Deregulation Bill

Lord Sharkey Excerpts

Tuesday 11th November 2014 Grand Committee

Debate on whether Clause 61 should stand part of the Bill.

[Lord Sharkey (LD)]

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.

--- Later in debate ---

[Lord Wallace of Tankerness]

The points that the noble Lord raises are fair ones. He asks what happens if the Senior President of Tribunals has problems reported to him. We have indicated that there is now a process by which the department, through the drop-down menu scheme, does get regular indications of where there are problems, so they can be addressed. As I also indicated in my remarks, if the senior president thought that the DWP was systematically ignoring all of them, or if he thought that he had written a letter to the department and the department was still ignoring it and was not making it public, there is a separate statutory power available to him in paragraph 13 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 to lay representations before Parliament—before noble Lords and in the other place—of any,

“matters that appear to him to be matters of importance relating … to the administration of justice by tribunals”.

If he thought that there were systemic problems that were not being addressed and that his representations, or those from others within the tribunal system, were being routinely ignored, there is quite an important provision there which allows him to, as it were, leapfrog the Government and come directly to Parliament.

The noble Lord’s second question was about the £20,000 of judicial time that can be freed up. I am sure that it is not the only thing that can be done and that it does not come at the expense of other things. I am sure that there are many ways in which better decision-making through the mandatory reconsideration process should, hopefully, reduce the number of cases that are going forward and therefore allow such cases as are put forward to be dealt with more speedily. I hope that reassures the noble Lord.

[Lord Sharkey]

Obviously the opinion of the Senior President of Tribunals is very important and has a direct bearing on the debate today. However, because it is important—the Minister has prayed it in aid a couple of times—it is slightly surprising that this opinion did not appear in the Government’s response to the joint committee’s report. I wonder whether the Minister is able to tell me when the Senior President of Tribunals was asked for his opinion on repeal and on the workload of the other tribunal presidents.

[Lord Wallace of Tankerness]

If I can I will certainly answer my noble friend’s question. I did ask previously whether it was before we included this clause in the Bill and was advised that that was the case. However, in February 2014, when he published his report, he did say that this particular provision that we are debating was of practical value. Although the Government maybe did not pray that in aid in response to the joint committee, the president did put on the record that he did not think there was much practical value when he reported in February 2014.