Unappealing tribunals and coronavirus?

The administration of justice, in the shape of the determination of benefit and tax credit appeals, is carrying on during the coronavirus pandemic, but with a number of changes to procedures.

Submitting appeals

As many advisers currently only have contact with the claimants they are assisting remotely, then it may be in some cases more difficult to arrange for an appeal to be submitted in time. While appeals to the First-tier Tribunal for employment and support allowance, universal credit and personal independence payment can now be submitted online (gov.uk/appeal-benefit-decision/submit-appeal), that is not an option for other benefits.

The Acting Chamber President of the Social Entitlement Chamber, Judge Mary Clarke, confirmed to CPAG in a letter dated 7 May 2020 that:

‘In very exceptional circumstances (ie, when no other facility is available), it is possible for an appellant or representative to request to lodge an appeal via email. I am sure that you will realise that our systems are not designed to received appeals yet in this form in very large numbers but it has been agreed that the facility can be offered if it is needed […].’

If emailing an appeal, it will be important when doing so to explain why the appeal cannot be made another way.

Missing papers

Under rule 24(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘the TP Rules’), the decision maker issues the initial response directly to the claimant and representative; HM Courts and Tribunals Service (HMCTS) then issues further documents about the appeal to the parties. Advisers should explain clearly any postal difficulties they have if they do not have documents or are requesting that they be emailed.

Sifting of appeals at HMCTS

From 10 April 2020, the TP Rules have been changed by the insertion of a new rule 5A.1 This rule allows a tribunal to decide an appeal without a hearing, even where one of the parties objects, providing the matter is urgent, it is not reasonably practicable for there to be a hearing (including via video or telephone) and it is in the interests of justice to decide the case.

Additionally, because of the COVID-19 restrictions the Senior President of Tribunals issued the General Pilot Practice Direction2 that in turn allowed the President of the Social Entitlement Chamber to issue a Practice Direction that supplements the usual rules about the ‘composition’ of a tribunal.3 The Chamber President has separately issued a guidance note explaining how those two Practice Directions will take effect in relation to appeals.4Together these provide the following.

• A full-time judge looks through all appeals.
• If neither party has asked for a hearing, then the judge will either decide the case on the papers alone or put the case to be decided by a panel with the usual composition.
• If either party asked for a hearing, then the judge will, firstly, decide whether it is highly likely the claimant will win or at least partially win the appeal. If the judge decides that is the case and thinks the case can be decided fairly without a hearing, then the judge can decide the case her/himself and issue a ‘provisional decision’ to the parties. Alternatively, the judge can direct that the case should be listed for paper determination (and determine a different composition from usual if the judge considers that not to do so would mean the appeal could not be dealt with or would cause unacceptable delay).
• If the judge considers that the appeal would not succeed on paper consideration, s/he should arrange for the appeal to be dealt with via a telephone hearing, or make directions for further evidence. When this new evidence is received, the judge can then reconsider whether the appeal could now be allowed on the papers as above.

Bear the following in mind.

• It will be more important than ever to set out a clear and evidenced case on the papers to maximise the chances of success on paper.
• If one of the parties does not accept a provisional decision, or if the judge has, for some reason, decided the proposed provisional decision was mistaken, then the decision can be revised or a hearing directed. The final decision in those cases could be less generous than the provisional decision.
• Only those cases where a judge has considered the case cannot obviously succeed on the papers should end up with a telephone hearing. Advisers should consider carefully what it is about the case as currently presented on the papers that is weak.

Representatives participating in phone hearings

Worryingly, at least in some cases, there appear to be problems in that the teleconferencing service HMCTS uses cannot handle more than five participants in a call. With a tribunal panel of three, the clerk and the claimant all the slots are full. Where there is a representative, that is most unsatisfactory and a tribunal that proceeded on this basis and then dismissed an appeal may well have erred in law (rule 11 of the TP Rules gives the claimant a right to be represented). It is one thing for a tribunal to proceed in circumstances where a representative is unavailable but quite another to allow technical issues to cause a representative who wants to act for a claimant to be excluded from a hearing.

Many advisers are concerned that a ‘telephone hearing’ is no substitute for a face-to-face hearing. The claimant’s right to a ‘hearing’ (no longer absolute, since the introduction of rule 5A – see above) is a right that is met by a telephone hearing (rule 1 of the TP Rules). That does not mean that a telephone hearing will always allow the case to be dealt with fairly – and there is of course the general duty of tribunals to apply the rules in a way which achieves fairness (rule 2). However, a case as to why a telephone hearing would be unfair needs to be set out: a longer delay in arranging a different form of hearing is a factor weighing in favour of a telephone hearing. The rules expressly envisage video hearings as well. CPAG is not aware of these being conducted by tribunals. If a representative felt that would be a better format, then it could be requested, but again only with clear explanation.

Urgent cases

Advisers will need to consider carefully if a case is urgent and whether a request for expedition should be made. This requires setting out why the particular case is more urgent than other pending cases. Where a claimant is destitute unless the appeal succeeds, then clearly there is potential for expedition. Further discussion of expedition can be found in the article ‘How to expedite a social security appeal’ (Bulletin 235, August 2013).5

Please be aware that welfare rights law and guidance change frequently. Older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.