'interesting' paper published to the Administrative Justice and Tribunals Council website ....

'Professor Michael Adler provides an illuminating view into the motivation behind, and findings of, his recent research into the impact of advice and representation on success rates in tribunals'

As of March 2006, the statistics according to DWP figures are:

All attendances 44,480, in favour of claimant 19,190 (43.1%)
Appellant only 10,875, in favour of claimant 5,920 (54.4%)
Representative only 920, in favour of claimant 480 (52.2%)
Both attended 10,330, in favour of claimant 6,875 (66.6%)

These are in stark contrast to the honourable Professor's findings.

We have just received (through an FOI request) the TAS results for April - December 2008. They appear, at first glance, to contradict the Professors findings.

I've just found the full report that the article is based on. Its at the ESRC website. I'll see if his methods appear to be better than the article suggests.

David

cheers david ...

here's some links to the stuff that david's found on the ESRC site

Tribunal Users', experiences, perceptions and expectations: A literature review.

Michael Adler and Jackie Gulland - University of Edinburgh November 2003

"Commissioned by the (former) Lord Chancellors Department" and published by the Council on Tribunals".

Highlights some shortcomings in his full report on the ESRC site.

Would attach a copy, but too techno-ignorant and lacking access to advice on how to attach.

here you go ....

http://www.council-on-tribunals.gov.uk/publications/577.htm

confining my comments to social security tribunals, i think it is very difficult to make comparisons with 20 years ago and arrive at the correct explanation, or even a correct assessment of where we are now...things never stand still, even for a minute...

although this study appears to be about representation, one big change is the DWP's abandonment of the practice of sending presenting officers. does this make a difference?

another issue is the deteriorating quality of SoS submissions...oh well...

I get the impression that there may be less representation being done now than a few years ago, but more help with preparation. My own CAB rarely does Tribunal representation these days (and ahs never had CLS funding); but we regualrly help clients who are appealing by helping them to understand what the case is about, giving them a sub to send in and helping them to get eg medical evidence. Someone from the Bureau might also go, but as moral support not a rep.
It also possibly depends on the sort of appeal. Tribunals in cases that depend on issues of fact (DLA etc) are more interested in getting details from the appellant, but in cases raising complex legal issues I could see that reps with a good grasp of the issues would be useful, like R2R.
The earlier Adler paper cited is very old - written in 2003 but most of the research quoted in it is significantly older than that, going back in some cases to before 1990.
The new paper is actually expressing his surprise at an apparent discovery that it doesn't seem to matter as much as it did in the research at that date. Maybe it's got more to do with Tribunal procedures, and the gradual replacement of all those old retired clerks to the Justices who used to chair them!

Firstly, there may well be less representation today than there use to be, but this is primarily because budgets are being cut back and Welfare Rights are not flavour of the month - witness what has happened in Harlow, which has nothing to do with whether representation is still so necessary or not.

Secondly, Representation on the day is still very important to a large minority who for one reason or another cannot adequately speak up for themselves. In particular, whilst Income support may be just a issue of facts, DLA in all it's complexity is certainly not and in many instances arguments are based on Case law.
DLA is a matter of interpretation of badly written legislation by decision makers who are not medically qualified, and who increasingly appear to lack even the basic understanding of most disabling medical conditions: and who have little or no knowledge of important Commissioners decisions (particularly Reported ones) - Mallinson? Cassinelli? who are they?

".....Someone from the Bureau might also go, but as moral support not a rep...".

At tribunals , case law is often all important, and it is grossly unfair to advise a client leading up to a hearing, only to then expect him to be able to argue complex case law issues on his own, even if there is someone there to offer moral support - what would that actually consist of ......

Its true the 2003 Adler report is over 5 years old and uses sources some of which are 20 years old, and yeah tribunals have changed over the last 20 years.

Nonetheless, if we look at some of the sub headings - "Practical barriers that prevent potential users from accessing tribunals" and "The complexity of appeal process and the absence of appropriate help". Then actually read the sections those sub headings cover.

Have things really changed that much for claimants faced with challenging decisions (i would argue no they have not one iota), the themes that report throws up, i still see everyday. Furthermore, the benefits system has not got any less complicated.

My worries about Adler's recent report, is that it fuels the ideology, that public money should not be spent on sections of the community trying to exercise their right as citizens to social justice, if it means challenging areas such as welfare benefits, housing and employment advice.

This is not mean as a slight against any of the contributors to this posting whatsoever, its just me musing aloud, but i think the current practice that alot of advice agencies across the land are adopting of not representing, is actually counterproductive for those agencies concerned.

Not least for the advice workers themselves, how can we can as advisors prepare and advise clients on a process we ourselves have never experienced, let alone develop our skills as advocates, learn to think on our feet under pressure and be able to assert our clients rights,or gain the skills to challenge tribunal decisions.

I've hit this one a bit late.

I remember along time ago seeing statistics that showed claimants who were not represented, but who had received detailed advice and assistance, had success rates only slighly lower than those who were represented.

That report gave rise to my personal approach which is only to represent those who are unable to speak up for themselves, or whose cases are too complex for them to deal with alone.

I hardly ever rep at DLA appeals and rarely quote case-law. I aim to 'teach' client's about the disability conditions and which bits of thier lives and difficulties are relevant to the necessary questions. For me, it is then up to the tribunal to do thier job (which I don't see as being too disimiliar from mine) and, for the most part, I trust them to do it right. I always recommend the client take a carer, friend, relative, health worker, etc becuase whatever they have to say is probably far more valuable than anything I have to say.

Another reason for not repping, is that there are so many people that need our help, I don't feel able to justify repping where its not absolutely necessary because of the time involved - time that could be spent helping others. I turned down a job offer once on the basis that the unit had a policy of repping in every case, and I couldn't do that in the knowledge that other people wouldn't get seen.

Of course, harping back to the usual old gripe - if the Government and its departments got things right in the first place then we wouldn't even be having this discussion. In this context, perhaps the money spent on these sorts of research reports (including yesterdays news item that sought to establish why DWP customers are unhappy, by talking to DWP staff (huh?)) is not money well spent...

Tue 21-Apr-09 02:25 PM by Mike Hughes

Anyone here read Bad Science or The Tiger That Isn't?

I think there is a danger that this debate starts from the wrong point by assuming, as we presumably would want to, that the DWP figures cited hold water when in fact they are as fatally flawed as the analysis of Professor Adler!

66.6% of appeals are in favour of the claimant where both rep. and claimant attend as compared to 54.4% when only the appellant attends. Okay, but, at it's most basic level how much of that difference can really be attributed to reps?

Break it down just a little bit and you run into massive problems. For example,

1) a result in favour of the claimant may not actually have been the result they were seeking e.g. an award of LR CC when MR CC was appropriate counts as a win.

2) there is no analysis of comparable success rates for when a PO attends or indeed when other experts attend e.g. a CPN.

3) In what percentage of those cases where the claimant attended alone was
- a written submission sent in a by an adviser who could not, for whatever reason, attend the hearing?
- advice offered to the claimant to seek specific medical evidence that was subsequently submitted to the tribunal and influential in the result, both positively or otherwise.
- the claimant capable of making a verbal or written submission of their own which won the case as opposed to other factors e.g. the case being decided on the papers alone?

There are literally dozens of other issues I could add to the above!!!

We have always accepted the DWP figures as it suits us to do so. However, a cursory examination such as above suggests they are as fatally flawed as the Adler research.

Sadly there are certain "truths" which we hold to be true (the rep. can swing the case; a written submission always help, the rep. earns their money in the hearing) which don't really have anything to back them up.

My gut instinct over 23 years is that reps. can mess up a hearing just as well as a claimant and that most of the few cases where I deem it appropriate to do a written submission are cases in which the Judge reads said submission for the first time as I am talking them through an abridged version of it. I have nothing but that gut instinct and anecdote to back that up. Is that really good enough in this debate? I think not. Does anyone here have anything better at this point? Again, I think not.

What is really needed here is a debate that starts from the assumption that this is a topic about which none of us really know enough and into which we perhaps need to encourage the commission of some real quality, detailed research! We may or may not like the outcome but we may all benefit (pardon the pun) from greater knowledge of the reality.

Ahem, steps quietly down from soapbox, arms self, retires backwards rapidly...

Mike

Is there any evidence that the cases in which reps do not appear fail for a good reason - ie, that the rep knew it was a no-hoper and had a better use for overstretched resources?

Don't know but I guess that further reinforces my argument. If the Adler research fails to take such things into account so does the original stuff we routinely nod our heads to from the DWP.

Having said that, you'd have to balance not appearing because it was an unwinnable case with appearing even when it was unwinnable and not appearing because it could not be legally aided.

All attempts to simplify this discussion will be dismissed

At a recent GMWRAG I suggested Professor Adler, who is apparently very keen to discuss his findings, was invited to talk to a welfare rights meeting. NAWRA was suggested.

I now think I was wrong to suggest this. We really need to be commissioning or encouraging the commissioning of some real in depth research. However, using the principle that one should never ask a question if you don't know or might not like the answer then I suspect this will never happen and this will all go away quietly or until such time Adler gets taken seriously by a government looking to move away from expensive tribunals to useless alternative dispute resolution ideas which inevitably produce the inaccurate decisions we know and love but minus an independent appeal process!!!

Mike

Just another thing to consider……..

As a service we must see an equal number of people who decide not to pursue their appeal any further when their decision and reason for the decision is explained in such a way as they understand it. Without this input from the advice sector many more unrepresented clients would be turning up at appeal hearings with cases that stand no chance of success.

This, along with detailed written submissions, medical evidence that address the points and detailed advice on the points to concentrate on at the hearing all help the “unrepresented” appellant.

All of which leads me to the conclusion that all such research into this area thusfar has been somewhat dumbed down!!!!

One small but important point not raised so far. Unfortunately not all panels are as well trained/informed/unbiased/unjudgmental as others.
I and my colleagues have encountered some atrocious decisions, and usually on these occasions the appellant feels pretty helpless afterwards. We encourage further appeal to upper tier and generally get the decision set aside. This obviously has a knock on effect on the education of tribunal members and helps to ensure uniform treatment for appellants.
As reps we police the appeals service - without us I feel standards would slide.

I find the stuff about us policing tribunals really interesting. We live in times where Nick Warren et al feel it appropriate to start putting stuff out there about ethics for representatives. Just who is policing who in reality when they think they're policing us?

Bit of a diversion from Adler but I can't help but think that this ethics stuff relates more to the end of informal tribunals than it does to any actual empirical evidence of unethical advisers.

Mike

I stopped attending tribunals for a while and found that the success rate went down. What also interested me was the feedback I got from claimants on the behaviour of tribunal panel members. Some of them reported really judgemental and adversorial treatment.

I wondered whether the mere prescence of a rep reminds the panel about the limits of what is acceptable.

(Don't get me wrong - the vast majority of the panel members that I've come across do a very good job and treat the claimants with respect - however there always one or two)

Kate

"Don't get me wrong - the vast majority of the panel members that I've come across do a very good job and treat the claimants with respect - however there always one or two)".

I agree completely.

"I wondered whether the mere prescence of a rep reminds the panel about the limits of what is acceptable".

A chair (a really nice person and good at her job) once said to a client of mine at the hearing "...and you are represented by Mr Neville who is here to keep an eye on us". I don't know whether that helped to relax my client or not but I appreciated the sentiment.

Hi All,

Just to throw this in the mix... I recently attended a welfare benefit course (in relation to LSC contract) where it was confirmed that legal aid welfs can attend tribunal as a McKenzie's 'representative' (apparently LSC view this as different to a McKenzie's 'friend') and be paid for doing so under the contract.

This cannot be done for 'routine' cases but for complex cases only.
Also any travel/mileage costs under £10 can also be added without the need for receipt!!

I see exceptional cases looming