My Lords, I support my noble friend in his amendments. Timely and efficient appeals systems are always necessary and in these circumstances they are essential. The social security appeals system is under strain and that strain will be intensified as a result of what claimants will now be experiencing. What are those difficulties? The number of social security cases going to tribunals in general were 418,000 in 2010-11, 70% higher than just two years previously, while, as far as I can tell, this year’s statistics are up a further 14% or so, and appeals against sanctions as such are only a modest proportion of these.
Social security appeals represent half of all tribunal cases. The tribunals are receiving social security cases faster than they can clear them, so that although half of all cases take 14 weeks or less, one-quarter take between three and six months to be heard and 10% take between six months and a year, so only half of those cases meet the key performance indicator, the KPI, of 16 weeks laid down by the department. During that time—that extra long waiting period already experienced—claimants’ circumstances change, they lose oral evidence based on memory and above all they are left without any benefit, some of them for months, and suffer real hardship. Timeliness and efficiency, therefore, are key.
We need the Government to tell us what problems they will meet in unleashing the stockpile of sanctions cases into a system already under strain, with the inevitable appeals that will follow, and how they propose to resolve them. How many cases are currently outstanding? Do the Government have the capacity to increase sitting days beyond the 80,000 or so required at the moment to deal with the full backlog? How long does the Minister expect claimants to have to wait? How many, and what percentage, will be over the three-month KPI target?
The second issue is not about numbers but about verdicts and outcomes. Of those cases going to appeal, some 40% overall are won by the claimant. Former presidents’ reports on this are, frankly, an excoriating indictment of the DWP decision-making process and their findings over the years are confirmed by the recent November 2012 report analysing appeals. The main reason why appellants win is that they produce additional oral evidence not previously taken into account by DWP. However, the reports and the research have noted that tribunal judges were continually frustrated by the behaviour of decision-makers within DWP. In the latest statistics, about one-third of local decisions on sanctions were reconsidered by the decision-maker and, of those, half were in favour of the claimant. Of those not accepted by the decision-maker, just over one-third are going on to tribunal.
Why are those tribunal judges so continuously frustrated by decision-makers’ efforts within DWP? First, we are told by tribunal judges that decision-makers choose not to accept additional, usually oral, evidence without having any good reason for refusing it. That is because they have often failed properly to engage with the claimant. Something like 65% of all appeals come into this category. Secondly, there is little evidence that decision-makers reconsider cases at all. They were, the report said, reluctant to do so and did not bother to explore any discrepancies in evidence or to follow up requests for further information.
Thirdly, decision-makers did not weigh medical evidence at all appropriately, especially for mental health claimants, nor did they seek further information when dealing with a progressive condition. That applied to something like 15% of the appeals that went to tribunal. Most damning of all, they often made different decisions from the tribunal decision-makers on the basis of the same evidence presented to the tribunal, which meant that decision-makers got it wrong, according to law, in 30% of the cases lost by DWP. In other words, had the decision-makers within DWP done their job properly, these reports suggest that DWP would either not have had the appeal because the decision-maker would have rightly reversed the original decision, or at appeal the DWP would have won most of the appeals that it lost because the tribunals would have accepted that all the appropriate evidence had been properly assessed. That is a pretty searing judgment of the current system.
What are the implications for those caught by this Bill? The problem is clearly threefold. First, local offices are making flawed decisions, including on sanctions, and that is before we get on to the disgraceful area of targets. Secondly, decision-makers are not doing a proper job reviewing those local office decisions and are endorsing flawed decisions that they should have corrected. Thirdly, the tribunal service cannot keep up with the increased number of appeals coming its way. Of course, this will get far worse now that legal advice and support are withdrawn and, as a result and as we shall argue later, tribunal cases will take twice as long to process.
Will the Minister reduce the pressure on tribunals and better support claimants by requiring decision-makers to do a more conscientious review of the original decisions? It is clear that at the moment too many of them are not doing a professional job—bluntly, they need to brought face to face with the evidence. Are decision-makers informed of the tribunal’s findings and is their performance reviewed when their decisions are overturned by the tribunal? Could that perhaps be a KPI? What guidance and additional training will be made available to decision-makers to improve their performance? If the Minister is going to review any targets, could we please have a new performance indicator, a really useful target that reduces the number of successful appeals by claimants from the current 40% or so down to, say, 20% or even 15%? That would really transform decision-makers’ behaviour.
Given the trivial basis for sanctioning claimants uncovered by the Guardian, many of whom we can expect to appeal, thus increasing the backlog before
eventually being overturned at appeal, as many of them will be, will the Minister ensure that cases going to appeal are pre-reviewed and re-reviewed by decision-makers to improve their own poor-quality decision-making? Will he also ensure that the number of tribunal sitting days is appropriately increased to meet the target of within 16 weeks, so that they are timely, and that—I am trespassing into a following amendment—sufficient advice is given to claimants, as my noble friend Lord Bach will argue, to reduce the number of unsuccessful appeals, given the delays? I hope that the Minister will be able to answer these questions and those of my noble friend tonight and in the process perhaps allay our very real concern for these claimants who are going to be caught up in an appeal system that is increasingly flawed and failing.