To anyone/everyone who represents clients at Social Security Appeal Tribunals & Commissioners

I want to highlight a consultation from the Council of Tribunals, "The Use and Value of Oral Hearings in the Administrative Justice System", closing date for responses Friday 2 September 2005, click on this link for pdf copy of consultation paper.

Following last years White Paper from the Department of Constitutional Affairs, "Transforming Public Services: Complaints, Redress and Tribunals" (click here for more details), the Council of Tribunals and/or its successor body, the Administrative Justice Council, have decided that they need to be in a position to contribute to the debate around reducing reliance on formal oral hearings as recommended in the White Paper. The Council state that they "would like to canvass views on the role of traditional oral hearings as currently employed and to enhance its own understanding of the alternative forms of oral exchange available in administrative justice."

An oral hearing is defined as "a sitting of the Tribunal for the purpose of enabling the Tribunal to take a decision on an appeal/application or on any question or matter at which the parties are entitled to attend and be heard".

There are a number of questions posed around issues on the value of oral hearings, the style and range of other oral elements, and relevant principles, in the context of some of the percieved views on oral hearings from the White Paper, the Leggatt Report which informed the production of the White Paper (click here for more details) and some of the Council's own publications.

From the point of view of client representatives, I feel it is crucial that we provide as many responses as possible, with evidence and information around the need for SSATs & Commissioners to continue, due primarily to the complexity of the legislation deciding entitlement to social security benefits and tax credits. Unless SS legislation can be greatly simplified (which I doubt is feasible; even with a universal benefit such as Child Benefit, there can be dispute on questions of residence, shared care, etc for example), then the meaning of words in legislation, the weight and interpretation of evidence, the credibility of clients' accounts of circumstances along with the use of caselaw and precedent demand, in my opinion, that the current system continues, with a need for properly funded representation effectively bridging the gap between tribunals and appellants.

The Leggatt Report, which effectively instigated the current consultation, contained (at least) two worrying findings:

"4.21 There has been evidence since research carried out in the mid-1980s by Professor Hazel Genn (Genn, H and Genn, Y, (1989), The Effectiveness of Representation at Tribunals, LCD), that under the current tribunal regime appellants benefit significantly from representation. We are convinced, however, that representation not only often adds unnecessarily to cost, formality and delay, but it also works against the objective of making tribunals directly and easily accessible to the full range of potential users.

4.28 Two of the most comprehensive and helpful responses to our Consultation Paper came from the Bar Council and the Law Society. Not surprisingly they advocated the provision of more legal advice and representation for tribunal users. Unfortunately for the lawyers, as the title of this report declares, its focus has been upon enabling users to prepare and present their own cases without legal advice or representation. This approach has therefore prevented us from paying to the responses that regard which their quality deserved."

So, despite acknowledging research which found that appellants do benefit from proper representation at tribunals, Leggatt decided that representatives actually inhibit the process, as well as ignoring repsonses from the Bar Council and the Law Society as they advocated the need for adequate representation.

We already have a situation whereby appellants need to ask for an oral hearing to take place.
We already have a situation whereby the success rates on appeal is substantially higher on oral hearings over paper hearings, and again higher where appellants do have a representative at their hearing.
We know that, overall, something like 50% of appellants that go to oral hearings win their cases, demonstrating the ongoing problems of first tier decision making at the DWP.
We know that appeal rights have been diminished under the new Tax Credit regime, and that NTC appeals are a rare beast indeed.

Whereas other forms of dispute resolution may be appropriate for other tribunals that fall under the umbrella of the Council of Tribunals, I feel it is important to state the need and value of the present SSAT/OSSC system, with inquisitorial tribunals that can independently arbitrate on matters of dispute in relation to social security and tax credits.

Apologies for length of this posting.

I don't think you should apologise for the length of your posting at all Paul. I can't find a superflous word, what you say is true (if sad), compelling, and I have cleared some space to make full representations.

I'm planning on making a response on behalf of my team and NAWRA has plans to as well.

I've already looked into the 'are oral hearings more costly' argument and, even asuming that a paper hearing will be shorter and will save something on accommodation costs, I reckon savings from going to entirely paper hearings will only be in single figures. Thats because the only costs that I can see being reduced by doing this will be Tribunal expenses, which I assume include payments to the judicial members, (£18.5m in 03/04) and accommodation costs (which were only £2.2m for same period). There may even be an increase in the admin staff costs (£26.9m 03/04). Other costs were non staff costs of £27.5m and odds and sods of £0.9m by my arithmetic and it is arguable that these would stay the same, making a total of £76.9m for that year. These figs were taken from TAS Annual report and accounts which is on their website. My estimate was based on a lot of guesswork as to how those figs may change but I think its valid in terms of giving some idea of the order involved.

By the way, does anyone know where the tables of success rates for the different types of hearing have gone to as this will be helpful in putting our case. I did a search of Rightsnet but the link it came up with was no longer operating.

I don't see many accommodation costs savings Andy. Paper hearings are still heard at venues. Only savings there is by doing an increased number of them in one day. And if that's the case is there justification for doing so?

I know. But its a fair assumption that if ALL hearings become paper based there could be some rationalisation of accommodation. In my illustration in my response I have reduced accommodation from £2.2m to £1.5m.

A more important point is that we don't know how how much of the current accommodation stock is used for Tribunal hearings and how much is used for back office admin. I suspect quite a lot is the latter. Mind you the accommodation is such a small part of the overall budget that not making any change would have made little difference.

I also reduced the Tribunal expenses from £18.5m to £10m (which again was pure guesswork but is reasonably feasible if they all go paper). I did whack up the staff costs for admin up by about £3m which may or may not have been reasonable. Altogether that meant a saving of £6m overall or 8% of the total cost for TAS. Not a lot of savings really, especially as it could have profound consequences for appellants.

Statistics on appeals can be found at
http://www.dwp.gov.uk/asd/qat.asp.

Thanks a lot

Thanks from me here as well, Val, I didn't know about that useful source of information.

It may also be worthwhile, from a contextual point of view, to have a look at the website of the Council of Tribunals (COT), http://www.council-on-tribunals.gov.uk/

If you click on the "Annual Reports" button on the left-hand side of the home page, you can find their annual reports from the last 7 years or so - this provides some overall stats for SSATs/OSSC hearings, as well as enabling you to compare these tribunals with the wide variety of other tribunals that come under the auspices of COT.

One of the main thrusts of last years White Paper "Transforming Public Services..." was around the need for a unification of practise and procedures in tribunals, as well as "moving out of courts and tribunals disputes that could be resolved elsewhere through better use of education, information, advice and proportionate dispute resolution - so in relation to your points Andy, it's not simply about administrative savings in terms of paper hearings against oral hearings for SSATs - the White Paper is also about whether, for example, accomodations costs could be lowered by co-location of different tribunals (e.g. employment, social security, education).

This is why I feel that it is so important to be making the case for oral hearings to remain as an integral part of dispute resolution in relation to social security/tax credits - not just because of any cost savings, or lack of, but because it is the most appropriate and suitable way to resolve disputes due to the nature of the beast i.e. the complexity of the law relating to SS/NTCs. I am firmly of the opinion that the use of, for example, Ombudsman-style dispute resolution would totally inappropriate for resolving these disputes - we need inquisitorial tribunals, that can question clients, and apply the law following suitable submissions, using caselaw and precedent where needed - we should also have properly funded client representation, where needed, along with much better use made of feedback between SSATS and first tier DWP decision makers to try to improve the shocking levels of decisions that are subsequently overturned at review or appeal.

The issue of cost savings will be considered whatever, whether through some tribunals moving towards the "proportionate dispute resolution" approach mentioned above, or whether this is through bringing together the <<jargon alert>> back office functions <<sorry>> of the administrative arm of the new tribunals service.

Fair point Paul, its just that I'd only got as far as point 3 in the paper headed 'They are costly' so thats all I'd dealt with.

I think the CoT are actually friendly to our cause and I wonder if one of their motivations is to get evidence of the need and use for oral hearings and, maybe even representation, bearing in mind that Leggatt's report was quite hostile to both.

Absolutely Andy, one would hope that they will be making the case strongly for certain tribunals to maintain as at present, even if behind the scenes things have changed.

That's why I feel it is important for those involved in repping to provide as much evidence, direct or otherwise, of the need, role and value of SSATs. I feel like I need some time to go away and think through some of these issues, especially in relation to our own Appeals team and how we can use their cases to illustrate the value of both oral hearings as well as representation. But please feel free to share any thoughts, concerns, etc...

something that really gets me - although the function of tribunals is in safeguarding access to justice for the individual, (and has an important function in maintaining confidence in the balance of powers between citizen and state), it doesn't mean that it's existence hasn't been used as a safety net by the statutory authorities, in their risk assesments, when they cut corners in service delivery,

i would be very surprised if the right of appeal hasn't already been factored in to their risk assessment equations. dilute the appeal process now, and on paper alone you have a potentially dangerously unjust system, which happens to be the largest, in terms of the number of people affected by it, and therefore costs. the cost of social security appeals is very directly correllated to savings in DWP running costs, even if they don't show up on the same budget spreadsheet!!!!! the best way to cut costs is to reduce the number of appeals, and the best way to do that is...

the NAO has already picked up that the tribunals can also multi-task as a management quality control tool and teaching aid, something the DSS always knew but suddenly forgot, until reminded...

it's funny how making tribunals directly and easily accessible to all users is a virtue in Leggatt, even to the point of taking precedence over just outcomes???, but it doesn't figure that highly at all in the first tier of decision making or service use - even if you're sick or disabled, if the Athos Origin planned closure of medical centres is anything to go by.

i see some danger in looking at the social security appeal system in the context of unified tribunals, and out of the context of the social security system. one size does not fit all.

many of are already concerned by the movement of the statutory authorities increasingly towards IT and call centre 'solutions' and away from the law itself. problems have been identified with computer programs which are adrift from the law, and the substitution of scripts and dogmatic procedures for training and understanding of the law the administrators are administrating.

a lot of useful work has been done by commissioners and tribunals to raise the quality of tribunal decisions, in recognition of the importance of Article 6. why do i keep thinking there may be an absence of joined up thinking here.

the right to a fair hearing is of greater importance than ephemeral political expediency, and in the context of SS appeals, imo, a diminution of the right to an oral hearing may be seen as incompatible with article 6. i guess i would like to see civil and human rights at the top of the agenda on this one.

as for alternative dispute resolutions, i'm pretty sure that most of us try all existing methods. they are not a substitute for the right of appeal, where the law is tested. I don't even know why they are a matter for the appeal system, and not the relevant statutory authorities, in terms of picking up the tab, at least. ???? follow the money, maybe.

cost cutting in social justice may well be the falsest of economies.

sorry for long rant.

jj

On one point jj, the article 6 argument, i wonder whether a diminuation of the ability to have an oral hearing really would be open to challenge? Already, appellants have to request an oral hearing over the essentially-default paper hearing, within a specified time frame.

So if, for example, appellants were actively dissuaded from going towards an oral hearing, byway of using some form of quasi-independent mediation process between themself and the DWP, to come up with an agreeable solution to the disputed decision, would that situation fall foul of article 6? Provided the ultimate solution to that dispute was still the ability to attend an oral hearing, surely compliance with the article would remain? Or if an ombudsman-style of adjudication was used instead of the current system of oral hearings?

The four features inherent in a fair trial are described in Rowland as:

1) equality of arms - each party broadly being able to present their case in circumstances which do not place one of the parties at a substantial disadvantage (one almost wonders whether SSATs truly do live up to this at present, what with the number of unrepresented appellants, especially where they may come up against a presenting officer (rare I know but it can happen))

2) a judicial process, that requires each side to have the opportunity to have knowledge and comment on observations filed or evidence adduced by the opposing parties.

3) requirement for a reasoned decision, although reasoning need not be detailed.

4) whether a trial can be fair if there is no right of appearance - apparently, this is the area of this article that is in a state of development and the Court has yet to pronounce in detail in civil cases.

On the basis of those 4 points, I think one could make a substantive argument that, for example, an ombudsman-style system of dispute resolution could fulfil all of those features. Obviously, there are many arguments as to why an ombudsman-style system of dispute resolution is unsuitable for SS decisions, not least of which is the fact that benefits entitlement is usually (and fundamentally) about a "Yes/No" decision, whereas Ombudsman are about seeking some compromise solution.

Also, a point made by Legal Action Group, in response to the White Paper is a valuable one: Justice being seen to be done is important - public justice helps build support for the role of law and can contribute to better consistency of decision making. It is in the public interest for cases to be pursued to hearing so that rulings on points of law can be made, or standards and processes of decision making can be noted.

Although most benefit appeals are individual, and depend on individual facts, there are many cases where there are common issues around rules of entitlement that end up at Commissioner level for decisions that then set precedent in other cases.

Given the fact that by far the greatest amount of appeals relate to sickness and disabilty benefits, where disputes over the weight, consistency and meaning of medical evidence are often central to individual cases, it seems crucial to me that inquistorial oral hearings are maintained to allow for both investigation of all relevant facts taking place, as well as relevant legal provision being applied to cases, both in terms of legislation and precendent.

Sorry if i've wandered off a bit from my original question but I don't see that an ombudsman-style of adjudication (OSA) could fulfil this latter function adqequately, yet i do think that OSA could fulfil the features inherent in Art(6). phew.

Getting back to Paul's original posting. It's as well to look at the basics. First of all I'm a little concerned that all types of tribunals seem to be considered together.

I only have experience of two types of tribunal - SSAT's and employment tribunals.

They are very different animals from a reps point of view.

SSAT's are inquisitorial (up to a point, see below)
ET's are (very) adversarial (often to the point of bitterness).
SSAT's are informal.
ET's are fairly formal including sworn evidence and cross examination.
SSAT's are scheduled for 30-40 mins as standard.
ET's are scheduled 1 or more days as standard.
SSAT's rarely have qualified legal reps (since chargeable very restricted).
ET's normally have legal qualified reps.

I'm a bit concerned that SSAT's will be lumped together with other sorts of tribunals as being costly and wasteful when clearly they are not.

Secondly, Paul is quite correct that SSAT/OSSC onlyexists because of the complexity of Social Security legislation which is somewhat beyond the capability of the average person let alone the more vulnerable members of the public. But lets be honest an awful lot of the disputes in benefits arise from the appalling standard of decision making. It's interesting to note that SSAT's are inquisitorial and all official guidance either assumes or explicitly states that DM's should be inquisitorial or judicial.

But the normal DM decision appears to deliberately ignore all evidence in the claimant's favour unless they are forced to consider it. Most disability benefits require claimants to prove their level of disability time and time again instead of taking into account the history.

If we had any confidence in the quality of decision making we would be able to massively cut down the number of appeals. There will always be those cases where the dispute is a result of a misunderstanding or honest mistake but any decent decision making system would revise decisions when the evidence was produced not just ignore it and leave it to the tribunal system.

So I suppose my main point is that it would be better to reform the decision making process first. This could prevent many appeals arising and the tribunal systems would not need drastic changes.

Anyway sorry for the rant - but it is Friday afternoon.

Rant away Derek, what else is Friday afternoon for?

I do think you have hit quite a large nail on it's head there though - it's a bit of a chicken and egg almost - that unless the DWP decision making is greatly improved, then the fundamental need for tribunals to sort out the mass of incorrect decisions remains. And using the evidence from tribunals would be an obvious way to enhance this process.

And tokenistic gestures that recognise this fact but then propose to reduce the right to an oral hearing and instead move towards what would simply seem to be a slightly more indepth review/supersession/mediation system clearly ain't going to cut the mustard.

Also, it strikes me that as the DWP clearly cannot understand and apply the legislation correctly in many many cases (and as you note, very rarely change their minds on decisions even when there is new evidence produced), this again is an argument in favour of retaining oral hearings more or less in their current form.

Your points on ETs are appreciated - it's good to know about the wider context that this process is taking place within. Have a good weekend people

thanks paul : )

i fully endorse what you and Derek have said on this so far.
i don't think one size fits all, and i'd like to see a special case argument (because it's huge and working) made for SSATs...: )

to respond to the article 6 points you raised, hoping it is some help, i think the issues are around point 2 - the judicial process. my thinking on this is fairly simplistic, and i'll try to set it out a simply as possible.

first of all, i have at the back of my mind, that article 6 has been ruled not to kick in at the stage of first tier decision-making, but this is ok because there is a right of appeal, to which article 6 applies...!!!!!

next, the problem that i see with an ombudsman-style adjudication is that this has conventionally been concerned with the question of maladministration, a quuite distinct area of remedy to the appeal system. adjudication of individual cases has been outside the jurisdiction of ombudsmen, who as you say, try to find compromises, and also consider the _reasonableness_ of the authority's actions.

i'm not convinced that this would provide the equality of arms that point 1 requires, and which is inherent in (2)-a fair judicial process. the judicial process considers the facts and the law, and the administrative process by which the law is applied to the facts of the individual case, is a mere mechanism of delivery, which is not given any _automatic_ advantage over the claimant. it is a tool, a means to achieve the outcome that the law has provided for, and in law, it has no higher status than that.

the judicial process takes account of the needs of the tool, to the extent that it is required to by statutory provision, _and_ in it's exercise of judgement, which we can assume is reasoned and wise (compassionate).
the OSA takes account of the needs of the authority overall, at a step removed from the starting point of the tribunal process - the facts of the individual case, and the law - it considers whether the authority acted reasonably. an authority can be found to have acted reasonably, if you take account of its needs, even when a wrong outcome decision is made.

an example of what i mean can be found on the disability forum - see the thread started by Carol Obeine. what you have there is decision-making which is general and abstract, not particular - formulaic decision-making, which would suit the statutory authority's administrative needs, because formulaic decision-making can be systematised and computerised, and it would love (for cheapness's sake) to get away from individual decision-making. a complaint about that decision to an OSA body could very well result in a finding that the authority made a reasonable decision, whereas a tribunal finding could be quite different, because the adjudication relates to the particulars of an individual case. this is an extremely important principle, imo, and crucial to article 6.

to go further, i would be extremely concerned if the alternative dispute resolution is conducted in the language (on the terms of) the statutory authority.

commisioners have commented, for example, on the language used by local authorities in 'closing down' HB claims, or 'setting to dead' - administrative terms which have no basis in the law, administered by the authorities. i see this as very important. i am realistic enough to accept that the technical jargonese of administating authorities will evolve on a day to day basis. but there is a danger in this that it creates concepts which have no legal force. (just today i saw a case where a _compliment slip_ told a claimant that his IB claim could not be determined until his wife's JSA claim was 'closed down' - wrong!)

the appeal writing stage is now often the first stage at which the facts of the case are grappled with in a different language from the internal day to day language of the administering authority- the language of the law, and plain unadulterated English. it's at this stage, due to the discipline of language and logic (as opposed to jargonese and procedure) that the realisation often comes home that the decision cannot be sustained, and must be revised.

imo, the importance of this will become more critical, as the current changes ( increased remoteness from the claimant, increased reliance on procedures, decreased training in SS law) take effect.

an alternative dispute resolution, or OSA which does not entail reference to the law in the _language_ of the law, and the consideration of the law, and which does not entail application of the law to the individual circumstances of the particular case, rather than on formulaic bases, must compromise Article 6? I cannot see how an alternative dispute resoltion which meets the requirements of article 6, is anything but a tribunal under a different name, begging the question, what is the point?

the point about justice being seen to be done is also a very important point. it's worth reminding ourselves that the NI system was set up in 1948 with a good deal of care, to create an independent statutory authority, with a right of appeal. the old national assistance board, then the supplementary benefit commission, involved discretion which was eventually adjudged to be unfair, and the means-testing system was
eventually regulated, with an appeal system in line with contributory benefits, in 1980, for reasons of fairness which were considered compelling at the time. (Mrs. Thatcher's time - I assume the ball was rolling unstoppably before then - I can't remember, just as the SS Act 1998 was set in motion before its enactment by the current government, which i do remember!!). it is difficult to see, given the ever-increasing complexity, and predominance of means-testing, any convincing argument for moving away from that position.

the independence of the first tier decision-makers has already been removed and given into the hands of the Secretary of State. The Secretary of State must be aware that moves to diminish access to an independent tribunal hearing, even on the grounds of cost, will be, and will be seento be, abusive of power?

jan

(Sorry if this is leading further from the point but I'll try and come back)

What jj has said here chimes in well with the callcentre thread elsewhere. The process rules mentality which has swept through the whole system. 'I have followed points a,b and c and there is the result', regardless of whether a disabled person is starving at the end.

I'm always repeating it but I take this most recently back to the SSA 1998 whereby Adjudication Officers, an internal, physically seperate group of people from the administrative side, adjudicated, not well maybe but there was training and a degree of autonomy. The merger of admininstration and adjudication was a masterstroke of cost-cutting and very rough justice.

If 'claim lapsed' local authorities are being admonished, what about the Revenue and 'overpayment matter not appeal' on clearly appealable decisions? It's just the same thing coming from a different source.

And all of those are nothing compared to gatekeeper acting as judge issues with callcentres for basic IS and Social Fund claims.

The ombudsman mentality has crept in anyway. Who wasn't at first elated and then appalled by those £50 handouts from Customer Services of the Tax Credit Office? How many untenable £2000 overpayments will now be collected because someone says "Well they've said they're sorry Margaret and have given us £50 for taking six months to answer the letter. We might as well pay it back."

If article 6 doesn't apply to first tier adjudication (which it jolly well ought to) then in this case it's a blessing. They can't have their cake and eat it.

Having looked at the TAS business plan, it seems that prior to the COT consultation steps are being taken. This is one of their objectives:

" Establish a Steering Group comprised of representatives
from the Appeals Service, Disability & Carers Service
and, potentially, Jobcentre Plus (for Incapacity Benefit
interests). The Steering Group will be chaired by Sir
Leonard Peach, the Non-Executive Director of the
Appeals Service. The remit of the Group will be to
investigate opportunities for joint working to explore
the possibility of:

1 Developing and piloting joint approaches in the area
of Early Dispute Resolution (EDR); and

2 Developing and overseeing an agreed programme of
work between the Appeals Service and Disability &
Carers Service that will result in improved decisionmaking,
fewer appeals and fewer adjournments of
appeals relating to disability cases."

I like the look of the membership of that steering group.

Jan

Just to underscore your point about the long standing tradition of independent appeals.

The right of appeal concerning contributory benefits goes back to the turn of the nineteenth century where a right of appeal existed to a National Insurance Local Tribunal when National Insurance schemes where administered locally as a progression from the myriad of friendly societies that existed then.

The right of appeal concerning non-contributory benefits was founded in 1933/4, to an Unemployment Appeal Tribunal. This was conceived as a response to the introduction of the household means test (a forerunner of todays non-dep system) in order, some say, as a means of staving off mass civil unrest at a time of massive unemployment.

To say that this government has little sense of history is something of an understatement.

Regards
Paul

Deja vu there David, I've just been reading the very same report and spotted this proposal - what strikes me as slightly odd, is that there is also a seperate strategic objective to, "Develop national and local partnerships with representative organisations to identify areas for improvement and, ultimately, improve the overall service for appellants", and TAS will work towards this objective in the following manner:

• Establish whether there is a need for a new forum within the agency for engaging representative organisations, at a national level, by July 2005.

• Extend the use we make of local tribunal user groups and the National Customer Representative Liaison Forum to seek their active involvement in identifying opportunities to improve the services we provide.

1. Operational issues related to physically arranging a tribunal i.e. the back-office functions currently run by TAS, costs, etc;

2. Substantive legal argument related to individual appeal cases, and how this is dealt with;

3. All the wider legal issues related to the right to a fair hearing, etc; and

4. Procedural and process issues related to decision-making, both first-tier and higher.
   
   Any more for any more? Please feel free to comment, criticise, confound, or create.....

     

   Top

I Have been following this discussion on what is a very fundemental part of the Social Security system: we have seen quite lengthy dissertations on the subject of costs and costings etc which , although interesting, should have no bearing on the basic subject. I do feel that there are a number of principles that need to be highlighted -

The present system of SSAT's are part of a larger judicial system which is based upon a number of what should be unassailable rights:

The right to a fair hearing.
Equality of arms.
The right to representation of their own chosing.
The necessity for Justice to be seen to be done.

Before anyone reminds me, I know that the purpose of SSAT's is fundementally different to the normal system of Justice in this Country: however, the same principles should be applied in all areas of the justice system.

This system stretches from the everyday magistrates Courts up through County and Appeal Courts to the House of Lords: at none of these levels does one see anyone saying that the present system is too expensive and Representation is slowing the process down and increasing it's costs etc: which is what worries me the most - the emphasis on costs - and indeed the logic that is being applied in the case of SSATs, particularly as evidenced in the extract from the Leggett report below:-

""4.21 There has been evidence since research carried out in the mid-1980s by Professor Hazel Genn (Genn, H and Genn, Y, (1989), The Effectiveness of Representation at Tribunals, LCD), that under the current tribunal regime appellants benefit significantly from representation. We are convinced, however, that representation not only often adds unnecessarily to cost, formality and delay, but it also works against the objective of making tribunals directly and easily accessible to the full range of potential users".


The way I read this paragraph is that whilst claimants benefit hugely from being represented at Tribunal, the very representation that can win up to 65% of DLA appeals (for example) is also responsible for making the Tribunal service more expensive to run, slows them down, and therefore it's services are not as available as they could be to a wider group of (unrepresented) clients, and therefore alternatives should be seriously considered .......

"also works against the objective of making tribunals directly and easily accessible to the full range of potential users".

Are not the Tribunals already accessible to anyone who has a claim which they wish to pursue?

It is the subject of cost that seems to appeal nowadays to those who eventually make the decisions: this is where the Judiciary system runs into the bureaucratic system, and with the latter under pressure to cuts costs, a report such as the one we are looking at must be manna from heaven, which is why some of the apparent misconceptions need to be highlighted and hopefully corrected.

(1) If Justice is to be administered according to the basic principles of Enlish law, which by the way have taken about 1000 years to get to the point they have reached today, then cost should not enter into the equation in the first place: you cannot administer Justice on the basis of the costs of administering it, that is plainly absurd.

(2) The problems that have always existed relating directly The complexity and interpretation of Social Security law are of their own making - the enacting of the basic Act in Parliament, and then giving powers to successive Ministers through the Statutory Instrumemt procedures to fill in the details, often does not make for a clear and concise set of Regulations, as we all know. From the public's point of view, it results in regulations which may as well have been written in sanskrit.

(3) Would not logic dictate that the real reason that the Appeals system exists at all, and why the number of successful appeals are so high, can be attributed directly to the quality of decision making - which does not appear to have noticably improved - once you resolve that issue then (at least in theory) you will substantially reduce the number of appeals - or is that too simplistic?

(4) There is no other system which would offer the client the same guarantee of the right to present his/her case in person, with or without representation, thus denying them their very basic rights.

(5) The right to a fair hearing, in addition to being a part of English Law, is also now enshrined (if that is the word) in the Human Rights act - any move to curtail that right must be in breach of the Act?

One other slightly related issue - there was a move afoot now so long ago to dispense with juries - ostensively on the grounds that some cases where too complicated, or they occasionally found people not guilty in the face of evidenece to the contrary - 10 years ago, no politician or civil servant would have dreamt about tinkering with our judicaial system and the inherent rights contained therein. Does it not worry anyone anymore that it's necessary for discussions such such as this to take place ..............?



DISCALMER

Please note any all views expressed by this subscriber are of a personal nature and do not reflect or represent any official view or policy of this Authority.

Mike, Nevip and Andrew, you might want to have a look at Helena Kennedy's recent book "Just Law" which is, in my opinion, a very interesting and thought-provoking critique of the changing face of justice and why it matters to us all. Of particular relevance is a chapter about the criminalisation of the poor, with a stance that the welfare state is now being used as a tool of punishment and control, rather than relief.

This particular issue of Tribunals and Representation is at the heart of, and is crucial to the system - it is something that I hope will be taken up by all the major Groups who represent clients and the interests of claimants - CPAG, DIAL, NAWRA, NACAB, RNID, RNIB etc, etc - once they recognise the implications.

Anumber of Advisers on Rightsnet making a point or two won't carry much weight anywhere........!

I think that the issue of the cost of the legal system has been on the cards for some time, I don't think governments have ever been very keen on the idea that funsding should be open ended.

For example, if you want to take action in the County Courts you generally have to pay a fee. This includes when your dispute is against the state rather than a private individual eg a review of a homelessness decision. There are exemptions for those on a very low income but don't think that covers many people.

I seem to remember reading somewhere that there had been a policy intention to make the civil courts self funding. Not sure if thats still the intention as it was some time ago when I read this.

Things are going badly for those working in immigtation. I saw a press release this morning that legal aid for reps will now be decided retrospectively by the AIT judge. In other words they could decide that, having done all the work, your case was a waste of time and you're not going to get paid. This could very easily have the no doubt unintended side effect of putting reps off taking immigration cases...

There have been a number of comments about poor quality decision making. However, I think it is more fundamental than that. It is the complexity of the legislation that contributes to both poor quality decision making and the need for representation. I don't think either will ever disappear completely but if the government is serious about reducing the need for reps then it does need to tackle the complexity issue.

The flip side of this is that simplification can be a tool for undermining rights as well. But the Tribunal system itself is actually very simple and is not the cause of the need for representation. For example you don't need pre hearings to argue over admissability of evidence etc unlike the courts.

I think its important to argue that representation itself and oral hearings do not significantly increase costs. There would still need to be a form of tribunal making a decision, which would take time and would need accommodation to put them in. The lions share of the costs of the tribunal system is not caused by the hearings themselves but by back office administration and tribunal expenses which would be there even if it was all paper hearings.

But the advisers on Rightsnet will often be part of some wider network of some description (Advice UK, Law Centres Federation, Citizens Advice, Local Government Association, Age Concern, Youth Access, etc etc), which is why we need a concerted effort from all quarters to demonstrate the force and weight of opinion on these important matters.

That is why i started this thread, Mike, to try to prompt some discussion and promote the need to respond, both individually and as part of wider collective responses also. And as has been noted earlier, one would hope that the CoT would have a sympathetic ear and a supportive approach if we can provide them with information and evidence of the valuable need for SSATs to continue.

None will improve your lot,
If you yourself do not. - Bertolt Brecht, 1933

Yeah Paul it's interesting but a little too like it's just a lot of dictation (to me anyway) and I felt that our stuff was really missed out. But I would say that wouldn't I and she would concentrate on criminal stuff being that way inclined.

I do worry that criminal justice is seen as more important than 'mere' civil matters when say a PCA decision could easily tip someone into crime in the first place.

And Mike that paragraph really bugs me too. It reads that the Genn report says reps are a good thing, but on the basis of no other relevant information we're gonna come to totally opposite conclusions, just because we can and because we want to.

thanks paul, the Prime Minister is reputed to have little interest in history (other than his own place in it.)so there is always the danger that he unwittingly undermines the very foundations of the platform he takes for granted (the post-war concensus that government is benign, and civil society is fair and just).

andrew, that blasted SSA 1998! : ) removing the separation of powers gives increased control to the government, and enables cost cutting. an act carried out with such confidence, one could almost swear that those who thought such a thing was a good idea in the first place must have been idiots. we now have the primacy of administration over the law - the appeal system is the only check. it is not an adequate balance, the SSA 1998 saw to that. - another example from this morning's callers - woman with long term mental health problems - started work, lasted 3 days, and had to give up - reclaimed IB, and has received a letter telling her that her IB claim cannot be determined until she has provided her P45. JC+ strikes again. <sigh>

mike - i agree justice should not be about costs, but if it is, i wouldn't expect government to tell us straight that we, as a society, can't afford justice.

the quality of the delivery of public services has a major impact on civil and social justice, (i'm talking here about the stage prior to any engagement with the judicial dispute system) and the government is well aware of that fact.

the cost of service delivery is a huge matter for the government, and the fact is that the executive has emphasised the administration and management of the social security system over the legislation and the quasi-judicial system created in the legislation. it has sought appropriate 'quality' solutions in IT, and 'process efficiencies', which are paid for by jobs and training, and has entailed an at least partial abdication of its duties to administer the legislative scheme (at first tier level) to the tribunal.

some might describe this as cynical, but it makes sense to accountant types. you risk giving wrong decisions to a minority of claimants, and you risk a proportion of those claimants appealing, with the costs attached. you save on staffing costs, and staff training costs. this is risk management. (business)risks have been taken which were earlier considered inappropriate for public services dealing with peoples' lives. off-line adjudication on IS claims has fallen to 1 or 2 decision-makers per office ('handling exceptions') and IS appeals are down to around 17% of all appeals. plenty of people would say this works well, but of course, there are some big holes in the story, with plenty of cost implications which are off the budget sheet.
where this approach really comes unstuck is with disability particularly, and IB claims. to decide DLA claims to the standard the complex legislation requires would entail not only having highly (and expensively) trained decision-makers considering claims thoroughly, but a lot more of them, to ensure that claims are decided without lengthy delays. the nature of the benefit requires individual consideration. my point is, that the introduction of those risks has taken place already, on the basis that the right of appeal provides the safeguard against injustice. it's already part of the equation, and it would be dangerous not to recognize that, if access to the tribunal is going to be tinkered with.

an added bonus incidentally, of not having fully trained staff administering the system, is that the treasury profits, but as that is not intentional, it couldn't be described as improper.

you might have seen this article on government use of management consultants - public spending on consultants has now topped £1 billion. "what can be measured can be managed."

http://politics.guardian.co.uk/print/0,3858,5214968-110471,00.html

the hilarious news today that the Inland Revenue achieved all of its tax credit performance targets, demonstrates what? the bankrupcy of such philosophies? an unprecedented level of idiocy? you name it.

the problem is, how do you measure the cost of injustice? there is absolutely no guarantee that resentment at injustice manifests itself in the area it was experienced. and what happens if you don't consider it? there is only one way to micro-manage social injustice, and that is to have an all-powerful totalitarian state, which of course, we are not!!!

the DWP and its predecessors have long resisted calls for a discrete watchdog (Offdweep?) organisation. why do you suppose that is?

if it's not all about costs, are there any welfare rights advisers who would believe it's about 'improvements', on the current showing of 'improvements'? i doubt it. so what is left?

on joined up thinking
http://www.lapg.co.uk/news.cfm?news_id=261

apologies again for length.

Sorry, but in my above post I should have said twentieth (century) instead of nineteenth. I'm just off to disembowel my proof reader!

i knew what you meant, Paul. : ) 1906, 1911 and stuff...
it's the strain of remembering this is twenty first century...

oh cue! Make Poverty History!

Before anyone in Whitehall starts taking the Leggett report too seriously, I hope they read very carefully the latest report from Judge Harris on the Appeals Service, (News story 11 July) - yet again, he quite correctly pinpoints the reason why such a high percentage of decisions are overturned at Appeal - poor decision making (and a marked decrease in the number of presenting officers).

As Andy has said, there have been a number of comments about poor quality decision making, and he raises the complexity of the regulations as one of the reasons for this: the way I read it the report from Judge Harris confirms this. As many of us spend our fun filled days interpreting those same regs, and using that same expertise to win an embarrassing number of Appeals, why is it so difficult to expect a DM to have the same level of expertise? No disrespect to DM's, who are under pressure to complete so many cases per day, but If you are going to introduce complex regulations, then you must ensure you have enough officers trained to a standard sufficient to be able to understand and apply them correctly.

I know I keep coming back to this, but the core reason for the Appeals system being in place at all is not the fact that DM's get it wrong now and then, but that they get it wrong on a large number of occasions - I'm sure we've all got libraries full of decisions that defy the laws of logic. Commonsense dictates that if the DWP invested the right level of cash in quality training, particularly in the areas of DLA/AA, then the number of Appeals would decline.

(Would have posted earlier but have been away, enjoying sun kissed beaches etc etc - )

"The inherent vice of capitalism is the unequal sharing of the blessings. The inherent blessing of socialism is the equal sharing of misery".

Winston Churchill

Couldn't agree more Mike. Another interesting finding in this report was that, at point 4.5, it is noted that:

"The main source of additional evidence remains oral evidence, 356 cases, (47% of all overturned cases) largely provided by the appellant"

and under point 4.7 it is noted that:

"4.7 Additional evidence remains the predominant reason for cases being overturned, it was noted as the reason in 50% of overturned cases in 2001, 53% of cases in 2002, 61% of cases in 2003 and 62% in 2004."

So basically, the main source of evidence in making a decision at SSAT is oral evidence from the appellant, and further, this evidence is the predominant reason for decisions then being overturned.

The report then suggests that contact should be made with the appellant prior to the hearing to "establish whether all the facts are correct and whether further light can be shed on their circumstances that might have an impact on the final decision" - now call me cynical, but surely this function is supposed to have already taken place, as part of the revision/supersession/appeal process, within the DWP prior to an appeal actually being lodged? And we know from bitter experience that even when a client is contacted or does submit further evidence, it very very rarely makes any difference whatsoever to the decision in question.

Until such time that DWP decision makers can consistently improve the quality and standards of their work, and until the DWP can regularly and appropriately liaise with their customers to properly reconsider disputed decisions, the need for oral hearings in deciding entitlement to social security benefits remains paramount, if people are not to be wrongly denied their legal entitlements.

(don't rub it in about the beaches, Mike, i'm stuck in a 3rd floor office with a restricted view of a bit of blue sky and the sea but a distant memory.... )

I am a firm believer, cynical though that may be, that the Decision Makers and medical Advisers in the Disability and Benefits Centres do not believe a word that is written on a DLA application form or that they read what is on the claim form in any event since they done away with the self certification application process.
I also believe that they must be under pressure not to award benefit and operate under too srtict guidlines with not enough leeway for discretion which, in turn, saves the government money.

(I'm stuck in the middle of a hospital with no outside window, so I don't know what the weather is like. Is it raining outside?).

It's getting to be more than a little like Alice in wonderland in Whitehall Land - we are now reduced at last to reading two official Government reports which openly contradict each other. In terms of credibility I have a great deal more time for Judge Harris who seems to have a far better understanding of the real world that we and the Appeals Service work in and, (not for the first time) in his report he places his judicial finger directly on the cause of the problem: not only that, his timing is impeccable..........

PS

Paul, you would have loved it - blue seas, gentle breezes, warm crystal clear waters, petrol half price, cigars half price, eating out for less than £10 per head - and the sunsets were out of this world .........OK, so one has to take one's better half, but that's a small price to pay.

Just wanted to bump this up again to remind people that the closing date for responses to the consultation is Friday 2 September i.e. approx 4 weeks.

One interesting statistic that i noticed in the latest Disability Rights Bulletin, produced by Disability Alliance, was that a Parliamentary Question was asked by Frank Field in relation to average waiting times for incapacity benefit appeals to be heard - the reply from the Appeals Service on 9 June 2005 (click here for PQ and response) noted that the average time had reduced from 12.15 weeks in 2000 down to 8.20 weeks in 2004.

So there is hard evidence that the Appeals Service have improved processing times in IB appeals by over 30% in 5 years, which undermines somewhat any statement that, by their nature, appealing to a SSAT is a time consuming process. Now, if the DWP/HMRC can improve their decision making to similar standards, we'll really be moving.

Please find a copy of the LASA response to this consultation - see LASA response

I am wondering anyone thinks it would be worthwhile for me to set up a "consultation responses" area of the new Policy resources section when it goes live?

All views on both response and what would be useful in the new area are encouraged, either here or mail me at ptreloar@lasa.org.uk

Thanks, nice weekend everyone

cpag response @

http://www.cpag.org.uk/cro/Briefings/COT_Consultation_on_Oral_Hearings-CPAG_Response.doc

I attended a meeting/forum with the Council of Tribunals in Bristol on 6/10/05 and it was quite reassuring that they are quite against the notion of getting rid of Reps and Oral at the moment . They also seemed to accept it is decision making where the major fault lays.

Lets hope that they can make the Department of Constitutional Affairs (DCA) listen to the same arguments and accept them, as that is where ultimately such decisions will lie.

On a vaguely related point, there was a report issued by the Better Regulation Task Force yesterday (see rightsnet policy news story), that as well as urging government to reduce the regulatory burden on voluntary sector organisations, is recommending to the DCA that they should:

'review whether the regulations covering the representation of individuals in court need to be modified so that VCS and other organisations may represent individuals when they are best placed to do so' (recommendation 8)

'We believe it would make sense to modify the law (if this is necessary) to give the VCS and others the ability to represent some of their clients in cases when they have far more involvement with them than any public sector worker or where other representation is unavailable. Removing the regulatory practices which prevent this would allow VCS and other organisations to provide a more complete service, save the public sector money and most importantly, help the individual to obtain a better outcome because he or she would be represented by those who knew them best.'

Recieved a letter today confirming the Council of Tribunals will shortly publish a summary of the resposes. And provide access to the full submission if we so wish. No exact date in early part of 2006 is implied.