Tuesday 18 October 2016

The beginning of the end for appeal hearings?

Did you know the government is currently consulting on wide-ranging proposals to reform the UK's justice system?

If not, you could easily be forgiven: the consultation began just a month ago, on 15th September without much of a blaze of publicity. And it closes in not much more than a week's time, on 27th October. If some of the proposals become law, it will be even harder for benefit claimants to get justice when they are wrongly refused benefit.

You can find the consultation documents (and enter your own responses) here:

If the proposals become law:

  • It will no longer be normal to have a tribunal hearing that you can attend, if you are refused benefit. Many people appealing decisions will have their cases decided by judges just looking at the documents they have received. Others will have their cases heard on the phone, or by videolink. Much of the work involved in dealing with cases will not be undertaken by qualified judges, but by case officers. Appellants will be encouraged to resolve their cases by agreement with the DWP through mediation.
  • The tribunal administration process will be entirely digital, and will need to be accessed online.
  • Disability and capability for work tribunals will not have to include medically qualified members or disability members.
The government's stated aims of the proposals are to create a system that is just, proportionate, and accessible. I think the key word here is 'proportionate', which I read as 'cheaper'. I see no evidence that the new system will be anything other than less just, and less accessible.

Here are a small selection of the reasons why I am worried, and angry:
  • The evidence is clear that not having a hearing that you attend (an 'oral' hearing) reduces your chances of a successful appeal. For example,  The Guardian cites research by University College London that showed that people appealing against adverse Disability Living Allowance (DLA) decisions were almost three times more likely to succeed at oral hearings than if there cases were heard 'on the papers'. 
  • Mediation does not appear to be appropriate to this arena. Mediation is valuable when two, roughly equal, parties need help to resolve an emotionally charged dispute where compromise is a crucial to achieving a satisfactory outcome. But in a benefit appeal:
    •  the parties are not  equal: a individual is in dispute with a government department;
    • The only emotional content in the dispute is probably the dispute itself: and there is presumably no emotional involvement on the part of the DWP. 
    • Most importantly, compromise is neither appropriate or desirable. The purpose of a benefit tribunal is to decide whether a specific benefit, or rate of benefit, should be awarded or not (or, sometimes, whether an overpayment is recoverable or not). This is a matter to be decided on the facts. A compromise can only mean an outcome in which the appellant gets less than what they are entitled to, the quid pro quo presumably being that the DWP has to pay them more money than they would like to pay (which I imagine is nothing).
  • How will video/phone appeals work in the real world? What if the client has no phone credit, or a bad internet connection. What if they have to call from a busy flat, accompanied by barking dog and crying baby? 
  • More generally, how will a process that is entirely digitally mediated work for those claimants who cannot easily access the internet, whether through ability or resource limitations? The consultation document accepts that the proportion of the population who are 'digital excluded' may be disproportionately represented in those involved in benefit appeals, but doesn't go on to propose quantified solutions to this. (Ominously, though, it does suggest that 'legal service providers' may judge there is a sufficient demand for a paid-for digital service as a means to generating profit' [From Paragraph 37 of Impact Assessment: Assisted Digital].)
  • The proposals regarding 'lay members' of tribunals look a bit weasel-wordy to me. They talk about giving the tribunal service flexibility to chose where best to direct the resource of medical and disability experts. Translated, I think this means that the service will not have enough experts to cover all the tribunals, so will have to make difficult decisions about how to ration them out. 
Whatever the motivations behind these proposals, what they seem to be saying to those who need to appeal benefit decisions is this: You are a nuisance. You have come to believe that you are entitled to your day in court, but you are wrong. You are not worth the state paying for a judge to hear your case in an oral hearing, or for medical experts to help the judge make an informed decision. The courts are for important people discussing important things: you should not be there.

You can find the consultation document here:

You can also read an excellent article in the Guardian here:

(NB If you want to participate in the consultation (and I really hope you do) beware. If you look for a consultation question about the reduced role of oral hearings you won't find it. I've shoehorned my comments into the two questions on Assisted Digital (and, by the way, does anyone else think there Q1 in this section is almost completely meaningless?).

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