Tribunal Procedure Committee - First-tier Tribunal (Social Entitlement Chamber) Rules 2008
Response by Thompsons Solicitors - July 2008
Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.
The firm participates regularly in government consultations on legislative issues.
Thompsons has considerable expertise before the Criminal Injury Compensation Appeal Panel, the Social Security Appeal and the Medical Appeal Tribunals.
The firm handles around 1,000 CICA claims a year on behalf of people who are victims of crimes of violence in the course of their work. The firm deals with around 300 applications for review of CICA decisions, of which approximately 100 go to Appeal.
Thompsons represents clients in appeals to the SSATs, particularly in relation to Industrial Injury Benefits claims, and to the MAT when a client’s level of entitlement is in dispute.
Our comments on the proposed rules apply equally (where applicable) to CICA, SSATS and MATS claims.
The proposed First-tier and Upper-tier Tribunals
The stated objective of the creation of the First and Upper tier tribunals is to have a “more structured tribunal process” in place by November 2008.
Thompsons is concerned at the pace of this proposed reform. The existing Tribunals have acquired significant expertise and the haste with which this restructuring is planned to take place risks losing that vital knowledge.
Many of the proposed rule changes are draconian sanctions to be imposed on individuals, many of whom will have no legal representation. Where there are welcome proposals, these are too often countered by contradictory and damaging ones.
All the proposals represent increased complexity rather than simplicity. Unrepresented applicants will struggle to comprehend and comply with the requirements which will require lengthy guidance.
This is potentially very damaging to applicants and to access to justice.
The Committee’s introduction to the consultation states that the First-tier and Upper Tribunal will be organised into a number of chambers and that two chambers of the First-tier and one chamber of the Upper Tribunal will be established first, with others to follow.
The role and functions of the two chambers in the First-tier is not clear. Clarification of and further detail about their role and function is necessary.
The negative impact of certain rules is exacerbated by others. Some of the specific rules which cause us concern are:
Power to Delegate and medical examinations: Rules 3, 24 (2) and 25
Rule 3 gives the Tribunal the power to delegate to “appointed” staff. It is unclear whether these in reality would be existing experienced personnel of a particular tribunal - the CICAP for example - brought under the umbrella of the First-tier tribunal.
It would be a retrograde step to lose the considerable expertise in handling appeals amassed by the existing personnel. Should individuals’ claims be delegated to staff who lack expertise and training in the appropriate tribunal and the extensive concurrent and previous background knowledge of having worked in associated fields of work, it would lead to both delay and confusion.
Rule 24 (2) states that an “appropriate member of the Tribunal may make a medical examination of the appellant…”. It is not clear what the definition of an “appropriate” member is or from where these persons are to be drawn. Our concern is that taken together with the power to delegate enshrined in Rule 3, that rule 24 (2) may have very damaging consequences if examination is by less experienced persons.
Will the person examining have the expertise and be under a duty to request a medical or other technical specialist opinion / report from an appropriate expert?
Thompsons fears that, in the absence of appropriate expertise and the duty to request other reports, we will see again the shame inflicted on the Omagh bomb victims where female victims were required to show their scarring and injuries to the tribunal members rather than photos being used.
The victims’ concerns about this led to the inquiry conducted by Professor Greers, whose Report on the Review of the Practice of Viewing Scarring in Criminal Injury compensation Cases, published in October 2003, summarised how things can go wrong. It is in the government’s hands in their review to avoid a similar experience for the victims of criminal injury.
Rule 25 (4) deals with medical examinations being carried out by a “health care professional approved by the Secretary of State”. There is no reference to that individual’s qualification. There is not even a stipulation that they are a doctor and there is no indication of how an individual is approved by the Secretary of State.
At a recent MAT client of Thompsons, the doctor engaged by the benefits department did not have the appropriate expertise to accurately assess our client’s injury. In spite of this, he took it upon himself to disagree with a medical report from a neurosurgeon despite it not being his area of expertise. Our client was later advised by the benefits department itself to apply to have the decision set aside.
The Tribunal rules need to provide clear criteria for how a health care professional becomes approved by the Secretary of State and what the minimum standards are for them doing so. This is the only way to avoid the very real danger of health care professionals making determinations as to an applicant’s medical condition without having the appropriate qualifications or experience.
Power to award costs and Evidence and submissions: Rules 9 and 20
Rule 9 makes something of a mockery of Rule 20 Evidence and Submissions.
Rule 9 prohibits the tribunal making an order for costs and yet Rule 20 (1) states that the Tribunal may give directions as to, for example, issues on which it requires evidence and whether the parties are permitted to provide expert evidence.
If Rule 9 prohibits costs awards, who will pay for expert evidence, such as a medical report, that the Tribunal may exercise its right under Rule 20 to request an applicant to get?
Medical reports are always necessary and are sought by the CICA and also in matters relevant to SSATs and MATs. Although the CICA writes to the GP or other treating specialist with a pro forma set of questions about the nature of the injuries which is intended to be sufficient to try and identify the relevant tariff award, the responses are often inadequate because the GP is unaware of the need to ‘rank’ multiple injuries in order of seriousness so that they attract the relevant percentage awards under the CICA scheme tariffs.
Even if the GP is aware of the tariff system and the way multiple injuries are ranked, they may not always be able to assess whether, for example, a back strain or a broken arm is the most serious injury. The back strain may have longer term implications for the individual, but this is likely only to be revealed by an expert medical report after detailed examination, x-rays, MRI scans and forensic analysis of medical records.
Simple pro forma reports often do not clarify by how many years an injury has accelerated an existing condition or by what percentage the existing condition has been made worse or exacerbated.
If the Tribunal gives a direction that the applicant or their representative gets another medical report to assist the Tribunal to fairly assess and determine the claim, then the tribunal should pay for this, just as it would if it had to get the report itself.
Thompsons wonders whether and how an unrepresented applicant is going to practically and logistically get a report and afford to pay for it. This when, coupled with the strike out powers discussed below, will, we believe, lead to unfairness and miscarriages of justice.
The existing situation, that the Tribunal pays all or a contribution of these costs if it gives permission for an applicant to get a medical report, is sensible and necessary and should remain.
Without those provisions, applicants may be unable to afford to obtain the medical evidence necessary to support their claim. They may not have the knowledge or administrative skills to organise the commissioning of such evidence.
This contradicts the over-riding objective in Rule 2 that cases be dealt with justly and fairly.
Rule 9 needs to be amended to enable the Tribunal to contribute to costs under Rule 20.
Directions, failure to comply and strike out powers: Rules 5, 6 and 7
Rule 5 (5) allows the Tribunal to strike out when there has been a failure by a party to comply with a direction. This will unfairly penalise unrepresented claimants, of which there are many to the CICAP, SSATS and MATS. They will struggle with the legal terminology used in these directions.
It may also expose cash strapped charitable organisations who assist claimants to recriminations and negligence actions if there is a loss of rights due to non compliance.
Rule 6 and 7 (3) give the tribunal wide powers to strike out. Yet such powers already exist under the CICA scheme itself where there is a failure to co-operate. It is unnecessary to include further powers in these new rules, especially in such draconian terms.
What is being proposed appears similar to civil court proceedings but there all the parties legally represented and “unless orders” are made which provide for the striking out of the application UNLESS a specified step is taken by a given date.
“Unless” style orders should be used sparingly in social entitlement tribunals and only where there has been a specific and deliberate failure by the applicant to co-operate with the tribunal. These tribunals and systems are meant to be user friendly and were intended for non legally represented applicants. The overriding objective of fairness must be maintained.
Evidence and submissions: Rule 20
Rule 20(2)(a) is a welcome new rule that will allow evidence to be admitted whether or not it would be admitted in a civil trial. The lack of formality is in keeping with the overriding objective stated under these rules.
However, 20(c) unnecessarily restricts the evidence a party can submit. If an applicant wants to submit a medical report, for example, in order to support their case, they should be free to do so.
Rule 20(2)(b) also gives wide powers to exclude evidence that would previously have been admissible just because it may not, for example, be in the correct form or received within the time limit. This is a more draconian rule than currently exists and conflicts with 20(2)(a), which supports the over-riding objective of flexibility to achieve justice and a fair outcome.
The fair and correct result should be the priority of the Tribunal and not whether an often unrepresented applicant has missed a deadline or evidence has been submitted in an incorrect format. The tribunal should always have a discretion and duty to take into account all relevant material.
20(2)(a) gives the tribunal the right to exclude evidence and material on entirely nit-picking grounds.
Rule 20(2)(b) i) to iii) again is contrary to the overriding objective of dealing with cases fairly and justly. An applicant has to be able to put their case. Unrepresented applicants in particular will struggle to comply with a direction that they may not understand.
Summoning witnesses, production of documents, withholding documents and information: Rules 21 and 22
Thompsons welcomes Rule 21 for providing the power to compel witnesses to attend.
But Rule 22 immediately creates problems and conflicts. It misunderstands the desire, certainly of representatives, to protect clients from unnecessary harm arising out of the process but on the other hand to provide information to their clients.
Representatives can exercise judgment in their own right as to information that may cause an individual harm. This rule fails to strike the necessary clear balance between data protection and freedom of information issues.
Individuals have a right to know what is being said about them. They are entitled to know, for example, why their claim has been rejected. In any fair judicial or quasi judicial process, the applicants involved must be entitled to see documents upon decisions are based.
Where an applicant is represented, requiring their legal representative to withhold information from them automatically creates a conflict of interest which will damage the professional relationship.
The tribunal must rely on the integrity and common sense of a legal or other professional representative in presenting difficult information to a client in the safest way possible and to exercise judgment as to whether the presentation of all the information in a certain way could be harmful.
While Thompsons would welcome guidelines that assist with dealing with vulnerable people who may be harmed by certain information (an adult /child abuse victim for example who may not remember in detail what happened to them), it must be for the expert legal or professional representative to ultimately decide how best to deal with that information.
Thompsons asks for a definition of “serious harm” referred to in 22(1).
Appeals and reviews: Rules 36 and 37
Rules 36 and 37 deal with the delivery of written reasons after all decisions on initial application, review and appeal. However, the tribunal should also be obliged to provide all supporting documents upon which the tribunal has based its decisions.
An applicant needs to see these documents in order to understand how the tribunal has reached its decisions.
It is understood that photocopying costs may prevent the tribunal from providing these documents automatically and routinely. But to deny the applicant their right to see these documents on costs grounds is against the over-riding principle of justice.
Withdrawal and dismissal by consent: Rule 19
Rule 19(2) states that in criminal injury compensation cases, the applicant can only withdraw their application with the tribunal’s consent.
A draconian rule that prevents withdrawal without the Tribunal’s permission is not appropriate.
It is not clear what this rule is intended to do. Thompsons presumes that it is an attempt to prevent fraudulent cases being withdrawn to avoid prosecution. However, withdrawing a fraudulent claim does not prevent the matter being referred to the police and the individual being prosecuted for fraud if the authorities consider it appropriate.
Fraudulent claims are to be deplored and leniency is damaging for the scheme and genuine victims. However, if a potential fraudster relents and wishes to withdraw, they should be able to do so.
A change of heart should not be seen in an entirely negative way. Some people may decide that they have had enough of the process particularly if it is becoming irksome, frustrating and delayed. People can choose to withdraw for any reason and it should not be necessary in all situations to only be able to do so by giving reasons and justification.
Rule 19(2) may however be intended to deal with scenarios involving vulnerable applicants – either to protect them from pressure from others to withdraw a claim or to prevent them withdrawing because they do not feel they can continue.
It would be contrary to the interests of such a person for the application to be allowed to be withdrawn and the tribunal would be right to decline to allow it to be.
Case management powers: Rule 4
Rule 4(2)(b) and (n) spoil an otherwise good rule 4. The power to reduce time limits in (b) in individual cases will create uncertainty and lead to time limits being missed.
The power to dismiss a case or part of it in (n) is not acceptable. Dismissing a case because it appears that there is no reasonable prospect of success requires great caution. How will “no reasonable chance” be defined? It may be that the necessary evidence is not available but there is a risk here that this could discriminate against unrepresented claimants who will not necessarily have all the evidence or will not have put it in entirely erudite terms.
Time limits: Rules 12 and 13
We agree with Rules 12 and 13 on time limits. However, 13(c) should make specific provision for delivery by email to a dedicated email address. Fax delivery should also be via a dedicated fax number.
Responding: Rule 17
Rule 17(3)(a) introduces a requirement for the respondent and applicant to have to continually send back to the Tribunal a written copy of the decision they are appealing against. This is unnecessary.
The Tribunal will already have access to the decision and would need to refer to it when considering the appeal. It should not be a responsibility of an applicant to provide the Tribunal with it.
It is inevitable that applicants, particularly unrepresented ones, will omit to include a copy of the decision with their appeal and this rule theoretically will simply provide the Tribunal with an opportunity to strike the appeal out. This is contrary to the over-riding principle of fairness and justice.
The requirement will also be costly and wasteful.
After the response: Rule 18
Rule 18(1) sets a time limit of 14 days for applicants to make representations. This is far too short. It is not sufficient time for them to consider their response to the questions put in 18(2) and far too short to obtain legal representation with perhaps a consequent need to gather further information.
Thompsons suggests two months would be a more realistic and fair minimum time limit but three months would be ideal.
Rule 27(3)(a) allows a matter to be determined without a hearing, though this is something that the CICAP could do anyway. Rule 27(4) presents the risk that a claim will be knocked out and the applicant will not have the right of appeal. Oral representations should at least be allowed.
Public and private hearings: Rule 29
We welcome Rule 29(2).
Rule 32(2) allows for final determinations to be made orally. This is wrong. Final determinations should always be made in writing with supporting documents and it should not be for the applicant to ask for a written determination. This is a basic entitlement of any fair judicial and quasi judicial process.
If an applicant is only given an oral determination there is a danger that they will not understand or remember it sufficiently well to be able to seek advice upon the decision. This would be against the overriding objective in Rule 2 to deal with the matter fairly and justly.