Select Committee on Social Security Appendices to the Minutes of Evidence


Memorandum submitted by London Advice Services Alliance (Lasa) (AP 6)

  Lasa is a resource and development agency for advice and information providers. We provide high quality support services on social security and information technology, as well as undertaking policy analysis and research where it is of value to advice services and their users.

  Lasa's Advocacy Team provide representation at social security appeal tribunals for claimants referred by London advice agencies. This is operated under a Legal Aid Board Franchise. In the last year, the service took on 260 cases (achieving a successful outcome in 83 per cent of cases). Advice and representation is provided up to and including Social Security Commissioners. To share up to date information on changes affecting social security appeals, Lasa facilitates the Appeals Forum, bringing together appeals workers from the London region.

  The comments below arise from the knowledge and experience from staff providing representation at social security appeals and feedback from advice workers using our services.


  Delays and errors by the agencies will undermine access to justice for future appellants.

  The roles and responsibilities of both the new Appeals Agency and the Benefits Agency should be clearly identified and publicised to appellants and advisers.

  While we welcome plans for a more efficient system, we do not want to see an increased through-put of cases at the expense of the quality of decisions.

  The recruitment of tribunal members should be reviewed to ensure greater effort is made to recruit more members from ethnic minority communities and regular training provided.

  Clerks should be encouraged to use their increased powers and liaise with representatives and appellants when listing hearing dates.

  The independent monitoring and public reporting on the quality of appeal decisions is essential.

1.   Background

  1.1  Social security legislation is complex and constantly changing . The majority of claimants are not aware of their rights and entitlements to social security benefits. Many never claim the benefits to which they are entitled, let alone pursue appeals about complex legal issues they do not understand.

  1.2  Claimants do not have universal access to independent advice and representation, in many areas of the UK there are major gaps in advice service provision. Legal Aid is not available for representation at social security tribunals, including appeals to the Commissioners.

  1.3  The new time limits for submitting appeals rely both on claimants understanding the importance of acting within these strict limits and on both the Benefits Agency and the new Appeals Agency acting efficiently. Delays and errors by the agencies will undermine access to justice for future appellants.

2.   What steps are needed to improve appeals administration?

  2.1  The roles and responsibilities of both the new Appeals Agency and the Benefits Agency in regard to appeals should be identified and publicised to appellants and advisers. This information should include who deals with the appeal at its various stages through the process and information on how they can be contacted.

  2.2  Appellants and representatives should receive written acknowledgement that an appeal has been lodged and for any subsequent papers sent. Although this may appear costly in terms of resources, the onus is on the appellant to prove the documentation was sent and it should therefore be acknowledged.

  2.3  Oral hearings are often listed incorrectly as paper hearings or vice versa. It would also help if appellants were fully informed of the different merits of the two types of appeal.

  2.4  Currently, appeal papers sent by the Benefits Agency do not include the ITS reference number and much time is spent tracing and allocating papers.

  2.5  At present, appeal papers are sent out very late and often only to the appellant or representative—rather than to both parties. This delay reduces the time for appellants and representatives to study the papers and obtain any further information. This often lead to requests for an adjournment which is inefficient and costly as well as leading to further delays for the appellant.

  2.6  Requests for adjournments and postponements could also be prevented if the Appeals Agency would liaise more effectively with appellants and their representatives regarding the dates for the listing of hearings. In our experience, representatives will notify the ITS of dates when they are not available for this to be ignored and hearings listed.

  2.7  We welcome the fact that the new agency will be shadowed by the old ITS for a year, as this may ease the transition on the administration side.

3.   Will the division between administration of appeals and the judicial function of tribunals help or hinder the efficiency and quality of appeals?

  3.1  While we welcome any speeding up and reduction in waiting times, we do not want to see an increase in the volume of though-put at the expense of the quality of decisions. Moreover, poor administration undermines even the best justice.

  3.2  We are concerned about the judicial independence of the new agency, as an executive agency of the DSS, rather than that of the Lord Chancellors' Department. In practice the new agency may be seen by appellants as another arm of the same body which made their benefit decision. It may harder to convince the public of the judicial independence of the appeal tribunal. One major premise of the adjudication system has been not only to be fair, but also to appear fair.

  3.3  In commenting on the earlier Government consultation document, we expressed concerns that such an agency will no longer be independent and accountable but may be dictated to and influenced by budgetary considerations. In order to allay these fears, the agency should be monitored by an independent body such as the National Audit Office.

  3.4  This in turn begs the question of where the balance will lie between administration targets and outputs and the judicial function. This latter function should not be downgraded if access to justice is to be maintained. It should be clear who is responsible for reporting on the judicial function of tribunals to Parliament and the public.

4.   Are there steps which need to be taken regarding the training of persons appointed under the Social Security Act 1998 to act as tribunal members?

  4.1  The recruitment of tribunal members should be reviewed to ensure greater effort is made to recruit more members from ethnic minority communities, women and those with and understanding or experience of disability. In particular, more effort should be made to recruit female medical members of tribunals.

  4.2  Recruitment processes should be open using local and national media as well as community organisations to publicise all vacancies.

  4.3  From our experience and feedback from advice workers we would submit that tribunal members need training on the following areas:

    —  the law—including regular updates on new case law;

    —  cultural awareness;

    —  religious awareness;

    —  disability awareness; and

    —  using interpreters/signers and others who help with communication.

  4.4  Medical members need training on the difference between "diagnosis" and "functional disablement" as this is the basis of assessment in incapacity and disability benefits. They would also benefit from regular, up to date training on mental health issues and conditions such chronic fatigue syndrome, autism, hyperactivity and allergic conditions. Such training should include recent research finding and clinical approaches.

  4.5  The Appeals Agency should consider approaching the advice sector and claimants' organisations for input to training and recruitment.

  4.6  A clear and open complaints system should be developed so any appellant or representative who wishes to complain about the behaviour or actions of a tribunal member may do so. This should detail how the performance of members is reviewed and include the method by which the quality of decision making by tribunal members is monitored.

5.   What arrangements are needed to ensure that tribunal clerks are ready to fulfil new responsibilities given under the 1998 Act?

  5.1  In our experience, despite the desire to clear log-jams and avoid unnecessary adjournments, Clerks seem reluctant to coordinate with representatives and appellants when listing dates for hearings and to agree postponements. This often results in the parties having to appear before the tribunal and request an adjournment—a clear waste of public funds.

  We would like to see clerks encouraged to use their increased powers to list hearings, decide postponements and be encouraged to liaise with representatives and appellants when listing hearing dates. This may involve looking at the training and recruitment of tribunal clerks so they are fully aware of and able to operate these powers.

6.   How will the quality of justice obtained by appellants be affected as a result of the changes to the appeals system? Are there steps that could be taken at this stage to safeguard the quality of justice which appellants will receive?

  6.1  The scope for making appeals beyond the time limit is extremely limited. It would appear fair to balance the initial tight time limits, with some relaxation of the rules on late appeals. The strict time limits will result in many people being in fact denied a right of appeal, to a tribunal, or to Social Security Commissioners.

  6.2  Claimants and their representatives have been given tighter deadlines and tougher responsibilities. In turn we would like to see greater signs of cooperation by the appeals service, for example:

    —  sending named representatives copies of all relevant letters and papers; and

    —  being willing to consider reasonable requests for postponements.

  6.3  The scope for "setting aside" tribunal decisions has been dramatically reduced by deleting "where the interests of justice so require". The remaining criteria seem purely administrative—and not applicable in many cases. For many there may not appear any obvious error of law—for appealing to the SS Commissioners—which usually takes a long time in any case. It is impossible for legislation to dictate every single instance where the "interests of justice" would be served by allowing a rehearing. Re-instating the provision would allow a small amount of discretion to be used, where the interests of justice and fairness are in question.

  6.4  We welcome the new method for a quick re-determination of an appeal decision, which is erroneous in law, if after applying for leave to the SS Commissioners all parties agree it is erroneous in law, or if the chair considers it erroneous in law.

  6.5  The independent monitoring and public reporting on the quality of appeal decisions is essential to ensure the Agency is held accountable for the quality and standard of its operations.

  Overall we are very concerned about the changes. They come very soon after major changes made in 1996. We would welcome proposals to monitor and evaluate the impact of these changes over time and any opportunity to discuss them again after they have been in operation a year.

June 1999

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