The Social Security Bill 1998 - Elderly Client Adviser

Feature

posted 1 May 1998 in Volume 3 Issue 4

The Social Security Bill 1998

The Social Security Bill attracted considerable attention on its passage through Parliament over the issue of cuts in benefits for lone parents, but the Bill is probably more significant for the changes being made to the way in which decisions are made in social security cases. The whole system of tribunals will be overhauled and fundamental changes made to the process of decision making in social security and other cases. The role of the Adjudication Officer (AO) will disappear and there will be a new system of reviewing decisions. Most of these changes are expected in 1999.

Under the present system, a decision on a claim is in most cases made by an Adjudication Officer. There is a right of appeal against an AO's decision to a tribunal, which is normally a Social Security Appeal Tribunal (SSAT). Certain questions go to other tribunals. Disability Appeal Tribunals (DATs) hear appeals concerning disability questions for Disability Living Allowance or Attendance Allowance, and Medical Appeal Tribunals (MATs) consider appeals as to the percentage by which someone is disabled, which is relevant in claims for industrial disablement pensions and severe disablement allowance. From the tribunal there is a right of appeal on a point of law to the Social Security Commissioners, and thence to the Court of Appeal.

There are a small number of cases where the decision falls outside this structure, where the initial decision is taken not by an AO but by the Secretary of State. This includes issues such as someone's contribution record, and who shall be entitled to child benefit if two people with equal entitlement cannot agree. These decisions may not be appealed.

Adjudication Officers

Adjudication Officers are expected to follow the guidance of the Chief Adjudication Officer, and to act judicially. In recent years much work has been done to create a climate of independent judicial decision-making by AOs. Under the new Bill, all this is to change. Decisions in all cases will now be taken by the Secretary of State. Appeals will go to a unified system of tribunals, with appeal as now to the Commissioners. This will mean the loss of the independent approach of the AO. Independent guidance from the Office of the Chief AO will cease to be replaced if at all by guidance from the Secretary of State, whose judicial independence as the holder of the purse strings is rather more doubtful.

At present an AO's decision can be reviewed if grounds exist - broadly, that the original decision was based on a mistake of law or a mistake as to a material fact, or there has been a change of circumstances. The new system provides for a two-tier system of review. A decision will be capable of being revised on any ground within a prescribed period, expected to be one month. The intention seems to be to introduce a period within which the decision can be negotiated, for example by the claimant bringing along fresh evidence. The one month period is being described (though not in the Bill) as the "dispute period". The claimant is not bound to ask for a revision and can appeal straight away. Alternatively, he or she can ask for a decision to be superceded on certain specified grounds - expected to be the same as the present grounds for review. This power to supercede is open-ended, and is the second tier of review. It appears to be intended to replace the existing power of review. There will be no requirement for an earlier application to revise a decision before it can be superceded.

Tribunals

It is in the tribunal system, however, that the greatest changes are likely to occur. As with AOs, much work has been done to create a climate of judicial independence around the tribunal system. There is a president of Tribunals who is a judge, and all three types of tribunal are normally chaired by a lawyer. Specialists sit on tribunals in certain cases; a DAT consists of a lawyer, a doctor and a person with experience of disabilities, and a MAT consists of a lawyer and two doctors. Those of us who remember the "bad old days", when tribunals were in many cases chaired by lay people, and were frighteningly unpredictable, have reason to be grateful for the high standard of decision making and the care which is now taken over even the most routine of cases.

This is to change. Tribunals will no longer necessarily consist of three members. A tribunal will be selected which will reflect the needs of the type of cases to be heard. This will be selected from a panel of people (lawyers, doctors, people with experience of disabilities, etc.) and may consist of one, two or three people. None of them need be a lawyer. The three tribunals (SSATs, DATs and MATs) will be amalgamated into a single system, together with Child Support Appeal Tribunals. The intention is for regulations to set out the type of tribunal appropriate in specific cases; for example, it is expected that incapacity for work cases will be heard by a two person tribunal consisting of a doctor and a lawyer. Appeals which are deemed "hopeless" are expected to go before one-person tribunals.

Time limits for appeals (presently three months) will be reduced to one month. The powers of the tribunal will change; whereas now they adopt an inquisitorial approach, taking into account fresh evidence or changes of circumstances right up to the date of hearing, they will henceforth be expected only to give the decision which would have been correct at the date of appeal. Thus someone whose claim for DLA, based on a deteriorating condition, is turned down by the Secretary of State will have to make a fresh claim and cannot rely on the tribunal awarding benefit back to an earlier date.

The "Anti-Test Case" Rule

There are rather disturbing changes to the law on test cases. For some time governments have sought to deal with successful test case appeals which result in a number of other cases also being identified as having been decided incorrectly. For example, Case A is successfully appealed to the Commissioner. The appeal lays down that Adjudication Officers have been interpreting the law wrongly; so the claimants in cases B, C, D and E, whose cases were also decided on the wrong interpretation, are entitled to have their decisions reviewed. So far so good; the problem is that they may be entitled to reviews going back to the date of their claim, in some cases for many years, and to arrears of benefit. It was to deal with this situation that the anti-test case rule was introduced. Basically this states that, in the above example, the claimant in Case A has his or her benefit backdated to the date of claim; but the claimants in cases B, C, D and E have their benefit backdated only to the date of the new Commissioners Decision, unless the request for a review in cases B, C, D or E pre-dated the Commissioner's decision.

This rule is to be extended. Firstly, it will apply whenever the review is asked for. Furthermore, the Secretary of State will have power, in a so-called "look-alike case", to suspend payment of benefit pending the decision in a test case. If there is an appeal in Case A, and the Secretary of State has a claim to meet in Case B, which appears similar to Case A, the Secretary of State will be able to suspend payment of benefit in Case B if it is likely that Case A will be decided against the claimant. The anti-test case rule will apply even where regulations are held to be ultra vires.

Where a decision falls to be made in a lookalike case, the Secretary of State will be able to postpone the decision pending the result in the test case; if the decision is to be made not by the Secretary of State but by a tribunal or a Commissioner, the Secretary of State can require the tribunal or Commissioner to refer the case back to the Secretary of State to be dealt with, or alternatively require the tribunal or Commissioner to deal with the case in one of two ways - either by staying the appeal, or if they consider it to be in the appellant's interest (though it is not clear why it should be) to decide the case in a way which is adverse to the appellant.

It is this last provision that is perhaps the most disturbing provision in the whole Bill. One party to an action is to be permitted to require the judicial body charged with making a decision to make a decision in a particular way, or not to make a decision at all until another case is heard! The principle is surely doubtful; the practical consequences for certain claimants are likely to be quite dramatic. What is a lookalike case? What if the Secretary of State decides that a case is a lookalike case but the claimant disagrees? It appears to be an issue for the Secretary of State alone - although of course the Commissioner may disagree. What if the Secretary of State decides a case, or the tribunal or a Commissioner decides a case, in a particular way, which is adverse to the claimant, but the Commissioner in the test case decides it the other way? There are sure to be challenges to this new power, which is sadly indicative of the intention to remove the judicial element from social security decision making.

Backdating of Claims

Another principal feature of the new Bill, the future of which is now however in doubt, is the limitation on the backdating of benefit. Until 7th April 1997, a claim could be backdated if the claimant could show continuous good cause for a late claim; for example, that he or she was wrongly advised. In April 1997, the good cause rule disappeared and most claims could be backdated by no more than three months. The Bill provides for a further reduction in this period, to a maximum in most cases of one month. This provision drew criticism in the Lords, however, and the Government announced its intention of backing down on this issue. The final version of the Act is awaited, once the Commons have reconsidered the amendment.

Some of these changes are due for introduction in 1998, along with the changes to lone parents' benefits (due in June). The change in jurisdiction of the tribunal (so that they no longer consider factors down to the date of the hearing) is due to take effect in summer 1998; the power to suspend payment of benefit in a lookalike case will take effect when the Bill becomes law. The amendment to the current anti-test case rule, which covers all requests for review whether made before or after the test case, will also come into force with the Bill. Finally, the backdating provisions are due to become law in June 1998 - if they ever do, in the light of the Government's comments referred to above.

For most people these changes will have little if any effect; but for those who are practising in the tribunals, and for their clients, the Bill will introduce fundamental changes in the way that decisions are made in benefit cases - and, it is feared, not for the better.

Alan Robinson, The author is a solicitor and a leading expert on welfare benefits. He is a director of Legal & Welfare Rights Training.

CORRECTION

Means Tested Benefits ECA Vol 3 No 3

Unfortunately the gremlins got into the income support and housing benefit calculations given in the last issue. If you have been trying to teach yourself how to work out income support with these figures, I fear you will have struggled in vain! Our apologies for this. The correct figures are as follows.

In the first example in Box 2, the Applicable Amount, which reads £111.05, should read £116.05. This is the figure correctly shown in the third example in Box 3. The individual figures are correct; it is the total that is wrong.

In the second example in Box 3, the total income should read £107.90 and not £103.40. Income support should be £10.00 and not £1.45.

Finally, in Box 4, the couple will receive housing benefit, not of £41.80, but of £41.15 as stated on the previous line. Note that the figure given for an occupational pension in the first sentence, namely £35, was reduced to £34.95 in the calculation itself to simplify the arithmetic. All the other figures are correct.