Memorandum submitted by HH Judge Robert Martin

(DM 27)

 

Summary

 

The President of Appeal Tribunals has produced an annual report since 2000 on standards of decision making, based on a sample of cases coming before tribunals.

The department's decisions are overturned by the tribunal in nearly one half of the appeals. This rate has remained largely unchanged since 2000.

The main reason for overturning departmental decisions is that the tribunal engages directly with the claimant to elicit and make findings of fact to underpin its decisions.

The information that should be provided to claimants to assist them to decide whether to appeal is limited by problems of distribution and format.

The review stage by the departmental offers little advantage over appealling straightaway.

The new tribunal procedure rules are proving useful in removing obstacles in the appeals process.

The continuing failure of DWP to be represented at hearings compromises the neutrality of the tribunal.

The time-frame of appeals is uneven and poorly monitored.

There are regional variations in the level of support provided to claimants. Support can play a critical role, particularly in the early stages of the appeal.

The Administrative Justice and Tribunals Council is a beneficial influence on claimants' experience of the appeals process.

 

Introduction

 

1. In most cases a decision on entitlement to benefit carries a right of appeal to an independent tribunal. Since 3 November 2008 such appeals have been dealt with by the Social Entitlement Chamber of the First-tier Tribunal. Prior to that date benefit appeals were dealt with by the Appeal Tribunal established by the Social Security Act 1998. The Social Entitlement Chamber was formed by an amalgamation of the Appeal Tribunal with 2 other jurisdictions, namely the Criminal Injuries Compensation Appeal Panel and the Asylum Support Tribunal.

 

2. The Chamber comprises some -

 

78 salaried judges

630 fee-paid judges

650 fee-paid members who are medically qualified

440 fee-paid members who are disability experts

15 fee-paid members who are accountants.

 

3. In 2008-09 the Chamber received 242,825 social security and child

maintenance support appeals. The intake is expected to rise by 10% in 2009-10.

 

4. I am the Chamber President. I was formerly the President of the Appeal Tribunal. I have been a judge/tribunal chairman handling benefit appeals since 1985. Before my appointment to the judiciary I represented claimants for 10 years. This memorandum of evidence draws upon my own experience and that of judicial colleagues. It is also informed by research studies.

 

 

Decision making

 

The Effectiveness of the Decision making Process

 

5. Appeals may be regarded as one measure of the effectiveness of departmental decision making. The value of appeals as a measure is limited because -

 

appeals are actually made in a very small fraction of cases, perhaps some 2% of the appealable decisions made by DWP.

 

appeals are unlikely to constitute a representative sample of departmental decisions. They are self-selected. Unsurprisingly, appeals are, in the main, brought against decisions to refuse benefit, but the tribunal does encounter a number of cases where the validity of a decision to award benefit is in issue. Such cases typically involve the recovery of an alleged overpayment or derive from an application to change or renew an earlier decision awarding benefit.

 

the appeal is by way of a fresh determination. In other words, the appeal may succeed not because the department's decision is flawed but because the tribunal arrives at a different conclusion. Many benefit appeals are finely balanced on their facts and a decision to uphold or to dismiss the claim can be equally rational. It is these 'borderline' cases that are arguable either way, that constitute much of the tribunal's workload.

 

the tribunal may get it wrong.

 

6. The Social Security Act 1998 placed a duty on the President of the Appeal Tribunal to supply a report annually to the Secretary of State (for Work and Pensions) on the standards achieved by the Secretary of State in decision making. That duty has now been carried forward as part of the reporting functions of the Senior President of Tribunals. The annual report is published by the relevant Secretary of State and copies placed in the libraries of both Houses.

 

7. The President's report is based on cases coming before the tribunal, using a method of sampling and analysis originally agreed with the department for the compilation of the first report in 2000-01. The most recent report covers the period 2007-08. A sample of 1,886 appeals was used. The sample reflects the range of appeals by type of benefit, save that child support maintenance appeals (which constitute only about 1% of the overall intake) are slightly over-represented in order to generate meaningful data.

 

8. The crude success rates (from the claimant's perspective) of appeals across the overall intake are available from the Tribunals Service's computerised case administration system. Thus, in 2007-08 the tribunal overturned the department's decision in 44% of the 165,265 appeals that reached a hearing and upheld the department's decision in 56%.

 

9. The object of the President's report is to shed light on why departmental decisions are overturned. It does so through the device of the tribunal, in the sampled appeals, completing a questionnaire that sets out a list of possible reasons. Examples include -

 

'The tribunal was given additional evidence that was not available to the decision maker'

'The facts were not in dispute but the decision maker had misconstrued their effect in law'

'The decision maker did not give relevant facts/evidence due weight'

 

The tribunal may give more than one of the standard reasons or add its own explanation.

 

10. The proportion of departmental decisions overturned on appeal and the reasons why vary from benefit to benefit. If we look, for example, at the category of disability living allowance and attendance allowance appeals, the proportion of decisions overturned in 2007-08 was 48%. The commonest reasons given in the sampled cases for overturning included -

 

The tribunal was given additional evidence not available to the decision maker 73%

The tribunal formed a different view of the same evidence 30%

The tribunal accepted evidence that the decision maker had available but was not willing to accept 24%

The tribunal formed a different view based on the same medical evidence 19%

The medical report under-estimated the severity of the disability 17%

 

The tribunal is also asked whether, in its opinion, the department could have avoided the appeal. In this category of benefit, only 4% of the sampled appeals were thought to have been avoidable.

 

11. The analysis contained in the President's report has to be read in the context of what actually happens in tribunal hearings. The "additional evidence" given to the tribunal and not available to the departmental decision maker is seldom an influential document such as a consultant's report presented to the tribunal at the eleventh hour by the claimant. This does happen but rarely. In the majority of cases the critical additional evidence is the oral evidence of the claimant. It is not so much "given" to the tribunal as carefully and skilfully elicited by the tribunal through questions asked of the claimant. Similarly, the tribunal's willingness to accept evidence or, indeed, form a different view of the same evidence is influenced by its opportunity to engage with the claimant face to face and use question and answer to test the evidence. Many appeals concerning disability or incapacity turn on the credibility of the claimant's evidence. It is not surprising that the success rates of appeals where the claimant attends the hearing are more than double those where the claimant does not attend, leaving the tribunal to reach its decision on the basis of the appeal papers only. Very few departmental decisions are overturned for getting the law wrong.

 

12. The assessment that the department could have avoided the appeal in only 4% of the overturned cases similarly has to be interpreted in the context of the appeals process. The tribunal tends to reserve this assessment to those cases where the decision maker has demonstrated a conspicuous error, for example, overlooking a material piece of documentary evidence among the case papers. The tribunal does not ask itself whether the appeal could have been avoided had the department adopted a different approach to its decision making. Nor does the tribunal take the view that evidence might reasonably be considered "available" to the decision maker where it only needs the decision maker to ask the right questions of the claimant.

 

13. Before the introduction of major changes to departmental decision making by the Social Security Act 1998, there was a degree of consistency of approach across the different levels of the "adjudicating authorities", namely adjudication officers, appeal tribunals and Social Security Commissioners. The characteristics of the approach involved proactively gathering evidential material, a deliberative weighing of evidence and an independent-minded exercise of judgment, supported in the case of adjudication officers by a Chief Adjudication Officer, who produced an annual report on standards of adjudication.

 

14. The changes introduced pursuant to the 1998 Act removed adjudication officers, including the Chief Adjudication Officer. The power to make decisions was vested instead in the Secretary of State, who, of necessity, could only exercise that power through administrative staff labelled, almost in default, "decision makers". Evidence gathering by engagement with the claimant gave way to data processing from forms. The exercise of judgment was displaced by increasingly prescriptive regulations, which did nothing to simplify the conditions of entitlement from the claimant's point of view.

 

15. In contrast, the appeal tribunal continues to occupy what now appears to be a relatively privileged position. This centres upon the hearing as a means of establishing the facts of the case by engaging directly with the claimant. While a hearing can prove taxing for the claimant, many comment that the tribunal is the first human face they have seen in the entire process of claiming benefit. Bearing in mind that many claimants struggle to cope with official forms, meeting the tribunal to explain their circumstances plainly is a demonstrable advantage.

 

16. Finance has clearly been a strong, if not the strongest factor in the department moving away from a system of adjudication. The approach epitomised by the tribunal is not, however, extravagant. The unit cost to the government of an appeal is in the range of 235, of which the judicial cost is about 175. It may have been a false economy to strip out at departmental level key features of adjudication, saving money on administration at the expense of wrongly awarding benefit where the qualifying conditions have not been met and wrongly denying benefit to those entitled.

 

Appeals

 

The Appeals System from the Claimant's Perspective

17. Insight into the claimants' perspectives of the appeals process is gleaned by the tribunal from -

 

feedback given at tribunal users' forums. There is a National Customer Representatives Liaison Forum, which involves disability organisations, welfare rights services and advice agencies. At the local level, some 50 user groups meet twice a year with members of the judiciary and the Tribunals Service

the complaints procedure

surveys

engagement with claimants in the course of appeals.

 

18. The start of the appeals process is preceded by a decision on the part of the claimant to seek redress. The idea of challenging a government department by instituting legal proceedings is a big step for most people.

 

19. There are two initial obstacles. Firstly, public awareness of tribunals generally is very low. Media coverage of tribunals dealing with benefit appeals is particularly rare. The notion of being involved in legal proceedings typically conjures up images of the courts, and especially the criminal courts. Trying to create a distinctive and welcoming image for something called "the Social Entitlement Chamber of the First-tier Tribunal" is a marketing challenge that the Ministry of Justice has yet to take up. Two-thirds of claimants have never been involved in any kind of legal proceedings.

 

20. The second obstacle is the low level of knowledge of the appeals process. To make an informed choice to appeal requires an appreciation of what would be involved in time, cost and effort, set against the chances of success. The Tribunals Service has produced a 30 page step by step guide (available in hard copy and on the net), which provides this information but its distribution has proved a problem. The best time to read the guide is when you've received a letter from the department turning down your claim and notifying you that you have a right of appeal. However, the department has declined to add a strapline to its decision letters, giving a Freephone number where claimants can obtain a copy of the guide.

 

21. Bearing in mind that nearly half of appellants struggle with official correspondence, it would be helpful if the guide were also available in a DVD format. The Ministry of Justice has funded an informative DVD for prospective appellants in criminal injuries compensation appeals. The scale of operation in benefit appeals (some 100 times greater than criminal injuries) will always be deterrent in cost.

 

Reconsideration or Appeal

 

22. DWP's own literature on challenging a departmental decision may lead to confusion. The department is rightly concerned to offer alternatives to an appeal, for the tribunal itself would be among the first to admit that pursuing an appeal can be a daunting experience. The department's preference is to divert claimants away from the appeals route into its own "disputes process", which invites claimants to ask DWP to "reconsider" decisions that they feel to be wrong.

 

23. Reconsideration involves the department looking its original decision again. The outcome may be confirmation of the original decision or a fresh decision. The fresh decision may be wholly or partly more favourable to the claimant or could leave the claimant worse off than before. If the claimant remains dissatisfied, he or she can choose to appeal against the original or revised decision.

 

24. What is the advantage for the claimant in asking for a reconsideration rather than lodging an appeal straightaway? Lodging an appeal is free, informal and involves scarcely more effort than writing in asking for a reconsideration. Asking for a reconsideration carries the risk of delay and further correspondence should the outcome be no improvement over the original decision. If a fresh decision does bring an improvement, the appeal will automatically lapse without the need for the claimant to withdraw it.

 

25. The key question is whether the department will look at a case with fresh eyes when a request is made for a reconsideration. The tribunal does not have access to statistics showing how many departmental decisions are changed as a result of reconsideration. It does, however, see many appeals where the reason given by DWP for abiding by its original decision is "No new medical evidence provided", which suggests an unduly narrow approach to looking at the original decision - one without an open mind.

 

26. Looking at a case again, once an appeal has been lodged, ought to bring about a different approach, since the department is now, strictly speaking, engaged in legal proceedings. The approach that the tribunal believes should be adopted by DWP is not for the original decision maker, or a fellow decision maker, to say, "Would I have made the same decision as before?" but rather, "Could I defend this decision in front of a tribunal?" The Compensation Recovery Unit (which deals with appeals concerning the recovery of benefits paid to accident victims) has consciously adopted the latter approach and seen the number of appeals against its decisions plummet. Other departmental agencies have yet to follow suit.

 

The Appeals Process

 

27. Once an appeal is under way the procedure is kept to the minimum necessary to ensure a fair and speedy resolution. One major obstacle to the smooth progression of the appeal is currently being tackled. Prior to 3 November 2008, the regulations covering tribunal procedure stipulated that DWP should send the appellant an enquiry form for completion (the "TAS 1" form). That form asked the claimant for information that would assist the Tribunals Service in making arrangements for handling the appeal, such as whether the claimant wanted a hearing, had a representative, need an interpreter. A notice accompanying this innocuous form contained a warning that if it was not completed and sent to the Tribunals Service within 14 days of receipt, the appeal would be struck out. Each year the Tribunals Service automatically struck out 70,000 appeals for non-return of the TAS 1. Some 20,000 claimants whose appeals had been struck out in this summary fashion felt so aggrieved that they complained and had their appeals reinstated. What happened to the other 50,000 was never pursued. Their appeals were simply closed down, without passing through judicial hands and regardless of their prospects of success.

 

28. The introduction of new procedural rules on 3 November 2008 (rules which were for the first time drafted by an independent body) has brought about a significant improvement for claimants. The new rules removed the administrative power of strike out and the Tribunals Service has adopted, notwithstanding the additional cost involved, a new user-friendly approach. Instead of the TAS 1 form issued by the department, now the Tribunals Service sends out a welcoming information pack containing a modified enquiry form. A reminder letter and offer of telephone contact follows if the enquiry form is not returned. If there is still no response from the appellant, the file is referred to a judge to decide how the case should be moved forward to a fair conclusion. Where, for example, it appears that the appellant may have difficulty in dealing with official correspondence, the judge may direct that the appeal goes straight to a hearing before the tribunal. Early analysis of the results of these procedural changes indicate that some 1,200 claimants a year who would, under the old rules, have had their appeals automatically struck out, are now having their appeals upheld by the tribunal.

 

29. Appeal hearings are held at throughout a network of over 120 venues. The importance of the claimant attending the hearing means that the tribunal strongly believes in local access to justice. It has consistently resisted attempts to "rationalize" the network, being acutely aware that the closure of a venue can result in serious travelling difficulties for tribunal users who, disproportionately, are disabled, poor or otherwise disadvantaged, and their representatives, who are mainly drawn from the voluntary sector.

 

30. The emphasis at a tribunal hearing is upon striking an appropriate balance between creating an informal atmosphere, which counters the tension of appearing before a tribunal, and maintaining sufficient structure to comply with the requirements of due process. So -

 

the hearing takes place in a room unadorned with the trappings associated with courts

everyone is seated around a table

no one wears wigs and gowns

the judges are called "Mr" or "Mrs/Miss/Ms"

evidence is not usually given on oath or affirmation

there are no strict rules of evidence

the tribunal will take the lead in asking questions.

 

31. A conspicuous absence from the hearing is the department. In only 16% of hearings does the department send a representative (traditionally known as a "Presenting Officer"). The failure of DWP to participate in the hearing has been the subject of adverse comment in every President's report since 2000-01 (when the attendance rate was comparatively high at 40%) and has also attracted criticism from the Social Security Commissioners. The Child Maintenance Enforcement Commission (formerly the Child Support Agency) is an honourable exception, sending a Presenting Officer in 80% of its appeals.

 

32. It is a matter for DWP whether it thinks its non-attendance results in more or fewer appeals being allowed or, indeed, makes no discernible difference. From the tribunal's perspective, the department's non-attendance creates two problems. Firstly, the neutrality of the tribunal is compromised in the claimant's eyes. So that the claimant (particularly an unrepresented claimant) is able to participate fully in the proceedings, the tribunal will do its best to ensure that the claimant understands the decision under appeal and why it was reached. In the absence of the department, it is left to the tribunal to explain the department's case. In explaining the department's case, it is difficult for the tribunal to avoid being seen as the department's spokesman. The commonest complaint against the tribunal is that it does not appear even-handed.

 

33. The second drawback is that, by opting out of the hearing, DWP loses a valuable source of feedback on the quality of its own decision making. A Presenting Officer can act as the eyes and ears of the decision maker, relaying what was said by the claimant and witnesses, how the tribunal approached the evidence, what carried weight with the tribunal, how similar cases might be handled differently in future by the decision maker.

 

34. The proportion of departmental decisions that have been overturned on appeal has remained more or less constant since 2000-01.

 

35. There is a right of appeal against the tribunal's decision. Prior to 3 November 2008 appeal lay to the Social Security Commissioners. Since that date the Commissioners have formed part of the Upper Tribunal. An appeal to the Upper Tribunal can only be made for error of law and leave to appeal is required. The majority of applications for leave are refused. In 2007-08 1,930 appeals granted leave were heard by the Commissioners. In more than half, the tribunal's decision was set aside and the case remitted to a fresh tribunal for rehearing.

 

The Time-frame for Appeals

 

36. The time-frame of appeals is uneven and difficult to monitor. From the claimant's perspective what counts is the time taken from the start of the process (namely, lodging the appeal) to the final outcome (typically, the tribunal giving its decision). Unfortunately, government does not track an appeal by the end to end process but measures the involvement, at various stages, of the different departments.

 

37. The time-limit for appealling was reduced in 1999 from 3 months to one month. Although the limit may be extended by the tribunal, it places considerable responsibility upon claimants and is very tight in comparison to other court and tribunal jurisdictions. In 2008-09 the tribunal received some 15,000 applications for an extension of time, most of which were granted.

 

38. An appeal is lodged by sending it to the office of the department which made the decision being appealed. Unlike most other jurisdictions, the proceedings are not started by being filed at the court or tribunal. The next stage in the appeal process is for the department to produce a submission (now known as a "response"). The submission outlines the facts of the case, as found by the department, a summary of the applicable law and copies of documents used to support the decision. It can run to between 100 and 500 pages. The procedural rules do not oblige DWP to produce its submission within a specific time. Target- times (varying between 28 days and 90 days, according to the category of benefit) are contained in "Service level agreements" between the department and the Tribunals Service but such agreements are meaningless so far as the claimant is concerned. In 2007-08 the average time taken from the appeal being lodged to the department producing its submission was 63 days. Being an average, there were instances of delays of 6 months or more.

 

39. The Tribunals Service has been set a target by the Secretary of State of bringing 75% of appeals to hearing within 14 weeks of the receipt of the appeal from the department. In April 2009 the average waiting time for all appeals was just under 13 weeks. Again, the use of an average is perhaps not the most useful statistical measure. No attempt is made to have different tracks according to the urgency of the appeal.

40. In approximately 98% of appeals the tribunal will deliver its decision on the day of the hearing. In most cases the decision is announced at the end of the hearing. A printed decision notice handed to the appellant and a copy e-mailed to DWP, if no Presenting Officer attends.

 

Supporting the Appellant

 

41. Unsurprisingly, the ability of claimants to manage their appeals without support varies greatly. The complexity of social security law defeats all but a few. Its opacity has drawn critical comment from the higher courts and the Commissioners. Its obtuseness increases. By way of example, there used to be fairly straightforward rules of review which provided that a decision on benefit could be changed if it had been based on a mistake or there had been a subsequent change of circumstances. In 1999 a more prescriptive regime was introduced which replaced straightforward "review" with the twin concepts of "revision" and "supersession" and attempted to codify the circumstances in which revision and supersession might apply. At the last count, those circumstances ran to 81 paragraphs and 33 sub- paragraphs.

 

42. Skilled advisers can play an important role at the point when a claimant is considering whether to appeal or not. The adviser can generally indicate when an appeal would have no realistic prospects of success. (Not every decision of the department, for example, carries a right to an appeal.) Conversely, the adviser can encourage the claimant to pursue a case that is strong.

 

43. Prior to the hearing, the value of the adviser primarily lies in assisting the claimant to gather evidence. An adviser with access to funds may, for instance, be able to pay for the expense of a medical report.

 

44. At the hearing, the inquisitorial role of the tribunal may reduce the "added value" of being represented, since it is usually the tribunal that will take the lead in asking questions of the claimant and any witnesses. The scope for advocacy is circumscribed. This observation should not be taken as diminishing the immense benefit to the claimant of having the presence at the hearing of someone to provide support.

 

45. The level of professional representation varies across the country. It is usually a function of local authority expenditure. Currently, representation varies from 64% of cases in Scotland to 13% in the south-east of England. The absence of legal aid for tribunal representation is a substantial saving for government.

 

The Administrative Justice and Tribunals Council

 

46. The Administrative Justice and Tribunals Council has an impact on claimants' experience of tribunals in two ways. Firstly, the Council plays an influential part in the process of drawing up the tribunal's procedural rules by championing the users' interests. Secondly, it performs a monitoring function by carrying out observations of tribunals in action and appraising their performance. It is a little too early to say whether the AJTC is more effective in its role than its predecessor, the Council on Tribunals.

 

September 2009