My Lords, Section 15A(2) and (3) of the Social Security Act 1998 require the Senior President of Tribunals to publish an annual report on the standards of decision-making in the making of certain decisions of the Secretary of State against which an appeal lies to the First-tier Tribunal. The Joint Committee on the draft Bill, of which I was a member, noted that most cases presented to the First-tier Tribunal relate to the employment and support allowance and the disability allowance, which of course are being replaced by universal credit and personal independence payments under the Welfare Reform Act 2012.
The committee also noted that concerns had been raised about the timing of this repeal, which comes at a time of very significant changes to the benefits system and an increase in the number of appeals. It also comes at a time when almost half the appeals against DWP rulings have been successful. It is not surprising that the Commons Justice Committee pointed out that the repeal,
“comes against a background of disapprobatory reports published by the Senior President of Tribunals on the standards achieved by the Department of Work and Pensions and … Atos”.
The Joint Committee heard evidence that the transparency and accessibility of the current system, and the fact that it offered an acceptable route for the judiciary to comment, were arguments to retain the duty to report. The Government, in evidence, argued that the report was unnecessary because there were alternative methods for providing feedback. It was also suggested that the report was expensive to produce.
The Government expanded on this in their formal January 2014 response to the Joint Committee’s report. In four short paragraphs in the formal response, the Government made four points. First, they asserted that they had mitigated the risks involved in repeal at a time of significant changes to the benefits system and a rise in the number of appeals. This was simply an assertion; no evidence was offered in support. I would be grateful if the Minister would outline the evidence that supports that assertion.
Secondly, the Government claimed that it was important, during the introduction of benefit appeals, that feedback was as timely and useful as could be, and new initiatives such as the introduction of summary reasons reflected this. It is important to note that this is not an argument in favour of repealing the duty to report annually; it is an argument for additional reporting, one that is in fact promoted in the senior president’s annual reports.
Thirdly, the Government assert that the removal of the duty to report on DWP decision-making standards is not an attempt to remove transparency or accountability in the assessment of decision-making standards. Rather, it represents an attempt to reform the way in which decision-makers receive feedback from the tribunal, to ensure that the feedback is as useful as possible.
Again, this is not an argument in favour of repeal of the duty to report annually. If anything, it is an argument in favour of more frequent data-sharing, something the senior president’s reports have been in favour of and have arguably, even, brought about. More importantly, even if the proposed repeal is not an attempt to remove transparency or accountability, that would certainly be its effect.
The Government’s fourth point was that statistics, including volume and overturn rates, would continue to be published quarterly. These statistics would not, of course, benefit from commentary or analysis from the Senior President of Tribunals. They would simply be data.
Those were the four points advanced by the Government in response to the Joint Committee’s report. They make no mention of cost. However, cost was a reason for repeal mentioned in evidence the Government gave to the Joint Committee. It was also given as the first reason for repeal by Mr Vara in a Commons Written Answer to Mr Timms. Mr Vara said:
“The duty is to be repealed because of the high cost of producing the report and because of developments of alternative methods of providing feedback to the DWP which make the report unnecessary”.—[Official Report, Commons, col. 900W, 18/10/13.]
He goes on to give only one example of these alternative methods: the introduction of summary reasons for decisions in employment support allowance cases. This means that judges explain via one line in a drop-down menu box why a decision has been overturned on appeal. Mr Vara claimed that this provided the DWP with an effective feedback mechanism. He also says that he is not aware of the DWP receiving representations on the removal of the duty. That last point is perhaps not very surprising: there was no formal consultation on this clause and no impact assessment. When the
Minister responds, I would be grateful if he could say whether the senior president and the other tribunal presidents were consulted about the repeal, and if they were, what the response was.
However, I return to the issue of cost, which was advanced by Mr Vara as the first reason for repeal and by the Government in their evidence to the Joint Committee. Cost was not mentioned in the Government’s response to the Joint Committee’s report so it is reasonable to ask if the Government still think that the cost of producing the annual report is a reason for its repeal.
In a Written Question tabled 10 days ago I asked the Government to specify the actual cost of these reports. The Minister’s reply said:
“Preparation of the report costs approximately £20,000 in judicial time each year; however this is within their salaried hours, so there is no additional cost beyond their salary. There are some associated printing costs, but records of these are not held centrally”.—[Official Report, col. WA 273, 06/11/14.]
In the light of that answer, perhaps the Minister can say whether the Government still consider the cost of the annual report to be an argument for repeal, and if they do—given the figures—why they do.
The second broad argument the Government use for repeal is that there are alternative methods for providing feedback. Given the enormous increase in appeals over social security and child support, this need for alternative methods of feedback is hardly surprising. In 2011-12, there were 371,000 such cases. In 2012-13, there were 507,000 such cases—a 37% increase. In the first six months of 2013-14, from April to September, there were 290,000 appeals. The sheer volume of cases demands that the DWP does not wait for a year to find out why its decisions have been overturned.
In fact, in the latest Senior President of Tribunals’ annual report, published in February this year, the author notes that a scheme was introduced in July 2012 whereby the tribunal would notify the department, in each case where it overturned a departmental decision, of the principal factors leading the tribunal to allow the claimant’s appeal. That is the drop-down menu box, one-line summary that Mr Vara referred to as an effective feedback mechanism. However, after running that drop-down menu approach for a year, the DWP concluded that a more narrative explanation by the tribunal would afford the department greater insight into any shortcomings in the process of departmental decision-making. In other words, narrative was valuable. Narrative is, of course, provided in the annual report.
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In any event, it seems clear that the Government are confusing the need for quicker and more narrative feedback with the real purpose of an annual report. The annual report has functions other than the provision of data. Critically, it is a public and transparent document. It places in the public domain a professional assessment of DWP decision-making in the hundreds of thousands of cases that come before the tribunals. Correspondence between the tribunals and the DWP, no matter how timely or even how narrative, is not a substitute for a public and transparent assessment of DWP decision-making in the critical areas. Such correspondence,
data supply and narratives are clearly necessary, but they are not the same thing as an open and public report. They do not serve the same purpose or have the same utility.
I am conscious that our debate on this issue may seem rather dry and abstract, and an observer may be forgiven for wondering whether any of this actually matters. The answer is that it matters very much indeed. The DWP decisions and the tribunal judgments affect the lives of some of the most hard-pressed and disadvantaged people in our society. Those decisions have profoundly life-changing effects. Our record with ATOS, for example, in getting these decisions right is not grounds for confidence in the processes of decision-making.
There will probably be getting on for 600,000 appeals this year. That is 600,000 families likely to be affected by the decisions taken by the DWP and reviewed by the tribunal. We need to know how well these decisions are being taken, we need that review to be conducted by people outside the DWP, and we need it to be in the public domain and available for debate. We need the senior president to continue his annual report on DWP and other decision-making. The annual report is not a regulatory burden. It costs nothing. It gets in the way of nothing and it helps us make better decisions—decisions that profoundly affect the lives of hundreds of thousands of people. Clause 61 should not be part of the Bill and I very much hope that the Minister will agree to reconsider.