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Social Security Representation

Social Security Representation in Social Welfare Law

In this document I propose to answer questions on tribunals and the role of representation especially in the areas relating to social welfare law and also aimed to make comments relating to other tribunals.

I shall perform a rigorous analysis of the impact that representation have on tribunal users. In order to do this it will be necessary to first examine the nature of the system as it was prior to the introduction of these reforms, for only through comparison can the full effect of the impact be understood; i.e. if the new reforms have not significantly changed the legal position of each party involved, then it goes without saying that the impact will likewise be insignificant. I shall therefore dedicate a section of this dissertation to the challenges which unrepresented appellants face while trying to get access to justice. I will provide an insight into the nature and function of Tribunals more generally.

In order to assess the nature of the impact, it will also be necessary to understand and engage with the rationale behind these reforms, and it is for this reason that I shall also dedicate a section of this dissertation to various researches that have been carried out on this topic. In this section I shall also engage with the question of why it has been deemed necessary by the Government to improve legislation to afford greater protection to tribunal’s users. I shall then discuss the content of the reform in some detail. I shall also dedicate a section of this dissertation to example of cases true life cases from the CAB website and responses from user groups. Having done this, I shall then be in a position to assess to what extent I believe the reform has had a positive or negative impact on unrepresented tribunal users.

I shall conclude by summarising the main findings of the dissertation and provide some of my own original insights as an observer at a tribunal hearing. The structure of this dissertation will take the following form:

The Role of Representatives in Social Security Appeals

Set out an example of good practice – what should be in the appeal papers for a tribunal etc can be found at:

The Origin of Tribunals

There were concerns that access to the courts was too expensive for most of the population and concerns over the court’s poor performance in general in carrying out more “regulatory” functions. Tribunals were then set up as a mechanism by which individual could resolve disputes with little legal intervention as possible either between individual and individual, and or between individual and the state. They were designed to be informal, cheap, simple and accessible as possible so that claimants can represent themselves. Tribunals constitute a substantial part of the justice system in England and Wales with tribunals classed as non-departmental public bodies. (Bradley & Ewing (2003) p.292) Since the twentieth century more individuals prefer to have their cases brought before a tribunal than to go to court. Tribunals were also designed to be less formal alternatives to the courts combining fairness and independence with accessibility and expertise.( Sir Oliver Franks)

The Structure Of Tribunal

The tribunal itself consist of three tribunal officers’ one of which The Chair, is a legally qualified practitioner, normally a practicing or retired solicitor), a doctor and the third officer is someone who has knowledge of disability issues. In addition, there should be a Presenting Officer from the Social Security who would explain the reasons for the refusal. There is also a clerk whose responsibility is to ensure the smooth running of the hearing. These tribunals are public hearings and therefore, members of the public can also attend. The Chairperson is the most important person of the tribunal and he/she decides how the hearing should be conducted.

What Adequate Measures Are There to Help Tribunal Users Present Themselves at Tribunals

‘A combination of good quality information and advice, effective procedures and well-conducted hearings and competent and well-trained tribunal members should go a very long way to helping the vast majority of appellants to understand how to put their cases properly themselves.’

LEGGATT REPORT Pg 4.21

The purpose of establishing tribunals was to make it as cheap, informal and accessible as possible for the population so that there will be no need for any form of representation. The idea is that tribunal users will be provided with the information and help they required in order to assist them prepare and present cases themselves. It should be noted that the vast majority of claimants using tribunals will not be able to present their cases effectively themselves. This will include people without any form of education, people with physical or mental incapacities, people with language problems, people with good level of education even with the Leggatt Report’s full recommendations in place, because the factual or legal complexity of some cases make representation impossible. However, it is a trite equitable maxim that justice should not only be done, but it should be seen to be done. It is therefore necessary for all individuals seeking access to the Social Security Tribunal to be able to do so with a view of getting full access to the remedies available at the tribunal.

In most of the research, individual appearing on seeking to avail themselves of the remedies of the Social Security Tribunal do not have adequate representation. Usually it is not easy for people to prepare their briefs and avail themselves of the remedies due to lack of expertise on such procedural matters. This is largely due to the fact that different people are with different backgrounds. For example, a lay person may not be able to present his or her case with such evidence that is necessary to pursue that case, more so if it involves complex evidence. It is therefore imperative for there to be a structure that guarantees representation. Individual coming before such tribunals should be given adequate information of what they stand to benefit if they equip themselves with a good representative who is vast in the procedure of such tribunal. Therefore, funding should be extended to Social Security Tribunal to cover legal representation in tribunals were it is not available now. The statistics regarding social security appeals have consistently shown that appellants have more chance of success if they attend a hearing with a representative. The overall success rate for oral hearings attended by the appellant only was 50.6 per cent whereas for hearings attended by the appellant and a representative the success rate was 65.9 per cent.

It is obvious that the Leggatt report had not taken the barriers faced by many social security appellants into consideration in making its recommendations. Representation is a major issue which should have been considered along side the reform. For example, the idea of producing ‘A combination of good quality information and advice, effective procedures and well-conducted hearings, competent and well-trained tribunal members and leaflets’ about tribunals appears unrealistic. The report ignores the fact that many social security appellants lack the relevant knowledge, expertise, confidence and experience of representing themselves adequately without the help of a legal representation at tribunal. My concern is that appellants who do not speak English or speak a little or those with mental health problems are even further disadvantaged in presenting their cases and tribunals should take into consideration that some important information might be lost in trying to do so.

What are the functions of representatives

The Functions of a Representative:

A concise definition was given in CIB/2058/2004. This case is about the functions of a representative and the duty on the tribunal to allow the representative to fulfil those functions.

Edward Jacobs Commissioner in CIB/2058/2004 gave three functions of representation: He said

First, the representative acts as a companion for the claimant, and may provide confidence in a strange environment. The Genn Report shows that the presence of a companion, even one who has no knowledge of the law, increases the chances of a claimant’s success at a hearing (page 68).

Second, the representative may assist the tribunal in gathering the evidence from the claimant. Sometimes the tribunal may be as able as the representative to obtain the relevant evidence. But a representative who is familiar with the claimant’s case may be able to elicit evidence that the claimant does not realise is relevant and does not emerge from the tribunal’s questions.

Third, the representative may make submissions on the law and may draw issues of evidence, fact or law to the attention of the tribunal.

The legislative basis for exercising those functions is regulation 49(8) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999:

‘A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person he represents is entitled.’

www.osscsc.gov.uk

The Need for Representation

The quality of preparation of any case fundamentally affects the success of a hearing. Most of the research shows that appellants who appear before tribunals without adequate representation have little chances of been successful at tribunals. Genn argue that tribunals are frequently ineffective because, even when relatively straightforward mechanism of appeal exists (as it does in the case of social security), most people do not use it because they assume that the original decision was ‘correct’ or that it is unlikely to be changed. In the 1,115 social security cases sampled, the presence of a skilled representative increased the likelihood of a successful appeal from an average of 30% to about 48%. The reasons for this is because a skilled representative, has the expertise of identifying the right issues and then planning a successful case, the right evidence and documentation will be obtained and persuasively presented, and if there are any weaknesses in the case, this will be identified before proceeding to trial.

There has been in recent years a growth of interest in the role of representation and its effects at tribunals. Various studies have been carried out by Genn and Genn, and Baldwin, Wikeley and Young on tribunals, where they compared other types of tribunals (immigration adjudicators, industrial tribunals and mental health review tribunals). A research study by Genn and Genn's TheEffectivenessof Representation atTribunals4 and Baldwin, Wikeley and Young's study JudgingSocialSecurity5 both involved social security appeal tribunals. Their research focused more on social security appeal tribunals since it hear more appeals than any other administrative tribunal. The research clearly has wide-ranging implications for tribunals in general. Most of the research concludes that appellants find it difficult to represent themselves. Genn and Genn 1989,p.237. Although some people choose to represent themselves they often find that the process is more complex and legalistic than they imagine and regrets their action afterwards. (Baldwin et al,1992.p174: Dickens 1985,p.88: Genn and Genn 1989,p.221: Gregory 1989,p.23;

Public Law 1999. Lay tribunal members and administrative justice. Michael Adler. Westlaw journal article

The Role Of Representatives In Social Security Appeals

The Social Security appeal tribunal was established to look into decisions wrongly made by government department. However, social welfare law have become so complex beyond the comprehension of the lay appellant especially those cases which involve medical evidence, and appeals in relation to DLA and Incapacity Benefit.

Laws’ regarding social security have now become extremely complex, in many cases are increasingly complex, and is very unlikely to become any simpler. For example, often

Social Security Commissioners have to interpret complex European Community (EC) law and the difficulty of interpreting social security regulations and statute. Facts are often difficult to prove, and only few appellants are able to represent themselves effectively.

Hazel and Yvette Genn summarise their findings in the following terms:

“In general, unrepresented [appellants and applicants] are disadvantaged in hearings by not being able to understand what is going on, by not knowing what they have to do, and by not understanding what the tribunal is there to do. Unrepresented appellants and applicants rarely feel that they have the necessary verbal skills to present a genuine challenge to the other side. They do not feel that they are able to ask the right questions, or express their case in the right sort of terms.” 73

73 Genn and Genn, op cit, p.237

Appellants find it difficult to participate effectively in their own hearing. due to complexity of cases, There are so many legal terminologies which appellants are unfamiliar with, appellants are unable to distinguish between evidence, opinion or statement of fact. Tribunals are the only hope the ordinary person has to right a wrong done to him or her by government department. Although tribunals are meant to be informal, yet many people still finds it intimidating. Some appellants may not be comfortable with been cross examined by a group of people, therefore, they may became intimidated or confused in the process, in that case, they misunderstand the questions and thereby omitting important information that could have helped to decide the case in their favour. Some people find the whole process so stressful that they eventually have a breakdown and call the whole process off or refuse to attend.

This highlights the examples of what some unrepresented appellants go through. It may help if appellants are prepared mentally or physically by given them some form of advice of what to expect in a tribunal hearing, this could help them prepare themselves, gather any information and evidence needed for the hearing. Some tribunal panel are very hostile and do not have the patience to deal with appellants especially when they appear nervous and avoid to answer questions accurately when put to them. This I understand may be due to lack of understanding of the law or misunderstanding of the question and especially when communication is a problem. A representative will be able to explain and direct the tribunal of the relevant points and ensure that all evidence is put before the tribunal. It should be noted that facts are often hard to establish, and few appellants are sufficiently confident or competent to represent themselves effectively. Representation can make a difference in a case, their presence can influence a decision made by tribunals by accurately investigating the background of appeals, direct the tribunal on the law, check for accuracy in the appellant’s application. Their presence can boost the confidence of the appellant and guide the tribunal to the areas in issue and will make sure that all necessary evidence is obtain to prove the case at the hearing.

As clearly pointed out by Baroness Hale in (Kerr v Department for Social Development [2004] UKHL 23, [2003] 1 WLR 1372, R 1/04)'It would have been unfortunate had none of the claimants been represented in these difficult and important cases. She went on to say that.. 'The general public cannot be expected to understand these complexities' It would have been difficult if not impossible for the claimants adequately to represent themselves on the issues these cases raise ...Whilst nothing we say can or should be taken as a judgment on the merits of any application for funding, had there been no legal representative to put the claimants' case, the resulting inequality of arms would have been a real concern.

In Tribunal users' experiences, perceptions and expectations: a literature review, the authors conclude on the value of representation before tribunals:

As highlighted above, in the light of clear evidence, representation increases chances of success; therefore, there is a need for trained representatives to be generally available as a

large proportion of those who attend hearings are still unable to present their own cases adequately, and skilled representatives could be of help to them. Reform of the tribunals system may have a significant impact upon disabled people.

An article written by Michael Adler in response to Sir Andrew Leggatt’s conclusions on representation criticized the conclusion Sir Andrew arrived at on lay representation in his report of tribunal reform. He argued that the report was written in the style of a judge rather than that of a policy-maker, He points out that Sir Leggatt would have identified a number of alternative solutions; consider their advantages and disadvantages before making any recommendation. Alder admits that although the Report offers a compelling critique of the fact that existing tribunals are indeed in need of reform, he analysis the recommendations put forward and concluded that the recommendations did not go far enough to resolve the problems identified. He went on to say that this has created a major difficulty for the Lord Chancellor's Department, which has accepted that tribunals are in need of reform but is not, at this stage, committed to implementing the whole package of recommendations set out in the Report.

In no doubt Sir Leggatt believes that representation significantly increases the likelihood of the appellant being successful, but then again, he is certain that representation can cause setbacks and add unnecessarily expenses to users therefore defeating the purpose of creating them in the first place. (para. 4.21). ). Leggatt believes that: 'with very few exceptions, the aim should be that tribunals' distinctive procedures and approach should enable users to prepare and present their cases themselves'. (para. 4.3)

However, the Report accepts the fact that there will be barriers which will prevent some appellants from been able to present their cases themselves, either because the factual or legal complexity of their cases will make representation indispensable or due to their physical or mental incapacity will make it very difficult for them to represent themselves adequately. In these 'exceptional circumstances', in that case, he recommends that such appellants should be represented and that the costs of representation should be met from public funds by extending the provisions of the legal aid scheme. It should be noted that the representation that Sir Leggatt have in mind is not lay representation.

There is no place for lay experts in Leggatt’s reform of tribunals. However, it could be argued that representation by welfare rights workers, information and advice workers and other experts may be as effective as representation by lawyers. Alder criticize the way the report seeks to distance itself from the role of lay representation in the new Tribunal Services. Discouraging lay representation on the ground that most appellants are quite capable of conducting their own cases would undoubtedly reduce the success rate of appeals and disadvantage many appellants.

CS/1753/2000: This case deals with the rights of claimants vis a vis their choice of representatives, and states that the effect of regulation 49 of the Social Security and Child Support (Decisions and Appeals Regulations) 1999 (the DMA Regs) is that (subject to proper behaviour and the proper conduct of proceedings) a claimant has an unfettered right to be assisted or represented by any other person and that assistance or representation can change during the course of the proceedings (from friend to representative). It was therefore an error of law for the tribunal to insist that the claimant state at the outset of the appeal hearing in what role the person with her was appearing (i.e. as friend or representative).

http://www.jsboard.co.uk/tribunals/vol8_issue2/mf_10.htmMichael Adler, Professor of Socio-Legal Studies at Edinburgh University published an article on lay representation in the Tribunals Journal (Vol 8, Issue2)

Are Tribunals Bound to Adjourn Where a Representative Fails to Appear

Regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (8) gives claimants the right to appoint a representative. It further provides the representative with the rights and powers of the claimant for the purpose of proceeding at the hearing. Although this may be the case, the onus is on the appellant to arrange representation if he/she wishes as there is no obligation for representation according to Regulation 49. CS/1753/2000 (23/01) states that it is an error of law to seek to restrict someone assisting the claimant to a particular role - friend, representative from the outset.

In R v Social Security Commissioner ex parte Bibi,(2000) (unreported) the Court held that there is no absolute right to representation. Therefore if a person is not accompanied by a representative, a tribunal is not bound to adjourn, even if the client has a representative who is unable to attend on the day. This seems to contradict the rule of natural justice and basically taking away the claimant’s choice to be represented. Therefore, clients who have chosen to be represented should be given the chance without taking away that choice. CDLA/3680/1997* (59/98) states that the refusal to postpone a hearing is a breach of natural justice if the documents concerning this refusal are not before the tribunal.

I was even more surprised to learn that, even under Article 6 of the ECHR Commissioner Williams said:

‘The claimant has no right to representation under British law in a social security case and the European Convention on Human Rights does not give him that right.’

So basically, Regulation 49 of the Social Security (Decision and Appeal) Regulations 1999 does not compel a tribunal to adjourn to enable an appellant to obtain a representative just because he/she would like to have one.

The tribunal needs to understand that Claimants who attend these hearing are already having to deal with hardship in life. I think when situations arise where claimants are being let down on the day by their representatives, they should be given the chance and the choice to have the case adjourned especially if it is the first time such request for adjournment is been made.

However, this can be argued with reference to the case of CJSA/5101/2001 whereby the Court held that although there may not be an absolute right to representation there was an absolute right to be dealt with fairly. Therefore not only must a desire to be represented be taken into account in considering whether a hearing is to be adjourned, but also a desire to be represented by a particular person.

In CIB /2058/04, the representative was unable to attend the tribunal hearing because her daughter had been taken ill. The claimant attended and requested an adjournment but this was refused on the basis that 'all necessary evidence could be obtained from the appellant'. Although this may be the case, “The experience of representatives is that unrepresented appellants are disadvantaged at tribunal hearing because there is an imbalance of power between the parties, because the appellants do not understand the law, therefore are unable to present their cases coherently and are unaware of the need to furnish the tribunal with evidence of the facts that they are asserting.”

In (CIB/2058/2004) The Commissioner held that, in failing to adjourn the case, the tribunal had failed to take account of the full range of functions of a representative, and the claimant's consent to proceed with the hearing was not properly informed.

One of the major arguments against representation is that representation not only often adds unnecessarily to cost, formality and delay, but also works against the objective of making tribunals directly and easily accessible to the full range of potential users'

Secondly, another issue raised by those who do not favour representation is that, representation often leads to unnecessary delays.

It should be noted that community legal funding is not available for representation before social security tribunals. Although there are now many local welfare rights centres and Citizens’ Advice Bureau who are willing to assist claimants, however, the national coverage and their resources are stretched. This again restricts appellants to find an appropriate representative.

Be that as it may be, in the case of CIB/1009/2004 it states that there is no absolute right of adjournment if a claimant's representative is ill. Decisions on adjournment are a balancing exercise between "the substantial cost of a further hearing and the delay in the determination of another case whose place the adjourned hearing will take".

The above case highlights further calls for the need for appellants to be adequately represented at tribunals. The claimant representative’s was unable to attend the hearing of the appeal, because his wife had been taken ill. The claimant attended the hearing and asked for an adjournment so that she could be represented. The tribunal refused the adjournment. The chairman gave an explanation:

‘The Tribunal discussed the possibility of an adjournment but decided that all necessary evidence could be obtained from the appellant. He said that the panel realised that the claimant might have felt happier to have someone with her but she wanted to proceed and agreed that she felt able to do so. We therefore decide against the adjournment’. I believe it is unfair to refuse adjournment and proceed without the representative.

As with all cases, the real facts of the case can only be highlighted properly if one has an in depth understanding of the law and its requirements (even then it is not always possible to get the best possible outcome). I am therefore of the view that, where possible, a representative should be present. They would ensure that the case is presented at a professional level, ensuring that all relevant facts of the case are presented to the tribunal in relation to the relevant law. They would ensure that the tribunal makes the correct decision. A 1989 report for the Lord chancellor by Hazel and Yvette Genn on "The Effectiveness of Representation at Tribunals" which states that representation both increases the likelihood of success for a claimant's appeal and increases the accuracy of tribunal decision making.

However, it is a trite equitable maxim that justice should not only be done, but it should be seen to be done. It is therefore necessary for all individuals seeking access to the Social Security Tribunal to be able to do so with a view of getting full access to the remedies available at the tribunal.

From various research, individual appearing on seeking to avail themselves of the remedies of the Social Security Tribunal do not have adequate representation. Usually it is not easy for people to prepare their briefs and avail themselves of the remedies due to lack of expertise on such procedural matters. This is largely due to the fact that different people are with different backgrounds. For example, a lay person may not be able to present his or her case with such evidence that is necessary to pursue that case. More so if it involves complex evidence. It is therefore imperative for there to be a structure that guarantees representation. Individual coming before such tribunals should be given adequate information of what they stand to benefit if they equip themselves with a good representative who is vast in the procedure of such tribunal.

It is clear that appellants who do attend, and still more those who are represented, have a higher rate of success. This of course is not surprising as appellants who attend the hearing are able to challenge the decision maker’s summary of the facts or the evidence on which he or she has relied.

Community legal funding is not available for representation before social security tribunals. Although there are now many local welfare rights centres and Citizens’ Advice Bureaux who are willing to assist claimants, however, the national coverage and their resources are stretched. This again restricts appellants to find an appropriate representative; however, if paid representation was available the choice of having representatives in line with Regulation 49 would be more beneficial for the appellants and possibly more widely available. Generally speaking, I think having a representative helps both the appellant and the court. It would make it easier for the court to understand the facts of the case quickly and ensure a fair decision is made promptly. This possibly could also help reduce the number of cases that go to the Commissioners.

The Need for Reform

Tribunals play an important role in our judicial system. The purpose of establishing tribunals was to allow the population access to the justice system thereby making it relatively ‘cheap, informal and accessible for all users.’ However, since the report of tribunals by Sir Oliver Franks in 1957, concerns about tribunals have altered, reflecting different priorities on the part of government and different public agendas and it is to be noted that tribunals are becoming more formal, expensive and procedurally complex.

There are about 70 tribunals in England and Wales all operating under different umbrellas which make the system complex and difficult for the public to understand which tribunal to initiate an action. The fact that there are several tribunal was not the problem if all there decisions were of good quality. Majority of the public including User’s Group, Solicitors and Advice workers who responded to the Consultation Paper said that the current systems of administrative support were not meeting the needs of tribunals users. The purpose of the reform was to bring together all 70 tribunals so that they all sing from the same hymn book. In the search to achieve this, the report recommend that if tribunals were to meet the needs of users, a number of changes need to be put in place to improve the system. Improve quality information, tribunal procedure, case management, member recruitment, decision making and training. The government decided to incorporate the tribunal service which was launched in 2006.(1) The Tribunals Service is a new executive agency of the Department for Constitutional Affairs, designed to provide common administrative support to the main central government tribunals. The launch is the biggest shake-up in the tribunals system for half a century and currently supports 21 tribunals. (ADJUST NEWSLETTER MAY 2006)

The government proposed that the tribunal service will be part of the Department for Constitutional Affairs which will be responsible for assessing the fairness, effectiveness and efficiency of the service provided by tribunals with a positive approach to administering justice for all’.(2) The new system will also ensure that tribunals are independent and able to maintain a consistent decision making

The Tribunals, Courts and Enforcement Act received Royal Assent on 19 July 2007.

Part 1 of the Act creates a new, simplified statutory framework. It brings tribunal judiciary together under a Senior President. It also replaces the Council on Tribunals, the supervisory body for tribunals, with the Administrative Justice and Tribunals Council, which has been given a broader remit.

The Act lays out a two tier appeal system:

The Department for Constitutional Affairs currently has a number of tribunals under its umbrella.

These are:

htty:/www.dti.gov.uk/tribunal-reform.html

htty:/www.tribunalsservice.gov.uk/

The Need for Advice

Advice Service Alliance points out that on the issue of advice and representation, they strongly believe that people contemplating or involved in tribunal cases will need advice and representation if they want to be successful in their claim: Furthermore “As far as benefits appeals are concerned, the issues in many if not most appeals involve considerations of fact, evidence and law. They argue that in particular cases where the appeal concerns issues such as entitlement to disability benefits, the personal capability assessment, habitual residence, overpayments, or notional capital or income. They argue that it would be unrealistic and inappropriate to expect users to argue their case alone at tribunal. The conclusion that there is no need to extend legal aid for representation should be looked at again.

ASA went further to say that majority of cases that before Employment Tribunals, concern relatively straightforward issues of fact, such as cases concerned solely with unpaid wages. Some other cases, they said including some unfair dismissal cases, are also relatively straightforward, such as where the facts are not significantly in dispute, and the only question is whether the employer has acted reasonably and/or followed a fair procedure. However there are many cases which are extremely complex both factually and legally, including in particular cases in which the applicant is claiming discrimination on the grounds of race, sex or disability. They said that they are concerned at the suggestion in the White Paper that funding is available for exceptional cases where an individual cannot represent his or her own case in resolving a matter of great importance.(63) They express their concern at the latest annual report of the Legal Services Commission states that, during 2003-04, only 13 applications for representation at enquires or tribunals were granted.(64). They went to say that they strongly believe that people contemplating or involved in tribunal cases will need advice:

Response of the Advice Service Alliance to the White Paper “Transforming Public Services: Complaints, Redress and Tribunals” November 2004

Tribunals, Courts and Enforcement Bill

‘Tribunals play a central role in defining the rights and responsibilities of individuals and businesses. Most disputes are resolved through tribunal than through court hearings. An independent, effective and accessible tribunal system is a vital element in the range of institutions which enable citizens in the modern state to obtain justice, which is in itself a key component in public confidence. A system which is inefficient was wasteful or organized for the benefit of the authorities is not acceptable: it undermines the compact between people and the institutions which are supposed to serve them.’

In 1957, Sir Oliver Franks examined tribunals and inquiries and laid down the fundamental principle that tribunals perform a judicial role and should be separate from executive government, be independent, effective and accessible to all. In 2000, Sir Andrew Leggatt carried out a review on tribunals, Tribunals for User – One System, One Service,(1) was published in August 2001 highlighted the need for reform. The report found that tribunals were old fashioned and their decisions daunting to users.

Following the Leggatt’s Review of Tribunals, , the government looked at radical changes in the administrative justice and tribunals system and sets out recommendations for reform. Based on these recommendations, the government decided to implement a system which would be ‘independent, accessible, speedy, informal and cost effective to all.’ In March 2003 Lord Irvine announced that a new unified tribunals system would be created. In 2004, DCA issued its White Paper on “Transforming Public Services: Complaints, Redress and Tribunals” which accepted the Leggatt Report’s central recommendations about a unified system.

In 2007, Tribunals, Courts and Enforcement Act came into force, it promises to deliver a number of key reforms to the courts and tribunals systems. The Act was created to promote a new unified structure and it also created two tribunals, the First-Tribunal and the Upper Tribunal in 2007 with new titles of Judges of the First-tier Tribunal, and Judge of the Upper Tribunal and member of the Upper Tribunal. The First-tier tribunal will deal with majority of cases while the Upper Tribunal will lead on developing the law and administering justice. The Act created a new judicial office, the Senior President of Tribunals to oversee the tribunal judiciary. It also replaces the Council on Tribunals with the Administrative Justice and Tribunal Council to administer the whole administrative justice system. The government is positive that changes can be achieved with continuous commitment.

Tribunals for Users: One System, One Service-Report of the Review of Tribunals By Sir Andrew Leggatt; London:

2.“Transforming Public Services: Complaints, Redress and Tribunals”

www.tribuals.gov.uk/Documents/Transforming%20Tribunals.pdf

What The New Tribunal Service Promises to Deliver:

To introduce an alternative dispute resolution techniques which would resolve tribunal cases at a low cost.

The tribunal system as it stands provides a vital support to the courts, resolving disputes between individuals and or the state. Tribunals are informal in their dealings so that the population can represent themselves with the need to result to legal expert. It is a common knowledge that the law regarding social security has become more complex and complicated that the populations no longer feel the need to act alone. Researches have shown that in order to be successful at tribunal, one need to have some form of legal representation.

Disability Living Allowance is the only hope for people with disability to survive on, therefore it is important that these people are appropriately dealt with when making a decision. There are some concerns on the overall standard of decision making of decision makers. It has been shown that many decision makers often get the decision wrong when it comes to deciding social security matters, either that additional evidence was not available or that the evidence was available but the tribunal was not willing to accept it because they don’t believe that the claimant is credible or the decision maker did not give relevant facts or evidence due weight of the case or the tribunal formed a different view of the same evidence or the medical evidence underestimated the severity of the disability. I would therefore argue that funding which is already available to immigration appeals, mental health review tribunals should be extended to the Social Security Appeal tribunal as studies shows that people with disability will always be at a disadvantage. I would also suggest that the government department which makes decisions on tribunal funding should be removed and replaced with a president who would act as a judicial head with a proper managerial role. It is paramount that judicial members including support staff should be highly qualified so that they can maintain a high standard of customer service, monitor and report on their own performance.

Council on Tribunals Website

The Franks Committee Report 1957

In 1955, a committee was set under the chairmanship of Sir Oliver Franks to consider and make recommendations on the administrative tribunals and inquiries. The committee concluded and a report was published in 1957. that chairmen of tribunals be appointed by the Lord Chancellor. (para48,49,54,58) The Report went on to explain that all tribunal chairmen should have legal qualification (para 55,58) and access to legal representation be restricted only in the most exceptional circumstances. The Report recommend that a supervisory body be set up to continuously review the work of tribunals, (para 48) In 1958, a supervisory body was established called the Council on Tribunals.

Franks Report was an important early effort to get to grips with the complexities of the modern state and to subject decision making to clear principles and rules. Franks recognized that the increased role of government even in 1957 had created the need to

review the procedures that balanced the rights of individuals against the wider public interest. The report recognized also that while administration needed to be efficient in the

sense of being able to secure policy objectives speedily, care had to be taken to show that where an individual’s interest was affected, the case had been carefully considered. If this care was not demonstrated, Franks argued, the administrative process would not command public support and indeed would be unlikely to remain efficient in the long run.

Franks identified values that he thought should mark the workings of tribunals. These values were openness, fairness and impartiality and they have come to play a major role in public thinking about the administrative process as a whole. The specific recommendations of the Franks Report were largely directed towards identifying the conditions that would make tribunals more clearly part of the machinery of justice. The Report went on to explain that the method of adjudication by tribunals is the application of rules, and that they are thereby distinguished from ministers’ decision. ‘They ‘are not ordinary courts but neither are they appendages of Government Departments’( Jackson’s Machinery of justice, Richard Meredith Jackson He further went on that tribunals should be properly be regarded as machinery provided by parliament for adjudication rather than as part of the machinery of administration. ( Jackson’s Machinery of justice, Richard Meredith Jackson) Frank Report paras 37,40

Proportionate Housing Dispute Resolution – Background Research Papers

www.lawcom.gov.uk/docs/differences.pdf

After The Franks Report, there has never been other report until Leggatt in 2001. It can be said that since the review by Frank, there has not been any significant change in the administration of tribunal system. In May 2000, Sir Andrew Leggatt was appointed to undertake a review of the tribunal’s justice system with particular focus on the role of tribunal representation. 'It looks at the administrative justice system as a whole and sets out proposals to improve the whole end to end dispute resolution process'.

The Leggatt Report on the Review of Tribunals, which was published in August 2001, found that the current systems were incoherent and inefficient and made a number of recommendations for improvement. Based on these recommendations, the government decided to implement a system which would be ‘independent, accessible, speedy, informal and cost effective to all.’ In March 2003 Lord Irvine announced that a new unified tribunals system would be created. In 2004, DCA issued its White Paper on “Transforming Public Services: Complaints, Redress and Tribunals” which accepted the Leggatt Report’s central recommendations about a unified system.

www.scotland.gov.uk/Topics/Government/Sewel/TribCourtEnf

In the Report, Sir Leggatt identified 70 tribunals systems in England and Wales with different sets of rules of procedure which makes it difficult and complicated for users. Tribunals handle over One million cases a year and employ around 3,500 people. However, "Only 20 each hear more than 500 cases a year and many are defunct. He commented that "Their quality varies from excellent to inadequate." Furthermore, too often their methods are ‘old-fashioned, under resourced and inefficient’. Sir Leggatt made a number of recommendations aimed at improving the services tribunal users receive.

These include better accessibility to tribunals, clearer procedures, encouraging better decision-making by departments and promoting the use of IT.

The main purpose of the Report was how tribunals can deliver a better service for users. To achieve this, he suggested that all 70 tribunals should be brought under one umbrella so as to strengthen the independence of the judiciary and allow for greater flexibility in the way they are deployed. The report sets out key principles for reform, to render the tribunals independent of the executives, to improve the system so as to give full economies of scale, to provide training for chairmen and members in the interpersonal skills peculiarly required by tribunals..

www.DCA.GOV.pdf

www.lawcom.gov.uk/docs/differences.pdf

In his report – Tribunals for Users –One System, One Service – Sir Leggatt identified a picture of an incoherent and inefficient set of institutions which, despite the efforts of the thousands of people who work in tribunals, provided a service to the public which was well short of what people are entitled to expect and what can be achieved. Sir Leggatt set out a convincing case for reform of tribunals, one with which the Government agrees. However, it goes on that the programme of reform set out in the White Paper goes further than just looking at tribunals. Sir leggatt was of the view that the services provided by tribunals was well short of what the public are entitled to expect.

Sir Leggatt in his report recognises the need to improve the administrative justice system as a whole, in his findings during his review of tribunals, he acknowledge the fact that various research have been carried out which concludes that a growing number of tribunal users cannot represent themselves. He was disappointed at these findings but still suggested that public funding for representation should be discouraged generally. He pointed out that tribunals should play more active role in nature.

Haven’t suggested that representation should be discourages, he agrees that there are some instances whereby due to physical or mental incapacity or because of the complexity of the case which makes it impossible for them to effectively represent themselves, in that case, he recommends that representation be funded through the Community Legal Service. If this recommendation is accepted by the Government, this could allow more disabled people to gain access to justice. This finding clearly has important implications for disabled users of the tribunals system.

In the report, it is obvious that Leggatt has not taken those who do not have any language or mental impairment yet are not able to represent themselves into consideration. They may be articulate and capable but may be unfamiliar with the law and procedures therefore, lack the capacity to effectively represent themselves. Regardless of the ability and background of the appellant they will always be at a disadvantage. I would argue that funding for representation should be available at all levels in order to ensure a citizens rights and access to justice are achieved.

Simplifying the tribunal process and eliminating representation will provide a fair system according to the Leggatt report. The argument in favour of such a move is strong. But this can only be achievable if a fair and equitable system is put in place. For example if there is full knowledge of the rules, the law and the process, on both sides. The law needs to be balanced and fully understood by those who use tribunals. Simplicity does not make the law less complex, because the appellant still needs to know what information to and evidence to gather, how to gather their evidence, and how to present it effectively. This point is well made by Hazel Genn and Yvette Genn in their research report: ‘The effectiveness of representation at tribunals’ (1989):

In its simplest terms, ‘informality’ may mean that hearings are conducted across a table, and procedural flexibility may allow an applicant to choose whether he puts his case first and whether he may introduce hearsay. Neither of these welcome characteristics, however, negates the necessity of the applicant bringing his case within the regulations or the statute, and proving his factual situation with evidence; nor does the concept of informality relieve tribunals from the obligation to make reasoned and consistent decisions. (page 112)

Leggatt argued that if consistent decision making, effective procedures and proper training are provided, then vast majority of appellants should be able to overcome any problem regarding representation. He acknowledges that people with mental/physical disabilities, language problems will require help. It should be noted that these procedures are already in place in Social Security tribunals yet they fails to achieve their purpose in vast majority of cases. The quarterly Appeal Tribunal Statistics for March 2001 showed where both the appellant and the representative attended 66.6% of the appeals were successful.  This figure has generally remained consistent over the years.  The Quality v Cost report conducted to look into the Civil Advice and Assistance Contracting Pilot (funded by the Legal Services Commission) stated ‘Outcomes were shown to be high where there had been representation In terms of positive financial outcomes representation was particularly important in welfare benefit  cases.’ As a result Legal Services Commission funding of representation is needed to ensure a citizens rights and access to justice are achieved.

Disability Living Allowance

The disability living allowance and Attendance Allowance is a valuable benefit for disabled people and those over the age of 65. It is quite complex and difficult to administer. Therefore it is very important for the Social Security and Appeals Tribunals Service to be efficient and for those who intend to benefit under the scheme to be given all adequate support so that they will not be deprived. The Social Security and Appeals Tribunal was established to promote this aim and to correct any injustice or administrative incompetence that may be meted to those who genuinely require their services. There have been concerns that a high error rate of decision making was linked to the complexity of benefit. It has been reported that Around a fifth of benefit decisions contain errors of some kind.13 The National Audit Office reports that: In relation to Disability Living Allowance

45% of decisions contained errors

The level of error is broadly similar for both initial decisions and those that are being looked at again

Applicants have problems with the forms

Medical evidence is very important, but

There are concerns about the quality of medical reports

Clearance time targets affect the time taken at the initial decision stage

13 National Audit Office, op cit, p.2

Barriers encountered by most tribunal users are that a lot of them do not understand the process of the law, nor do they have proper information about their right to appeal against a decision from the department. As a result, a lot of them feel reluctant and discouraged to proceed with their appeal. The Appeals Service has several sub-divisions and deals with appeals from a number of different agencies, hence the inconsistent information.

Research indicates that most appellants do not really understand the appeals process or what the powers of tribunals are (Berthoud and Bryson 1997, Farelly 1989, Genn and Genn 1989, Sainsbury 1992, Sainsbury et al. 1995, Wikeley et al. 2001, Young 1999). Berthoud and Bryson (1997, p. 23) argue that this lack of understanding is related to social security claimants’ low level of understanding of the benefits system. They found (p. 24) that people appeal because they think the original decision is unjust, without necessarily understanding the legal basis for the decision or appreciating what the chances of a successful appeal are. Genn and Genn (1989, p. 220) also came to the conclusion that people who appeal feel strongly about their case even if they don’t understand the legal basis for it. Farelly (1989, p. 405), in his study of people who did not attend their tribunal hearing, found that 98 per cent of people had not understood the initial decision.

Berthoud and Bryson (1997, p. 25) found that most of those who did attend their hearing understood the initial decision but that some remained ‘totally confused’, and, of those who understood the initial decision, few really understood how the law applied to their case or that the tribunal would be required to apply the law. They suggest that those who do not appeal may be those with least understanding. Sainsbury et al. (1995, p. 205) asked people, whose internal reviews for Disability Living Allowance and Attendance Allowance had been unsuccessful, why they did not intend to appeal to a tribunal. They found that, although responses were not clear cut, people appeared to satisfy that the reviewed decision was correct. In the course of their study of representation at four tribunals, Genn and Genn (1989) interviewed social security claimants who had received an adverse decision but had decided not to appeal. They found (op. cit., p. 130) that, although these claimants may have been aware of their right of appeal, they did not exercise it because of a ‘lack of knowledge [about the procedures and any grounds for appeal] and sense of helplessness [in the face of authority]’. They conclude (ibid.) that access to good advice at this stage is the key to overcoming this problem.

www.council-on-tribunals.gov.uk/doc/others_adler(2) Tribunal Users’

Experiences, Perceptions and Expectations: A Literature ReviewMichael Adler and Jackie Gulland: University of Edinburgh November 2003

Commissioned by the (former) Lord Chancellor’s Department and published by the Council on Tribunals

Case Extracts from CAB Website

A CAB in Surrey reported that their client's DLA appeal was adjourned so that a medical report could be obtained.  The client had a medical examination and then received a copy of a medical report from the Tribunal Service which turned out to be for another, unconnected, appellant and contained detailed information about the other appellant’s unusual personal circumstances and medical conditions.  The client suffered from long-term mental health problems and had had paranoid and delusional thoughts.  On reading the report she believed it was describing things that had happened to her.  It appears that her own medical report, again containing detailed personal information, was sent to the other appellant.  When The Tribunal Service realised the error, they sent the correct report and promised that client would hear further from a line manager, but three weeks later nothing further had been heard.

A CAB in Worcestershire complained that a blind client lost three months’ benefit due to the maladministration of a benefits tribunal.  Papers of evidence that were submitted with the application were lost by the tribunal administration.

A South London CAB reported the experience of a man who was profoundly deaf from birth and had other disabilities including restricted movement of left wrist from an old injury, and a damaged right knee.  He also had hepatitis B and C, anemia and a stomach ulcer.  His appeal against the decision not to award him disability living allowance was successful, with the lower rate care component awarded for an indefinite period with immediate effect.  However, three weeks later, the client received a letter from the DWP Disability and Carers Service stating that he was due £564.30 benefit arrears - but he had received nothing. When the CAB contacted the DWP Disability and Carers Service on the client's behalf, they said that they had not received a copy of the tribunal decision and were unaware that action was needed.

A West London CAB reported that a single Pakistani woman on income support due to illness needed advice about appealing the recovery of an overpayment of child benefit.  The CAB referred the client to a local solicitor’s firm to seek free legal help, as the client would qualify under legal aid scheme.  She was advised by the firm that they would not represent her at the tribunal.  She felt anxious and unable to attend the tribunal without her solicitor present despite the information given to her about the tribunal process and formalities.  The client told the CAB that she was so anxious about the 'tribunal' and that she was 'afraid of the word itself' that she did not want to attend alone at all.

A CAB in County Durham reported that they had helped their client to request a review of the decision not to award him disability living allowance.  This was also turned down so the case went to appeal.  The bureau did a submission and provided a great deal of additional medical evidence in support of the client’s claim.  When the client attended the hearing, he found that the tribunal had never seen the medical evidence and were frantically reading it when he arrived.  His appeal was late being heard and the client complained that tribunal members were continually watching the clock as though trying to catch up on their next appointment.

Report of the Committee on Administrative Tribunals and Enquiries Cmnd 218 1957 (re ‘the Franks Committee’ (CAB INFO) WEBSITE. ADD.Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users - One System, One Service [2001]. Transforming public services: complaints, redress and tribunals, DCA 2004

www.citizensadvice.org.ukFax 020 7833 4371

In practice, this is extremely demanding. Most people, having found a solution that

In the course of their study of representation at four tribunals, Genn and Genn (1989) interviewed social security claimants who had received an adverse decision but had decided not to appeal. They found(op. cit., p. 130) that, although these claimants may have been aware of their right of appeal, they did not exercise it because of a ‘lack of knowledge [about the procedures and any grounds for appeal] and sense of

helplessness [in the face of authority]’. They conclude (ibid.) that access to good advice at this stage is the key to overcoming this problem.

The effects of this are confirmed by Wikeley et al. (2001, pp. 93-94), who found a low level of awareness of the right to appeal against a decision of the Child Support Agency, even among those who had lodged a complaint about their assessment. Those who do not get this information from the agency in question access a variety of sources, in particular Citizens Advice Bureaux and other information and advice agencies (Baldwin et al. 1992, Berthoud and Bryson 1997, Genn and Genn 1989, and Sainsbury 1992). Knowing that there is a right of appeal is not the same as understanding how the appeal will be dealt with or what the outcomes of an appeal could be. Research indicates that most appellants do not really understand the appeals process or what the powers of tribunals are (Berthoud and Bryson 1997, Farelly 1989, Genn and Genn 1989, Sainsbury 1992, Sainsbury et al. 1995, Wikeley et al. 2001, Young 1999).

Berthoud and Bryson (1997, p. 23) argue that this lack of understanding is related to social security claimants’ low level of understanding of the benefits system. They found (p. 24) that people appealbecause they think the original decision is unjust, without necessarily understanding the legal basis for the decision or appreciating what the chances of a successful appeal are. Genn and Genn (1989, p. 220) also came to the conclusion that people who appeal feel strongly about their case even if they don’t understand the legal basis for it.

Farelly (1989, p. 405), in his study of people who did not attend their tribunal hearing, found that 98 per cent of people had not understood the initial decision. Berthoud and Bryson (1997, p. 25) found that most of those who did attend their hearing understood the initial decision but that some remained ‘totally confused’, and, of those who understood the initial decision, few really understood how the law applied to their case or that the tribunal would be required to apply the law. They suggest that those who do not appeal may be those with least understanding. Sainsbury et al. (1995, p. 205) asked people, whose internal reviews for Disability Living Allowance and Attendance Allowance had been unsuccessful, why they did not intend to appeal to a tribunal.

They found that, although responses were not clear cut, people appeared to be generally dissatisfied with the process up to that point rather than satisfied that the reviewed decision was correct. In the course of their study of representation at four tribunals, Genn and Genn (1989) interviewed social security claimants who had received an adverse decision but had decided not to appeal. They found (op. cit., p. 130) that, although these claimants may have been aware of their right of appeal, they did not exercise it because of a ‘lack of knowledge [about the procedures and any grounds for appeal] and sense of helplessness [in the face of authority]’. They conclude (ibid.) that access to good advice at this stage is the key to overcoming this problem.

www.council-on-tribunals.gov.uk/docs/other_adler(2).pdf

The president of Appeal tribunals looked at changes to the Tribunal Services. He concluded that there is little evidence of significant change in standards of administrative decision-making, as gauged by the cases coming before tribunals. A decision to promote best practice was taken for customers to provide evidence to support their claim. The purpose was to look at the case again so that only cases involving complex legal issues should proceed to the tribunal. Therefore a new decision-making process was designed with intention of providing simple mechanisms for quickly and easily changing decisions so that customers could use the offer of reconsideration to have the decision explained to them. The purpose is to reduce the number of cases that goes to appeal. The report stated that before the reform, the Independent Tribunals Service was receiving 217,000 appeals a year. In 2007-08, the number was 229,120. He argued that there has been no significant improvement in the quality of administrative decisions coming before Appeal Tribunals that the proportion of cases overturned by the tribunal is no less now that when the modernizing reforms were introduced. He said this was due to the steady decline of presenting officers who he argued should have attended hearings to give proper feed back of what they have observed to the decision-maker He went further to say that a mere written statement presented to the decision-maker is not sufficient because it does nothing to improve the decision-maker’s understanding. Report by the President of Appeal tribunals on the standards of decision-making by the Secretary of State. 2007-2008

SEE WWW.APPEALS-SERVICE.GOV.UK/DOCUMENTS/SSCSA_PresRep07-08FINAL.pdf

Quarterly Appeals Tribunal Statistics: March 2001 – http://www.dss.uk/asd/app-latest.pdf Adult Literacy Survey in Britain, October 1997.

Introduction

I had the opportunity to attend a tribunal on the 18th of April 2007 and was allocated to a hearing that was appealed by the appellant regarding his Disability Living Allowance. Having sat in the tribunal following is a brief description of my observations and understanding.

The tribunal itself consisted of three members, a Chairperson (legally qualified, normally a practicing or retired solicitor), a doctor and the third member is someone who has knowledge of disability issues. In addition, there was a Representative, an Interpreter and the Appellant and his wife. Generally, there should have been a Presenting Officer from the Social Security who would put their case and explain the reason for their refusal decision. In this case there was no Presenting Officer. There was also a clerk whose responsibility was to ensure the smooth running of the hearing. The three tribunal members sat together on one side of a table and the rest sat opposite them with the representative. These tribunals are public hearings and therefore, members of the public can also attend, hence, me.

The Chairperson is the most important person of the tribunal and it is his decision in the way he intends to conduct the hearing. The Chairperson started the hearing by introducing everyone in the room and by giving a brief outline of the case.

Outline of Case

1. The claimant, Mr Jonat, approximately 65 years of age, applied for DLA on the 11th February 2002. At the time of his application Mr Jonat confirmed pain in his right hand and needing assistance throughout the day for washing, bathing, getting dressed, having meals and other general household chores. Mr Jonat is a diabetic. He was awarded the Lower Rate Care Component of the Disability Living Allowance from the date of application. There was no award for mobility.

2. Mr Jonat believes that his health has deteriorated since his initial application and has therefore applied for supersession in order to obtain a Middle Rate of the Care Component. However, this application was refused and the decision of the Benefit Agency was not to supersede the current entitlement. Mr Jonat is therefore appealing against that refusal. A written submission to the tribunal on behalf of the claimant relied upon change of circumstances to Mr Jonat’s health, which they argue should qualify him to the middle rate of the care component. No application was put forward for consideration of the mobility award.

3. Mr Jonat explained that he is now on insulin for his diabetes, which needs to be

administered twice a day. He also explained that the pain in his right hand has now

worsened and he needs even more attention from his wife with day-to-day activities.

4. Mr Jonat further explained that the pain in his right hand is so bad that he needs help from his wife to clean himself when he goes to the toilet. This care need was not mentioned in his application, nor did he mention this to his representative, as he felt embarrassed. Mr Jonat explained that due to the pain and being diabetic, he feels dizzy and is unable to keep balance when he walks.

Mr Jonat was required to satisfy the tribunal that he met the requirement of the Social Security Contribution and Benefits Act 1992, Section 72(1)(b) in order for him to qualify for the middle rate of the DLA care component, the provision is as follows:

The tribunal asked a lot of questions concerning exactly what Mr Jonat’s care needs were. This was done by asking him to talk through with them a typical day during the time of his application. Mr Jonat expressed his care needs through the interpreter. Being bilingual, I understood the language being translated. I was to some extent surprised with the quality of the interpretation and would argue that the interpreter’s competence could make a huge impact on the appellant’s case. My concern in this case was that appellants who do not speak English or speak a little are even further disadvantaged in presenting their case and tribunals should take into consideration that some important information might be lost through the interpretation between the two languages. It is important for the tribunal to ensure that correct information is passed between the appellant and the tribunal panel. This could be achieved by repeating questions when unrelated answers

are given through the interpreter. This was the situation in this case.

The tribunal argued that the evidence from his GP was inconsistent with the care that Mr Jonat states that he needs. The representative responded that the GP stated that Mr Jonat “should” be able to do certain things, and argued that the GP’s comment were more of a general statement rather than in direct relation to Mr Jonat’s capability. The representative further expressed that by law there is no requirement that the claimants own evidence must be corroborated for it to be accepted and therefore his care needs can be directly established today from Mr Jonat’s own evidence, in addition to the medical proof.

The representative then requested the tribunal to also look into Mr Jonat’s care needs at night (the Disability Member defined ‘night’ as starting from the time the last person in the household goes to bed until the first person in the household gets up). I was unsure why this was necessary as the tribunal was only asked to look at the middle rate of the care component and therefore the care need at night is not necessarily relevant. However, this was discussed and I would argue that Mr Jonat definitely had some grounds to argue for the higher rate of the care component.

Merits and Outcome

Mr Jonat’s appeal was successful and he was awarded the Middle Rate Care Component of the DLA which was based on the provision set out by the Social Security Contribution and Benefits Act 1992, Section 72(1)(b. I think the decision was correct based on the facts and the relevant law. I also agree that the hearing was in line with Regulation 49 for the following reasons:

Mr Jonat diffidently demonstrated enough care needs during the night for the tribunal to consider the higher rate. My reason for this was that Mr Jonat explained that due to his diabetes he is often unable to control his bladder and therefore needs repeated attention at night to use the toilet and on occasions help to clean and change him as he wets his clothing and bed.

To satisfy the night care, hence, the higher care component Mr Jonat would have to satisfy the condition set out under Social Security Contribution and Benefits Act 1992, Section 72(1)(c):

He is so severely disabled physically or mentally that, at night -

(i) he requires from another person prolonged or repeated attention in connection with his bodily functions.

Although the Chair does not have an obligation to pick up something which the representative misses out, I think some directions should have been highlighted to the representative to encourage an argument. Alternatively, the tribunal could have used their discretion and possibly looked at ways of awarding the higher rate of the care component. This initiative possibly differs between Chairpersons (or shall I say good and bad Chairpersons).

In conclusion I think due to the competent of the representative and lack of discretion that could have been applied by the tribunal, the case is a fine example of appellants losing out on their full entitlement.

Regulation 49 of the Social Security (Decision and Appeal) Regulations 1999.

From my experience of the hearing, I believe it would have been impossible for the Appellant to represent himself effectively without the representative being there. As with all cases, the real facts of the case can only be highlighted properly if you have an in depth understanding of the law and its requirements (even then it is not always possible to get the best possible outcome). I am therefore of the view that, where possible, a representative should be present. This would ensure that the case is presented at a professional level, ensuring that all relevant facts of the case are presented to the tribunal in relation to the relevant law. This would ensure that the tribunal makes the correct decision.

Regulation 49 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (8) gives claimants the right to appoint a representative. It further provides the representative with the rights and powers of the claimant for the purpose of proceeding at the hearing. Although this may be the case, the onus is on the client to arrange representation if he/she wishes as there is no obligation for representation according to Regulation 49.

In R v Social Security Commissioner ex parte Bibi, the Court held that there is no absolute right to representation. Therefore if a person is not accompanied by a representative, a tribunal is not bound to adjourn, even if the client has a representative who is unable to attend on the day. This seems to be somewhat unfair and contradicts Regulation 49, basically taking away the client’s choice to be represented. I think there should be funding for at all level of representation.

The tribunal needs to understand that Claimants who attend these hearing are already having to deal with hardship in life. I think when situations arise where clients are being let down on the day by their representation they should be given the chance and the choice to have the case adjourned.

I was even more surprised to learn that, even under Article 6 of the ECHR Commissioner Williams said:

‘The claimant has no right to representation under British law in a social security case and the European Convention on Human Rights does not give him that right.’

However, this can be argued with reference to the case of CJSA/5101/2001 whereby the Court held that although there may not be an absolute right to representation there was an absolute right to be dealt with fairly. Therefore not only must a desire to be represented be taken into account in considering whether a hearing is to be adjourned, but also a desire to be represented by a particular person.

Statistic (58.7% of hearings where the appellant was accompanied were successful, Welfare Rights Bulletin 184 February 2005) shows that representation makes a difference to the outcome of a case. This is not surprising to me, I think representation is very important for the Appellant and Chairpersons should use their power to adjourn in difficult situations to allow fair hearing in the interest of the Appellant. In such situations, I think the Chair should take into consideration all the circumstances of the appellant, for example, does the client have any understanding of the hearing, or is he/she able to represent themselves to enable the tribunal to conclude to a fair decision. The Chair's control of proceedings is to ensure good order and efficiency in the use of tribunal time, and this can be achieved by allowing representatives to operate effectively as we know the outcome can also depend good representation.

According to Regulation 49, the tribunals are expected to proceed even if the appellant is unable to attend on the day of the hearing. I think tribunals should be a lot more lenient towards appellants in such circumstances and should take into consideration all the possible difficulties that have prevented the appellant appearing at the hearing. Where possible cases should be adjourned for an oral hearing to take place at a later date. Many appellants who attend these tribunals suffer from some form of difficulty and it may be for that reason the Appellant is unable to attend. On the other hand I understand that tribunals cannot allow adjournments due to time restraints, however, unforeseen circumstances must be taken into consideration to allow appellants to give their evidence before a decision is made.

In CIB 2058/04, the representative was unable to attend the tribunal hearing because his wife had been taken ill. The claimant attended and requested an adjournment but this was refused on the basis that 'all necessary evidence could be obtained from the appellant'. Although this may be the case, that the appellant had all the evidence, I think the reason for the representative not being able to attend the hearing should have been taken into consideration and the hearing should have been adjourned to give the appellant the choice of been represented in line with Regulation 49.

The Commissioner held that, in failing to adjourn in this case (CIB/2058/2004), the tribunal had failed to take account of the full range of functions of a representative, and the claimant's consent to proceed with the hearing was not properly informed.

It is clear that appellants who do attend, and still more those who are represented, have a higher rate of success. This of course is not surprising as appellants who attend the hearing are able to challenge the decision maker’s summary of the facts or the evidence on which he or she has relied.

Community legal funding is not available for representation before social security tribunals. Although there are now many local welfare rights centres and Citizens’ Advice Bureaux who are willing to assist claimants, however, the national coverage and their resources are stretched. This again restricts appellants to find an appropriate representative, however, if paid representation was available the choice of having representatives in line with Regulation 49 would be more beneficial for the appellants and possibly more widely available. Generally speaking, I think having a representative helps both the appellant and the court. It would make it easier for the court to understand the facts of the case quickly and ensure a fair decision is made promptly. This possibly could also help reduce the number of cases that go to the Commissioners.

Regulation 49 gives Appellants the right to have an Interpreter during the tribunal. This is very important for Appellants who are unable to speak or understand English. However, my concern is that, most of the time the tribunal members are unable to understand what is been interpreted. I therefore believe that a system needs to be in place to ensure that the level and quality of interpretation is adequate. In CDLA 2748/02 the Commissioner held that:

“interpretive assistance provided should be such as to enable the defendant to understand the case against him and to defend himself, notably by being able to put before the court his version of events”.

Regulation 49 also states that the Chair of the tribunal is the most important person in making a decision. This of course may be a disadvantage to the appellant depending on the type of hearing. However in DLA hearings the decision is made from a majority vote which helps to obtain a more balanced and fair outcome and does not just rely on the Chair’s opinion and experience. In other types of hearing, such as PCA, the casting vote goes to the Chair and therefore a bigger possibility of an incorrect decision.

At the end of the hearing the Chair should ask if you have anything else you want to say. If he doesn’t but there are things you consider need mentioning then you should politely ask to make a few final points, however, one should remember never to ask a question to something he or she doesn’t know the answer to and should only ask the relevant questions.

Finally, I would like to conclude by stating that it remains doubtful how far an arbitrary approach on the part of the Tribunal can adequately compensate for the lack of competent interpreter. Furthermore, empirical research has also shown that individual Chair may also have a significant influence on the success rate. Surely this cannot be justice to a suffering appellant in any circumstances.

Conclusion: Under the new reforms, the government objective is to ensure that tribunals are manifestly independent, preserve the capacity to deliver greater and consistent practice and procedure, make a better usage of the resources in existence and preserve a principle approach in evolving, advancing and improving dispute resolutions. Majority of the population welcome the reform by the government. I agree with the creation of a single tribunal system in which tribunals are separate from their sponsoring department. This will enable tribunals to run an efficient service for all. Once the new proposals are utterly implemented there is likely to be drastic change. As for the first tier and Upper tribunals, the Access to Justice Act Funding Code should be amended so that representation can be included within the scope of Legal Services Commission contracts.

The Franks Committee, reporting in 1957, suggested that two of the advantages of tribunals over courts were their greater accessibility and freedom from technicality (para38). Unfortunately, this ethos may no longer be sustainable in many areas of social welfare law, which have now evolved to become extremely complex and specialised. For example, Social Security Commissioners cases often deal with sophisticated issues of European Community (EC) Law and difficult points of interpretation of social security regulations and statute. ( LEGAL ACTION GROUP)

According to Genn, she said that ‘Unless the activities of representatives are thought to lead tribunals into allowing unmeritorious cases, the conclusion must be that representation increases the accuracy of tribunal decision making. (page 247)

Furthermore, she concluded that the continued adherence to the notion that representation, or should be, unnecessary to the achievement of accurate and fair tribunal decision-making, leads to meritorious cases going by default because appellants are unable to prepare and present their cases properly. It also places a heavy burden of responsibility on tribunals, who are required to reach their decision by eliciting all relevant information about the case… to consider the relevant regulations and case law, and to apply the facts to the law in an impartial and objective manner. (page248)

If as recommended by the Leggatt report that tribunal users are expected to prepare their own cases, then l believe examples of good practice should be set for tribunal users to follow. Where the appellant does not have the ability re represent himself or understand how to proceed with his appeal, then the tribunal staff should be able to provide enough information and advice about what is involved in bringing a case to assist the appellant with appeal. However, can we be absolutely be sure that the tribunal staff can proved a good quality legal advice without legal training. I understand that there are cases where tribunals users can be expected to effectively represent themselves. But sadly this is not the case for every one. The Leggatt report underestimated the extend to which representation is necessary in order to achieve a fair result for users, and access to justice as a result

Bibliography

CPAG (2005) Welfare Benefits Handbook 2005/2006, London: CPAG 7th Edition

www.rightsnet.org.uk

www.osscsc.gov.uk

www.dwp.gov.uk

www.hbinfo.org

www.appeals-service.gov.uk

interpreter

tribunals vary considerably in their interpreting facilities.

In a situation where an appellant was given an interpreter who was not competent to give accurate narrative of the claimant’s interpretation, such act will amount to gross miscarriage of justice and will also contravene the rules of natural justice. And if the tribunal refuses to correct such defective interpretation, such action will give rise to a good ground for appeal by the claimant.

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