Devolution of Community Care Grants and Crisis Loans: Analysis of consultation responses

6 Ensuring effective appeals

6.1 The consultation paper outlined the principle that the successor arrangements must aim to minimise the level of appeals and suggested that this would be achieved by openness and transparency. It acknowledged the importance of effective appeals arrangements for those for whom the process does not operate as it should.

The current system

6.2 The existing appeals process for applicants who are dissatisfied with decisions made in Jobcentre Plus is provided through the Social Fund Commissioner and the Independent Review Service.

6.3 Evidence has shown that within the existing system over half of applications for Community Care Grants are refused and there have been high rates of revised decisions on appeal. Applications for review are much higher for Community Care Grants than Crisis Loans or Budgeting Loans.^[26]

6.4 Reflecting this situation, there were concerns amongst respondents about the large volume of appeals being lodged within the current system:

"[We] note with dismay the number of appeals, nearly 50% of which the Independent Review Service identified that contained important errors in 2009-10. This is a shocking statistic and suggests there is clearly a problem at the initial decision-making stage." (Other public sector)

6.5 The successor arrangements were seen to offer an opportunity to 'get it right first time' and thereby reduce the volume of appeals. It was felt to be important to tackle the situation where initial rejection followed by appeal has almost become routine (often with claims granted on appeal with no additional information). The wider consequences of the delays in the appeals processes (even if the revised decision is in favour of the applicant), for example, by causing rent arrears on a new tenancy, were noted again (see paragraph 2.14).

The essential characteristics of the appeals process

6.6 There was consistency in respondents' desire to see an independent, quick and timely, fully accessible and transparent appeals system. Within this, there was variation across responses in their focus upon the particular stages and aspects of any potential new appeals system. Particular areas of comment ranged from pre-initial claim through publicity and general awareness, to the workings of the current system and a need to improve application forms and decision-making, to processes for a replacement system and audit and evaluation of a new system.

6.7 In describing the essential features of the appeals process, respondents argued that putting in place a high-quality service would also generate value for money. It was proposed that the appeals process should be:

• Publicised, accessible and easy to use with as few layers of bureaucracy as possible and with resolution at the earliest opportunity
• Focused on the needs of users and consistent in approach
• Free to the user
• High-quality, independent, impartial and promoting public confidence
• Proportionate and fair in processes and treatment, addressing any power imbalance between the customer and the decision-maker, and ensuring the dignity and human rights of claimants
• Efficient by achieving closure in a high proportion of cases, in order to keep disputes out of the courts or tribunal system
• Cost-effective for the taxpayer
• Audited to measure levels of satisfaction and to understand the customer experience.

6.8 Respondents emphasised the need to improve the focus on the initial application process and decision-making and they stressed the importance of speedy resolution at the lowest level to provide a more cost-effective service. This approach would need to be implemented by skilled, motivated and supported staff with appropriate training.

6.9 The eligibility criteria need to be clearly explained; it was suggested that they could be set out in legislation, 'in order to support the effectiveness of a right of appeal'. A list of exclusions could also be supplied with application forms.

6.10 Simplified application forms were also suggested as a way to reduce error, along with easy access to support to assist completion of application forms.

6.11 Timeliness was stressed. This had several facets including the need for clear, realistic and short timescales. Time limits were proposed. Without tight timescales for appeals, the process may inadvertently contribute to further hardship. Timescales therefore need to be proportionate and appropriate, for example, 'it should not take three months to have an appeal decision for money to stop a fuel disconnection'.

6.12 The appeals process would be improved by increased clarity at a number of stages. At the pre-appeal stage:

• There needs to be clear notification of decisions, with reasons or explanations for refusals of the initial requests so that it is easy to understand the grounds upon which any appeal may be based and where it will not be available.
• There should be a demonstrated understanding of the individual's circumstances that have led to the original application.
• There should be further investigation of the individual's circumstances as required.
• The rights of appeal should appear in the first paragraph of decision letters, with further information provided about how and when claimants can lodge an appeal.
• The right to seek representation or independent advocacy must be clear and provided at the earliest opportunity.
• An individual should be able to request the attendance of an independent advocate to support them at any meetings, or for the independent advocate to meet and provide information on their behalf to those processing their application.
• Frontline staff need to be authorised to correct mistakes immediately they are identified, without the need for a formal appeal.
• The appeals process itself needs to be clearly set out in a range of accessible formats.

6.13 At appeal itself, the following features were emphasised:

• Hearings must be fair and impartial.
• Cases must be examined in detail with a commitment to the applicant's needs. The process should be both informal and inquisitorial, but deal with decisions on legally enforceable rights to financial assistance.
• The process must be fully accessible and not overly complicated by procedure or jargon.
• Any appeals process should be open to the submission of additional evidence.
• Any decisions made should be clear, concise and understandable for applicants, including the reason for an appeal decision.
• The appeal system must take account of any conflict of interest between the decision-making body, for example, a local authority and the right to appeal representation for the appellant.

6.14 After the appeal process, the outcomes must indicate that the appeal process has:

• Demonstrated a fresh perspective on the original application and decision
• Considered all the information presented and the likely consequences of the decision
• Provided information about the onward right of appeal on points of law. Such onward appeal should be accessible without cost to claimants.
• Signposted unsuccessful appellants to other sources of help
• Given active feedback to the agency that awards grants to ensure any repeated errors are rectified.

6.15 It was also proposed that the successor arrangements should allow for late appeals for those who have been unable to make their appeal on time.

The need for independent review

6.16 There was a general call for provision for independent review under the successor arrangements. Respondents saw this as critical to a discretionary fund of this kind. There was variation in emphasis on whether this might be a one- or two-stage process and how this might best be operationalised.

6.17 Respondents suggested that in the first instance, a review process, conducted by a second separate decision-maker from the first, would reduce the need for claimants to use more costly appeal routes. It was stressed that this second decision-maker must be independent and impartial, with provision for a further and final appeal to an appropriate person or body whose decision would be binding. Independent reviewers need to have a good knowledge of the administration of the grant and budget constraints.

6.18 It was suggested that a model based on the existing IRS or Her Majesty's Courts and Tribunal Service could hear appeals. In discussing the need for independent review, there were positive comments on the effectiveness of the existing Independent Review Service:

"An appeals process must be truly independent, and accessible to claimants. We would suggest that the Government does further work to analyse the reasons for the success and popularity of the Independent Review Service, and replicates these features in the new scheme. [We] believe that the speed with which IRS reaches decisions is a key part of this popularity." (Third sector)

"Currently, the Independent Review Service performs a vital function and is one of the only parts of the existing system that we would recommend replicating". (Third sector)

6.19 Others suggested that it was too soon to comment on the detail of appeals; this concern was linked to the potential role of local authorities and therefore potential scope for variation in interpretation:

"From our experience of other appeals systems operated by local authorities they tend to operate separately from each other and interpret national regulations differently across the country". (Other public sector)

Independent representation

6.20 Respondents commented that independent representation would ensure an opportunity for the appellant to gather further supporting evidence for their case and would also ensure that they can make representations, face-to-face if desired, to explain why a decision should be reconsidered. Access to independent representation or advocacy was seen to be an important part of an appeals process in supporting access to justice and directly affecting the outcome of appeals:

"It is important to emphasise the role of independent advice in supporting access to justice. This is a key issue. Whilst there may be an official view that tribunals are accessible and informal, this should not be accepted without conclusive evidence that the vulnerable people who will need to use the system agree that this is the case in practice. The barriers faced by vulnerable people are demonstrated by the increased success rates at appeal when there is a representative to assist the claimant in arguing their case." (Third sector)

6.21 The provision of independent representation or advocacy would recognise the real barriers faced by vulnerable people. Evidence was cited by Citizens Advice Scotland in relation to Employment Support Allowances appeals, that 70% of clients who had adviser representative had appeals upheld, compared to 40% with no representation.

6.22 Respondents argued that the appeals system also needs to be adequately resourced. Potential conflicts of interest amongst different sections of a local authority, for example, welfare rights teams and revenues and benefits staff, may reduce the availability of impartial professional representation in an area, and hence, an increased need to resource the voluntary sector to step into this role.

Audit, evaluation and improvement

6.23 Respondents proposed the need for transparent scrutiny of appeals processes, including the level of appeals, reasons for appeal and monitoring of trends in decisions. This information must be used to inform future training for staff and also to inform policy makers.

6.24 The evaluation of the appeals system must include an assessment of customer satisfaction. In addition, decisions must be subject to formal audit and the performance of the appeals agency should be published.

Summary of views on effective appeals

6.25 The successor arrangements were seen to offer an opportunity to establish an independent, quick and timely, fully accessible and transparent appeals system. At the same time, by getting it right at the application stage, the volume of appeals could be substantially reduced.

6.26 There was a general call for provision for an independent review service under the successor arrangements.

6.27 Access to independent representation or advocacy was seen to be an important part of an appeals process in supporting access to justice and directly affecting the outcome of appeals.

6.28 The appeals system also needs to be adequately resourced. Decisions about delivery arrangements will have implications for the appeals process, and the resourcing of independent representation.

6.29 There is also a need for transparent scrutiny of appeals processes, including the level of appeals, reasons for appeal and monitoring of trends in decisions. This information must inform future training for staff and also to inform policy makers.