I’m also concerned that after applicants successfully appeal their decision, the judges don’t then feed back this information to Decision Makers, meaning the same mistakes can be made again and again. Professor Harrington recognised this in his first review in November 2010 when he stated:
The review recommends that feedback from the First-tier Tribunal should be routinely shared with Jobcentre Plus staff and Atos healthcare professionals. As part of their professional development, Jobcentre Plus Decision Makers should be encouraged to attend Tribunals.
Unfortunately progress on this issue has been slow. In his second review in December 2011 Harrington said:
No real progress has been made with recommendations relating to the appeals process, particularly around feedback from Tribunals to Decision Makers about reasons for overturn of appeals. This is very disappointing.
In his third report Professor Harrington emphasised that some progress had been made.Specifically Judges can now select which one reason from a drop-down menu of one-liners is the basis for the Tribunal overturning the decision. This is welcome, but as Professor Harrington indicates, much is still to be done. He said:
Feedback from the Judges to the Decision Makers has, at last, started in a rudimentary way. However, much, much more is needed if we are to see a real dialogue between the Judges and the Decision Makers. This must happen on cases where there is a difference of opinion on what category is appropriate for that case based on the same set of evidence. For the First-tier Tribunal to suggest that the WCA Independent Review has no remit to consider the appeal stage of the process is illogical and untenable in my view.
I put this to the Minister when he gave evidence to the DWP Select Committee on 23 November 2012. He said:
I would like to explore ways-and certainly it is something that the Department is keen to do-with the Tribunals Services to see how we can deepen that relationship without compromising their independence.
I asked him if he accepted that the drop down menu was only a start, and he said:
Ms Gilmore, I think we are, for once, both in agreement. This is a start and you are absolutely right: the best way to understand what is going wrong is what happens when someone complains and particularly what happens when an appeal is upheld. I would like to have a much more open dialogue with the Tribunals Service than we have had in the past, and that is something that we are working to deliver, so I do not think there is any point of disagreement between us on that.
Discussion then turned to some initial DWP analysis of the reasons judges had given for overturning fit for work decisions. For a start 35.7% of decisions Judges chose not to use the feedback mechanism, which suggests to me that clearer instructions on the need to use this mechanism needs to be passed down. Then within the remaining 64.3% of appeals, the vast majority – 40.5% – were overturned on the basis of ‘cogent oral evidence’. Then 15.1% were caused by a different conclusion being reached on substantially the same facts. 8.1% were due to new documentary evidence. Only 0.3% were down to Decision Makers misapplying the law and the remaining 0.3% were because Atos reports contained errors.
At the Select Committee Mark Hoban was keen to highlight this last figure – that only 0.3% of fit for work decisions were overturned on the basis that Atos reports contained errors. This point has been emphasised by Atos in briefing material in the run up to this debate.
But I think we need to make a distinction between the sort of clerical errors that this 0.3% is referring to – for example putting a 0 in the points column when you meant to put an 8 – and the sort of errors that come about due to the structure of the assessment. These would be things like rushing the assessment, not paying attention to claimant’s body language and not asking probing questions.
My colleague Anne Begg suggested that if 40.5% of decisions are being overturned on the basis of new oral evidence, then there is clearly an issue with the face to face assessments and their failure to capture this information initially. She suggested it might be to do with the LIMA computer system used by Atos, but Mark Hoban made it clear that he did not think this was the issue, particularly since the addition of more free-text boxes. So what lies behind this figure? Again I think it is things like rushing the assessment and not asking probing questions.
These structural problems can’t be solved overnight. The roll out of audio recordings might help, as would dropping the targets for number of assessments completed. However what the Government needs to commit to ensuring judges provide more detailed feedback as opposed to simply referring to cogent oral evidence. Only then will everyone involved – Decision Makers, Atos, Ministers, MPs, charities and the new independent reviewer – be better able to understand why so many fit for work decisions are being overturned, and what specific changes need to made to the structure of the assessment to reduce this number.
I pushed the Justice Secretary on this in the House of Commons on 5 February 2013 but I only got a vague commitment from him to do more. However when I raised the issue again on 21 May 2013, Justice Minister Helen Grant indicated that the Government were considering undertaking a new pilot. She said:
Sheila Gilmore (Edinburgh East) (Lab): What progress he has made on improving the feedback from tribunal judges to the Department for Work and Pensions on the reasons for overturning employment and support allowance refusal decisions. 
The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant): The provision of feedback on reasons for tribunals’ decisions is always a matter for the judiciary. As the hon. Lady will be aware, new arrangements for this were put in place in July 2012. Her Majesty’s Courts and Tribunals Service is continuing to work with the judiciary, the Department for Work and Pensions and the other organisations involved to find ways of improving feedback.
Sheila Gilmore: The problem is that the feedback mechanism, which involves the use of a drop-down menu, is very brief. For example, the reason given for 40% of the overturned decisions was “cogent oral evidence”. That does not give decision makers in the DWP any real help in understanding how they can make changes that would result in fewer appeals. Surely it is necessary for the Department, which bears the cost of the appeals, to do something about this.
Mrs Grant: We are continuing to work hard across Government to improve initial decision making, with the ultimate aim of reducing the number of appeals. A new pilot is being considered, and I will be happy to write to the hon. Lady with details of that.
Building on the drop-down list, HMCTS and the judiciary has agreed to provide DWP and the appellant with reasons for their decisions. A controlled start to this will begin in June at 4 tribunal venues, the results of which will be evaluated before deciding the right approach to a wider roll out across the Tribunal. This will allow HMCTS and DWP to jointly test and monitor processes and ensure this works efficiently, provides decision makers with clear feedback and avoids unwelcome impacts on waiting times for appellants caused by longer hearings. The DWP expect to use the information provided by the tribunal in order to help further improve understanding where decisions are overturned, and to use this information to improve decision making. It will also be helpful for claimants to understand why an appeal has been allowed or dismissed.
I hope this new feedback mechanism allows judges to highlight the specific reasons on the basis of which appeals have been overturned. Only then will DWP be able to adapt its processes so that more decisions are ‘right first time’, and fewer go to appeal. I’ll continue to monitor this area and report back.
On 4 February 2014 I was due to raise this issue at Justice Questions. There wasn’t enough time for my question, so I got a written answer the next day. However I was then able to ask a related question during topical questions towards the end of the session – ironically the Minister got confused and used his pre-scripted answer for my original question!
Sheila Gilmore (Edinburgh East) (Lab): Given the continuing high level of tribunals overturning Department for Work and Pensions decisions, particularly in employment support allowance cases, why did the Department offer up to the Deregulation Bill a provision that would take away the duty on the Senior President of Tribunals to report on the standard of decision making? Surely reporting on that might lead to better decisions being made in the first place.
Mr Vara: The hon. Lady will be aware that the Ministry of Justice, Her Majesty’s Courts and Tribunals Service and the Department for Work and Pensions have been working very closely to ensure that decisions by tribunals on social security and child support matters are passed on to the DWP. That is happening and, as a consequence, DWP decisions are being influenced and its decision-making guidelines have been changed.
In the fourth independent review of the WCA Dr Paul Litchfield recommended that DWP monitor Decision Maker overturn rates on an individual basis and investigate particularly high or low rates as part of performance management. In response the Government accepted this recommendation subject to feasibility work. Specifically they said:
HM Courts and Tribunals Service (HMCTS), working closely with the Tribunal’s judiciary and the DWP, introduced on a ‘controlled start’ basis the provision of Summary Reasons in appeals against ESA decisions. The Summary Reasons take the form of written text which is incorporated into the Decision Notice issued by the Tribunal, which is provided to both the appellant and DWP. A wider roll-out of the provision of summary reasons for decisions made by the Tribunal is planned for the first half of 2014. Any decision on whether to accept this recommendation in its entirety will only be made once this feasibility work is completed.
In evidence to the Work and Pensions Select Committee in May 2014 the judge in charge of ESA appeals made a number of important points (see Q76 onwards), including:
- Judges used to issue full justifications for their decisions, but since 1996 this has only been done on request.
- The dropdown menu was inadequate because DWP’s IT could only handle one reason, and yet judgments involve balancing out lots of evidence.
- The new summaries of reasons must be used by DWP to ensure Decision Makers and contractor staff avoid repeating mistakes, and to identify any systemic problems.
- There is scope for improvement, but it’s possible DWP won’t be able to handle the volume of summaries that will be produced, or will choose not to.
- In an initial evaluation of the summaries, the recommendations made were similar to those put forward by the independent reviews of the WCA i.e. listen to the claimant.
In our subsequent July 2014 report on ESA, we called on the Government to set out how it will analyse and use the information it is now receiving to improve the initial decision-making process. I raised this at Justice Questions on 11 November 2014, but unfortunately the Minister indicated they had no plans to conduct a formal evaluation. I intend to raise this again at the next possible opportunity.