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Our response to the consultation on assisted digital strategy, online conviction and statutory fixed fines

29 November 2016

Disability Rights UK response to the Ministry of Justice Consultation Transforming our justice system: assisted digital strategy, online conviction and statutory fixed fines  

Note: Disability Rights UK member Mind has also done a response, highlighting problems with mental health tribunals

Disability Rights UK (DR UK) is a pan disability membership organisation

led by disabled people with diverse experiences of disability and health conditions, from different communities. We are disabled people leading change and our vison is equal participation for all.

Our membership includes individual disabled people and also organisations working on their behalf including disabled people led organisations.

Among our membership are over three hundred organisations that give advice directly to disabled people, particularly in respect of benefit issues. DR UK runs a second tier advice line where we assist their front line advice workers with supportive information and advice.

Our submission seeks to make observations with regard to the proposed use of digital technology in the application and completion of social security tribunal appeal cases.

Question 1: Do you agree that the channels outlined (telephone, webchat, face-to-face and paper) are the right ones to enable people to interact with HMCTS in a meaningful and effective manner? 

We are extremely worried and concerned about the following proposals outlined in paragraph 5.1.i  and 5.1.ii of the Transforming our justice system consultation document -

“i. Streamlining procedures and encouraging a balanced approach: We are working to simplify our procedures and put entire services online where possible, carefully designed to be intuitive and easy to follow.

Many relatively straightforward tribunal decisions do not require full physical hearings, so where appropriate, judges will be making decisions based on written representations, hearings will be held over telephone or video conference and specially trained case officers will help cases progress through the system.

All of these changes will make the process quicker and easier to deal with for all parties involved in a case.

ii Digitising the Social Security and Child Support Tribunal: This will be 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 proposal that Social Security and Child Support Tribunals are to be “moved entirely online” and are to be the first services to be moved is incompatible with disabled people being able to achieve “swift and certain justice” within a system that is “just, proportionate and accessible”.

Crucially, there is a significant difference in the intentions expressed in the consultation document and that expressed in section 6 in the joint statement Transforming Our Justice System by the Lord Chancellor, the Lord Chief Justice sand the Senior President of Tribunals -

“Tribunals will be digital by default, with easy to use and intuitive online processes put in place to help people lodge a claim more easily, but with the right levels of help in place for anyone who needs it, making sure that nobody is denied justice.”

According to the GOV.UK website, “digital by default” refers to the criteria to meet, for digital teams that are building government services (the Digital by Default Service Standard).

It is important to note that digital by default does not propose replacing services with a digital only option but about encouraging those who are able to do so to turn to digital first.

DR UK wholeheartedly agrees with the following statement by the Disability Benefits Consortium that digitising the entire Social Security and Child Support Tribunal system is not the correct approach: 

“We are concerned that this will detract from ‘delivering swift and certain justice’ as proposed by the consultation. In fact, this may introduce such a high barrier to submitting and having an individual’s appeal heard that it could deter thousands of disabled people from challenging incorrect disability benefit decisions.”

We would highlight that appeals to Social Security and Child Support Tribunals are increasing and are being made predominately by disabled people.

The Tribunals and Gender Recognition Certificate Statistics Quarterly April to June 2016 statistical release states:

“The SSCS tribunal disposed of 45,600 appeals in April to June 2016, up 30% on the same period in 2015.This is driven by an increase in Personal Independent Payment (PIP) disposals (41% of all disposals), which is gradually replacing the DWP benefit Disability Living Allowance (DLA).

…  Employment Support Allowance (ESA) accounted for 40% of the total SSCS Tribunal receipts in April to June 2016 and saw a 39% increase from 13,483 in the same period in 2015 to 18,795 in the current quarter.”

So around 4 in 5 appeals made to Social Security and Child Support Tribunals are made by disabled people.

Given this, it is vital that a ‘gung-ho’ approach to digitising the tribunal system is taken on the basis that innovative technology exists and that the Ministry of Justice has access to funding to invest in it.

Welfare benefit claimants wishing to appeal against a benefit decision now do so either through paper submissions or by physically attending a tribunal.

A move from in-person face-to-face hearings could result in some disabled claimants not being able to present their case effectively and with tribunal panels not being able to effectively assess the claimant’s case. This would result in fewer social security appeals being upheld.

Both Personal Independence Payment (PIP) and Employment and Support Allowance (ESA) First Tier Tribunal appeals have a high rate of success.

On 23 May 2016, then Minister for Disabled People Justin Tomlinson said in a parliamentary answer -

“The Department gathers information on the reasons why PIP decisions have been overturned from its Presenting Officers and the summary reasons it gets back from the Tribunal hearing.

Internal Management Information for 2015/16 indicates that either new oral or documentary evidence supplied at the hearing are the leading reasons for PIP decisions being overturned in 75% of overturns recorded.”

Significantly, the main source of additional evidence is oral evidence.

In a further written response the next day, the Minister refined his answer as follows –

“The 75% can be broken down as follows:

Cogent oral evidence – 66%

Cogent documentary evidence supplied at the appeal – 9%.”

Similar to PIP, the latest DWP statistics show that 59% of ESA appeals were successful.

In its recent investigation, Decision Making and Mandatory Reconsideration (July 2016), the Social Security Advisory Committee considered evidence of the primary reasons for appeal tribunals overturning DWP decisions and concluded that –

“… the data suggest that cogent oral evidence provided is critical to decisions being changed at tribunal”.

We believe that unfortunately the Ministry of Justice does not collect data on the outcomes of different types of appeal hearings.

But advice sector representatives would universally agree that the success rate by disabled people at oral appeals is in stark contrast to that of paper appeals.

In addition, research by the University College London Judicial Institute and the Nuffield Foundation in 2013 found that claimants were almost three times as likely to win an appeal for Disability Living Allowance after an oral hearing than paper alone (46%, compared to 17%).

There are likely to be several reasons for this.

Primarily, without the disabled person sitting in front of them, a tribunal panel cannot judge for themselves how severe their condition is. Appeal panels, often faced with conflicting medical evidence, have to make a decision about the honesty and credibility of an appellant. It is clearly far easier for them to make this judgment if a claimant is in front of them answering their questions.

This disadvantage is exacerbated by the fact that many claimants appealing a decision are not actually aware of the complicated legal criteria for being eligible for benefits. When the appeal is by paper, a tribunal has no way of filling in the gaps in the evidence so may not make an award.

Tribunal hearings held by video conferencing will not have similar disadvantages to that of paper hearings.

But many disabled people will not be able to access such video conferencing from their own homes.

Using a computer is still something many disabled people struggle with.

There are many and varied reasons for this. 

While assistive technologies, such as dictation systems and screen readers have emerged, there are still some issues that may prevent people with disabilities from making full use of digital services.

Lack of access due to cost is a significant issue. A typical screen reader package can cost more than £650, while an update to the technology typically costs more than £150.

The Extra Costs Commission, launched by Scope, did a year-long enquiry exploring the extra costs faced by disabled people, estimated to be on average £550 more a month. In its June 2015 report concludes that disabled people could save money by learning how to use the internet, for example by using cost comparison websites, yet disabled people were not online because of a lack of training, cost of equipment and the accessibility of web content.

Although some disabled people may qualify for Personal Independence Payment to help with extra costs associated with their disability, the costs associated with being online such as equipment, broadband connection and standing charges, still take this out of the reach of many.

And as we have highlighted, a significant number of disabled claimants need to appeal to a tribunal in order to successfully challenge decisions to refuse them Personal Independence Payment.

In addition, many online services are limited because they have been developed without taking these disabilities into consideration and even the most sophisticated software may not be able to help users.

The latest statistics (2016) from the Office of National Statistics show that 25% of disabled adults had never used the internet which translates to over

three million people. Across all age groups, the proportion of adults who were recent internet users was lower for those who are disabled, compared with those who are not.

Some disabled claimants may feel uncomfortable with teleconferencing, as they are not actually able to speak to a judge face-to-face. The experience of watching the tribunal panel on a computer screen or television monitor may make some individuals feel like the hearing is too impersonal.

The credibility of the disabled person can be a major part of a tribunal’s reasoning as to the correct disposal of their welfare benefit appeal. This can be especially so if they have mental impairments or physical issues that don't appear on x-rays or MRIs, such as fibromyalgia or chronic fatigue syndrome.

The cameras and television screens used in video hearings make it nearly impossible for the judge to “look claimants in the eye” to evaluate their credibility. In addition, for example a tribunal panel may fail to notice that a disabled claimant walked with a limp while entering the hearing room or that they appeared to be in pain while seated during the hearing.

It is unlikely that most disabled claimants will be able to access video conferencing from their own home. This will mean that they will need to travel to a Ministry of Justice facility to do so.

However, we are concerned that there will be sufficient facilities available without the need for disabled people to travel a great distance to them.

In their joint statement paper Transforming Our Justice System, the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals state –

“As the courts and tribunals are modernised we will need fewer buildings, used more efficiently with courtrooms which are more adaptable. In many cases, attending hearings in person will only be needed where there is no other alternative; parties will be able to engage virtually or online rather than have to take time to attend hearings in person.

We currently have over 400 court and tribunal buildings, many of them old, small, inefficient, yet expensive to maintain. In 2014-15, around half (48%) of courts and tribunals were used for less than half of the time. Many will be closed over the next four years to fund investment in fewer, more modern buildings that can better serve people’s needs. “

Any such investment in more modern buildings must ensure that such new properties are fully accessible. However, given the restrictions on many disabled people being able to access video conferencing from home, they must be of sufficient number and geographical spread to ensure that disabled people are not required to travel great distances to them.

If, as is likely, many disabled claimants will not be able to even access video conferencing without travelling to a Ministry of Justice building to do so it seems to negate any advantage to them of travelling to participate in a face-to-face oral hearing as happens now.

We acknowledge that the joint statement continues –

“Although, in Great Britain, 86 per cent of homes had internet access in 2015, only 49 per cent of households with one adult aged 65 or over had internet access. One in ten adults, including a quarter of disabled adults, have never used the internet. Research shows that there is a small core of non-internet users who do not intend to get connected.

We will provide support for those who cannot access services digitally, or who need help to do so. In designing different services, we will always tailor the support around the needs of those who will use them.”

However, while we welcome this above commitment, there is no detail of how it is proposed that it will be achieved.

We would submit that before any restriction in building or other provision that current disabled tribunal users are consulted as to what their needs will be in accessing remote digital services.

The joint statement also says that –

“In the next 18 months, online dispute resolution will be tested in Social Security & Child Support hearings, with people making their appeal and receiving a response online, and tribunal judges providing dispute resolution through “continuous online hearings”.

This ongoing process will enable judges to gather evidence and make informed decisions at a pace that is right for the case and the parties.”

We welcome the proposal to test online dispute resolution Social Security and Child Support hearings over an 18-month period.

However, we would submit that disabled people and disability organisations must be fully involved in both the design and evaluation of such tests.

If the design of these tests is not aware of the needs of disabled people in the accessing and use of online technology, then its results are bound to be inadequate.

Again, disabled people and their organisations need to help evaluate the process in order to ensure any failings are recognised and solutions identified.

In addition, we strongly oppose any proposal for video conferencing hearings not to be held in “continuous real time” as are oral hearings.

This presumes that disabled people will have ready access to online facilities so as to participate from home.

Many disabled people with mental health difficulties can find the hearing process to be stressful and distressing. Being required to attend a building on several occasions over a period of weeks can only exacerbate this. Those with cognitive difficulties will find it difficult to follow a process subject to unexpected interruption and restarting.

Those with physical disabilities may find travel to a Ministry of Justice building difficult and painful and should not be expected to do so on such a serial basis.

Oral hearings are both performed in a real-time environment that allows representation by welfare rights advocates at all times during the hearing, including cross-examination of DWP presenting officers and questioning their disabled clients to enable them to elaborate on their evidence.

Social security legislation is often complex and disabled claimants will not always know the technical rules at dispute in their case. It is therefore important that any representative is able to attend the full hearing if their appeal.

Disabled people themselves should be the best judge of whether their case can be properly adjudicated on paper via video or at a face-to-face oral hearing. The credibility of the disabled person can be a major part of their case. This can be especially so if they have mental impairments or physical issues that don't appear on x-rays or MRIs, such as fibromyalgia or chronic fatigue syndrome. 

We have sought to highlight that a future inability to readily access justice via a face-to-face oral hearing will not lead to the aim of “swift and certain justice”.

At present, all claimants have an absolute right to choose either a paper hearing of their appeal or an oral hearing. In future, it is just that they have a right to choose a paper hearing, video conferencing or an in person oral hearing of their appeal. 

In addition, we would stress that any move to digitisation must enable disabled people to retain the right to an oral hearing as an effectively resourced choice. They must not feel pressurised to opt for a video hearing on the grounds that digitalisation leads to an otherwise substantially longer wait for appeal resolution. 

Question 2: Do you believe that any channels are particularly well suited to certain types of HMCTS service? 

DR UK recognises that ICT can enhance the quality of life for some disabled people. Someone with severe motor impairments, for example, use eye-tracking equipment to stay in touch with friends via social networks.

We would not challenge the assertion that some disabled people may find a video conferenced hearing better suited to their needs and more likely to lead to a just resolution of their appeal. For example, a disabled claimant who is bedbound or a disabled claimant who has anxiety and is agoraphobic.

However, we believe that face-to-face hearings are often preferable to and result in more just resolutions for many disabled claimants.  

We therefore strongly recommend that the Ministry of Justice does not remove the ability and right of all disabled claimants to choose to have their welfare benefit appeal heard at a face-to-face oral hearing.

We would again highlight that is important to note that digital by default does not propose replacing services with a digital only option but about encouraging those who are able to turn to digital first. 

As we have stressed, there are significant difficulties with some disabled people accessing digital services due to the nature of their disability as well as practical considerations such as access and cost. 

For more information about this submission, please contact Ken Butler, DR UK Welfare Rights Adviser, at ken.butler@disabilityrightsuk.org or 0207 250 8184.