Page 97 - Reforming Benefits Decision-Making -(updated - August 2021)

resources. However, the Working Party was concerned about cases where the
claimant might be offered part of what they think they are entitled to, but not
the maximum. For example, where someone is assessed as having Limited
Capability for Work but not Limited Capability for Work Related Activity.
The Working Party felt it would be difficult for appellants, particularly those
without representation or support, to know whether to accept such a
provisional decision or proceed to a hearing. They might not be aware that
they are not receiving the maximum or feel like it is better than nothing and
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that they would not want to risk getting less at a hearing. The Working
Party’s view was therefore that the paper-based triage process should not be
retained after the pandemic.

Type of hearing

3.49 Another big change caused by the pandemic has been how hearings are
conducted. Whilst previously most hearings would be conducted face-to-face,
at the start of the pandemic the majority were conducted by phone. However,
more recently video hearings using the Cloud Video Platform have started to
be utilised and some face-to-face hearings have resumed. We were told by
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tribunal judges and medically qualified tribunal members that telephone
hearings had generally been successful and that they had received positive
feedback from appellants. The judges felt that it often was not necessary to
see someone to know if they were being truthful; what mattered was the
content of what they were saying. One medically qualified tribunal member
noted that he had already done a lot of telephone work as a GP and therefore
felt comfortable assessing appellants over the phone. However, advisers have
also reported that they felt hearings were unfair without the Tribunal being
able to see the appellant, or that the appellant was not well understood on the

267 Prior to the pandemic (and the rule change and practice direction) the Upper Tribunal held that a
decision on the papers, in circumstances where the claimant had requested a hearing, breached rule 27
of the Tribunal rules. The FTT had held that the claimant should be placed in the Limited Capability for
Work ESA but not Limited Capability for Work-Related Activities ESA group. The UT stressed that
this was not a “complete win” for the claimant and that she was deprived of her right to be heard by the
Tribunal which reached that decision. LM v SSWP (ESA) [2020] UKUT 41
268 Ministry of Justice, ‘Question for the Ministry of Justice UIN 62390’ (25 June 2020).

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