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Lord Goodhart moved Amendment No. 15:

Page 7, line 41, at end insert--
("( ) Regulations under subsection (6) above shall provide that--
(a) a person's appeal shall be determined at an oral hearing, unless he requests otherwise;
(b) the panel member who constitutes the appeal tribunal or, as the case may be, is its chairman shall order that there be an oral hearing where he believes one to be desirable in the interests of justice, irrespective of the wishes of the person bringing the appeal.").

The noble Lord said: My Lords, I believe that this is an amendment of considerable importance. Since October 1996 the rule has been that appeals are dealt with on paper unless the appellant asks for an oral hearing. This amendment seeks to reverse that position and return to the situation as it was until October 1996--that is to say, the appellant will get an oral hearing unless he or she asks specifically for a paper appeal. At first sight one might think that there was some justification for the present rule, and indeed there is to some extent.

The noble and learned Lord, Lord Hardie, pointed out during the debate in Committee on this amendment that 30 per cent. of appellants failed to attend the oral hearing at the time when an oral hearing was automatic unless a paper hearing was asked for. As he rightly said, that involved a waste of time and money. Again, it can be said that it is not difficult to ask for an oral hearing if that is what the appellant wants. It was pointed out by the noble and learned Lord that the Government's literature properly explains the right to an oral hearing and refers to the greater success rate that is obtained as a result of such a hearing.

That would be fine were it not for the astonishing difference in the success rates of oral and paper appeals. In 1996 the success rate was 53 per cent. where the claimant appeared in person or was represented at the tribunal hearing. Where the appellant did not appear and was not represented, the success rate was 13 per cent. As regards incapacity benefit, where a personal appearance is particularly important, there was a 57 per cent. success rate for attended appeals and a 7 per cent. success rate for non-attended appeals. It may be that people with stronger cases are more likely to request oral hearings, but that cannot remotely account for the full difference in the success rates between attended and non-attended hearings.

I suggest that there are two other reasons at least for the difference in the success rates. The most important one is that claimants are unlikely to understand the regulations or be skilled in presenting their cases on paper. They need help in explaining their case and at an

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oral hearing that help is obtained from the tribunal. If essential facts have been omitted from a written case they may be brought out by the tribunal. In a paper appeal that cannot be done because there is nobody there to answer questions that the tribunal might wish to ask. Another reason might be a feeling by the tribunal that if the appellant does not want an oral hearing he or she cannot have a serious case to make.

It stands to reason that if claimants have to ask for an oral hearing a good many of them will not do so. Tony Lynes, who is an expert in this field, has estimated that as a result of the 1996 changes to the procedure, some 10,000 people a year lose benefits to which they are entitled. The noble and learned Lord the Lord Advocate, in the debate at Committee stage, said that the Government do not have sufficient data to draw conclusions. Mr. Lynes has written to me to confirm that success rates for attended and unattended hearings since the change in procedure have remained roughly constant, but the proportion of hearings which are attended has fallen steadily. Mr. Lynes accepts that the DSS statistics on which its conclusions are based are not as complete as they should have been. But the problem of waiting for more statistics from the DSS is that the opportunity for action will have passed. It is unlikely that any initiative to increase the percentage of oral hearings will come in future from the DSS given that there will indeed be some increase in the time and expense of appeals if that change is made.

It may be that there will be no new legislation on appeal tribunals for some years to come. Indeed, I hope that there will not be because that will prove that the new system has succeeded. So this may well be the only opportunity we have for many years to go back to the system of making oral hearings a default procedure, which is a procedure which takes effect unless the appellant asks specifically that it should not. We surely know enough already to be satisfied that the October 1996 changes have worked an injustice and I believe that that should be reversed now. I beg to move.

Lord Higgins: My Lords, we have already discussed this matter at some length. The statistics are fairly impressive. Perhaps the Minister can confirm that the chance of success on appeal is three times as great if there is an oral hearing as opposed to the matter being dealt with on paper. That being so, we would need to consider further what attitude one should take to this matter.

I have more problems with the second part of the amendment which refers to there being an oral hearing where the panel member or the chairman,

    "believes one to be desirable in the interests of justice, irrespective of the wishes of the person bringing the appeal".
The noble Lord, Lord Goodhart, has just pointed out that about one-third of the people who are expected to appear at an oral hearing do not do so. As regards the second part of the amendment, I am not clear as to what happens if the chairman decides that there should be an oral hearing, but the appellant does not appear. Perhaps

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that is a point on which the Minister can comment. We may give further consideration to the matter between now and Third Reading.

Lord Hardie: My Lords, this issue has been discussed a number of times during the passage of this Bill. I have listened carefully to the arguments of the noble Lord, Lord Goodhart, as to why he believes that this amendment is necessary. I would like to explain to the House why we have taken our position. Noble Lords will recall, as the noble Lord, Lord Goodhart, outlined, that there used to be automatic provision for an oral hearing. But as I said in Committee, officials found that about one-third of appellants failed to attend the hearing, which resulted in an inordinate waste of hearing time. That is expensive to set up and it also causes delays to others when arrangements are not used.

We were concerned about the amount of time people have to wait--it is even longer if hearings are set up to no purpose. As a result, a change was introduced under which an appellant had the right to an oral hearing, but an oral hearing was not automatically set up unless the appellant requested one.

The forms that are sent out are quite clear. The front page explains clearly that there is an advantage to the appellant in asking for an oral hearing. Indeed, there is a specific question asking, "Do you want a hearing?" and the applicant has to tick either the "yes" or the "no" box. The appellant should therefore be aware of the advantage of going to a hearing if he so chooses. The change that was introduced allowed the Independent Tribunal Service to organise hearings more quickly and effectively. We believe that it is a sensible system and we want to retain it.

We want people to get the benefits to which they are entitled, but we also believe people have a responsibility to make claims, to provide information, and to make appropriate representations to receive benefit.

This Bill does not remove the right to an oral hearing. The right remains. All appellants receive a letter asking them to confirm whether they want an oral hearing. The letter states:

    "If I do not hear from you within 14 days of the date of this letter I will assume you wish the appeal to be decided on the papers".
That is to cover the situation where an appellant chooses not to return the form.

A leaflet is sent out with the letter, which explains the difference between an oral hearing and an appeal decided on the papers. It is made very clear that all the appellant has to do if he or she wants an oral hearing is to request one--by ticking the box on the enclosed form, and sending it back in a pre-paid envelope. As my noble friend Lord Borrie indicated in Committee, the leaflet attached to the appeal form clearly points out that claimants who attend the hearing of their appeals usually do better than those who do not.

We are asking people to confirm that they do want a hearing. The noble Lord's amendment would require people to say that they do not want a hearing. The risk is that people will not make a decision until the day--and then not turn up, as in the past; and, as in the past, a proportion of hearings will be convened unnecessarily.

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The noble Baroness, Lady Gardner, described in Committee her experience on industrial tribunals where the situation is very similar. She highlighted that claimants who realise their appeal has no chance of success often do not turn up for their hearing as they would be wasting their time, but these people may not opt out of an oral hearing. This means that oral hearings are arranged for people who do not want one and the whole process is delayed, to the disadvantage of those people who are entitled to benefit and to have their case dealt with as expeditiously as possible.

My noble and learned friend Lord Archer told us that he, too, had seen tribunals where the claimants simply do not turn up, leaving the tribunal waiting for customers. It is unfortunate that resources could be wasted in that way when there are thousands of people who are waiting for their appeal to be heard. There is no question that we should return to that position. Appellants can exercise their right to an oral hearing, but they must shoulder the responsibility for the simple process of letting the appeal service know that is what they want.

The noble Lord, Lord Goodhart, supported a similar amendment in Committee. In moving this amendment today, he suggested that following the introduction of paper hearings in 1996, the proportion of hearings attended has fallen from 62 per cent. to 44 per cent. and the success rate from 40 per cent. to just over 30 per cent. Those figures, however, relate to single year quarters. It is difficult to rely upon a single quarter as indicative of a general trend. However, I should also add that there are doubts about the validity of the published figures due to problems with the Independent Tribunal Service's computer system. A new computer system is being introduced. We are committed to undertaking an evaluation of the 1996 changes when robust data is available and will publish the results. We expect to be able to do so later this year.

I believe it is reasonable to expect people to think carefully about their appeal and to decide whether they want the oral hearing to which they have a right. If they make a positive choice, we believe they are more likely to turn up for the hearing. The fact is that all appellants have to make a decision about whether to turn up for an oral hearing. They should not leave it until the last minute.

The second part of the amendment would place on the face of the Bill a requirement for tribunals to order oral hearings irrespective of the applicant's wishes. This provision already exists under Regulation 22(1)C of the Social Security Adjudication Regulations. It is our intention to retain it, as we think it is a valuable tool for tribunal chairmen. For example, the tribunal may wish to examine the Secretary of State's representative or her expert witness. An oral hearing will be convened if the tribunal considers it necessary, but only after the claimant has been invited to attend. The claimant will also be given the reasons why it is thought that this may allow a better opportunity to examine the case. I do not, however, believe it is necessary to write this on the face of the Bill. With those assurances, I hope that the noble Lord will withdraw his amendment.

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Before sitting down, perhaps I may answer the point raised by the noble Lord, Lord Higgins. The chances of success are greater if one attends a tribunal. That is explained to all applicants in clear terms. It is explained that it is in their interests to attend. Therefore, they can make an informed choice. I appreciate that some people have less ability to take in information than others but, as the noble Earl, Lord Russell, explained, such people often receive assistance from friends who can read or they can obtain help from citizens advice bureax which would, I am sure, direct them to having a hearing. I invite the noble Lord to withdraw his amendment.

6.15 p.m.

Lord Goodhart: My Lords, the noble and learned Lord's arguments would be very convincing were it not for the enormous disparity in the success rates between oral and paper hearings. For that reason, I believe that every effort must be made to give priority to oral hearings and to encourage people to seek such hearings. I believe that the system that has been in operation since October 1996 has been a cause of genuine injustice in probably thousands of cases. For that reason, on this occasion I feel it necessary to take the opinion of the House.

6.17 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 100.

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