Lucy Isaac, Tribunals Co-ordinator
In March 2020 as the UK entered into a national lockdown, Her Majesty’s Courts and Tribunals Service (HMCTS) adjourned all existing appeals with hearing dates by phoning each individual appellant. Gradually, they were re-listed for telephone hearings that could take place remotely in line with the ‘stay at home’ guidance. As we reach the one year anniversary of remote social security hearings, I reflect on where they’ve worked, where they’ve not, and some key learnings that should be taken forward beyond the pandemic.
Structure of remote hearings
After the shift to remote working, the options available to the Appellant were to partake in the hearing over the telephone, or request in writing for the hearing to be postponed until a face-to-face hearing could take place. As of spring 2021, there is now a third option, to take part in the hearing via video link using HMCTS’s Cloud Video Platform (CVP).
Structurally, there is little difference between a remote hearing and a face-to-face hearing. The majority of the questioning is from the medical member(s) of the panel directed to the Appellant in order to assess their entitlement to the benefit they are appealing. Representatives and witnesses are given the opportunity to make submissions or question the Appellant at the end of the hearing.
The good and the bad
Remote working has brought challenges, both administratively and interpersonally. Until the introduction of CVP where the notice of hearing provides a link and joining details to dial yourself into the call, we were instructed to provide contact details so that a Tribunal Clerk could dial us in to the hearing. There were unfortunately many occasions where, despite having provided our details, the representatives were not dialled in and the Appellant either pushed for an adjournment or felt obliged to continue in the absence of their representative. Not only was this potentially detrimental to their appeal, it is damaging to the representative/client relationship if it is not made clear to them where this error was made.
The hearings can often be emotional and some clients have said that ending the call and sitting alone in the absence of their rep to debrief after the hearing can be lonely and confusing. In addition, there are some clients who would find discussing such intimate matters over the phone impersonal and upsetting. We have worked with a number of clients who feel so unable to engage with a remote hearing that they have faced the long and unknown wait for a socially distanced hearing to take place.
Whilst there have been difficulties with remote hearings, there are some clients for whom this has opened up access to justice. Some people would not appeal a decision to avoid sitting in a tribunal room answering to a panel, or the physical exertion it would have taken to attend the Tribunal venue exacerbating mobility problems, or even simply being unable to afford the travel to the venue. These clients can now access the hearing and provide their oral evidence from the comfort of their own home, sitting where and how they like and wearing clothing that is comfortable for them. Pre-Covid these clients might have opted for a paper hearing with statistically less chance of success, or decided not to appeal in the first place.
With all of the challenges Covid-19 has brought, perhaps it has produced a model that could help a wider range of people access the Social Security Tribunal, allowing them to fight for a benefit they have all too often been wrongly denied – in 2020 93 per cent of the people we supported at Tribunal were successful in their appeal. Pre-lockdown, remote hearings were rare and difficult to obtain, and face-to-face hearings not a possibility for all. A total shift to remote hearings with no view of returning to the traditional appeal model notwithstanding exceptional circumstances would be too strict an approach, and a total return to the pre-lockdown structure unnecessary. When restrictions in the UK lift, perhaps there is scope for a dual system which allows a return to face-to-face hearings at a more limited capacity, prioritising those who delayed their appeal during Covid-19, whilst leaving the door open for those who wish to opt for a remote hearing.
Having experienced both models and comfortably used the Tribunal Service remotely for 12 months, it is clear that there is no ‘one size fits all’ approach that can be adopted, and flexibility and discretion should be applied to ensure as many individuals as possible are able to access the justice system to appeal a decision of the DWP.