Memorandum submitted by Lancashire County Council

(DM 28)

 

1.1 Lancashire County Council is the fourth largest Council in England and Wales. The County Council's Welfare Rights Service ('the Welfare Rights Service') is located within the Adult and Community Services Directorate of the authority. Established in 1987, we are a non- statutory service dedicated to providing the 1.17 million residents of Lancashire with information, advice and advocacy to enable them to secure their legal entitlements within the benefits system. Six area teams deliver a casework service to all types of client groups, and we also have a specialist benefit take-up team.

 

1.2 The Welfare Rights Service is one of the main providers of benefits appeal tribunal representation in Lancashire and in 2008/2009 represented at 485 appeal hearings (with a 69% success rate for appellants). In addition to tribunal representation, a significant proportion of our casework activity centres around helping customers understand the decisions taken on their benefit/Tax Credit claims and, where appropriate, help them challenge these decisions through formal and informal decision-making processes.

 

1.3 It is with over 20 years of experience of benefits decision-making processes and appeal representation (and the resulting impact on the lives of claimants), that the Welfare Rights Service welcomes the opportunity to respond to this Select Committee Inquiry. This response is based on evidence/comments provided by our frontline benefits advisers, and (where possible) includes recent casework examples relating to the issues raised.

 

1.4 Representatives of the Welfare Rights Service are also active members of the Local Government Association's Social Security Advisers Group. This submission is presented as a supplement to the response already submitted by that Group.

 

1.5 As evidenced throughout this document, our primary concern regarding the decision-making process in the benefits system is the actual quality of the decisions being made, and how decisions are notified/explained to claimants.

 

1.6 Our main improvement suggestions are:

 

more, better-trained decision-makers

the rigorous use of claim checking processes

full implementation of the DWP 'Working with Representatives' guidance across the Department

improved decision notices

claimants provided with clearer information about the decision- making process

improved liaison between DWP agencies (e.g. Jobcentre Plus) and the Department's Debt Management Service

a review of the Tribunals Service arrangements regarding the listing of appeal tribunal hearings.

 

Decision-making

 

2. How effective is the decision-making process? Could it be improved? If so, how?

2.1 The main concern raised by the Welfare Rights Service's advisers is the over-reliance of DWP decision-makers on medical 'opinion' provided by DWP Medical Services when determining disability and incapacity-related benefit claims. Evidence suggests that benefit entitlement decisions - e.g. for Disability Living Allowance (DLA) are being made without any claimant-specific corroborative evidence being obtained by the decision-maker to support their determination. As evidenced by the examples below, the information supplied by claimants is often dismissed without obtaining relevant clinical information as to how their medical condition(s) impact on their actual care needs or mobility difficulties.

 

2.2 It is acknowledged that decision-makers will often need advice on particular claims, e.g. to help them analyse the information provided by the claimant. However, in our experience, this often results in the decision-maker accepting the 'opinion' given by the DWP's Medical Service, even if it contradicts medical evidence provided by the claimant's own GP/consultant. It is often apparent that the decision-maker has no understanding as to how to 'weigh up' medical evidence provided to them. It often appears as if they look at one aspect of the claimant's condition etc without considering the bigger picture e.g. how multiple conditions interact to restrict functions. Our advisers are reporting that, for DLA claims, DWP Medical Services reports based on an actual examination/face-to-face interview with the claimant are becoming increasingly rare - with an increasing number of cases being referred for a Medical Services 'opinion' instead.

 

2.3 Decision-makers' continuing failure to carry out proper reconsiderations when decisions are challenged not only results in appeal tribunal hearings that could have been avoided, but also increases the distress claimants face when their 'evidence' is, in their eyes, unreasonably dismissed. It is not unusual for claimants not to proceed to the appeal stage of the decision-making process (even though they may have a good case) because they cannot cope with the stress of attending an appeal tribunal hearing.

61 year old woman with multiple health problems. Our adviser helped her complete a DLA claim form. The adviser felt an award of higher rate Mobility Component and at least the lower rate Care Component would be appropriate. However, the claim was completely disallowed, based on the opinion of an 'approved disability analyst' who is neither a doctor/consultant, nor has seen the claimant, nor accessed medical evidence regarding the actual effects of the claimant's health problems. This case is now the subject of an appeal. Neither the claimant, nor our adviser, can understand why this claim has been totally disallowed.

 

 

 

39 year old man with severe abdominal problems, which have not responded to surgery. DLA claim disallowed, again based on the opinion of an 'approved disability analyst' - which on this occasion totally contradicted a report provided by the claimant's consultant regarding the severity of his condition. The claimant was too ill to attend the appeal tribunal hearing, however his claim was successful, and the higher rate Mobility and the highest rate Care Components awarded.

 

2.4 Incorrect decisions also continue to be made on a regular basis (most notably in relation to Pension Credit), the most common being reported are the date a claim takes effect (e.g. awarding premiums following an award of a qualifying benefit from the wrong date) or paying the wrong weekly amount (e.g. missing out relevant premiums). This could be improved by better training of staff, but more importantly having better claim checking systems at all stages of the decision-making process.

 

63-year old woman contacted the Pension Service to check if a lodger moving into her home would affect her Pension Credit entitlement. She was correctly advised by them that it would not. Sometime later, the decision was revised, and benefit accordingly reduced (by over 50 a week). The claimant appealed. There were a number of errors in the DWP's appeal submission, including reference to the wrong regulations. The appeal tribunal panel did overturn the Pension Service's decision, and the claimant's benefit was fully re-instated. [The appeal tribunal hearing was also arranged without notification to the claimant or adviser. The claimant only found out about the hearing a few days beforehand, when she rang to follow up the action being taken on her appeal. This is not an isolated incidence.]

 

2.5 A frequent topic for discussion at our in-house Practitioners Forum, where advisers share/discuss casework issues, is the persistent failure of DWP staff to correctly apply their Department's 'Working with Representatives' guidance regarding the sharing of claimant information with intermediaries. The guidance offers the opportunity for DWP decision-makers and advisers to work together to improve the quality of decision-making. Being able to discuss (and resolve) 'problem areas' with a decision-maker at an early stage of the decision-making process would hopefully reduce the need for so many of our cases being escalated into appeals/complaints/referrals to MPs or the DWP Chief Executive's Office. Instead, advisers are often unable to escalate their enquiries etc beyond the Helpline staff, and are normally told to write in. However, there is extensive evidence that these letters that are not responded to and telephone calls not returned, particularly in regard to Pension Credit claims. Our advisers often report that a lot of their follow up work with this benefit is following up on letters. Surely, being able to talk to a decision-maker would be a more effective use of resources for all concerned. One of our advisers now regularly escalates enquiries/complaints about very basic Pension Credit decisions to the DWP Chief Executive.

 

87-year old woman living in a residential care home. Number of claims for Income Support (Minimum Income Guarantee) and Pension Credit made since 2002 that do not seem to have been satisfactorily resolved. Most recent activity concerns a claim for Pension Credit initiated by local Pension Service staff at the end of 2006. The claim was disallowed, and an appeal submitted on the claimant's behalf. A number of late appeals and complaints were submitted by our Service throughout 2007 and early 2008, without any satisfactory resolution by the Pension Service. A referral to the DWP Chief Executive was made in April 2009, and a revised decision regarding entitlement (and arrears of benefit) finally issued early August 2009 - and the case referred for a compensation award.

 

2.6 DWP delays in issuing decisions are also being reported by our advisers at each stage of the decision-making process, which does not appear to be caused by the lack of evidence/information available to the decision-maker. This is more likely to be the case with more complex issues such as housing costs to be included in means-tested benefits like Income Support, but is not unique to these issues.

 

3. Are there sufficient numbers of decision-makers and is the training they receive adequate?

 

3.1 The delays in processing claims and making decisions would indicate that there are insufficient numbers of decision-makers. The quality of decision-making, as evidenced elsewhere in this document, also raises concerns about the amount and standard of training that decision- makers receive.

 

3.2 Our Take Up Team advisers were told at their last local Pension Service liaison meeting that managers were aware of the extent of wrong decisions being made and were arranging further training for staff. However, no improvement has been noted to date.

 

4. Is the decision-making process clear to claimants?

 

4.1 In our experience, claimants do not fully understand the decision- making path. One reason for this is the fact that it is not clearly explained on decision notices. Decision notices make no reference to the process or possibility of reconsideration if the claimant thinks that the decision is wrong or if there is some extra information that was missed etc. The decisions only invite a claimant to get an explanation or to lodge an appeal. Claimants certainly do not understand or follow the reconsideration - review - revise - supersession process, especially if there have been changes of circumstances. As a result, it is not always clear when claimants contact the Welfare Rights Service whether a decision is under review or appeal. Claimants will have often telephoned the DLA Unit, for example, to complain about the decision and just been told that someone will look at it again. However, it will not necessarily have been explained to them that this is the start of the process for officially challenging the decision - nor will they necessarily understand that additional supporting evidence would be helpful at this stage.

 

4.2 Another reason for the lack of clarity in the decision-making process is that DWP/HMRC still issue standardised, computer-generated decision notices/letters that contain little, if any, relevant factual personal information about a claimant's circumstances. This is a particular issue for DWP correspondence relating to DLA/Attendance Allowance claims. From the claimants' perspective, the information contained in such letters is often contradictory. For example, someone with anxiety problems, resulting in difficulties going outdoors without supervision or guidance, was told that the reason their claim had been disallowed was because they are "not anxious outdoors".

 

4.3 DLA/Attendance Allowance decision notices also tend to make reference to the basic qualifying criteria, yet not explain why the decision-maker thinks these are not met in the claimant's case. For example, simply saying "you are not virtually unable to walk", of itself, is of no real help to a claimant (or adviser) when deciding if they have legal grounds to challenge the decision. What would be more helpful would be a full explanation as to why a customer's needs do not meet the relevant criteria. This information should be made available to the claimant at the time the decision is issued.

 

4.4 Standardised, computer-generated letters are not unique to DLA and Attendance Allowance. Nor is the confusion they cause for claimants. There should be some process in place at DWP/HMRC decision- making teams for the checking of the clarity of the notices and letters issued to (individual) claimants; currently, the onus (and costs) for follow up rest with the claimant (and their representatives). It is our view, that issuing a standard "just ring us if you want any more information" paragraph on decision notices is insufficient execution by the DWP/HMRC of their decision-making responsibilities. In order to exercise their full legal rights under the decision-making process, claimants need to have a meaningful decision right from the start.

 

One of our customers received a decision letter regarding his Jobseekers Allowance (JSA) claim. It said that he was not entitled to JSA, then later in same letter it said an amount of JSA would be paid into his bank account. The letter did not state that the refused element was (Income-Related) JSA and that he would actually be paid (Contributory) JSA. It was impossible for the claimant (or adviser) to identify which was which.

Another customer was sent a letter advising him that he had been awarded Employment and Support Allowance (ESA). This letter was accompanied by a factsheet about Incapacity Benefit and an information leaflet telling him what to do if he did not agree with the amount of JSA he had been awarded! No wonder the claimant did not know what benefit was going to be paid.

 

4.5 Very often claimants will receive a girocheque (or money paid into their bank account etc) without any correspondence advising them what the payment is for (nor the period it covers).

65-year old woman applied for a Severe Disability Addition to be included in the assessment of her Pension Credit in July 2008. In August this year, she received arrears for the period from April 2009. No correspondence has been sent to the customer regarding this decision.

 

4.6 Sometimes decision notices are never issued, and the decision-making process for the claimant never starts, or is significantly delayed.

 

60 year old man claimed JSA after being made redundant. He subsequently made a claim for Pension Credit for him and his wife. On following up this claim two months later, he was advised that it had been disallowed because JSA was still in payment. Customer was advised to reclaim when his JSA award expired. No decision notice regarding the Pension Credit claim had ever been issued, and it is unlikely that the claimant would have been aware of the outcome of his claim if he had not instigated the follow up telephone call.

 

4.7 Decision notices, even if technically correct (as evidenced in the JSA example above), can leave claimants (and their representatives) - and local authority staff determining entitlement to passported benefits e.g. free school meals - unclear as to the exact nature of entitlement. Like the JSA decision notice, the ESA decision notice does not state which element of ESA the claimant has been awarded. In some instances, this is difficult for experienced benefits advisers to determine; for local authority staff who are not benefit specialists this can be virtually impossible. Lancashire County Council staff who determine entitlement to free school meals have contacted the Welfare Rights Service on a number of occasions to ask our opinion as to whether a family should qualify.

 

 

 

 

The response from DWP when the problems with the ESA decision letters were brought to their attention:

 

Printed ESA award notifications do not distinguish between ESA income related and ESA contribution based awards, however, they do contain information on the amounts awarded. You may be aware that in order to deliver ESA in the required timescales and within budget, the IT solution to deliver ESA was built upon the same platform as the JSA payment system. The issue you have raised in relation to ESA also applies to JSA notifications.  We are aware that this does not necessarily provide the levels of customer service we would like to deliver. In order to rectify this we have put a process in place whereby customers can be issued with a clerical notification which distinguishes their ESA award between income and contributory entitlement.
 
Changes to system generated notifications are extremely expensive and have a long lead in time due other system changes which have a higher priority, such as up-rating and other benefit changes. As there is a process in place to provide customers with this information, changes to the system generated notifications are regarded as having a lower priority and as such it is likely to be some time before the change can be made to the system generated notifications.

 

Note: the 'clerical notifications' have to be requested from Jobcentre Plus, but only when an official computer-generated decision notice has been issued - thus further delaying the claim for the passported benefit.

 

5. How effective is the review stage of the decision-making process?

 

The experiences of advisers regarding entitlement to DLA/Attendance Allowance is mixed. In one area of the County, advisers are reporting that, as evidenced elsewhere in this document, once a claim has been appealed the DWP rarely use their pre-hearing reconsideration powers to overturn a decision, despite additional medical/supporting evidence being supplied. However, in other areas, advisers are reporting a significant improvement in the past 12-18 months. This inconsistency, obviously, gives cause for concern.

 

 

 

63 year old man, who is in 'considerable' pain when walking. Previous claim for DLA successful and higher rate Mobility Component awarded. On renewal the claim was disallowed, although medical evidence relating to the previous claim had stated no improvement likely. Further medical evidence was obtained from the claimant's GP, which confirmed the severity of his walking difficulties. This was submitted to the DWP in advance of the appeal tribunal hearing, but the decision was not revised. Claim allowed at the appeal tribunal hearing.

 

52 year old man requested a review of his DLA award to include the higher rate Mobility Component. The claim was disallowed - no medical evidence obtained by DWP. Claimant appealed, submitting very supportive medical evidence from an occupational therapist. DWP refused to revise the decision in advance of the appeal tribunal hearing. The appeal was successful and the higher rate Mobility Component awarded.

 

58-year old woman with severe depression and uncontrolled hypertension. Our adviser helped the claimant complete a DLA claim form. Adviser felt the lower rate Mobility Component and at least the lower rate Care Component would be an appropriate award. The claim was disallowed. No medical evidence obtained by DWP decision-maker, and no explanation in the decision notice as to why they had not accepted the claimant's statements about the effects of her condition. Adviser basically 'dumbfounded' by the decision. Appeal submitted, plus medical evidence from GP regarding the severity of the claimant's condition, but the reconsideration request was disallowed. From our experience, the appeal tribunal hearing is likely to be adjourned for medical evidence to be obtained.

 

Despite some reported improvement at the review stage of the DLA/Attendance Allowance decision-making process, advisers consistently report that there has been no noticeable change in other benefit areas - in particular those relating to incapacity-related benefits (e.g. Incapacity Benefit/ESA) where reconsiderations in advance of an appeal tribunal hearing are a rarity.

 

39 year old man with complex long-term mental health problems. After a 21 minute 'medical' his claim for Incapacity Benefit was terminated. He had only scored 9 points under the Personal Capability Assessment used to determine on-going entitlement to benefit - he needed a score of 10. In preparation for the appeal tribunal hearing, our adviser identified a number of other areas where additional points could have been awarded if a thorough assessment of the effects of the claimant's condition had been undertaken. The appeal was successful and benefit re-instated.

 

5.3 As evidenced above, appeals can be successful as a result of more thorough scrutiny (by an adviser) of the evidence the decision-maker has used to disallow a claim, highlighting to the appeal tribunal panel where the evidence supports the claimant's claim. This, in our view, should be a process undertaken at the pre-hearing reconsideration stage. Although we are, obviously, concerned about the impact of the lack of effectiveness of this stage of the decision- making process on our customers; we are even more concerned about those claimants who may be in a similar position but do not appeal, or do not make contact with agencies like ourselves.

 

6. Is DWP effectively addressing official error?

 

Given the evidence reported elsewhere in this document, the answer has to be no; mistakes in decision-making are just as likely to cause an overpayment as an underpayment.

 

A number of Pension Credit overpayments have been identified by our advisers. Not only have these caused distress to very elderly, often disabled, claimants (who think they have done something wrong), but it also (again) defaults to agencies like ourselves to put right very basic administrative mistakes made by DWP decision-makers.

 

7. How well does the decision-making process operate for different benefits?

 

In the experience of our advisers, means-tested-benefits do not fair well compared with contributory benefits, the latter giving rise to very few disputes. It is also true that for universal benefits (e.g. Child Benefit) the process is, with one or two exceptions, generally unremarkable.

 

7.2 The unanimous view from our advisers is, as evidenced below and elsewhere is this document, is that the decision-making process for Pension Credit is very ineffective. [This has a knock-on effect on the decision-making process for Housing/Council Tax Benefit claims for pensioners, because local authorities rely on Pension Service information to determine entitlement to these benefits.] Even when advisers invoke the DWP complaints process on behalf of their customers to try and resolve (in many instances) basic decision- making failures, these are often not responded to.

 

72 year old man had previously had claim for Pension Credit incorrectly assessed in 2006. Appealed at that time, and arrears awarded. The same problem regarding the treatment of his income arose in May 2008. Again, the claimant appealed. On this occasion, the decision was revised in advance of the appeal tribunal hearing. This decision, however, only came to light as a result of our adviser contacting the Pension Service to follow up the appeal. Although the award was revised and arrears paid, at no stage has there been any correspondence sent to the claimant (or adviser) regarding this decision, nor anything explaining how the revised award/arrears have been calculated. There has, to date, also been no response to the official complaint concerning the treatment of this case.

67-year old man on higher rate Mobility Component and middle rate Care Component of DLA. Has had problems with his Pension Credit claim dating back to 2007. Pension Service finally resolved the issue in March 2009, and notified the claimant that full benefit would be re-instated and arrears paid. Despite numerous promises from Pension Service staff to prioritise the processing of these arrears, the claimant is still awaiting payment. Letter of complaint was sent to DWP Chief Executive last month.

 

Concerns are also starting to arise regarding the ESA decision-making process. There is still a lot of confusion, and incorrect advice given by Jobcentre Plus staff, as to the correct claiming process for people who become too ill to work i.e. whether they should still be able to claim Incapacity Benefit/Income Support or whether they need to claim the 'new' ESA. Concerns are also starting to arise regarding the medical assessment process.

 

 

 

 

 

 

53-year old man, terminally ill with cancer. He was already receiving higher rate DLA under the 'special rules' for this benefit when he claimed ESA - i.e. on the grounds that medical evidence had been supplied (in the form of a completed DS1500) to confirm he was terminally ill and not expected to live 6 months. Being accepted as terminally ill with this life expectancy should also fast track an ESA claim into the main phase of benefit without the need for a medical assessment, as well as the inclusion of a Support Component from the date of claim/evidence of prognosis supplied. This did not happen in this claimant's case - despite the DWP already paying another benefit on these grounds. A duplicate DS1500 was obtained from the claimant's consultant, and the correct decision was finally issued (and the correct amount of benefit paid) two months later. Within three months the claimant had died.

 

7.3 Another frequent discussion topic in the Welfare Rights Service's Practitioners Forum has been problems arising from the interaction between Jobcentre Plus and the DWP Debt Management Service (DMS) regarding the decision-making processes relating to benefit overpayments. To quote one of our advisers "the normal rules go out the window". A lot of the problems seem to arise out of confusion regarding the respective (decision-making) roles of the two agencies.

 

38-year old woman incurred an Income Support overpayment as a result of a failure to report her son's DLA ceasing. Recovery of the overpayment was not disputed, just the amount. The DWP appeal submission contained a number of errors regarding the calculation of the overpayment, and the appeal tribunal hearing was adjourned for these to be addressed. Whist waiting for the appeal to be re-heard, DMS contacted the customer regarding recovery arrangements. Not only was this contrary to the arrangement whereby recovery should be suspended pending the outcome of an appeal, but the amount of the overpayment had increased - no reason for this was given, and Jobcentre Plus were also unable to shed any light on the reason for this increase. With a corrected submission, the appeal was re-heard and the amount to be recovered determined. Three months after the hearing, DMS again contacted the claimant regarding recovery arrangements. Again, the amount they are still seeking to recover is still a lot higher than that determined at appeal. Again, there has been no explanation as to why the amount to be recovered has increased. Our adviser has written to both Jobcentre Plus and DMS, suggesting that they liaise with each other to resolve the matter.

 

 

 

Unemployed couple with a 150 Income Support overpayment, which arose as a result of a lack of understanding on the claimant's part regarding the interaction of Working Tax Credit and Income Support. Claimant appealed recovery. The DWP appeal submission, however, only addressed the calculation of the overpayment - not the legal grounds as to why the amount should be recovered from the claimant. Our adviser contacted the local Jobcentre Plus office regarding this, and a corrected submission was received a day or so before the date of the appeal tribunal hearing. In the new submission, the level of overpayment had increased. The couple were also concerned that there looked to be some inaccuracies as to the level of income attributed to them during the period in question. The appeal tribunal hearing was adjourned, as a result of the "confusing, unnecessarily complicated" DWP submission. DMS had again contacted this customer regarding recovery of the overpayment whilst the appeal was pending, and again cited a different amount to that submitted by Jobcentre Plus. The appeal was finally heard and the correct amount of overpayment determined. The claimant in this case has been very stressed by the whole process and prescribed anti-depressants by his GP. A complaint was submitted in April this year regarding the DWP's handling of this case, particularly DMS's involvement with the claimant - to date, there has been no response from the DWP.

 

8. How effective has DWP's Decision-Making Standards Committee been in monitoring frontline decision-making?

 

8.1 An adviser from the Welfare Rights Service was a 'fieldwork' representative on the Standards Committee's Representatives Group. It is his view that the Committee dealt mainly with general issues (rather than specific casework problems) and was somewhat removed from effecting change in the frontline DWP decision-making processes.  Unfortunately, there can often be a wide gap between policy-making and intention, and everyday practice at the customer- interface.

 

9. Is decision-making taking account of the October 2007 European Court of Justice ruling on exporting DLA, AA and Carers Allowance?

 

9.1 No evidence has been presented by advisers that there are any problems regarding this.

 

Appeals

 

10. How does the appeal system work from the claimant's perspective?

 

10.1 The view of advisers within the Welfare Rights Service is that this will inevitably depend on how the claimant is treated at the appeal tribunal hearing, the ability of the claimant to understand and respond to the decision-making process, and the outcome of their case.

 

10.2 Time delays in listing appeals (see paragraph 12.1) and adjournments at hearings tend to frustrate claimants, who generally do not understand the reasons for it, whether the delay etc is needed to obtain extra evidence or for some procedural/legal reason.

 

10.3 Claimants are more often than not intimidated by the whole process and often report that they feel they "are on trial" or "made to feel like a criminal". This has definitely not been helped by the re-naming of tribunal chairs as judges. The change in appeal procedures at the end of last year has made an already difficult experience for appellants even more stressful. Advisers representing at appeal tribunal hearings now report that they have to go to greater lengths to assure their customers that the tribunal experience is not as difficult or as formal as going to a court hearing.

11. How has the introduction of the Administrative Justice and Tribunals Council (AJTC) impacted upon claimants' experience of the appeals process?

 

As evidenced elsewhere in this document, the administration of the appeals process has deteriorated not improved. There is no evidence that the commendable purpose, vision and values of the AJTC (www.ajtc.gov.uk/about/purpose) are currently making any positive impact upon claimants' (and advisers') experiences of the appeals process.

 

12. Is the timeframe of appeals reasonable?

 

Currently, there are significant delays in appeals being listed for a hearing. Appellants are waiting 6 to 9 months for an appeal tribunal hearing. In our view, this is totally unacceptable and not only makes it more difficult for appeal tribunal panel members to elicit relevant information, but also for appellants to remember things accurately. This is more of a problem than it used to be since appeal tribunal panels can now no longer consider the appellants circumstances "down to the date of the hearing".

 

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

 

In our experience, the support claimants need during the appeal process is that currently supplied by independent representatives, i.e.

help to explain the decision to them in terms they can understand;

advice as to whether there is a legal remedy to their claim;

advice as to what additional evidence/information (if any) is needed to support their appeal;

help to understand the appeal documents;

help to construct a legal argument to support their appeal; and

(most importantly) help presenting their case at an appeal tribunal hearing.

This level of support is not something currently provided by the Tribunals Service or the DWP, but by the independent advice sector (via agencies like ourselves). Our concern is that the number of agencies able to provide appeal tribunal representation may be diminishing. In some areas of Lancashire, even Citizens Advice Bureaux are referring claimants to our Service for help with appeals.

 

13.2 As indicated above, the presence of an experienced representative at an appeal tribunal hearing can be very important to appellants; some of our customers would not proceed with their appeal if this was not available to them. It is, therefore, of concern to note that the changes to the administrative processes for the listing of appeals introduced at the end of 2008 appear to be resulting in what happened about 10 years ago when appeals were being listed aggressively without much, if any, consultation with representatives. Effective liaison arrangements regarding the listing of appeal tribunal hearings (which benefited all parties) have now broken down. Some appeals are even being listed without notification to the appellant or representative (see example in paragraph 2.4).

 

13.3 Appeal tribunal panels also continue to resist allowing postponements on the grounds that the claimant's nominated representative is unavailable. The Tribunals Service do not seem to appreciate not only what a small organisation even agencies like ourselves are (and that we do not always have the time or resources to take over other advisers cases), but also that the claimant has the right to choose who they would like to represent them. Surely this should be the person who best knows their case, and their circumstances. It is our view that Tribunals Service staff need to be reminded of the new rule 2 introduced in November 2008; i.e. that "the overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly." The current perception is that the Tribunals Service are more interested in getting cases through the appeals process (understandable if there is a backlog), rather than enabling the appellant to have proper representation.

 

13.4 Not only is support regarding representation taking a backward step, but so to is the availability of information to appellants, particularly unrepresented appellants, that might help them steer themselves through the appeal process. Information regarding the points scoring system for determining entitlement to ESA is no longer included in the DWP appeal submission. Appellants are instead directed to the DWP website.

 

From a recent appeal submission:

 

"Access to statute and case law for appellants

Copies of the law referred to in this response are available at some libraries. It can be accessed on-line via the DWP's website at

http://www.dwp.gov.uk/advisers/docs/lawvols/bluevol/."

 

September 2009