8 January 2007
Benefits and Work has obtained a copy of a secret bulletin for tribunal members in which Martha Street, District Chair (DC) for Wales and the South West, argues that the current tribunal system is potentially unfair and unlawful and in urgent need of change.
Claimants are dependent on the goodwill of tribunal members doing many hours of unpaid and unrecognised work prior to the hearing. The DC also claims that the DWP ignore tribunal directions and argues that obliging the panel to do the DWP's job for them may be a breach of human rights legislation.
Readers may recall that we in August 2006 we published an article "Tribunal chief slams 'absurdity' of computerised incapacity medicals"
The article quoted from an issue of the Judicial information Bulletin in which Nick Warren, Regional Chairman of the North West Region of the Appeals Service, slammed the incapacity medical reports produced by Atos Origin Medical Services computers. We made a Freedom of Information application for copies of that and other issues of the Judicial Information Bulletin so that we could publish them for the benefit of our readers.
However, our request has been refused by the Department for Constitutional Affairs on the grounds that the information is not held by them but by the Tribunal Service Judiciary, who are not covered by the Freedom of Information Act. The DCA say that, nonetheless, they have forwarded our request to the Tribunal Service for consideration. But a month later we have heard nothing, nor do we expect to receive a positive response.
Could it be that the Tribunal Service are not keen for claimants and their representatives to get sight of articles such as Martha Street's 'All Things to all Men?' (Judicial information Bulletin 20)
In the article Ms Street has written a damning assessment of the inability of appeal tribunals to deal fairly with complex matters and called for 'urgent' change. One major problem is that agencies such as the Department for Work and Pensions (DWP) and the Child Support Agency (CSA) now 'take little part in an appeal once the submission has been produced'. This means that if the claimant, on seeing the appeal papers, raises questions about the DWP's evidence that only the DWP can answer, they are unlikely to do so, even if directed to do so by a tribunal. Martha Street claims that 'Tribunal directions for the attendance of presenting officers and directions for further submissions are often ignored.'
To the lay observer, the obvious solution to to the DWP ignoring tribunal directions would be for their defence to the appeal to be thrown out. However, according to Ms Street, Commissioners have held, in cases such as CIB/4751/02, CIS/1459/03 and CI/1021/01, that even where the Secretary of State fails to carry out his part of the appeal procedures and abandons the case, the tribunal cannot then simply find in favour of the claimant. Instead the tribunal must still carry out a complete reconsideration of the case and are 'not entitled to rely on a failure to discharge the burden of proof as a substitute for a proper enquiry where there is evidence that there is something into which there needs to be an enquiry.'
As Martha Street points out, with the DWP having virtually given up taking any part in the appeal once they have made their initial submission, and with so many claimants unrepresented, the panel have a huge responsibility in relation to the evidence:
"No-one else can be relied on to read it. Nobody else analyses it. Often, no-one else even asks for the obvious, pre-existing, documents. That leaves the tribunal doing the work."
Moreover, with each hearing being listed to lasted only around 40 minutes, and with pressure on chairs not to adjourn hearings once they have begun because of the additional expense involved in relisting, any reading and preparation cannot be done on the day of the appeal, it must be done beforehand.
Astonishingly, however, the panel members are expected to do this detailed preparation in their own time and for free. Martha Street reveals that 'time spent reading and analysing evidence is not recognised or paid for'. Ms Street explains that District Chairs 'occasionally and in exceptional cases' can direct that a tribunal chair should be paid to spend a day reading and analysing appeal papers. Other panel members, however, are never paid to do so.
This means that in the vast majority of cases each member of the panel is expected to have read the papers in their own time. An average set of appeal papers in a DLA hearing in which there has been an Examining Medical Practitioner's report will run to over 100 pages. Even reading a page every thirty seconds, scarcely possible when trying to decipher handwritten claim packs and medical reports, let alone when checking back to see whether evidence conflicts, this means close to an hour's reading time per bundle of appeal papers.
For a full day's hearings, then, a bare minimum of a full day's unpaid reading and preparation needs to be undertaken by each panel member if they are to fulfil their function effectively. No wonder the DC asks 'Do we not urgently need procedures that afford reading time to the panels?'
In support of her case, Ms Street points out that the training given to all appeal panel members emphasises 'focussed preview, structured questioning' and 'Above all, preparation, preparation, preparation'
And yet, even the legality of careful research and prepared questioning has been thrown into doubt by a Commissioner who argues that making the tribunal do the job of the DWP may be affect its impartiality and constitute a breach of European Human Rights Law. Ms Street quotes from CCS/4503/03:
"Further, for a tribunal to have to study the data from scratch, and without assistance, may be to cast it in the role of prosecuting counsel looking to build up a case or looking for cross-examination material. There is a real danger that the impartiality and independence of the tribunal may be impaired or that the tribunal may be accused of bias on the grounds that its own pre-hearing analysis of the material caused it to go into the hearing with its mind already made up. There is a danger that article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial by an independent tribunal, may be infringed."
Ms Street concludes her article with some compelling questions, including:
How do we meet the requirement to conduct inquisitorial and investigative hearings into matters with complex facts, complex law and unexplored evidence, without procedures that permit reading and analysis of the evidence?
Is there a conflict between the right to a fair hearing and a system that requires the judiciary to have grasped the case presented and analysed the evidence in advance, in their own time?
How do we conduct hearings fairly, in a manner seen to be fair, in the absence of the Agency whose decision is under challenge and without their comment on the evidence?
Here at Benefits and Work, we would add two more questions,
Given that this article was first published in March 2005, what action - if any - has been taken to remedy the situation?
Given that decision makers now have widespread access to appeal submission software which allows them to produce a several page, non-specific submission with a few clicks of the mouse, has the situation actually become worse than when Martha Street originally asked her questions?
The current administration makes much of claimants having responsibilities as well as rights: when it comes to the DWP fulfilling their responsibilities, however, that philosophy has been conveniently abandoned.
So, in the future, where the DWP fails to meet its responsibility to take a proper part in appeal proceedings by providing a Presenting Officer or a detailed submission that has not been created with a computer mouse, questions may need to be asked. Where an appeal is unsuccessful, particularly in a case entailing many pages of complex financial information, claimants and their representatives might well want to know what preparation individual members of an appeal panel undertook beforehand.
Too little and it can be argued that the hearing was unfair because the panel were not aware of the facts and issues involved in the case. Too much hunting for conflicts and flaws in the evidence and it can be argued that the hearing was unfair because the tribunal members had already largely made up their minds before the hearing began.