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Earl Russell: I am grateful to the noble and learned Lord for allowing me to intervene. I listen to what he says with great interest. If he provides for a series of grounds for late appeal, will he consider the case for including one ground for unforeseen circumstances? One cannot foresee all the reasonable exceptions in advance.
Lord Hardie: I accept the noble Earl's comment. I go on to say that for the future we will discuss the details of the new arrangements with interested parties, including representatives of claimants and welfare rights organisations, through the ad hoc group that we have set up to consider draft regulations and new procedures. I am sure that that very point will be one that such organisations will draw to the attention of the Minister who deals with the regulations, if that does not already feature in them. However, we do not believe it necessary in every case for the chairman to make the decision on whether to allow a late appeal. That is unnecessarily restrictive and will be an obstacle to our efforts to establish an efficient service for appellants which makes optimum use of the expertise of panel members.
There will be occasions when such decisions can be taken by a clerk. Allowing clerks to deal with straightforward cases means that panel members could focus upon those cases which require their expertise; for example, in current regulations there is an absolute time limit of six years for making a late appeal. Any appeal after that period cannot be disposed of by a clerk under the current system. There is no prospect of such an appeal being competent, and that would be the type of thing which a clerk should be able to do in future. I hope that with the explanations I have given the noble Lord will consider withdrawing the amendment.
Lord Goodhart: I listened with attention to what the noble and learned Lord said. The main problem with which I am left is the limited discretion which at present is given to extend the time for appealing. If it is to be reduced to one month or, if one takes into account the
dispute period, two months, that increases the importance of giving a general discretion whenever there is a reasonable excuse.We do not want to see similar arrangements, because they are unduly restrictive as they have been interpreted. The present rules make it extraordinarily difficult to get leave to appeal out of time. We want something considerably less restrictive than are the present rules.
I accept that the person giving the leave should not necessarily be the chairman of the tribunal, though it should probably be a member of the panel. I doubt whether it should be a matter for the clerk, as the clerk, if refusing leave to appeal in a case where there is some element of discretion, is effectively debarring the appellant from access to the next stage in the system of justice. That is not a decision that it is proper for the clerk to take.
I shall take this matter away and read what the noble and learned Lord has said. I shall be interested to hear any further comments that the voluntary organisations may wish to make on what the noble and learned Lord has said today. For today, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 48:
The noble Lord said: Amendment No. 48 is grouped with Amendment No. 49. They are very much of a pair, although in Amendment No. 49 the lead name to the amendment is that of the noble and learned Lord, Lord Archer of Sandwell. It is one that the noble Lord, Lord Higgins, and I have also signed.
The present position under Clause 13(7) is:
Amendment No. 48 replaces subsection (7)(a) by a subsection which provides:
Tribunals are of course currently supposed to be inquisitorial and to inquire into all issues arising out of the evidence, not merely to confine themselves to those issues which have been raised or argued by the parties.
It is not necessary, and should not be necessary, for a tribunal to trawl through the case for issues that are unlikely to arise, but where it has reason to believe that an issue may arise, surely the tribunal should look into it. It is, after all, usually dealing with claimants in person who are not familiar with regulations and who are often unable to analyse their own technical problems. Tribunals will have power to look at the issues raised on appeal, but Clause 13(7) appears to be intended to dissuade them from doing so by relieving them of that necessity and giving an indication that they are not supposed to go outside the parameters of the arguments that have been presented to them.
However, in fact the position is that tribunals should be under a duty to look at all the issues raised on the evidence, whether raised by the appellant or not. Clause 13(7)(b) raises a different point which is, as I have said, whether the tribunal can look not only at issues not raised by the appeal but take into account a change of circumstances. That is not raised by Amendment No. 48. It might therefore be more appropriate if it were dealt with by the noble and learned Lord, Lord Sandwell, because it is covered by Amendment No. 49 in his name. I beg to move.
Lord Archer of Sandwell: As the noble Lord said, Amendment No. 49 is somewhat more radical than his moderate Amendment No. 48. Amendment No. 48 would mitigate the effects of this subsection; my amendment would abolish it.
The subsection, as the noble Lord said, makes two separate provisions. First, it absolves the tribunal from considering any issue:
Let us assume in broad terms that the provision means, "If you want the tribunal to consider a question, however relevant to entitlement or the calculation of benefit, you must research and raise it yourself". I shall return to that provision in a moment.
Secondly, and separately, the subsection at present provides that the tribunal is concerned to review the original decision only in the circumstances then obtaining. If there is a change of circumstances, the claimant must go back and make a new claim, and the process has to begin all over again. As the noble Lord, Lord Goodhart, said, those provisions are independent one of the other. Ideally, they might have been debated together, but I fear that I have precluded the Committee from taking that course by the form of my amendment.
Perhaps I may follow some of the arguments used by the noble Lord, Lord Goodhart, in relation to the first provision. It has been well stated by the Child Poverty Action Group that the present function of the tribunal is, in a sense, inquisitorial as opposed to the adversarial approach which is normal in most of our traditional courts and tribunals. It is under a duty to satisfy itself what is a just and lawful outcome of the appeal and it is not confined to the arguments of the parties.
That is important because many--probably most--of the claimants who appear before the tribunals are not expert in the relevant regulations and, for whatever reasons, frequently do not take expert advice. They depend on the expertise of the tribunal. I agree with the noble Lord that everyone must use common sense. The tribunal cannot spend hours exploring every point which might have been overlooked. Conversely, whatever the provision in the statute, if the tribunal discovers a possible issue which has been overlooked, no doubt it will endeavour to address it. I believe that the provision as drafted sends an unfortunate signal. I should be grateful if my noble and learned friend could look at it and I await with interest his explanation why it was thought necessary to include it.
The second provision is more specific and it will change what has become a practice in the independent tribunal service. Without any statutory provision, but by decisions of the social security commissioners, tribunals have acquired the power to look at all the circumstances prevailing at the time when the appeal is heard. Therefore, a tribunal could make a fresh decision and it would not be restricted to pursuing an issue which may by then have become outdated.
A problem arose with the introduction of incapacity benefit. That benefit depends on what an applicant can or cannot do at the time when the doctor applies the test based simply on a list of function descriptors. Sometimes a person's capacity or incapacity to perform a particular physical function may change from day to day. All of us, with aches and pains which accumulate as we grow older, have our good days and bad days. But the functioning of those who have a serious clinical handicap may change from day to day. Sometimes the tribunal members will say to an appellant, "The test does not refer to trouble with walking, but you were limping when you came in. May we ask you a few questions about that?". There may be no reference to any mental disability, but at the hearing it may become clear that there is some mental disturbance.
The tribunal members may not have the necessary medical qualifications to administer the all-work test. Tribunals were reluctant to adjudicate on circumstances which have arisen since the test was applied. That practice was considered last year by a tribunal of commissioners. It ruled that tribunals should consider the circumstances at the date of hearing. Admittedly, that led to difficulties because tribunals frequently found themselves adjourning cases for further medical evidence. It may be that the provision in Clause 13(7)(b) is intended to deal with the difficulty relating to incapacity benefit. I hope that my noble and learned friend will be able to address the issue.
Judge Bassingthwaighte, in his memorandum, comments that he supports the provision in relation to incapacity benefit for the reasons that I have endeavoured to indicate, but he sees no necessity for it in relation to the other range of benefits. In particular, the child support appeal tribunals, which operate less as a procedure for adjudication but more as what Professor Whiteley recently described as "being in the business of dispute processing", frequently hear appeals precisely because there has been a change of circumstance.
The Child Poverty Action Group, which has great experience in this area, believes that it would be quicker and more economical to permit tribunals to dispose of the whole case and it would subject claimants to fewer delays and hardships. I will listen to what my noble and learned friend says in explanation; but my initial reaction is that that provision attracts all the disadvantages and none of the advantages. In due course, I propose to move it.
Page 8, line 17, at end insert--
("( ) In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it.").
"In deciding an appeal under this section, an appeal tribunal--
Amendment No. 49 deletes that and restores the status quo.
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made".
"In deciding an appeal under this section, an appeal tribunal shall consider any issue relating to the benefit in question which is raised by the evidence before it, irrespective of whether the person bringing the appeal has himself raised it".
It is arguable that Amendment No. 48 is not strictly necessary, because the effect of the deletion under Amendment No. 49 would be to maintain the status quo which Clause 13(7)(a) seeks to alter.
"not raised by the appeal".
I am not wholly clear what that means. Does it mean not raised in the letter of appeal; does it mean not raised by the appellant or on his behalf at the hearing; or does it mean not required to be determined in order to ensure a just outcome of the appeal? Merely as a matter of drafting, that needs to be clarified or, I venture to prophesy, it may give rise to endless problems in adjudicating, and ultimately to long and costly litigation. I do not normally spend a great deal of time trying to prevent the legal profession from making an honest living, but on this occasion it would be better if it were looked at again.
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