Post by nickd (Mylegal) on Apr 15, 2012 12:52:46 GMT
The Upper Tribunal concession won't reduce litigation
It really is time we all got real about what is at stake here. There is no question in my mind that the ‘concession’ on welfare benefit legal aid for upper tribunals & higher courts goes anywhere near far enough in terms of meeting the demand of the clients we see. The concession is helpful in the setting of precedent, which is of course useful in correcting the errors made in the first tier tribunals in their interpretation of what we all know to be extremely challenging and complicated social security law. By the time the mistake has made its way into the Upper Tribunal, the damage is already done. We should be looking at earlier dispute resolution, is that not what these reforms are meant to be all about?
I thought all of these reforms were intended to reduce ‘errors’ and reduce ‘mistakes’ with a view to reducing litigation; - how does the concession on upper tribunal work help towards achieving this?
Defective decision -making is best identified earlier rather than later - it saves time & money.
The "serial litigants" are the statutory authorities rather than the claimants who we help in winning their cases. Let’s stop the absurd pretence that appeals in the first-tier tribunal are ones in which the claimant faces a ‘user friendly’ tribunal. So far all I’ve seen from the Ministry of Justice in an effort to 'help' the claimant is the production of a factually inaccurate video designed to hoodwink them in to thinking they can fight their own corner – if they can’t get a simple video right what does this tells us of their total lack of understanding as to what really goes on in a first tier tribunal?
The Secretary of State has to recognise that within all of this complexity exists a much greater margin for error. Better training of staff is of course welcome, but the best way forward is for someone on the outside to highlight where things are going wrong by way of external challenge at all levels of adjudication. The cost savings in earlier identification of error are obvious; the earlier mistake is detected the better.
Why are we even considering taking away an invaluable and skilled resource in the form of modestly paid specialists who contribute towards better standards of decision - making by effective challenge of State? - it is after all the State who stands accused of serial litigation rather than the claimant.
The 'user friendly' Tribunal myth is best highlighted by the higher success rates achieved by those helped by specialists
Our success rates speak for themselves
Anyone who says work in the first tier tribunal is only ‘basic’ needs to tell us why we pay judicial salaries to those who sit in judgement over an ever increasing tsunami of appeals as the authorities get it wrong time and time again. It is with our help that we highlight where and how often the state gets it so badly wrong. The Ministry of Justice appears to be deliberately ignoring the views of welfare benefit experts who all say how complex it is. Social security appeals cover many different benefits, this involves having to know where to look for in complicated & muddled legislation contained within thousands and thousands of pages of guidance manuals – it is said to be one of the most complicated areas of law. Indeed, it is all of this complexity which increases the margin of error to a point where it is the Secretary of State who finds himself in the dock rather than the claimant when it comes to accusations of unnecessary litigation. How on earth can we call this simple & why are we removing all avenues of specialist help for the victims of officialdom when it is the State who commits the wrong?
The first tier is tied to procedural rules which in some cases can involves interlocutory referrals, pre-hearing directions issued to the parties to assist the Tribunal in its management of the case. Amongst our clients we see perfectly knowledgeable & capable individuals who turn to us when they realise the dangers of 'going it alone' - it is often the first - tier tribunal who directs the claimant to seek specialist help. People flounder when battling with the State, they simply don't understand the complexities which abound. Some cases are more in - depth and intensive than others but they are all bound by a complex and bewildering set of rules. An overpayment case for instance requires a scrutiny of complex calculations and a look at the law to see if it was correctly applied to a retrospective period of time. All manner of issues are exposed in the first - tier, relating to errors in the basic principles of correct supersession/revision of awards & identification of the relevant decisions which should (but not always are) before the tribunal for determination.
The consequences for a claimant facing allegations of misrepresentation or perhaps failure to disclose a change in their circumstances or perhaps alleged co-habitation of a partner can be immensely serious if tied to associated prosecution in court. Criminal defence solicitors routinely refer to benefit specialists to deal with the civil side of a claimants dispute with the authorities. Claimants often refute the criminal charges & contest recoverability of sums said to be overpaid via their right to dispute in a social security tribunal. Such cases are a minefield for claimants who have no help or worse still act upon unreliable advice. The work done by a benefit specialist can have a direct impact upon the potential liberty of an individual in cases where the alleged overpayment is proved to be non-recoverable or substantially reduced. These are all cases which are initially heard in a first tier tribunal. Indeed, it is the case that an argument can be advanced that criminal proceedings be adjourned until such times as the civil (social security) issue is decided first (section 117 of the Social Security Administration Act)
How can we ignore the success rates (typically 70%) in first tier tribunal work achieved by professionals who work as welfare benefit specialists in their effective challenging of the State?
How can we disregard the vital role specialists play in highlighting poor standards of decision making which are surely better identified at an earlier opportunity rather than leaving it until it necessitates expensive and time consuming correction in the upper tribunals and beyond? – is a claimant meant to wait literally years before they get their correct and lawful entitlement by enlisting legal aid to obtain justice in the higher judiciary?
Why the Upper Tribunal concession will not work
I cannot imagine a situation more likely to set up a total lack of faith between a client and organisation than when they come to us for help in the first tier tribunal and we have to send them away saying "please do come back to us if they don't find the case in your favour - we may be able to help you appeal to the upper tribunal". Clients need the help (and yes it is legal help) at a time when they can be more constructively assisted; not least over the merits of their case in the first - tier or initial review stage. These proposals will effectively bar us from being able to advise a client against pursuing an appeal which has no prospect of succeeding in the first tier tribunal or for that matter at the point of requesting a review. We will be effectively disabled from trying to avert costly proceedings or to be able to arrive at an earlier stage resolution by mediating with the the State.
The more substantial failing will be over identifying errors of law which arise out of an unassisted claimant's failure to advance his or her case. Will they have applied for the right medical evidence? Complied with directions? Completed all of the right steps within the time limits set by the Tribunal or the statutory authorities? Will an inadequately assisted claimant tell the appeal tribunal about all of their health problems? - there is often a reluctance for claimants to talk about their mental health issues and disabled people will often portray a more positive account of their capability than is reflected in the variable nature of their symptoms; these are the factors and issues which are carefully extricated from clients in the stages when specialists prepare their cases. These vital facts will be omitted without the right degree of help which will leave the tribunal without the right information - this puts the claimants chances of achieving the right outcome in peril. In all cases we should be looking towards finding the right outcomes - it is upon this that the WORK programme hinges when placing people within its providers range of support services.
Much as though a Tribunal is inquisitorial in its functions, they simply do not have the time to carefully prise everything out a claimant, there is an expectation that the claimant will do so of their own accord. The MOJ's 'help' video highlights the claimant being helped by a friend, not all claimants have friends who they can trust in to such an extent that they can be told all about the claimant's problems. Many will be well and truly 'on their own' when it comes to taking on the State; such individuals are more likely to elect for a paper only appeal, abandon it or simply walk away from the whole scenario with no faith in the system or help mechanisms - the result will be claimants being recorded against outcomes which are not reflective of their true limitations.
Upper tribunals & the first - tier are probably more likely to accept applications for leave to appeal simply because the claimant came before lower tribunal without any assistance. Whilst this may lead to a rise in applications for leave, it may be difficult to advance any argument on issues of error of law beyond the application stage simply because the claimant cannot blame the tribunal for his or her failure to advance a case.
We may therefore see a rise in applications with no teeth upon which to establish a proper case as binding precedent. The other difficulty is in advancing a case to an upper tribunal when the specialist has no familiarity with the proceedings which have already taken place. Not only must we ensure Justice is seen to be done - we as specialists must also be there to identify where justice has gone off the beaten track.
Conclusion on upper tribunal amendment proposal
The Right Honourable Ken Clarke's proposed amendment in lieu of 169 & 240 for upper tribunal & higher courts work is of course welcome, but it falls short in its practical value & application towards setting binding/authoritative precedent unless welfare benefit specialists have an active role in the work covered by the Lords' amendment 168 as voted for by a majority of eminent peers after their careful consideration of the bill in the report stage. As specialists we need to be able to identify errors of law from within rather than from afar. It is essential for both amendments 168 & 169 to be retained for two reasons (a) it enables us to more pro-actively prevent errors of law by contributing to better standards of decision - making & striving for earlier disputes resolution at up to first - tier tribunal level and (b) by highlighting the errors of law we identify in the first tier - tribunal to enable more binding precedent to be set by the higher judiciary - amendment 169 is of limited value without agreement on 168. In addition to which amendment 24 has to be passed to allow our clients access to legal help other than through a single - point gateway. There can be no access to justice where accessibility to legal advice is not as easy as it is for constituents to approach their Members of Parliament at their constituency surgeries.
Agreement on amendment 169 should be viewed as a poor compromise when what is required of the House of Commons is agreement on amendments 168 & 169; both of which were voted for in equal force by the Lords'.
Post by nickd (Mylegal) on Apr 15, 2012 22:18:25 GMT
Members of Parliament are free to vote for what is right
Here's why MP's should support amendments 168 / 169 & 24 of the Legal Aid, Sentencing & Punishment of Offenders Bill on April the 17th when it returns to the House of Commons
Show you are a listening government
" Of course, the Government, being a listening Government, and the Ministry of Justice, being a listening Ministry, will take onboard the concerns of noble Members in the other place and act accordingly." - Jonathon Djanogly
This is a chance for government to show it does listen and takes onboard the valid concerns of eminent peers who carefully proposed these particular amendments with such force for a very good reason - they are the right amendments. In all of the debates which has taken place throughout the passage of this bill - social welfare legal aid for welfare benefits has received the widest support from all sides.
Welfare reforms are having a catastrophic impact upon people - it is serious - people are not coping
“While we recognise that the class of individuals bringing these cases is more likely to report being ill or disabled in comparison with the civil legal aid client base as a whole, we have also taken into account the fact that the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance.” - Jonathon Djanogly
Referring to the death of Stephen Hill, 53, of Duckmanton, who died in December of a heart attack. Member of Parliament Mr Perkins said: “Whilst we all acknowledge that there needs to be reform of the welfare system, the cost of failing to properly identify genuine claimants when they are not fit for work is wrong and the consequences can be disastrous. “I am calling on the Government to improve the WCA from the ‘tick box’ exercise it is now so that more families aren’t put through the anguish and loss that Mr Hill’s family are experiencing.”
The consequences of adverse ATOS assessments are at the heart of almost every single dispute against increasingly questionable Employment & Support Allowance assessments. Father of two Mr Stephen Hill had suffered heart problems for around two years and was awaiting major heart surgery but following a ten-minute medical examination on November 17 he was deemed well enough to work. Mr Hill’s brother Anthony, 52, said: “I think the worry put so much pressure on him. “He knew he didn’t have any energy and was getting out of breath easily but because he had been told by a medical expert he was well he thought he should be all right. Telling people the process is 'user -friendly & withdrawing proper help is not the answer.
Is this not serious enough?
Benefits appeals system 'on brink of collapse'
C4 investigation reveals government's work capability assessment programme is clogged with costly, unresolved cases. Thousands of ill and disabled people have become trapped in a revolving door of medical assessments and appeals at a cost of £80m, with many claimants on their second and third attempts to overturn rulings that remove their benefits - Guardian November 2011
Professor Malcolm Harrington, who is responsible for overhauling the troubled disability benefit assessment process, is "staggered and shocked" at the estimated annual £50m cost of appeals against decisions. He warns that the number of appeals could rise further and admits that the standard of assessments throughout the country remains "patchy". - Guardian September 2011
There was a 56% rise during 2010/11 in the number of people appealing rulings that they are fit for work and the tribunals system has become overloaded. Since the system was trialled at the end of 2009, at least 390,000 people have gone to appeal; tribunal courts have been forced to open on Saturdays and to increase staff by 30% since January 2010, to deal with the backlog; the cost of these appeals is expected to reach £50m a year by the end of this month. The scale of the problem is startling; the tribunals service has radically increased its capacity in order to cope with a possible half a million new cases over the next 12 months. Guardian March 2012
the system is in chaos because it is being tasked to function beyond its capacity. The vast majority of the current meltdown in the appeals system is as a direct result of reviewing huge cohorts of incapacity claimants and converting them over to a different mode of assessment related to Employment & Support Allowance. This is just one of the benefits which government is reviewing in thousands, it has yet to move on to transfers from Disability Living Allowance over to Personal Independence Payments as well as implement the most radical of all new benefits - the Universal Credit. It will involve reviewing around 18 million separate claims to achieve full implementation. The scope for more error, confusion and potential dispute is immense.
Appeals are forecast to rise to 644,000 per year by the Tribunal Judiciary
There is no evidence upon which we can say there is a solution
Government claims to have the answers by quoting lower appeal figures for 2011/2012 - in reality the statistic data release showed no figures for 2012 at all. Although the number of disposals is down, there is no significant reduction in the numbers of cases outstanding with the Tribunals Services, nor is there any data release from the DWP showing how many cases they have awaiting dispatch to the Tribunal or in their own review caseload. The reduction in disposals is because the MOJ has taken on many more judicial panel members & increased the number of sittings - the figures are bound to go down - there would be something very wrong if they did not. Government's solution to the problem can be compared to just pumping more and more blood in to a person bleeding profusely with no attempt being made to seal the wound.
Government may claim that the revised Harrington reviews for ESA assessment has improved the appeal figures or the introduction of a new 'mandatory revision before appeal process' will act like a magic wand. In truth, the review process is still undergoing consultation and will only stand a chance of working if claimants are more enabled to effectively state their case at an earlier stage - the best way of doing so is to assist them with appropriate specialist help. The evidence upon which any of these measures be quantified is to date not forthcoming;-
To quote Mr Chris Grayling (Evidence session March 19th 2012)
"So, the appeals data have only just started to come through, and we do not have statistically accurate data yet."
Governments estimated financial are in question
Government's claims on financial savings have yet to effectively challenge the evidence of Citizens Advice which says for every £1 spent on welfare benefits advice £8.80 is saved.
The Ministry of Justice quotes the costs of appeals to be less than Harrington's quoted £50 million a year. The evidence suggests both are considerably under-stated. No figures have been forthcoming over the additional cost of taking on more staff & judiciary within the Tribunals or cost estimates given to take on additional DWP staff to more adequately review cases if the mandatory process of revision before appeal is adopted. There is no firm evidence that the process will not introduce additional costs if claimants remain dissatisfied with the review and go on to appeal.
On Tribunal costs the figures simply do not add up. The figure for 2010/2011 was a total of 418,500 appeal receipts with the Tribunal per year. At a cost of £279 per appeal this equates to £116,761,500.00 (£116.7 million per year). I would doubt the figure of £279 covers today's costs as it was taken from a Freedom of Information request made in 2008:
[25th June 2010 under request FOI/65431/10]
"I can confirm that the average overall unit cost of processing an SSCS appeal hearing, based upon figures for the financial year 2008-2009, is £279.00, including overheads, fees and expenses. I must advise that the figures for the financial year 2009-2010 are not yet available."
Is the MOJ quoting an all inclusive cost including the processing by the DWP & the Tribunal costs?
Using the costings taken from 2008 with the forecast made by the Tribunal Judiciary the cost of appeals at 644,000 a year by 2014/2015 would come to in excess of £0.7 Billion pounds
The role of benefits specialists in earlier identification of welfare to work recipients
Government places all this emphasis on placing disabled & incapacitated claimants in to its flagship WORK programme. To date its been unsuccessful in helping the long term out of work or unemployed despite a pledge to tackle welfare dependency. Only 3,110 claimants of those referred into the programme are real time long term welfare dependent. Correct placement in the programme for it to work for providers, employers & welfare to work beneficiaries. The right assessment is vital to the correct placement. Benefit specialists know more about many of these claimants than anyone else, yet government's opposition to amendment 138 will cut off much of the contact we have with around 135,000 clients a year who are helped by legal aid for those with a benefits problems.
Government sees that it makes economic sense to pay WORK providers up to £14,000 per claimant for those who are most difficult to transition from welfare to work. Welfare benefit specialists are in closer contact with this claimant count than anyone else through helping them in a clogged up appeals system. Yet government doesn't see the vital role we could play in earlier dispute resolution and therefore earlier referral to WORK providers.
It makes no economic sense to cut the work we do for just £150 person - we provide more for the tax payer's money than anyone else.
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