One of the genuine innovations promised for the tribunal modernisation programme in England and Wales is ‘Continuous Online Resolution’. This is now formally provided for in the Courts and Tribunals (Online Procedure) Bill introduced in the House of of Lords this month. Clause 1 provides for designated proceedings ‘to be conducted, progressed or disposed of … [and] may authorise or require parties … to participate in hearings … by electronic means’. The draft legislation gives form to ideas first promoted at length by the Tribunals President, Sir Ernest Ryder, in a major speech in 2016. Existing departmental performance in social security cases, however, provides the tribunals with a significant challenge.
This is how Sir Ernest set out his stall. ‘It works like this. Change your view of litigation from an adversarial dispute to a problem to be solved. All participants, the appellant, the respondent Government department, which in th[e] case [of social security] is the Department of Work and Pensions, and the tribunal judge, are able to iterate and comment upon the basic case papers online, over a reasonable window of time, so that the issues in dispute can be clarified and explored. There is no need for all the parties to be together in a court or building at the same time. There is no single trial or hearing in the traditional sense. Our new approach is similar to that already used in other jurisdictions, where the trial process is an iterative one that stretches over a number of stages that are linked together. In our model, however, we will not need those stages to take place in separate hearings or indeed, unless it is necessary, any physical, face to face hearing at all. We will have a single, digital hearing that is continuous over an extended period of time.’
Respected former BBC legal correspondent Joshua Rozenberg, recently explained the procedure in an evolving paper that he has written for the Legal Education Foundation: ‘What’s now being piloted is a form of early neutral evaluation. Tribunal members will assess each appeal and consider whether further evidence is needed. That can be posted in or uploaded it using a mobile phone. Next, the tribunal will issue a reasoned view of the case. The appellant can then accept this or reject it — as can the DWP. Either party can still insist on an oral hearing, but this is likely to be rare … This appeal process is being piloted using real appellants. But the next stage, planned for later in 2019, is even more innovative. Judge John Aitken, president of the social entitlement chamber of the First Tier Tribunal, referred to it as a “forum” — though others will recognise it as a glorified WhatsApp group. Submissions and documents can be posted on the case file by the appellant and the DWP. Tribunal members can ask questions online. Unlike an oral hearing, the parties and tribunal members won’t need to be in the same place. Unlike a video hearing, they won’t need to take part at the same time.’
So far, so rational. But, the backdrop to these reforms is that social security appeals are a particularly troubled area of tribunal adjudication. The latest official figures available are for the last quarter of 2018. This reported that ‘80% of disposals were cleared at hearing with a 70% overturn rate Of the 51,300 disposals in October to December 2018, 80% were cleared at a hearing and of these, 70% had the initial decision revised in favour of the claimant (up from 65% in the same period in 2017) … This overturn rate varied by benefit type, with ESA [Education and Support Allowance] at 74%, PIP [Personal Independence Payment] 73%, Disability Living Allowance 66% and Universal Credit 58%. ESA and PIP have driven the overall increase in the overturn rate, rising five and four percentage points respectively on October to December 2017.’ An appeal success rate for a government department of around 30 per cent suggests inadequate administration – and that has been the longstanding allegation of groups supporting claimants. It should be remembered that all these cases were first take through a process of ‘mandatory reconsideration’ by the Department. In these circumstances, the sensitivity of the tribunals to the likelihood of underlying administrative failures will be crucial.
The Public Law Project has been a source of high quality analysis on the adjudication system. In January, it submitted detailed concerns to a Home of Commons Justice Committee Inquiry: ‘One specific example of a process concern … is how, in the recently announced next phase of digitalisation in the Social Security Tribunal, it became apparent that this included the implementation of a ‘preliminary view’ stage. This was announced at one of the HMCTS ‘Roadshow’ events in Exeter on 27th February 2019. On analysis of the contents of the slides from the roadshow event, the following concerns are noted in relation to the model proposed for digital ‘preliminary views’ for Personal Independence Payment appeals:
- There is no breakdown of points awarded in the body of the tribunal’s preliminary view, which makes it hard for an appellant to fully assess and judge whether to accept the preliminary view or proceed with a hearing.
- It is not clear how representations or legal arguments feature in this system, which appears to only be concerned with obtaining further evidence.
- There is nothing about appeal rights in the screens about ‘accepting the tribunal’s view’ – indeed, appellants are told that they will not be able to change their mind.
- It is not clear how, if at all, a representative would be able to be actively involved in this system.
- It is not clear how much weight the panel for a live hearing would have to give to the preliminary view, if any – especially since the appellant has to explain why they want to proceed to a hearing.’
All these points could be met in upgraded versions of the project. But, they indicate how tribunals face both a trap and an opportunity in their proposals to digitalise proceedings and to introduce their own form of early neutral evaluation. They must operate to a considerably higher standard both in terms of adjudication and transparency than the Department whose decisions they are considering. The great danger is that they will be drawn down to Departmental standards that currently lead it to lose most of its appeals. On the other hand, the opportunity lies in being able to impose open methods of adjudication which help all parties fairly to present their case – which will be particularly useful to appellants – and to allow appellants to proceed without having to go to a hearing (overall, probably an advantage as long as the option to do so remains). But, success will require real commitment to bettering the quality of the administering department; a real commitment to appellants; and an imaginative attention to detail. If the Tribunals led by Sir Ernest can deliver these then they would be an enormous success. Fail and the standard of social security adjudication could fall even further. And, what is more, the integrity of the courts and tribunal system would also potentially be contaminated by the failures of the DWP.