In September last year the Ministry of Justice (MOJ) published a seemingly innocuous consultation entitled Transforming Our Justice System. Contained within it was a proposal to abolish the existing requirements for tribunal panel composition and make panels consisting of just a judge the default position for all tribunals. This would have meant that for Employment and Support Allowance (ESA) and Personal Independence Payment (PIP) appeals it would no longer be mandatory for the appeal panel to have a medical expert, or a medical and disability expert in the case of PIP. We were highly concerned by these proposals as, in our experience representing appellants, the non-legal experts often play a key role in ensuring the tribunal reaches a correct decision.
Last week the MOJ published their response to the consultation and the good news is they have partially climbed on down on these proposals:
“…we do not intend to proceed with the proposal to introduce a single member panel as the default position in the unified tribunals. Instead, we will amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 that the [Senior President of the Tribunal] may provide that a panel should consist of 1, 2 or 3 members, as required”
However this is not a total victory as they are going ahead with removing the requirement to have regard to the previous arrangements on panel composition. This means that ESA and PIP panels will no longer have to contain medical and disability experts, but can be varied at the discretion of the Senior President of the Tribunal (SPT). Given the immense financial pressure on the Tribunal service and the need to make savings it is quite possible that the SPT will decide to go ahead with using single member panels in a lot of cases.
As we wrote in our initial response to the consultation we are very concerned that this will effectively mean that non-legal members are only used in exceptional circumstances and this could undermine the accuracy of tribunal decision making. The consultation document stated that non-legal members ‘should only be part of the panel where their presence is relevant to the case’. In the cases of disability benefits the expert knowledge of the medical professional and the disability representative is always relevant to the case.
In our experience disability benefit appeals rarely rest on a legal issue but rather a dispute between the claimant and the DWP as to the impact of their condition on their capabilities in relation to the descriptors. The input of a medical professional, who has a proper knowledge of medical conditions and their potential to impact up capability is essential in this process. A medical understanding of a condition enables panel members to ask appropriate questions that can elicit vital oral evidence from claimants. As a PIP claimant who Z2K recently represented said:
“The hearing itself was great. The doctor had a really good understanding of what was going on”
We hope that the SPT will seriously consider the implications of their new power to vary panel composition before making any changes. With such high rates of success PIP and ESA appeals are a much needed lifeline for sick and disabled claimants denied the support they’re entitled to. We fear that any move to limit the use of medical and disability experts could undermine this and serve to limit access to justice.