The government is poised to bring an end to the shaming success rates at benefits appeals, but they will do so by nobbling the appeals system rather than by improving decision making.
In the future many more appeals will be “on the papers” where success rates are drastically lower, hearings that do take place will be on the phone or via Skype type links and most appeals will be decided by a solicitor (often retired) sitting alone, without a medical wing member or a disability wing member.
Shaming appeal success rates
The introduction of the mandatory reconsideration before appeal system was intended to bring appeal success rates for claimants crashing down to earth. In fact, whilst it has drastically reduced the number of claimants who lodge an appeal, success rates remain sky high.
Only this month the Scottish government, responding to the second independent review of PIP, argued:
“It is absolutely staggering that 65% of people who dispute their PIP award are successful in their appeal of that decision.
“Not only does that highlight a deeply flawed system, but it shows very clearly the number of people subjected to a highly stressful, often prolonged, process to get the support they need and are entitled to.”
So, a new online system of appeals brings the twin advantages for the government that it will hugely cut costs as well as cutting success rates.
The plan is to go almost entirely digital for many areas of the justice system, with Social Security and Child Support tribunals being “one of the first services to be moved entirely online, with an end-to-end digital process that will be faster and easier to use for people that use it.”
The proposed changes – which are currently open to consultation but are virtually certain to be adopted – include
- More use of case officers for routine tasks
- More decisions made “on the papers”
- More virtual hearings
- More cases resolved out of court
- Simplifying panel composition
There’s more details on each of these aspects below.
More use of case officers for routine tasks
According to the consultation document:
“Judges spend too much of their time dealing with uncontroversial, routine or straightforward matters which could just as effectively be dealt with by court staff under judicial authorisation. Where it is appropriate, specially trained staff will be able to carry out some of this work to help justice move faster.”
This could mean clerks deciding whether your appeal is in time, for example, or whether your appeal will be online, in person or “on the papers”, see below.
More decisions made “on the papers”
The government’s aim is that:
“Where a case is relatively straightforward or routine, representations will be made online in writing for a judge to consider outside of a traditional court room, without the need for a physical hearing, meaning a more convenient experience for everyone involved.”
A “more convenient experience” for the DWP certainly who have vast resources and huge experience in producing written submissions.
But claimants with little or no experience of the legal system are likely to be at a huge disadvantage where appeals are on the papers only. Here at Benefits and Work, our advice has always been for claimants to opt to appear in person before a tribunal, because the success rate for face-to-face hearings is so much higher than for paper hearings.
More virtual hearings
Even if you manage to avoid a paper hearing, the chances of having your appeal in the same room as the tribunal judge are very slim indeed.
“Where a judge needs to listen to the parties make their arguments, it will be possible in many cases to hold the hearings over telephone or video conference, without the need for the parties to travel to a court building. There will still be an important place for physical court hearings for criminal trials and other serious or complex cases, but where they are appropriate, virtual hearings offer an easy and convenient alternative for everybody.”
The fact that physical court hearings will be reserved for ‘criminal trials and other serious or complex cases’ suggests that very few PIP, DLA or ESA first-tier tribunals will take place other than virtually.
For some claimants, removing the stress and pain involved in travelling to a hearing will be an enormous advantage. But for others, the sheer strangeness of an online exchange – and all the technical problems it may involve – will make it very hard for them to give detailed and persuasive evidence.
More cases resolved out of court
Many claimants may not even get as far as a hearing, online or on the papers, even after lodging an appeal.
“In appropriate cases, we will encourage parties to settle their disputes themselves, without the intervention of the courts.”
The real fear here is that the DWP will effectively be able to bully claimants into accepting a lower award than they believe they are entitled to in order to avoid the risk and emotional trauma of an appeal.
For example, it may become entirely legitimate for the DWP to tell a claimant who has received no award of PIP that, if they will accept standard rate daily living, the DWP will make an award. But if they continue to argue for enhanced rate the DWP will force them to appeal and do their best to ensure that no award at all is made.
This sort of thing already goes on, but to make it a legitimate method of settling disputes will mean it happens a great deal more often.
Simplifying panel composition
The government wants to get rid of the vast majority of wing members who currently sit on PIP, DLA and ESA tribunals, arguing that:
“As we streamline the tribunals system, we need to be more tailored and flexible in the way that non legal members are used. Panel composition will remain a matter for the Senior President of Tribunals (SPT), but we want to move away from a blanket approach of using non-legal members regardless of whether their specialist expertise and knowledge is relevant or required. Instead, they should only be part of the panel where their presence is relevant to the case . . . In the First-tier Tribunal (Social Security and Child Support), for example, many cases must be heard by a judge, a medical member and a member with experience of providing or receiving care for disability, regardless of the circumstances of the case in question.”
What this means in practice is that most appeals will be heard by retired solicitors sitting alone, with no-one with specialist medical knowledge, or specialist knowledge of disability issues more generally to assist them. It is unlikely to lead to a rise in the success rates for claimants at benefits appeals.
The whole plan is open to consultation until 27 October 2016. However, judging by other recent consultations, the outcome – regardless of the evidence submitted – is a foregone conclusion.