I have an IS appeal which I want to be expedited. It is with the IS appeals section now.

They say they process everything in date order, no exceptions, and are currently dealing with the back end of July. They say they have no proceedure for expediting any appeal.

Do they have a duty / power to expedite appeals? Is there anything in the legislation which refers to it, and if so where? Had a brief look but could not find anything.

I note from this thread the problems people have had trying to side-step a department and go straight to TAS.

I was wondering, if there is a reference to expedition (if that's a word), can we argue that there is a duty to have proceedures in place to allow for this?

Any thoughts or hard won experience?

Although we might have the 'power' to expedite appeals, we do not have a duty to do so and there is no legislation that provides for it to be done. As you know, our target is 95% of appeals cleared in 60 working days and we deal with them in turn. To get your client's appeal dealt with out of turn you would have to show that he/she was in greater need than all of the other people in the queue.

Thanks Judith.

You wouldn't happen to know where in the legislation the power can be found would you?

I applaud the fact that Judith has at least posted an honest and factual response. It's not very palatable reading, but at least it doesn't seriously try to justify the position either.

The sooner time limits are put in place for both the DWP and LAs (my domain), the better.

As an aside, Judith mentioned a target of 60 days. The Local Government Ombudsman has made it clear to LAs that HB/CTB appeals should reach TAS within just 28 days! But then, it is not new that LAs are expected to administer HB/CTB within much tighter administrative constraints than one or two DWP benefits.....

However, in both cases (i.e. DWP or LA), there is no legal "bite". Yet.

Regards

You could try to get a chair at tas to issue a direction under reg 38 (2) of the decisions & appeals regs. However, the difficulty is usually getting tas to do anything about an appeal that they have not been sent. Might be worth having a go if the DWP wont budge.

Reg 38
(2) A legally qualified panel member may give directions requiring a party to the proceedings to comply with any provision of these Regulations and may at any stage of the proceedings, either of his own motion or on a written application made to the clerk to the appeal tribunal by any party to the proceedings, give such directions as he may consider necessary or desirable for the just, effective and efficient conduct of the proceedings and may direct any party to the proceedings to provide such particulars or to produce such documents as may be reasonably required.

For Emmab --- There's no legislation for that either I'm afraid, we can only use our 'discretion' (which can be a millstone around our necks )to decide if an appeal can be dealt with out of turn. Depending on the circumstances though it might be a good idea to talk to the appeals officer,who is also a decision maker, to see if further evidence can be provided that would enable the decision to be looked at again. We often find,eg with HRT appeals,that the claimant has not been advised to claim IS/JSA again and that when they do the claim is allowed. The appeal still has to be dealt with, of course, but the immediate need for money has been met which eases the situation a little.

For David --- The use of Reg 38 would be interesting to see in action (but I would hate it!)Do you have any experience of it being done?

Our 60 day target is quite hard to achieve, and will get harder, because of the central storage of documents. Claims seem to leave this building and disappear into an immense black hole and although we know they were sent the people at the store deny receipt.( That sounds familiar!)

Some ideas based on my experience of asking TAS to utilise their powers under Reg. 38. Firstly, send a copy of the appeal to TAS as well as to the DWP/LA, otherwise when you contact TAS they will have no record of it. Secondly, identify why the appeal should be expedited. TAS tend to be more sympathetic in cases such as LTAHAW and alleged deprivation when the claimant may be left with either no/or very little money. Thirdly, what points can you put forward for arguing that the appeal should go ahead without a written submission. As far as I am aware there is no legal requirement for a written submission, and I have had appeals take place without one. Finally, if you have a strong case and the TAS will not act, consider JR them for fettering their discretion/acting unreasonably. I have made a number of requests to TAS under Reg. 38. Sometimes they act/sometimes they don't. Partly to do with the circumstances of each particular case, and partly, I suspect, a general relutance on their part to utilise the powers.

Thanks everyone. Have better idea how to proceed (it is a LTAHAW)case, hence my attmepts to try and get it moved along.

emma

hope you got your LTAHAW sorted. just wanted to pick up on some of the issues, having finally despatched a massive complaint which includes refusal to expedite appeal amongst other things. client waited from march to august for his appeal.

on the question of legal duty, the secretary of state has an obligation to act reasonably, and this includes the exercise of discretion. the DWP administrative procedures should be flexible enough to be responsive to arguments of urgent priority where there is severe hardship, and clearly some appeals are less urgent than others. a blanket policy which fetters discretion is potentially judicially reviewable. in practice this can be difficult, as the JR process may provide little advantage time-wise, depending on the ETA at the front of the appeal writing queue, but there will be some cases where this action is appropriate.

in the 'old days' (always a bad sign at the start of a sentence!) the DSS had 'Urgent-Benefit Involved' tabs which were appended to case-papers. The wording, slightly confusing perhaps, was to signify that the outstanding matter on that case involved the _current_ non-payment of the _whole_ benefit, and therefore urgent action was required at all stages of handling. long gone of course. but it demonstrates that it is not _necessary_ for the DWP to adopt the blunt instrument of 'strict date order' and it is actually a regressive approach relative to past procedures.

this appears to be a national problem, which suggests that the DWP has a 'strict date order policy' denying any exercise of discretion, and which must inevitably, in some individual cases, prevent the secretary of state from acting reasonably (doing his job properly). a risk of over - reliance on processing procedures it that the means is mistaken for the ends. and maybe it trains DMs into a mental state of oblivion with regard to the concept of discretion, never mind it's exercise? i suspect the DWP would deny owning such a policy if challenged.

i've come across the practice of putting appeal cases in a queue without even looking at them first, but i'm not sure if that is a common problem, or a localized corruption of the above poor procedure. it would be interesting to know if this is a widespread problem. imho this is an unacceptable procedure and totally sucks.

: )
jj

A complaint via Glasgow's rather good (IS) complaints section has resolved this somewhat.

Have been assured by section manager that expedition can be done, and they are trying to do so in this case, though worryingly there now appears to be a slight problem with the retrieval of the file!

I was slightly shocked that there was no regulation about expedition! Just assumed it would be explicitly stated in the appeal regs.

Thought it would be easier to enforce, via JR if necissary (no need to delay here surely, emergency application? Although I would probably need a refusal of a crisis loan before I could go for it?), than appears to be the case.

Anyway, file problem not withstanding, I think i have got round the problem with the DWP. Whether TAS will expedite it is, of course, another matter! They are pretty speedy now in any event, but...

i take it that the silence of the statutory provisions implies that it is an administrative matter, which pre-supposes that the administrative arrangements are reasonable. this means being responsive, flexible and using judgement and discretion.

all appeals are important to the appellant, and the DWP has to have a fair system, and date order is generally fair enough. but some appeals have a more urgent priority than others, and appeals officers or D-Ms ought to be able to respond when appropriate arguments are made.

i know there has been a lot of downgrading of work generally over the years in DWP, as well as cutbacks in training, and this has been managed by systemising procedures to minimise the use of judgement and discretion. these process and procedures become elevated way past their worth, and we see the problems when when administrators can't see beyond them or they become sacred cows.

i tend to the view that it's not desirable to legislate for everything, and i could live with there being no provision for expedition of appeals, provided reasonable standards of administration could be relied on. but if a need for legislation continues to be demonstrated...

maybe the DWP could publish its policy, so we could quote it to the appeals officers who have misunderstood it or are unaware of it. : )

my JR experience is very limited - my last aborted attempt... : )a HRT which should have been revised, got counsel's opinion in April, not to proceed because we were told to expect the appeal to be written by end of May - client came to me in March - no money since January - just child benefit for 4 kids. Felt that by the time we got to court the appeal would be near enough ready - plus we had just got client's wife CTC and JSA so the severe hardship was alleviated, fortunately. in the event, the appeal wasn't written til very end of June, i didn't chase an appeal date because (blush) i was going on holiday first 2 weeks in July, and when i got back, we had a date for August. ridiculous.

emma, i don't know about Glasgow's complaints section. what have i been missing?

jj

I know that "in the good old days" is awful to happen once let alone twice in a thread but isn't this also an issue to do with the abolition of Adjudication Officers and the intoduction of Decision Makers?

AOs used to be kept behind locked doors (kind of thing, in our local office anyway) and were trained to look at decisions afresh and taking everything into account, including matters such as the need for an expedited process.

If you're thinking "yeah, right" as you read this I'm sure you also know DMs working before and after the change who do actually do all that anyway.

But to me the big problem with the AO/DM change was that it allowed managers to 'streamline' the mindset of their adjudication and administration stratae; it also brought them physically into the same room and transferred pressure from one to the other strongly, I feel, to the detriment of the adjudication side. Hence the first in first out problem which you've always had when trying to get just a claim processed for someone desperately vulnerable.

The same point arose in the case of Bland v Chief Adjudication Officer
(QBD 29.1.85). An attempt was made to use judicial review to get a decision overturned because the statutory appeal procedure was too slow. It was noted by the court that the then Adjudication Regulations made "no specific provisions for expedition" but the court
did not find that a problem "it seems to me that in the present case there is no good reason why an appeal by the statutory route should not be heard expeditiously" Thus no requirement for date order.

As you all know, our policy of 'date order' is an admin. matter,but it is often the 'fairest' way to deal with appeals. Every appellant, or appellant's rep., thinks that their appeal is more urgent than any one elses and that it should be dealt with first. Given that we could have 40 or more appeals ready to be written,in this office alone, (i.e. all info gathered and reconsiderations done)how do we choose which one to do next? Should we do the one that shouts the loudest? The one who is unpleasant and abusive? The one whose rep. 'threatens' us with TAS and judicial review? What would you do? What if we 'chose' yours and then someone shouted louder than you?

Most of the people who appeal do so because they have no money,so their appeals are ALL urgent.If you want us to expedite your appeal you should give us good evidence and a reasoned argument for why your client should go to the front of the queue. Even then we may not be able to help.

Judith,

I think the point has been made clearly in this thread that strict date order is not the fairest way in _all_ cases, and that there is a need for the sec. of state's reps to exercise discretion appropriately.

You say "Every appellant, or appellant's rep., thinks that their appeal is more urgent than any one elses and that it should be dealt with first." but do not substantiate it, and i believe you would find it difficult to do so.

Just because the DWP has the power to seriously damage people's lives doesn't mean it is god. what most of us ask is that the DWP is able to recognize and respond to the human condition, and not act as if it is above it.

We both know that some appeals have more serious and immediate consequences on the Appellant than others. The DWP may be unaware of them unless the person or their rep. brings the issues to its attention.

I don't know whether this qualifies as 'shouting', but i can, sticking my neck out, assure you that 'shouting' doesn't regularly feature on any of the training courses welfare rights reps attend. Judicial review action cannot be undertaken unless a strong and reasoned argument has already fallen on deaf ears.

so how does an appeals officer prioritize between a number of 'oven-ready' appeals received on the same date and select which one to write next?

jj

Some appeals officers stick strictly to date order and cannot be budged,while some of us with, possibly, more life experience,age,compassion, call it what you will,take cases out of order to push them through the system more quickly. We look very carefully at every decision that is under appeal and if we think that they cannot be supported and we have sufficient grounds,we will revise the decision.

As with all things,prioritising (yuk!)is a judgement call and we don't always get it right but we are always willing to consider new evidence,or to look again at what we have,to listen to the appellant and to you as reps. and to revise/supercede where we can.

Of course I don't mean that you,literally, shout.Perhaps I should have said that some reps. and appellants are more assertive or persistent than others.

Basically, we will take cases out of order if we can see that that particular person has a greater need than the next one. To be able to do that we need evidence, evidence and more evidence as well as contact from you and your colleagues.Personally, I would far rather spend my time overturning a decision that has been made in ignorance than writing a submission and turning out at a tribunal to explain why such a decision has been made.It is annoying when evidence is produced at the tribunal when it could have been produced much earlier and saved the need for a tribunal (public purse and all that)but my colleagues and I are happy to tell the chairman that we do not support the decision and think that the appeal should be allowed.

I'm rambling now, so will stop,but,please, if you have a good case, speak to us about it and we will do what we can to help.

I agree with the last message I also am prepared to take cases out of order if the circumstances dictate however when submitting urgent cases to TAS,with all the details of why its urgent they do not seem to take any notice.