. According to the latest official statistics, 75% of all PIP appeals are allowed by the Tribunal at a hearing, despite the apparent practice on the part of the DWP of making highly tempting ‘offers’ to those with strong appeals, in return for withdrawal of the appeal.

And that latter practice may well explain why, according to the DWP, “the proportion of [PIP] appeals lodged which lapsed [i.e. where DWP changed the decision after an appeal was lodged but before it was heard at Tribunal] has gradually increased since 2015/16 – from 4% in that year, to 17% in the latest two quarters (October 2018 to March 2019)”. In short, the Tribunal is allowing 75% of appeals, despite the DWP conceding almost one in five appeals before they get to a Tribunal hearing/ruling. Which means the real success rate on appeal is 79.2% (17 + (83 x 0.75)). Well played, DWP.

In 2017-18, according to the justice minister’s response in June 2019 to a Parliamentary Question by the Labour MP Rushanara Ali, the DWP funded 29% of the £1 million cost to HM Courts & Tribunals Service (HMCTS) of social security appeals (including PIP appeals). That contribution may well have gone up since, but if I was a senior official at HMCTS, or a minister in the Ministry of Justice, I’d be demanding a lot more.

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