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Oral hearings to be scrapped?
I’ve just become aware of this, following an email from NAWRA last week, about apparent plans by HMCTS to scrap oral hearings at first-tier tribunals for social security appeals. Surprised there hasn’t been uproar to be honest, but I suppose it’s difficutl to keep up with everything going on. As such, this is a copy of an email I’ve sent to a colleague here with my main concerns.
See chapter 5 of the consultation document, which covers tribunals. I’ve only just become aware of this thanks to a NAWRA email sent last week. My bolding below
i. Streamlining procedures and encouraging a balanced approach: We are working to simplify our procedures and put entire services online where possible, carefully designed to be intuitive and easy to follow. Many relatively straightforward tribunal decisions do not require full physical hearings, so where appropriate, judges will be making decisions based on written representations, hearings will be held over telephone or video conference and specially trained case officers will help cases progress through the system. All of these changes will make the process quicker and easier to deal with for all parties involved in a case.
ii. Digitising the Social Security and Child Support Tribunal: This will be one of the first services to be moved entirely online, with an end-to-end digital process that will be faster and easier to use for people that use it.
Thus, I think that the Guardian article was probably on the money insofar as the suspicion that HMCTS are looking to scrap oral hearings for social security appeal tribunals, which would undoubtedly lead to poorer outcomes for appellants. As seems to be standard these days, they’ve got a 6-week turn-around for responses to the consultation, closing date 27 October 2016.
Main concerns I have are (1) that research shows time and again that oral hearings have hugely higher success rates for appellants (unrepresented or not) than paper hearings (something like 55-60% against 20%), (2) older peoples’ ability to access online channels effectively (something that is touched on briefly in the EIA) and (3) this is a pretty fundamental blow to access to justice for anyone looking to challenge a social security decision – they’ve already tried to put people off getting to appeal hearings through MR and this is another nail in the coffin.
Personally, I’ve had a few PC cases when I was working at Mary Ward Legal where clients were in dispute with Pension Service over overpayments, eligibility, right to reside, etc and it is only when we (or rather they) have attended first-tier tribunal has the case been resolved as it should be. One client would have been landed with a £200,000 overpayment, but managed to get that wiped off.
I’m also worried about “specially trained case officers” – this means non-judicial staff making decisions about the standard of the appeal in hand – they’ve already done this for Upper Tribunal appeals which are regularly thrown out by staff who don’t have the skills or knowledge to make the decisions they’re tasked with making. Basically, they become gatekeepers who persuade appellants that their appeal doesn’t have merit or hasn’t been made properly and therefore shouldn’t go ahead.
So in a nutshell, yes I am very worried about these proposals, in particular the way that they’ve been slipped out with very short turn-around and with social security squarely in their sights. Don’t forget, Liz Truss was fundamentally against legal aid for welfare benefits in the first place, so I can imagine she’ll be right behind these moves.
[ Edited: 18 Oct 2016 at 02:09 pm by Paul_Treloar_AgeUK ]I wonder if it’s a coincidence that (according to our local MP office), challenging decisions of pretty much every govt department now seems to be met by stonewalling, foot-dragging and complete lack of accountability, even with MPs enquiries.
Welcome to the future-You will have arbitrary decision making done to you with no right to challenge or question.
Sir Ernest Ryder, Senior President of Tribunals, speaking at the Annual Bar and Young Bar Conference 2016 -
In the tribunals, the jurisdiction which I lead, we have a ground breaking project to create
end to end on-line hearings for benefits appeals where we will replace case management
hearings with continuous messaging and determinations with an appropriate mix of online
questioning and virtual hearings. The process of on-line dispute resolution will become the
norm for much of the less complex work in civil, family and tribunals jurisdictions.
Does that mean no oral hearings at all??
More background here:
[ Edited: 18 Oct 2016 at 01:00 pm by shawn mach ]I’ve just become aware of this, following an email from NAWRA last week
If anyone wants to input into the NAWRA response please do complete the survey here - https://www.surveymonkey.co.uk/r/WP8HS3S
Deadline end of today so short I’m afraid but NAWRA members will have received a week or so ago. Paul - I’ll just input your comments into the response shall I? ;)
Link not working for me (firefox or IE)
I’ve just become aware of this, following an email from NAWRA last week
If anyone wants to input into the NAWRA response please do complete the survey here - https://www.surveymonkey.co.uk/r/WP8HS3S
Deadline end of today so short I’m afraid but NAWRA members will have received a week or so ago. Paul - I’ll just input your comments into the response shall I? ;)
I did respond to the NAWRA survey as well but it was very fleeting - I don;t think that I realised the complete implications (I thought the main issue was losing panel members). Thanks anyway Daphne and feel free to use any of my extended rant above.
Thanks Paul. Yes I think looking back at it I didn’t make clear some of the implications - I wrote the survey in a bit of a rush just using the online survey questions as a template to make it easier to consolidate after. But I should have put a few quotes in about what they were intending. I will use your rant happily though to enhance the response ;)
Link not working for me (firefox or IE)
Sorry past caring - missed this before - it works fine for me in chrome, safari and firefox - not got IE on my computer - not a computer expert and not sure what to suggest??
If you want to have a rant here like paul though I’ll happily incorporate your views ;)
Link working fine for me too ...
OK - thanks Daphne - I’d repeat much of what Paul has said already. But in addition;
1. The vast majority of our clients, even where English is their first language, are far better able to express themselves orally than they are in writing. OK, we work with particularly vulnerable clients, but I imagine this will be true for a significant number of claimants across the country, even if not the majority. This means they have far better chances of communicating accurately in an oral hearing. How will these appellants not be disadvantaged where written representations are the norm?
2. I understand that HMCTS are talking about telephone and video link hearings but;
a) I can think of quite a few of my clients who only have mobile phones - reception in their houses is often dreadful. How will this be accommodated?
b) What arrangements are proposed where the appellant has a representative? i.e. conference calling/video link (even if reliable) represents a significant technological expense - who will bear the cost of this? For example, whilst I may have Skype on my laptop, this isn’t viable - I can’t imagine sitting cheek to cheek with my client or moving the damn thing around depending who is speaking. Arranging rooms for video or conference call facilities to be available in our offices would be a significant administrative burden, even forgetting the financial cost.
3. Add to the above the issue of those who do not have English as a first language;
a) I have plenty of clients who can speak English well and understand spoken English well - but there will be many of these whose ability to read English is poor. This is going to result in an increased need for interpretation services if written representations are to be the standard. Who pays? Who ensures these are actually available?
b) For telephone hearings (assuming an unrepresented appellant sitting in their own home) where will the interpreter be? If not with the appellant then their ability to challenge poor interpreting is going to be compromised.
4. I’m not in favour full stop - HMCTS’s reluctance at present to accommodate telephone or video hearings in order to allow appellants to participate in hearings when they cannot attend a tribunal venue doesn’t speak well for the real motivation behind this proposal. But for more complex appeals (and everything indicates these are also going to be included) it will be a real barrier. Large overpayments/failure to disclose/misrepresentation/LTHAW can often turn on credibility as well as the evidence - and that’s something that can be very difficult to assess over the telephone. And it’s often the case that important points can be missed/misunderstood when not speaking face-to-face. That is going to be a problem that I can’t see being overcome.
5. Decisions communicated to the appellant on the day of the hearing will become a thing of the past….
There’s doubtless more but I’ve got to do other stuff now….
And at least one UT judge also appears to have doubts. From a decision just issued today;
38. The Upper Tribunal has previously been assured that HMRC’s former unsatisfactory approach to FTT submissions, which was not compliant with rule 24(4)(b), had been corrected with effect from May 2014 (see ZB v HMRC [2015] UKUT 198 (AAC) and JW v HMRC (TC) [2015] UKUT 369 (AAC)). The HMRC submission in the present appeal for the FTT was dated 3 March 2015. Plainly HMRC’s best intentions have yet to be fully realised, but tax credit claimants and their advisers up and down the country probably do not need me to tell them that.
39. Of course, as the tribunal system moves towards the brave new world of ‘digitization’, this problem may become a problem of the past. But, then again, that all depends on which documents are digitized.
;)
Absolutely.
We were discussing it earlier and as far as we can see it amounts to a further cynical, government exercise to load the dice in favour of the DWP/HMRC. Any advantages are far outweighed by the myriad of disadvantages.
Yep, we’re also seriously concerned about the proposals and agree that the option of an oral hearing is essential in social security cases. We’re just finalising our consultation response and will post it on here when it’s ready.
Just been discussing Age UK response with my colleague Sally West who flagged up that MoJ has now separated this consultation out into two parts for obscure reasons, one about assisted digital (and the implicit risk that poses to appellants being able to access oral hearings) and the other about panel members.
See Transforming our justice system: consultation and also note that the two “consultations” also have different closing dates.
This is all a bit shambolic truth be told, for such significant changes as are being proposed, now where’s the back of that fag packet when you need it…...
and we’ve all had cases, i have no doubt, where the tribunal take one look at the claimant when wheeled in in wheelchair/whatever and immediately found for the claimant…. I know i have (DLA a few years ago)
they want electronic courts for all courts .. it’s not just about tribunals