Trends in the Tribunals World
In his two part blog Professor Robert Thomas provides an overview of tribunals in the United Kingdom before considering potential future developments for these core institutions of administrative justice. These blog contributions are drawn from a paper delivered at a conference organised by Bangor Law School on 10th September 2015 entitled “Administrative Justice in Wales and Comparative Perspectives”.
In the first part an overview of the current system and recent developments is presented before in the second statistics pertaining to the caseload of tribunals is are used to highlight future challenges for these bodies.
Tribunals: An Overview
Tribunals need few introductions: they are independent judicial bodies that (mostly) determine appeals against initial administrative decisions. But, some aspects of tribunals system do deserve highlighting. First, the diversity of the tribunal “system” is well-known, but it is important to underscore this point. There is a world of difference between, on the one hand, the two principal large systems of social security and immigration tribunals and other tribunals were much lower caseloads. Social security and immigration have an established structure with permanent hearing centres and judges. That compares with, for instance, school admission appeals that are heard in school premises and not by legally qualified judges but by appeal panel members.
There is also a world of difference between social security appeals and immigration appeals or parking appeals. Social security appeals are fairly inquisitorial and the whole culture is toward assisting an individual whereas hearings in immigration appeals are more adversarial. By contrast, the Traffic Penalty Tribunal determines appeals through telephone hearings and online.
There some 4,055 tribunal judges in the First-Tier and Upper Tribunal structure (excluding employment tribunals) of which 3,729 are fee paid and 326 are permanent salaried judges. But there are various tribunals stand outside this formal structure. It is not currently known how many tribunal judges there are in total: there is a lack of system-wide data. But, given this diversity of tribunals, it is often difficult to make valid generalisations about tribunals and how they operate.
There are two other points to be made here. First, while the purpose of tribunals is clear – to adjudicate upon disputes individuals have with administrative bodies – the wider concept of administrative justice, at least as applied to adjudication, is less clear-cut and more ambiguous. We know that tribunals should be fair, independent, and impartial. We also know that they should make accurate, consistent, and good quality decisions. But, they are also under time and resource pressures to decide a high number of appeals. But, they must also be cost-effective, efficient, and produce timely decisions. Tribunals then are often under a variety of different pressures and clearly tensions arise. In some contexts, such as immigration, tribunals work on the basis of a 1:1 ratio – that is, one day hearing appeals, to one day writing up determinations. The number of appeals heard in a day will depend upon the type of appeal, but it is usual for a judge to hear three or so appeals in a day. Trade-offs are inevitable.
A second point is that tribunals are not usually the starting-point for anyone’s encounter with the decision-making process. Tribunals cannot be considered in isolation from the administrative machinery to which they are attached. Instead, tribunals are best understood as comprising one part of the wider decision-making process by which government implements its policy goals. The distinctive function of tribunals is that they provide an institutional process – adjudication – by which individuals can participate in process by which policy is to be implemented. Look at it this way: the task of the Department for Work and Pensions – which comprises over 700 Jobcentres staffed with around 80,000 decision-makers – is to administer complex social security rules and policies. Likewise, tribunals also administer the same rules to achieve the same end – to implement the underlying policy goal – but they do so an adjudicative process of hearings and paper decisions.
Tribunals are then attached to specific administrative systems, some of which are relatively small, but some others operate on a mass scale and affect millions of people. However, as we know, there are often concerns about such administrative systems: poor communications between departments and individuals; delays in decision-making; poor quality decisions – in addition to the never-ending policy and legal changes imposed. To give one example, consider the implementation of Personal Independence Payments by the DWP. The Commons Public Accounts Committee found that many disabled people have experienced long and unacceptable delays in having their claims assessed; which has been marked by long and unacceptable delays; the process was inaccessible and cumbersome; and the department significantly underestimated the number of face-to-face assessments to be undertaken. This produced an “unacceptable level of service provided has created uncertainty, stress and financial costs for claimants, and put additional financial and other pressures on disability organisations, and on other public services, that support claimants.”
A further point concerning the relationship between tribunals and initial decision-making departments and agencies is that while there are many appeals decided by tribunals, there are many more decisions that never reach a tribunal. For every one tribunal decisions, there are hundreds if not thousands of cases that do not proceed that far. The whole of the administrative justice system rests upon the principle that individuals must actively decide to challenge decisions.
But, as we know, many people decide not to challenge decisions, even though they might have good prospects of success. Everyone is entitled to a good quality decision irrespective of whether they challenge a decision and regardless of the level at which the decision is produced – initial decision, internal review, or tribunal. Relying just on tribunals to correct poor decisions can only go a certain distance – and even this limited distance is in the process of being steadily dismantled and eroded. Given the concerns about the quality of initial decision-making, it should be task of academics and others interested in administrative justice to think about how to ensure that all decisions can be of good quality.
The current backdrop in which tribunals operate is clearly influenced by the wider situation concerning public expenditure. Tribunals and the administrative justice system more generally are not immune from cuts in public spending. The issue of legal aid is the most obvious example of this. But there are other ways in which resources affect tribunals. Consider two recent consultations. The first consultation concerns closing some court and tribunal hearing centres. In 2013-14, 170 courts and tribunals—more than a third of the total number—were empty for more than half their available hearing time. The Government’s clear view is that the current court estate is clearly inefficient and underused.
An alternative is greater use of technology to increase access to justice – Online Dispute Resolution (ODR). In the future, we may well see the advent of the e-tribunal. To a degree, this already exists. In 2013/14, the Traffic Penalty Tribunal decided over 50% of its caseload through e-decisions. Expansion of ODR to other tribunals raises important questions. Is ODR the way forward? If so, then how will it work in practice? Which types of cases can be resolved appropriately through ODR? Which types of cases should be excluded? What about vulnerable people? What of those cases in which credibility is at stake and there are high stakes at risk? Will individuals have a choice between ODR and traditional hearings?
The second consultation concerned fees for tribunals. The Government’s proposals is that fees should reflect more of the cost of going to tribunals by reducing taxpayer subsidy for tribunals. The policy is to move towards 25% cost recovery across the following tribunals: immigration; tax; general regulatory chamber; land tribunal. (Social security and mental health would be excluded.) The operating costs of these tribunals was £110 million in 2014/15 and fee income was £8.5 million. The Government’s view is that increased fee income would reduce taxpayer burden. The proposal is to ensure that fees will not undermine access to justice. Therefore, a fee remission scheme would operate. Tribunal judges would have the power to order the respondent department or agency to reimburse the fee to a successful appellant.
Both consultations raise obvious access to justice concerns and it remains to be seen what results from them. While both consultations have been issued by the Ministry of Justice (MoJ), it is a debatable point whether the MoJ has any real political power in this respect. Measures such as these will be driven entirely by the Treasury and the need to reduce costs. It remains to be seen what may arise from the Chancellor’s spending review in November – given that non-protected departments, such as MoJ, have been required to model spending cuts of 25% and 40% respectively.
In Part 2 Robert will present statistics pertaining to the caseload of tribunals in order to highlight challenges for these bodies in the future.
The University of Manchester Law School would like to thank the UK Administrative Justice Institute for allowing the posting of this blog from the original.