Post by nickd on Apr 16, 2012 23:07:32 GMT 1
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'.