Early neutral evaluation of social security tribunal appeals – are there risks?
The MoJ has published a research report (1) evaluating a pilot scheme offering early neutral evaluation (ENE) of appeals involving Disability Living Allowance and Attendance Allowance. The purpose of the pilot was to identify the success and cost-effectiveness of using ENE to resolve administrative appeals without the need for a full tribunal hearing.
About the pilot
The pilot involved an initial opt-in stage, at which appellants in cases identified as suitable for the pilot (such as where one side showed clear weaknesses), were offered the ENE option. At this stage 78% of appellants who were sent a letter inviting them to opt in did so.
After opt-in the ENE was carried out in two stages:
At Stage 1, a District Tribunal Judge assessed the appeal papers to determine the likely outcome at hearing. If the judge was able to form a view, the case proceeded to Stage 2. If not, the case proceeded to hearing, and the same judge did not serve on the panel hearing the case.
At Stage 2, the judge contacted the party identified as the potential 'loser' to advise them and invite them to reconsider. (In just over half of these, the calls were to the Pension, Disability and Careers Service (PDCS) (54%) as the 'losing' party, and slightly less than half to the appellant (46%) as the 'losing party'.) These calls resulted in the appeal being withdrawn or lapsing, or proceeding to hearing.
Key findings
In just under half of the cases in which the full ENE process was used, the judge conducting the ENE process advised the appellant to withdraw the appeal as it was likely to be dismissed at tribunal hearing. In an unspecified number of these cases, the appellant ignored the judge’s advice and proceeded to hearing, and subsequently won their appeal and gained a higher settlement. Such examples, in the words of the researchers, 'undermined the achievements of ADR in respect of proportionate dispute resolution'.
About one-quarter of cases that opted in (23%) were resolved without the need for a hearing. This suggests that the use of ENE reduced the number of appeals going to hearing because it is significantly higher than the usual rate of withdrawn or lapsed appeals. (In those cases that did not opt in, the percentage of appeals closed without a hearing was much lower, at 9%.)
Although the majority of all the opt-in cases (77%) proceeded to hearing, there were benefits to stage 1 of the ENE. Of the 249 cases subjected only to this initial assessment, 42% had directions issued, which led to clearer evidence for the tribunal panel to consider.
Time and cost
The evaluation found that the use of ENE did not achieve swifter resolution of cases. Cases that went through one or both stages of the process resolved in an average of 46 working days, compared with 42 for those cases that did not opt in.
The use of ENE was found to be less cost effective than the traditional process – the evaluation found that cases subject to one or both stages of ENE had an average unit cost of £222, compared with £202 for the non-opt-in cases.
Conclusion
Although ENE is often described as a no-risk process, it is not without risks. As with mediation, there is a degree of pressure on the parties to settle, particularly parties who are one-off users of the process, as appellants were in these cases. In the context of the pilot, the decision to follow or ignore the expert advice of a tribunal judge is likely to impose considerable pressure on an appellant, especially one without access to independent advice.
In spite of the concerns and the lack of clear evidence of cost or time savings, the report recommends a limited roll-out of the pilot, accompanied by ongoing testing and monitoring.
Read the full report here
1 Evaluation of Early Neutral ADR in the SSCS Tribunal: Summary to Ministry of Justice Research Series 2/10
