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INDEPENDENT TRIBUNAL SERVICE

6. Case No. C.1321/99

Delay in re-listing an appeal to a social security appeal tribunal

6.1. Mr F, Mrs N's representative, complained that the Independent Tribunal Service (ITS) excessively delayed re-listing Mrs N's appeal to a social security appeal tribunal following an earlier adjournment.

6.2. My investigation began in April 1999 once the Ombudsman had obtained comments from the Secretariat of ITS. I have not put into this report every detail investigated, but I am satisfied that no matter of significance has been overlooked. An annex sets out the procedural background and the Ombudsman's jurisdiction.

Investigation of events

6.3. 1997 On 24 February Mrs N appealed against the Benefits Agency's decision that she could not be treated as incapable of work from and including 28 January, which had led to a reduction in her income support personal allowance and withdrawal of her income support disability premium. The social security appeal tribunal heard her appeal on 16 October and adjourned indefinitely to give her the opportunity to obtain a medical report. On 18 November Mr F sent the medical report to the clerk to the tribunal and asked that ITS arrange a new hearing date.

6.4. 1998 According to his attendance note, on 27 January Mr F telephoned the ITS office at Sutton (Sutton) to find out when Mrs N's case was to be reheard. Sutton told him that they had no record of Mrs N's case under the reference number or the National Insurance number he had quoted. They then traced Mrs N's papers under a different reference number. The medical report had not been linked to the file and Sutton asked Mr F to fax them a copy, which he did the same day. Mr F's attendance notes record that he telephoned Sutton on 6 March and 16 April for progress reports and on both occasions he was told there was no news of the hearing date. In a further attendance note dated 28 May Mr F recorded that he telephoned Sutton only to be told that Mrs N's papers had "disappeared". Sutton asked Mr F to send them copies of any relevant papers he held, which he did later that day. On 18 June Mr F telephoned Sutton for a progress report and was told that because work was being transferred to ITS's Nottingham office (Nottingham), there might be a further delay.

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6.5. On 10 August Mr F wrote to Nottingham for progress reports on several appeal cases including that of Mrs N. In their reply of 18 August Nottingham told Mr F that they did not hold any records of Mrs N's case and that they had asked Sutton to check their computer records for it. On 18 September Mr F sent Nottingham a reminder that he had heard nothing from them about several cases, including Mrs N's. Nottingham replied on 29 September. They told Mr F that they were still waiting to hear from Sutton about Mrs N's case. On the same day Nottingham wrote to Sutton asking them to make a thorough search for three files, of which Mrs N's was one. Mr F wrote to Nottingham again on 20 October, chasing their progress and pointing out that he had previously sent Sutton copies of his papers on Mrs N's case because Sutton had lost theirs. Nottingham replied on 22 October. They said that they had still heard nothing from Sutton about Mrs N's case but would be chasing them up that day. To that end Nottingham sent Sutton a note asking them to carry out a full search for the files on several cases in which Mr F had an interest, including that of Mrs N. Sutton replied on 23 October saying they had sent Nottingham a memorandum on some of the cases the previous day. However, it seems that that memorandum did not reach Nottingham and Sutton did not keep a copy. (Note: it is not known whether that memorandum covered Mrs N's case.) On 28 October Nottingham sent a note to Sutton saying that they had not received the memorandum and still needed information on the cases about which they had asked previously. Nottingham sent Sutton another reminder on 25 November.

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6.6. 1999 On 6 January Nottingham sent Sutton a further memorandum asking them what was logged on their computer system for the outstanding cases in which Mr F had an interest and asking for the files, if Sutton held them. Mr F wrote to Nottingham on 3 February to chase their progress on Mrs N's case and others and, on the same day, he wrote to the Member asking if the Member would refer Mrs N's case to the Ombudsman. The Member did so on 9 February. On 18 February Nottingham replied to Mr F's letter of 3 February and said that as Sutton still had not sent Mrs N's file the only option was to reconstruct the file as best they could. They asked Mr F to send them copies of any relevant documents that he held. On the same day Nottingham again reminded Sutton that they needed replies to their previous memoranda. On 5 March Mr F sent Nottingham copies of the papers he held on Mrs N's case. Mrs N's appeal was heard on 13 April and the tribunal found in her favour.

ITS's comments on the complaint

6.7. On 22 April in their initial comments to the Ombudsman on Mr F's complaint, the Secretariat of ITS offered their unreserved apologies to both Mr F and Mrs N for the problems they had experienced. They acknowledged that Mr F had provided several copies of the medical report requested in October 1997 by the tribunal and they regretted that earlier action had not been taken to list the appeal for hearing. They said that Mrs N's file had been mislaid, but they could not tell when that had happened. Nottingham had not been told that the file was missing when responsibility for the case was transferred from Sutton at the end of June 1998; they only discovered the loss when Mr F wrote to them later in the year. The Secretariat said that action should have been taken sooner to reconstruct Mrs N's file.

6.8. In more general comments about the workings of ITS the Secretariat said that there had been a lack of effective communication between Sutton and Nottingham. ITS staff had been reminded to respond promptly to enquiries from colleagues and of the importance of keeping them informed when an immediate reply could not be given. They said that various initiatives were under way which were aimed at improving throughput times and reducing backlogs. Work was also in hand to reconcile paper and computer records so as to minimise the chances of a computer record being transferred without the relevant paper file. The Secretariat said that Nottingham had already done a lot of work in relation to post-hearing activity and they were continuing to review procedures and make improvements where possible.

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Later developments

6.9. On 5 May 1999 ITS wrote to Mrs N to tell her that they proposed to pay £150 in compensation for the delay in resolving her appeal and for the inconvenience caused by the loss of her appeal papers. On 4 June the Benefits Agency made Mrs N a payment including £506.96 arrears of benefit withheld from 19 January to 10 May 1999 pending determination of her appeal. On 11 June the Benefits Agency paid Mrs N a further £3,192.68 arrears of benefit for the period 28 January 1997 to 18 January 1999.

Findings

6.10. After Mrs N's appeal was adjourned in October 1997 ITS dealt with her case in an extremely lackadaisical manner. In November Mr F sent Sutton a copy of the medical report which the tribunal had requested and asked for a new hearing date. I saw no evidence that Sutton took any action on receiving his letter. When Mr F made enquiries in January 1998 he was told that the medical report was not on the file and he sent another copy immediately. That too produced no response. In May Sutton told Mr F that Mrs N's file had disappeared. As ITS have said (paragraph 6.7), it is not clear when the file went astray. It may have been missing when Mr F made his earlier enquiries in March and April and was told that there was no news of the new hearing date. Clearly Mrs N's appeal could not take place until ITS had the relevant papers to hand. However, even after Mr F sent Sutton copies of all the papers which he held, it seems that they took no action to locate or reconstruct the file, nor to arrange a new hearing date. It also seems that Sutton did not tell Nottingham that the file was missing when they handed over responsibility for the case at the end of June 1998. I was pleased to learn of the reconciliation work described by the Secretariat (paragraph 6.8) which I note is intended to help prevent a recurrence of such a problem. However, I found that Sutton's performance was altogether very poor.

6.11. After Nottingham had taken over responsibility for the case, it was not until they received Mr F's letter of 10 August 1998 that they realised they had not received the file. They then asked Sutton to check the records and told Mr F what action they were taking. Sutton failed to reply. Mr F felt obliged to send another reminder, on 18 September. Then, between September 1998 and February 1999, Nottingham repeatedly asked Sutton to search for Mrs N's file. I have serious doubts that Sutton took active steps to do so. Why else would they repeatedly fail to reply to Nottingham's enquiries? That was a very poor performance on ITS's part, as the Secretariat have already acknowledged (paragraph 6.7). I welcomed their assurance that steps have already been taken to highlight the importance of internal communications. Back to top

6.12. By February 1999 Nottingham had concluded, albeit belatedly, that Mrs N's file was not going to be found. In the circumstances they had little alternative but to seek Mr F's help in reconstructing the missing file. While that was certainly the sensible thing to do, I strongly agree with the Secretariat (paragraph 6.7) that Nottingham waited too long before taking that action.

6.13. What redress might then be appropriate in the light of my conclusions? Although I welcomed the consolatory payment of £150 made by ITS to Mrs N for the delay in resolving her appeal and the inconvenience she had been caused (paragraph 6.9), it seemed to me that she should also be compensated for the loss of use of benefit for such an unreasonably long time. The payment of benefit sent to Mrs N on 11 June 1999 had to be backdated more than two years, to 28 January 1997. To all intents and purposes her appeal was ready to be heard again in November 1997, but it was not until April 1999, almost 17 months later, that the appeal took place. That delay was largely attributable to the maladministration by ITS that I have identified. I therefore asked the Chief Executive of ITS if he would liaise with the Benefits Agency to arrange for Mrs N to receive compensation for the loss of use of benefit for the period of ITS's delay. In reply, the Chief Executive said that he had arranged for the Benefits Agency to be contacted to make a compensation payment for the period from November 1997 to 13 April 1999.

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Conclusion

6.14. ITS mislaid Mrs N's file, failed to reconstruct it promptly despite Mr F sending them copies of relevant documents on more than one occasion, and failed to deal adequately with correspondence from Mr F. The resulting delay in re-hearing Mrs N's appeal caused her to suffer financial loss. I regard the consolatory payment of £150 which ITS made to Mrs N, together with the apologies offered by the ITS Secretariat and the agreement of the Chief Executive of ITS for arrangements to be made with the Benefits Agency for a compensatory payment for the loss of use of benefit as being an appropriate remedy to a fully justified complaint.

ANNEX

Background on ITS and the Ombudsman's jurisdiction

6.a. At the time relevant to the complaint, decisions about a claimant's entitlement to income support were made, in the first instance, by the Benefit Agency's adjudication officers, and such decisions carried with them a right to appeal to a social security appeal tribunal. Notice of appeal had to be made in writing, giving the grounds of appeal, normally within three months of the decision appealed against.

6.b. Also at the time relevant to the complaint, ITS were responsible for the administration of social security appeal tribunals. Work associated with tribunal hearings took place at ITS's regional centres. That work included telling the appellant that his or her appeal had been received; sending the appellant and his or her representative a set of appeal papers setting out why the original decision was made; giving at least ten days' notice of the appeal hearing; and sending the appellant and his or her representative written notification of the tribunal outcome. In June 1998 responsibility for servicing certain appeals was transferred from ITS's regional centre at Sutton to the regional centre at Nottingham as part of the final stage of a decentralisation and movement of work programme.

6.c. The adjudication and appeal process is being changed over a period from 1 June 1999. A new agency will replace ITS from April 2000. ITS became a shadow agency on 1 June 1999 to prepare for the changes.

6.d. It is not for the Ombudsman to determine a person's entitlement to income support or any other social security benefit. The Ombudsman is normally precluded from looking into any action in respect of which an aggrieved person has or had the right of appeal to an independent statutory tribunal, such as a social security appeal tribunal. Where, as in this case, that right has been exercised, the bar to the Ombudsman's intervention is absolute. Nor may the Ombudsman investigate the merits of any discretionary decision taken without maladministration by any body within his jurisdiction.

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