Online Dispute Resolution and I, Daniel Blake

You would not expect an evening at the cinema with a couple of friends to raise major issues about the recent proposal of our Ministry of Justice to put tribunal-decision making online. But, that was the effect of seeing Ken Loach’s award-winning I, Daniel Blake last night. The film throws into sharp relief  some Kafkaesque features of the UK’s benefit system. At one level, it is a powerful drama well meriting the award of the Palme D’Or at Cannes and which prompted even the government-leaning Daily Telegraph to call it ‘a quietly fearsome piece of drama’. At another, the human drama critically pivots on a very legal issue: the nature and terms of social security benefit appeals.

To UK readers at least, Ken Loach will be a familiar name. He has been tugging at social consciences since  his television drama Cathy Come Home punctured 1960s complacency on homelessness. And his career has been a pretty straight arrow since then. You know what a Ken Loach film is going to give you: the grit of social realism; the tragedy of social injustice; the flickering light of the assertion of humanity in the most difficult of circumstances. Understandably, this does not appeal to everyone despite the Telegraph‘s broadmindedness. Social Security minister Damien Green tore into the film and argued to a hostile Scottish audience of Scottish Parliamentarians that: ‘It is absolutely not the intention of anyone connected with the welfare system, whether it’s ministers or staff of the DWP, to cause distress. The system is there to help people and I see it as an essential part of my job to try and set up structures and set up the organisation of the system so that it is there to help.’ The MSPs gave him a signed copy of the book behind the film to read on the way home.

The legal issues can, however, be separated from the politics and the drama. Daniel Blake is a 59 year old carpenter who has had a heart attack. He is advised by his medical team that he cannot work. However, in claiming the requisite social security benefit, he becomes entangled in a legal nightmare with two major components. First, the decision on whether he is fit for work depends crucially on his score in answer to a series of discrete questions about specific functions. So, he is assessed on his capacity to undertake individual physical movements (eg can he press a button) but not on his overall ability to work. He is turned down.  As a result, in order to get benefits in the short term, he is forced into a catch 22: he must argue that he is fit for work when he isn’t. Second, he needs to appeal the original decision that he is fit for work but he can only do that after he requests an anonymous (and, in the film, increasingly ominous) ‘decision-maker’ to undertake what is known ‘a mandatory reconsideration’ . This usually occurs within 10 days but the Department of Work and Pensions has rather cunningly ensured that there is no legal requirement as to the time it can take. Thus, a prospective appellant can fall into limbo – subject to no or reduced benefits but unable, by themselves, to take the matter further pending reconsideration by a Ministry over whose decisions they can have no sway.

On current practice, the film appears to be correct as to procedure. This is the Department of Work and Pensions on the effect of a negative decision on the disability benefit that Mr Blake wishes to claim (employment support allowance or ESA): ‘If you have not been awarded any rate of ESA at all, whilst the mandatory reconsideration is taking place you will not be able to claim ESA at the assessment phase rate. Instead, you will be forced to claim another benefit, such as Jobseeker’s Allowance, if you are eligible or not claim any income replacement benefit at all.’ For those interested in the detail, there are a variety of sites that will give practical guidance of how a benefit adviser would tackle this black hole e.g. here. The point is, however, that Ken Loach’s film correctly identifies a potential area where legal process can fail, with disastrous results for claimants cut off benefits.

In the film, Daniel Blake dramatically (literally and metaphorically) cuts the gordian knot over an inability to launch his appeal by spray painting it on the walls of his local social security office. This is practically effective though, presumably, technically invalid – a lesson perhaps to budding advisers on what can sometimes work. Without entirely spoiling the film for those who have not seen it (and, if you have got this far in the post then you certainly should), by the end, an appeal hearing in a physical office with two members on the tribunal and a representative appears to be going some way to a resolution.

And what is the relevance of the events in the film to the proposal to put tribunal decisions online? This is proposed by the Ministry of Justice’s Transforming our Justice System: ‘Tribunals will be digital by default, with easy to use and intuitive online processes put in place to help people lodge a claim more easily, but with the right levels of help in place for anyone who needs it, making sure that nobody is denied justice.’ The difficulty is not actually that highlighted in the previous post, digital exclusion. Daniel Blake has no digital skills but, interestingly, he copes with online applications through the kindness of strangers, friends and some form of local library provision – albeit with some difficulty. True, he faces benefit sanction because he can’t type out his cv: he has written it in pencil. But, basically and with this one exception, he does handle the online process.

What shifts the roadblocks in his case is the presence of a tribunal appeal where his case is to be reviewed by a judge and a doctor; where he has somehow got representation; and for which someone has marshalled his medical evidence. The great danger of online is that this external review of the system will be truncated and, despite the online intervention of an independent tribunal judge, the online juggernaut will proceed. Later Daniel Blakes will, thus, be deprived of the one point in the process where, if they are lucky, anonymous ‘decision-takers’ become human as do they: heralded by the film’s title : ‘I, Daniel Blake’. Anyone with any experience of them knows that social security disputes are not always bloodless, technical arguments – they can be battles between desperate individuals on the very edge of survival and bureaucracies whose overriding practical aim is to hold down government expenditure.

There are two very practical consequences for proposed online adjudication procedures. First, online dispute resolution is only appropriate as the final stage of an administrative process which is just and equitable up to that point. At the very least, there must be a binding ten day time limit for mandatory reconsideration of social security cases that are appealed. Second, there must be exceptions to ‘digital by default’ for cases in categories such as the following:

(a) where the claimant or the Department of Work and Pension request a physical hearing;

(b) where the case involves disputed matters of fact; or

(c) where the case involves contested matters of law.

There is also a final narrow point from the film. It illustrates that it would be premature to remove doctors from panels considering medical issues at the present time.

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