Analysis of written responses to the consultation on social security in Scotland

15. Complaints, reviews and appeals

Current arrangements

15.1 The Scottish Government set out its proposals for current arrangements in Part 3 of the consultation document.

Question - Do you agree that we should base our CHP (Complaints Handling Procedure) on the Scottish Public Services Ombudsman's 'Statement of Complaints Handling Principles'? Please explain why.

Table 15.1 Do you agree that we should base our CHP (Complaints Handling Procedure) on the Scottish Public Services Ombudsman's 'Statement of Complaints Handling Principles'?
	Yes		No
Respondent group	Number	%	Number	%	Total
Individuals	50	89%	6	11%	56
Organisations	68	97%	2	3%	70
All respondents answering	118	94%	8	6%	126

Note: A full breakdown of responses by respondent group is included in Annex 2 (available to download separately as part of this publication).

15.2 In total, 126 respondents answered the closed part of this question. The majority (94%) agreed with the proposal. There was overall support from across respondent groups.

15.3 A total of 79 respondents provided further comment on their answer (55 organisations and 24 individuals). Comments largely came from those who agreed, and believed it was a sensible approach.

Sensible and consistent approach

15.4 A large number of respondents agreed with the approach because they felt it was sensible, appropriate and built consistency with the approaches used by other public sector organisations. These respondents highlighted that the principles had the interests of individuals at their centre; that they were fair and equitable; easy to understand; flexible enough to adapt; and have worked well in the past. A few highlighted that the work of the SPSO's Complaints Standards Authority had made it a centre of excellence. One respondent highlighted that it was likely that the new social security agency would be a listed authority under the SPSO, and would need to conform to these principles if that occurred.

15.5 A few highlighted their support for the Citizens Advice Scotland response on this matter.

" CAS generally agrees that the Complaints Handling Procedure ( CHP) on the Scottish Public Services Ombudsman's ( SPSO) 'Statement of Complaints Handling Principles' should be adopted by the Scottish social security agency. It will be positive to have the Agency adopt a CHP in-line with other public bodies in Scotland and to build on the work already done to improve CHPs in this area."
Citizens Advice Scotland

15.6 A few suggested the addition of further principles relating to early resolution of complaints, and driving improvement, emphasising that complaints should be timely and quick.

"We are particularly pleased to note that the SPSO's 'Statement of Complaints Handling Principles' includes a commitment to making the complaints process 'simple and timely', including it having 'as few steps as necessary within an agreed and transparent time frame'."
CPAG Scotland

15.7 One respondent suggested that there should be a separate complaints team that service users could raise concerns with. One organisational respondent suggested that mediation should be an important part of the process, while another individual respondent felt that it was important that mediation was not used - to ensure a focus on individual rights without compromise.

Wider suggestions

15.8 A few respondents who supported the approach made wider suggestions. A few suggested there was a need to monitor the approach and a few felt that there was a need to raise awareness of the approach. A few local government and health respondents were concerned that people would become confused about the role of the SPSO if it was to be the centre for complaints, and perform an element of second tier review for the Scottish Welfare Fund.

Reasons for not supporting the proposal

15.9 Just a few of those who commented said 'no' to the closed part of the question. Most of these respondents were individuals. These respondents had different concerns, largely that the Ombudsman was far removed from the process, was not locally based, did not have a clear role, and was too slow in dealing with complaints. These comments appeared to be based on a misunderstanding of the question.

Internal reviews

15.10 The Scottish Government set out its proposals for internal reviews in Part 3 of the consultation document.

Question - How should a Scottish internal review process work?

15.11 In total, 95 respondents answered this question (62 organisations and 33 individuals).

15.12 The main themes emerging were:

• the need for clear, published procedures and timescales; and
• the need for a different system to the mandatory reconsideration process used by DWP.

Clear procedures and timescales

15.13 Many respondents felt that it was very important to have a clear, consistent and impartial internal review process, with clear timescales. A few felt that it was important to have a provision for urgent reviews and appeals to be fast tracked. While many indicated that the system should aim to get the decision right first time, there was support for an internal review process which:

• made clear to service users what their rights were;
• provided clear links with advice providers;
• gave people more time to provide supporting information (some suggested three months);
• was prompt, courteous and efficient;
• was led by someone who had no previous involvement in the case;
• followed clear processes, so that service users could understand what would happen;
• allowed for a fair appraisal of all the evidence; and
• offered redress if the individual was a victim of discrimination or prejudice.

15.14 Some felt that the key priority was that the process was simple, seamless and easy for service users to navigate.

"When designing the review and appeal procedures for the Scottish social security system, we would draw the Scottish Government's attention to the requirements of Article 6 of the European Convention on Human Rights (" ECHR"), which governs the right to a fair trial. Article 6 states: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…" The European Court of Human Rights has held that Article 6 (1) does apply in the field of social security. Therefore, at a minimum, the appeals procedure must be Article 6 compliant."
Equality and Human Rights Commission

Mandatory reconsideration

15.15 There were varied views on the status of an independent review, and whether it should be separate from an appeals process or integrated within it, and whether it should be optional or mandatory.

15.16 Some felt that it was important that a mandatory internal reconsideration was not required before progressing to appeal stage. Respondents highlighted their concerns about the DWP mandatory reconsideration process, including:

• the lack of a time limit for the reconsideration;
• the long delays experienced;
• the lack of clarity about the process;
• the belief that it is not always based on a fair appraisal of all evidence;
• the belief that it hinders the process of challenging decisions, as very few reconsiderations result in changes to decisions;
• concern that individuals don't retain their entitlement as they await the outcome of the reconsideration; and
• the hardship, uncertainty and poverty caused as a result of lengthy reconsiderations processes.

"The existing mandatory reconsideration and appeals systems were found to be confusing, difficult to navigate and contradictory."
Welfare Conditionality: Sanctions Support and Behaviour Change Research Project

"The Mandatory Reconsideration procedure for internal reviews should be scrapped when benefits are devolved… Whilst applicants and claimants should be able to request a review of Scottish benefits decisions, this should not be mandatory in order to take their appeal to tribunal."
Scottish Green Party MSPs

15.17 A few individuals and one local authority were supportive of a mandatory reconsideration process. A few indicated more broadly that internal review should be optional, rather than mandatory. However, a few felt that an interim review should be the first stage, with the case then referred automatically for an appeal if the decision did not change (without the client needing to take action).

" CAS is of the view that, even if an internal review process does exist, it must be perceived as part of one seamless process from the perspective of the claimant. In our view, the best way to do this is to have the review decision passed directly from the Agency to HM Courts and Tribunals Service, rather than the claimant having to lodge an appeal themselves."
Citizens Advice Scotland

Other models

15.18 Some pointed to other models which the internal review process could follow. The most commonly mentioned was the current Housing Benefit model. Respondents talking about this model suggested that any appeal should be sent to the new social security agency, and the agency could choose to do an internal review if they wish. Then, if the review is not carried out, or a review is carried out but the outcome is unchanged, the agency would forward the case on to the independent Tribunals Service (within a clear time limit). Other models highlighted were the Scottish Welfare Fund first tier reviews, and the process of an industrial tribunal.

"Instead, the Scottish Government should introduce a process more akin to the Housing Benefit appeal process, whereby the appellant submits an appeal to the decision maker (in that case, the local authority benefits team). The decision maker then has an opportunity to reconsider the decision internally without it going to full appeal. However if the decision maker does not revise the decision internally, it is automatically passed externally to the Courts and Tribunals Service for an appeal hearing. This process allows for decisions to be reviewed internally before proceeding to a full appeal hearing, while reducing complexity, and easing the burden on claimants."
CPAG Scotland

Wider issues

15.19 A few respondents indicated that it was important that benefits were paid on an interim basis, while the internal review process was underway. Others highlighted that threats of benefit removal should not be made. A few simply indicated that the review process should work as outlined in the consultation document. A few respondents, mainly individuals, indicated that they did not feel there should be any internal review process as they did not feel it would be independent.

Question - What would be a reasonable timescale for the review to be carried out?

15.20 In total, 86 respondents gave comments on a reasonable timescale for review (48 organisations and 38 individuals). Not all of these respondents provided a specific timescale.

15.21 Overall the largest proportion of respondents said up to one month. Opinions differed between organisations and individuals. Most organisations providing a view thought that up to one month was reasonable. Just a few organisations felt that up to two weeks was reasonable. Individuals generally felt that between 2 weeks and a month was reasonable.

15.22 A small number of individuals and one organisation suggested two or three months as a maximum. One organisation suggested 6 to 12 months, one individual suggested 4 to 5 years and one suggested unlimited time provided Scottish Ministers were made aware.

15.23 Most respondents simply provided a timeframe. However, some of those who commented indicated that the timescale should run from the time that the request and all required information is received. Others felt that their suggested timescale included time to gather additional information from service users, and many did not indicate whether it did or not.

15.24 A few respondents also gave views on reasonable timescales for service users requesting a review, with suggestions ranging from 6 weeks to 3 months. A few suggested that timescales should be discussed with those with experience of both undertaking reviews and claiming benefits.

Appeals

15.25 The Scottish Government set out its proposals for appeals in Part 3 of the consultation document.

Question - Should a tribunal be used as the forum for dispute resolution for the Scottish social security system? Please explain why.

Table 15.2 Should a tribunal be used as the forum for dispute resolution for the Scottish social security system?
	Yes		No
Respondent group	Number	%	Number	%	Total
Individuals	47	92%	4	8%	51
Organisations	55	96%	2	4%	57
All respondents answering	102	94%	6	6%	108

Note: A full breakdown of responses by respondent group is included in Annex 2 (available to download separately as part of this publication).

15.26 In total, 108 respondents answered the closed part of this question. The majority of those responding (94%) thought that a tribunal should be used as the forum for dispute resolution for the Scottish social security system. There was overall support from across respondent groups.

15.27 Further comments were provided by 88 respondents (53 organisations and 35 individuals). Comments came largely from those who answered 'yes'.

15.28 The main reasons that respondents supported the use of a tribunal were because:

• It is proportionate - Some respondents felt that a tribunal was the most appropriate approach because the decision being considered could relate to long term entitlement to benefits, and could have long term, significant impact. Respondents felt that it was fair that individuals had the chance to have their case considered by a panel of experts, and present their evidence in a face to face forum, in depth, with all parties present. A few expressed serious concerns about appeals being considered purely based on written material, or by a Chair sitting alone and indicated a strong preference for the tribunal system.

"We do not feel it is necessary or cost effective to set up an alternative parallel structure to the existing tribunal service. The current Scottish Tribunal service works fairly well and would be the most appropriate mechanism for social security dispute resolution."
Glasgow Disability Alliance

"Tribunals were originally introduced to provide a proportionate, accessible and easy to use service mostly for citizens appealing decisions made by state agencies. Though over time the law has become more complex, tribunals continue to represent a more user friendly and cheaper form of dispute resolution than the courts."
Upper Tribunal (Administrative Appeals Chamber)

• It fits with the current system - Some respondents highlighted that the tribunal approach works well, and should be continued. Some also commented that it could provide consistency between devolved and reserved benefits - provided that these links were made.

"Currently, nearly all social security appeals are heard by the same tribunal. Once the currently reserved tribunals are transferred into the Scottish Courts and Tribunal Service, it would make sense for that tribunal also to hear appeals relating to reserved benefits. This would make effective use of the existing expertise of judges and members and also make things simpler for claimants challenging decisions."
Individual

"If it works well do not change it, less confusion for the user."
Individual

"It is worth noting, however, that there is currently no social security expertise within the Scottish Courts and Tribunals Service, as social security appeals have never fallen within the remit of its current nine tribunals."
Child Poverty Action Group

• It is independent - Some emphasised the importance of having an independent route for appeals, and indicated that the tribunal process worked well in terms of providing a rigorous, visibly independent and generally accepted route.
• It is accessible - Some felt tribunals were, or had good potential to be, accessible. Respondents highlighted the importance of processes being as clear and informal as possible (reducing the need for legal representation and advice), the need for individuals to have advice and support as required, the potential for tribunals to take place in community and local venues which are accessible and convenient for the individual, and the speed with which decisions can be made. A few indicated that tribunals were more efficient and cheaper than using the court system.

"The inquisitorial system where the Tribunal asks what it needs to know means tribunals are far more focused and less time is required for cases than in the courts. It sits in informal local venues such as church halls or meeting rooms, meaning it is accessible for appellants."
Individual

• It is enforceable - A few felt that a tribunals system, underpinned by legislation, meant that decisions made by the tribunal could be binding and not just seen as recommendations.

15.29 However, a few respondents indicated that the process was too formal. A few also suggested that tribunals should involve panel members with the relevant knowledge and experience of specific conditions, as required.

Question - If no, are there any alternative methods of dispute resolution that you think would be preferable to a tribunal?

15.30 There were 26 responses to this question (7 organisations and 19 individuals). Those who disagreed generally felt that a tribunal was too formal, may not be able to deal with a wide range of cases as each is different, and may not work well if individuals were appealing both a devolved and reserved benefit. A few indicated that the alternatives should be explored as the new social security system is developed, and more information becomes available about how it will work.

"The word tribunal can be somewhat daunting and attendance at such can also be daunting as the panel members are all QC's, senior doctors etc. Not people that you normally deal with."
Scottish Disability Equality Forum

15.31 A few respondents, mainly individuals, identified alternatives, including:

• arbitration or mediation;
• telephone or face to face meetings with the agency;
• referring cases to the ombudsman;
• a panel of lay people similar to the Children's Panel; or
• court or sheriffs.

Question - How can we ensure that our values underpin the appeals process for a Scottish social security agency?

15.32 In total, 95 respondents commented on this (62 organisations and 33 individuals). Some referred to their previous answers earlier in the consultation about how to take a principled approach.

15.33 A large number indicated that the values could be embedded through ensuring that the principles, Charter and values of the social security system were taken into account in every aspect of developing the appeals system. This would include:

• staff development, training and awareness raising;
• culture and attitude - making clear that the principles apply to the tribunal in the same way they apply to the social security agency;
• ensuring that principles are adhered to at every stage, and shape the design of practice and the decision making process at all times; and
• remaining compassionate, humane and reasonable, and aware of the impact of sanctions - ideally not removing benefits while appeals were underway.

"The values framework should underpin the Scottish social security agency's culture, helping the agency make correct decisions and ensures everyone is pulling in the same direction to ensure the highest quality of customer care is provided to service users."
Highland Council

15.34 Many emphasised the importance of the user experience in ensuring the values underpin the appeals process. Overall, respondents wanted to see an approach which was inquisitive, exploratory, dignified and minimised the burden on the user. Some cautioned that the approach should not be interrogative, adversarial or threatening.

"The tribunal process is daunting, nerve racking, stressful. There is the fear of the unknown. It is upsetting. People are afraid to say the wrong thing. There is the fear of going in front of someone you don't know. You don't know what information your doctor has submitted. It feels humiliating…a form of mental torture."
Scottish Commission for Learning Disability ( SCLD)

15.35 Suggestions for ensuring a positive user experience included:

• being clear about individual rights;
• being sensitive to individual needs and concerns;
• being compassionate and understanding the barriers individuals face in their lives;
• understanding the nature of fluctuating conditions; providing support as required;
• being clear in correspondence and using inclusive communication practices; and
• making it as easy as possible for individuals to attend tribunals.

15.36 A few respondents suggested that it was important to minimize individual costs and travel time, and that travel costs should be met in advance to ensure people could afford to attend.

15.37 Some talked about the importance of continuous improvement, including:

• regular reporting on appeals outcomes;
• user involvement in quality improvement;
• user involvement on the tribunal;
• training of relevant staff - including on equality and disability issues;
• regular review of processes;
• learning from experience through a link between the tribunal and social security agency procedures and guidance;
• an independent way to provide feedback and user experience of the appeals process; and
• public scrutiny.

"Training in equality issues, particularly in disability equality and independent living, given the higher percentage of disabled people accessing the benefits system. This training should be designed and led by DPOs."
Glasgow Disability Alliance

15.38 A few reiterated the importance of having clear timescales for the appeals process. A few reiterated earlier points about the importance of a seamless transition from internal review (if there is one) to appeal. A few emphasised the importance of the tribunal involving a diverse panel, including legal, medical and disability experts. A few also stressed the need to make sure that individuals weren't asked to repeatedly provide the same information.

Question - Are there any other values that you feel should be reflected in the design of the appeals process?

15.39 A total of 56 respondents commented on this question (33 organisations and 23 individuals). Some responded simply to say that they didn't think there were any other values that should be reflected.

15.40 Some reiterated the importance of values that they had previously said were important throughout the social security system. The main themes emerging were:

• The need for a person-centred system based on rights, dignity, equality and fairness - Respondents suggested taking a human rights approach, and including values such as equitable, impartial, humane, rights based and fair. A few highlighted the legal requirements to take account of equality, including Article 6 of the European Convention on Human Rights, which guarantees the right to an independent and impartial tribunal in the determination of criminal charges and "civil rights and obligations".
• The need to reduce barriers - Some respondents pointed to barriers such as IT literacy and access, physical access, communication styles, challenges accessing advice and representation and travel costs, which needed to be addressed within the appeals system.
• The importance of a face to face tribunal - A few respondents were concerned that there were discussions at UK level about some appeals moving towards a paper based or digital system. These respondents felt that a face to face tribunal was very important in giving individuals the chance to speak with decision makers, explain their situation, and be treated as an individual.

"I think the social security system in Scotland should have face to face appeals by default, and alternative ways for those who prefer these. I appreciate that face to face appeals are probably more costly, but I think they are far more likely to promote a humanising and fair system, as opposed to a dehumanising, impersonal and less fair one."
Individual

"Gender equality should also be specifically mainstreamed throughout the process, to address the gendered stereotyping and assumptions that women currently experience when accessing social security."
Engender

15.41 A few felt that it was important that the appeals process started with the assumption that individuals had genuine reasons for requiring social security payments, and that benefits should continue to be paid on an interim basis while appeals are on-going.

Timescales

15.42 The Scottish Government set out its proposals for timescales in Part 3 of the consultation document.

Question - What do you consider would be reasonable timescales to hear an appeal in relation to a decision on devolved benefit?

15.43 In total, 88 respondents answered this question (49 organisations and 39 individuals).

15.44 A few said it should be heard within a week or less. This included two organisations and one individual. A few individuals said an appeal should be heard within two or three weeks. Some respondents said one month; a few said between one and two months; and some said between two and three months - with a broadly equal balance between organisations and individuals. A few said between three and six months.

15.45 Some did not give specific time frames but made a range of related points:

• cases may be prioritised based on need and vulnerability;
• timescales may vary dependent on complexity;
• the resources available within the appeals system may impact on timescales;
• there is a need to consult with experts and individuals to co-produce agreed timescales and processes; and
• more focus on mandatory reconsideration could reduce the need for appeals.

Question - In order to ensure a transparent appeals process, what steps could be taken to ensure that those appealing fully understand and are kept informed at each stage of the appeals process?

15.46 In total, 88 respondents answered this question (54 organisations and 34 individuals). The main theme emerging related to accessible communication.

15.47 Many talked about accessible communications. These respondents felt that information should be provided in a way that best suits the individual, and that individuals should be asked about their preferred method of communication at the outset. This would include a range of methods, including letter, phone, email, texts and online information. A few indicated that authorised representatives should be copied into correspondence, and a few emphasised that it was important communication included all relevant information. A few respondents indicated that it was very important to consider both format used and language used, taking into account that individuals will have a range of needs (for example, people with sensory impairments or learning difficulties and people with literacy or numeracy issues). A few suggested that it would be useful to co-produce materials, working with all relevant stakeholders.

15.48 Some felt that it was important that individuals received regular information about progress with their case, and likely timescales for each stage. This would include the detail of the new information considered. These respondents felt that this regular communication would greatly relieve anxiety. A few felt that it would be useful to have an online tracker or electronic case management, so that individuals could easily view progress with their case.

15.49 Some felt that individuals should receive guides and clear information about what to expect. Respondents felt that this could cover:

• a step by step guide to appealing / an overview of the process;
• information about how to start the appeals process; and
• how to access the decision making guides used in the appeals process.

15.50 Respondents were clear that this information should be available in different forms, including using videos, online links and social media, and should be in plain language.

15.51 Some felt that there should be a key worker, case officer or link person within the new social security agency, for each case. Some reiterated the importance of independent advice and advocacy, and individuals being made aware of their rights.

15.52 A few individuals stated that the current system worked fine and gave no further comment.

Question - How could the existing appeals process be improved?

15.53 There were 79 responses to this question (50 organisations and 29 individuals).

15.54 Many respondents reiterated issues they had raised previously, including:

• making the process quicker, and with clear timescales;
• improving communication;
• ensuring access to advice and advocacy services;
• making the process more customer friendly; and
• ensuring links with reserved benefit appeals.

15.55 New issues emerging included:

• A few respondents talked about the composition of the panel and the witnesses called to the tribunal. A few advice and support organisations and individuals wanted individuals to be told in advance who the tribunal members will be, and a few said the panel should involve more lay people with an interest in disability or people with mental health experience. A few individuals talked about witnesses, saying that individuals should have the right to have an input into who is asked to give evidence, to compel witnesses to attend, and to cross examine them.
• A few respondents talked about the need for care to be taken before striking out appeals as a result of interim instructions.

"Currently as a management function tribunal judges are frequently issuing interlocutory instructions threatening strike out of appeals if not complied within very short time periods. Before appeals are struck out for failure to respond to an interlocutory instruction it is recommended that an appeal pre-hearing should be heard."
Rights Advice Scotland

• A few respondents discussed the importance of independence, consistency and treating all parties in the same way. One respondent highlighted the need for continuous improvement to ensure that decisions at first tier tribunals could be learned from. This respondent was concerned that while upper tribunal decisions were binding on future decisions of the DWP and first tier tribunals, this same process did not take place - even in an informal way - for decisions made at first tier tribunals.
• A few felt that there was a need for more training for panel members.
• A few reiterated that mandatory reconsiderations should be removed from the process.
• A few respondents felt that written decisions should be issued automatically and quickly, without individuals being required to request a decision in writing.
• A few respondents felt that appeals should not be influenced by letters from GPs or health professionals, as this information should have already been gathered through a good initial assessment, and was creating pressure on GPs.
• A few felt that there should be a process for ensuring equality for those who were unable to travel to a venue.
• A few felt that it was important that applicants were asked for feedback on their experiences.
• A few, including Rights Advice Scotland, felt that it was important that individuals had a private space to talk about their case with an advisor, to protect the dignity of the client.

"There needs to be equality between the parties to the appeal. Providing a room for presenting officers with access to tea and coffee while merely a waiting room for appellants appears unfair."
Angus Community Planning Partnership, in cooperation with the Angus Welfare Reform Group

"…we would also advocate clarity for clients and our members on the role of the GP in supporting appeals. We have some concern about the potential conflict for GP patient relationships in providing support with the current lack of clarity."
Royal College of General Practitioners Scotland