’radical approach’ to appeals in scotland

I’m repping a case tomorrow afternoon.  Saturday 4pm in Cardiff.  Client appealed before she got in touch with me, they know I’m rep but have ignored it. Can’t get it postponed because my funding runs out on 31/3 and there’s no way it’ll get relisted before then, so she’d be without rep, so then no point in the postponement - vicious circle & all that.

A couple of thoughts.

problem identified as (i) Scotland is unique in that well over half of all appellants are represented - that’s not a problem in my view. Scotland should be proud that so many people get some assistance in lodging and presenting their appeals.

(ii) reps are taking on more clients but failing to increase the sessions for which they are available; - would this be the fault of the reps, or actually indicative of the increased numbers of appeals against increasingly poor decisions by DWP? I would suggest that the latter is probably a significant factor, at the very least.

(iii) reps are failing to prioritise those who are most in need of representation

this, the tribunals service says, has resulted in a two-tier clearance rate, with a ‘much longer clearance time for those who instruct representative orgs who are unable to give sufficient availability’ - I fail to see how the point at (iii) leads to the result claimed. Offering representation services does require an assessment of need for representation when resources are stretched of course, but should such services really only deal with the most extreme cases, as seems to be suggested?

there is no longer a clear correlation between representation and success at hearings’ - I’d like to see the evidence for this statement.

As a recipient of this letter I would agree that the veracity of the statistical analysis and the stats used need greater explanation - but the Regional Judge is implementing this is March with no discussion and no TUG meeting but will permit discussion after it has been in operation. I understand that this letter may have evolved from the Joint Partnership Group composed of the HMCTS, The Ministry of Justice and the DWP in the agreed aim to improve the efficacy of appeals and maintaining the principles of justice - ergo ignore the statute based rights of the rep when GL24 identifies them. I think this is indicative of the historical problem of TAS1’s - the regulations allow the HMCTS to put in effect whatever prescribed forms they wish. All parties need to work together to ensure the appellant benefits but I can’t help feeling powerless given that additional funding of approx £24ml was given to HMCTS to deal with increased appeals but our funding doesn’t even match inflation.

here’s a copy of the letter ..

why not request a set aside as client will be unable to get representation.

Of course one can request a set aside and I do this repeatedly, with most accepted for a variety of reasons under the FTT Rules but if you read the letter (as attached by moderator)  from the Judge the action being taken by HMCTS is to prevent such action. The volume of work we are experiencing means that having to do repeated set asides is often not feasible. I don’t think a set aside should be employed where the HMCTS and MoJ and DWP are eroding the right of appeal and representation to achieve what may be considered to be Political objectives. I understand that where an representative is identified on the prescribed appeal form then they have the same rights as the appellant - so why is the TAS1, the inquiry form, not sent to the representative obviating thus the need for late afternoon/ Saturday listings. Or perhaps my understanding of the statute law is incorrect on this?

My Bureau takes much the same approach as Tony and his colleague: we normally only attend at tribunals (more as moral support than a rep) in special cases. But we will generally help clients prepare their case, provide them with a submission to send along or take - two pages absolute maximum - and explain what will happen at the hearing. We have a pretty good hit rate either way.

I’m not aware of any research that demonstrates the impact of representation (as against preperation) on tribunal outcomes. The Tribunals Service (as was) used to publish outcome by representation statistics however these were too crude to draw any conclusions from. For example, they did not record if a written submission / evidence and been prepared and sent by a (for want of a better term) competent representative but the rep did not attend the hearing. Representative in their stats included any named person - not just a ‘competent rep’.

It is possible that in a ‘bog standard’ WCA or DLA appeal attendance of a rep. does not make a significant difference? Or does it? I would suggest a rep can make a big difference, for example, clients who in their oral evidence contradict everything they (and there GP etc) have already stated. Reps can ask further questions if the tribunal fail to address particular points in sufficient depth. Reps can also make a difference where there is inappropriate questioning etc by the tribunal (we have one judge who takes an adversarial rather than inquisitorial approach and frequently implies that the claimant is not a credible witnesses - leading to frerquent applications for leave to appeal!). Because one cannot forsee such issues in advance only if the appeal is attended can a rep. make that difference to the outcome.

Additionally, if reps rarely attend hearing how do they keep up to date with tribunals approach to issues, what eveidence a tribunal might considers relevant, how they like submissions prepared etc? We regularly deal with cases adjourned by a tribunal where the claimants is advised to contact us because they have previously been represented by other agencies who have made inappropriate submissions etc.

It is also impossible to judge to what extent attendance at tribunal and therefore the quality (or otherwise) of representation adds to the credibility (or not) of written submissions / evidence prepared / presented which might not be given if the particular tribunal does not know the rep / organisation otherwise. In the same way that decision makers don’t get feedback if they don’t attend .....

Building up a relationship with tribunals, the tribunal clerks, staff at the ASC etc can also make a difference.

I suppose in practice its a question of an organisations funding requirements and priorities. However I would be concerned at drawing the conclusion (without robust evidence) that representation itself makes little difference to tribunal outcomes where the case / client is properly prepared in advance.

I’m going to disagree with those who say that there is not much wrong with that letter.

In our service we have a “rep all appeals” practice. We do have criteria about who we can do casework for so that may result in some unintentional “cherry picking” but in the main we attend all appeals.

Its something that we think is important to do - the advice that we give is meaningless and the case work that we may do is of little impact if we aren’t prepared to follow it through to it’s logical conclusion where required.

Certainly a number of the clients that we represent may be able to do it themselves. And all our clients get information about what will happen and when and why. But overall our role is to set out the case, advance legal arguments and ensure that the evidence in support of our case is preferred. We also play an important role (for tribunals) in “managing” the client in the day - keeping the points relevant, explaining the procedure and rules and providing them with the support they may well need to actually make it to the hearing.

There is also an important role after the hearing - making sure the client understands what has gone on, explaining the decision and what will happen fater that and advising and acting on any needs for further work eg to the UT.

Our success rate is just over 70% - and that’s up about 5% over the last couple of years. Peter is right - there is no reliable research which points out the link between success at hearing and represenstaion. But having been there, done it and managed services which do it I have not doubt that there is a link between representation and success.

And that is before we consider the creation of case law and precedent - which of course needs representation. And of course leads to other successful hearings.

I fully understand the position that some organisations are in - with not enough staff to make it to tribunals.

Turning to the Scottish letter I suspect its something that we will see being rolled out in other areas. Certainly in North East England where there are high levels of representation I’d not be surprised ito see that happening too.

This will serve to deny people who are experining an onslaught of cuts and attacks on their benefits access to justice - the simple fact is that those who don’t return an enquiry form probably include exactly the people who most need representation at a hearing.

Thin end of the wedge methinks!

Tony - certainly not my intention to insult you in any way at all. If I have then I am sorry. I cannot disagree that you read some research 15 years ago which found that good advice and support with preparation of a client increased the likliehood of success. That may have been to the point as being very similar to achive similar outcomes as a repped case.

I don’t know as I cannot recall that research. 

That is why I base my view on my own experience and seeing figures from the (old) TTS which suggested to me that repped cases tended to be more succesful that those which weren’t. Of course there may be a number of reasons why that is so - maybe only the strongest cases get picked up by reps - but it could be that representation makes a difference.

But I still stand by my previous comment - I am not aware of any reliaible research specifically looking at the effect that representation has on the success of appeals. (And I have researched this previously).  And of course in some cases a positive outcome (for appellant) may be more than simply increasing benefit.

And I doubt whether Miss Burns had sight of the research - she does refer to the outcome figures to base her assumptions on.

But to say that you “think it is generally true that reps do not prioritise their cases well enough” appears to suggest that we should we have to seperate the more deserving cases from the less deserving cases. How do we do that in an equitable manner?  We (in our service) already have criteria about what cases we can take on so people have aleady jumped through those hurdles.

And the the work that we have done tells us that people want representation at hearings. Even if we were simply to make sure that they turned up (and not acually do representation) - then that surely will increase their chances of success.

Its the area of law where probably the largest number of citizens come into “conflict” with the state. And they should have a right to proper good quality representation. And it’s not just us woolly/bolshie/unreformed WROs who seem to think that representation is important. After all for the last 15 years or so there has been on/off talk about extending legal aid to benefits appeals.

I do agree with you that someone who can access fully funded advice without being turned away is fortunate. I don’t know anywhere in the country that advice funding isn’t a problem. And we do need to think creatively about how we deal with that.

We’ve looked at a number of innovative ways to manage those tensions – but this is not the thread to discuss this in a constructive manner.

But this development isn’t about ensuring that people get access to justice. It’s about managing difficulties for HMCTS – which of course they are perfectly entitled to do. But perhaps the only inevitable outcome is of course that more people are denied access to that justice as they will be unable to get proper representation.And that can never be a good thing.

We have quite a structured but self sufficient team here.  We have a single day and one other afternoon set aside for representation and have had this arrangement with TTS for donkey’s years and it works well.  I’m at tribunal most weeks, sometimes with one case, sometimes with an entire session booked in. 

As to whether to take a case on and represent at the hearing, that decision is mine and mine alone.  The same goes for my colleagues.  My starting point is if a case appears arguable then generally I’ll take it on a provisional basis.  I’ll make a final decision when I’ve collected evidence and seen the evidence already in the appeal papers.  If I keep the case, so to speak, I’ll always attend the hearing.  It’s rare for me to take a case initially and then withdraw but when it happens it is usually because of alarm bells going off somewhere, for example, unexplainable inconsistencies in the evidence which leads me to doubt the appellant, or all the other evidence apart from the client’s word is overwhelmingly against him. 

In DLA cases it’s rare that I’ll withdraw where there is an unsupportive EMP report but that is usually because I have other evidence to challenge it or I can find inner inconsistencies in it or things which don’t ring true with other known facts.  And I’ve never refused to take an IB/ESA case solely on the basis of the HCP’s report. 

If I decide, either at the initial interview or later on, not to represent at the hearing I’ll always advise the client on how to present his case, the evidence he needs to obtain, give a detailed outline of the legislative framework and I’ll prepare him for what will happen at the hearing.  We have a very high success rate but then I would say that wouldn’t I?  It just goes to show that there is more than one way to do this job as long as it is based on good practice, giving accurate advice and helping the client to put the best possible case.

As an original recipient of the “Jessica Letter” it may be useful to provide an update.
Today I established that we have been double booked or booked for sessions we are not available. This is direct result of the Jessica Letter . This means 8 hearings in one 2 hour session or 12 hearings in 2 x 2 hours session. In effect an extra 16 hearings. At present we represent at on average 8 sessions per week ( we represent all individuals who request this - who are within our defined area regardless of income or benefit entitlement.)

Forgetting the numbers. I looked at the individuals. The majority from first glance and those whom I know are persons with a mental health problem. These are mostly ESA appeals.

Moving on to the actual change in practice and the rule of law. Can we just think about the very recent national public debate with regards to the the withdrawal of legal aid. The Citizens Advice Bureau estimated that 650,000 people a year who received help through legal aid would no longer be eligible.

Lord David Neuberger, president of the Supreme Court, Britain’s highest judicial body, said the cuts risked damaging faith in the democratic system and said:
“My worry is the removal of legal aid for people who get advice about law and get representation in court will start to undermine the rule of law because people will feel that the government isn’t giving them access to justice in all sorts of cases,”
“That will either lead to frustration and lack of confidence in the system or it will lead to people taking the law into their own hands.”

Am I jumping to conclusions but is there on one else who might consider the Jessica Letter is an example of just what Lord Neuberger is stating? I stand by my previous posting that I do feel that this is driven by the setting of targets that may or not be an agenda arising from the Joint Group I identified in my previous post.

If there were 100 advisers and 1,000 appellants requiring representation per week then each adviser could arrange to rep at 10 hearings and everyone’s happy.

Imagine if the 100 advisers became 2 advisers overnight due to cuts.  1,000 people still want representation but clearly each adviser cannot manage 500 hearings per week. 

The moral basically is that Jessica should keep her nose out.  This is a political matter.

And if the Tribunal’s research shows that there’s not much difference between repped and unrepped it’s possibly because a lot of judges and doctors sitting on tribunal want to appear big before appellants and hate it if a rep has the temerity to tell them what the law is.  Begrudgingly accepting that law, the tribunal then goes out of its way to apply it so as to dismiss the appeal.  To punish the rep (hey, I still get paid regardless old boy).  I think a lot of criticism has been directed, rightly, at ATOS, but not nearly enough at the tribunal system which I think is becoming institutionally unfit.  It’s far to cosy with the DWP for a start and this letter is just further proof.  And a lot of the time the tribunal members, whisper it, just aren’t very good.  I’d love to see their training material - wouldn’t be surprised if it’s ATOS inspired.  Have thought about requesting it.  Think I will.  But they’re scaredy pants at Tribunal national HQ (always saying “no can do” to FOIs).  Last time I asked locally, the North East had only two medical members who are mental health specialists (and it shows).  Don’t get me wrong, there are some excellent judges out there and some decent doctors.  But there’s too many just in it for the money and power.  And it’s hard for the research on repped and unrepped to accommodate that. Too often, I see those rooms at the tribunal as the carriages of one big gravy train.