 Thee. Good morning everyone and a very warm welcome to the eighth meeting in 2018 of the Social Security Committee. Can I remind everyone to turn mobile phones and other devices to silent so they don't disrupt the meeting or the broadcasting? Agend item one is a decision on taking business in private and asked members if they can tent to take items three, four and five in private. Agenda item 2 is a panel session on the social security tribunal. It is on the Scottish Government's proposals for a new Scottish social security tribunal. I would like to welcome the members of the first panel and thank them for their submissions prior to today's meeting. I would like to welcome Andy Little, who is a Welfare Rights Office for Midlothian Council, Stephen McAffoy, who is Senior Welfare Rights Advisor for Enable Scotland, Paul McCormack, Welfare Rights Officer, the Government's Housing Association, and Jane Smith, who is a Welfare Reform and Officer Debt Advisor, but here in a personal capacity not representing her council. As an opening question and I thank you all for your submissions again, I just like a general question about the regard to the social security charter and what difference you think that that will make to how the tribunal might operate. I don't know who would, if anyone would like to go first on that one. Will I just pick someone? Jane, would you like to go? In general terms I think it's a really good idea and it's nice to see general principles being debated appropriately coming through Parliament, all of that. I think that in my submission I've made at one point a small comment about rule 2, rule 3, the bit about the overriding objectives and said, I'd still quite like to see those enshrined in detail in the law as well, but that's not a comment on the charter. I think that the charter is a good idea. It's quite nice to see, I'm stepping out with my area of expertise at the minute, but it's quite nice to see Old Scot's law had the idea of things coming from principle rather than case law. Actually it feels a bit of a nod to that and I think that's really nice. Thank you. Mr McCormick, would you like to… I would endorse much of what Jane has said in terms of general principles seem to be, I think that there's very little to disagree with in that regard. Any further comments, any additions to what's been said already? I support the principles in general. I don't think that we're either convinced either way that it necessarily needs to be within the legislation for appeal tribunals, because I think that there's an argument that the overriding objective might cover the charter in any case in practice, so I'm not entirely convinced either way that it needs to be actually enshrined within the legislation here. And Mr Little, do you want to add anything? Okay, that's great. Thank you. I'm going to open up to members. I'll bring in Miss McNeill. Good morning and thanks for your submissions. Can I start by thanking Paul McCormack for your paper and some questions that he had, which probably apply to everyone? My first question relates to the concerns that you have around determination, redetermination. You'll be aware when the committee was taking evidence from the minister that the new provisions set out that the Scottish ministers will not be adopting that specific model, that it will be a determination done by another member of staff within the agency that claims to be done afresh, and the suggestion is that that would have a different outcome than the DWP. I note specifically that, as a result of your FOI request, 80 per cent of redetermination is made with an unfavourable outcome, so I can understand why you're concerned about that. I had pursued the issue at stage 2 in addition to that that perhaps there should be an automatic way of appealing because of my concerns around that. I just wondered if you were satisfied that the Scottish ministers say that they're adopting a different model. What do you think about that? Are you suggesting that there would be no requirement for redetermination that there would been an initial determination that would then carry right of appeal? They've removed the word mandatory back when it is, to all intents and purposes, my understanding, but I suppose the key thing is that ministers are telling the committee that there would be a different agency member who would look at the claim afresh and the implication being that the outcomes would be different from the DWP experience. I think that, going back to 2013, when the concept of a mandatory reconsideration to use the devolved language was first introduced, the intention was that that would perhaps reduce the number of appeals that would proceed to an appeal hearing. We now know that, because of the statistics that we've been able to provide, that has in fact not been the case. It would probably be over cynical in my part to suggest that it was used as perhaps a deterrent, a further deterrent to discourage people to exercise a right of appeal. It was a tier of adjudication, and my colleagues may take a different view, but I thought that it was unnecessary to serve no real purpose. Very often, as I said, it did have the effect of making people believe that they had no right of success to take their case on to the next stage of adjudication, which would be an independent appeal trial. The other point that was very, very relevant, which became very clear to us when it was first introduced, was that, for the purpose of a mandatory reconsideration—again, to use the old language—always was that, if you could provide additional evidence, it gave the new decision maker the opportunity to reconsider the case afresh. Our difficulty is that there was no way of obtaining additional evidence at that stage, because legal aid wasn't available, because the case at that point wasn't a subject of appeal. Around about the same time, most surgeries—if we're talking about medical appeals here—most surgeries in the Glasgow area actually had signs up saying, please don't ask us for any evidence, letters in relation to benefit matters. Essentially, we were going through a process where there was very, very little chance of success, and it was essentially going through the motions to get to the other end so that we could then exercise the client's right of appeal, at which point we were in a position to gather evidence, which hopefully would then lead to an independent tribunal taking a different view. The statistics would certainly bear that out, because the turnaround on appeal—essentially the number of cases that were successful on appeal that had been refused at mandatory consideration was quite stark, and that's why I provided the freedom of information request just to evidence that fact. I don't know if I've answered your question. Would your preference then be just a direct appeal? Yes. That's the way it always was prior to 2013. Not a determination in between. Is that the position of the panel? Yes. Prior to 2013, a decision, if it was unfavourable, carried an automatic rate of appeal without the obligation to go through the request for a mandatory consideration. The only benefit that still remains that way today would be a housing benefit decision, which carries an automatic rate of appeal. All other benefits don't. We just saw it as a necessary tier of adjudication in addition to our workload and an additional stress for someone who is trying to exercise a rate of challenge against an unfavourable decision. Thank you. I have another question, but I'm happy to read it. Is M2W to come in on that area, Ruth? Good morning, panel. Thanks for being here. It's difficult because what we're trying to do is something new, so you reflect on the old system and what happened with it. What the Government tells us that they're proposing is something that is different and that everything is going to be lifted up and looked at again. It's not about having that requesting additional medical information. I hear what you say about it being a detent and we don't want it to be a detent to appeal, but I can't help but feel that there should be an opportunity for the agency to fix it. The reason I'm saying that is in terms of the speed of getting money to my constituents that are needing it. Can you reflect on that aspect of it at all? Even in the old system, there was always the possibility that the agency making the decision could change before it got to appeal, so that could already happen. I wholeheartedly agree with what Paul said. The system of mandatory reconsideration isn't working, the statistics show that. What's proposed now is, to my mind, simply a redesign on the basis of just changing the wording. It's a redetermination rather than a reconsideration. I would definitely support direct lodgment to the appeal once the decision has been made. I note the policy position paper that was out on redetermination in appeals, which goes through the stages of what the new system will be and includes an independent rerun. It's a simple process with clear procedures and timescales, providing meaningful redress. Exhawn to say at the end that we have considered this proposal but deemed it inappropriate as our system is built differently from house and benefit appeals and it is not directly comparable. The automatic forwarding of appeals would place a significant administrative burden on the agency. It would also take away an individual's right to choose as they would not have the option to decide how they want to proceed at the conclusion of the redetermination stage. I would say that once the person is set off on the journey to challenge the decision, that should allow to go to the end process. If they don't want to take the case further to appeal, they could withdraw the appeal. Streamlining the process makes sense. Although we are looking at changing the culture and the way that decisions are looked at, it is laudable. We still have to look at the long-term process and the time that it takes. Simplifying the system to take out the redetermination would make sense. The point that I was making about how section 29 of the social security bill and the point about what happens when the case gets to appeal at the moment, the tribunal is only really going to look at the issue under appeal. I think that the relevant legislation suggests that the tribunal need not consider the part not appealed and there is obviously a protection there for the appellant once they get to the appeal. What you are proposing is a fundamental sea change, as far as I can see, because the whole decision is going to be on the table to be looked at again. That obviously has a big impact on whether people are going to decide to take a case to appeal. If that is what happens, that will be something that stops people from going to appeal, because they will have to think very carefully about whether they are going to commit to the appeal better off or worse off, because something will be taken from them. That would be my concern. Is it on this point, Alison? I just want to be clear. I think that what you are saying there is that this potentially could be a very negative experience and people would be scared of finding themselves in a worse position than that in which they started. I just want to be clear that you are not satisfied with the changes that have been made and that you... It is a very big opportunity to radically change the system in favour of justice by removing mandate reconsideration. The way that the legislation stands just now, I think that you need to think very carefully about when the person is coming to the appeal, what outcomes are open to the tribunal and what the tribunal can decide to do. At the moment, I think that there will be things to stand. There would have to be something really strange in the decision that has been made to allow a tribunal to go in and look at it again. What you are proposing means any case that goes to tribunal and the tribunal can look at everything at large again. The redetermination is going to be redetermined again from fresh, whereas at the moment when you go to an appeal, technically what you are looking at is a bit under appeal. Someone has a standard daily living, but they are contesting mobility. The tribunal would most times look at mobility now, then you can look at everything. That puts the onus on a representative to be saying very clearly to the appellant, look, if you go to this tribunal they might look at what has already been awarded, they might reconsider that and take it away from you. Thank you, that is very clear. Thank you convener, good morning everyone. I find this conversation really interesting and also really important. The designing of the system of public administration that does, as often as it possibly can, get it right first time for what are often very vulnerable clients and citizens and understanding what the appropriate relationship is between the ability of the agency to correct inadvertent errors before we get into the tribunal system on the one hand and on the other hand having an open and transparent and easily accessible tribunal system on the other is obviously a critical design question in terms of the social security bill and the regulations that flow from it. In that context, can I ask you two questions? Is it not good administrative practice to have internal review before, within the agency, before you get to the tribunal system? Is that not what mandatory reconsideration or mandatory redetermination in effect is? Given the opportunity to the agency to correct inadvertent errors before we get out of the agency and into the tribunal system, that seems to me to be good administrative practice and, in principle, to be welcomed and endorsed rather than criticised. That is my first question. My second question is, if we were to move away from a position of mandatory reconsideration or mandatory redetermination with direct immediate access to the tribunal system, how many additional cases would the tribunals have to hear? What is the additional burden on the tribunal system that that policy proposal would entail? How would you propose to pay for it? Clearly, if you get it right first time, that means that the agency has got it right first time and therefore that should lessen the number of cases that are going to appeal. Why does the agency need two bikes at the cherry to get it right? Maybe they should get it right first time. I am sure that the agency will try and get it right first time in every case, but we all know, all of us with any experience of public administration in any domain in any jurisdiction know that that does not always happen. Bureaucrasies sometimes make honest mistakes and other sorts of mistakes, giving the agency two opportunities to get it right rather than just one, presumably, is going to double the number of times that they get it right before we get out of the agency and into the tribunal system. One of the things that you are keen to do is change the culture and you are focused on getting it right first time. I am not going to belabor the point, but if you get it right first time, then the case goes to appeal and it is done quicker and the person gets justice quicker. The big problem with mandatory reconsideration is that it puts people off and it delays things. I think that that is the issue that I would have with that. A number of members want to come in in this area, but I will bring in Mr McAvoy, Ms Smith and Mr McCormack to call me before I bring the members back in. In terms of giving the agency a second chance to correct any areas, prior to mandatory reconsideration being introduced, if the person gets a decision that they disagreed with and lodged in appeal, a decision maker would then have to produce a bundle of papers that would be sent to the tribunal, so that bundle of papers would need to clarify the data decision, what the issues were, which the evidence were, so that opportunity was already built into the system anyway, because prior to the actual appeal being heard or even in the creation of the submission papers, there were always options for the decision-making body to say, right, we have made the wrong decision and to revise it at that point. I think that even if you allow people to directly lodge in appeal, that opportunity to get the decision right prior to any appeal being heard still exists, because it could be changed even at the point when you are producing the bundle of papers to send to the appeal tribunal. Can I just clarify that process in? Obviously, what we are talking about is automatic appeal for any decision, so in that process the person would still make the decision as to whether to appeal. Yes, so the person would get a decision and decide that they disagreed with lodging appeal, the decision-making body would get notice of that. In order to have their appeal be heard, they would need to produce the bundles of papers to show how they arrived at that decision, and at that point he needs a clear opportunity to look at the decision again afresh to prepare your case, be sure that you are happy with it. If you are happy with it, you send it to tribunal. If you are not, then you get the opportunity to revise it before it gets to that point. I will try not to completely repeat what has just been said. The first thing is that I would completely agree that good administrative practice means review your decision, do not make it unnecessarily formal, correct it at the first possible stage, but going straight to appeal actually does not preclude that. As is being said here, at the point where the claimant puts the appeal in under the previous system, when he went straight to appeal, it was reviewed anyway in-house. It just cut out the fairly long process of the claimant having to set out arguments twice. It automatically being reviewed at some length according to long processes within the agency. I think that the business of going straight to appeal, where it is looked at in-house anyway—it has to be, but also it was—is actually probably cheaper, my suspicion would be. It is certainly easier and clearer for claimants who are habitually referred to what we would call mandatory reconsideration as I want to appeal. It is clearer and simpler for claimants, but it does not preclude sorting things out in house. If anything, it makes it quicker because there is a time limit process going on. People make a fairly quick decision about whether that is worth looking at in detail, changing in-house and not going to appeal, or else it goes to appeal, rather than forming a long backlog of reconsideration cases within the agency. It might be worth saying, because I am very old, that there was a process at the end of the 1980s where you asked for a review, and then you went to appeal, for some cases at least. That was got rid of because of the amount of time that the agency spent on reviews when cases were going to appeal anyway. Lastly, so many cases fail at mandatory reconsideration. It is a very expensive way of doing things. It is an expensive additional step. I would agree. I will endorse the point. One of the concerns that we had when mandatory reconsideration was introduced in 2013 for the UK benefit system was that our first question was, why would you need to introduce a further tier of review when, if a claimant submits an application for appeal, there is an automatic review carried out by the decision of the agency anyway, and if they decide not to change their mind, then the case sells on to appeal. It was the idea that the further tier of a judication was introduced that raised our concerns. Our concerns are well borne out if we look at the statistics in terms of going back to the second point that was raised. The number of mandatory considerations where there was no decision change, which was running at around about 86 per cent, each of those cases—most of those cases—would have run on to appeal. The overturn on appeal for employment support allowance cases was a 69 per cent success rate, and for personal independence payment, a 61 per cent success rate. It called into question the entire process of the middle tier of a judication that was introduced. Clearly, when tribunals were looking at cases, they did not disagree with the view of the second decision maker, who was carrying out the mandatory consideration. It is an additional strain on people who are trying to encourage the exercise of the right of appeal to say that they will get to appeal, but we need to go through that process to get to that second stage. That is not always an easy thing to do when people who feel vulnerable are unsure about exercising the right of appeal. Getting the case straight to appeal, cut out that middle tier and made things a lot easier for us. Mr McPherson, do you want an end on this issue? No, not just now. Mr Balfour? I should say at this point that I am a former member of the Tribunal of Service, and I think that I have had all four individuals appear before me at some point, so it is nice to see you all again. Going back to the point that was made by you, Mr Little, in regard to people being put off by an appeal because the whole case can be opened up, why would that be different under this new system when it is already happening at the moment? The Tribunal can look out any component that a person has and any award of person has when it comes to a tribunal, so how is that going to change in your view with the new regulations? I think that what is proposed clearly states that there is no fetter on what the tribunal is going to look at at the moment. The current case law suggests that there are limits to what the tribunal can do. The tribunal need not look at what is not actually brought before them in appeal. As I stressed earlier, that is going to be based on the case law that protects the appellant in that area, so I think that that is why it could be different because you are moving away from need not consider to just simply saying that the whole award can be considered again. Yes, tribunals do quite often decide to look at the unappealed component, but there has to be a really good reason at the moment, and you are not proposing any reasoning at all about that as it stands. That is how I see it, so that is why it would be different. I just want to ask, because I can understand where you are coming from, because you are dealing with it day in, day out, people coming to the door. Are you not coming down from a very closed view when the minister has said on numerous occasions that the whole point of the new system is that it will be different? As Adam Tomkin quite rightly said, it will give the agency the opportunity to get some of the issues corrected and get it sorted. As you said, Andy, little yourself, the culture change that they are trying to do—is that not the whole point? I can understand what you are saying when you are coming from because you are dealing with it day in, day out, but is there not the scope to look at that there could be ways of this could work in a more positive manner? The culture change is something positive and I think that it should work, and I hope that it will work, but that does not mean that you cannot do other things as well. I am not criticising the fact that you are saying that things have to change. What we are saying is that the system of mandatory reconsideration, as it stands just now, does not work, and the preference would be for direct process to appeal. The minister said on numerous occasions that this is not mandatory reconsideration, as you would believe it. I understand what you are coming from because you are dealing with it. There would be a certain cynicism towards saying something that you believe to be similar, but she is saying that it is not, and that it would be a fresh set of eyes, someone new looking at it and giving the agency the opportunity to make that difference without putting people under other undue pressure. The only thing that I would say is that it is ambiguous with the wording. What you are proposing is a serious of things that are going to change the wording and the way things are looked at. It is not changing the system. I would prefer that you change the wording and the system to go to a direct appeal. That is where I would probably disagree with where you are coming from. I do not think that I have got blinkers on. Obviously, because we do work with people on a daily basis, we see the effects of how the system just now works. We do not oppose the changes that are proposed. I just think that, possibly, it might need something tougher to make it much better. That would be taking the best parts of both, taking the new proposal to change the way things are looked at and looking at the route to appeal. If you get more cases right first time, that should, in theory, reduce the number of appeals in the system. That is what we are planning to do. That is what you want to do. That is an overriding aim. I understand that. You also have, not to be disrespectful, to say that the minister herself has been quite adamant in the fact that her ideas would be that the second look at it would be a fresh set of eyes and an opportunity for the agency to change it. There has been no ambit, new day, with the minister's actual what she is wanting from it. I do not think that it is ambiguous. That is a change that should be welcomed, but it does not necessarily mean that you do not look at other things either. I cannot say any more than that. I believe that you can make the system even better by doing both. We have consistently said that with disability benefits in particular, it is a very difficult process. What you are attempting to do is take the massive range of disabilities and calibrate them to a point-space test, or whatever test you choose to design, and attach a financial figure to that. I think that there is always going to be scope for disagreements. One person would make an award and one person would not. I do not think that you are ever going to get that system entirely 100 per cent perfect. If you accept it to whatever degree there will be some element of disagreement and that some people will get an incorrect decision, what you then need to look at is right. If we accept there will be times when we make the incorrect decision, we need to make the process a challenge in that as easy as possible. Recently, I had an example. A young person with a disability refused the personal independence payment and reconsideration was refused. At that point, initially, the person did not want to proceed any further. They just wanted to let the matter go. I encouraged them that there was a case. Eventually, they changed their mind and went to tribunal and it was successful. If you imagine that that person did not have support, and even with the system where everything had been reviewed, if the best were in the world, that was even if it was a small percentage where the decision was wrong and that person did not have the support and did not appeal, that person could have potentially lost it in a significant amount of money. I think that while you are doing something, there is only one element of subjective opinion and if you can accept that you will never get it 100 per cent right, I think that it is good to make that system a challenge in it as easy as possible and you can still strive to get to as close to 100 per cent as possible. There is nothing to stop that, but I just think that, where the cases were somebody disagrees, particularly when you are dealing with potentially vulnerable groups, that you need to make that process the challenge as easy as possible so that people do not fall outside of the system. Just a final point on that, and I understand exactly the way that you are coming from, as George Adam says, constituency MSP is something that we are faced with almost on a daily basis in terms of navigating this process. However, what I understand from what is proposed is that the actual consideration will be different in this system because the person who is making the decision will have the onus and them to look for the information that they need to make that decision, whereas at the moment it cannot done and that the reconsideration process does that all again and it is not a reconsideration of what evidence is there, it is a reconsideration of the case and if that person decides they need more information before making that decision they can then seek further information as well. Although we are talking about it in the statistics that have all been quoted, however worried they are, are at the existing system. Part of the process is also the review and the reporting and everything else. We do be content if those figures then, in a year's time, showed that the secondary consideration was actually making a significant difference in sure things were going to appeal but more people were getting a result. Would that give you some comfort that the new system was embedded in the way that is envisioned by the minister? We would certainly be happy to see things improve. We would be happy to see more accurate decisions the first time, but I think that accepting that we will never ever get this 100 per cent right, that the process still needs to be as easy as possible to challenge a decision. We would certainly welcome anything that makes the reconsideration process more furra, the decision making body more open to reconsidering the decision, but I do not see why necessarily having that process mandatory will make it any more likely to be better. Any other comments, finally? The only thing I would say is that we have a precedent in terms of the point that has been raised about a fresh pair of eyes having a look at the case. 1992 disability living allowance was introduced and it was written into legislation that, if a case was refused and a review was sought, a different decision maker, a fresh pair of eyes would look at that case. I do not have any statistics to back up what the turnaround rate was, what I do know was that there were an exceptional high number of peels in disability living allowance cases back then, so we do have a predecessor there in terms of how that process operate. Yes, but again, it was the Westminster DWP system, not the Scottish system that is proposed. I am going to move on to the next area of questioning. I will go to Ms McGuire on a general point. I think that Jeremy is the only one who has all this identity. Jeremy, did you hear the question? Yes, maybe I will take us back to the actual regulations that we are here to talk about today. I have three questions. The first is about expenses and the awarding of expenses. I do not know if you have any views on that. Do you see that as a change in what happens at the moment? Have you looked at this area? I think that, if there is concern that the expenses could be awarded against an appellant, they would potentially have to be advised of that. For an appellant who is unrepresented, there might be a risk that they might read that, and that could potentially cause concern and stop them exercising their right to appeal. I wondered what mischief it was designed to address, as in this is a new provision at first tier tribunals. Clearly, if you are saying that expenses can be awarded against somebody, then I would assume that there is a reason for suggesting that. I wondered what it was, because clements are not always, but in general terms, they have no financial resources or very few, so it could be very harsh against a clement. It could also obviously put people off. In terms of the respondent, they are being paid out of public funds, and it feels a little bit unwieldy to be saying that we will award expenses against the Social Security Agency, because it is just one body awarding expenses against another one. I could not quite see what the issue was that it was designed to address. I agree with my colleagues' concerns, but I was hoping that somebody could maybe say what the reason for it was. I am not sure that the committee would be in a position to do that, but we can certainly, that is one of the reasons for today's session, is to raise those areas. Does anyone else want to come in the area of expenses? The second area is in regard to the make-up of the tribunals. Obviously, the ones that we were probably looking at most in regard to the DLA PIP and attendance allowance, which at present has three member tribunals, with one of them being someone with a disability or experience of disability or working with disability. In your view, having a three-person tribunal, do you think that that should continue or do you think that that is too wieldy in regard to making decisions? I think that the more general point about the non-legally qualified member who is not a doctor, I feel like, I made a comment about, I think that they are really important in terms of the insight that they bring into decision making and the insight that they bring into nature of disability and practical concerns. It would be nice, I am aware that it is difficult for the tribunal service, but it would be nice if there could be perhaps more detailed regard to their particular expertise. That is to do with, I think that there has been a lot of publicity about problems around lack of understanding of people with mental health issues at the assessment stage—not to do with tribunals—but somebody who is, for example, an occupational therapist dealing with physical disabilities would not necessarily have a great insight into something like an autism spectrum disorder. It would be nice if the tribunal service could be looking to target things a little bit. I am conscious that we have to avoid unnecessary expense and that people have broader expertise, but it would be good. I agree with that as well. That is a very silly point. I think that sub-pools of the disability member with regard to what type of tribunal that has been would be very useful. I think that we are broadly happy with the composition of tribunals with the three panel members. One of the issues that we did raise is that, for example, we have a PIP claim that has been refused for a procedural reason. The person who appeals against that could potentially be held by a one-member panel. If the appeal is successful, it could mean that the decision just gets remitted back to the decision-making body. It might be worth giving consideration to a free member panel in those cases. If there is evidence available at that point, which would allow the tribunal to make a decision on entitlement, it might give a better outcome. Rather than the process of having it remitted back for a decision-maker to make a decision, if the tribunal feels that there is evidence here or we could actually make a decision today. Obviously, if the tribunal feels that they are not able to do that because they have only purely dealt with the procedural reason, they could still just remit it back in any case. My final question is outwith what we have already talked about. Have you any other major concerns about the new regulations as they are and their form that you would want to highlight to the committee this morning? I will make a point about the representatives and supporters. The issue about the drafting has been brought in, because it is wide across all the other first-tier tribunals. The drafting on what a supporter might assist the tribunal to do, providing moral support, yes, but when we get to the points about advising on points of law and procedure and issues with which the party might wish to raise with the tribunal, that seems to fit rather badly with the role of the representative. What happens in most cases at tribunals just now is that the tribunal has a discretion to allow people in for moral support, or indeed to hear evidence as witnesses, but the representative's role is obviously different from that, and my concern really is that supporters cannot really be in a position to advise on points of law and procedure without stepping into the role of the representative. That is my only thoughts on it. I am going to bring in Ms McFestian with supplementary. That is a separate question. That is a separate question, right? Sorry. We need a signal in this committee for supplementary. Is there not, Mr McAvoy? I have considered the same point as Andy McFestian. I started to think of a situation where, if he did, for example, have a family member who was otherwise qualified as a representative or a solicitor or something, he was able to provide the dual roles. If he specifically classified that a supporter was not able to advise on points of law, he could have a situation where there is a person in the room who, although he is a family member and might be giving evidence, is still able to guide the tribunal on a point of law, and it would not seem to me to make sense to specifically exclude that. That might be fairly unusual circumstances, but it could arise. Supporters also seem to be given the option of advising on points of law, whereas that is actually not specifically given to representatives. It seems to me to be quite a strange gap that representatives do not have. The next evidence session might hear issues on appointees at tribunals and whether or not they are sometimes appointed inappropriately. That is a big issue for our supporting people and the disabilities—a huge amount of people that we support at tribunal will have a representative. I think that we would question whether or not a social security tribunal was the correct venue for a tribunal to be raising issues about whether or not somebody should potentially have an appointee or not. I know that legislation can fruit at the minute about adults when capacity, and I think that something like that would be more appropriate rather than opening up the door for tribunals to potentially make referrals back to the decision-making body if they feel that an appointee is maybe not appropriate for a person. I think that the concept of supporters is an excellent idea. I do not have any issue in terms of principle, but I think that there is no problem there at all. My difficulty actually comes from any of the actual practicalities. If a family member currently comes to an appeal tribunal with the appellant, and the intention is that they are going to assist or possibly even give some kind of evidence, then they would not begin into the room at the same time as the proceedings started. They would be called later on as a witness, so there would then be a decision to be made. Is this person coming in as a supporter to sit and observe, or is it the purpose of them being there to give additional evidence in support of the appellant's case? I think that that would cause very, very practical problems firstly for the tribunal in determining that you are in here, you have heard what the appellant has said and you are possibly going to give evidence based on what you have heard, or is the person who is going to be sitting there in terms of providing moral support. The one thing I would say as having represented many people as my colleagues have is that very often I am loath to bring in a family member, very simply because it can restrict the evidence that the appellant wishes to give because it can act almost as a deterrent because perhaps they do not want to tell you exactly everything that is going on in front of a family member who is accompanying them. There is a judgment call to be made from a representative's point of view, but I do think that it needs to be clarified just exactly what are they doing and why are they in there, in the room with the appellant. That is not to be negative, come back to my original point. If anybody were saying as well that the overriding objective seems to work on that matter really well at the present time—not often representatives are going about being positive but I am going to on that one—it seems to work very well because in a situation where there is a supporter present, tribunals do or can ask for evidence from the supporter where appropriate. It seems to work quite nicely without any greater formality to it than there is. I am not sure if somebody else might disagree, but I think that the flexibility is already in there without that, and I agree about the confusions. Further comments, I want to move to Ms McNeill again. I wanted to ask what your experience is where of appeal decisions in terms of the time it takes to get a decision. Do you have any concerns about timescales or are you perfectly happy with your experiences today? It works okay, I think. Good morning, panel. As well as sitting on this committee, I sit on the Justice Committee and we have been doing some inquiries at the moment around increased use of alternative dispute resolution. You will note that in the draft 1st-year tribunal regulations, rule 3 makes reference to use of mediation. I wonder whether you can, in your experience, envisage circumstances in which mediation or other alternative dispute resolution might be helpful. I couldn't really see situations where that would fit. I think that the current process works fairly well, apart from the mandatory reconsideration, in that the personal lodges in appeal are always open to the decision maker to re-change it at any point if any additional evidence is submitted. I tried to conceive the situations in which that might help in social security, but I was struggling. I would have a principled concern, because what we are talking about here are people asserting their rights, as opposed to people trying to reach a reasoned conclusion. Normally, with mediation or any of those things, you would tend to be thinking that you have at the back of your mind the premise that you might concede some things, because it is better to get an agreement overall for everybody. The rights-based nature of things potentially disappears in mediation, so that would concern me. The other is that there is an issue of equality of arms in there, because the claimant simply does not have the backup that an agency, however well-intentioned, has, so I agree. Can I just finally ask, is there anything that you want to get on record today that hasn't been covered in the questioning or in your submissions to the committee this morning? Any final thoughts? Yes. There is a reference in here to representatives or supporters potentially being barred from the proceedings. Again, it is not a question for the committee, but it did occur to me—you are obviously trying to imagine a situation in which that is going to arise—and then you think, what do you do when it goes wrong? That would be a very cumbersome process. It looks to me the way that it is written. Tribunals at the present time are difficult to imagine, because, generally speaking, tribunals are very good, very reasonable, very supportive of claimants and representatives, all of that. However, if something goes wrong, it becomes very difficult to challenge it, I think. Those are very broad grounds for barring somebody. I would be quite concerned about that, both for representatives and, as it happens for supporters. I would have thought that the sort of situation in which somebody ought to be barred from my perspective, as in, because they are disruptive or acting against the interests of the claimant, could be dealt with otherwise under the procedure rules. I thank you all for your attendance to the committee this morning. I will suspend briefly while we change the witness panels. I welcome our second panel to the committee this morning, Jessica Burns, who is a regional tribunal judge on social security and child support. Paul Dumbleton, disability-qualified tribunal member, Dr Patricia Moultrie, medically qualified tribunal member and Professor Tom Mullen, member of the former Scottish Tribunals and the Administrative Justice Advisory Committee. I would like to thank you all for the submissions that you have given to the committee before today. Just as a general opening question, I would just ask if you have any concerns or any comments on where we are at the moment in terms of the proposals. I do not know who would like to go first on that one. It is quite an open-ended question, but perhaps a starting point for me was my understanding was that the rules would follow as closely as the rules that apply at the moment. I can understand why Scottish Government would want to depart from those if it was shown that they were not fit for purpose or that they were causing any difficulties, but my understanding is that they are not. I think that the evidence that you have already heard from representatives supports that. My overall concern is that, in a desire to try and make things better in some sort of unspecified way, the proposed rules are more prescriptive than they need to be. In fact, overall might lead to confusion, particularly at a time when we are anticipating in the future that the same tribunal will hear appeals from devolved and reserved aspects of social security law. You would then have rules that were either different or rules that had to be amended to take account of that change. For me, that seems disproportionate, confusing and perhaps not in the interests of any of the users of any appeal system. Any further opening comments on that area? Not at all? I am going to move to further questions from the panel. I remind members of my register of interest in that I am like Professor Mullen, a member of the University of Glasgow School of Law. I wanted to ask the panel about the regulations and what the Social Security Bill currently says about the role that will be played in litigation before tribunals of both the principles and the charter. A number of you gave either oral or written evidence to the committee when we were looking at the Social Security Bill at stage 2 and you will have seen that the bill has been amended to seek to clarify what the role will be legally of both the principles and the charter, which is to say that courts and tribunals can take them into account in relevant cases, but that they create no new cause of action in and of themselves. The regulations of course talk about overriding interests and talk about the charter. Do you have any concerns about unintended consequences of either these amendments or these provisions or do you think that this is now reasonably clear and we can be confident that the establishment of the principles and of the charter, which we all support right across the political spectrum, will not lead to unnecessary future litigation challenging their legal status or effects or consequences? I think that the amendments have made the status of the principles and the charter clearer in that they can be taken into account by court or tribunal. I think that it still leaves considerable scope for how that actually works out in practice. I think that we know now that a tribunal is not then, for example, obliged to decide in accordance with the perceived human rights of the claimant just because human rights is a principle and is mentioned in the charter, but it clearly can take some account of the notion of human rights when making decisions. That seems to be what it says. I wonder, though, if it might raise expectations that people can use human rights arguments as additional arguments when they do not think that an argument based squarely on the entitlement regulations will give the claimant the benefit that they seek. It may raise that sort of expectation, but, obviously, the members are better qualified to say than I do, but I doubt if tribunals would be comfortable using human rights type arguments in the context of benefits that are essentially defined by precise regulations. I think that the default position of tribunals is going to be what it says in the regulations, and I am going to decide in accordance with that. If that conflicts with some conception of the individual's human rights, then give preference to the regulations, because that is what the entitlement is. I think that there is a risk that it will create a perception that there is an ability to use broad legal human rights arguments to a significant extent when, in practice, it actually would not be possible for people to do that to get results by doing that. Practical purposes. If there was an argument on that basis at the moment, it is something that the first-year tribunal would not really have jurisdiction over. They would have to remit it to the upper tribunal to address. It is not really something that would arise very commonly. I can understand why you would want principles and charters to underpin everything to do with any new social security system. I think that that is right. It is difficult for me to envisage how that would really impact on the sort of decision making that the tribunal would make, looking at much more detailed entitlement provisions. Thank you both for those answers, which are very helpful. I very much share the concern that Professor Mullen articulated, that we do not want unreasonably to raise expectations. We want to raise expectations that the agency is going to get as much right first time as it possibly can do. We then need to deliver on those expectations rather than frustrate them. There is no point in raising expectations that people in Scotland will be able to make highfalutin, broad brush or very impressive arguments based on international human rights principles if the reality is that those expectations are only going to be frustrated when tribunals hear cases and decide them in accordance with very detailed and prescriptive regulations rather than general principles of international human rights. All that does is upset people. There is no need to do that at all. Is it the panel's view that there are any further amendments that are required, either to the bill, because we still have one more chance to amend the bill, or indeed to the regulations that are in front of us today, to ensure that there is no unnecessary raising of expectations that are only inevitably going to be frustrated, or would the members of the panel leave the drafting as it is at the moment? I do not see any changes. In the broad aspect of expectation, you could go back to the mandatory reconsideration argument that we have already had aired this morning, but that is an issue about access, and there are human rights issues about that and about discouraging appellants who may feel that any additional steps and processes are a discouragement to a remedy. I particularly suggest amendment, because I think that you are either then going to clarify in the direction of human rights or other general things being more strictly enforceable, which I do not think that you want to do, or you are then going to go in the direction of having no effect at all, which I do not think that the committee wants to do either. I think that it is okay to leave it as it is and just be aware of the danger of expectations being unduly raised. Good morning and thank you for coming. I have just got three quick questions. I suppose that I will go back to the one that I raised with the first panel on the regard to expenses. Do you see that happening in reality? Is it a power that you think the first-year tribunal is welcome to have? I just haven't seen the arguments about including it. I don't know where it came from. There's absolutely no demand from a tribunal perspective of ever wanting those powers. I'm not sure where their place is in this sort of tribunal. I can't really say more than that, but I don't see—for me, the starting point—where we are with the rules that are present, because they are the ones that I know. It's never been an issue that those rules do not confer the power to award any costs or expenses. It's likely that, in most tribunals across different subject matters, there hasn't been a power to award expenses or a demand from those tribunals to be able to award it. It seems to go against the idea that tribunals are meant to be more accessible than courts. As we all know, one of the barriers to going to court is the fear of having expenses awarded against them. One of the issues that frustrates all tribunals is the number of adjournments that can happen in cases, for lots of different reasons. Have you had any suggestions about the draft strategy? Is there anything that could be done at an earlier stage that we could put within the regulations to reduce the number of adjournments? Is there anything procedurally wise that could happen in regard to reduce the number of adjournments, or is that just part of the process that we have to live with? I wonder if I could just make some comment about medical evidence in appeals, because quite a common reason to adjourn is because we're concerned about lack of medical evidence. I have to say also quite a common reason in my opinion that a appeal succeeds is because we receive further medical evidence prior to the appeal that hasn't been available to the original decision maker. From my perspective as a medical member of tribunals, I would really like to see a move towards some medical evidence being available at original decision making. There's been a lot of discussion today about getting it right first time, and in my view, if there was a possibility of a great data extraction from GP records to be available to the original decision maker, which would then be available for any further reconsideration, and which would then be available to the appeals service. That would help the evidence-based underpins the original decision making, and I know that there's been difficulty and there was reference before to GP practices struggling with workload and their ability to provide reports and requests, but producing a computerised extract from the medical records is not difficult, and we've got agreed data extractions for other purposes. It's slightly off the topic of the appeals, but I do think that it's relevant to the appeals, and it's relevant to Germans, and I would hope that there'll be consideration given to agreeing a data extraction from GP records, which will be available to the original decision maker. Medical evidence is really useful, but there is sometimes other useful professional evidence that doesn't get as much emphasis as medical evidence, particularly if people are, for example, in receipt of community care support. That can be the evidence that was, like a care plan that was put together for them to get the support from the local council would be very, very useful. Again, that can lead to the same sorts of delays that we were speaking about, so I think that it's medical and other relevant professional evidence. The next question is, from your experience of having sat on tribunals over a number of years, why do you think that, percentage-wise, so many tribunals are successful compared to the decision that is made by a presently DLA? Is there something more fail about the tribunal and what lessons can the new agency learn from the tribunals so that there are less appeals coming forward? I'm very focused on the medical aspects of things, but in my experience, what happens in tribunals is many things, but one of the things that happens is that the level of disability arising from people's medical conditions is explored in some detail. We start from the understanding of what the likely disability is arising from somebody's medical conditions and we ask a lot of questions. The disability member is extremely helpful, in asking the appropriate questions. My thoughts are that the current medical assessment process, although it's attracted a lot of negative attention in some ways, is an extremely difficult thing to undertake as a medical assessment. However, it strikes me that some of those assessments are undertaken in a very routine formulaic way, where a process is applied to somebody no matter what the medical conditions and disabilities they have. I think that the medical assessment process could be improved by strengthening the starting point and them being more bespoke to the medical condition that the person has. I think that that is what happens when people come to the tribunals, that we have a pre-hearing discussion as to what the likely disabilities and impairments that the person will have. We construct our questions in detail to address those. I think that we come at the disability from a bi-psychological model of disability, not a truly medical assessment. I completely agree with what was said by my colleague that although I am talking about medicine, I am probably using that more narrowly. We very much understand that disability is more complex than purely medicine, but that would be my comments that we explore in detail. We ask a lot of questions of the person. We do not accept the first answer, so we will make sure that we really are understanding the level of disability that is difficult for the person that has. Can I bring in? Oh, sorry. Did you want to come in? Maybe just add that tribunals often have more evidence than the decision maker as well, but in the intervening period, they are often supported by the agencies that have been speaking to you this morning. People are gathering more evidence, and so very often there is evidence before us that the decision maker did not even see. I think that that makes a big difference. Can I bring in Ms McNeill? Thank you. I have a few questions for you in different areas. I raised the question on stage 2 on behalf of SAMH, and that is the question of ordinary members on the tribunal with lived experience. They have a concern that they are not using the model used by the mental health tribunals, and that there will be certain panels that will have an ordinary member with lived experience. I wonder if you had any views on that. I will start with a comment. You will be aware that all the judges, medical members and disability-qualified panel members are appointed by the Judicial Appointments Commission in terms of the criteria that are set out. It is not a matter for the tribunal organisation to have an overview of people's backgrounds. Once they are appointed, they are appointed, and they are generally appointed up to the age of 70. The issue of appointing someone who has perhaps lived experience might apply at that time, but that expertise or experience may not see them through the whole term of their appointment. It is perfectly true that a number of our disability-qualified panel members are in receipt of benefits, and they are sitting on determination or decisions that relate to benefits that they might be receiving. That is certainly not within the culture of sitting on a tribunal that people take their own personal experience and try to apply it, because we know the limits of that, and you have to open up a generality. My fear is that, if someone is appointed specifically for one purpose, perhaps their focus on looking at a wide range of cases is not as effective. I think that one of the things that we have achieved with the widespread of people from diverse backgrounds that sit as our disability-qualified members is that you do, over time, create a real sense that they are building up an expertise across a much wider area than the area that they might have known about on appointment. That happens through targeted training so that we identify areas that are a weakness. Perhaps we had recent training, for instance, on autism and mental health issues, particularly relating to children. It is really through that that we try and create a very flexible number of disability members. Paul, you might want to make some comments. I was interested to see what Sam H had proposed. I do have lived experience of being the carer, the father of a daughter with a learning disability who is in receipt of DLA. I do make that criterion. However, I am not convinced that it should be set as an essential criterion for people in the role. There are a couple of reasons for that. It is not to do with not valuing people's lived experience. I think that in the process that you are in now of devising a new benefit system, people's lived experience should be heard very loudly. However, I am not sure that in what goes on in a tribunal where you are making a decision about someone's entitlement against a particular set of criteria, the lived experience is as important. That would be one aspect. The other is that I saw that Sam H went on to say that they felt that this might address people's concerns about not feeling that they were respected or treated with dignity in tribunals. I have a long experience of working in the field of disability. I am not sure that you can necessarily expect people with disabilities to be more or less respectful of other people just because they have a disability. I could not see the logic in what they were arguing. It is perfectly possible to have a disability yourself or to have a relative with a disability and still be disrespectful and the opposite. I find myself surprised not to support what they are suggesting, but I do not actually support it. I want to ask you about something on a separate issue. That is about the appointment of judges. To your knowledge, will there be the appointment of new tribunal judges under the devolved system? Can you give the committee any information about any training that might take place? I will just tag on the end of that. I wondered if you also had a view in the interests of transparency that whether or not not the text of the judgments but the outcomes of judges should be published for the public to see how many decisions have been upheld and those who have not been upheld? I am a supporter of tribunals being as transparent as possible. I know that it comes as a surprise to some people to know that there are public hearings. Our hearings are public unless there is an order that there is a good reason that they are held in private. That is very rarely exercised simply because it is very rare that a member of the public turns up and says, I just want to sit in and see what goes on. I think that in order to create a sense of transparency, it would be helpful for at least people to see what a tribunal decision looks like. It is very difficult to access something like that if you go online to see what a statement of reasons looks like. If somebody wants to challenge a tribunal decision, they have to ask for a statement of reasons. It is very difficult to find out what those things look like unless you are working in the field. Also, to get a sense of what the outcomes are, in a court situation it would be bizarre not to be able to access that sort of information. Given that we are a public hearing, I think that there should be a higher element of transparency. It might also take away some of the mystique from what happens at tribunals. One question that you asked the representatives was, was there any concern about delays in tribunals issuing decisions? Perhaps I should say that the current practice is that tribunals are supported by a clerk. In, I would say, 95 per cent of cases, tribunals issue the decision on the day to the people, they wait, they get a type copy of that decision in their hand to go away with them and a note of what they can do if they want to challenge that decision in the event of the appeal not being successful. At that point, they know that they get to the tribunal, they know that that will be the day, virtually always, that they get the decision. There is not a sense of just not knowing when they are going to find out about what happened, and I think that that goes a long way to allaying people's anxieties about it. It also means that when they get the decision, most appellants in Scotland are supported by representatives who can talk that through with them. Thank you very much. Any further questions for the panel? Is there anything that you would like to say to the committee that has not been covered with the questioning today before we finish? Everybody is content that they have voiced everything that they wanted to. Again, thank you very much for your attendance and your submissions to the committee. Before we move into private session, I would like to mention that Laura Cochran, who has been on secondment to the committee, is going back to our role in Edinburgh University and to thank her for her contribution and support to the committee. On that note, we are going to move into private session.