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Our response to the Ministry of Justice Consultation on panel composition in tribunals

29 November 2016

Disability Rights UK response to the Ministry of Justice Consultation Transforming our justice system: panel composition in tribunals

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.

We attended a Ministry of Justice stakeholder meeting on 17 November 2106 at which the proposed reforms to tribunal panel composition were outlined.

The meeting was minuted and the following submission seeks to confirm and supplement points we made.

Our submission is related to the tribunal panel composition in Social Security and Child Support appeal hearings.

DR UK strongly disagrees with any change to the panel composition of tribunals hearing appeals that relate to a claimant’s eligibility for benefit under disability qualification regulations.

It is no exaggeration that the proposal to move to a so-called “proportionate and flexible” approach to tribunal panel composition has caused universal shock and deep concern to disabled people and disabled people’s organisations.

We are confident that the Ministry of Justice will find that this is reflected in submissions to this consultation.

We would urge the Ministry to take stock of this and not proceed with proposals that can only damage disabled people’s confidence in the justice system and lead to damaging and unfair appeal outcomes.

The latest annual Family Resources Survey highlights that the percentage of people living in households where at least one member was disabled who were in “absolute poverty” rose from 27% in 2012-13 to 30% in 2013-14.

Research by Scope has estimated that disabled people spend on average, £550 a month on disability-related expenditure.

Employment and Support Allowance (ESA) Disability Living Allowance (DLA), Attendance Allowance (AA) and Personal Independence Payment (PIP) provide essential income supplements to the extra costs of living with a disability or long-term health condition.

Given that many disabled people are living in poverty it is vital that they are not only able to access the justice system but are able to have their cases considered justly.

Appeals to SSCS Tribunals are increasing and are predominately being made 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 SSCS Tribunals are made by disabled people.

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

DWP statistics for April 2015 to April 2016  show that as well as PIP appeals remaining continuously high that 65% of PIP appeals are decided in the claimant's favour.

In addition, the latest DWP statistics show that 59% of ESA appeals are successful.

By far the majority of Employment and Support Allowance (ESA) Disability Living Allowance (DLA), Attendance Allowance (AA) and Personal Independence Payment (PIP) appeals concern the disability qualifying criteria of the benefit.

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”.

DR UK is a member of the Disability Benefits Consortium (DBC). In its submission to this consultation, the DBC highlights that -

“The value for disabled people of attending tribunal hearing for benefit decisions, is having impartial clinicians and experts ask them about the impact of their condition, in order to fully assess whether the initial decision was correct."

A person with M.E. explains their experience of the SSCS tribunal panel:

“Listened to what I had to say and original evidence submitted in PIP claim was sufficient even though I submitted extra evidence in appeal. [They] could see poor quality of health professional’s report and DWP decision making.”

We are therefore extremely concerned that the degree of scrutiny and the quality of decision-making by tribunal panels could be seriously affected if clinicians are not routinely part of face-to-face disability benefit appeal hearings.

A person who appeared before a tribunal without a medical expert explains their experience:

“The Tribunal was dreadful. The behaviour of the lay member was accusatory, adversarial and hostile. No account was taken of my cognitive and memory problems. My medical evidence was ignored. I felt as though I was being blamed for my illness and for the fact that I had not improved. My representative agrees, and has requested the notes from the Tribunal to see if the law was applied correctly.”

As a result, where the impact of a person's medical condition and functional ability is being considered a medical specialist panel member is essential.

We therefore fully endorse the DBC submission that –

“Given the continued increase in the proportion of PIP and ESA appeals, it is crucial that clinicians and other medical experts ensure that disabled people receive a fair hearing and the correct outcome for their needs in future. We are gravely concerned at the potential implications for further appeals and challenges if appeals panels do not routinely include clinicians.”

The presence on appeal tribunals of disability-qualified panel member considering the disability eligibility criteria of DLA, AA or PIP is also essential.

The addition of a disability qualified member to an appeal panel for Disability Living Allowance in the 1990s was as a result of pressure from disabled people, carers and disability groups concerned about a policy which left them without a role in determining the outcome of a decision around people’s eligibility for disability benefits.

This was rooted in a historical policy approach to disability and disability issues, where disabled people and their representatives were not involved in the formulation of disability policy.

At that time, the growing disability movement had a mantra of ‘nothing about us, without us’. This principle has since been accepted in recent decades in the development of policy affecting disabled people across the sectors, including Government.

Panel members with close or direct experience of disability provide a perspective that is unavailable to judicial or medical members.

Panel members with experience of disability may also be seen by appellants as providing a neutral presence in a process which many find stressful or distressing or both. Appellants may, for example, have had poor experiences previously with representatives from the judicial or medical fields. Although tribunals do their best to be user friendly, they are nonetheless formal legal proceedings.

In a recent Guardian article, a disability-qualified panel member gives an insightful summary of their role –

“It’s part of my job to look at a claim from a disabled person’s perspective. I can ask questions about how someone has filled in the form and get an understanding of the implications of what they have (or haven’t) said.

My personal experience of disability gives me some insight into the kinds of questions to ask to get relevant information about people’s conditions that make their day-to-day life difficult.

Most appellants who come to the tribunal are nervous. Tears and distress are common, even though tribunals are pretty informal.

Having someone on the panel who isn’t a doctor or a lawyer does make things easier for many claimants and they are more likely to open up.

I help increase the general knowledge base of a tribunal. It’s not a “jury of their peers”, because there are not 12 of us, but it does at least nod to that principle by having a disability expert on the panel.

Although the vast majority of panel members I’ve sat with over the years are good people, everyone can have bad days, doctors and lawyers included. Three-person tribunals add checks and balances to the benefit appeal process, with room to challenge and probe decision-making and reasoning.”

The consultation maintains that this many tribunal panels are based on historical precedents rather than the most appropriate specialist expertise or knowledge for individual cases -

“In the First-tier Tribunal (Social Security and Child Support), for example, many cases must be heard by a judge, a medical member and a member with experience of providing or receiving care for disability, regardless of the circumstances of the case in question.”

We acknowledge there are circumstances where a judge and not a medical member and or a disability member may not be needed on a panel considering an appeal relating to Employment and Support Allowance (ESA) Disability Living Allowance (DLA), Attendance Allowance (AA) or Personal Independence Payment (PIP).

However, this must only be where the issue under appeal does not relate to the nature and severity of someone’s disability or ill health condition and how it effects their daily life.

For example, in cases where the issue under appeal only relates to whether an appellant has a right to reside in the UK or how long they have resided here.

Crucially, the consultation puts forwards no evidence that the presence of non-legal members in appeal cases considering benefit appeals relating to disability related criteria can be unnecessary.

Given the points we have made, seen in the context of oral hearings, the proposal not to continue with such a ‘blanket approach’ seemed baffling.

It is only thorough our attendance at the Ministry’s recent stakeholder meeting that its context was made clear – the proposed adoption for the justice system to become digital by default.

That this not made clear in the consultation document is a very serious failing.

As a result of the omission many submissions to this consultation will not address the issue of panel member size in the context of digitalisation.

Where respondents have responded to both the panel composition and digitalisation consultations we would urge the Ministry pay attention to and weigh both in the round.

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

“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.”

What seems to be intended is that welfare rights appeals will be heard by a ‘stop-start’ approach, with only a Judge digitally hearing the case initially (and potentially only a judge hearing the entire case).

Under this digital hearing procedure, non-legal panel members would only be involved at the instigation of the Judge.

So for example, if a medically related issue arises, the Judge would adjourn the hearing and consult with a medical member. On receiving advice from them, the hearing would then recommence digitally from a later date.

Any written advice given by the medical member would be made accessible to the appellant and the DWP.

It is unclear whether the medical member will automatically be given a record of the tribunals’ proceedings before they are consulted. If not, it is quite possible that significant evidence may not be considered by the medical member as the Judge may not realise the significance of a disabled appellant’s oral statements.

To illustrate this further, we would again highlight the recent Guardian article by a disability-qualified panel member

“Do you ever hang on to the sink to help you get up off the toilet?” Not necessarily a conventional conversation piece, but occasionally a question I ask in a personal independence payment (PIP) appeal tribunal.

… When deliberating the case … (let’s be original and call him Mr Smith, a middle-aged man with a musculoskeletal disorder), the doctor mildly chided me for asking such a direct question, suggesting that I had perhaps led the claimant to a “yes” answer, and pointing out that the claimant had said nothing on his form about needing help to get off the toilet.

As panel members, we have to be impartial. I reminded him that many people don’t understand how they should fill in the form and struggle to follow the logic of how the decisions are made about who gets benefit. Many people who come before us haven’t even thought about, let alone got, advice from a benefits expert (which they should always do, if they possibly can). Any half-decent adviser would have found Mr Smith needed help getting off the loo.

It’s part of my job to look at a claim from a disabled person’s perspective. I can ask questions about how someone has filled in the form and get an understanding of the implications of what they have (or haven’t) said.

My personal experience of disability gives me some insight into the kinds of questions to ask to get relevant information about people’s conditions that make their day-to-day life difficult.”

At present, a full copy of the appeal bundle is given to all tribunal members hearing an oral ESA, AA, DLA or PIP appeal.

In this way, all the panel are prepared to hear the case and consider what questions from their own specialist viewpoint need to be asked of the client.

In a video hearing heard, at the very least initially by a single Judge, such informed pre-preparation will be lost.

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.

The credibility of the disabled person is often 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 believe that in many cases the credibility of a disabled person will be harder to assess under the constraints of video conferencing.

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 elaboration questioning of their disabled clients.

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.

The Ministry intends to test online dispute resolution Social Security and Child Support hearings over an 18-month period.

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.

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.

In addition, we are opposed to any testing of video hearings involving real appeals where a judgment will result. Disabled people should not be used as guinea pigs by the Ministry given that the high successful outcomes of appeals under the current system and where a lost appeal often has a serious financial implication on the disables person.

We were encouraged by the assurance given at the recent stakeholder meeting that disabled people will have the absolute choice of whether to have a paper hearing, digital hearing or oral hearing of their appeal.

But we are concerned that such a right should not be devalued by the promotion and better resourcing of digital hearings leading to longer and longer waits for those requesting full oral hearings. 

However, we are confident that in the future advisers will continue to recommend to most disabled appellants that their best interests will be served by attending an oral hearing and to not request either a paper hearing or a digital hearing.

Finally, we are greatly concerned that the Equalities Impact Assessment (EIA) only refers to the impact on tribunal users ‘indirectly’ instead of recognising that this impact is a direct consequence of the reforms.

We acknowledge that the assessment estimates that ‘we do not believe that the proposals will result in any indirect discrimination against tribunal users’ and that the ‘the Senior President of Tribunals is required to make sure that tribunals are accessible and are handled fairly’.

However, we are concerned that the specific impact on disabled people and those with long-term conditions has not been examined by the Impact Assessment.

We are also most concerned by the acknowledgement that there could be a “reduction in the number of sitting days of disability qualified panel members” who are required at AA, DLA, or PIP cases.

Given that the number of PIP appeals brought to SSCS tribunal continues to rise year-on-year, we do not understand how any reduction in the number of sitting days of disability-qualified panel members is possible if they were to remain required to attend PIP hearings.

In conclusion, we strongly oppose the proposition that that the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 be amended to provide that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT.

We believe that the proposals to reduce the number of panel members will mean that disabled people and people with long-term conditions do not receive a full and fair hearing in SSCS tribunals.

Around 4 in 5 appeals made to SSCS Tribunals are made by disabled people.

The Ministry’s aim of becoming digital by default must not be at the expense of justice for those disabled people who are not able for whatever reason to use digital technology.  

In addition, if a disabled person is digitally skilled and confident, we submit that a stop start video hearing before a single Judge will inevitably deliver less just outcomes for many disabled people.

In all cases relating to the disability related eligibility rules of welfare benefits we submit that the fundamental base line must be the current two member or three member make-up as now.

Without sufficient expertise to examine and assess the impact of a person’s condition, disabled people will not receive the correct outcome that reflects their needs.