Burying Bell: Managing the Judicialisation of Social Security Tribunals

AuthorNick Wikely
Publication Date01 July 2000
Volume 63 No 4July 2000
Burying Bell: Managing the Judicialisation of Social
Security Tribunals
Nick Wikeley*
The Social Security Act 1998 introduced fundamental changes to the tribunal
system for hearing appeal claims in respect of benefits. This article examines the
reasons for these changes to the largest tribunal system in the United Kingdom,
and their implications for claimants. It emphasises the increasing legalism and
approximation to ordinary courts of these tribunals. In particular, the article
considers the implications of the reduction of lay membership of tribunals and the
threats posed to the traditional inquisitorial approach.
Social security appeal tribunals were created in 1984 out of the merger of the
former supplementary benefit appeal tribunals and national insurance local
tribunals. Just fifteen years later they have been radically restructured. The Social
Security Act 1998,1preceded by a Conservative Government consultation paper,2
has now fundamentally transformed the arrangements for dealing with benefit
appeals,3with the aim of providing ‘a streamlined and straightforward service for
claimants who appeal against decisions to an independent tribunal’.4The social
security appeal tribunal and its four sister tribunals5have been collapsed into the
‘unified appeal tribunal’, while the Independent Tribunal Service itself, responsible
ßThe Modern Law Review Limited 2000 (MLR 63:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 475
* Faculty of Law, University of Southampton. I am indebted to Gabi Ganz, Neville Harris, Laurence
Lustgarten, Roy Sainsbury, Richard Young and the journal’s referees for their incisive comments on an
earlier draft of this article, but the normal disclaimers apply. I should also declare an interest as a past
member of the Judicial Training Advisory Group of the Independent Tribunal Service and as a serving
panel member of The Appeals Service.
On the implementation of the Act, see House of Commons Social Security Committee, The Modernisation
of Social Security Appeals, Eighth Report, HC 581, Session 1998–99 (London: The Stationery Office) and
the Government’s response, included in the Committee’s Second Special Report, HC 182, Session 1999–
2000 (London: The Stationery Office). On the background to the Bill, see M. Adler and R. Sainsbury (eds),
Adjudication Matters: Reforming Decision Making and Appeals in Social Security (Edinburgh: Dept. of
Social Policy, University of Edinburgh New Waverley Papers SP14, 1998) and R. Sainsbury, ‘Lost
opportunities: benefit decision making and the 1998 Social Security Act’ in E. Brunsden, H. Dean and R.
Woods (eds), Social Policy Review 10 (London: Social Policy Association, 1998).
2 DSS, Improving decision making and appeals in Social Security Cm 3328 (1996); see further R.
Sainsbury, Consultation on Improving decision making and appeals in Social Security: Analysis of
responses (London: DSS, 1997).
3 See further N. Wikeley, ‘Decision making and appeals under the Social Security Act 1998’ (1998) 5
JSSL 104; R. Sainsbury, ‘Social Security Decision Making and Appeals’ in N. Harris et al, Social
Security Law in Context (Oxford: OUP, 2000) and M. Adler, ‘Lay tribunal members and administra-
tive justice’ (1999) PL 616.
4per Ms H. Harman, HC Deb vol 298 col 783 22 July 1997.
5 Child support appeal tribunals, disability appeal tribunals, medical appeal tribunals and vaccine
damage tribunals.
for these tribunals, has been bifurcated into its judicial and administrative wings.
The judicial arm of the Independent Tribunal Service, presided over by a county
court judge, has been relaunched as The Appeals Service,6whilst its administrative
branch, responsible for arranging hearings, listing cases and calling up members,
has been hived off as a DSS executive agency, The Appeals Service Agency.7The
new agency is directly accountable to the Secretary of State for Social Security for
operational matters.
The composition of the appeal tribunals has also been radically changed;
depending on the type of appeal in question, a case may be heard by a tribunal
comprising one, two or three members.8Consequently the traditional lay
membership of social security tribunals has been abolished. The purpose of this
article is to consider the implications of these changes for tribunals and for the
appellants who appear before them.9In particular, it will be argued that the Social
Security Act 1998 and the Social Security and Child Support (Decisions and
Appeals) Regulations 199910 represent the culmination of a trend over the past
three decades towards growing legalism and judicialisation in the welfare state, but
which now exist within an increasingly managerial environment. Moreover, this
will undermine the inquisitorial principle that the Independent Tribunal Service
has, since its inception, sought to establish as one of its distinguishing features in
the wider civil justice system.
The road to the 1983 reforms
The British social security system, like its counterparts in mainland Europe, has
traditionally made a distinction between social insurance and social assistance
benefits. Social (or, in the United Kingdom, national) insurance benefits are paid
out on the basis of the claimant’s contributions record and specified legislative
criteria.11 Social assistance benefits, on the other hand, are means-tested and have
traditionally imported a greater degree of discretion in decision making. Over the
years, however, this distinction has been gradually eroded, most notably when the
supplementary benefits scheme was placed on a detailed legislative footing in
1980.12 The distinctive traditions of social insurance and social assistance benefits
6 With effect from November 1999.
7 With effect from April 2000.
8 See further N. Wikeley, ‘Social security tribunals after the Social Security Act 1998’ (1999) 6 JSSL
9 Space does not permit a detailed analysis of the changes taking place at the first tier of decision
making. It should be noted that one of the more welcome aspects of the changes in the 1998 Act was
the abolition of the formal system of internal reviews in decision making on child support and
disability benefits. For a critique, see R. Sainsbury, ‘Internal Reviews and the Weakening of Social
Security Claimants’ Rights of Appeal’ in G. Richardson and H. Genn, Administrative Law and
Government Action (Oxford: Clarendon Press, 1994). For a counter view, see M. Harris, ‘The Place of
Formal and Informal Review in the Administrative Justice System’ in M. Harris and M. Partington
(eds), Administrative Justice in the 21st Century (Oxford: Hart, 1999).
10 SI 1999 No. 991.
11 The House of Commons Social Security Committee is currently undertaking an inquiry into the future
of the contributory principle.
12 There is a voluminous literature; see eg R. Titmuss, ‘Welfare Rights, Law and Discretion’ (1971) 42
Political Quarterly 113 and the critique by M. Adler, ‘Decision-making and Appeals in Social
Security: In Need of Reform?’ (1997) 68 Political Quarterly 338. On the 1980 changes, see I.
McKenna, ‘The Legalisation of Supplementary Benefits – More Power to the Claimant?’ (1985) PL
455 and J. Allbeson and R. Smith, We don’t give clothing grants any more (CPAG, Poverty pamphlet
no. 62, 1984). See further N. Harris et al, n 3 above, ch 4.
The Modern Law Review [Vol. 63
476 ßThe Modern Law Review Limited 2000

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