Tuesday, August 19, 2014

Creeping SECRECY - the enemy of democracy and freedom of expression - alive and well in Jersey

The States of Jersey is currently recruiting people - medical practitioners only  - to serve on Social Security Appeal Tribunals besides “side members” for Employment Tribunals and the newly created Discrimination Tribunal.

Only “doctors” are being recruited to sit on the panels that consider Income Support and Medical Board Appeals. They are paid at the rate of £220 per half day and are to be available for about ten half-day sessions each year.

“Side Members” for the Employment and Discrimination Panels need have no professional qualifications and will be paid at the rate of £97 per day and should be available for about 20 days each year.

According to current adverts the Social Security Minister “is legally bound to ensure that claimants to benefits have access to an independent Appeal Panel”.

But as is becoming ever more obvious, that Appeal Panels composed of three doctors are hardly independent when considering awards of benefits that have been made on the basis of a medical board decision from a fellow doctor. Especially when that doctor is sitting alongside the Social Security Officer during the hearing, defending the decision previously made….

The potential conflicts must be obvious - but the doctors have now decided that these Tribunal hearings must be heard in private because their own “Trades Union” – the BMA – is concerned about the role of one doctor being critically examined – and possibly criticized – by a Panel of three others.

Of course the local doctors do not express it in these terms but the result of recent decisions is that ALL such hearings will soon have to be held in secret although the law requires that they are held in public, except in exceptional circumstances.

It is the Claimant who is supposed to be able to object to the hearing being held in public – but there must be more substantial reasons than just “feeling uncomfortable”.  Such principles apply to ALL public hearings where there is a “public interest “in the matters to be decided.

These principles have been argued in local and other courts of law and are well established and understood. It would be laughable for persons to be able to require that Court hearings generally are held in secret because they feel “uncomfortable”
…see for example  JEP v AL Thani and 4 Others etc 2002 JLR 542

Of course, claimants are entitled to privacy and there is no need for their identities or any confidential information to be released – but it is essential that the hearings are seen and heard to be conducted fairly and that the decisions of the Social Security Department are proper and consistent.

Appellants could be screened from view if necessary but public scrutiny protects the claimant as well as the wider public interest.
Ironically, I have yet to hear a Panel protest that an appellant is inadequately represented when he or she is trying to surmount the inequalities of  a professional lawyer presenting the case for the “other side” whilst they must speak for themselves and very often in broken English too. Equality of arms does not seem to be a priority with these panels.

If panels are truly concerned to achieve a “fair hearing” then they have, in my experience, a very limited priority for securing it.

There were 52 Social Security Tribunal Hearings held from 1 January 2012 to 30 June 2014. These dealt with a range of matters such as Cold Weather Bonus, Invalidity Benefit. Income Support with or without impairment Component, Incapacity Allowance etc.

Details of the appeals and decisions made are never published so that it is impossible for other claimants or the general public to gain useful, precise knowledge about the proceedings even though the Panels do submit their Appeal decisions in writing to the Social Security Minister.

Most appeals are rejected – “against the appellant” – viz 44 of the 52 referred to above.
No records are kept by the Social Security Department whether hearings are held in public or private.

Traditionally, the general public has not attended the hearings which take place in the Jersey Employment Tribunal (JET) suite behind the Ann Summers shop in Bath Street.

They are not advertised but a notice is stuck to the JET door (at first floor level) on the Thursday before the week in which they take place.

Recently the Panels have tended to exclude the general public from being present so that the hearings take place in secret.

The hearing re Mrs MP and the Social Security Department is such a case and took place on Thursday 10 July and was held in secret before Doctors Ford (Chair), Loane and Richardson.

The Appellant said only that she would be “uncomfortable discussing details of her medical condition in public.”

I objected to a secret hearing and argued on a public interest basis that the hearing should take place in public.

However, the Panel of three doctors retired to consider the matter and then returned to announce that the hearing would take place in private and added its own reason;

“The Tribunal was concerned that the panel might be limited in their ability to make enquiries of a confidential nature into the Appellant’s medical conditions, and thereby be unable to make a full and accurate assessment of the Appellant’s disablement.”

Of course, a similarly phrased reason could be used to ensure that ALL tribunal hearings – whether relating to medical, social security, employment or discriminations matters – are held in secret.

Such a degree of general censorship is very dangerous. It amounts here to nothing more or less than a professional desire to conceal its membership from scrutiny. It is the type of concealment that allows professionals to avoid responsibility for their actions and decisions.

It is wholly wrong that such Social Security panels are composed exclusively of doctors.

For the past few years I have been attending the various forms of Tribunal hearings – including some in the Courts – and there is a worrying trend towards increased secrecy. It even occurs in the management of Scrutiny Panel Hearings.

I have blogged here about the trend, especially regarding Social Security appeal hearings and how I am being ejected more and more frequently  – see the tom gruchy blog on 2 March 2014 – and I am copying below another blog about Secret Social Security Appeals from 24 June which ploughs a similar furrow….
This current posting picks up where these left off.

I have invited Senator Le Gresley, the Social Security Minister, to give an interview or offer any comments and am currently awaiting his response.

Deputy Tadier has already written to the Judicial Greffier about the management of Tribunals and his personal experience of the Social Security Appeal process. That response is also awaited.

The international background to all this lies in the hysteria of governments to reduce their Social Security expenditure and obligations.

The current obsession with such initiatives as Bio-psycho-social assessment regimes is being discredited the world over. The French company that administered the assessment regime in England has resigned following the volume of criticism from those aggrieved and even suicides from the hardest hit claimants.

MPs in the UK have described those companies behind the regime as “running disability claims denial factories.” There has been immense criticism of the Cardiff University’s role in the scheme and the doctors who implement the “disability assessment regime” and the part played by huge insurance organizations as “outlaw companies”.

Locally, one UK-based consultant doctor has been leading the Social Security medical assessment team and training others in the Bio-psycho-social methods of assessment.

There is little or no scope here for dissenting medical opinions. The primary aim is to reduce costs and to disallow claims.

It is all the more essential that Appeal Hearing panels are composed of persons with genuinely independent minds and opinions. They must be prepared to challenge the decisions made at Medical Boards and by “Determining  Officers” of the Social Security Department.

The recruitment of doctors to sit on such panels exclusively is outrageous.

Jersey doctors should refuse to participate in the current system and the panels should be opened up to non-professional membership.

 The trend towards secrecy must be stopped.

 NEXT I am publishing below the posting prepared in June this year on the same subject;

Deputy Southern presented a Social Security Appeal for a claimant yesterday (23 June)  at the Tribunal Office behind the Ann Summers store in Bath Street.

The claimant did not appear and the hearing proceeded in private before a Panel chaired by Advocate Zoe Blomfield sitting with Mrs. Le Monnier and Dr Loane. Two Social Security officers also attended to present that Departments case.

I had attended to observe the proceedings at 11 am but Deputy Southern applied for the hearing to be in private and so I was required to leave – along with two Social Security trainees.

 The chair somewhat reluctantly allowed me to make a Representation as a member of the public and I argued that it was a matter of public interest that such matters of administration should be observed and reported upon. I emphasized that the claimant need not be named at the hearing and that the general public would have no means of knowing his or her identity.

Nevertheless the chair ruled that since the Tribunal deals with medical matters making them public would cause upset and embarrassment to the claimant - so I was ejected.

A few days previously, on Friday 20 June I had been similarly ejected from a hearing chaired by Dr Richardson sitting with Drs Ford and Loane. Then the claimant did not appear at all and was not represented but the hearing proceeded with two Social Security officers only present.

Then the chair was even more hostile to my speaking but I made an attempt at presenting reasons why I should be allowed to observe the proceedings – especially since the claimant had expressed no view on whether the hearing should be held in private or otherwise.

Nevertheless, the chair ruled that the claimant had not given permission for his personal details to be discussed in public and so I was required to leave.

These are the latest chapters in a long “public interest” battle and the rulings seem to defy the policy decisions previously given to me via the Bailiff’s Office and the Judicial Greffe viz
14 April from Judicial Greffe;
“The Bailiff’s Office has requested me to respond to your emails to him dated 1 March and 2 April regarding the complaint set out in your letter of 7 December 2013….. As you are aware each of the Tribunals shall sit in public unless it considers it necessary to sit in private. The general presumption is that a hearing shall be in public unless the Tribunal considers it necessary to sit in private.

I wish to inform you that in future each of the Tribunal will hear in public any application on behalf of an applicant that the matter be held in private and any member of the media or public present will have the opportunity to address the Tribunal in relation to that application. The decision in relation whether it is necessary for the sitting to be held in private is one for each Tribunal. The Chair of the Tribunal will express in a few sentences the reasons for its decisions to hold the sitting in public or private as the case may be.”

Further email 2 May from Judicial Greffe;

…”There is also a change to the way Social Security hearings are administered. As always the presumption is that these hearings are in public. In future if an applicant wishes the hearing to be in private they must apply to the Tribunal. The Panel will hear the application at the start of the hearing and after the applicant or their representative have stated their reasons why they wish the hearing to be in private any members of the public or media present will have an opportunity to address the Tribunal prior to a decision being made. The Chairman will give the decision with brief reasons. If the decision is for the hearing to be in private all persons not immediately involved with the hearing will be asked to leave.”

Bearing in mind that no information about Social Security Tribunals or the decisions made is published or released into the general public domain, the importance hearings taking place in public cannot be overstressed.

The public must have a right to know what decisions are made by the Social Security Department and how public money is dispensed.

Furthermore the old principle that “Justice must be done – and seen to be done” must apply to these Tribunals just as any other court process. This is for the protection of claimants making appeals as much as any other more general purposes.

Since virtually all Social Security appeals will raise issues relating to sensitive heath or medical matters it is absurd that this might be a standard reason for the hearings to be in private. Virtually all hearings would be held in private on that basis and this standard could be extended to Employment Tribunals or Discrimination Tribunals when they are convened in the near future.

Following these two non hearings I have written to the Minister for Social Security under the FOI code requesting details of all Social Security Tribunal appeals since 1 January 2012.

I have also complained yet again to the Judicial Greffe about the procedures being followed at the Tribunals.

There is yet another Social Security Hearing scheduled for Friday 27 June and I will attend in order to observe the proceedings as a member of the public.


This posting will be sent to ALL elected States Members by e-mail and their comments or action invited.



  1. E-mails were duly sent to all current elected States Members advising of this posting.
    Reponses to date (22 August) have been 3 automatic out of office replies, one thank you (from a Constable) and no others at all . No expressions of interest. no comments - no requests to be interviewed...and the general election in a few weeks too!

    1. Five months have now passed since you wrote this. You refer to three different Tribunal appeal hearings from which you were ejected (on 20th June, 23rd June and 10th July 2014). Judging by the presence of doctors on each of these panels, all three hearings would appear to be 'Medical Appeal Tribunals'.

      1) Could you just confirm whether or not you were ever able to obtain from the Registrar of Appeals the individual decisions that were later reached by the panels in each of these three cases after you were asked to leave (i.e. whether to confirm, reverse or vary the Social Security Department's decision). I don't mean whether you were able to obtain them by any unofficial means, such as by speaking to Deputy Southern or to one of the appellants- only by official means through the Registrar of Appeals. Furthermore, if you were able to obtain the decisions by official means, did they include any written reasons for the decision?

      2) Regarding the composition of these Medical Appeal Tribunals, article 15(8) of the Income Support (General Provisions) Order 2008 says that "the Tribunal shall consist of one person from each of the categories of members mentioned in paragraph (1)(a), (b) and (c) selected by the Registrar". The three categories mentioned in article 15(1) are (a) a legally qualified chair, (b) medical practitioners and (c) members "who are persons other than medical practitioners and are experienced in dealing with the needs of disabled persons in a professional or voluntary capacity or because they are themselves disabled." I take this to mean that a Medical Appeal Tribunal CANNOT by law consist purely of medical practitioners- there would have to be a legally qualified chair and a person who was not a medical practitioner in addition to a medical practitioner. I am therefore concerned that the composition of the Tribunals you attended on 20th June (Dr Richardson- chair, sitting with Drs Ford and Loane) and 10th July (Dr Ford-chair, sitting with Drs Loane and Richardson) appear, on the face of it, to be non-compliant with the 2008 Order. If there is a valid reason to explain why article 15(8) of the Order has not been complied with then surely this should be pronounced at the start of each relevant appeal hearing before the public are ejected. The appellant has the right to know this too, even if the appellant is unaware of what the law actually states.
      3) I have conducted checks on the States Assembly website and I have found the relevant propositions that the States adopted to appoint Drs Michael Richardson and Brendan Loane as members of the Medical Appeals Tribunal. However, I am mystified that I can find no similar mention of any Dr Ford ever having been appointed by the States to either the Medical Appeals Tribunal or the lay equivalent- the Social Security Tribunal. You say that he chaired the hearing on 10th July and was also a member of the panel at the hearing on 20th June. WHEN WAS DR FORD APPOINTED BY THE STATES? WAS HE ACTUALLY APPOINTED BY THE STATES? IF HE HAS BEEN CORRECTLY APPOINTED TO SERVE ON THIS TRIBUNAL THEN WHY ISN’T HIS NAME AND BIOGRAPHY INCLUDED IN ANY OF THE RELEVANT PROPOSITIONS ADOPTED BY THE STATES?
      4) One other thing- Dr Loane has since been appointed to the Medical Board so I believe that he will no longer be a member of the Medical Appeals Tribunal. I picked this up from a ministerial decision in November 2014.

    2. Further to my previous post, I have now conducted a further search under 'Ministerial Decisions' on the gov.je website and I have traced the appointment of Dr Pamela Ford by a decision of Social Security Minister Gorst on 18th August 2009, presumably during the States summer recess. There is still no evidence that a proposition was ever lodged or debated by the States in relation to the appointment of Dr Ford.

      Article 15(2) of the 2008 Order clearly states that "The members shall each be appointed by the States on the recommendation of the Minister made after consulting the Jersey Appointments Commission established by Article 17 of the Employment of States of Jersey Employees (Jersey) Law 2005."

      So according to the Order, the Minister only recommends the appointment and the States actually takes the decision to appoint the member. This hasn't happened in the case of Dr Ford. Can the Minister validly appoint someone to a Tribunal without the approval of the States if circumstances dictate (e.g. if the appointment needed to be made urgently before the States reconvened)?

      If it can validly happen once then presumably it can validly happen many other times too. Is there any procedure for ensuring that in each case the States Assembly is adequately notified that an appointment has been made by the Minister without seeking the approval of the Assembly? How many other times has this happened?

  2. Here is an extract from an answer given in the House (Tues 20th January 2015) by Social Security Minister Deputy Susie Pinel to Deputy Geoff Southern when he asked her if she was satisfied that the appeals process was fit for purpose:

    "Appeals in respect of medical components are considered by a dedicated Income Support Medical Appeal Tribunal. This body is chaired by a qualified lawyer, who is supported by both a GP and a member of the public with an interest in disability issues."

    So she has confirmed the relevant requirements of the 2008 Order that I quoted in my first comment above. The problem is that in practice, the Order appears to have been flouted more than once during hearings held in 2014.