2 February 2011

Teams of DWP decision makers and Atos doctors are being surreptitiously shown into tribunals service (TS) back offices and being allowed to go through employment and support allowance appeal files, hunting for cases to either award benefits to or ask to have struck out.  Benefits and Work asks: what has happened to the independence of the tribunals service?

Alarm bells first began to ring about the relationship between the DWP and the TS after it was revealed in the government’s response to the Harrington report that:

“Learning from a recent exercise whereby a joint team of Atos healthcare professionals, Decision Makers and Tribunals Service personnel reviewed cases awaiting Tribunal Hearing will also be cascaded and embedded nationally.”

Benefits and Work has since obtained a letter written by a senior TS manager which states that the TS and the DWP have been discussing ways to improve the reconsideration process for ESA and as a result:

“ . . . the Tribunals Service has supported Job Centre Plus in applying a secondary and more robust reconsideration process to live Employment and Support Allowance appeals currently being prepared for consideration by a tribunal. The objective of this exercise has been to prevent appellants needlessly attending tribunal hearings.”

In fact, the objective of the exercise has nothing to do with sparing claimants – a better decision making process would do that much more effectively. The reality is that the DWP are desperately trying to reduce the embarrassing 40% success rate for ESA appeals and the TS are equally anxious to reduce the overwhelming flood of ESA hearings with which they cannot cope. IB and ESA appeals have risen from 19,600 in the first quarter of 2009 to an astonishing 99,200 in the third quarter of 2010. 

The TS letter goes on to say that:

“In practical terms, the exercise has taken the form of teams of decision makers deployed on Tribunals Service premises carrying out a systematic review of live appeals and revising their decisions wherever possible. The decision makers are facilitated in this exercise by the presence of an ATOS doctor whose knowledge and expertise is called upon to support and inform their decision making. In terms of the actual process being carried out, this is essentially a retrieval and provision of cases to the teams of decision makers by TS administrative staff. . .

“The decision was taken by the Tribunals Service to allow decision makers to look at TS files as these were felt to be the most up-to-date and accurate record. While evidence is copied routinely to DWP by TS, there was an acceptance that DWP’s appeal files were less accurate, which therefore made TS files preferable from a reconsideration point of view in that all available evidence could be captured and considered.”

One big question here is ‘Why are DWP files less accurate?”

There is no doubt that both the claimant and the DWP are sent copies of everything to do with the appeal.  Failure to do so results in a tribunal having to be adjourned.  So, the problem is not one of accuracy of files, but simply that the DWP fail to keep all their bits of paper together.

In other words, one party to the appeal is being given privileged access to TS offices, the free use of TS staff time and being allowed to destroy the appearance of judicial impartiality just because they are rubbish at filing.

And how might this process affect the opinions of judges? 

Unlike the appellant, who is not informed, judges will undoubtedly know that the DWP have been trawling through the ESA cases.  Does this make them less inclined to allow appeals, because they consider that most of the incorrect refusals of benefit will have been spotted by the high power DWP and Atos reconsideration team? 

At the very least claimants should be informed in writing that their case was reconsidered by a DWP team at the TS offices on a given date and it was decided that no change could be made.  Failure to do this may well constitute a breach of natural justice.

But there are other issues too.

For example, is it appropriate for Atos doctors to be present during the reconsideration process? 

It is clear from Harrington that decision makers find it extremely difficult to disagree with Atos doctors opinions even when they are simply given in writing, so how impossible is it for them to disagree when the doctor is in the room with them? Is this process, in reality, reconsideration by Atos doctor?

And should Atos doctors be able to have sight of the full appeals bundle? 

The bundle is likely to contain financial details about the claimant, for example.  There may well be a data protection issue in such information being in the papers handled by someone with no right to access it.

Then there is the question of how cases are selected. 

Is it simply on the basis of all cases due for a hearing in the next month?  Or all cases for which additional medical evidence has been submitted?  Or is there some more detailed sifting taking place?  And, if so, who is doing that sifting? If tribunal clerks, let alone judges, are involved in such selection procedures this could well constitute a serious breach of the principles of natural justice.

The TS did give an assurance that:  “There is never any conversation about an appellant’s case between a Judge and a member of the reconsideration team.”  That, however, is not quite the same as a judge not being involved in the process in any way whatsoever. 

The TS justify the introduction of back-door access to their offices on the following grounds:

“From the point of view of the individual, an appellant appeals against their decision because they believe it to be wrong. In the absence of that decision being revised, the appellant must, in most circumstances, attend a tribunal hearing which inevitably causes both delay and inconvenience to the appellant. A strategy which aims to prevent this happening and to give a legal resolution to the appellant more quickly and straightforwardly is therefore something which TS is duty-bound to take seriously and to support.”

Well, no one would disagree with the idea that it’s best not to force claimants to attend appeals when they are clearly entitled to ESA.  But the process is not always so benign:

“In exceptional cases, if the decision maker feels that the appeal has no reasonable prospect of success, they may apply for a direction under the provisions of the Tribunals Procedure (First Tier Tribunal) (Social Entitlement) Rules 2008.”

So, this isn’t just about helping claimants to get the benefits they are entitled to.  It’s also about forcing claimants out of the appeals system where possible.

The truth is that this new process was not introduced openly as a boon to claimants, but slyly and surreptitiously, with no opportunity for those most affected to comment on it.  That’s because the whole arrangement is deeply questionable and the TS know it.  Indeed, it was only on 1st February 2011 that a government minister admitted that “officials in the Tribunals Service and the Department for Work and Pensions are working closely together through a joint Task Force” to reduce the level of appeals.

We can be absolutely certain what would happen if the Tribunal Service were to introduce similar back door access in other parts of the system.  If employment tribunals allowed large employers free access to their offices and clerks’ services, they would be deluged with breach of natural justice challenges by outraged appellants solicitors and barristers.  But the reality is we’re only talking about sick and disabled benefits claimants here.

And, as the government is making increasingly clear, sick and disabled claimants should no longer expect the same rights and respect as other members of society.  Justice is now reserved for those who are in work. 


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