Developing a strategy for access to advice and support on Social Welfare Law in England and Wales
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Trouble at Tribunal

For some time there has been much speculation about how various reforms in administrative justice, tribunal service fees, legal aid and funding cuts, employment rights, welfare benefits and immigration might on impact tribunal/appeals system and its users. Now we are getting more and more data about what is actually happening in the Tribunals service. The short of it is that applications have massively decreased – enabling Government to say that they have successfully reduced demand, but there is a great deal going on behind this on this which needs to be examined in detailed.

Welfare reform and the social security jurisdiction

DWP Ministers have made much of the Jan-March 2014 figures showing that ESA appeals were down by 89% on the same period last year as a demonstration of welfare reform success, but with no evidence to hand of better assessments by ATOS or decision-making in DWP. Overall, the number of benefits appeals is 59% lower this quarter than last quarter and 79% lower than the same quarter last year; the most dramatic drop in appeal numbers since records began to be kept. Before one jumps to conclusions though several factors need to be considered.

Firstly, the decline is set against an historical high from last year as the DWP and Tribunal tried to clear backlogs in anticipation of new statutory time limits coming into effect this year. Secondly, the are backlogs with assessment and decision processes. When pressed by the Work and Pensions Select Committee, the Minister for Disabled People revealed that over 700,000 disabled people are still waiting for their claims for Employment Support Allowance to be processed (ESA). Of the 700,000 people waiting for assessments, almost 400,000 are new claimants who feel they are now too unwell too work, but this needs to be established via the assessment process before they can get the higher level of benefit.

The blockage in the system may partly be accounted for by the Government’s decision to terminate the ATOS contract early – following repeated warnings of poor performance by the DWP and audit authorities - and put a different contract for assessments into place, but there was already a significant build up before this with clients regularly reporting waiting times of six to eight months for an assessment, and if delays are occurring at this early stage, the knock on effect is that fewer cases are reaching the tribunal stage. ATOS will still play a role in the assessment system until the contract formally winds up in 2015. There are also significant delays in rolling out Personal Independent Payments (migration from disability), and finally with the implementation of the Universal Credit programme.

A key question also hovers over the impact of “mandatory reconsideration” a DWP internal review mechanism introduced last year and a process that has to have been gone through pre-Appeal. There’s an issue about whether this acts either to improve decisions or deter challenges. Under the MR process sick and disabled claimants have their assessment rate benefits withdrawn while their claim is reconsidered which can leave many unable to pay vital bills, cover their medical costs or even afford to stay fed without recourse to foodbanks. So whilst claimants can demand a ‘mandatory reconsideration’ so the decision must be revisited, usually by a different decision-maker, the Department for Work and Pensions will not pay even the ‘assessment rate’ of the benefit that has been claimed until a new decision has been reached, and there is no time limit within which the DWP must carry the reconsideration out. Once a decision has been made, and if it is favourable, there is no guarantee that the benefit will be backdated to cover the whole period since the original claim. Then only if the claimant is still unhappy about the decision, they may then take it to appeal bit this is unlikely as, by then, they will have been forced to live without any means of support for an extended period of time and other benefits such as Housing Benefit may have been denied to them because of the DWP’s adverse decision.

Some involved in the process such as outgoing Social Entitlement Chamber judge argue that “mandatory reconsideration” doesn’t actually add anything as an internal review mechanism as it’s always been DWP practice to review appeals before they proceed to tribunal. It’s also difficult to judge its effectiveness as the DWP do not produce disaggregated data on reconsiderations. However figures for reconsideration success were given by Judge Martin in the April edition of the Judicial Information Bulletin, which goes out to all tribunal members according to which by 21st February 2014 the DWP had received 82,798 mandatory reconsideration requests and made a decision in 70% of cases, with decisions taking on average 13 days from the date they were received and for which
• DLA decisions overturned 55.9%
• ESA decisions overturned 23.0%
• JSA decisions overturned 30.1
• PIP decisions overturned 13.9%
• UC decisions overturned 71.1%

It may be based on this data that a well designed internal review mechanism can help in improving decision-making quality, but it does reveal teething problems with the new Universal Credit system.

Employment rights not reaching Tribunal

Significant changes have been made to the architecture of employment rights and redress, such as the extending the qualifying period unfair dismissal, caps on damages, abolition of the discrimination claims questionnaire procedure, and the introduction of ‘early conciliation’ of all potential claims by Acas from April 2014. The most significant change thought has been the introduction of user fees for employment tribunals; fees of up to £250 to begin proceedings at an Employment Tribunal were introduced in July 20113 with further fees as cases progress.

In the first second quarterly figures published since the introduction of fees last year there was a 79% drop (compared with the same period in 2012) in the number of applications made to Employment Tribunals. The number of single claims has dropped by about 63% from a monthly average of between 4,000 - 5,000, down to 1,700. Women were among the biggest losers, with the MoJ statistics showing a sharp fall in claims for sex discrimination, pregnancy related dismissal and equal treatment for part-time workers. The figures from January to March 2014 again show a sharp drop, with claims brought by single claimants (as opposed to multiple claimants) dropping 59% on the previous year. The biggest drop was in the number of claims for an unauthorised deduction of wages, which fell by a massive 85%.

Although delays in processing applications could play and the intervening role of ACAS play part, it is widely accepted that the introduction of mandatory fees for all those bringing claims will have played a significant part in the decline.

Impact of legal aid reforms

Ministry of justice officials have been at pains to stress that though they do not consider that the legal aid changes have had any significant impact on the volume of tribunal claims either in social security or employment. But whilst it may be impossible to establish a direct relationship between volumes of tribunal work and the availability of advice under the Legal Help scheme, there is surely some relationship.

As one of the next stages of the Commission’s work we are looking at the tribunal and administrative justice landscape to test three things
• “Right first time” and pre-tribunal redress and review schemes
• The accessibility of the tribunal system in a post-laspo context
• Other ways in which advice and support could be accessed or embedded within tribunals and administrative justice