HC Deb 26 February 1975 vol 887 cc662-74

11.33 p.m.

Mr. Bryan Gould (Southampton, Test)

Nearly 5 million people in this country depend in whole or in part on supplementary benefit. Under the Ministry of Social Security Act 1966 each claimant is provided with a right of appeal against virtually every decision which concerns his entitlement to benefit. That means that the tribunals which administer those appeals affect many millions of people more directly and more frequently than do courts of law. Those tribunals deal with between 30,000 and 40,000 cases each year, and it is perhaps surprising that until recently the tribunals have attracted very little public attention. Attention has been directed mainly to the position of the claimant and the question whether he should be represented.

A couple of months ago the Child Poverty Action Group produced a report which focused attention not on the claimant but on the tribunal and its rôle, composition and structure. It is my intention tonight to draw the attention of my hon. Friend to that report, but in doing so I may—if permitted—draw upon my own experience over a period of four or five years as a representative of claimants at such tribunals.

The supplementary benefits handbook assures claimants that they have the right of appeal to an independent appeal tribunal. That statement raises and begs the first and perhaps most important question about the operation of these tribunals. Of course it is intended that they should be independent, but I believe that one has less confidence that that is so when one looks into the question further. Take the fact that the composition of the tribunals is virtually in the hands of the Secretary of State for the Department of Health and Social Security, the office facilities provided for the tribunals are those of the Department; very often the rooms in which the appeals are heard are those of the Department; the commission which administers the supplementary benefits scheme has the power to review the decisions of the tribunals, which is like a party in a court case having the power to overrule the court's decision if he does not like it.

But the most important inroad into the tribunals' independence is the rôle of the clerk. The clerk is an employee of the commission. He is seconded from the regional offices of the commission. His training is with the commission. His future career prospects are with the commission. He is therefore in a quite different position from that of the clerk to a magistrates' court. The clerk to a tribunal is identified by many people as associated with one of the parties to the appeal.

The clerk's rôle varies considerably from tribunal to tribunal, but at the least he is there to offer guidance and advice on legal and technical matters. Often he will volunteer that advice himself. He has a rôle to play in keeping the record of proceedings. He often draws up the reasons for a decision. Many people think that he drafts the decision itself. In any case, in every tribunal he is the man who withdraws with the tribunal when it deliberates on what decision it should reach.

Taking into account all these factors it is not surprising that to many claimants Lord Hewart's famous dictum that justice should not only be done but should be seen to be done does not seem to apply.

The rôle of the clerk varies from tribunal to tribunal, that is true, but in many cases his rôle is increased in importance by the second major defect in these tribunals, which is that they are lacking in the expertise, authority and knowledge which would enable them to adjudicate properly in these matters. There is no requirement that the chairman or any other member should be legally qualified, despite the recommendation to the contrary by the Franks Committee. No proper training is provided for members of the tribunal, so in many respects they are unable to deal with the matters that are placed before them. It may be said that that does not matter, but it does, because, like every other scheme provided by statute, there are legal rules. They require interpretation and they give rise to legal problems.

But there is an even more important problem in relation to supplementary benefits, namely, that within the legal framework provided by the statute there are vast areas of discretion—given by statute initially to the commission and secondly to the tribunals. The commission's reaction to that area of discretion is to deal with the question by drawing up detailed rules of practice and policy, which are the rules which guide, in many respects the actions and decisions of the commission's officials. In this respect these rules are not legally binding—they are rules of practice only—but the tribunals, because they lack the necessary expertise, are often unable to distinguish between the requirements of the rules of law, on the one hand, which are binding, and the requirements of the commission's policy, on the other, which are not.

When faced with questions of major importance to individual claimants—questions such as, what is a reasonable rent? who is a householder? for what purposes may an exceptional needs grant be made?—many tribunals are simply unable to exercise the discretion they have because they are unaware that they have it.

In that situation they are forced to turn back and to rely upon the advice given to them initially by the clerk but more frequently by the presenting officer. That officer is a full-time expert professional man who presents the case on behalf of the commission. This means that the tribunal in many cases will opt out of these difficult and complex questions. In many cases it takes refuge in the commonsense attitude of the man in the street and its members say, "We will accept what we are told about law and policy and will make no distinction on these matters. Our rôle is to inquire into the circumstances of the applicant. That approach often leads the tribunal into irrelevant, embarrassing and sometimes offensive inquiries into the personal circumstances of an applicant—and often into quite unsafe, moral and value judgments. In truth, the tribunal judges the merits of the applicant rather than of the applicant's case.

I believe that the adversary system operated by these tribunals works well only if there is some equality between parties appearing before it. That is manifestly not the case in many instances with which tribunals have to deal. On the one hand, there is a professional full-time presenting officer, and on the other hand an often bewildered applicant. In these circumstances it is imperative that the tribunal should be expert enough to maintain a semblance of balance between the parties. It is a serious matter if the tribunal is in a position of inferiority vis-à-vis one of the parties of the appeal.

This lack of expertise means, too, that the tribunal is unable to guarantee the claimant the procedural rights to which he is entitled. The flimsiest of evidence is acceptable, and proper opportunities for cross-examination are not provided.

I wish to refer to one set of proceedings in which I, as a representative, played a small part. The case turned on the question whether the applicant was in full-time or part-time work. We satisfied the tribunal initially that she was part-time by producing a copy of her contract of employment. It turned out later that the commission had decided to review the tribunal's decision. The only way in which we could discover the grounds on which the review had been made was by bringing a further appeal which we did. But to the very minute we sat before the tribunal we had no idea of the case which the applicant had to meet.

It turned out that the commission had received a letter from the woman's employers in which, incidentally, they had said that she was a full-time worker. On the basis of that evidence the commission reviewed the decision. The tribunal, because it lacked authority, expertise and knowledge of procedural safeguards was unable to protect the claimant against unfairness and against being confronted with a decision at the very last moment.

This not only illustrates the problem of procedural difficulties but also points up the bizarre nature of the commission's powers to review a decision, admittedly in specified circumstances. But the aggrieved applicant who is dissatisfied with a bad decision has no such option. He or she has no further recourse by way of ordinary appeal. Unlike the situation in regard to national insurance, there is not a second-tier appeal in matters involving supplementary benefit. The only course of action open to an aggrieved appellant is to bring an action in the High Court for a prerogative order or declaratory judgment. It can he appreciated why so few applicants for supplementary benefit undertake that lengthy, arduous and expensive process. The situation which I have described is serious, and I hope that my hon. Friend will take it seriously.

It seems that potentially millions of people, including some of the poorest and most defenceless in our community, have their rights unnecessarily jeopardised by the defects which I have described. Therefore, I urge my hon. Friend to consider three suggestions for modest but important reforms.

First, the responsibility for appointing members of the tribunal should be taken from the Minister and placed in the hands of an independent department. The Lord Chancellor's Department might be appropriate. That Department would also have responsibility for the staffing of those tribunals.

Secondly, an independent body, possibly the Lord Chancellor's Department, should undertake the task of providing proper training for members of tribunals, who should be trained for the substantive and procedural problems which they are likely to encounter. If that is done properly it may be possible to dispense with the requirement that chairmen should be legally qualified, despite the recommendation of the Franks Committee to the contrary.

Thirdly, a second-tier appeal system should be provided on the national insurance model. That would have a number of advantages. It would provide effective redress against notoriously bad decisions. Since there would be an appeal to a full-time professional expert body, there would be an opportunity, through reporting and precedent-setting, to establish some consistency across the board and to provide some guidance to tribunals, so that standards could be raised.

It is only if those suggestions are pursued that claimants will have available to them the independent, impartial and effective appeal system which the supplementary benefits handbook proclaims and which justice demands.

11.47 p.m.

Mr. Robin F. Cook (Edinburgh, Central)

I congratulate my hon. Friend the Member for Southampton, Test (Mr. Gould) on having chosen this topic for an Adjournment debate, Secondly, I express my gratitude both to my hon. Friend and to the Minister for allowing me a few minutes in which to speak.

I should like to draw the Minister's attention to the report of the Lord Chancellor's working party which suggested that legal aid should be available to claimants appearing before the supplementary benefit appeal tribunal. I do not think that that is the best way in which to make legal aid available to appellants, since, on purely cost benefit terms, the same result can be achieved more easily and efficiently by developing neighbourhood legal advice centres. However, the clear point emerges that more legal expertise will be available to claimants before the appeal tribunal.

Many consequences will flow from that situation. First, if claimants are legally represented, the legal representative will not tolerate a situation in which so many decisions of the tribunal depend on a secret code—the A Code—which is so secret that it is not available to the members of the tribunal, nor to the claimant nor to his representative, nor to Members of Parliament, since permission to deposit a copy in our Library has been refused.

If there is legal representation in the tribunals a consistent law of precedent will have to be established so that decisions taken in one part of the United Kingdom are applied in other parts, instead of the present situation in which a large number of tribunals in different parts of the country vary their discretion and interpretation of the A Code.

Tribunals will have to evolve a clear, consistent and coherent system of onus of proof. From tribunals' decisions it is clear that members of tribunals have no clear concept of the doctrine of the onus of proof. Often, when a claimant appeals against a decision based on the cohabitation rule, the onus of proof is placed on the claimant, whereas it should be placed upon the presenting officer. If there is legal representation at the tribunals, this mundane, informal, inefficient and rather amateurish approach to the situation cannot survive. We must look at the situa- tion in advance of the advent of legal representation.

The second matter which I wish to emphasise to my hon. Friend is the independence of the appeal tribunal. As my hon. Friend the Member for Southampton, Test said, this independence is subject to two very important qualifications. The first relates to the appointment of members. About two-thirds of the members of tribunals are appointed by the Department of Health and Social Security, which is a little odd, since the tribunals are supposed to be considering appeals against decisions taken by employees of the Department. The remaining one-third are nominated by the trade unions, but there is some suspicion—since the turnover of this third is much higher than that of the other two-thirds—that they have less continuity and are less often represented at meetings of tribunals.

The second qualification relates to the clerks to tribunals. The clerk to a tribunal is appointed by the Department. What is more, generally he is a man who until recently himself was a presenting officer and can confidently expect promotion in the structure of the Department. Such a position does not breed confidence in the independent judgment and independent advice of the clerk to a tribunal.

Just before the last recess, I was fortunate enough to attend a conference on this subject organised by the University of Edinburgh. It was extremely informative and stimulating. The one clear message from that conference was that a large number of young, enthusiastic people were keen to see the present situation and were not prepared to tolerate its survival for much longer.

The present structure of the appeal tribunals and their mode of operation will have to be changed in the very near future. The only question remaining is whether it is changed now, with the initiative coming from the Ministry, or whether we delay for a year or two and then put ourselves in the much more ignominious position of having to make changes under the pressure of opinion from interested, active organisations and under the threat of exposure in the media.

11.52 p.m.

The Under-Secretary of State for Health and Social Security (Mr. Alec Jones)

I am very pleased that my hon. Friend the Member for Southampton, Test (Mr. Gould) chose to raise this matter on the Adjournment, but I assure him that he did not need to draw my attention to the report, because he will be aware that it has been well received and is now in process of being digested by my Department.

My hon. Friend the Member for Edinburgh, Central (Mr. Cook) knows that I wish I could have been present at the Edinburgh conference to which he referred. However, its organisers have been kind enough to send me all the documentary evidence of the discussions which took place there.

I was pleased to agree to my hon. Friend the Member for Edinburgh, Central making a short intervention. On occasions such as this, it is more important to receive the views of hon. Members than to provide a departmental answer.

I want to reverse the order in which I had intended originally to reply to the debate, and to deal first with the action which my Department has taken to meet the criticisms made tonight and others made over a long period of time by hon. Members and by people outside this House.

In 1973, the Department of Health and Social Security asked Professor Kathleen Bell, of Newcastle University—herself a member of the Council on Tribunals—to undertake a comprehensive study of the working of the supplementary benefit tribunals.

At this juncture, it is well to mention that the article on appeal tribunals which appeared in The Guardian today and which caused me some personal concern referred not to the study which we asked Professor Bell to undertake but to an earlier study by her of national insurance local tribunals, which she completed before the beginning of the present study. I say that because, inadvertently, the Press may have misinterpreted the situation.

The report we are awaiting on the work of the supplementary benefit appeal tribunal is expected fairly soon and will be considered along with other suggestions by the Lord Chancellor's Office, the Council on Tribunals and the Department. Meantime, at the request of the council, officials of the Lord Chancellor's Office, and the Department have been considering the training of chairmen. The council has issued guidance on the giving of reasons for decisions and alterations have been made in the duties of the tribunal clerk. The question of making legal aid available for representation in tribunals generally is currently under consideration by the Lord Chancellor.

We all begin on the assumption, which we know to be true as constituency Members, that supplementary benefit claimants are, by definition, among the poorest in our society. They are among that group not from choice but usually from force of circumstances. They include the elderly, the sick, the disabled, the one-parent families—a wide range of people in genuine need. As long as these people feel that they are not being fairly dealt with, even though they may be mistaken, it is right for us to provide an impartial, fair and humane appeals procedure.

That is why the Ministry of Social Security Act 1966 set up these appeal tribunals. That is why I am grateful to my hon. Friend for raising this subject. I am sure he will agree that there is no difference in objective between what the Government and any hon. Member seek to achieve. Whether it is a Minister or a back-bench Member, whether a member of the Supplementary Benefits Commission or an advocate of the Child Poverty Action Group, whether a member of a staff-providing Department or a member of the Claimants' Union, there is one common aim.

We seek justice for the claimant. I use the words of the title of the pamphlet to show that this is more than just a title. It must be the purpose behind all our efforts. If I cannot deal with all the points raised by my hon. Friends I will write to them.

My hon. Friend the Member for Southampton, Test, spoke of tribunal premises. As a constituency Member, I have had some difficulty on this subject. At present, eight tribunals are being held in DHSS premises, 22 in other official premises and 90 in non-official premises. While there may be regional variations the national picture suggests we are moving towards establishing the degree of impartiality which is so important.

My hon. Friend also mentioned the question of the clerk. The functions and status of the tribunal clerk is a thorny subject which has been exercising the Council on Tribunals for some time. Indeed, we recently made interim changes at its request. Its further consideration will have to await Professor Bell's report as the problem is closely linked with matters such as a presidential system referred to in the CPAG document, and the training and qualifications of tribunal chairmen.

My hon. Friend emphasised the need for training. All hon. Members agree that there is a need for more and better training of chairmen. The Council on Tribunals has already asked officials of the Lord Chancellor's Office and DHSS to look into the matter. The Lord Chancellor's Office proposes to invite a number of chairmen to arrange area meetings of their colleagues, to be attended by a legally-qualified chairman of a supplementary benefit appeal tribunal, who is also a Recorder.

At each meeting this chairman would promote discussion of the work and of the criticisms levelled at the tribunals, give those present the benefit of his wide legal experience as applied to this particular jurisdiction, and in a report to the Lord Chancellor review the present position of the tribunals and the problems encountered by chairmen, and make recommendations.

My hon. Friend also linked the question of training with the rules of procedure. There already are appeal tribunal rules made by the Secretary of State. Those rules are made after consultation with the Council on Tribunals and they cover such matters as the time and manner of bringing appeals, the time and place of hearings, the rights of attendance and representation, and a whole variety of subjects. However, they do not cover every contingency, because it would not be proper for the Department to tell chairmen how to run their independent tribunals. If we value independence, over action by the Department might run counter to the need for independence.

Reference has been made to the right of further appeal. The Franks Report, when speaking of national assistance appeal tribunals, the predecessors of the supplementary benefit appeal tribunals, concluded. because by their very nature questions of assistance require to be finally determined as quickly as possible, we do not think that the provision of a further appeal on merits from the Tribunals is appropriate. However, the Fisher Committee on Abuse of Social Security Benefits thought that in cohabitation appeals there should be a right of appeal on questions of law. Obviously there are quite considerable difficulties in the way of singling out one area of the Supplementary Benefits Scheme for such treatment.

My hon. Friend the Member for Edinburgh, Central referred to appointments to and independence of tribunals. I assure him that my Department would certainly not be averse to losing its responsibility for appointing both chairmen and members. But it is important to point out that the chairmen are usually appointed from among existing members. In the main, chairmen are selected from members who have gathered some experience in this sphere.

My hon. Friend also referred to legal aid. In a Parliamentary Answer on 6th February the Lord Chancellor indicated that, whilst he has considerable sympathy with this aspect, there is a question of priority concerning the provision of legal aid. I refer my hon. Friend, because of the time only, to that answer on 6th February. However, looking at the statistics of the success rate, if that be a measure of the efficiency of the system, in percentage terms appellants represented by social workers did far better than those who were represented by members of the legal profession. I do not mean that as any slight upon members of the legal profession. There is no real evidence that legal representation is the crux of the matter when dealing with appeals.

By the very nature of things, when an adjudicating body is dealing with the subsistence needs of people, it is inevitable that it will come in for criticism, no matter what its structure or type of membership. I am sure that it is the wish of all of us that these tribunals shall carry out their duties as efficiently and humanely as possible. This is what we propose to try to bring about.

The Question having been proposed after Ten o'clock on Wednesday evening and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned

the House without Question put, pursuant to the Standing Order.

Adjourned at Three minutes past Twelve o'clock.