Decision making and appeals in the benefits system - Work and Pensions Committee Contents

5  The Appeals Process

Appeals guidance

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.[97] 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."[98]

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 benefit—including the reconsideration and appeals processes. However, this leaflet does not advise claimants of their increased chances of success should they opt for an oral hearing.[99]

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 representation.


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.[100]

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 country—in Scotland, 64% of cases are presented with professional support compared to only 13% of cases in the south-east.[101] 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 this."[102]

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%.[103]

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.[104] The NAWRA noted that this was a welcome development and their advisers had commented on the benefits of this administrative change for the appellant.[105]

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 noted:

"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."[106]

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.[107]

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.[108] 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.[109]

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.[110]

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 process

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 urgently."[111]

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 14 weeks."

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.

Oral hearings

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%.[112]

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."[113]

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 hearing.

Claimants' experience of the tribunal

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.[114] 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".[115]

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.[116] 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".[117]

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.[118]

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.[119] 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 a year.[120]

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 understand deafness.

b)  21% said that they had been unable to follow the proceedings.

c)  9% said that they needed communication support but did not get any.[121]

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."[122]

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 appeals

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.[123] 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.[124] In order to meet the costs of ESA appeals, DWP has transferred £8,600,000 of its budget to the Ministry of Justice.[125]

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%.[126]

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 to 75%."[127]

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 officers

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."[128]

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."[129] 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."[130]

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.[131] 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.[132]

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."[133]

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. […]they are not learning."[134]

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 Allowance appeals.

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

98   Ev 116, para 20 Back

99   DWP (2009) GL24-If you think our decision is wrong Back

100   Age Concern/Help the Aged, paras 7.1-7.2 Back

101   Ev 118, para 45 Back

102   Ev 80, para 11 Back

103   RNID (2009) Who benefits: The experiences of people who are deaf when claiming DLA and AA Back

104   Ev 117, para 27 Back

105   Ev 81, para 19 Back

106   Ev 118, para 37 Back

107   Ev 45 para 6.2- 6.3 and Ev 81, para 18  Back

108   Ev 90 Back

109   Ev 90, para 38 Back

110   Ev 103, para 4.6 Back

111   Ev 151, para 37 Back

112   See appeals table in Annex A Back

113   Ev 115, para 11 Back

114   Ev 81, para 18 Back

115   Q65 Back

116   Ev 89 and Ev 140 Back

117   Ev 116, para 18 Back

118   Ev 73  Back

119   Q138 Back

120   Q138 Back

121   Q138 Back

122   Q139 Back

123   Annex D Back

124   Annex D Back

125   Offical Report, 24 November 2009, c 76WS Back

126   Ev 102, para 4.2  Back

127   Q127 Back

128   Ev 32, para 10.2 Back

129   Q84 Back

130   Q84 Back

131   Annex C Back

132   Q117 Back

133   Q34  Back

134   Q36 Back

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