Ensuring judicial independence

  36. We agree with the Council on Tribunals which said, "the principal hallmark of any tribunal is that it must be independent. Equally important, it must be perceived as such. That means that the tribunal should be enabled to reach a decision according to law without pressure either from the person or body whose decision is being appealed, or from anyone else."[60] Various pressures exist which, unless resisted, can erode that independence.

Funding

  37. The judicial arm of The Appeals Service, like the Independent Tribunal Service before it, will be funded by the Department of Social Security. Deployment of the resources allocated is the responsibility of the Chief Executive of The Appeals Service agency, a DSS executive agency.[61] The issue of funding cannot be separated from that of judicial independence. The Council of Tribunals was adamant on this point: "The funds allocated to the tribunals bear directly on the efficient and effective working of the tribunal itself and thus on its independence and integrity."[62] The role of safeguarding the judicial independence of tribunals lies with the President of appeal tribunals. He has no formal role in relation to the funding of tribunals—in either influencing the level of funding or its allocation. Consultation does take place. The Chief Executive told us "Michael and I consult over the strategy, we then agree on the priorities and we fund accordingly. It is the deployment of the resources, how we use the resources, that is the issue rather than the issue of [DSS] starving or not starving [resources]."[63] Judge Michael Harris said, "where I may say to the Department 'well, I think that such and such is necessary for us to do our job properly' and the Department say 'there just is not enough money', clearly those are issues that we will have to discuss together and depending on how important the issue is I will either accept what I am told, because I am living in the real world as everybody else is, or I will make a fuss."[64] At present, there appears to be no formal role for the President in relation to matters of funding and resource management. We recommend that when The Appeals Service is launched, formal recognition should be given to the role of the President within The Appeals Service in the preparation and settling of bids with the Department concerning tribunal funds and in decisions concerning the allocation of funds, through a published memorandum of understanding between the President, the Chief Executive and the Department.

Fairness v operational efficiency

  38. Within ITS/The Appeals Service, the divide between judicial and operational considerations is not necessarily clear cut. As John Eames put it, "the interests of justice may conflict with the interests of operational efficiency."[65] The pressure to speed up the time taken to clear appeals is one example. Organisations representing appellants criticised the refusal of requests for postponement of hearing by tribunal clerks anxious to improve clearance rates, even where a postponement was clearly justified because the appellant needed further evidence, where the appellant was awaiting a re-submission from the Benefits Agency.[66] Operational pressure to speed up clearance rates can lead to insufficient time being allowed for an appeal to be heard properly. Lancashire County Council criticised the fact that a Disability Living Allowance appeal regarding one component of the benefit was allocated the same time as an appeal concerning two components—half an hour, in many cases.[67] NACAB referred to reports from "numerous CABx" that appellants had been told at the end of the appeal session that there was insufficient time for their appeal to be heard and that a further hearing must be arranged.[68] The risk is that tribunals, striving to hear all appeals listed in a session rather than send people away, will make rushed decisions.

39. The President should be vigilant in protecting the judicial integrity of the tribunal system in the face of the pressures which The Appeals Service will face for better performance and throughput. The Council on Tribunals, which has a statutory role in reviewing the constitution and working of tribunals, has already made a general recommendation for all tribunal systems that the judicial head should make use of the Annual Report of the system to speak of the judicial activities of the tribunals concerned and draw attention to any concerns he or she may have.[69] We recommend that the Annual Report of The Appeals Service should contain a section where the President of appeal tribunals reports on the judicial activities of tribunals, on the fulfilment of his own statutory responsibilities, and on any concerns he may have concerning procedures and working of The Appeals Service, including if necessary, matters of administration and funding.

The role of clerks

  40. The Social Security Act 1998 gives an enhanced role to tribunal clerks, who form part of the administrative rather than judicial arm of ITS/The Appeals Service. Tribunal clerks already have the power to grant postponements of tribunals (a power which, as discussed above, does not always appear to be exercised when needed). They will now have a new power to strike out appeals which they consider out of jurisdiction; or where there has been 'want of prosecution', including where the appeal has been made out of time; or where the appellant has failed to comply with a direction (including a request to state whether he or she wants an oral hearing of the appeal).[70] Disquiet was expressed by the Child Poverty Action Group that officials who are accountable to the Secretary of State for Social Security will be making judicial decisions. They will not be under the control of, or answerable to, the President as the judicial head of the organisation. The perception of independence of the tribunal system is thus diminished.[71] On a practical level, there is concern about the ability of existing staff to perform their new role. John Eames of Wiltshire Law Centre drew attention to the risk that clerks would be driven by operational considerations rather than by questions of justice and the merits of the request, and doubted whether the relatively low qualifications of current staff equip them to make the sophisticated judgements needed.[72] The Council on Tribunals suggested to us that the role of the tribunal clerk within the social security jurisdiction needed "rebuilding", because it had become a less significant and undervalued role compared to some other tribunal systems:

"...there is something enormously important about the calibre of clerks who are recruited to this role, and I think that until you have got people of the right calibre, with the right training programme, where there is a kind of corporacy amongst clerks and an ownership of the process that they are actually involved in helping to deliver, that consistency, not least, may be a problem."[73]

41. The President assured us that clerks would not take on their new responsibilities under the Social Security Act until they had been properly trained. We recommend that The Appeals Service should work with the Council on Tribunals to ensure that the recruitment, organisation and training of clerks is sufficient to bring them up to the standards necessary to meet their new judicial responsibilities and that the President should be given formal responsibility for the training, guidance and monitoring of tribunal clerks in the fulfilment of their judicial role.

Fair hearings for appellants

Oral and paper hearings

  42. Regulations introduced in October 1996, as part of the decision-making and appeals changes, made it a requirement that an appellant must opt for an oral hearing; otherwise the appeal would be decided on the papers.[74] During 1997-98, 51,406 appeals were decided on the papers—about 20 per cent of the total cases cleared.[75] ITS statistics on the results of appeal tribunals indicate that people who attend the hearing of their appeal have a much greater chance of being successful. During the calendar year 1998, appellants who attended were successful in 45 per cent of cases, rising to 63 per cent if they attended with a representative. In contrast, only 17 per cent of appellants who did not attend were successful.[76] The DSS argue that anecdotal evidence suggests that those appellants who do not opt for an oral hearing are those who do not have such a strong case for appeal.[77] Therefore it is unsurprising that the success rate of paper appeals is lower. Jude Hawes of Stoke-on-Trent CAB gave a different explanation:

"a lot of people who are making appeals have great difficulty in expressing their case clearly on paper but are able to say things, or in response to questions, give evidence, which they have not understood was relevant when they make their initial claim and, maybe, write their letter of appeal—which may only have a very, very limited statement of grounds on it...Therefore, if they can go to the hearing and respond to questions, or be represented at it, there is going to be evidence provided that simply no-one, including the appellant, may have known about."[78]

43. We recommend that more should be done to encourage appellants to attend the hearing of their appeal. In particular, we recommend that the enquiry form sent to appellants asking them whether they wish to attend their appeal should include a warning on the low rate of success of appeals where the appellant does not attend.

44. Owing to disquiet concerning the lower rate of success of paper appeals compared to oral appeals, Ministers gave an assurance before the introduction of the 1996 regulations that, "An evaluation will be undertaken once the procedures have been in place for a reasonable time."[79] We recommend that the results of the evaluation of the 1996 changes regarding the requirement to opt for an oral hearing should be published, giving details of the effect of the 1996 changes on tribunal attendances and outcomes.

Directions concerning oral hearings

  45. Once an appeal has been lodged, an inquiry form is issued to the appellant by the tribunal clerk ('a direction') which asks for details of the appellant's availability and whether he or she wishes to have an oral hearing of the appeal. If the appellant's reply is not received by ITS/The Appeals Service within 14 days of the date of issue, the appeal can be struck out.[80] Organisations representing appellants were concerned at the tight deadline imposed, which could lead to the striking out of appeals from, for example, people with physical or mental problems, or those with language or literacy difficulties, who might need time to understand the implications of the form and obtain assistance in completing it.[81]

46. The National Association of Citizens's Advice Bureaux drew attention to the fact that appellants and their representatives were further hampered in meeting this very strict timetable by the fact that both the enquiry form and the reply paid envelope were sent by second class post.[82] We were advised by ITS/The Appeals Service that the cost of postage for the enquiry form and its reply is split between the first-tier agency (which is responsible for sending out the enquiry form) and ITS/The Appeals Service (which pays for the pre-paid reply envelope). It would cost ITS/The Appeals Service around £25,000 to provide a first class rather than second class pre-paid envelope.[83] It would presumably cost the Benefits Agency, the Child Support Agency and the Employment Service a similar amount between them to send out the enquiry form by first class post. In response to our concern at the strict timetable, exacerbated by the use of second class post, Neil Ward of ITS/The Appeals Service advised us that it was the intention to avoid "a 14 day immediate guillotine" if an enquiry form was not returned by the deadline. Instead it was intended to take a more relaxed view, "something like 21 days" in order to give people the opportunity for their appeal to be heard.[84]

47. We remain concerned at the 14 day limit for return of the enquiry form from the date it is issued and the fact that a clerk can legitimately strike out an appeal if the enquiry form is received at a later date. Simply relying on tribunal clerks to take a more relaxed view than the regulations allow is not a satisfactory solution. We recommend that, where a deadline of 14 days exists for the return of a reply to a tribunal clerk's direction, both the direction and the pre-paid envelope for the reply should be sent by first class post.

Complaints

  48. The issue of complaints handling arose in the context of criticisms by organisations representing appellants regarding discriminatory attitudes by a minority of tribunal chairmen. The President told us that complaints are initially investigated by regional chairmen and if they raise serious issues, they are routinely referred to him. He expressed surprise at the allegations regarding prejudice: "I have not seen it, certainly not coming through to me."[85] In contrast, Jude Hawes of Stoke-on-Trent CAB, commented, "On a number of occasions tribunal members and Chairs fall significantly short of adequate standards in regard to equal opportunities and anti discrimination. Racist and sexist comments are made and stereotypical assumptions relied upon."[86] Questions must therefore be asked about the effectiveness of the current complaints procedures, and the extent to which appellants are aware of and use the current complaints procedures. John Eames of Wiltshire Law Centre was critical of the defensive reaction of ITS in his region to complaints regarding behaviour and attitudes: "In Wales and West region, the official response (from the Regional Chairman) has always been defensive, and systematically conveys disbelief that the alleged incident could have happened. Appellants who have complained in this way are left feeling very aggrieved (and this can include appellants who have won their appeal) but with no further avenue to pursue."[87]

49. The 1997-98 ITS Annual Report noted that a requirement had been identified for the better recording and analysis of complaints, and that the new system would be fully operational in autumn 1998. A year later, we were told by the President that the system "has not yet reached a point where we can draw from it useful material."[88] The evidence before us raises serious concerns about how widely known and understood the complaints procedure of ITS/The Appeals Service is; about the quality of responses to complaints; and about the weight given to complaints in informing future practice.

50. We recommend that at the time the new Appeals Service is launched next April, a revised complaints system should be made available to all tribunal users, which sets out clear standards of conduct for all staff, both judicial and administrative, and clear means of seeking redress.

51. We recommend that the Annual Report of The Appeals Service should give an analysis of complaints made during the year in each region and action taken in response to complaints.

Monitoring performance

  52. In assessing the performance of The Appeals Service, it is inevitable that there is a pre-occupation with clearance times. Thus, when the Social Security Act 1998 was being debated, the then Secretary of State for Social Security told Parliament: "I shall assume personal responsibility for the administration of the appeals system. I shall set demanding targets to shorten the time that it takes for appeals to be heard, and for appellants to be told the outcome. When we have set up the new tribunal service and the new administrative systems which underpin it, I shall publish those targets and report on the results. People must know that there is a time limit during which appeals will be heard, and we must ensure that that limit is stuck to."[89] The danger, however, is that in concentrating all efforts on speeding up the number of cases brought before the tribunal, other aspects of performance go unmeasured. For example, there are no targets for the issuing of full reasons for a tribunal decision when requested by a party to an appeal, nor for dealing with interlocutory matters, such as applications to set aside a decision.[90] We recommend that targets should be set for the hearing of interlocutory matters such as applications to set aside a decision, or applications for reinstatement of an appeal, and for the production of full written reasons for a decision.

53. Not all delays are the responsibility of ITS/The Appeals Service. Appellant organisations referred to, for example, delays in the preparation of the Benefits Agency appeal submissions;[91] delays awaiting a Benefits Agency re-submission;[92] and the time taken by the relevant Executive Agency to implement a tribunal's decision. All these matters impinge on the effectiveness of the appeal system, from the point of view of appellants. New arrangements from April 1999 mean that first-tier Agencies have responsibility for issuing the appeal submission direct to the appellant. IT/The Appeals Service will only take on responsibility for processing an appeal once the appeal submission has been prepared.

54. We recommend that in setting targets designed to improve the system of appeals, the Secretary of State for Social Security should take a co-ordinated approach across the Department's Executive Agencies, thus ensuring that targets cover aspects of appeals which are dealt with by the Benefits Agency and the Child Support Agency, as well as The Appeals Service.

55. We recommend that the time taken from the date an appeal is lodged with the first-tier agency to the date the appeal is determined by an appeal tribunal should continue to be measured, in order to ensure that overall performance by the Agencies involved is improving.

56. One aspect of measuring performance is the publication of regular statistics covering key indicators. Until 1996, the Department of Social Security produced regular quarterly statistics covering detailed data on a national and regional basis on the number of appeals registered; the number of appeals cleared; and the outcome of appeals by result. This was discontinued due to problems in obtaining the relevant data from ITS, which was in the process of installing a new generic IT system. The Department advised subscribers that it was hoped to re-introduce the production of an Appeals publication by April or May 1998.[93] Over a year later, an Appeals publication has yet to be re-introduced. We recommend that the publication of quarterly statistics by DSS Analytical Services Division relating to appeals should be re-introduced as soon as possible.

57. The changes brought about to the social security and child support appeals system since 1996, in particular by the Social Security Act 1998, are fundamental and far reaching in their effect on the system of justice available to people wishing to challenge decisions made by the Department of Social Security. The DSS has advised that it intends to carry out a full post-implementation evaluation—both from a policy and operational perspective. Each Agency will have a clear set of critical factors, reflecting departmental criteria, against which to measure success.[94] At present, no external research has been commissioned by the Department examining wider questions raised by the reforms: for example, the impact of single person tribunals on the quality of tribunal decisions; the effectiveness of tribunal clerks in making interlocutory determination in connection with appeals; or the perceptions of appellants of the fairness and efficiency of the new appeals process. Full implementation of the decision making and appeals reforms is still underway. We recommend that the DSS and the Lord Chancellor's Department should jointly commission a comprehensive programme of research on the impact of the decision making and appeals reforms.

The monitoring of 'first-tier' decisions

  58. Under the Social Security Act 1998, the President has a new duty to "each year...make to the Secretary of State a written report, based on cases coming before appeal tribunals, on the standards achieved by the Secretary of State in the making of decisions against which an appeal lies to an appeal tribunal."[95] The Act creates a new role for the President in supporting first-tier agencies in their drive to improve the standard of decision making. This new duty is potentially onerous, requiring the President and his staff to carry out an analysis of the some 32,000 cases which come before tribunals, in order to establish areas for improvement for the officials taking the decisions against which people then appeal.

59. In practice, the approach will be considerably more modest. A pilot is to be introduced in October 1999 which will require four full-time chairmen in each of the six ITS regions to complete a pro forma in respect of the cases they hear over a two or three week period. The completed pro forma will identify any faults in the initial decision which was appealed. The results will then be analysed. The intention of the pilot is to assess whether such an approach allows the production of useful data. The first report will be prepared in 2001, at the end of the first complete year of the new system of decision making.[96]

60. The President's role in giving feedback to first-tier agencies on the standards of their decision making is potentially valuable in identifying persistent areas of difficulty. The CAB Service suggested that greater feedback should be given to the Benefits Agency on areas where their experience was that a high proportion of appeals were successful: Income Support decisions on habitual residence, and decisions concerning Incapacity Benefit and Disability Living Allowance appeals where the quality of medical evidence was called into question.[97] The Committee will follow with interest the pilot being carried out from October 1999 and the results which ensue. We recommend that the results of the pilot exercise concerning the monitoring of first-tier decisions coming before appeal tribunals, and the conclusions reached regarding future monitoring, should be published before the President assumes his new responsibilities in April 2000.

Conclusion

  61. The Appeals Service will formally come into existence in April 2000. There remain big challenges ahead in improving the quality of the service provided. The Committee will continue to monitor the progress of the President and of The Appeals Service agency towards achieving a first-class public service.

61   Ev. p.27, para 2.16. Back

62   Ev. p.15, para 1. Back

63   Q. 37. Back

64   Q. 37. Back

65   Ev. p. 2. Para 6. Back

66   Q. 27. See also Ev. p.11, para 30.  Back

67   Appendix 3, para 3. Back

68   Ev. p.7, para 6.8.1. Back

69   Tribunals their Organisation and Independence, Council on Tribunals, 1997, Cm 3744. Back

70   Regulation 46 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I., 1999, No. 991). Back

71   Q. 25, Ev. p.12, para 40. Back

72   Ev. p.2, para 12. Back

73   Q. 25. Back

74   Social Security (Adjudication) and Child Support Amendment (No.2) Regulations 1996 (S.I., 1996, No. 2450). Back

75   Appendix 4. Back

76   Social Security Statistics 1999, Table H5.03. Back

77   Appendix 4. Back

78   Q. 29. Back

79   HC Deb 16 October 1996, vol 282 c 1010 w. Back

80   Regulation 39, Social Security and Child Support (Decisions and Appeals) Regulations 1999, (S.I., 1999, No. 991). Back

81   See Q. 30, Ev. p.10, para 16, and Ev. p.47. Back

82   Ev. p.6, para 6.3. Back

83   Ev. p.48. Back

84   Q. 74. Back

85   Q. 72 Back

86   Ev. p.48. Back

87   Ev. p.3, para 19. Back

88   Q. 70. Back

89   HC Deb 22 July 1997 vol 298 col 785. Back

90   Q. 27. Back

91   Ev. p. 11, para 24. Back

92   Q. 8. Back

93   Notice to House of Commons Statistics Library from DSS Analytical Services Division1A, September 1997. Back

94   Appendix 4. Back

95   Social Security Act 1998, Schedule 1, para 10. Back

96   Q. 77. Back

97   Ev. p.5, para 5.1. Back