House of Commons - Social Security

Select Committee on Social Security Third Report

VI APPEALS

97. Claimants dissatisfied with the outcome of the decision made by BA decision makers in respect of their claim can appeal against it to the Tribunal Service. In 1998-99, the Independent Tribunal Service (as it then was) received 324,067 appeals, of which approximately 46 per cent concerned Incapacity Benefit and Sickness Benefit, and 3 per cent concerned Disablement Benefits.[102]

98. The rate of success for Incapacity Benefit and Disability Living Allowance appeals is high: 41 per cent of IB appeals are successful, as are 49 per cent of DLA appeals.[103]

99. A number of factors result in successful appeals. The Department has stated that "the approved doctor's examination report can only be considered as a part of the evidence on which a benefit decision is made. The doctor does not decide on benefit entitlement. The use of appeal outcomes is more a measure of first tier decision making rather than a reliable indication of medical quality as:

the first tier decision maker may not follow the approved doctor's advice

the appellant may have additional evidence which was not available to the approved doctor or first tier decision maker

although a medical report may be accurate based on the guidance to doctors, Tribunals are free to interpret the Regulations in a way which is not in line with the Department's guidance to doctors."[104]

100. The 1998 Social Security Act placed an obligation on the President of Appeal Tribunal to make a written report to the Secretary State on the standard of decision making against which appeals lie. The first such report will be produced in 2001. The President told us that, in order to prepare for the report, a pilot exercise was run in October 1999. He said that "the principal object of this pilot was to discover whether our approach was likely to provide the sort of information that was needed. I also hoped that it might give us some early indications of the areas in which the decisions might require improvement."[105]

101. The pilot exercise collected information by asking tribunal chairmen to complete questionnaires at the conclusion of their cases. One group sampled completed questionnaires in respect of every appeal, the other group completed them only when the original decision was revised or overturned. All benefit types were covered, and the sample involved 435 appeal cases (0.14 per cent of the total appeals caseload). Of the sample of all decisions coming before the tribunal, out of 246 cases, 56 per cent were upheld, 36 per cent were overturned and 8 per cent were amended. Of the second sample of 139 cases, 72 per cent were overturned and 28 per cent were amended.[106]

102. The President has told us that the pilot was very small (only 0.14 per cent of the total workload of the Service) and that it was unrepresentative, due to a heavy bias towards appeals dealing with disability benefits, and that therefore "the initial results from the pilot exercise must be viewed with some caution".[107] We accept this caveat, but note the report's findings that "in 57 cases (13 per cent of the sample) decisions had been based on inaccurate medical evidence." A further 42 cases involved medical evidence being overlooked, and it is presumably the case that, at least for a proportion of those examples, the medical evidence was not clearly expressed. In oral evidence to us, the Chief Medical Adviser to the DSS stated that "Some of the data that we have recently obtained from the new Appeals Service, who are looking in an ongoing study at this issue, is that in around a third of the cases where the tribunal disagrees with the earlier decision, particularly on Incapacity Benefit, it is because they feel that the decision maker has misinterpreted the medical report or that there was insufficient evidence available at the time that the initial report was placed before the decision maker."[108]

103. We appreciate that the pilot exercise conducted by the President of the Appeals Tribunal has to be treated with some caution for methodological reasons. However, it seems to suggest that inaccurate or insufficient medical evidence is a significant factor in the very high rate of successful appeals for IB and DLA cases. This means that in many cases poor quality advice is leading to the wrong decision and that claimants are being denied benefits to which they are entitled; it also suggests that in other cases, which by definition will not be captured in the appeals statistics, poor medical advice could be leading to claimants who should not be entitled to benefits receiving them. The distress to claimants unfairly denied benefits, the wasted public expenditure on benefits which should not be paid and the expense of the appeals system are all, in many cases, the result of Medical Services providing an inadequate service. That is unacceptable.

104. We look forward to full reports being produced by the President of the Tribunals Service from 2002, and we hope that they prove to be an important stimulus for improvement in Medical Services. We note that the Chief Medical Adviser and Dr Carol Hudson of Medical Services intend to hold regular meetings with the Appeals Service to discuss issues coming through on Appeal. We welcome this.

EMPs' access to other medical evidence

105. One way of diminishing the level of successful appeals would be for EMPs as well as decision makers to have greater access to claimants' medical records. We asked the Department in what circumstances further written medical evidence from sources other than the EMP were used to help determine benefit eligibility. We were told that "In some benefits, notably IB and IISB benefits, the BA decision maker does not have the facility to request further written medical evidence beyond the medical certificate which is presented with the claim.... All requests for medical opinion/advice are referred to Sema who may use their judgement to request additional medical evidence. This does not happen often in IB but for IISB, for example, they may require further evidence of a specialist nature, e.g. consultants, hospital papers, audiologist etc....In other benefits, notably DLA and AA the BA decision maker may request further medical evidence to assist them in the decision making process—this will normally be GP reports or Hospital papers. Should this advice be insufficient to assist them to come to a decision then the case will be referred to Sema for medical opinion/advice."[109]

106. The Department told us that between February 1992 to December 1999[110] factual reports from GPs or hospitals were used in 31 per cent of DLA/AA claims. However, the frequency of successful appeals in which the original decision was changed as a result of additional medical evidence suggests that it would be useful for EMPs, as well as decision makers, to have greater access to claimants' medical histories. When this was put to Medical Services, they told us that, although the most important thing was for decision makers rather than EMPs to have the information, "A little more information available to the doctor on the day, so that that doctor has an idea of the spectrum, may be more useful." They also said that "If you look at the particular contractual requirements that we have, we are asked to make judgments on all parts of the process from end to end on which we do not necessarily have a profound knowledge."[111]

107. We appreciate that allowing EMPs greater access to other medical information relating to claimants would have resource implications. However, we think it would also help raise the quality of reports produced and lower the number of successful appeals. We therefore recommend that Medical Services and the Benefits Agency explore ways in which such records can more frequently and readily be made available to EMPs. One alternative might be for EMPs to be able to request medical records in DLA/AA cases. This might provide more accurate case histories and could also prove to be more cost-effective.

108. The Appeals Service is clearly in receipt of a great deal of useful evidence about the performance of Medical Services, and yet there is no system of feedback for doctors, as Medical Services recognised.[112] NACAB told us that it "understands that despite the high proportion of cases in which the original decision that the claimant has failed the AWT is reversed, there appears to be no feedback to examining doctors of the outcome of appeals. Reports.... suggest that even when Tribunal Chairs criticise medical reports the comments are not fed back to Sema...."[113] We think that as a matter of quality control, Sema should be made aware if a significant proportion of successful appeals can be related to cases where particular doctors have provided the medical report. The CAB Service recommends that monitoring of successful appeal tribunal decisions should be routinely adopted to ascertain whether successful appeals can be related to particular doctors' medical reports. We recommend that individual Medical Services doctors should be informed of the outcome of appeals where the Tribunal has chosen not to endorse that doctor's findings. Furthermore, we recommend that Medical Services monitor this feedback and take appropriate action where individual doctors have a higher than average proportion of such cases.

Sessional Doctors sitting on Appeal Tribunals

109. A recent Parliamentary Question confirmed that part-time sessional doctors engaged by Medical Services (Sema) via Nestor Disability Analysis Ltd (NDA) are allowed to be appointed as medical members of appeal tribunals. The reason given is that "there is only a finite pool of doctors who possess the requisite skills in Disability Assessment Medicine and also meet the criteria for appointment as Medical Members of the Appeals Panel."[114]

110. The Social Security Commissioners have held that there is no conflict of interest between undertaking medical examinations on behalf of the Benefits Agency, and sitting on a tribunal hearing an appeal against a Benefits Agency determination based on such a medical examination, provided there has been no prior involvement with the appellant.

111. The current practice in the Appeals Service is that sessional doctors who examine claimants for the All-Work test do not sit on appeal tribunals hearing Incapacity Benefit appeals, but sessional doctors who carry out Disability Living Allowance and Attendance Allowance examinations are allowed to sit on tribunals hearing DLA and AA appeals.

112. However, a possible challenge arises under the Article 6 of the European Convention on Human Rights, the right to a fair trial. It could be argued that:

a doctor doing sessional work and being paid by NDA might be less inclined to disagree with the assessment of a colleague also doing sessional work for NDA, than a doctor who is not;

the fact that a member of a tribunal which is hearing an appeal against a decision of the Benefits Agency is also receiving payment for doing work carried out on behalf of the Benefits Agency gives the appearance of bias, and undermines the independence of the tribunal.

113. The President of Appeal Tribunals was not convinced by this argument and told us that "The [Commissioner's decision referred to above] was based on a House of Lords case called Gough, which is the leading case on bias. I do not think that anybody would seek to argue even on the basis of Gough that there is anything that is not right in the way in which we do things at the moment. When ECHR comes in it is all up for grabs, and we will have to see how it develops. It is not an area that I think we need, at this stage, to be looking at."[115]

114. While the President of Appeal Tribunals might well be correct, and while we would not want to question the integrity of the doctors involved, it seems surprising that legal advice has not been taken on the potential incompatibility of the present practice of sessional doctors sitting on Tribunals with the European Convention on Human Rights. We recommend that such advice be taken.

102 The Committee's 8th Report, Session 1998-99, The Modernisation of Social Security Appeals, HC 581, p. 35. Back

103 Q 122. Back

104 Ev. p. 173, Q 14. Back

105 Ev. p. 149, para 2. Back

106 Ev. pp. 149-151. Back

107 Ev. pp. 149-151. Back

108 Q 122. Back

109 Further evidence provided by the DSS, BAMS 28A, not printed. Back

110 Further evidence provided by the DSS, BAMS 28A, Annex 5, not printed. Back

111 Q 316. Back

112 Q 382. Back

113 Ev. p. 16, para 10.4. Back