CHAPTER 29: APPEALS

The evolution of the appeal provisions of the 1934 Act was described in chapter 4. Appeal tribunals were a political necessity but the government, the board and its officials were all determined to ensure that the boards policies and standards would not be undermined. The absence of any higher appeal body meant that appeals would not result in a system of legally binding precedents. The constitution of the tribunals ensured that they were unlikely to rock the boat: the chairman was appointed by the Minister of Labour, the workpeoples representative was selected from a panel nominated by the minister, and the third member was the boards own representative (the process of selection was described in chapter 7). The statutory rules governing tribunal procedure (including the tenure of office of tribunal members, the time limits for lodging appeals and the payment of expenses to those attending appeal hearings) were made by the board, subject to confirmation by the minister, and were designed to keep applicants grievances out of the hands of the tribunals wherever possible.The clerk and other staff of a tribunal were assigned to it by the board, allowing the district office a far from passive presence at every hearing. This could hardly be described as an independent system for deciding appeals. Yet it was to survive with little change and surprisingly little criticism for nearly half a century. The tribunal clerk Administrative responsibility for appeal tribunals was placed on the boards district offices. The boards instructions emphasised the district officers role: He will have to keep in close touch with the working of the Tribunals in his District. He may attend sittings as an observer with the leave of the Chairman. On occasion, he may have to sit on a Tribunal itself as a representative of the Board, but this is only contemplated where suitable non-official representation of the Board is unobtainable or there are very special reasons for ensuring that the Boards point of view in a particular case shall be put and maintained with the greatest possible official authority available.
1

The task of monitoring the tribunals performance fell mainly on an assistant district officer (ADO) acting as clerk of the tribunal. The rules required him or his deputy to be present at all sittings of the chairman or the tribunal for the consideration of any matter under the Act. Thus he (or she - in 1935, six out of 78 ADOs were women) was to be present not only during the appeal hearing but when the chairman sat to decide whether to grant leave to appeal and after the hearing while the tribunal deliberated on its findings. The appointment of ADOs as clerks enabled them to form a close relationship with the tribunal members,
2

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particularly the chairman, to expound the boards policy and to report any problems to the district officer and, through him, to headquarters. The ADO was instructed to attend as many tribunal sittings as possible. Where this was not possible, an area officer attached to the district office was to deputise for him.
3

The boards instructions on the role of the clerk are revealing. When leave to appeal was being considered, he was to ensure that the chairman fully understood the basis of the disputed decision and that uniform principles were applied by different chairmen, though it was not his function to argue for the determination or do anything to hinder reasonable appeals. On receiving the appeal papers from the area office for distribution to the tribunal, if in doubt about the way in which the case had been prepared he was to consult the district officer, who might decide to amend the observations of the Boards officer or arrange for witnesses to be called or for an officer from the district office to present the case at the hearing. Before the hearing, the clerk was, if possible, to discuss the case with the chairman and identify the issues on which the tribunal should concentrate. During the hearing, he must endeavour to preserve an entirely impartial attitude, but this did not mean that his role was to be entirely passive: ... he must hold himself available for consultation by the Chairman and members of the Tribunal as to the proper application of the regulations to particular circumstances; as a repository of information about the practice of every Tribunal in his district, he must be ready to advise ... about the manner in which other Tribunals have approached [similar] problems ...; in cases where he is satisfied that there is a risk lest the Tribunal should be exceeding the limits of its lawful jurisdiction, he should intimate his doubts to the Chairman (this, it will be appreciated, is a function to be carried out with great tact and discretion). Finally, the clerk was to act as the eyes and ears of the board, keeping statistical records and reporting on matters of concern relating to the functioning of the tribunals.
4

What appellants thought about the clerks role is not known. Probably most had no idea who he was or by whom he was employed and, if they had known, would have been neither surprised nor shocked. One body which did know was the Association of Municipal Corporations whose members, as public assistance authorities, had a direct interest in the outcome of scope appeals. Copies of the boards guidance on scope were supplied to the chairmen, and clerks were urged to familiarise themselves with it so that, both before and during sittings, they could help chairmen to understand the boards views. The AMC objected to the boards officers, in the guise of tribunal clerks, performing these functions. At a meeting with local authority representatives in October 1937, Eady assured them that the clerks were being reminded of the importance of making it clear that they appeared at Tribunals in their capacity of officer of the Tribunal and not as officers of the Board. The
5 6

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reminder was not wholly effective. A year later the Durham district officer was criticised for allowing the clerk in some cases to act as the officer of the board presenting the case at the appeal hearing.
7

The practice of employing as tribunal clerks officers of the body responsible for the decisions under appeal was to continue under the board and its successors until social security tribunals were reorganised with an independent president in 1984. By 1938, however, it was clear that the tribunals could generally be trusted to function without direct supervision by a senior officer, and clerks were encouraged to delegate the task of attending tribunal hearings to an official of area officer grade. In one or two districts clerical officers were used. This downgrading of the status of the clerk was accompanied by greater emphasis on impartiality. A district officers conference in March 1939 was told that the clerk was not expected to pronounce on the Boards policy or to tender advice as to the proper treatment of cases unless his opinion was invited.
8 9

Preventing appeals The tribunal rules required appeals to be lodged within fourteen days of the issue of a determination (for scope appeals, the tribunal chairman could extend the time limit for a special reason). In a memorandum accompanying the draft rules, the board was told that, while fourteen days might seem unduly long, it would enable applicants to seek an explanation before appealing. Thus, the fourteen day limit was intended not only to prevent late appeals but to discourage hasty recourse to the tribunals in cases which could be disposed of by discussion at the area office. There seem to have been few complaints that the time limit was too short. In response to a later suggestion by the ministry to give chairmen in all cases the power to extend the period, the head of the division concerned, Ure, wrote:
10 11

Determinations are intended to meet current needs and if an applicant has not discovered within 14 days of the issue of the determination that the amount given is inadequate his case cannot be very strong.
12

An early draft of the rules had provided for notice of appeal to be sent by the applicant to the chairman or clerk of the tribunal, who would forward a copy to the officer concerned. But this would have meant that the appeal was formally lodged before being seen by the area office. The final version provided that notice was to be lodged at the office designated by the board, thus giving the area office an opportunity of procuring its withdrawal, whether by explaining the decision or substituting a new one.
13 14

A note issued to applicants considering an appeal invited them to request an interview if they did not understand the grounds of the decision or thought there were facts which might not have been known to the officer. Officers were told that, if an appeal was received without
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such a request, it was still open to them to arrange an interview, during which the restrictions on the chairmans power to grant leave to appeal would be explained and, if there were grounds for believing that the determination was wrong or further investigation seemed desirable, the applicant would be told that the case would be looked into again. This would generally lead to the applicant withdrawing the appeal or at least agreeing that action on it should be deferred. The instructions stressed, however, that nothing should be said which could reasonably be interpreted as pressure to withdraw the appeal.
15

This procedure was put into operation from the start. At a conference of district and regional officers at the beginning of February 1935, the district officer for Sheffield reported that in the previous week 1,100 disgruntled clients had been interviewed and only 200 had decided to proceed with an appeal, the rest having gone away satisfied that we had done all we could as Officers, but ... anything but satisfied with the allowances they got. Reports from other parts of the country presented a similar picture of large numbers of applicants being interviewed and concluding that there was no point in appealing.
16

In the inquest which followed the standstill, Ministry of Labour officials were highly critical of the practice of interviewing dissatisfied applicants, particularly after an appeal had been lodged. One of them, R M Gould, wrote: It is questionable whether, as a matter of policy, the Boards officers should be enjoined to have a second shot at a case if there is any question of appeal. When appeal machinery is provided, it is more usually held that once an appeal is lodged, any attempt to intervene is regarded as an attempt to interfere with the appeal machinery. It is apparently contemplated quite freely that the Boards officer, on learning of an appeal, shall consider whether he should give a new determination, and that the giving of the new determination will render the appeal unnecessary. It may or it may not, but there is no guarantee that even under the new determination, the man would get as much as the Tribunal would have determined if the case had gone before them. After quoting cases in which one applicant stated that he had been asked whether he would be satisfied with a grant of 2s.6d. for boots and clothing for the children, another had been told there was no ground on which he could appeal, and a third objected to the tribunal clerks assumption that, having received a new determination, he no longer wished to appeal, Gould concluded: I should think there is little doubt that this practice of interviewing all applicants who wish to appeal, has the effect of stifling appeals; but the withdrawal of the appeal does not necessarily signify that the applicant is satisfied that he has no longer any ground for complaint.
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Despite the ministrys doubts, the practice continued. In March 1936, embarrassment was caused by a case taken up by William Gallacher, MP. Four applicants in similar circumstances had lodged appeals, which three later withdrew after interviews. The fourth persisted and won his appeal. Although the board denied that applicants were being cajoled or coerced into not appealing, new instructions were drafted making it clear that, once an appeal had been received, unless an interview was requested at the same time and resulted in a decision not to pursue the appeal, it was to be regarded as formally lodged; but it would still be open to the boards officer to invite the appellant for an interview, which might lead to the appeal being withdrawn. Phillips complained to Eady that the draft instruction did not go far enough:
18

... we do not ourselves like the suggestion of an interview which accompanies the blank appeal form, but I regard it as a matter which the Minister could if necessary defend as carrying out the deliberate policy of the Board in the way of helping the applicant to understand the circumstances fully before he appeals. The rest of the procedure, however, under which your officer may seek an interview after receiving an appeal, is open to much more serious objection, and I feel sure, would not be endorsed by the Minister. ... You had better cut it out altogether and lay it down that once an appeal has been sent or handed in, the matter is out of the hands of your officers except when the applicant on his own initiative wishes to have an interview with regard to it. After consulting Rushcliffe, Eady replied stiffly: I suggest that your view must be based on a misunderstanding of the nature of appeals and the place of the appeal machinery, and also of the considered policy of the Board. The appeal form often disclosed new facts and it would be foolish to prevent the officer from revising his determination merely because an appeal form had been lodged; indeed, it was his duty to do so. Phillips agreed not to press his objection if the Ministry could be assured that every appeal made would, in fact, go to the Chairman of the Tribunal ... and would never be withdrawn without the Chairmans consent (the rule applied under the unemployment insurance legislation) and that every application for withdrawal was entirely spontaneous. Eady replied: ... you may of course proceed on the assumption that if an appellant withdraws his appeal it is because he wishes to do so, and not because he has been improperly cajoled or coerced by an officer of the Board. This being so, it is not easy to understand why his action should be subject to the consent of the Chairman of the Appeal Tribunal, who will not have had the appeal, at that stage, brought within his jurisdiction at all.
19

The new instructions discouraged officers from inviting discussion of appeals against cuts in allowances resulting from the liquidation of the standstill but, with that exception, the practice of interviewing both

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prospective appellants and those whose appeals gave grounds for a review of the disputed decision continued. Use of the appeal machinery The statistics in the boards annual reports from 1936 onwards show only the number of appeals which were either heard by a tribunal (in the case of scope appeals, by the chairman alone) or not heard because leave to appeal was refused. Those withdrawn before submission to the chairman are not included. The 1935 report shows, in addition, the number of appeals against cuts in allowances which lapsed when the cuts were cancelled by the standstill. The annual totals for the four prewar years are shown in table 4. Despite the furore over the initial cuts, the number of appeals against them was unexpectedly small. This, the board claimed, was due both to the general recognition by applicants that determinations had been made in accordance with the law and to the fact that, in areas such as South Wales where large numbers of appeals might have been expected, there was an undoubted determination to organise direct action to exert pressure by mass demonstrations rather than to allow the machinery of appeal provided under the Act to be given a fair trial.
20

After the standstill, the numbers naturally fell still further. Even excluding appeals withdrawn or lapsed as a result of the standstill, more appeals Table 4. Numbers of appeals lodged and number for which leave to appeal was granted or refused in each year, 1935-1938 1935 1936 1937
25,974 81 16,700 42,755

1938
42,020 427 10,927 53,374

Number of appeals lodged: Against determinations (other than section 40)17,097* 14,485 Against section 40 (penal) determinations 24 Against decisions on scope 149 522 17,246 15,031 Leave to appeal against determinations (other than section 40) Standstill determinations (no power to refuse leave to appeal) 9,805 9,954 Other determinations: Leave granted 3,938 3,985 Leave not granted 3,354 545 Appeal withdrawn during hearing or adjourned 1 17,097 14,485

24,558 1,408 8 25,974

40,329 1,685 6 42,020

* After deducting 2,654 appeals withdrawn or allowed to lapse owing to the standstill. Sources: Cmd. 5177, 1936, p. 302; Cmd. 5526, 1937, p. 43; Cmd. 5752, 1938, p. 194; Cmd. 6021, 1939, p. 42.

against determinations were lodged in the first four months of 1935 than in the remaining eight. The number rose in each of the next three
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years despite the fall in the number of applicants. The annual report for 1937 ascribed the increase mainly to greater appreciation of the opportunity for review by an impartial tribunal, but in part also to cuts made in the course of liquidating the standstill. The 1938 report noted that, as well as a steady rise in the number of appeals, there had been two sudden surges, the first resulting from the final stage of liquidation of the standstill in March-April, followed by a much bigger one in MayJune following the withdrawal of winter allowances. The rise in section 40 appeals in that year (427 in all, including 80 appeals against the requirement to enter a workhouse) was ascribed to the boards increased use of its penal powers.
21 22

Appeals against decisions that applicants were outside the boards scope were at first few in number, since the vast majority of applicants in the boards first year had been taken over from the transitional payments scheme and their eligibility was not in doubt. On and after the second appointed day, the question arose much more frequently. The total number of appeals was never large in relation to the number of decisions made by the boards officers. There were some 1.4 million applications for allowances during 1938 and two and a half million determinations were issued following changes of circumstances, making a total of nearly four million decisions. The 53,000 appeals lodged represented little more than 1.3 per cent of the total.
23

Most appeals were unsuccessful. The proportion of successful appeals against determinations (other than section 40 appeals) was 30.2 per cent in 1935, 24.7 per cent in 1936, 19.7 per cent in 1937 and 20.3 per cent in 1938. In a few cases, the appeal was not only unsuccessful but resulted in a reduction in the weekly allowance (there were 50 such cases in 1935, rising to 90 in 1938). For the small number of appeals against section 40 determinations (ranging from payment in kind to admission to a workhouse) the success rate was still lower: 3 out of 24 in 1936, 10 out of 81 in 1937 and 26 out of 427 in 1938. Scope appeals, usually turning on the applicants normal occupation, had a success rate of 22-23 per cent.
24

It is impossible to say what proportion of appeals would have succeeded if the tribunals had been more independent. Given the extent of their discretionary powers, a success rate considerably higher than one in four might have resulted; and this, in turn, might have stimulated a larger number of appeals. Lach, writing after the war and surveying the whole period up to 1948, concluded from the figures that it was difficult to believe that the Boards clients had much confidence in the appeal arrangements.
25

Leave to appeal Under section 39(5) of the 1934 Act a tribunal chairman could not give leave to appeal against a determination unless there was reason to doubt whether the regulations had been complied with or other special circumstances. During the standstill period, appeals against ATP
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assessments (the estimated amounts which would have been paid under the transitional payments scheme) were excluded from this restriction. Other cases in which leave was not required included scope appeals, appeals against the penal provisions of section 40, and cases referred under section 41 or 48(2), where the tribunal was asked to rule an applicant out of scope for failing to maintain himself or his family or there was a dispute as to the amount of an overpayment (but no cases seem to have reached the tribunals under either of the two last-mentioned sections, at least up to the end of 1938). Notes for the ministers use during the debates on the 1934 bill offered a robust defence of the requirement of leave to appeal: The power vested in the Chairmen of Appeal Tribunals ... to grant or withhold leave to appeal will serve to prevent merely frivolous appeals, and so to protect the scheme against attempts at organised sabotage for which the appeal machinery might otherwise afford opportunities.
26

The board was determined that the power to refuse leave should be fully exercised. Tribunal clerks were instructed to submit reports on chairmen who consistently granted leave in a high proportion of cases. So that chairmen would not feel that the only way they could earn a proper fee was by allowing appeals to be heard, they were paid the same amount per sitting (1 10s. or 2 10s., depending on the length of the sitting) when considering leave to appeal as when presiding over the tribunal. In the event, however, it was the small number of appeals allowed to go forward that caused concern. In January and February 1935, leave was refused in two cases out of three, though with considerable local variations. Glasgow I district reported 70 appeals in the first week, a third of which went forward to the tribunal, while in Glasgow II leave had been granted in only 16 out of 227 cases. In the Sheffield district only seven out of 200 appellants had been granted leave, though the district officer reported that the chairmen were definitely looking for cases where they can send them.
27 28 29 30

In retrospect the figures are hardly surprising. The main reason for appeals in January 1935 was that applicants allowances were to be severely cut. The cuts were not usually due to incorrect application of the regulations; and if there were special circumstances they would not necessarily be revealed by the papers submitted to the chairman. The chairman of the Canning Town (east London) tribunal, Sir Edmund Phipps, a retired civil servant, told Eady that, up to the announcement of the standstill on February 5, he had considered 75 applications and granted leave in only six cases, five of which involved the question whether the applicant should be treated as a member of the household or as a lodger. The rest appeared to be protests against the principles of the regulations or the Act. The officers seemed to have made full use of their discretion, making allowance for the cost of travelling, special clothing or extra nourishment, and Phipps had been unable to find special circumstances. A large proportion of cases, he wrote, turned on

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the inclusion of the earnings of members of the family which had not been included previously.
31

From February 1935 to November 1936, chairmen could no longer refuse leave where an allowance under the standstill was in question. In other cases where the restrictions on granting leave still applied, it was made clear to them that a high proportion of refusals was undesirable, and the proportion of cases in which leave was granted rose rapidly. In the eight months from May to December 1935, excluding standstill appeals, leave was granted in 84 per cent of cases. The proportion rose to 88 per cent in 1936, 95 per cent in 1937 and 96 per cent in 1938. Fears of frivolous appeals or organised sabotage had proved groundless and application for leave to appeal became little more than a tiresome formality.
32

The appeal hearing In ordinary appeals against determinations, the tribunal was required to hold an oral hearing, at which both the appellant and an officer of the board had a right to be heard (a chairman sitting alone in a scope appeal was not obliged to hold an oral hearing unless asked to do so by one of the parties). No attempt was made to meet on neutral territory. Hearings normally took place at the boards area office or, where there was no area office, at the local office of the Ministry of Labour or other official premises. District officers were told that, if a separate tribunal room could not be provided at the area office, the tribunal could meet in a room normally used for other purposes.
33

The tribunal rules required oral hearings to be held as soon as may be. The appeal documents, including the observations of the officer concerned, were prepared at the area office and forwarded to the district office so that the clerk could submit them to the chairman for a decision on leave to appeal and, if leave was granted, distribute copies with the notification of the time and place of hearing. At first the only indication of timing given in the instructions was that the applicant was to have two clear days notice of the hearing unless he agreed to dispense with it. In July 1936, however, a circular was issued from the boards headquarters noting that cases were occurring of delays of two weeks or more between receipt of an appeal at the district office and the tribunal hearing. Clerks were told to arrange for the chairman to consider leave to appeal within three days of receipt of the papers from the area office, even if this involved a special sitting to deal with a single case. The appellant was to be informed of the chairmans decision at once, notification of the date of hearing being given at the same time or soon after: only exceptionally should more than a week elapse between leave to appeal and the hearing. District officers were asked to report any delays caused by tribunal chairmen and members not being available at short notice, so that if necessary more reserves could be appointed: the overriding consideration, the circular insisted, is expedition in dealing with appeals. The timetable envisaged by this circular may seem barely credible to those familiar with the delays
34 35

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involved in social security appeals seventy-five years later, but documents that have survived relating to two individual appeals show that the targets were achievable. In one case, the appeal was lodged on 28 June 1938, leave was granted on 6 July, the appeal was heard on 14 July and the tribunals decision (without any findings of fact or reasons for the decision) was sent to the parties on the same day. The second appeal was lodged on 17 August 1938, leave was granted on 18 August, the appeal was heard on 23 August and, again, the decision was despatched on the same day. Some chairmen adopted the practice of announcing the decision orally at the end of the tribunals deliberations, and this was commended in a circular to district offices in November 1937:
36

Some officers appear to have felt apprehension that the recall of appellants to receive an unfavourable decision may lead to unnecessary arguments and to attempts to re-open the case ... Chairmen may like to know that the practice of announcing decisions orally has worked quite smoothly in those Areas where it has been followed.
37

A hearing could proceed in the absence of one member of the tribunal provided that the chairman was present and that both the appellant and the boards officer agreed. The appellant could be accompanied by a friend for the purpose of assisting ... in the elucidation of the facts. Witnesses and other persons could be admitted at the chairmans discretion. Members of the public and the press could, therefore, be allowed to attend but in practice were normally excluded. There was no provision for anyone to attend as a representative of the appellant and the rules specifically barred professional lawyers from appearing in the guise of the applicants friend.
38

Apart from these rules, the procedure at a hearing was left for the chairman to decide. A circular issued by the board to area offices stressed that, while in cases arising under sections 40 and 41 the tribunals would be acting to some extent in a judicial capacity, in ordinary appeals they would not be sitting in judgment on the officers determination or deciding an issue between the area officer and the applicant but acting in an administrative capacity, exercising the same discretion as the boards officers and expressing a second (and final) opinion on the case. In keeping with this view, the boards first annual report stressed the informality of tribunal procedure, the aim being to allow chairmen to conduct proceedings as easy, friendly examinations of facts, bound as little as possible by formal rules.
39 40

The role of the officer presenting the boards case at the hearing was ambiguous. The boards instructions defined his function as merely to elucidate before the Tribunal the facts of the case presented in the submission papers. He was reminded that he had no right to crossexamine the appellant; nor should he ask leading questions or attempt to confuse or trip up the appellant or his friend. If he thought it important to contest any statement but was not in a position to
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disprove it, he was to request an adjournment so that the matter could be investigated. The implication was that he was to act as amicus curiae in proceedings which were essentially inquisitorial rather than adversarial. But that was only half the story. The boards officer was expected to present and defend the boards view of the case as against that of the appellant, and the importance attached to this function was shown by the fact that it was normally to be carried out by the area officer. The instructions allowed him to delegate it to an assistance officer in appropriate cases but also envisaged that, in cases of special importance, the boards case would be presented by an officer from the district office.
41

The boards officer normally left the room with the appellant at the end of the hearing, but not always. At one of the conferences held in March 1935, a tribunal chairman asked that the officers be instructed to retire during the tribunals deliberations, to avoid giving applicants the impression that they were allowed to stay behind and influence the tribunal. Shortly after, the matter was raised in a parliamentary question and Stanley replied that, while it was a matter for the chairmans discretion, the board would not expect its officer to be asked to be present during any proceedings from which the applicant was excluded. District officers were asked to bring this to the notice of tribunal chairmen, but local authority representatives complained in February 1939 that some tribunals were still allowing the boards officer to remain during their deliberations.
42 43 44 45

Representation and the appellants friend The ban on representation of appellants was yet another way of discouraging the tribunals from adopting a legalistic approach or questioning the basic principles of the boards policies. It reflected the official view that, unlike the courts of referees, before which representation (other than by lawyers) was allowed, the tribunals task was to take a second look at the facts and make appropriate use of their discretionary powers. In practice, however, the tribunals often had to resolve questions of law as well as of fact. The extent to which appellants found themselves at a disadvantage was later well summarised by Lach: At the hearing the Board can be represented by the officer who gave the decision or by any other officer of the Board ... The clerk, who as a senior officer has presumably approved the observations made by the officer concerned on the appeal, is also present; and it may also be presumed that he naturally enough wishes to see the tribunal keep to the lines of the Boards policy. The appellant is probably making his first appearance before the tribunal, though no doubt some applicants do lodge more than one appeal; however, even an habitual appellant is unlikely to have had so extensive an experience as the officers of the Board, including in that phrase, the clerk. Certainly it would be most unusual to find an appellant with a detailed knowledge of the Act and
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Regulations. To assist him the appellant could ... be accompanied by a friend and the friend may have been an official of a trade union ...; but again it must be recognised that few such officials would possess the detailed knowledge and experience of the officers of the Board. Moreover, it does not seem that more than one in six appellants was in fact accompanied by a friend.
46

The proportion of appellants attending the hearing and accompanied by a friend is known only for the three years 1935, 1937 and 1938, when it was about 15.2, 17.3 and 15.2 per cent respectively (the figures differ slightly from those given by Lach but his statement that not more than one in six appellants were accompanied seems about right). The fact that, even if the friend was a trade union official or similarly qualified, he was not allowed to act as an advocate made the imbalance between the parties still more obvious.
47

In practice it was difficult to draw a line between the permitted function of elucidating facts and the forbidden function of representing the appellant, or to prevent friends from crossing that line. In March 1935 the chairman of the Woolwich (south-east London) tribunal sought guidance from the district office on the meaning of friend, after a Labour Party organiser had appeared with a number of appellants, of some of whom he had no previous knowledge. The chairman was said by the tribunal clerk to have allowed the local NUWM organiser on a previous occasion to take charge of the proceedings and act as representative rather than friend. His inquiry resulted in a circular to tribunal clerks, explaining that a friend might properly be allowed to put questions to the appellant or other witnesses but had no right to address the Chairman or Tribunal as an advocate in support of any particular view of what the decision or determination should be. Chairmen were advised to allow some latitude to the friend particularly in cases where the appellant is for some reason clearly not able himself to put the facts of his case properly before the Chairman or the Tribunal, though the amount of latitude to be allowed was a matter of some delicacy.
48 49

Inevitably the friends of whose activities a record has survived are those who were considered troublesome. In October 1935, the clerk of the Walsall tribunal reported that Councillor G W Newman, alleged to be a communist (according to the area officer, local colliery companies refused to employ him because of his political activities), had appeared as a friend and proceeded to conduct the case without reference to the appellant. After the clerk had suggested that the question of advocacy arose, the chairman had asked Newman to withdraw, but he had threatened to bring some 200 men to the Area Office - obviously with the idea of making a demonstration. A prominent NUWM member, himself one of the boards applicants, was said to have appeared before the Potteries tribunal as a friend at least six times between March and October 1935. His case was being closely watched with a view to cutting off his allowance on the grounds that, because of his NUWM activities, he was not available for work. The action taken in 1936 to curb the activities of an unemployed man who acted as applicants
50

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friend in the Caernarvon area were described in chapter 26. In 1939, the regional officer for Wales, Addyman, claimed - no doubt with some exaggeration - that in the South Wales valleys the vast majority of appeals were presented by a friend who was usually a paid Organiser and that the workpeoples representative on the tribunal was sometimes primed by him prior to the hearing.
51

An awkward consequence of the rule allowing an appellant to be accompanied by a friend was that, strictly speaking, the friend could attend the hearing only if the appellant was also present. Most appellants (10,794 out of 12,928 in 1935) did attend the hearing of their appeals, but some did not. The point was raised early on when a trade union official was allowed to appear before the Birmingham tribunal, but only for the purpose of giving evidence, in a case where the appellant could not be present because he had started work. The tribunal chairman, Sir Percival Bower, described the ban on representation in these circumstances as absolutely stupid, but the suggestion that the rule should be amended was rejected on the grounds that anyone could attend as a witness.
52 53

There was no serious pressure for legal representation of appellants during the 1930s, but the question was raised by the Law Society in a letter to the Minister of Pensions in September 1940 (it is an indication of the extent of the Law Societys knowledge of the boards affairs that its approach was made to the wrong minister). By then, most of the Assistance Boards clients were supplementary pensioners who, unlike unemployed applicants, could be represented at tribunal hearings (though not by a lawyer) if they were unable to attend in person. The Law Society argued that it was not in the public interest that people should be deprived of the normal right of legal representation, which would ensure that the case would be properly presented without irrelevancies and consequent waste of time. The letter was passed to the board, which sent a courteous but discouraging reply.
54

Influencing the tribunals The most direct way in which the board could seek to influence the tribunals without any suggestion of impropriety was through the tribunal members appointed specifically to represent it. District officers were told to keep in touch with the boards representatives so as to keep them interested in and informed of the Boards point of view ... and to give them a real consciousness of identification with it. They were not expected to brief them on individual cases but were encouraged to discuss points which could affect a number of cases. In addition it was decided early in January 1935 that the boards representatives should receive an edited version of the initial instructions on the operation of the scheme, including the use of discretion (the decision to publish this version as a White Paper had not yet been taken). Once in the hands of the boards representatives, however, it was sure to be produced at appeal hearings. Chairmen were therefore told that copies were available, and they were to be supplied,
55

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on request, for the use of the third member of the tribunal (the workpeoples representative). The intention was to supply only the boards initial instructions but in May 1935, as a result of requests by chairmen and despite fears that it might be regarded as an improper attempt to influence the tribunals, it was decided that a full set of instructions should be made available at each sitting, whether of the chairman alone or of the full tribunal.
56 57

The boards ostensible motive in convening regional conferences of tribunal chairmen, chaired by members of the board, on 19 March 1935, was to seek their help in reviewing the regulations following the standstill. The invitation listed four topics for discussion: the scale rates, the rent rule, the treatment of earnings and the exercise of discretion. An outline of the opening statement to be made by each board member introduced a fifth topic which was plainly relevant to chairmens current performance of their functions: how ... greater accessibility to the full Appeal Tribunal might be secured either by administrative method or through the Regulations. In Reynards opening speech to the Scottish chairmen, he was reported to have referred to criticism that Chairmen let too few appeals go to the Tribunals and suggested that for some time at least Chairmen should let more cases go forward to their Tribunals; and towards the end of the conference the chairmen stated they had obtained at the meeting a new conception of special circumstances and that they had not really appreciated the extent to which they had power to exercise discretion.
58 59 60

The main value of the conferences was probably the opportunity they provided for the chairmen to learn from each others experiences. The propriety of the board acting as convenor may have been questionable but, in the absence of any independent administrative structure, there was nobody else to perform this role. The experiment, however, was not repeated. The boards main channels of communication with chairmen were the tribunal clerks, but the files record a few instances where other officials corresponded with chairmen whose views on particular points of law differed from the boards. While some of the chairmen felt obliged to defer to the boards legal advisers, others took a more independent line, one of them provocatively suggesting that the only way of getting an authoritative ruling would be for the board to seek an interdict (the Scottish equivalent of an injunction) against the tribunal.
61

Given that tribunal decisions did not constitute legally binding precedents, the board was not too concerned about isolated perverse decisions. On one question, however, a widespread revolt by the tribunals was a significant factor in bringing about a minor change of policy. The issue was whether an allowance could be awarded to a man who, though unemployed on the date of application, was in full-time work by the time a determination was made by the boards officer. The boards legal advice was that no allowance could be paid, even if the loss was caused by administrative delays. The question was raised with the boards headquarters in January 1936 by the lawyer chairman of the Acton tribunal in west London. With his agreement, a member of the boards legal division attended a sitting of the tribunal and apparently
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convinced the members that the boards position was legally correct. A few months later, the Luton tribunal was so concerned about the hardship caused in such cases that they passed a resolution on the subject. By the end of the year, there were reports that the chairmen of five tribunals had refused to accept the boards interpretation and a number of others had made decisions inconsistent with it. Some of the dissidents were described as lawyers of standing or men whose opinions on the equity of the position deserve respect. About the same time, a letter from the Ministry of Labour expressed the ministers personal view that an amendment of the law might be necessary. The boards officials were strongly opposed to a change which, Strohmenger wrote, would import into our Act something entirely foreign to its general lay out: the payment of allowances to people not currently either unemployed or in need. The problem was solved by obtaining Treasury consent to ex gratia payments where unusual delay had occurred and the applicant was in no way to blame but had suffered hardship.
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The tribunals in wartime Discussions between UAB and Ministry of Labour officials took place in the summer of 1938 regarding emergency measures in the event of war. Two plans were drawn up by the ministry: the BB scheme to operate throughout the war and the CC scheme to be introduced at times of extreme crisis. Under the CC scheme, the tribunals could be abolished altogether in a particular area. The BB scheme would have given tribunal chairmen discretion to decide appeals without an oral hearing or to sit alone without the other two tribunal members. Stuart King feared that the absence of a workers representative might be resented, but Ure argued that, in England at least, the chairmen had so well established themselves as the head and shoulders of the Tribunal and earned so good a reputation for impartiality and sympathy that there would be no serious loss of faith in the appeals machinery. The regional officers for Scotland and Wales, after consulting their district officers, strongly supported Kings view. In Wales, Addyman warned, while applicants themselves might not object, there would be vigorous protests from politicians and outside organisations: I am quite sure that the Chairmen in South Wales have not acquired such a reputation for impartiality as to render their sitting alone as acceptable to the various Organisations with which we have to deal. Despite these doubts, the board accepted the proposals.
64

Meanwhile, a group of officials, mainly from the London district offices, had been convened to consider possible wartime administrative changes. At their first meeting it was suggested that, to reduce the number of appeal hearings, the practice of systematically interviewing appellants should be revived. Although this proposal was not adopted, it was decided on the outbreak of war in September 1939 that applicants should be encouraged to discuss their cases before lodging an appeal. For this purpose, tribunal chairmen were given power to
65

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extend the time limit for appealing if the applicant had notified his dissatisfaction within fourteen days.
66

A regulation made on the outbreak of war, under the Unemployment Assistance (Emergency Powers) Act 1939, implemented the proposal to allow a chairman to sit alone or with only one other tribunal member. This provoked a strong reaction from the TUC, and the rules were again amended in November 1939, allowing the chairman to act alone only with the consent of both the appellant and the boards officer. In the event, therefore, the appeals machinery was allowed to operate normally under war conditions, being extended to cover the PRD scheme and supplementary pensions and, in due course, being taken over in the post-war national assistance scheme.
67 68

Towards judicial independence The measures adopted to minimise, from the start, the risk of serious divergence between the decisions of the appeal tribunals and the policies of the board were summarised at the beginning of this chapter. We have noted, too, the readiness of the boards officers to intervene when a particular tribunal seemed inclined to stray from the prescribed path. All these factors may help to explain the relatively low success rate for appeals (about one in five for appeals heard by the tribunals in 1937 and 1938) and thus support Lachs view that applicants could not have had much confidence in the appeal arrangements. Yet it would be wrong to dismiss the tribunals as mere window-dressing. The number of applicants benefiting from their decisions was not negligible: over 10,000 in 1938, excluding those whose appeals resulted in a revised decision by the boards officer and therefore did not reach a tribunal hearing. While the legislation governing the appointment and staffing of the tribunals remained unaltered, as it became apparent that there was no real danger of the boards authority being undermined by their decisions or of the number of appeals reaching unmanageable levels, some of the initial safeguards were relaxed. Thus, after the failure of the appeal machinery to provide an effective safety valve for the anger provoked by the cuts of January-February 1935, the requirement of leave to appeal was virtually abandoned, while the practice of encouraging appellants to seek an interview with the boards officer before any action was taken on their appeals was at least modified to give an appearance of respect for the judicial process. Although the ban on representation at tribunal hearings remained and only a small minority of appellants were accompanied by a friend, it seems clear that a good deal of latitude was allowed so long as the friend/advocate did not attempt to disrupt the proceedings. The absence of any further right of appeal to a higher authority made it easier for the board to adopt a relaxed attitude to the tribunals. Generous decisions in individual cases, even if at variance with the boards guidance to its officers, did not necessitate any change of policy. It was only in rare cases, where a tribunal chairman consistently rejected the boards interpretation of the law on a particular point, that
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steps were taken to resolve the disagreement in the boards favour. As time passed, less emphasis was placed on the policing role of the tribunal clerk and officers of a lower grade were allowed to perform this function. The appeal tribunals of the 1930s cannot fairly be judged by the standards set by the Franks Committee in 1957 and still less by those of the 1983 legislation which was to create a system of social security tribunals almost wholly independent of the benefit administration. Unemployment assistance tribunals were designed not as independent judicial bodies but as part of the administrative machinery of the Unemployment Assistance Board, taking a second look at the decisions of the boards officers and giving appellants an opportunity of presenting their case orally, in a less stressful setting than the area office normally provided. Unlike the boards officers, however, tribunal members were not salaried civil servants owing unquestioning loyalty to the government of the day. About half the tribunal chairmen were lawyers, the other half mainly people of professional standing who would not readily have taken orders from the boards district office staff. The workpeoples representatives were not always on the side of the appellant, especially if the latter was suspected of being workshy, but they could be expected to show some sympathy for those regarded as involuntarily unemployed. Even the tribunal members appointed as the boards representatives were not in the boards employment. The tribunals inevitably developed a sense of corporate identity which distanced them from the board and its officials, and the rapid growth in the number of appeals suggests that confidence in the appeals machinery was steadily increasing as a result. The tribunals, in short, were perceived as exercising a measure of independence in practice, however limited their constitutional independence might be. Without them, not only would the boards applicants have been in a much weaker position but the boards officers would have had to bear a much heavier burden of responsibility for ensuring that cases were dealt with fairly and impartially.

Reinventing the dole: a history of the Unemployment Assistance Board 1934-1940 by Tony Lynes is licensed under the Creative Commons Attribution 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA.

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