Social Security and Child Support (Decisions and Appeals) Regulations 1999

CPAG opposed many of the changes to social security and child support decision making and appeals procedures when the Social Security Bill was going through Parliament. We understand the concern about the Government’s concerns about waiting times for appeals. It remains our view, however, that a concerted effort should have been made to improve the quality of first tier decisions and explanations staff are able to give to claimants. Once this had been done, a proper evaluation could have been made about whether changes to the appeals system were necessary.

CPAG has done a considerable amount of training for welfare rights advisers on the decision making and appeals changes. The concerns expressed below reflect the feedback we have had from advisers. We remain concerned that many of the changes will make it more difficult for claimants to secure their rights of appeal. Our main concerns are around changes to the composition of tribunals, reduced time limits to appeal and wide powers to ‘strike out.’

Tribunal composition

We are concerned that the change to tribunal composition will be detrimental to the quality of service and the decisions people receive. In particular, we believe child support cases should have two members, a man and a woman. This is particularly the important where the appeal involves a sensitive issue such as whether a person is appealing on the grounds that they have ‘good cause’ for not co-operating with the Child Support Agency. A parent with care who has experienced domestic violence may not feel happy discussing this with a male tribunal chair. The same applies to sensitive social security appeals on issues such as cohabitation.

Time limits

The time limit for challenging a decision or appealing is reduced to one month. CPAG remains of the view that this time limit is too short. People often do not seek advice immediately. When they do, there may be a delay in getting an appointment (some advice centres report as much as six weeks). Because of such practical difficulties, we believe the time limit is too short. In debates when the Social Security Bill was going through Parliament, the Government accepted that there was a need to reconsider the circumstances in which a late appeal should be allowed. While this has been done, the rules are not much more generous. The reasons for lateness still have to be ‘wholly exceptional.’ We are concerned that good reasons for lateness such as ill health, or a need to seek advice will not count as ‘wholly exceptional.’

CPAG is concerned also that the time limit to seek leave to appeal to the social security commissioners is to be reduced to one month. Appeals to the commissioners can only be made on a point of law. Research into complex legal issues is needed. In feedback to CPAG many welfare rights advisers have expressed concern about their ability to work within the new time limits in general but particularly in appeals to the commissioners.

Striking out

We are concerned that the wide powers to strike out appeals (regulation 47) will result in people losing their rights of appeal. For example, an appeal can be struck out if it is considered to be misconceived (defined as ‘frivolous or vexatious’ or ‘obviously unsustainable and has no prospect of success.’) CPAG remains concerned that a case which appeals hopeless on the papers may not appear so to a tribunal able to ask the correct questions of the claimant and help them make their case. The operation of this provision must be carefully monitored.

Oral hearings

In addition an appeal can be struck out if a person fails to respond to a direction, for example, if they do not reply to a request whether they want an oral hearing.

Prior to October 1996, there was a presumption in favour of an oral hearing In October 1996, the regulations were changed so that the claimant had to opt for an oral hearing. If s/he did not do so, the appeal was heard on the papers. CPAG opposed this change. An appeal heard on the papers has a far lower rate of success than oral hearings (12% compared to 65% where both representative and claimant attend).

The current regulations take this further. If a claimant does not reply within 14 days to the request for an oral hearing, their appeal may be struck out. CPAG is very concerned that some people will fail to respond within the time limits for a good reason. For example, a person might be on holiday or sick or might need help reading their post. While they can apply for reinstatement, this might not be accepted and there is no right of appeal against the refusal.

CPAG is strongly opposed to this. We can see no justification for requiring a response within such a short space of time. Given the much higher chance of success, we believe there should be a presumption in favour of an oral hearing. At the very least, the time limit for responding should be extended, for example, to one month.