Memorandum submitted by Tribunals Service (DM 22)

 

 

CONTENTS

 

SUMMARY

 

1. Introduction

 

2. Appeals

- How does the Appeals system work from the claimants perspective?

- Process

 

3. How has the introduction of the Administrative Justice and Tribunals Council (AJTC) impacted upon the appeals process?

 

4. Is the timeframe of appeals reasonable?

 

5. Is sufficient support available to appellants during the appeals?

 

6. Liaison between DWP and Tribunals Service

 

 

SUMMARY

 

 

· The appeals system underpins much of the work done by Tribunals Service Social Security Child Support until 2008 and First-tier and Upper Tribunal since then

 

· Tribunals Service deals with around 250000 appeals against benefit decisions every year

 

· There were 165,872 appeals cleared at hearing in 2008

 

· 42% of appeals were cleared in the appellants favour

 

· The Tribunal Service is an executive agency of the Ministry of Justice (MoJ) and was created on 3 April 2006

 

· The Tribunals, Courts and Enforcement (TCE) Act 2007 received Royal Assent on 9 July 2007. The Act provided a new judicial framework and put a flexible tribunals´ structure in place

 

· Upper Tribunal established in November 2008

 

· 2107 rulings on application for permission to appeal to Upper Tribunal and 1025 decisions on appeals in social entitlement and war pension cases

 

· Target is to bring 75% of cases to hearing within 14 weeks of receipt

 

· 08/09 - 78% of appeals were brought to hearing within 14 weeks

 

· There are a number of initiatives within Tribunals Service to improve service to the customer e.g. a step by step guide to the appeals process, a leaflet assisting claimants through the appeals process, website information and a call service

 

· We are constantly working to improve the position further.

 

 

 

1. Introduction

 

1.1 This memorandum is provided by the Tribunals Service (TS) as a contribution to the Work and Pensions Select Committee's inquiry - "Decision making and appeals in the benefits system".

 

1.2 The current decision making and appeals system was introduced by the Social Security Act 1998 which brought in Decision Making and Appeals (DMA) and the consequential changes to appeals. It saw the introduction of the Appeals Service as an Executive Agency, with its own Chief Executive, within the Department of Work and Pensions (DWP). Prior to DMA, appeals were administered by the Office of the President of Social Security Appeals Tribunals which at that time was a Non Departmental Public Body led by a senior administrator. This new structure resulted in significant organisational and cultural changes which had widespread implications. The aim was to introduce a clearer, simpler, more effective process that would be easier for customers to understand and allow for decisions to be made and disputes handled more quickly

1.3 The DMA regulations were made under the powers in the Social Security Act 1998. That Act set up a new decision making appeals system within social security. The regulations provided the detailed framework for an improved decision making and dispute resolution system, a simplified appeal system and the introduction of a modern, accountable appeals service.

1.4 The need to reform the Tribunals system was initially set out in a review conducted by Sir Andrew Leggatt - "Tribunals for Users - One system One Service". The Government accepted the recommendations of the review, and following on from this The Tribunals Service an executive agency of the Ministry of Justice (MoJ) was created on 3 April 2006. It is an executive agency with responsibility for the administration of appeals. Tribunals outside the Ministry of Justice and its predecessors transferred into the new organisation, as well as new jurisdictions being added. One of the most significant impacts of the then Appeals Service (now SSCS) joining the Tribunals Service was the separation from DWP and the visible independence this brought by physically establishing the division between First Tier Agency decision makers and those responsible for the administration of appeals.

1.5 The Tribunals, Courts and Enforcement (TCE) Act 2007 received Royal Assent on 9 July 2007. The Act provided a new judicial framework and put a flexible tribunals´ structure in place. It brings together individual Tribunals into a new, unified tribunals structure. The primary objective in making these changes is to improve services to all tribunal users by:

· Making clear the complete independence of the judiciary, and their decisions making, from Government.

· speeding up the delivery of justice;

· making processes easier for the public to understand

· bringing together the expertise from each Tribunal

1.6 The TCE Act framework created a new two-tier Tribunal system: A First-tier Tribunal and an Upper Tribunal, both of which are split into Chambers. Each Chamber comprises similar jurisdictions or jurisdictions which bring together similar types of experts to hear appeals. Each Chamber operates under rules and procedures tailored to the needs of individual jurisdictions within the Chamber.

1.7 The title of each Chamber broadly indicates the type of work within it. Details of the First-tier Tribunal Chambers and jurisdictions are as follows:

Social Entitlement Chamber

· Asylum Support;

· Social Security and Child Support; and

· Criminal Injuries Compensation

Health, Education and Social Care Chamber

· Care Standards;

· Mental Health; and

· Special Educational Needs & Disability

War Pensions and Armed Forces Compensation Chamber

· War Pensions and Armed Forces Compensation

1.8 The Tribunals Service administration teams arrange independent hearings for appeals on decisions made by the Department for Work and Pensions (including Jobcentre Plus, Child Maintenance and Enforcement Commission and Pensions and Disability and Carers Service), as well as other government departments (HM Revenue and Customs) and local authorities.

1.9 The Social Entitlement Chamber of the First-tier Tribunal deals with disputes about:

· Income Support; Jobseeker's Allowance ;

· Incapacity Benefit; Employment Support Allowance;

· Disability Living Allowance Attendance Allowance ;

· Medical Appeals;

· Retirement Pensions;

· Child Benefit;

· Child Support;

· Tax Credits ;

· Statutory Sick Pay (SSP)/ Statutory Maternity Pay (SMP);

· Compensation Recovery Scheme/ Road Traffic (NHS) charges;

· Vaccine Damage; and

· Decisions on Housing Benefit and Council Tax Benefit.

 

1.10 The TCE Act also provides a unified appeal structure. Previously there was no single mechanism for appealing against a tribunal decision. Appeal rights differed from tribunal to tribunal. In some cases there was a right of appeal to another tribunal; in other cases there was a right of appeal to the High Court; and in some cases there was no right of appeal at all.

1.11 The Upper Tribunal is a newly created superior court of record with jurisdiction throughout the United Kingdom. Its main functions are:

· To hear appeals from decisions of the First-tier Tribunal;

· To decide some first instance appeals in complex matters that are inappropriate for the First-tier Tribunal

· To take over some of the supervisory powers of the Courts in respect of judicial reviews against the decisions of tribunals and of the government departments and other public authorities whose decisions may be appealed to tribunals; and

· To deal with enforcement of decisions, directions and orders made by tribunals.

1.12 The Upper Tribunal is divided into three chambers. The Administrative Appeals Chamber which deals with appeals from the Social Entitlement Chamber started work on 3 November 2008 followed by the Finance and Tax Chamber on 1 April 2009 and the Lands Chamber on 1st June 2009.

1.13 The Tribunals Service is working hard to continue to improve its current standards of service to our customers through the appeals process. This include a step by step guide to the appeals process, a leaflet assisting claimants through the appeals process, website information, interpreters for the those with hearing difficulties and a phone call service

1.14 The Tribunals Service produces an Annual Report. The 2008-09 report provides comprehensive information on areas such as delivery against objectives and financial performance.

1.15 The Senior President of Tribunals has published three reviews on the implementation of the TCE Act. In his latest review the Senior President highlights any significant changes set out in previous reviews and outlines the plans for the next few months.

 

1.16 Prior to the TCE Act, the President of the then Appeal Tribunals was required to make an annual report based on cases coming before tribunals, on the standards of decision-making achieved by the Secretary of State. The Social Security Act 1998 as amended by the 'Transfer of Tribunal Functions Order 2008' now provides for the Senior President of Tribunals to continue this requirement and make a written report each year based on the cases coming before the First-tier Tribunal. This work is being taken forward by the President of the Social Entitlement Chamber.

 

1.17 Under Section 43 of the TCE Act 2007, there is also a requirement for the Senior President of Tribunals to produce an annual report on matters which he wishes to draw to the attention of the Lord Chancellor and on which the Lord Chancellor has asked him to report on.

 

1.18 We believe that the appeals process in benefits is robust and practical and that it provides an effective basis to deliver services to all our customers. We are constantly working to make it even better.

 

 

2. Appeals

 

How does the appeals system work from the claimant's perspective?

 

2.1 The first Tier Tribunal (Social Security and Child Support) deals with around 250,000 appeals every year.

 

· The volume of appeals received at SSCS from 1/4/07 to 31/3/08 was 229,123

· From 1/4/07 to 31/3/08 there were 165,265 appeals cleared at hearing. In SSCS 72,278 (43.7%) of these were cleared in the appellants favour.      

 

· From 01/04/08 - 31/3/09 SSCS received 242,825 appeals

· From 1/4/08 to 31/3/09 there was 165,872 appeals cleared at hearings in SSCS.

69,773 (42.06%) of these were cleared in the appellants favour. 

 

· So far this year from 1/4/09 to 25/8/09 the number of appeals received is 108,008.

· So far this year from 1/4/09 to 25/8/09 there has been 76,835 appeals cleared at hearing 29,989 (39.03&) of these were in favour of the appellant.

 

Non hearing clearances (cases cleared/disposed of without a hearing) include cases superseded by the department (revised decisions), cases withdrawn by the appellant and cases struck out for non compliance with a direction or return of a form

 

Process

 

2.2 Not every decision made on social security benefits carries a right of appeal.

 

2.3 The decision letter the customer receives informs them if they have a right of appeal against that decision.

 

2.4 Their appeal is made to the office which made the decision they wish to contest.

 

2.5 If a customer believes they do have a right of appeal, and the decision letter says they have not, they may still appeal through the same channels and the Tribunal will make a ruling.

 

2.6 The referring agency submit details to the Tribunal. This comprises a letter or form on which the appellant has submitted their appeal and supporting documents submitted by the appellant or their representative. They also submit all information they deem relevant to the issue/decision under appeal which are known as appeal documents or a submission. On receipt of the details from the referring agency the Tribunals Service issue a pre enquiry form to the customer to be returned within 14 days. If it is not returned within that time, a reminder is issued.

 

2.7 If there is no response to either, the clerk directs the paperwork to a duty Judge for directions, which could include the case to be heard on papers or that an oral hearing should be arranged. The judge may also direct the clerk to write to the appellant giving notification of the intention to commence strike out action, this means Tribunals Service will take no further action with their case as we will assume they no longer wish to continue with their appeal.

2.8 The customer can choose to have their appeal considered at an oral hearing to which they are invited or on the papers by the Tribunal Panel.

2.9 The Tribunal works within what the law permits them to do. They can make a decision on legal entitlement to social security benefits or replace a decision being appealed against with a decision they think should rightly have been made.

 

2.10 The Tribunals Service is a free service with no costs involved for the appellant attending their hearing.

 

2.11 Appellants can claim expenses for travel to and from their hearing and for loss of wages, child minding costs etc. Interpreting services are also provided if required at no cost to the appellant

 

2.12 Decisions are generally given on the day.

 

2.13 The appellant has the right of appeal on a point of law only to the Upper Tribunal (formerly the Social Security and Child Support Commissioners).

 

2.14 Since 3 November 2008 when the Upper Tribunal was established, there have been 2107 rulings on applications for permission to appeal to the Upper Tribunal and 1025 decisions on appeals in social entitlement (social security and child support) and war pensions cases.

 

2.15 There is no right of appeal to the High Court but there is a right (under section 13 of the Tribunals, Courts and Enforcement Act 2007) to appeal to the relevant appellate court on point of law and with permission. In England and Wales the relevant appellate court is the Court of Appeal

 

2.16 There are six appeals from decisions of the Upper Tribunal pending in the Court of Appeal. There are also seven cases pending on appeal from decisions of Social Security and Child Support Commissioners whose jurisdiction was replaced by the Upper Tribunal. In two of these cases the Court of Appeal has referred questions to the European Court of Justice.

 

 

3. How has the introduction of the Administrative Justice and Tribunals Council (AJTC) impacted upon the appeals process?

 

3.1 The Administrative Justice and Tribunals Council (AJTC) were created under powers in the Tribunals, Courts and Enforcement (TCE) Act 2007 and replaced the Council on Tribunals (COT) from November 2007.

 

3.2 The AJTC have a framework document and must make an annual report on its proceedings to the Lord Chancellor. The Scottish and Welsh Committees must make their annual report to Scottish and Welsh Ministers respectively.

 

3.3 The AJTC has a significantly broader remit than the COT. It continues to maintain an overview of the work and procedures within the tribunals within the Tribunal Service and has a new function to keep the administrative justice system under review. It provides a valuable role as a critical friend to the Tribunals Service and its members have contributed to the development of the organisation and its processes in a variety of ways.

 

3.4 For example, a member of AJTC sits on the Tribunals Procedure Committee (TPC). The TPC is an advisory Non Departmental body established by the TCE Act 2007 and is sponsored by the Ministry of Justice. The TPC's function is to make and amend rules for the First tier and Upper Tribunals. Rules made by the TPC are subject to the approval of the Lord Chancellor

 

3.5 The AJTC Annual Report 2008/09 gives information regarding their work with Tribunal Service but it is too early to say what specific impact it is having or will have on the appeals process.

 

4. Is the timeframe of appeals reasonable?

 

4.1 The Tribunals Service considers that the one month appeal time limit is reasonable (particularly allowing for the extension). It encourages people to exercise their rights promptly and ensures their case can be resolved quickly.

 

4.2 SSCS target is to bring 75% of appeals to hearing within 14 weeks of receipt at Tribunal Service.

· In 2007/08 86.92% of appeals were brought to hearing in SSCS before 14 weeks.

· In 2008/09 78% of appeals in SSCS were bought to hearing within 14 weeks

· In 2009 to date the figure for SSCS stands at 66%

4.3 The deterioration in performance is due to the very significant increase in SSCS appeals as a result of the recession. In 2007/08 SSCS dealt with approximately 229,000 cases. In 2008/09 this rose to approximately 243,000 cases and in less than 5 months to date in 2009/10 SSCS have dealt with approximately 108,000 cases.

There has as a result of this increase been an increase in time taken to deal with a case from on average 8.6 weeks in 2007/08 to 10.08 weeks in 2008/09 and 11.2 weeks to date this year. Resources have been made available to help manage this increase, but, the increase in resources has not matched the increase in appeals. The result is that clearance times have deteriorated.

 

4.4 The time limits for claimants to make an appeal are set out in Schedule 1 to the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008[1] that is, normally one month from the date of decision. This may be extended by up to 12 months.

 

4.5 The one month appeal time limit encourages people to exercise their rights promptly and ensures their case can be resolved quickly.

 

· From 1/4/07 to 31/3/08 there were 15,778 late appeals received at SSCS, of those received 10,793 (68.4%) were accepted to go to hearing.

· From 1/4/08 to 31/3/09 there was 14,382 late appeals received at SSCS of those received 9,244 (64.27%) were accepted to go to hearing.  

· So far this year from 1/4/09 to 25/8/09 3,430 late appeals were received of these received 1,668 (48.63%) were accepted to go to hearing.

 

· On average from 1/4/08 - 31/3/09 it took 8.66 weeks from an appeal being lodged at the first tier agency (FTA) to being received at the Tribunals Service.  And on average from 1/4/09 - 25/8/09 it has taken 8.27 weeks from an appeal being lodged at FTA to being received at TS.

 

4.6 During consultation by the Tribunal Procedure Committee (TPC) on rules for the Social Entitlement Chamber a debate arose around the fact the rules didn't provide a time limit for DWP agencies to reconsider decisions which are appealed and to provide a response. Subsequent discussions suggested that there may be scope for reducing the time taken for agencies to respond to appeals and for the Tribunal to deal with them.  

4.7 A programme of work is now being jointly undertaken by TS, DWP, and TPC. This will seek to identify what the barriers are to a quicker end to end process with a view to identifying appropriate time limits for the appeal response. This work holds out the prospect of improving the effectiveness and efficiency of the Tribunals Service and the relevant agencies and most importantly improving service to appellants.

4.8 TS and DWP are setting up a mapping workshop to investigate what changes can be made to the existing process. Initially for the following appeals

· Income Support

· State Retirement Pension

4.9 The purpose of this is to establish what time limits could be set and, credibly, be achieved. The results of this exercise will then be evaluated and, if found to be successful, will be rolled out to a wider programme of work to look at other appeal routes. The initial phase of this work should be finished and a report produced in October 2009.

 

5. Is sufficient support available to appellants during the appeals process?

 

5.1 The Tribunal Service publishes a step by step guide of how to appeal. This leaflet entitled "How to Appeal" explains in details how the process works to help the appellant through the appeal process. This leaflet is also available in an easy read version.

 

5.2 Appellants can seek information or guidance from various sources including Governments Departments and Internet websites including:

 

· Directgov,

· DWP website,

· TS SSCS website.

 

5.3 Advice is available from Welfare Rights Groups, Citizens Advice and Solicitors.

 

5.4 An information leaflet 'your appeal - what happens next' is enclosed by TS when issuing the enquiry form, and introductory letter. This leaflet assists claimants through the next stages of the appeals process. It includes advice on how to complete the enquiry form, returning the form, what happens when TS receive the completed form, preparation for their hearing and information on the hearing itself.

 

5.5 Appellants are given the option to request an interpreter or a signer for their hearing

 

5.6 Appellants are given a time for their hearing and a clerk is assigned to deal with any last minute enquiries and expenses claims they may have.

 

5.7 A note is issued to appellants telling them what happens after the hearing. This is provided with the decision and explains if they won what happens, if they lost what their next steps are in terms of an appeal to the Upper tribunal and if they want a full statement of their decision.

 

6. Liaison between Department of Work and Pensions and Tribunals Service

 

6.1 The relationship between DWP and the Tribunals Service is important. Operational links have to work smoothly. Regular Joint Steering Committee Meetings take place between TS and DWP Agencies. The main aim of these meetings is to monitor and improve the delivery of the appeals process and focus on the level of service provided to the customer.

 

6.2 They provide a forum to discuss performance and provide a strategic overview of the end to end delivery from lodgement of the appeal through to implementation of the tribunal decision. They are held on a regular basis (usually every eight weeks) with other communications and discussions taking place between meetings.

 

6.3 The Pension, Disability and Carers Service and the Tribunals Service have two Joint Steering Committees (JSCs) in place. The JSCs enable both agencies to monitor and discuss appeals arrangements and processes with the aim of improving the end to end service to their mutual customers.

 

September 2009