Transforming tribunals – what CPAG says

 

The Ministry of Justice wants to make radical changes to the tribunals system. This will include making social security appeals ‘entirely online’ and ending multi-member tribunal panels. A consultation has been held prior to the commencement of a pilot testing the proposals in social security appeals.1 Somewhat confusingly, the original consultation was ‘superseded’ and additional documents were added to an otherwise identical set of proposals. See Bulletins.

We have serious reservations about the proposal to move the Social Security and Child Support Tribunal entirely online.

Although the sums of money involved in social security appeals are often relatively small, and it may be appear that current cost of administering those appeals is disproportionate, the outcome of an appeal is of crucial importance to people who are living on a very low income and often facing the challenges of long-term ill health and disability.

As a result, we would argue that the right of appeal against social security decisions must be effective andwe believe that, for the reasons outlined below, the current proposals put that effectiveness at risk.

We do not agree that the channels outlined are the right ones to be able to enable people to interact with HM Courts and Tribunals Service (HMCTS) in a meaningful manner in social security and child support appeals. The reference to ‘paper’ channels appears to preclude the right in any case to an oral face-to-face hearing before a tribunal, something which we consider essential.

There is very good reason to believe that most appellants in social security cases will always be best served by a hearing that involves face-to-face contact with the tribunal. We acknowledge that, in some cases, interaction by (for example) the internet or telephone may be helpful or even necessary. However, we believe these cases should be regarded as exceptions rather than the default. We strongly submit that access to oral, face-to-face hearings should remain an option for appellants, even where alternative forms of contact, including online resolution, are used as an initial stage.

Social security appellants are especially likely to have health conditions and financial and domestic circumstances which make all alternatives to face-to-face contact at a hearing less effective. Poverty, homelessness, physical and mental impairment, poor literacy, language problems and infirmity may all have inhibiting effects on ability to communicate via the internet, telephone, etc. Currently, around 80 per cent of social security appeal receipts concern personal independence payment (PIP) or employment and support allowance (ESA) – the principal benefits for disablement and incapacity. Tribunals and Gender Recognition Certificate Statistics Quarterly: April to June 2016, Ministry of Justice statistics bulletin, 8 September 2016 Research regarding disability appeals found that, ‘the evidence of this study indicates that oral hearing ought to remain an option for all DWP decisions for PIP. In this tribunal jurisdiction, not all claimants are equally able to express themselves in writing, access to representation is now severely restricted, the claim form is ineffective ateliciting importantinformation, and tribunals are assisted in their decision making by being able to see and hear from claimants directly in order to base their decision making on the best possible evidence.’2 Prof C Thomas and Prof Dame H Genn, Tribunal Decision-making: an empirical study, Nuffield Foundation/UCL Judicial Institute, 2013

Further, our experience is that the opportunities for questioning, discussion and observation, important in most appeals, are best achieved through face-to-face contact. Attendance at an oral hearing is very often the first time that an appellant has had the chance to explain, including by response to questions from the tribunal, the facts of her/his case and talk about things like what happened at her/his medical examination. We do not consider that any of the alternative forms of support proposed are an adequate replacement for that.

However, we do acknowledge that in a minority of cases other channels, including telephone, video and online, may be acceptable or even desirable. Caselaw from the Upper Tribunal of the Social Entitlement Chamber has already established that, for example, attendance by a telephone call may be appropriate or necessary – for example in cases involving anxiety or agoraphobia where the claimant will simply never wish to attend an oral hearing.3 For example, DT v Secretary of State for Work and Pensions (DLA) [2015] UKUT 390 (AAC); SW v Secretary of State for Work and Pensions (DLA) UKUT 319 (AAC) However, all these cases concern the correct application of powers already contained in the Tribunal Procedure Rules and a Practice Direction,4 r27 The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685; Tribunals Judiciary Practice Direction, First-tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses, 30 October 2008 and in our view provide no basis of support for a reduction in access to oral hearings.

We agree that in some cases there may be scope for greater flexibility for the Senior President of Tribunals (SPT) to be able to determine panel composition. However, at least in the context of social security appeals, we do not agree that the proposed default arrangement of having the First-tier Tribunal panel consist of one member is the best way forward. As noted above, a large majority (80 per cent) of social security appeals concern disability or incapacity, and a default model of one-member panels would not sufficiently cater for the nature and complexity of such appeals. Multi-member panels in social security cases are essentially limited to disability and incapacity appeals. In other social security appeals, current arrangements already provide for single panel members.5 Practice Statement of the Senior President of Tribunals, Composition of tribunals in social security and child support cases in the social entitlement chamber on or after 1 August 2013, Tribunals Judiciary, July 2013 So, for example, all appeals about jobseeker’s allowance and housing benefit are already considered by single-member panels, as will be the equivalent appeals in universal credit.

We are concerned at the emphasis given in this context to the cost of using multiple panel members. Although we acknowledge the need to ensure that the appeals process is cost effective, we would argue that this must not be at the expense of effective access to justice. Recent statistics show that, regarding ESA decisions, the DWP is currently changing only 11 per cent of decisions at mandatory reconsideration stage, and a mere 4 per cent of decisions concerning fitness for work. Yet such decisions are changed by the tribunal in some 59 per cent of cases.6 Employment and Support Allowance: work capability assessments, mandatory reconsiderations and appeals, DWP, 8 September 2016 This evidence indicates the value of the work currently being done by social security tribunals as currently composed. A better way of achieving value for the taxpayer might be to improve standards of decision making before the appeal stage.

Research regarding disability appeals concluded that, ‘This study has shown that the use of a mixed multi-member panel in disability living allowance (DLA) appeals (one legally qualified and two non-legally qualified panel members) influenced the decision-making process, with almost a quarter of panel members changing their view of the case as a result of the panel discussions…the study showed that the expertise of each type of panel member was relied upon substantially in the appeal. This poses difficult issues for those who might advocate that DLA/PIP appeals be decided in future by a smaller panel.’7 See note 3

Introducing the planned changes to the courts and tribunals system in their September 2016 joint statement, the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals set out a vision based on the three core principles:

While we would entirely agree with each of these principles, and would welcome steps to ensure that tribunals are accessible to those for whom a face-to-face hearing is unsuitable, we would argue that the importance of social security appeals to the individuals concerned and the effectiveness of oral hearings with multi-member panels in achieving a fair result mean that those hearings must be retained as an option for appellants in the Social Security and Child Support Tribunal

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