Most PIP and ESA claimants who appeal a decision will not have an oral hearing, according to plans unveiled by the tribunals service last month. Instead, completing a set of individualised text boxes will be mandatory for most people, with an oral hearing only being available if the claimant is unhappy with the resulting text box tribunal’s decision. Trials of the new system are set to get underway this year, leading to fears that success rates for claimants will plummet.
Continuous Online Resolution
The new system, Continuous Online Resolution (COR), was unveiled in a set of powerpoint charts released by the Tribunals Service following a meeting in Exeter in February.
Under COR, most PIP and ESA claimants who appeal a decision will have their appeal looked at by an online tribunal panel, unless for some reason the case is not considered suitable.
This panel will be made up of the same people who would be present at an oral hearing: usually a judge and a medical member for an ESA appeal with the addition of disability specialist for a PIP appeal.
In order to use this system, the claimant has to create an online account with the Tribunals Service.
The panel will review all the documents relating to the appeal and will then ask the appellant any further questions they think may be relevant.
In the example given, the panel ask:
“Tell us more about your work in a factory”
“What help do you need with cooking?”
“What pain do you have when walking?”
The claimant is given a deadline to respond to these questions. They do this by typing directly into text boxes in their account dashboard.
There is an opportunity to save responses as drafts before finally uploading them.
There is also the option to upload supporting documents and images or, if this proves problematic, supporting evidence can be posted instead.
The responses are shared with the DWP.
Once the text box tribunal has all the information it thinks it needs, it gives the claimant and the DWP a ‘preliminary view’.
This is, in reality, a decision, telling the claimant what award of PIP, for example, the panel thinks they should get and the reasons for reaching the decision.
The claimant is given a deadline to respond and say whether they agree with the decision.
If the claimant agrees, and the DWP do not object, then this becomes the final decision.
If the claimant does not agree they have the right to have the case heard at an oral hearing in the normal way. A different panel will hear the oral appeal.
The COR system introduces a new level of complexity into what was previously a simple process, as the Tribunals Service chart below demonstrates.
In theory, the new system will simply give claimants an extra chance to get the right decision.
In reality, it will act as a huge further barrier to getting to an oral hearing. And this may mean a big drop in the PIP and ESA appeal success rate.
We know that the success rate for paper hearings, where the claimant does not ask for an oral hearing but agrees to the decision being made just on the documents, is dramatically lower than for oral hearings.
One of the reasons for this is that the panel at a paper hearing do not have the chance to ask the claimant any supplementary questions. So they have to make a decision based on less information.
The COR system does allow the panel to ask the claimant questions. But not to anything like the extent of an oral hearing, where the panel may, for example, take the claimant in great detail through their daily life, asking supplementary questions about things that were never mentioned in the papers.
By contrast, the powerpoint document about OCR warns:
“Appellant has a low tolerance for repeatedly coming online and answering questions.
“Each question should extract as much information as possible (using a broad subject and sub-questions).”
Another reason for the higher success rate at oral hearings is undoubtedly that the panel gets to meet the claimant and form an opinion about how reliable they are as a witness. And, overwhelmingly, appeal panels find claimants they see in person to be credible and honest. Indeed, they often find that they have understated the difficulties they face.
The COR system, on the other hand, will penalise claimants who are not as comfortable expressing themselves in writing and who are not as adept at using computers.
Equally worryingly, the number of people who will be willing to refuse to accept the decision of the COR panel and ask for an oral hearing is likely to be very small. This will especially be the case if the claimant gets an award, but it is lower than they believe is correct. The claimant will be warned that, at the oral hearing they may get a lower award, or even no award at all, as well as a higher award being possible.
When the DWP introduced the mandatory reconsideration system they did so with the deliberate intention of discouraging as many people as possible from going on to appeal. They knew that by introducing an extra stage to the process they would greatly increase the drop-out rate, because many claimants find the whole process so distressing and exhausting.
The DWP also knew it would increase the feeling that there was no point in continuing because the system seems so heavily stacked against you.
It has worked extremely well as a way of reducing access to justice, with the number of social security appeals plummeting once mandatory reconsiderations were introduced.
But in the future, claimants will have to go through the initial claim process, the mandatory reconsideration process and the OCR process before they can get to an oral hearing and give their evidence in person.
When the Tribunals Service first wrote about the roll-out of a digital service, the emphasis was very much on hearings being carried out online, using some sort of video conferencing software. The main difference would be that claimants would not have to travel to distant and often inappropriate venues.
Instead, however, the digital revolution turns out to just be the introduction of another hoop to jump through before an oral hearing.
There is no doubt that many people will find giving evidence by typing responses into a box on a screen much less alarming than having to having to answer very detailed questions at a face-to-face hearing.
But whether they will be able to give the panel anything like as clear a picture of their daily life is another matter entirely.
If COR panels give the same level of awards to the same percentage of claimants as oral panels, then the new system will potentially be an improvement.
But if, as seems extremely likely, they are less willing to make awards at the same level because they have less information to go on, then COR will be yet another cost-cutting disaster for claimants.