5 The Appeals Process |
132. Kevin Sadler, Chief Executive of the Tribunals
Service, told us that, in November 2008, the tribunal service
"comprehensively overhauled" the information pack for
appellants. He commented that, whilst the information provided
was detailed, it was easy to understand and useful, for example,
it informed individuals that they were more likely to be successful
if they opted for an oral hearing.
The President of the First tier of the Social Entitlement Chamber
was also positive about the Tribunals Service's information pack.
However, he indicated that DWP had ignored suggestions from the
Tribunals Service to signpost claimants to it:
"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."
133. DWP also provides information for claimants
who wish to pursue an appeal. The "GL24" leaflet outlines
the different options for individuals who disagree with a decision
on their benefitincluding the reconsideration and appeals
processes. However, this leaflet does not advise claimants of
their increased chances of success should they opt for an oral
134. We recommend that DWP and
the Tribunals Service should improve co-ordination of their guidance
documents. We agree with the President of the First tier of the
Social Entitlement Chamber that DWP should signpost claimants
to the Tribunals Service guidance in its decision letters. Decision
letters should also advise claimants where they can go to obtain
WELFARE RIGHTS ADVICE
135. Age Concern/Help the Aged emphasised the
need for many of their service users to access support from local
welfare rights advisers in order to take an appeal forward, due
to a lack of understanding of benefit rules and the appeals process.
However, even when claimants are able to access support from
an adviser, Age Concern/Help the Aged reported that they can often
not get through to a relevant person to discuss a claim in advance
of an appeal and, even when they did get through, they regularly
faced difficulties trying to convince DWP staff to discuss details
of a client's claim with them.
136. Judge Martin told us that advice and support
from welfare rights professionals was of "immense benefit"
to appellants, particularly in the run up to an appeal. He highlighted
the fact that professional representation varies across the countryin
Scotland, 64% of cases are presented with professional support
compared to only 13% of cases in the south-east.
NAWRA reported that there had been cuts in the availability of
welfare rights representation in different parts of the country
and they had "huge concern about the detrimental effect of
137. RNID published research in October 2009
which considered the experiences of claimants with hearing impairments.
It surveyed 1,315 people registered with RNID Typetalk and found
that 31% of all those who had made a claim for either DLA or AA
had attended an appeal and 85% of those were successful. They
found that 67% of deaf people surveyed had personal representation
at the tribunal itself, usually from a welfare rights adviser
or social worker. However, the levels of assistance provided from
these sources has dropped since 2001, while the numbers of people
relying on informal and inexpert help from friends and families
had more than doubled, from 7% to 18%.
138. Access to welfare rights
advice can be a crucial resource for those who require expert
guidance and support in preparation for an appeal. We note with
concern reports that there have been cuts in welfare rights provision.
We call on DWP to work with the Tribunals Service, local authorities
and welfare rights organisations to try to identify solutions
to regional gaps in service provision.
Time limits for submitting evidence
139. Judge Martin explained that the appeals
process had been made more straightforward by the fact that claimants'
appeals are no longer struck out for failure to return the enquiry
form sent by DWP once an appeal was requested (called the TAS1).
Prior to a change in the rules in November 2008, every year 70,000
appeals would be struck out for non-return of the TAS1.
The NAWRA noted that this was a welcome development and their
advisers had commented on the benefits of this administrative
change for the appellant.
140. Prior to the introduction of the Social
Security Act 1998, the time limit for appellants' submissions
had been three months. Commenting on the reduction, Judge Martin
"Although the time 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."
141. Whilst a time limit exists for claimants,
there is no equivalent for DWP, which can mean that, despite the
fact that the claimant submitted their appeal on time, the process
is still subject to delay if DWP does not provide timely evidence
to support its decision. Many organisations commented on the
timescales and time limits within the appeals process. Age Concern/Help
the Aged and NAWRA argued that it was unfair for appellants to
be given one month to appeal, when DWP were not constrained by
any time limits in which to submit its response.
142. The Action Group, which operates an advice
service across Edinburgh, the Lothians and Falkirk, provided an
example to demonstrate the impact on claimants of this discrepancy:
a client submitted an appeal against a decision not to award him
ESA, and it took DWP three months to send its appeal submission
to the Tribunals Service.
Judge Martin told us that in 2007-08 the average time taken
from the appeal being lodged with DWP to the Department submitting
its response was 63 days.
143. The Tribunals Service told us that it had
been collaborating with DWP and the Tribunal Procedure Committee
to examine how they can reduce the time it takes for DWP to respond
to claimants' appeals.
144. We note that DWP and the
Tribunals Service are looking at ways to reduce the time it takes
DWP to submit its response to an appeal. It is unfair that claimants
are expected to lodge an appeal within a month but may face a
delay as they wait for DWP to prepare its papers. We recommend
that DWP be subject to a one month time limit, with exceptions
permitted only with the approval of the Tribunal Chair, for submitting
its responses to the Tribunal Service.
Recording appeals as an end-to-end
145. The Tribunals Service now publishes statistical
data for tribunals within a unified system, measured against its
key performance indicators. However, since appeals are first
lodged with DWP, the Tribunals Service only becomes aware of an
appeal when it receives the appeal submission from DWP, which,
as detailed above, can be some considerable time after the appeal
was originally lodged. The Administrative Justice and Appeals
Council (AJTC) argued that this can cause problems, both in terms
of the accuracy of records on appeals and leaving claimants in
the dark about timescales for their appeal:
"The TS statistics concerning the time it takes
for an appeal to get to a hearing only relate to the period from
when the TS receives the notice of appeal along with the Agency's
submission, which can be many months after the original date of
lodgement. This makes it difficult, if not impossible, to give
tribunal users any meaningful indication of the overall time it
takes for an appeal to get to a hearing as neither DWP nor TS
measures this. This has created an unhelpful gap in the recording
of information about appeal waiting times which needs to be resolved
146. Chief Executive of the Tribunal Service,
Kevin Sadler, agreed saying:
"From my perspective of looking at what customers
experience they do not really distinguish between how long it
takes in the Department of Work and Pensions and how long it takes
in the Tribunals Service to deal with their appeals. I am quite
keen that we articulate to them the whole length of the process
rather than my saying that we aim to deal with 75% of cases within
147. We believe that appellants
should be able to track the progress of their appeal from the
time it is lodged to the point it is heard. We recommend that
DWP and the Tribunals Service examine how they can improve data
sharing to ensure that individuals can ascertain how long they
can expect their appeal to take.
148. The latest figures on appeals from the Tribunals
Service show that, where an appeal involves an oral hearing, appellants
are more likely to be successful. Between 1 April 2009 and 31
August 2009 39% of cases were cleared in favour of the appellant;
where appellants opted for an oral hearing, this rose to 48%.
149. Judge Robert Martin noted that oral evidence
can be very valuable to the appeals process and often involved
the disclosure of new information that subsequently led to a positive
outcome for the appellant:
"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."
150. We note with interest the
increased probability of success for appellants who opt for an
oral hearing on appeal. We agree with the President of the First
tier of the Social Entitlement Chamber that, by engaging with
the appellant face-to-face, the tribunal judge has more opportunity
to test the evidence. We ask DWP to ensure claimants are made
aware of the increased chances of success if they attend an oral
Claimants' experience of the
151. On balance, the evidence we received remarked
favourably on the tribunal itself. NAWRA told us that feedback
from advice centres on tribunals was positive.
Sally West, Policy Adviser at Age Concern, agreed saying that
"most of the tribunal members treat people well and courteously
and do their best to make the process as informal as possible".
152. However, a number of organisations and individual
appellants claimed that the appeals process could be a stressful
experience and emphasised the importance of ensuring reasonable
adjustments are made for those appellants who required them.
Action Group argued that some of their clients had found the tribunal
"scary, confusing and distressing", whilst The Parkinson's
Disease Society agreed that appellants often perceived the appeals
process as a daunting hurdle to overcome.
Judge Martin accepted that "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".
153. Both ThCell and the National
AIDS Trust expressed concern that many of their clients with HIV
and AIDS did not want family, friends and colleagues to know about
their condition. They were therefore very reluctant to pursue
an appeal because the decision would be made public.
154. Kevin Sadler, Chief Executive of the Tribunals
Service, told us that the Tribunals Service had surveyed its social
security and child support customers and found that 68% were satisfied
with the service and 90% believed the information provided was
accurate. Of the 22% who were dissatisfied in the last quarter,
the results showed that only 5% gave as the main reason that they
found the process too daunting.
In order to ensure that appellants' experiences were systematically
fed back, Mr Sadler told us that the Tribunals Service had established
a national user group and held 50 local user group meetings twice
155. RNID's recent survey found that despite
high levels of success at appeal, 24% of respondents were unhappy
with the hearing (including 22% of those who were successful),
for the following reasons:
a) 78% said that the tribunal did not seem to
b) 21% said that they had been unable to follow
c) 9% said that they needed communication support
but did not get any.
156. We asked the Chief Executive of the Tribunals
Service to comment on RNID's findings. Mr Sadler said:
"On the RNID point I think we have something
specific to take up with them and we ought to do that. Occasionally,
we have situations where hearing loops are supposed to work and
they do not. Clearly, that is a worry to us. It is an important
point. There is a degree of breakdown in our customer survey that
allows us to isolate particular groups that may be less happy
than others; that is to say, we know about the people who are
less successful and more successful, but there is a specific issue
that we need to take forward."
157. We welcome the efforts
the Tribunals Service has made to ensure that user feedback is
systematically obtained and used to improve appellants' experience
of the tribunal.
158. However, there is evidence
that some groups of claimants still feel that "reasonable
adjustments" could be made to the appeals process which would
help them to engage with tribunals. We call on the Office for
Disability Issues to work with the Tribunals Service in this area.
Employment and Support Allowance
159. During our visit to Leeds, the Tribunals
Service told us that its appeals intake had risen significantly
this year. In 2007-08 its total intake was 229,130 and in 2008-09,
242,830. The intake for 2009-10 was at 140,854 up to the end
of September, and by the end of the year, it expects this figure
to have risen to over 300,000.
We were told the bulk of the increase was a result of a rise
in the number of appeals for ESA and IB. Whilst the Tribunals
Service was working hard to keep on top of its workload, information
provided to us on our visit to Leeds suggested that the increase
in ESA appeals was creating a considerable strain on its resources.
In order to meet the costs of ESA appeals, DWP has transferred
£8,600,000 of its budget to the Ministry of Justice.
160. The rise in the number of appeals coming
before the Tribunals Service appeared to have had a direct impact
on the First-tier tribunal's performance against its target to
bring 75% of appeals to hearing within 14 weeks of receipt. In
2007-08 87% of appeals were brought to hearing in Social Security
and Child Support (SSCS) First-tier tribunals before 14 weeks.
In 2008-09 78% of appeals in SSCS tribunals were bought to hearing
within 14 weeks. In 2009 to date the figure for SSCS tribunals
stands at 66%.
161. We asked Kevin Sadler to describe how the
increase in ESA appeals has impacted upon tribunal activity.
He told us:
"This year we expect a figure 30% above the
volume for 2008-09, so that is a massive hit for us. Particularly
in relation to Incapacity Benefit and ESA appeals, the number
has increased this year by 86% compared with last year. We have
45% of our social security and child support receipts in September,
so it is almost half the appeals. They are not the cheapest appeals
to process because of the medical input of the Tribunal as well,
so they cost us a bit more than some of them. There has been a
big increase in what we have been asked to do over a very short
time. We have responded by dramatically boosting our capacity.
We shall be running 50% more sessions in the latter half of this
year than in the latter half of 2008-09, but quite a lot of that
workload has built up and it will be some time before we get back
162. The increase in Employment
and Support Allowance (ESA) appeals has put a considerable strain
on the Tribunals Service's resources. We welcome the budget transfer
of £8,600,000 from DWP but this is a short-term solution.
We ask DWP to confirm what action it is undertaking in response
to this increase.
Attendance of DWP presenting
163. A presenting officer (PO) is usually an
experienced decision maker who acts as a representative for the
Secretary of State by attending appeals on her behalf. DWP outlined
its policy for the attendance of POs at tribunals:
a) "where the facts and law are considered
to be complex, for example where complex legal arguments have
been raised or where contentious case law has been referred to;
b) where the appeal involves new legislation
which needs a 'bedding in period' (this period will be determined
by the complexity of the legislation);
c) at an Upper Tribunal rehearing (where that
is to be an oral hearing); and
d) where directed to do so by the Tribunal Judge."
164. Judge Martin noted that only 16% of hearings
are attended by a PO. He commented that the failure of DWP to
attend tribunals had been raised in each of the President's reports
since 2000-01 (when the attendance rate was 40%). He explained
that non-attendance by DWP meant that the tribunal judges were
often left to explain the department's case, which meant that
the tribunal's "integrity and neutrality is compromised."
He also suggested that by not attending, DWP misses the opportunity
to receive valuable feedback on the quality of its decision making.
"in terms of standards of decision making there
is a crucial gulf because the Department does not know what goes
on in the hearing and so is at a complete loss to understand where
it may have gone wrong. All it will receive is a very brief decision
from the Tribunal saying that the appeal has been allowed or dismissed
and people are in the dark. It also has a bearing on the volume
of appeals because the Department loses the "embarrassment"
factor. If it turns up and the Tribunal takes the view that the
appeal should never have been brought and the claim should have
been allowed first time the Department is absolved from someone
going back to the office and to say, "We made a mistake here.
I felt very embarrassed trying to defend a hopeless decision."
That is just lost."
165. We are concerned that tribunal
judges believe their neutrality is often compromised because DWP
is so rarely represented at oral hearings. We ask DWP to explain
why there has been a significant reduction in the rate of attendance
of Presenting Officers at tribunal hearings and how it intends
to address the criticisms raised by the President of the First
tier of the Social Entitlement Chamber.
Feedback to individual decision
makers on appealed decisions
166. We received conflicting information about
the amount of feedback decision makers receive from tribunals
about the quality of their decision making. We met with Judges
from the Upper tier of the Social Entitlement Chamber, who explained
that the most obvious, and most valuable, form of feedback were
the tribunal judgements themselves.
In terms of specific feedback to individual decision makers, Vivian
Hopkins, Chief Operating Officer, at the PDCS, explained that
the agency operates local databases, which record all appeal outcomes
and retrace the appeals back to the original decision maker. That
information is then used to identify trends in decision making
and possible training needs.
167. However, during our first evidence session,
welfare rights advisers argued that this was not the case. Alan
Barton from CAB said:
"One of the problems with DWP, and the fact
that they keep losing at appeals, is they do not seem to have
any process whereby as an organisation they then learn from that.
The individual people who have had decisions overturned never
know that this has happened, which seems extraordinary. If they
were a learning organisation that would be quite an important
part of their philosophy."
168. Daphne Hall from Bristol County Council
Welfare Rights Service agreed saying:
"We had a meeting with our disability and carers
services. They asked if that could begin to happen and it is
not happening. They do not get the feedback. [
169. We call upon DWP to confirm
what mechanisms are in place to ensure that individual decision
makers in Jobcentre Plus and the Pension, Disability and Carers
Service receive feedback on any decisions they make which progress
to an appeal.
Reducing the number of appeals:
the Alternative Resolution Pilot
170. Between August 2007 and September 2008,
the Tribunal Service ran a pilot scheme, in conjunction with the
Pension, Disability and Carers Service (PDCS), to test whether
a form of alternative dispute resolution involving early neutral
evaluation might work in Disability Living Allowance and Attendance
171. Under the scheme, a Tribunal Chairman reviewed
the appeal papers, with the appellant's consent, to form a view
of the likely outcome at a tribunal hearing. Where the appeal
had convincing prospects of success, the Chairman contacted PDCS
and invited reconsideration of its decision. Where the Chairman
assessed the appeal as lacking prospects of success, that view
is communicated to the appellant, who may choose to withdraw or
continue to a tribunal hearing. The pilot aimed to reduce the
number of hearings (and potential adjournments) required in DLA
appeals, whilst at the same time offering appellants the opportunity
to have their appeals resolved without the need for a full hearing.
172. Judge Martin told us that the final report
of the pilot had not yet been published. However, the early evaluation
suggested the results were mixed:
"The basis of the early neutral evaluation pilot
was that in disability living allowance cases an appeal would
be put before a full-time judge for a preliminary opinion on its
merits. If it was concluded that it was a fairly hopeless case
the judge would ring the claimant and explain; if on the other
hand it was concluded that it was an extremely strong case and
the Department was likely to lose the judge would ring up the
Department and invite them to reconsider it. In the majority of
cases the judge was unable to pick up that a particular case was
a very strong or weak appeal and it just went forward to a hearing."
173. We welcome the attempt
made by DWP and the Tribunals Service to reduce the number of
decisions reaching a tribunal through the development of the Alternative
Resolution Pilot. We have heard that the early evaluation suggests
the results of the pilot were mixed. We strongly believe that
the best way to reduce the number of decisions being appealed
is to improve the frontline decision making. We look forward
to hearing DWP's response to our recommendations on how this might
best be achieved.
97 Q138 Back
Ev 116, para 20 Back
DWP (2009) GL24-If you think our decision is wrong Back
Age Concern/Help the Aged, paras 7.1-7.2 Back
Ev 118, para 45 Back
Ev 80, para 11 Back
RNID (2009) Who benefits: The experiences of people who are deaf
when claiming DLA and AA Back
Ev 117, para 27 Back
Ev 81, para 19 Back
Ev 118, para 37 Back
Ev 45 para 6.2- 6.3 and Ev 81, para 18 Back
Ev 90 Back
Ev 90, para 38 Back
Ev 103, para 4.6 Back
Ev 151, para 37 Back
See appeals table in Annex A Back
Ev 115, para 11 Back
Ev 81, para 18 Back
Ev 89 and Ev 140 Back
Ev 116, para 18 Back
Ev 73 Back
Annex D Back
Annex D Back
Offical Report, 24 November 2009, c 76WS Back
Ev 102, para 4.2 Back
Ev 32, para 10.2 Back
Annex C Back