APPENDIX 2
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.
SUMMARY OF
COMMENTS
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 representativerather
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 lawincluding regular updates
on new case law;
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 adjournmenta 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 administrativeand not applicable in many cases.
For many there may not appear any obvious error of lawfor
appealing to the SS Commissionerswhich 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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