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