Did anybody read the notes on Commissioner Jacob's talk to Social Security Law Practitioners Association on the duties of a representative? He concluded by suggesting that tribunal representatives establish an organisation to ensure that all representatives have attained an appropriate standard.
Does anybody know whether anybody is taking this forward? This seems particularly relevant if you read the White Paper on transforming tribunals and the belief that representatives add costs, formality and delay.

The Council on Tribunals -- http://www.council-on-tribunals.gov.uk/ --are holding a tribunal user's workshop for representatives and the voluntary sector about the White Paper on 19 October in London.

quoting from the invitation letter we received -
"Chapter 10 of the White Paper - "supporting the user" - discusses the ways in which users might be better supported in obtaining appropriate advice and bringing cases to tribunals, including the role played by the voluntary and charitable sectors. These are matters on which tribunal users and the organisations that support users will be likely to have ideas for future development or may wish to raise particular concerns....
The aim of the workshop will be to explore and take views on the issues arising in the White Paper, including the role played by the advice sector in providing support and assistance to users in resolving disputes and bringing cases before tribunals...
The Council also wishes to establish an ongoing dialogue with users of the tribunals in the first phase of unification ... If your organisation would be interested in participating in such dialogue please let me have a named contact."

It looks like it should be a useful meeting

For more info contact
Council on Tribunals, 81 Chancery Lane,. WC2A 1BQ
phone fax 020 7855 5200

An interesting and well overdue debate! However, given the number of different organisations and individuals involved, any move towards establishing "quality standards" will be a lengthy and complex process. It also raises the difficult question of peer review. for example, if you knew or suspected that a colleague was an "inadequate" representative, what would you do about it? Would you "shop" them to their boss and maybe put their employment at risk? What about volunteers, etc etc?

I don't think that peer review in this context necessarily means co-workers supervising each other - it's more about the work of any one representative being supervised by someone who has an equivalent amount of knowledge of tribunal representation but not from your organisation. Peer review does seem rather more preferable than having an independent auditor, who may know nothing more than how to tick a box in relation to set questions, assessing the quality of your work.

Peer review is widely believed to be able to overcome many of the problems that have arisen from, for example, CLS auditing of advice agencies with a Quality Mark, in that a peer reviewer checking the quality of your work understands the complexities of that work and the decision making that is required when progressing a client's case. If the imposition of quality standards could lead to a position whereby representation of clients at tribunals is statutorily funded, I would probably be in favour of such a move.

If anything gives me concern in this white paper, it is about the need for representatives at all. My impression from an intial reading of the white paper is that the need for representation is seen simply as being necessary to provide a crutch for the client to merely attend and understand the procedures of the tribunal itself, rather than being necessary because social security legislation is so complex and arguable as to meaning. This latter problem is addressed to some degree in the section where there is recognition of the need for first-tier decision making needing to be improved (10.5 & 10.6) - however, with DLA cases for example, I must admit to being extremely concerned when I read that (my underlining):

(6.20) ...developing new ways of operating. We believe this to be possible even where this issue is one of entitlement rather than compensation. In many cases appellants succeed before tribunals because they bring new evidence, possibly as a result of advice, or because they are more articulate orally than on paper and the tribunal is the first opportunity they have had to explain their case. In other cases the tribunal accepts evidence which the original decision maker was not prepared to accept. These are the benefits which flow from having a tribunal hearing but it is possible to imagine ways in which the same benefit could be achieved without the stress and formality of a hearing.

It's a bit difficult to comment when I haven't heard the whole talk, but this quote from Commissioner Jacob's is quite troubling.
How can anyone talk about appropriate standards for ALL representatives when the principle (specifically enshined in legislation) is that the appellant can have ANYONE that THEY choose to speak for them.
Secondly I am not aware of this problem of "adding cost, formality and delay". My personal experience from (nearly all) Tribunal chairs are that they are very welcoming to representatives because it relieves them of several responsibilities. They can assume the represented appellant has had procedure explained, will focus on clear dispute issues and relate these to the appropriate regs etc.
Above all it relieves tribunal chair of the responsibility to draw out of (very nervous) appellants what their arguable case is.

I cannot square this with adding cost, formality and delay. Are there so many poor reps out there that tribunal chairs are unhappy as a whole or is my experience more normal?

derek ....

the text of cmmrs jacobs presentation is available to download fron the Social Security Law Practitioners Association's swopshop page @

http://www.rightsnet.org.uk/cgi-bin/publisher/display.cgi?132-0104-17411+swopshop

At the moment there are a number of disparate organisations looking at bits of quality standards, the most obvious one being the LSC who administer the Quality marks. You also have organisations such as Advice UK and a new development is the National Occupational Standards for advice workers www.nos4advice.org.uk . Then there are groups such as NAWRA (see swapshop) who potentialy have the possibility of moving into 'accreditation' of advice workers but probably not for a long time yet.

I'm not convinced of Comm Jacobs arguments. While what he says is largely common sense in terms of how you should behave before a Tribunal and it obviously makes sense to follow his guidelines as much as possible, not least because you might find one of your cases before him. However, I am a little suspicious of restricting 'rights of audience' to 'approved' representatives or anything that comes remotely near. As you say, anyone can be a rep if the client wants them to be. I think even an inexperienced rep can add to the chances of winning esp if it is a relatively simple case. It can't be beyond the wit of the average chairman to deal with this appropriately. If those reps could no longer appear then the shortage of reps is going to get even worse. If it gets to the stage where you can't become an advice worker without getting a degree in advice work and then 2 years of accredited training then we might as well become lawyers!

We too are having a problem over the phrase "adding cost, formality and delay". We can only imagine that they were thinking more in terms of those Reps who work under a CLS contract - but even then, not all contract holders actually represent on the day.

Without reps, many of our clients would be floundering, finding themselves up against BA presenting Officers who understand the regulations. We all know that the stats show that represented clients have a success rate of around 60% (in DLA) compared with a 20% for those who are unrepresented.

On page 48 of the Council on Tribunals paper, there is an interesting statement at the end of para 10.1:

"....but always bearing in mind that we aim to create a situation where individuals in dispute with the State or who might be taking a case to tribunal, or defending one, will be able to have their case resolved with little or no support or assistance."

Para 10.3 is also enlightening reading - discussing "Rights", and other related issues. Why does one get an uneasy feeling after reading the report a couple of times.......

Whilst there needs to be a debate on this issue - there is also an issue as to how tribunals themselves are monitored for the standard and quality of decision making - ensuring consistency and fairness of decision making etc, customers (appellants) are consulted about how they feel about the whole tribunal process - working in the public sector we have to are constantly seeking the views of people who use our service. Can't remember the last time (if ever) one of my clients recieved a customer satisfcation questionnaire from ITS. What procedures are in place to monitor tribunals in terms of performance and quality?

Reading through the Council on Tribunals paper you cannot but notice a subtle reference or two to costs - makes you question for a second the driving force behind such reports.

Even if that is the case, they are approaching this whole subject from the wrong direction. Whilst agreeing that there should be a debate, it would be far more productive if the reasons why the Tribunal system exists at all were debated first, ie dubious decisions. If you get the decisions right in the first instance, the need for such large numbers of Appeals is reduced, and therefore so are costs.

Based upon the number of decisions that are over-turned at Appeals, particularly related to DLA and to a lesser extent AA, it seems clear that there is question mark over the quality of decision making. I have no doubt that the number of represented appeals (and successful ones) would be far greater if there were more reps working in this field, which poses the question of how many claimants lose out on benefits where representation is'nt available.

there's a whole issue about resources.
and inequality of resources.

maybe the council of tribunals could ask itself what function it plays in social justice and social exclusion, which is crucially linked to questions of resources, just as it is crucially linked to human rights; and approach the subject from that direction? i agree they have it wrong. if it doesn't ask questions of itself, it calls itself into question by others. i'd suggest it approaches from a social justice and exclusion priority - the tribunal system is after all, about equality of arms.

it could ask questions like - are we satisfied that people from socially excluded groups, for example the mentally ill, receive fair hearings? this could serve an extremely useful function, and would have the added advantage of also fitting in perfectly with the government's stated policy. : )

the lions share of resources goes to the DWP, and if they get it wrong, the squeeze is on the other tiers and those involved with it, such as tribunal users, to put things right. problem is, the gov't may believe (i just did a freudian, and wrote 'make believe'. i corrected it!) that it has a vested interest in the DWP getting it wrong - they save paying out money. only a percentage appeal, and only a percentage of appellants get help and advice. it might be called risk management. you might think it makes sense, but is it joined up thinking? is it a reasonable conclusion. is it, some might ask, value for money? <cue BFI> can these people do their sums properly? so many questions...

i think value for money is a fair enough, but highly loaded question.

jj

"....the gov't may believe that it has a vested interest in the DWP getting it wrong..."

JJ, you may be right. Many years ago social policy research was conducted and AO's, as they were then, were asked, that in light of the poor training they received, too few staff and pressure from above to process claims quickly, did it bother them that they got so many decisions wrong. A substantial section (and I cannot remeber the figures) said that they were not too bothered because the claimant had a right of appeal and mistakes could be corrected then. Given, as others have said, that very few people appeal, then the savings to the government are, well we can all do the maths.

The same research highlighted the story of an unrepresented appellant, who, upon losing his appeal promptly attempted a citizens arrest of the chair, on the charge of perverting the course of justice. Enough said!

lol!

that's torn it - i've a hearing tomorrow and might need a fall-back position! : )

jj

Now, that I'd love to have seen....

: ) that's what i wanted to say to paul!

but before this thread degenerates normally, and while i'm feeling tetchy, i'd like to throw a few things off my chest, relating to matters arising here...

first of all, i'd need to say how very very annoyed off i am with the written DLA submissions that land on my desk. : ) i know i've said it before... and i imagine the appeals writers utilize a standard draft decision which is, not to put too fine a point on it, CRAP. i imagine this is in national use, and everybody knows what i mean - but i could be wrong, of course. (exchanging information? what else?)

linking in with the earlier points about government vested interests, and risk management, and bringing in the effect of performance targets, it occurs to me that the DWP has discovered a huge wheeze...
probably by accident...i find it difficult to conceive of the DWP having a machiavellian brain...but it has to be said i don't know any mandarins...and i've heard they're rather clever...

we all know that the DWP has clearance rate targets, and the best way to achieve these, especially if the benefit is a legally complex one like IS or DLA, is not to do them properly. skimp on the legal training and botch the decision, as robert tressel might have said if he were a WRA...

since the BA days, the department has been criticized for, to use the jargon, it's poor 'handling of exceptions', and has admitted to an extent, the need to improve it. the problem of 'exceptions' is minor with a universal benefit like child benefit, a lesser problem with NI benefits, but a big problem with means-tested and complex benefits. it's really a problem of the amount of knowledge needed to 'adjudicate' claims properly, (and prevent those underpayments and injustices) as opposed to routine and high volume processes which can readily be carried out by a computer program.

with DLA, cases can be individually complex, and the term 'exception' is a serious misnomer, imo. we know that there is a relatively high appeal rate on DLA decisions, and what should be for the DWP, a concerningly high success rate on DLA appeals. how genuinely concerned is the DWP? It's concerned as ever, not to get its ass kicked, but... is there any evidence that it is concerned to improve first tier decision-making?

The Disability Benefit Centres have been given appeals clearance targets to address concerns about delays. In Birmingham they are definitely working. I'm now getting appeal submissions 11 days after they received the appeal. The problem is, they do not engage with the substance of the appeal at all. They neither address the defects in the original decision ( ritual reconsideration form stamped and added to appeal papers) and they list, then ignore the issues raised in the appeal.
They appear to have realized that they can delegate their function as first tier decision-makers to the tribunals, (in my view exploiting the inquisitorial duties of tribunals) to the second tier decision-making body,which is of course, resourced quite differently, and whose function as a check on first - tier decision-making had a quite different purpose than a responsibility for ensuring acceptable quality standards in decision-making. Providing systems for checking and maintaining standards was always a Sec of State function, including quality checks and procedural reviews and appeal vetting. oh, and training. Moreover, the tribunals have no powers to criticize the DWP... or do they? i also feel that the decisions by the commissioners on tribunal powers on revision/supersession, if i could only understand them properly, have in some way assisted this.
(is anybody lobbying for a repeal or reversion to the old, more satisfactory regs?)

so it occurs to me that if the DWP or the government doesn't care a jot about underpayments of benefit (robbing the poor and/or disabled? tsk), or social injustice, then hardly bothering at all with either DLA claims or appeals and relying on the tribunals to do the job it is paid to do for it, (in hugely filtered down numbers) is a great way to save millions on admin costs, to add to the saved benefit billions, without even breaking out in a sweat. i hope somebody is catching my drift.

i expect that the tribunals could argue for better resourcing on the basis of all the time-consuming first tier determinations they have to give at the appeal stage, and would probably be given a drop, in view of the huge savings made. but does this compromise the independence of the tribunals? is funding the cost of the DWP's 'risk management' adventures a proper use of the Department for Constitional Affairs' budget? will things improve when the Appeals Service is not an executive agency of the DWP or have things gone to far? i don't know.

but if the LSC's increasingly squeezed civil legal aid budget, and the ever squeezed voluntary sector is more and more taken up with social injustices occurring because of the 'success' of public authorities' performance improvements and risk management measures and performance target achievements, could some one explain to me again about joined up thinking and equality in arms?

jj

Having been an adviser on benefits since the mid eighties I can honestly say that no government has truly cared about unemployed people or those who cannot work through ill health.

Of course they will not make resourses available to properly train DWP staff to the standard of most benefit advisors, if they do that more decisions will be made in the claimants favour and will cost it money.

The regs are weighted in the governments favour, e.g.

How far back in time can we go get benefit backdated for our clients?
How far back can the DWP go to recover overpayments?

see what I mean