14 October 2010

Members present for all or part of the proceedings:

Mr Paul Maskey (Chairperson)
Mr Roy Beggs (Deputy Chairperson)
Mr Gregory Campbell
Mr John Dallat
Mr William Irwin
Mr Trevor Lunn
Mr Patsy McGlone
Mr Mitchel McLaughlin
Mr Adrian McQuillan
Mr Stephen Moutray
Ms Dawn Purvis

Witnesses:

Mrs Siobhan Broderick		Northern Ireland Courts and Tribunals Service
Mr Will Haire Mr Mickey Kelly Mr Stephen McMurray Mr Tommy O'Reilly		Department for Social Development

Also in attendance:

Mr Kieran Donnelly		Comptroller and Auditor General
Ms Fiona Hamill		Treasury Officer of Accounts

1. The Chairperson (Mr P Maskey): Today we are addressing the report 'The Administration and Management of the Disability Living Allowance Reconsideration and Appeals Process'.

2. Mr Haire, you are very welcome to this meeting, which is about matters that are to do with disability living allowance (DLA). Can you introduce the team that you have with you today, please?

3. Mr Will Haire (Department for Social Development): Yes, Chairperson, and thank you. Tommy O'Reilly has just joined us as chief executive and accounting officer for the Social Security Agency (SSA). Mickey Kelly is assistant director of the pensions, disability and care service, and he runs the agency side of DLA. Stephen McMurray is my director of financial management, and he has, until now, been running the appeals service. As members are aware, that was handled in the Department, but Siobhan Broderick, who is now head of reform in Northern Ireland Courts and Tribunal Services, has joined us because she has taken over leadership in that area. I hope that that represents the range of areas that we cover.

4. The Chairperson: OK; thank you. I know that you have been here before, so you know the system. I will start by asking some questions, and we will then bring in the other Committee members.

5. I would like to turn your attention to figure 1 on page 12 of the report, which shows that there is a huge number of appeals. Figure 2 on page 18 also shows that an increasing number of the agency's decisions are overturned on appeal, and we know that those cases can sometimes take a long time to conclude. Why is that?

6. Mr Haire: About 10% of our cases are appeals to the system, and, of those, 3% end up being overturned, as you say. That number has been rising slightly, but our figure is still much lower than that of our GB counterparts. Conall MacLynn, who will be before the Committee next week, emphasised in his report that the key reason for that increase is that additional evidence that was not available when the agency made its decision was brought to the tribunal's attention. That is why the tribunal was able to make a different decision. In approximately 70% of cases, the tribunal agrees with the agency's original decision. However, in 30% of cases, the tribunal makes a different final decision, generally because more evidence in the form of GP reports or oral evidence is made available.

7. Although the trend has been increasing, I stress that the number of appeals has declined from approximately 14% to 10%. We are trying to focus on better decision-making at an earlier stage as a way of reducing that figure. All the reports by Conall MacLynn and Professor Eileen Evason, who also looks at our work, have emphasised that the quality of our decision-making is seen to be good.

8. The Chairperson: OK. Many of the members here, or the staff in their offices, deal regularly with DLA cases. The thinking out there is that, the first time that someone applies for DLA, they will be refused automatically and the case will then go to appeal. That refusal is almost seen as automatic. I am not saying that that is the case, but many who work on the DLA cases think that that is true.

9. Some of the forms can be very difficult to fill in, and medical advice may need to be obtained about applicants. One concern that I have is that, if someone is good at filling in forms, they could possibly be selected for DLA the first time that they apply, but if they were are not so good at filling in the forms, they would be more likely to be refused. Indeed, that may have more of an effect on the vulnerable in society who are not as able or equipped to fill in the form. Quite a lot of the time, those people are refused. Is there any way that the form could be simplified? Will the Department be taking any initiatives on that?

10. Mr Haire: I am going to ask Mickey Kelly to come in on that question, as it is a key part of his work. The legislation requires us to look for a lot of evidence. I think that we have succeeded in reducing the form from 48 pages to 39 pages long. We are working on the use of plain English and other approaches and on getting other forms of assistance to people.

11. Mr Mickey Kelly (Department for Social Development): We have taken a number of steps over time to try to simplify the form, and, as the permanent secretary said, it has been reduced from 48 pages to 39 pages. I am aware that some members here and people in their constituency offices help applicants to fill in the forms, given that they are quite complex and detailed.

12. The form is quite interesting in its own way. We must strike the right balance between overburdening people with what may be unnecessary questions while having questions that are sufficient to allow them to describe their needs in detail. That is a fine balance that we are working hard to achieve. We have included an example of the information that we want be given in each part of the form, and that is one of the major steps that we have made in improving the form. We recently tested a child claim form for children under 16, and that was well-received by the voluntary sector and the other sectors that work with children.

13. We also regularly consult with the voluntary sector and bodies such as Citizen's Advice, Advice NI, Disability Action and the Belfast Law Centre about the form. We are not for one minute being complacent about the form, and we are always working hard to improve it.

14. The Chairperson: Are all the agencies content with the forms, or have they suggested areas where they could be improved?

15. Mr M Kelly: As we do each iteration of the form, which we generally do once a year, we look at what changes have been made in England and what changes we want to make in Northern Ireland. We share the form with the agencies in advance of that and give them an opportunity to comment on it.

16. The Chairperson: OK. Thank you for that. Other members may want to delve deeper into that issue. Paragraph 1.9 states that responsibility for the administration of the appeals process transferred from your Department to the former Court Service, which is an agency of the Department of Justice. That happened very recently. Perhaps you can tell us how that has affected the DLA appeals process and the service provided to DLA appellants to date. Have there been any improvements? If not, what improvements are expected in future?

17. Mr Haire: Obviously, that transfer happened relatively recently. We have been working closely with Siobhan and her team for a while. When the report was concluded, the overall end-to-end process took 31 weeks. It now takes 22 weeks, so, on average, the system is working. Over the past couple of years, we have seen a steady improvement in the processing time. Having worked through all the recommendations that came out of the 2005 report, as well as the efforts that our predecessors and Mickey, Stephen and the team made over the past while, we have seen the timings reduce by 50%. Therefore, we are getting better information. However, the transfer to what was known as the Court Service has the great advantage, which Leggatt pointed out about the form, in that the Department is no longer involved in the appeals system. The system has been separated, and it is now much clearer and better. We tried to be very fair previously, but that division makes the process much better. There is also great strength in putting our system in with with the Tribunals Service, which will be responsible for other appeals processes, because it will bring professionalism and understanding of appeals systems to the process. I will ask Siobhan to comment on the wider theme.

18. Mrs Siobhan Broderick (Northern Ireland Courts and Tribunals Service): As the permanent secretary said, we assumed responsibility for the management of tribunals in April. We then put in place a single manager who has responsibility for a number of aspects of DLA and other appeals, including the office of the president, the appeals service and the social security commissioners. Therefore, for the first time, we have a single manager who has oversight of the whole appeals process when it gets to the appeals service. We have put in place a modernisation strategy across the tribunals to look at ways to improve the services. That includes how we engage with customers and putting standards in place. Therefore, we have published the standard for DLA cases to be listed for the first time for nine weeks, and we will produce a report for customers in a customer newsletter, which will be available to them from October.

19. We have also put in place standards for services that customers can avail of. Again, those are published and are accessible to customers. We also want to look at how we improve professionalism in the team. We have offered NVQs to teams of tribunal clerks in the appeals service and in the office of the president so that their professionalism can be improved. They are already exceptionally well trained, and we have provided them with an opportunity to further that training in conjunction with the Courts and Tribunals Service. We have also put in place an apprenticeship scheme for the administrative assistants (AA) and administrative officers (AO) in the appeals service to allow them to improve their communication and literacy skills.

20. The Chairperson: Thank you for that. If that is working, the time for tribunals should be reduced.

21. Mr Haire: The process now takes an average of 22 weeks, which is an improvement. However, the benefit is a complex one to administer, as many of you will have experienced. It is a complex issue, and, as the report indicates, some cases take longer. Some cases have gone to the High Court, for example, and that obviously slows things down. There is a continuous improvement issue, because going to appeal is a stressful and stress-related issue for people, and we want to see how best to handle that question and how best to communicate it. Therefore, we have to continually work at it.

22. The Chairperson: My questions are about setting the scene, and other members will delve into the issue.

23. Mr McQuillan: I see from paragraph 2.10 that the agency and the appeals service's computer systems are not compatible. Was that not considered in 2007 when the appeals service's system was upgraded? What will be done to rectify that?

24. Mr Stephen McMurray (Department for Social Development): When the report was issued, we were still designing the report mechanism for the new system that was installed for the appeals service. We have put a lot of time and effort into considering that report, and we have taken on board the Audit Office's comments about trying to make processes as seamless as possible and putting in place an end-to-end process that we can monitor. We have been able to do that with the new system, which is working very well at producing timely, online reports for use not just by the appeals service but by the agency and the president. The feedback from the three groups concerned is that it is working well.

25. We looked at integrating the system with a separate one that the agency operates. We did a cost-benefit analysis to see whether they could be fully integrated. However, the cost of doing that was shown to be prohibitive to any benefits that we would get. Therefore, we thought that it would be better to further enhance our current system by speeding it up, and by making sure that it covered the whole process and that it was seamless from a customer point of view, which was an important part of its design.

26. Mr McQuillan: Is cost the reason that the two systems are not compatible?

27. Mr McMurray: Yes.

28. Mr McQuillan: Paragraphs 2.37 and 2.41 deal with the feedback process. What value do you see in gathering feedback? Do you agree that that should cover the process, when it begins in the agency, right through to an appellant's experience of the tribunal?

29. Mr Tommy O'Reilly (Department for Social Development): We are committed to trying to ensure that we get continuous feedback from the agency. At the moment, and as Mr Kelly outlined, we are in constant contact with the voluntary and community sector, from which we receive feedback about the services that we provide. That helps to inform us about our processes. We also get individual complaints that are raised with the agency, and we try to ensure that actions that are appropriate in response to such complaints are taken forward.

30. We want to work with the Northern Ireland Courts and Tribunals Service to see how we can improve the end-to-end process. The Courts and Tribunals Service will conduct surveys with appellants, information from which we will use, in conjunction with our feedback from the voluntary and community sector, to make further changes to the service.

31. Mr Beggs: Mr Haire, figure 2 on page 18 of Audit Office report shows that the quality of decision-making has generally been high. For instance, in 2006-07, 0% of decisions were overturned on appeal as a result of an error. However, your update letter of 4 May indicated that there was a deterioration to 4·3%. Do you have an explanation for that?

32. Mr Haire: As I said, it is a complex benefit to implement. A lot of our training emphasis is on decision-makers. We also have senior teams that continue to work with our decision-makers to improve that. In that year, we went up 4·3%, but last year I think that it was only 2%, so we improved again. We will always find a certain amount of error in what is a highly complex benefit to deliver. As you know, the decision is not about a claimant's medical condition; it is about a situation and how it affects individual lives, around which there is a large amount of case law and other considerations. Mistakes are made, and people will appeal the decisions, and I will come to that process. We put a heavy emphasis on training and development, but given where the benefit lies, we cannot entirely eradicate error. We just have to keep on bearing down on it as best we can. The figures are moving in the right direction, and our aim must always be to have zero mistakes.

33. Mr Beggs: Your update letter of 4 May 2010 also indicated that, at that stage, figures were still not available for 2008-09 and 2009-2010. The period covering 2008-09 was some 13 months after the close of the year. When you are looking at the overall performance and gathering your figures to identify whether there has been a change and a need for retraining, is it not a problem if there is a significant delay in the feedback?

34. Mr Haire: The delay is due to the time that it takes the president to put together his report and survey. In comparison with his GB counterpart, the relatively small size of Northern Ireland and the group mean that he has difficulty doing that. It takes him longer to close his cases to see what the outcomes are. Therefore, there will always be a delay. A couple of years ago, we were, frankly, waiting for too long before receiving and processing those reports. However, as the Audit Office report indicates, that time has been reduced significantly, and, in September, we received the 2008-09 report. Therefore, we have significantly reduced the delay. Clearly, we want to get reports as soon as possible.

35. One element that we are trying to strengthen is a forum between the agency, the Court Service and the president. That forum will have regular meetings about the issues to try to get feedback about the experiences that are happening all the time. Although annual reports and surveys are important, the issue is to link the various institutions fairly regularly through informal and formal meetings and to get feedback that addresses the sorts of problems that you are getting at. We are trying to strengthen those systems, and they are having an impact.

36. Mr Beggs: It would be helpful if you could forward to us the latest figures so that the Committee can consider them for its report.

37. Paragraph 2.17 states that the main reason for decisions being overturned on appeal has been the production of additional evidence that had not previously been available to the agency when it was coming to its decisions. I notice that, in the past two years, approximately one third of all cases have been overturned for that reason. Are you satisfied that the agency is doing all that it can to get the relevant information, including medical evidence, before reaching a decision, or are staff being driven by the need to make quick decisions and hit time targets? If a case proceeds unduly quickly because the information is not available, additional burdens are being created by introducing appeals that would not otherwise happen.

38. Mr Haire: Perhaps Mickey will talk about that. However, we are very conscious of trying to get the balance right, and we have refined the process by which we try to get medical evidence from GPs, for example. Tribunals in Northern Ireland, as well as the president, look for GP notes that are of a much higher level than required in GB. There are particular complexities with our rights and access to GPs' notes. However, we do a lot of work to try to get the necessary information, and, at all stages, we emphasise to the people who are claiming the benefit that they need to provide as much evidence as they have. We are constantly coming back to them to do that, and we are trying to get the information from GPs. Ultimately, our aim must be to get a process that involves a quick resolution. If we were to cause problems by rushing our stages, as you quite rightly say, that that would be ridiculous and a waste of people's time.

39. Mr M Kelly: I assure you that there is no undue pressure to clear cases quickly or timeously. The qualitative nature of our work is important, and that is reflected in the figures that we produce and in what the president says about our quality. The majority of our forms are now issued, following a request, through our contact centre in CastleCourt. When people phone up, at that stage we have a quick conversation to tell them that it is important that they give us all the information that will help us to make their claim. Medical evidence is important, and virtually all claims in Northern Ireland are decided with medical evidence from either a general practitioner, an independent examiner or a healthcare professional. Therefore, it is not the case that we are not getting the medical evidence; the medical evidence that the president obtains is GPs' notes.

40. We have talked to our colleagues in the Department for Work and Pensions (DWP) about this issue, which raises some questions about the policy intent behind the benefit. The policy intent behind the benefit was never for access to GP records to be a prerequisite. We, therefore, have to be careful that getting those records does not run contrary to the current policy intent of the benefit, subject to how that might change going forward. I should add that we send a clinical-based report to doctors that is based around the questions that we need answered to help us to make our decision. If we had access to GP records, we could be contravening the legislation, because the information collected would not actually be relevant to a DLA claim. As you know, patients' medical records contain lots of information other than that about their disability.

41. Mr Beggs: You indicated how complex the area is.

42. Mr M Kelly: Absolutely.

43. Mr Dallat: You will know that appeals are continually being cancelled or deferred because medical evidence is not available. You must also be aware that doctors are making a right oul penny out of this craic by charging up to £50 for the privilege of supplying somebody with their own medical records. At the end of the day, no matter what you say, decisions are reached on the strength of the medical evidence that is provided. Therefore, if I lived in an area where the doctor was compassionate and helpful, I would have a better chance of receiving DLA than I would if I lived in an area where the doctor did the tick-box exercise, got paid for it but then did nothing afterwards. Given that there are wide variations in success rates, can you tell the Committee whether anything can be done to create some kind of level of playing field across the North? I am quite sure that at least some of that wide variation in success rates relates to the degree of co-operation from GPs.

44. Mr Haire: The key issue for all of us is the coalition Government's announcement that they will look at DLA generally. They are thinking of taking that issue forward, which will involve looking at the medical assessment and processes and so forth. My Minister has already made representations about that. It is key that we get ourselves involved in that process, and, if it is to go forward, it is also key that we understand how it will happen to ensure that it is done appropriately and fairly. That is where we are.

45. However, from what we understand and read in the papers, it will be several years before that initiative will impact on the process, because legislative changes are required, and it may take some time to get there. However, a more controlled system may be the outcome of such a reform.

46. Mr O'Reilly: In response to your point about the availability and amount of evidence that an individual GP submits, it is fair to say that one of the benefits of having an independent appeals service is that there is still recourse for an individual to get the agency's decision looked at again. They can require that all the medical evidence, including all the GP notes, be submitted to enable an independent medical member to make an assessment. The individual concerned also has the right to appear in front of that tribunal. There are, therefore, some safeguards in place. I take your point that there may be issues, but we are certainly not aware of any of the nature that you described. However, the right of the individual to have their case reconsidered is built into statute, and that recourse is available.

47. Mr Dallat: I will not prolong this line of questioning, Chairperson. However, I should say that I represented someone recently where the appeal was postponed in the expectation and hope that the doctor would provide more medical evidence. As a public representative, I was asked to write to that doctor to encourage them to produce the file. I think that that was wrong. However, we will leave it at that.

48. Mr Beggs: My question is about the growing problem of long-term sickness in the agency's appeals unit. The information about that is available at paragraph 2.48 and in the update to figure 7, which is in your letter of 4 May. If I am reading those correctly, the percentage of days absent has grown from 5·1% to 7·7% to 9·2% to the latest figure of 10·4% in 2008-09. It would be very significant to have 10·4% of any workforce missing. If a private sector company operated like that, it would probably be out of business, because it would have lost 10% of its income. Why is that happening, and what are you doing to correct it?

49. Mr O'Reilly: Those are fair comments about the levels of sickness. I can answer that by describing the various stages that were involved in our response. To ensure that the service was not disrupted by that level of sickness, we responded immediately by developing an action plan in the agency that transferred some staff from other sections of the DLA service to ensure that the appeals service would continue to be supplied with the relevant documentation.

50. We have also been implementing an attendance management policy in the agency. That is being driven forward through the line to ensure that all procedures and policies that we have in place are being fully implemented. As a result, there has been a further reduction in the number of days lost. Last year, that was down to just over 9·5%, and, until the end of August this year, the level of sickness was at 3·29%. We are not complacent about that. We are continuing to follow very aggressive attendance management policies right across the agency to ensure that staff are aware of their responsibilities and that line managers undertake their responsibilities in managing absence so that public services are protected.

51. Mr Beggs: Thank you for that very competent answer.

52. Ms Purvis: Paragraphs 2.21 to 2.28 deal with the attendance of presenting officers at tribunal hearings. That has been an area of contention for nearly 10 years. What value do the Department and agency place on presenting officers attending DLA tribunal hearings?

53. Mr Haire: The Department has a role as amicus curiae, or friend of the court. We clearly have a role to be there to assist in the courts' deliberations. In more complex cases where the benefit or the issue presenting is complex, we send presenting officers to assist as best we can. We want to ensure that the tribunal has the evidence and can understand the issues. This year, we have sent presenting officers to around 31% of cases, which is twice the GB level.

54. At the time that the report was produced, one issue was that there was benefit to us and to the presenting officers in getting feedback from the decisions. We could then use that feedback to improve our decision-making processes. However, as our officers are, rightly, out of the room when the tribunal deliberates and makes its decisions, the truth is that we were not getting anything of particular value that would improve our decision-making. It was not worth our while. We were faced with the blunt point that, if we send presenting officers to the tribunal, they are not making decisions. They are not at their desk or working with the public trying to make the decisions in the first instance. Given that, therefore, the overall time limit would expand. If we sent people to sit in hearings during the tribunal stage, the overall process would not be benefitted but delayed, particularly as tribunal decisions are often made because new evidence to the hearing appears. That does not create any benefit for our overall decision-making processes, particularly because the tribunal elucidates that and then makes the decision. Therefore, having a presenting officer in attendance does not help the process, and there is not much of a gain in it. That is why we focus very much on assisting in those cases where the complexities mean that the tribunal needs assistance.

55. We do not see value in having 100% attendance. In fact, we would see that as slowing down the overall process. However, we are keen to see whether we can address some of the concerns that the president of the appeals tribunals has on the issue of information, and we will continue that dialogue with him through the forum that we want established.

56. Ms Purvis: Are you going to try to reach agreement with the president on the types of cases that presenting officers should attend?

57. Mr O'Reilly: We want to work with the president and the Courts and Tribunals Service to revise the guidance for our presenting officers and to understand where we believe there is benefit in their being in attendance at a tribunal.

58. I would like to make one other point about attendance. We regard ourselves as friends of the courts at tribunals. We are there on the Department's behalf to present the reasons why we made a decision. It is for the tribunal to review that decision. One of the concerns that we have about presenting officers attending 100% of the time is that there is a real danger that tribunals could be turned into much more adversarial events. It is the right of citizens to present their case and be represented by a third party if they so wish and for the tribunal to make an assessment based on the evidence that the tribunal has received from the Department and that is presented on the day. If we start to put presenting officers there, the process suddenly becomes adversarial. We do not believe that that benefits justice or the claimants and the appellants. It would make the process much more stressful than it currently is.

59. Ms Purvis: A number of issues arise from that.

60. The Chairperson: Are they on the same theme?

61. Ms Purvis: Yes, they follow on from that point.

62. Is any pattern or trend forming in the outcome of hearings that presenting officers attend?

63. Mr M Kelly: Not necessarily. We have not found any particular patterns or trends. It was mentioned earlier that most of the cases that are overturned at appeal tribunals have been overturned because of new evidence from the appellant or because of consideration of the GP records that have arrived on the day. As the permanent secretary indicated, we are not present during the panel's deliberations. It is a complex process, in that the panel has to give different weights to a number of different pieces of evidence. Presenting officers not being in attendance at that particular discussion does not affect the outcome of the tribunal.

64. It is important to note, and the report mentions this, the qualitative nature of the submissions that we provide on the cases that we do not attend. Those submissions are much more detailed than those that are provided to colleagues in GB. Therefore, we feel that our written submissions set out the facts quite well in that sense.

65. Ms Purvis: Mr Haire, you mentioned the value of feedback for presenting officers, albeit that they are not in the room when decisions are being made. You set up a presenting officers' feedback database in April 2007. How useful is that, given that it is only the presenting officer's opinion that is on that database, rather than information from the tribunal on the reasons why decisions were overturned?

66. Mr Haire: We recognise that that is a limitation of the database. Obviously, we get some information and some sense from people's experiences, but that database is only one of a whole series of feedback systems that we have, which include medical input and training. It plays a role, but we recognise its limitations, given that we were not present to hear the decisions being made. It is right that we are not involved in the deliberative stage, but the system cannot be perfect.

67. Ms Purvis: How are you getting direct feedback on decisions that are overturned?

68. Mr Haire: We can get the statements of reason as appropriate. We can ask the tribunal to give us a statement of why it has made a decision. We also get feedback through the annual reports from the president, who looks at the overall process. He emphasises that over 90% of the decisions that are overturned have been so because more information is being disclosed at the tribunal stage, either in oral hearing or through interrogation of the GP notes.

69. Ms Purvis: I will come to the annual reports in a minute. However, I want to finish my point about presenting officers' attendance. Both the Department and the president have proposed a consideration of an alternative dispute resolution (ADR) process. In the report we are told that the president said:

"that attendance by Presenting Officers at appeal hearings may make it possible to agree a benefit decision with many appellants who attend hearings without the need for a tribunal hearing."

That is, in effect, a form of alternative dispute resolution. The president makes the case for presenting officers attending tribunals to try to resolve cases without the need for formal hearings. Should that not be considered?

70. Mr Haire: As you are aware, there is a formal reconsideration stage at the beginning of the appeals process, whereby we look at the evidence again. About 14% of cases are resolved at that stage by our going back and looking at the evidence. Therefore, we have our own alternative mechanism right at the beginning of the process.

71. If we had a presenting officer present, all the costs of the tribunal would have been realised: all the necessary people would have been made available, and, in getting GP notes, we would have spent the £250,000 that we have to spend annually. If all that were possible, and if there were an issue at the door of the tribunal, there would be no saving in costs. I also believe that, in many cases, the actual tribunal is what gives people resolution, because they can talk to the people who will make the final decision. I am not sure that the particular form of alternative dispute resolution mechanism that the president suggested would be cost-effective or achievable.

72. In GB, some work was done on identifying an alternative dispute resolution mechanism. Various lawyers examined cases to see whether they could lift some out or resolve them and talk to people. However, that only prolonged the case in question. It did not resolve it; it actually worsened the overall timescale, because it was just producing another hope, and people were not brought to a final resolution. I think that you have to accept that a tribunal may be the only way to resolve certain cases, because there is a final decision-maker at that point.

73. However, early on in the process, we could get on the phone to people more often and get better evidence before the day. We have to continually try to find solutions to see whether we can cut the figures down, because it is expensive to run tribunals. I suppose I am coming to the conclusion that I do not think that the president's proposal is going to solve that problem. However, I am totally with him on the fact that we have to continually try to see whether there are ways of cutting the process off more rapidly and finding a solution.

74. Ms Purvis: Chairperson, I will let Patsy say something, but I want to come back to that issue.

75. Mr McGlone: Thank you for that, Dawn. I am sure that many of us have been at a tribunal where a presenting officer has been in attendance, and we have seen how the dynamics of the room change when they are not there. I think that that places the panel in quite an invidious position, where they have to, either by proxy or by taking the role of devil's advocate, try to tease out what the Department should be there to tease out and present to them. In those cases, that almost borders on changing the burden that is on the panel when it makes its determination.

76. Leading on from that, you said that the Department or the Social Security Agency can, quite rightly, ask for the statement of reasons after the determination has been made. Many of us have also been in that position. I would like to ascertain whether you have done any sort of internal research on how many of those cases in which the determination has found in favour of the appellant has had no presenting officer in attendance. On the basis of the statement of reasons, how many of those cases has the Social Security Agency subsequently referred to the social security commissioner?

77. Mr Haire: I am not aware of any analysis that has been done on the commissioner, I am afraid. I do not think that we have done any work on that.

78. Mr M Kelly: No, we have not.

79. Mr McGlone: I am talking about another bite of the cherry, which is another appeal all over again. I am interested to hear whether there is any correlation between a presenting officer not being there to fulfil their duties and the referral of cases to the social security commissioner. I do not know how or whether you can find that out.

80. Mr O'Reilly: In total, about 200 cases have been referred to the commissioner on a point of law.

81. Mr McGlone: Are those specifically DLA cases?

82. Mr O'Reilly: No, they are across the board; they apply to all benefits.

83. Mr McGlone: I am interested to know whether there is some correlation between the non-attendance of presenting officers and what happened subsequently.

84. Ms Purvis: Mr Haire mentioned the of the appeals tribunals's annual reports. Page 22 of the Audit Office report refers to delays in the publication of the president's reports. By the time that they are published, they are two to three years out of date. The latest information on appeals that are held due to error by the agency relate to 2007-08. Why are there such delays in publication?

85. Mr Haire: As I said, it takes time to report, because the president must follow through and see how some of the sample cases are resolved. It takes longer for those to work through and to get the relevant data. In England, a snapshot of all tribunals is taken on a given day, and access to data is easier. As I said, a couple of years ago, that process was very slow. The Department received the 2007-08 report in February of this year and published it on 20 May. The report for 2008-09 was received on 17 September, and we are doing what we have to so that we can get that out fairly quickly. Therefore, we are achieving a faster turnaround time. The size of the sample and the president's method of working means that the turnaround time will remain slower in Northern Ireland than in GB, but we are trying to reduce the timescale.

86. Ms Purvis: Why does the Department, not the president, publish the report?

87. Mr Haire: I presume that that is a legislative requirement. Is that correct?

88. Mr M Kelly: Yes.

89. Mr Haire: Legislation requires it to be done that way.

90. Ms Purvis: Surely that would give the Department an opportunity to decide on the most favourable time to publish the report.

91. Mr Haire: Were we to be Machiavellian, that would undoubtedly be the case. However, that is a fair point: we should be accountable for getting the report out as rapidly as we can.

92. Ms Purvis: It is about standards of decision-making. Although that impacts on the work, it does not take two to three years to do so.

93. Mr Haire: That is a very fair point. Perhaps, going forward, we should look towards the Courts Service. Maybe there should be separation, but, as I said, it is stated in legislation that the process must be done in this way, and that is how it is handled.

94. Mr O'Reilly: The president's report is one of a number of sources that we use to assess decision-making and its effectiveness. The agency also has a team that selects and independently reviews cases to ensure that decision-making is in line with the guidance. We also have the joint standards committee, which is chaired by Eileen Evason. That committee lays its report in the Assembly, and it reports annually on the standards of decision-making across all our benefits services. The president's report is another external review of our decision-making and of the reports that we provide.

95. Ms Purvis: Does that also look at the time that is taken to deal with claims end to end?

96. Mr O'Reilly: The joint standards committee also reports on the time that it takes for us to make decisions and to process cases.

97. Mr McGlone: Paragraph 1.12 deals with the agency and the appeals service's backlog. Those figures are almost two years out of date. Do you have you any figures for the agency and the appeals service as of 31 March 2010? Do you have more contemporary figures?

98. Mr Haire: With respect to that backlog, which we have been able to get on top of, Mr Kelly may have some exact figures on that.

99. Mr M Kelly: At this point in time, the agency has about 600 appeals outstanding.

100. We generally receive about 600 appeals a month, so at this point, we have about a month's work in hand. If we base that on our target of clearing each case within eight weeks, we consider that an acceptable head of work. The team works through the appeals. When we receive an appeal, it is not just a simple matter of constructing documents. That is because the appeal writer is part of the process, so they have an informal look at the decision to see whether the case should go to appeal. They correct any anomalies that they see in the decision. Therefore, at this point, the work-in-hand situation is quite healthy.

101. Mr McGlone: You said something about eight weeks. Eight weeks to do what? Is that eight weeks from the receipt of form GL24 until the documentation goes to the appeals service?

102. Mr M Kelly: That covers the time until the documentation goes either to the customer or to the Northern Ireland Courts and Tribunals Service. Our target for that part of the process is eight weeks.

103. Mr McGlone: How do you define an acceptable level of backlog?

104. Mr O'Reilly: We define that as acceptable if work is in the backlog for less time than it takes to process it. Presently, our target is 40 days, but we are over-performing in the amount of time that is taken. That means that we will revise next year's performance targets so that we can achieve further improvements.

105. Mr McGlone: Turning to figures 8 and 9 on page 33, the performance against target is commendable, although in 2007-08, performance against the 40-day target for actual average clearance time for preparing and issuing the DLA appeals submission to the appeals service slipped a bit. Is there any particular reason for that? Do you have contemporary figures that show an improvement in that area?

106. Mr Haire: Yes, and improvement has been steady. In 2008-09, we managed 37 days, and, by 2009-2010, that was down to 26 days. In the year to date, the rate is running at nearly 30 days, so we are well within target. Since we sorted out staffing, resourcing and other issues, we have had a much better handle on processing. That means that there is no longer a 50-day backlog.

107. Mr McGlone: Although this may be a matter for next week's meeting, if you look at figure 9 on page 33, can you tell me whether you have any views about the length of time that it takes to complete the tribunal process?

108. Mr Haire: Some elements of the system are obviously about getting a case to first hearing, and that lies really much more in the appeals process. The work of the tribunal then becomes involved; however, you will obviously want to talk to the president about that.

109. Mrs Broderick: There are two parts to the process. First, the first listing of a case is an administrative target, which is currently nine weeks. To date this year, the performance on that target is 9·9 weeks. Secondly, once a case is listed, setting a target to process it is a matter for the president of the appeals tribunals. According to management information that we have, we know that, to date, we are doing that in just over 16 weeks.

110. Mr McGlone: I want to tease out something else, because this gets to me somewhat. On some occasions, an adjournment, which can delay the appeals process, is the Department's responsibility, whereas, in other cases, it is the appellant's responsibility. Nevertheless, if further evidence is required, people are entitled to bring a case before the appeals tribunal and to seek permission for an adjournment. However, another element, which is the availability of medical records, kicks in quite frequently, although I do not know what you can do about it. A number of times, I have landed at an appeals tribunal only to find that medical records are not there. That certainly is not your organisation's fault, because the presenting officer may have had another case to deal with that day, they may have been there for just that day or they may have had to go back home or to the office. Is there any way to make sure that medical notes are present? I know of cases where the doctors simply refuse to release medical records. Obviously, this discussion overlaps with any that we might have on the appeals service's work. However, the reason that doctors give for refusing to release the documents is that medical records have been lost in the past. That can lead to a difficult situation. Have you given any thought to how that could be alleviated so that, as happens in 99·9% of cases that go to appeal, it is not a matter of the clerk coming out, saying that they do not have the medical records, there is an adjournment, the medical records have to be found and you are back there again in two or three months?

111. Mrs Broderick: We recognise that that is an issue. Some 40% of the adjournments of appealed DLA cases are due to the GP notes and records not being available. We have a system whereby we get the records with the consent of the GP and appellant. We inform the GP of the date on which the case is listed, and we send them a reminder letter. We try to phone the GP to say that we need the records within three days. We do not want to keep the GP notes and records, which, more often than not, are the original records, in our possession for longer than we need to. There is obviously a balance to be struck between our obtaining the records in time for the hearing and not keeping them any longer than we need to. I think that there may be a benefit in looking at how the processes work in the context of the lean systems that we are trying to roll out in the appeals service.

112. Mr McGlone: Have you had any thoughts on how you could do that?

113. Mrs Broderick: We may have to go back and look at how cases are listed and engage directly with the British Medical Association (BMA).

114. Mr McGlone: That is a fair point. OK; thanks for that.

115. The agency and the appeals service claim to monitor progress, but can you explain why a reconsideration would take up to 165 days, as is indicated in figure 11 on page 34 of the report? I know from experience that those reconsiderations can be turned around fairly quickly. Indeed, some may argue that they are turned around possibly a wee bit too quickly. There could be a perception that cases go out the door because a decision has been made already, and people are left to take the case to appeal. Why would a reconsideration take up to 165 days?

116. Mr O'Reilly: There are undoubtedly individual cases that take a lot longer than we want them to. You have already discussed some of the relevant issues, such as the availability of medical evidence and people submitting additional evidence for our consideration. We always want to ensure that we get through the process as quickly as possible. The report mentions a reconsideration that took 165 days, but we must recognise that that is one case out of a sample of 75. On average, 8,000 cases come in to us annually. Specific cases may take a lot longer, but that is determined by the availability of the information that we require to make a decision.

117. In the DLA system, we have mechanisms whereby we review the length and history of cases. Our managers pull those reports regularly and check to ensure that we have all the information that we require. We make follow-up calls to GPs and consultants to ensure that we get the necessary information. Before we can make a decision, we have to go through that process to ensure that all the information that the claimant wants us to consider is available. Therefore, we review the process continually, but there will be individual cases in which that situation arises, mainly because all the evidence is not available.

118. Mr McGlone: In a review, the evidence is normally presented within a one-month period or thereabouts.

119. Mr O'Reilly: In a fresh claim or a reconsideration —

120. Mr McGlone: I was referring specifically to a reconsideration.

121. Mr O'Reilly: The reconsideration must concern an issue on which additional information that we do not have is asked to be taken into consideration.

122. Mr McGlone: Mr Lunn had to go, but he wants me to run through a few of the questions that he was going to ask. Mr Haire, figure 15 on page 37 indicates that the appeals service's target times have been reducing progressively. However, performance, particularly when taking an appeal to its first hearing, has been relatively disappointing. Indeed, the update of 4 May shows that it appears that that performance is deteriorating. Looking at the figures in figure 15, can you tell us what steps can be taken to reverse any decline? Have the figures that you gave earlier changed suitably in-year?

123. Mr Haire: There has been an issue with first appeals, due to the 3·5% annual increase in appeals. There has been a problem, and our figure for target times has stayed stubbornly just above that level over that time. That is clearly one area on which we want to keep working. Although we have seen, as I said, a 50% reduction in the overall processing time, bits of the process are proving chunkier and more difficult to move. Indeed, you put your finger on one of those areas. We will have to keep working on that to see whether there are ways that we can work through that particular bit and, through our lean processes, get that figure down. Indeed, Siobhan's team is now responsible for that.

124. Mr McMurray: In 2007-08, the 10-week target was met. In the following two years, those targets slipped a bit to 11 weeks. However, the times have since come back to roughly nine weeks. Therefore, we are below the 10-week target time and back on track.

125. Mr McGlone: I will stay with figure 15, which deals with percentages and other figures. We could perhaps deal with these issues separately, but how many cases are not overturned at review or, as it is called, reconsideration? Of those cases, how many subsequently wind up at appeal or tribunal? Do many, or any, people move straight to appeal? I normally advise people to go for a review in the first instance.

126. Mr O'Reilly: The figures in the report show that, on average, we have received approximately 8,000 cases for reconsideration, of which just over 6,000 progress to full-stage appeal at tribunal. Anyone submitting a case straight to appeal has to go through the agency, because we have to provide the evidence to the appeals tribunal. On average, around 12% of our total caseload goes for reconsideration, and around 10% of our total caseload goes to full appeal.

127. Mr McGlone: Is that minus 2%?

128. Mr O'Reilly: Yes, because 2% of cases are decided at that point.

129. Mr McGlone: Can you tell me in actual numbers, as opposed to percentages, what we are looking at?

130. Mr O'Reilly: There is an approximate total of just under 8,000 reconsiderations.

131. Mr McGlone: Is that the 12%?

132. Mr O'Reilly: Yes, and of that, just over 6,000 cases go through to appeal.

133. Mr McGlone: I have to ask about the reconsideration process itself. If so many cases that have been asked to be reconsidered eventually wind up at appeal anyway, what is the value of a reconsideration, other than that for the 2% of decided cases?

134. Mr Haire: Initially, reconsideration is a formal alternative to the dispute resolution mechanism. By taking a reconsideration, a case does not need to go to appeal. Therefore, there are no tribunal costs and a quicker decision is made. We are required by law to have that process, which is one issue, and it is, in a sense, a formalised ADR system that gives a quicker solution. It does seem to help us to take forward —

135. Mr McGlone: The problem is, as we see with many people, that 12% minus 2% of all cases still go to appeal. Therefore, I am trying to establish the merit of reconsideration.

136. Mr O'Reilly: Reconsideration is another appeals mechanism. It is an independent review of the original decision-makers' decision. A reconsideration takes account of all the evidence that the original decision-makers had, plus whatever other evidence the appellant has put forward. All that is then reviewed.

137. Mr McGlone: I will perhaps query your use of the word "independent", which has come up at other Public Accounts Committee (PAC) hearings and been teased out. It will be teased out a lot more before we are finished. Are you saying that the review is conducted by officials other than those who made the decision?

138. Mr O'Reilly: Yes.

139. Mr McGlone: Thank you; that is fine.

140. I want to say one thing about the DLA branch. I know that Mr Kelly has always been at the end of the phone to sort out cases when required. It is always useful to have someone efficient there to do that and to make sure that those cases are dealt with.

141. Mr McLaughlin: I also have a couple of cases to discuss.

142. Mr M Kelly: The service extends to all MLAs.

143. Mr McLaughlin: Mr Haire, I want to discuss the correspondence that you had with the Committee Chairperson about customers who have autistic spectrum disorder. It seems to me that there are a number of issues, and, in the earlier part of our discussion, you acknowledged that there are deficiencies in the data systems and the data capturing mechanisms. Your letter is helpful in a number of ways, because you gave us a definition of qualification and you set out the mechanisms that the tribunal would rely on to come to decisions.

144. Interestingly, you indicated in your response to the second question today that there is no central register of information on the proportion of the population that has autism. In the commentary on the quality of the decision-making process, you reflect that it is generally sensitive to the qualifying conditions. Clearly, however, if there is no central register, that can affect the specific function that we are discussing here, as well as a range of other government-sponsored services for people who need support. Have you made a formal representation about the quality of information and the compilation of a central register? Such a register would help you and, I suspect, a number of other agencies.

145. Mr Haire: We are developing our understanding of autism, and, clearly, we must ensure that we keep ourselves well informed of it. All our decision-makers recently had a half-day training session specifically on autism and how it presents itself. Our particular challenge, as Mickey Kelly emphasised, is to determine how autism affects claimants' day-to-day living. The issue is not the particular designation of an individual's medical condition, so I am not clear exactly how a central register would address the issues with this particular benefit. However, Mickey may have some thoughts on that. I am not sure that, given our current state of understanding, a central register would resolve the issue. In saying that, however, I do not want to indicate anything other than our commitment to keep trying to work on the issue and to understand it better in our process.

146. Mr M Kelly: Autism is one disability that people have, and we take it very seriously, as we do a range of other conditions. We have refresher training for decision-makers who deal with a range of disabilities. In addition to autism training, we have carried out medical awareness sessions on the effects of cancer, brain-induced injuries, fibromyalgia and ME. Notwithstanding that, more recently, we have looked in particular at cases involving children who may have autism or other conditions. We now have a discrete team, as opposed to a range of decision-makers, that processes DLA claims from children. In the case of autism in particular, those decision-makers use new online medical guidance that has been written by DWP medical experts, with, most importantly, input from the National Autistic Society. As the permanent secretary said, we are developing our learning and knowledge of the particular system in that context. We work hard at training our decision-makers to be aware not just of the disability but the effect that it has on people's care and mobility needs.

147. Mr McLaughlin: I already acknowledged that the training has been effective. I also acknowledge that considerable understanding and sensitivity are demonstrated to customers who present with certain conditions. However, an underlying assumption has been made about the matter. In many ways, autism is generally accepted as being a Cinderella element of our overall system of care for people in the community. Incidences are under-reported, and there are issues with assessment. The existence of a central register would in itself put a focus on ensuring that those historical anomalies and gaps in provision are addressed. Therefore, a register would help more people than just those in your organisations. For example, some, particularly older people, could present, and they may not be recognised as suffering from autism. The system is very gradually becoming more sensitised, and detection rates are improving, although we do not have statistics for that in front of us. However, some customers could present with the effects of a range of disabilities. A judgement would then have to be made about what is a primary or secondary disability, and, in my view, medical reports that may not be complete on autism would have to be relied on. Judgement would also have to be made about which of the disabilities is having the particular effect, but autism may not be ranked in that context.

148. Therefore, there is an underlying assumption that all those suffering from the range of autistic spectrum disorders are recognised, assessed, statemented and so forth and that we know who they are. That means that, when they present to you or to anyone else, that can be taken that into account. However, I am making the case that your quality of decision-making is impaired by the fact that the system that you and others have to depend on is incomplete and, in my opinion, inefficient.

149. You rely on the IT system of the Department for Work and Pensions, but that does not have specific categories for dealing with the autistic spectrum either. These people could, in my view, be acting with the utmost integrity, but the vulnerability in the decision-making process, particularly when dealing with appeals or representations about unfair outcomes, is that you are blindsided to an extent. You are certainly vulnerable to being double-guessed. Surely all that would add up to a very strong argument for you to represent your concern and press the case of the benefits that a central register would have for all concerned, even if it is not your direct responsibility to deliver such a register.

150. Mr Haire: As a Department, we have no expertise in that area. Clearly, we want to work with whatever the best method may be, and people who have expertise in this area can help us to guide our decisions to make sure that there is a right way. The Department has not considered whether we have a position on a register, but we do not doubt that we have to ensure that we keep informed of ongoing debates and involve ourselves in the issue.

151. Mr McLaughlin: These are cross-cutting interests, with the Department of Health, Social Services and Public Safety and the Department of Education having a clear input. Will you consider whether there is a benefit in raising the issue with your colleagues at senior leadership level either in the Department or its appropriate agencies?

152. Mr Haire: As you say, the Department of Health has the lead in the area, and we see strong merit in trying to deal with a particular need in the community. We want the best information from people in the community so that we can make the best decisions. We are very much involved in those interdepartmental discussions. However, I have not considered the question of a register one way or another.

153. Mr Mc Laughlin: I am asking you to consider it. We are talking about the administration and management of the disability living allowance, yet you do not record cases by disability.

154. Mr Haire: The system that is there —

155. Mr McLaughlin: Such cases are not recorded in the current system. Surely it is time to do something about that.

156. Mr Haire: As we move towards a reform of the DLA, I suspect that there will be a lot of issues that we can take fundamental stock of. The policy has not been looked at for the past 20 years.

157. Mr McLaughlin: I will have to study Hansard to see whether I got a yes or a no. What do you think; what did I get?

158. Mr Haire: A definite maybe.

159. Mr McLaughlin: I do not think that that is good enough for me. [Laughter.]

160. To return to the subject, can I take it that I have made a point that merits some exploration and that will allow us to follow up on that issue?

161. Mr Haire: Absolutely. You have made your point very clearly. We recognise the seriousness of the issue. I cannot tell you exactly what our take on it will be, but we will certainly consider our position.

162. Mr McLaughlin: That is much closer to a definite maybe. I will settle for that for this afternoon.

163. Mr Dallat: At the beginning of the session, reference was made to how training had improved and the opportunities that exist for new qualifications and so on. What kind of training do panellists take, particularly on their attitude to those who come before them? I will tell you in a minute why I am asking that.

164. Mr Haire: Training is an issue that the president, who is coming before the Committee next week, deals with.

165. Mr Dallat: I am ahead of the game and have perhaps forewarned you of my question. Is it ahead of the game to ask about the meeting places for tribunals?

166. Mrs Broderick: There are 18 such venues across the jurisdiction.

167. Mr Dallat: Recently, I attended three tribunals in Coleraine courthouse. They were going on at the same time as a rape case, a murder case and some other awful case. Is that the correct environment for people who are distressed and ill and who have had to be coaxed out into the open in the first place?

168. Mrs Broderick: You are looking at courthouses in the context of criminal cases. However, courthouses have a wider remit in that civil and family matters and, now, tribunal matters are dealt with there. Quite a significant number of DLA cases are heard in Coleraine courthouse. As we move to an integrated Courts and Tribunals Service, I see an opportunity to look at using courthouses as venues for other hearings across the jurisdiction. However, we would do that only after consultation with stakeholders. Coleraine courthouse has been used as a venue for appeals for quite a while.

169. Mr Dallat: I am aware of that, and, to be honest, most days the place is as quiet as a mouse. However, on that particular day, infamous cases, to which I will not refer, were being heard, and it struck me that that was not the place for people in a distressed state. They did not need to be sharing open space with the kinds of people who were attending those court cases.

170. Mrs Broderick: We will look at that in the context of how we use venues. However, in trying to get value for money from the estate, we use courthouses. As you said, most of the time, using it as a venue for appeals service hearings is the best use of Coleraine courthouse. We are trying to get value-for-money from our civic buildings.

171. Mr Dallat: I would not argue against the concept or principle of using courthouses in the wider sense. However, at the same time, is it that you want people to feel a tinge of guilt that they have done something wrong, and is that why tribunals meet in courthouses?

172. Mrs Broderick: No.

173. Mr Dallat: No?

174. Mrs Broderick: As a court service official, no.

175. Mr Dallat: I can tell you that the answer is yes. In Coleraine, there is a town hall and all sorts of other places in which a tribunal could meet. However, I do not know the costs that are involved, so I cannot contest that.

176. Mr McGlone: To pick up on that point, perhaps you do not appreciate this, but a lot of people who I represent are up to high doh. John has given one example, which is perhaps a more extreme case, in which a hearing was held at the same time as a high-profile criminal case. People involved in tribunals are up to high doh about having to go to any venue. For them, a courthouse equals crime, and we must remember that we are talking about people who have never been across the door of a courthouse in their puff. Also, in some cases, we are dealing with people who are profoundly disabled.

177. Depending on which venue a case is being heard in, there is not always somewhere for people to go to sit down and look through the medical records. I have been at venues where I have seen people look through records on their knees as they tried to hoke through this and that and make notes. As you know, you can travel for an hour an half to get to a venue, as I do to get to Omagh, and for an hour and a half to get back, and you can spend that time looking at medical records with the Tribunals Service. However, that is just not practicable. In common with the panel, the first glance you are getting of the medical records is on the morning or afternoon of the hearing. Therefore, a table and a chair or a table to accompany the chair would, quite often, be useful to give people the capacity to deal with that stuff.

178. Mrs Broderick: We are looking at the venues, and we keep them under review. However, like everything, a cost is attached. We have provided new furniture that comes from former Court Service stock in some venues. However, we need to strike a balance between getting the cost right and trying to provide the best facilities that we can. We take that into account when we book the venues. More often than not, if there are extra rooms, we use them. However, if there is an additional cost, we may not be able to afford it. In some venues, no extra rooms are available to hire.

179. Mr McGlone: I am not even talking about an extra room. A table would be useful. You can get them at IKEA or wherever. I am sure that they are not that wild dear.

180. Mrs Broderick: The difficulty is that they are not our venues.

181. Mr McGlone: I know that. The owners would perhaps rent them to you for a nominal fee. My only point is that the provision of a table is not the most extreme expenditure and will help to take people, who, in many cases, are disabled, through their medical notes. There has to be a table or two about the place to get those people sorted.

182. Mr Beggs: I want to go back to the issue of whether the presenting officer attends the appeal hearings. I see that, in GB, that occurs about only 10% of the time and when there are more complex cases from which some learning is likely to come out. Why do we use a different approach? It seems that we bring a presenting officer when there has been a written submission. Why are two different processes being used?

183. Mr Haire: Ultimately, the aim is the same. We argue that we send presenting officers to complex cases where we can assist the tribunal by being present. We give a slightly more generous interpretation of a difficult case than do our counterparts in GB, and, therefore, we probably send a higher proportion of officers to a greater proportion of cases. However, we send them on the basis of the same principle. The argument is whether we will gain information from doing so and improve our decision-making. As I suggested earlier, although we do not see that as the prime reason for our attendance in early discussions, we thought, early on, that it might produce some benefit. However, our view now is that that is not the real reason for our being there; we are there to assist the tribunal in making its decision. We put a little bit more resource into that than do our counterparts in GB, but the principle is the same.

184. Mr Beggs: Do tribunals not have the ability to make their own decision? If a tribunal is an appeal mechanism, it ought to be able to make the decision itself. I find it strange that presenting officers have to be there to interpret whatever evidence has been presented in writing.

185. Mr Haire: If the issue in question is extremely complex, we think that, by being there and explaining the nature of our decision and why we made it, it may help them to resolve the issue.

186. Mr M Kelly: One complexity with DLA in particular is that 11 different rates of benefit are applicable in certain circumstances. Therefore, it is complex, in that there are fluctuations between the rates that are applicable. At times, in that case, the attendance of a presenting officer helps the tribunal and helps to clarify any issues in our written submission. The Audit Office report refers to the fact that our written submissions are much more detailed than those of our colleagues in Great Britain and, consequently, we send more presenting officers than they do. The president has commended our approach, whereby our submissions are of a high quality and we send more people.

187. The Chairperson: You will be glad to hear that there are no other questions. We are meeting the president of the appeals tribunals next week, so we may need to ask you further questions in writing after that. On behalf of the Committee, I thank you all very much for coming today.

21 October 2010

Members present for all or part of the proceedings:

Mr Paul Maskey (Chairperson)
Mr Roy Beggs (Deputy Chairperson)
Mr Gregory Campbell
Mr Patsy McGlone
r Mitchel McLaughlin
Mr Stephen Moutray
Ms Dawn Purvis

Witness:

Mr Conall MacLynn

President of the Appeals Tribunal

Also in attendance:

Mr Kieran Donnelly		Comptroller and Auditor General
Ms Fiona Hamill		Treasury Officer of Accounts

188. The Chairperson (Mr P Maskey): Mr Conall MacLynn, the President of the Appeals Tribunal, is here to respond to the Committee's questions. You are very welcome to today's meeting. The usual procedure is for me to set the scene by asking a number of questions, after which I will pass to other members.

189. This is the second session on the Audit Office's report, 'The Administration and Management of the Disability Living Allowance Reconsideration and Appeals Process', the first having taken place last week. We shall begin by looking at paragraphs 2.34 and 2.35. According to paragraph 2.35, you have been monitoring a pilot process for alternative dispute resolution in GB.

190. What are the outcomes from the pilot scheme and what would be the advantages of introducing a similar process here?

191. Mr Conall MacLynn (Department for Social Development): Good afternoon and thank you very much for the invitation. The pilot scheme in Great Britain was conducted under the control of tribunal Judge Jeremy Bennett from London. Circumstances in Great Britain are different to those in Northern Ireland. For example, the success rate for disability living allowance (DLA) appeals in Great Britain is approaching 50% whereas in Northern Ireland it is considerably lower.

192. There was a feeling among colleagues in Great Britain that there had been a failure to consider with sufficient care the evidence presented to DLA offices. The aim of the project was to avoid unnecessary appeal hearings in view of the very high level of success. Consequently, a project was set up whereby when papers were received they were put immediately before a tribunal judge, and he assessed whether there should be an allowance. If he took that view, he made direct contact with the decision-maker in the Department to suggest that an award might be made. If the decision-maker agreed with the recommendation, the suggested award was communicated to the claimant, who was asked whether he wanted to continue with his appeal. The project was carried out over about four months in areas around London, in an area in south Wales and in Scotland.

193. Although the results were quite encouraging, in that they managed to dispose of a fair number of appeals, the difficulty was that the total cost of doing so was not terribly different to taking the appeals to hearing. Therefore, the new chief executive of the appeals service in Great Britain took the view that, because there was no obvious monetary saving, he would not proceed with the project.

194. That said, issues here seem to involve more than money. For instance, I would like to see fewer people having to experience a full hearing before a tribunal. I would like alternative dispute resolution to be attempted in Northern Ireland, but we should go about it in perhaps a slightly different way. In the past, I have asked the Department to make available a senior officer, with knowledge of cases, who Assembly Members or other representatives could contact to see whether an agreement could be made about an appeal. Presently, when papers are sent to an appellant, the covering letter simply encloses the papers but does not give the appellant details of the officer who might be in charge of the case. Looking at the submission that was prepared by the Department, the appeal writer has a name attached to the end of it. This morning, I spoke to the head of the disability and carers service, Lesley Morgan, who said that if a representative contacts the service and explains that he or she wishes to speak to the appeals writer, contact can be made with that member of staff to discuss the case. Such mechanisms are probably an economic way of solving the dispute between the claimant, their representative and the Department. It could be a good way of exploring those issues.

195. I emphasised in my response to the report that there should be far greater attendance by presenting officers. I have been having an ongoing battle with the Department about that for the past nine or 10 years. I would like the Department to go much further and not only have presenting officers but have them at the hearing. They could make an immediate agreement with the appellant and/or their representative about an award, if possible, so that the case is removed from the tribunal altogether. As things stand currently, there has to be a hearing on every appeal unless the appeal is withdrawn. A good presenting officer will make a concession to the tribunal, which is sometimes very helpful. However, it does not relieve the tribunal of the obligation of conducting a hearing. If nominated officers were there with responsibility for cases and could, in effect, settle the case, that would relieve the anxiety of a substantial number of appellants.

196. The Chairperson: What has been the Department's response to those issues?

197. Mr MacLynn: The Department is very reluctant to give presenting officers the power to make decisions on the day of the hearing.

198. I do not quite understand why that is; you would have to discuss that with the Department. On the day of the hearing in Northern Ireland we normally have additional evidence available. Of course, we also have the appellant there, who can explain his or her problems more fully, but it is practice in Northern Ireland for medical records to be available as well. That additional block of evidence is very important.

199. In my survey of the standards of departmental decision-making, I conceded that the Department has a very high standard of decision-making on the basis of the evidence available to it. The problem is that when it comes to a tribunal we have additional evidence available, both through the medical records and through hearing the direct oral testimony of the appellant. That fact gives rise to a considerable number of allowances. It seems to me that if an officer from the Department was there and who could deal with the case on the spot, having seen the additional medical evidence and perhaps had an opportunity to have a discussion with the representative and the appellant, it might be possible to reduce the number of cases that have to go on for a hearing.

200. The Chairperson: That would obviously speed the procedure up as well, I would imagine. Can you give a time frame for that?

201. Mr MacLynn: I am not necessarily arguing that there are direct financial savings to be made. When the permanent secretary gave evidence last week I think he made the point that all the money is spent by the time a case gets to tribunal. That may be so, but I would like to try to relieve the pressure on appellants themselves and to relieve them of the necessity of having to go through what can be a very detailed hearing. We should be able to list more cases if that approach is taken, because the success rate at appeal level is between 28% and 30%, which represents a fair number of cases. At the moment, we are dealing with around 9,500 appeals in total per year, which is not an insignificant number. I think there is room for progress there and to try to assist appellants through the system.

202. Mr McGlone: It is good to see you, Mr MacLynn. We do a fair amount of advocacy work in tribunals and the like, and my experience is that when the presenting officer does not show, despite probably the best will of the panel, it alters the dynamics of the panel. The panel then almost has to become a devil's advocate or a proxy for the Department. Perhaps I am saying that incorrectly — not a proxy for the Department, but the panel has to explore all aspects of the case before it to its ultimate satisfaction, whereas, if the presenting officer were there, he or she could do that on behalf of the Department. I am not saying that they would not do it, or that the panel is not fulfilling the role otherwise, but I find that the dynamics of the room change when the presenting officer is not there.

203. Mr MacLynn: I agree; it has always been a concern of mine that the public perceives the tribunal as doing the Department's job for it. That is manifested by the comments that appellants often make when they say that "you people" have done such and such. They seem to think that the tribunal is part of the mechanism of dealing with cases within the Department, and I am concerned about that. It interferes with the apparent independence of the tribunal.

204. Mr McGlone: Although the panel is working professionally, and in the vast majority of cases I would not have any great complaints about it, I often wonder if that is being done to obviate the necessity of the Department then taking it to the commissioner — in other words, to show that all avenues have been covered, every box has been ticked and all aspects of evidence have been accepted and received as they should be in order to avoid the social security commissioner coming down the line, if the Department chooses to go that route.

205. Mr MacLynn: There might be an element of that involved, but the tribunal still has an overall obligation to deal with all issues arising in the appeal. The Northern Ireland Court of Appeal made a decision in the Mongan case, when it ruled that, regardless of what a representative says — whether a representative of the Department or the appellant — the tribunal still has to deal with all the issues that arise in the case. I do not think there is any Machiavellian plan of any kind involved. We did get an increasing degree of representation when I pressed the issue somewhat some years ago, and now it has fallen back again.

206. I think that members of the public are disquieted because they expect the departmental representative to be there. They think that, if they have an appeal, there should be somebody from the Department to answer their queries, and, if there is no such representative there — as is normally the case — I think the public are dissatisfied with the appeals system.

207. The Chairperson: OK, thank you. Paragraph 2.4 states that you see some merit in establishing a formalised arrangement or public service standard with the appeals service. What do you consider to be the difference between a service level agreement and a public service standard-type document, and what steps have you taken to bring that change about?

208. Mr MacLynn: The report sets out that a service level agreement is to help to resolve disputes between two bodies, and to make the working relationship work better. The report raises a number of other issues about service level agreements.

209. My problem is that our tribunals are defined totally by the decision-making appeals rules. We have to follow those rules. That is the nature of the relationship between the tribunal and the public. Because I and all the members of the tribunal are essentially judges, we have to progress cases on as fair a basis as possible, but based on the regulations of tribunal procedure.

210. So, the tribunal rules of procedure fix the relationship between the tribunal and members of the public. For example, under those rules, we have to make a record of the proceedings, and make that available to the public if requested. We have to give reasons for our decision. We have to take into account setting aside applications, correction applications, and applications for leave to appeal. The chairman can make directions for the disposal of an appeal. So, the entire rubric of what the tribunal does is specified in the appeals regulations. In a sense, that defines the relationship between the parties and between the parties and the tribunal.

211. My problem is that a service level agreement is an administrative arrangement that is established for a totally different purpose. It is totally appropriate for that to exist between different administrative bodies, or between public bodies and members of the public, if that happens to be the case. From the adjudication point of view, however, from the point of view of an independent judicial body, I cannot impose procedures on tribunals themselves. Tribunals have to follow their own procedures, and follow the appeals rules. So, there is no agreement that I can enter into that would in any way bind a tribunal, and neither should it.

212. On the other hand, however, with regard to public service, I and the members of the tribunal are concerned that there should be proper levels of accommodation. I am concerned that I should be able to discuss problems arising at tribunal level with officials in the Department, and perhaps try to resolve those problems.

213. For example, there are ongoing discussions all the time about the content of submissions, how much information is contained in a submission, and the amount of work that the Department would do to produce a useful submission for the members of the tribunal, and for the public appearing before the tribunal. There are regular ongoing negotiations about that sort of thing.

214. There is also the issue of how long it takes for the Department to provide a submission for the tribunal. I have, perhaps, to make my position clear, because it is a name that I have and is one that I have to follow fairly rigorously. I had discussions about that with the Lord Chief Justice, and he made it quite clear that in judicial bodies, it should be the head of the judiciary who fixes the targets for the clearance of judicial work.

215. I have been frustrated in doing that in Northern Ireland, because the Department will not tell me when an appeal has been made. So, I have no way of controlling the amount of time that a Department takes to produce a submission to the tribunal. In the past, the administration of tribunals was in the control of the Department, which means that one of the parties to the appeal controlled the administration.

216. One reason I got quite concerned about the report was because it said that the relationships set up in the service level agreement between the administration of tribunals and the Departments preparing submissions was a satisfactory arrangement. From my point of view, that was not a satisfactory arrangement at all, because it was simply one part of the Department talking to another part of the Department to set up procedures that suited their internal administrative arrangements. That has started to change in that the administration of the tribunals through the reform package has now transferred to the Courts and Tribunals Service, so the administration of tribunals is now one step back from the Department if you like, and that is a very positive development. The other side of the coin, however, is for me to be advised when an appeal is made.

217. Once that jigsaw puzzle is put together, I will then fix targets for the Department to produce papers for the tribunal and take steps if that is not done timeously. I will also fix targets for the listing of appeals once the appeal documents are received by the tribunal. Taking in all of that context, talking about service level agreements is relevant in a sense, but there are different kinds of arrangements that have to be made because you are dealing with a judicial body and not with two administrative bodies.

218. The Chairperson: Is there any reason why you are not being advised when an appeal is made?

219. Mr MacLynn: You might well ask. I have been pressing the Department to do that for the last 10 years. I administered tribunals and set those targets until 1999, when the tribunals system was reformed, both here and in Great Britain. There was a constitutional problem, which I accept was real, relating to whether a member of the judiciary can be an account holder and be accountable to Parliament for the incurring of expenditure. There really was no satisfactory answer to that, so the administration of tribunals was transferred back to departmental officials, and has now been passed on to officials from what was formally known as the Courts Service.

220. In the process of that change, the Department took the opportunity of taking back control of the appeal process between the date that the appeal is made and the date of the preparation of the papers. The change was quite dramatic. When I had control of the administration, my target for the first listing of DLA appeals was 12 weeks. Within two years of the Department taking over administration, the delay in listing had stretched to eight or nine months. That demonstrates what happened in those circumstances, so I hope that we can step back from that somewhat when the administration arrangements are reformed.

221. Mr Campbell: I was going to ask about presenting officers, but I think you have dealt with that. The other issue is a more generic one relating to the presentation of your report, the delay and how you plan to ensure, presumably, that there is no delay in the future. What is the reason for the delay, and what will be done to eliminate it in the future?

222. Mr MacLynn: The delay is simply a systemic problem. What we do at the moment is take a calendar year and do a statistical selection of the cases that are heard during that year. In order to assess the standard of decision-making, the cases have to finish their progress through the system. For example, with the latest report we produced, which was for 2008-09, although we stopped selecting the cases in April 2009, the final cases may not have been decided until October or December 2009. My office then has to collate all of the responses throughout all of the benefits that we are dealing with, check all the responses that we receive from tribunals, and then prepare the report. In this particular instance, the report was given to the Department around four or five weeks ago.

223. I accept that that process will have to be quickened. As I think I set out in the report, my colleagues in Britain have an advantage in that they have 80 full-time chairmen; I have one. Eighty full-time chairmen can do a photo shoot, as it were, of all the cases heard in one particular day, whereas I cannot organise that in Northern Ireland because of the nature of our structure. What I am doing is looking at the system with statisticians to see whether we can adjust the targets and not necessarily select cases for the full twelve months, but perhaps select cases for nine months, try to get those dealt with as quickly as possible and then put them into the statistical analysis.

224. I should say, to be fair to the Department, that the standard of decision-making in DLA at a departmental level is in fact very high, as the report indicates. We are talking about percentages between 0% and 4·2%, which is a very high level of decision-making on a statistical basis. I would not rule out leaving DLA out altogether and concentrating on some of the other benefits where there are more serious problems, and perhaps in that way speed up the consideration of the cases to bring forward the dates. I am certainly open to doing that, and I will try to bring it forward as much as I possibly can.

225. Mr Campbell: If you did almost discount DLA altogether, would that then leave you open to criticism that you had simply avoided dealing with it?

226. Mr MacLynn: It could do, except that there has now been a three- or four-year period where the results have been very good each year. I could ask Mr Campbell a question: if a Department is performing at a high level, do we need to monitor it every year or should we do that every other year? DLA makes up about half of our workload, so that can make quite a difference. However, I have an open mind about that, but I am quite prepared to consider anything that will bring the report forward.

227. Mr Moutray: Paragraph 2.40 deals with the appellant satisfaction survey of November 2007. Given that 75% of appellants found the experience of an appeal stressful and 31% claimed that they would not advise anyone else to lodge an appeal, what actions have you taken to improve the experience since that date, and have you continued to carry out those surveys?

228. Mr MacLynn: Yes. The survey is not statistically valid. We simply carried out regular surveys in my own office. We did another one after that, and that percentage figure has dropped to about 28%. It is not a very accurate figure, but it is recognition of a serious problem, and I accept that it is a serious problem. The difficulty is that, when we deal with a group of people who are dissatisfied with the outcome of their appeal — for example, 70% of appeals on DLA are unsuccessful — those people will then question whether or not it was worth their while appealing. Some people say that, if they do not get any more money, there is no point in the appeal, because the tribunal simply upheld the Department's decision.

229. We take steps to try to reassure people that that is not the case and that we look at their appeals very carefully. However, from that point of view, we have to put our information in the public domain very carefully because it is absolutely pointless giving people false hope about an appeal. If a case has been decided perfectly properly and it goes before a tribunal, it is not very helpful to tell people that we will consider their appeal with great care and that there is a real possibility of success. That is not the case. We have to evolve some way to get across to the public that they have the right to appeal and that they can query how the appeal is dealt with. However, that will not necessarily give rise to a better result. That is quite a challenge.

230. Mr McGlone: It would be remiss of me not to raise the concerns that my colleague John Dallat had last week about the stress that arises because of the location of an appeal.

231. Mr MacLynn: What do you mean by location?

232. Mr McGlone: I mean the centre in which the appeal is heard. Mr Dallat gave an example of Coleraine courthouse. The issue was that people were brought there during, at least, a couple of very high profile criminal cases, one of which may have even involved a murder. From my own experience with appellants, I know that most of them get pretty worked up anyway if they have not faced a tribunal before. Most of them have not done that before. Therefore, there is stress involved in going into a quasi-judicial environment — it might only be a room, which is pretty informal anyway — to see loads of police and prison officers, and people being taken away in handcuffs. That may happen only once in a blue moon, but once in a blue moon is probably too often for some people, some of whose appeals may even be about stress-related problems. Have you given any deliberation or a wee bit of thought as to how to circumvent that and to make the surroundings for hearings a bit more pleasant or neutral?

233. Mr MacLynn: We avoided courthouses altogether until very recently. We very rarely use courthouses. Our main anxiety was to try to provide a local service for people, and, as the Committee probably knows, we have tribunal hearings in 16 centres throughout Northern Ireland, aside from our full-time centres. Therefore, to some extent, using centres outside our full-time centres always involves a degree of compromise on location, ease of use, and so on. We have used the town hall in Coleraine quite a bit. It is a suitable location right in the centre of the town, and people have no hesitation in going there. I have an open mind about courthouses. I agree that if other court proceedings are on, it is very unnerving for members of the public to go there. That should not happen.

234. Siobhan Broderick from the Courts and Tribunals Service, who is now in charge of running tribunals, was here last week giving evidence. She has concerns about making optimum use of court buildings for reasons of economy. Although I can understand those arguments, particularly in the day and age in which we find ourselves, I think that it is important to avoid sitting days. I have no hesitation in saying that, and I agree that it gives entirely the wrong message to members of the public who, after all, are simply asking for their benefit calculations to be checked and properly assessed. I think you are right about that.

235. Mr Campbell: In relation to the survey, you said that it is not really that scientific. Is there any point in continuing with surveys like that? If the majority of people going through the appeals procedure are being rejected, the chances are that they will find it stressful. It is a bit like 100 people applying for a job and you survey the 99 who do not get it. They would probably say that it is quite stressful, because they did not get the job. Is there much point in doing that? What is the benefit of it?

236. Mr MacLynn: I think we could do a statistical survey, which would be a lot more helpful. My view is that we should at least ask the views of people who attend hearings or give them a chance to express their views as to what difficulties they find, what is positive and what is negative. In this particular case I think we issued around 150 enquiry forms to appellants attending hearings in Belfast over around a one-month period. I think we had around 50 or 55 responses. That is why I say that it is not a statistically based, reliable survey. On the other hand, it does give us a feel for what people are concerned about and gives them an opportunity to comment. It would obviously be much more valuable to do it on a statistical basis but, as you rightly point out, a high percentage of people do not have success with appeals, and a survey will probably get a negative response from those people.

237. However, there is an argument — and I think it is an important issue — that people should have confidence in the system and should not hesitate to use it. If the frustration about getting an adverse decision is a significant matter, it may mean that we need to speak to people in a different way and try to get across to them that, win or lose, we want to hear what they have to say.

238. Mr Moutray: There are 160-odd tribunal members and tribunal hearings taking place at 18 different venues. How content are you that there is a consistency of approach and decision-making across the Province?

239. Mr MacLynn: Of course, it is not part of my responsibility to check consistency. My responsibility is to provide proper training for tribunal members.

240. Mr Moutray: How do you monitor it?

241. Mr MacLynn: I do not have a statutory obligation to monitor it, so I do not. It is the appellant system that checks the standard of decision-making, because each tribunal is entirely independent and has to deal with the case before it in a proper way. I do, of course, look very carefully at all the cases that go before the commissioners and at the commissioners' decisions. If I identify a training need at that level then that is something that I certainly take on board.

242. In our training sessions there is a degree of monitoring, in that we have a look at and discuss individual cases and the law that applies to cases coming before tribunals. Through that process of consultation with the members in a training context we can identify difficulties that people are having and in discussions with the entire group together we can pick up inconsistencies, as we do from time to time. In relation to matters of quality control, I have to be very careful not to be seen to be interfering with the individual decisions of tribunals, and I have to stand back from any direct involvement in that sense.

243. Mr Beggs: Who monitors whether one of the nine groups is being under-generous or overly generous in its decisions? In one area, there may be a very high success rate for appeals and in another area there might be a very low rate. Is anybody monitoring it?

244. Mr MacLynn: No, it is not directly monitored, because they are all individual, independent bodies. In the other court systems, whether it is County Court, Magistrates' Court or the High Court, a certain amount of guidance emanates centrally, for example, on sentencing policy. The judges issue guidelines on that. I think that a certain amount of discussion goes on about the level of damages awarded in the High Court for example, or in the county courts. It is the same in criminal injuries procedures.

245. In our system, however, we are dealing with entitlements on the basis of the legal rules that we apply. We try to have consistent application of the rules on the basis of the evidence as it is interpreted by the members of the tribunal. Obviously, in each tribunal we have three members. With regard to judicial independence, it would not be right for me to interfere any further than that, and I do not do it.

246. Mr Beggs: If it is not you, who would be monitoring whether there is inconsistency in decision-making between different panels?

247. Mr MacLynn: At the end of the day, that should be looked after by the appellate system, in that if rules have not been applied properly, there is a right of appeal to the commissioners if there is an error of law.

248. Mr Beggs: For instance, if one area has been overly generous, nobody will appeal. They will be happy.

249. Mr MacLynn: The system is that each case is dealt with by a panel of three members, and there is not that comparison.

250. Mr Beggs: Once a decision is made, it is very difficult to go back on it. How is a need for additional training highlighted?

251. Mr MacLynn: Training arises out of changes in the law, application of the rules, and renewal training. As the law is evolving all the time, we have cases coming down demonstrating how various aspects of what we are doing should be interpreted. We have different sorts of cases developing where there are challenges to how those cases are dealt with.

252. In DLA training, for example, we would look at problematical areas of medicine from time to time, and we have run training courses on issues such as autistic spectrum disorder, chronic fatigue syndrome, and alcoholism. Those are the problem areas at the end of the day.

253. However, when you talk about tribunals being inconsistent with one other, there is also a slight misunderstanding involved there, if you will forgive me for saying so. There is no such thing as one individual tribunal. It is a permutation that is constantly changing. It is not all that common to have the same tribunal sitting at the same time in the same place, unless a case was brought back to them that they previously heard.

254. So, it is a constantly changing group of people. It is not as though it is one single decision-maker sitting in one area, and you can say that that one decision-maker sitting there is deciding cases in a different way from another single decision-maker sitting somewhere else. It is a state of constant flux.

255. Mr Beggs: Do members express a preference for joining panels that are a reasonable distance from their home, or are they happy to travel from Newry to Coleraine? Is there not some geographical linkage?

256. Mr MacLynn: There is not a great deal of geographical trawl; it is more a willingness to travel.

257. Mr Beggs: Figure nine on page 33 of the report shows the time it takes to complete the tribunal process, which varies from 16 to 23 weeks. I understand that the current target is 17 weeks. Why does it take so long, what is a reasonable time, and how could the process be shortened?

258. Mr MacLynn: I have no administrative responsibilities at all. I do not run tribunals. The issue of putting tribunals on for hearings is entirely a matter for the Courts and Tribunals Service, and, before them, the appeals service. So, I do not have any direct control over those times, but we should try to put on tribunals as quickly as possible.

259. Those are departmental targets, and the outcomes have to be identified by administrators. However, the issue of how long it takes to list appeals, and the administrative backup, is entirely a matter for administrators. There are one or two difficulties in arranging hearings in that almost all our members work on a fee-paid sessional basis.

260. The only full-time members of the appeals tribunals are me and Mrs Edell Fitzpatrick, who are full-time legal members. Everyone else works part time and is fee-paid. The administrators send out a calendar to our part-time members and ask them to indicate their availability. The calendar is then returned, and sessions are allocated based on availability. Those sessions are then sent out to the members who have been selected to ask them to confirm whether or not they are available on those days. For example, at today's date, the calendar has been sent out for January, and, once the January sittings are fixed by administrators, my understanding is that the arrangements for sittings will go out in the final week of November or in the first week of December, approximately six weeks before the sittings start.

261. It may or may not be that members are still available for all the dates that have been selected at that time. However, that gives the Committee an idea of how fixing dates is a complicated process when we are relying on fee-paid members to select their availability through a calendar system. Once we postpone or adjourn a case, that system means that it can take another two or months to relist it. We cannot simply allocate the case to the following week. We possibly need to look at that, and I want administrators to determine whether they can tighten up that process so that cases can be allocated without that kind of delay or, in other words, to select panels without necessarily selecting cases. However, as I say, I do not have direct responsibility for that, but I share Mr Beggs's concern that we need to tighten up the timescales as much as possible.

262. Mr Beggs: The report shows that the percentage of tribunals that are postponed because of the unavailability of members has varied between 37% and 25%.

263. Mr MacLynn: To be perfectly honest, I do not understand that figure. I have asked for details of that figure. I do not know where it comes from.

264. Mr Beggs: Do you know the current figure?

265. Mr MacLynn: Not only do I not know the current figure, I do not know where those figures came from.

266. Mr Beggs: How could we find out?

267. Mr MacLynn: The Audit Office could perhaps give some details on that.

268. Mr Beggs: Who manages tribunals?

269. Mr MacLynn: I do not. The administrators do that. I am at the judicial end of the process, not the administration end.

270. Mr Beggs: I am trying to understand who is responsible.

271. Mr MacLynn: Absolutely. Siobhan Broderick, as the head of current administration, is the correct person to answer that query.

272. Mr Beggs: Perhaps we can write to her to get that information.

273. Mr MacLynn: I agree; that is an alarming figure. However, I do not understand how it was put together.

274. Mr Beggs: I will move to another area. DLA is a self-assessment benefit. I would have thought that it should be the responsibility of the claimant to provide medical evidence, because that is a key part of any claim to support statements that they make in an application. At the appeal stage, you have instructed the appeals service to request consent from applicants in all cases where their medical records have been made available. Why is that necessary, given that it does not happen in GB?

275. Mr MacLynn: Self-assessment is departmental policy, not law. The rules of disability living allowance do not say that it is based on self-assessment. That is a departmental policy. The difference between self-assessment and non-self-assessment is the difference between, for example, employment and support allowance and incapacity benefit and disability living allowance. Those other benefits require compulsory medical examinations, and that is why it is not an issue of self-assessment. It is entirely for the Department to decide what evidence it obtains to deal with a claim.

276. When we established disability living allowance in 1992, tribunals looked at the evidence that was made available and took the view that, in order to have a full understanding of the mobility problems and care needs of appellants, medical records would be extremely helpful. Therefore, I considered the situation and decided whether or not it was proper to request those records and how to do that. At the end of the day, I reached the conclusion that that was a matter for claimants themselves. In other words, I decided that it had to be a consent system that is based not only on the consent of the appellant but of the GP.

277. I set the system up at that time so that the claimant himself was given the opportunity to give his consent, if that is what he wanted to do. Equally, the GP would have to give his consent. We do not pay them; no fees are involved. It is driven purely by the consent of the appellants.

278. It is interesting that the system was opposed by the Department, and by Citizens Advice in Northern Ireland. The Law Centre in Belfast had concerns about it, and I listened to those concerns. The curious thing, however, is that the appellants drive it, and the appellants seem to expect us to have further information available from their GPs.

279. So, the system exists only because appellants want it to exist. If they simply did not give their consent, or were unhappy about giving their consent, that would be an end to the matter. In training tribunal members, I make it perfectly clear to them that no adverse inference of any kind should be drawn from the absence of medical records, and that they have an obligation to deal with a case purely on the evidence that is presented. That, in fact, is what they do.

280. If the doctor or patient/appellant has reservations, that is the end of the matter, and it is not taken further. That is why we train tribunals. It is simply an effort to make sure that we have as much information as the appellant is willing to give us about the problems that he suffers from, his medical condition and the care needs arising from that, and the mobility problems.

281. Mr McLaughlin: Are you entirely agnostic about the value or helpfulness to the panel of medical evidence? Do you see any evidence in formalising a view about whether it helps the panel come to informed and just decisions, as opposed to, say, the appellant's choice?

282. Mr MacLynn: The panels, and in discussions at training, are convinced that it enables us to make a better standard of decision. We are better informed, and have a better understanding of the appellant's medical condition.

283. Mr McLaughlin: Has there been any view about validating or evaluating that so that we can have a policy response?

284. Mr MacLynn: I am not sure. Again, Mr McLaughlin, we get back to each tribunal having the right to decide what evidence it will call for or take into consideration. I am not entirely sure whether if the administrative arrangements that we have in place were removed, tribunals would then start to adjourn on a regular basis for medical records. I suspect they possibly could.

285. It comes down to understanding a person's circumstances as well as we possibly can. You are quite right: they do not do that in Great Britain. They would not even attempt to do it, because the way that we do it in Northern Ireland is possible because of our small jurisdiction and the relatively small number of appeals.

286. I attach enormous importance to medical confidentiality. Because of that, we never ever make copies of the records. We ask for the records to be sent to us, they are dealt with on the day that they arrive, and are immediately sent back to the GP when we are finished with them. Representatives often say to me, "Can we not make a copy here, and keep copies, or can the Department have copies?" I dissuaded people from doing that, because I do not want multiple copies of very sensitive private medical records going anywhere if we can possibly avoid it.

287. That system is looked at very carefully, and confidentiality is paramount in running it. As I said, it does appear to be demanded by the claimants. They are not in any way pushed to do it. There is no pressure on them whatsoever. It is purely a consent system, and we seem to get the consent in over 70% of cases.

288. Mr McLaughlin: I find supporting medical evidence very valuable in my constituency work. You were talking about the possibility of postponing hearings because of the unavailability of medical records. Circumstances that can arise with the appellant can equally arise if a panel member finds it difficult.

289. In making the calendar-based arrangements that you described, is an additional panel member identified to see if they can clear that date in the event that they are required at short notice? When dealing with the listing of appeal cases is an additional case identified that can be slotted in? If a person seeks an emergency appointment with a doctor, that works on the basis of using cancelled appointments productively, rather than simply allowing downtime to build in to the system and affect all sorts of lists. When taking a car for its MOT one can very often get an emergency appointment because someone else has cancelled. Have you considered those arrangements?

290. Mr MacLynn: Those are matters that need further consideration, but it is fair to say that the administrators do try to fit people in if there is a cancellation; they say that they do that quite carefully. Our members do make efforts to make themselves available, if at all possible. It is a dilemma, because it is a very economical system to only pay people a fee as and when they sit, rather than having a large group of full-time people, with all the expenses involved in that. I think that, from the members' point of view, if he gives availability for 10 days but is only actually offered sittings for three days, that is the end of the matter, he simply gets the three days of sittings. There is also no guarantee, even if a member is offered a sitting day, that that sitting will occur. It might be postponed for some other reason. There are inherent difficulties of that kind in the system.

291. I will answer your other question about information. Some people opt to have their appeal dealt with on the papers and, if they do, those paper cases are slotted in when an opportunity arises at tribunal sessions.

292. Mr McGlone: We talked about the need for the medical evidence; that is very useful, because it gives a much deeper insight into the person's condition and the history of the condition week-on-week. That brings me to another issue — you will probably say it relates to the administrative aspect — which is the number of times appeals are adjourned because of the unavailability of medical records. There are practices that just will not release them, and they say that the reason for that is that medical records were once lost so they will not release them at all. There are others that say that it takes a wee while for the medical notes to come back again, and that they need those records so that a local doctor can quickly and easily look them up.

293. In most of those cases, such practices are genuine enough in their motivation; it is not that they are looking money for photocopying or anything like that. Usually the practice is that the appellant, or somebody acting on their behalf, picks the stuff up and leaves it back that day. Have you noticed, or has anything suggested to you, that the number of appeals being adjourned because of that has gone up, or is it static at a certain percentage? Is there a further issue there?

294. Mr MacLynn: There are slightly different practices in different parts of the country among the medical profession. Administrators have adopted different practices about the return of medical records and the postal system they use, whether that is recorded delivery or ordinary post. I would like to reassure you about the loss of medical records. We have been getting medical records since 1992 and, to my knowledge, I think two or three sets of medical records have gone astray in all of that time. In two cases we found that it was the medical practice that lost the records. It is something that we have been able to keep to an absolute minimum, but, nevertheless, it is absolutely crucial that that does not happen.

295. One or two sets of records went astray when I was in charge of administration, and we assisted the doctors involved in reconstructing the medical records and made a payment for that purpose. Fortunately we were able to do it. I think that some doctors are apprehensive that if registered post is not used the records might go astray, but, as I said, in practice that has not really happened. There are also some doctors who have concerns about data protection, and there are one or two officers in the Western Trust who have expressed a concern about that. I do not think that is really a problem, because there is a requisite consent to deal with the medical records.

296. I have been told by administrators that records are returned immediately afterwards and that the period of retention is kept as short as possible. However, most practices now have computerised records, and we only get a printout of the record in that the actual information is retained in the computer system of the medical practice. Three or four different kinds of computer systems are in use, and they produce slightly different kinds of information. However, I think that the days of the cardboard cover with handwritten records inside have practically come to an end.

297. Mr McGlone: I am not so sure about that. Quite often, it is a combination of both. We get the printout for as far back as it goes, perhaps five or six years, and the rest is handwritten information that we have to try to decipher. Coincidentally, an appeal that my office dealt with on Tuesday had to be adjourned because officials could not make out the handwriting.

298. Mr MacLynn: Handwriting is sometimes a problem.

299. Mr Beggs: I have a final question about paragraph 3.45, which is about fee-paid members of the tribunals. The paragraph suggests that we almost rely on the goodwill of tribunal members to give additional time over that which is set out in their terms and conditions of appointment. The report indicates that about three hours of preparation time is required for a one-day session. Are members paid for those three hours? How are those people paid and at what hourly rate? Does the fee take into account the preparation work?

300. Mr MacLynn: I hesitate to get into that in any detail because it is completely outside my responsibility. The question of fees is now a matter for the Courts and Tribunals Service, and fees are funded by the Department for Social Development.

301. However, I will outline what happens at present. The report sets out the level of fees that are paid on a daily basis. Some members are retained on half-day basis and may or may not get a full day. They are paid a fee for sitting on the day, and there is no additional payment for preparation or for any post-hearing work. If the reasons for the decision are requested subsequently, the legal member normally has to do that. Most of them do it at home in their own time. If there are applications to set aside the tribunal decision or adjournment applications or interlocutory applications, it may or may not be slotted into a hearing or the papers may be sent to the member's home. One fee is paid for each session when a member sits, but there are no fee arrangements for any further payments outside that.

302. Mr Beggs: The Committee should pursue that issue. Is that the reason why people do not turn up at court 37% of the time?

303. Mr MacLynn: I hope not.

304. Mr Beggs: It is worthwhile pursuing whether that is an appropriate level of remuneration. If it is not, we need to find out why those people do not turn up. It is in the public interest to get to the bottom of those issues.

305. Ms Purvis: I will return to the issue of presenting officers. You would like a presenting officer at every tribunal hearing, and that has a resource implication for the Department. Furthermore, you said that it would be beneficial if presenting officers could come to some agreement on cases. However, the contradiction is that, at the moment, the presenting officers do not have the authority to make that decision. Would it not be a better use of resources and presenting officers' time for your office and the agency to reach an agreement on which cases presenting officers should attend, given that presenting officers do not have the authority to make decisions on cases and that no alternative dispute resolution system is in place?

306. Would it not be better to agree specific types of cases that presenting officers should attend? Perhaps the resources saved from their non-attendance at other hearings could be used for a formalised ADR stage before tribunal?

307. Mr MacLynn: It is quite interesting. There have been reforms in the past aimed at improving the system. In 1999 there was something called a second-tier review; I do not know if you recollect it or not. When the disability living allowance system was set up in 1992, there was a separate disability living allowance tribunal. However, if somebody wanted to go to the tribunal, they had to apply to the Department first to carry out a second-tier review, and only after that could the case go forward for appeal hearing. That is the reason that the report states that at one stage the number of DLA appeals suddenly jumped; that was because the reform system abolished the second-tier review, and all cases went straight to appeal.

308. We could argue that the second-tier review system was actually quite efficient, because it was a formalised, internal way of looking at the case again and trying to see if it could be resolved at that stage. That did appear to reduce the number of appeals at that time, so it is something that could possibly be looked at.

309. On the question of selecting officers to appear, the difficulty is that all of those cases are complex. It is very difficult to say that an individual DLA appeal is a simple case, because we are dealing with a group of people who have complex health problems. There are almost always chronic health problems that have been going on for many years, and it is the effect of that chronic ill-health on the various levels of benefit. As one of the witnesses explained to you last week, there are eleven permutations involved; we are involved in three levels of care, two levels of mobility, and the interaction between those levels.

310. In relation to value, we are talking about potentially up to almost £6,000 a year, with open-ended awards in some cases that can go on for many years, so the value of awards is very high. If you combine complexity with value and the importance to appellants, it seems to me that there is a need for a good level of input from the Department in resolving those cases. DLA is now the most important maintenance benefit that people get. It is non-taxed and non-means-tested, it is substantial, and it makes an enormous difference to individual families. It is absolutely essential that it is got right.

311. I once did an valuation of a full-rate disability living allowance case and I reckoned that it was worth an award from the High Court in excess of £300,000 in capital. That is the kind of award for which income would have to be generated for the seriously disabled people who are claiming disability living allowance. For all of those reasons, it is important that the Department does put the resources into making sure that the level of benefit is right.

312. Ms Purvis: Do you see any correlation between presenting officers appearing at hearings and, for example, a determination on behalf of the agency to fight an appeal, or a correlation between the non-attendance of presenting officers and an indication that the agency is prepared to let an appeal be overturned?

313. Mr MacLynn: I cannot say that; I simply do not have the information to make a judgment of that kind. There was a suggestion last week by the chief executive of the agency that if there were presenting officers it would be more adversarial, but I simply do not see that. In my own experience the presenting officers are helpful; they attempt to help the appellant and to assist the tribunal. I do not think there is any doubt about that. I think the expression is amicus curiae — friend of the court. That is what officials do; one does not come across aggressive officials who are there to defend the decision of the Department. In my experience, the officials are there to assist the tribunal.

314. The Chairperson: Mr MacLynn, thank you very much for your time today. There may be some other issues that we may put to you in writing, but, for today's purposes, thank you for coming in.