Trends in the Tribunals World: Part 2
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 Part 1 Robert provided 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.
In Part 2 Robert presents statistics pertaining to the caseload of tribunals in order to highlight challenges for these bodies in the future.
Statistics on Tribunals
This section presents some statistics on tribunal caseloads that have been compiled from the Ministry of Justice’s quarterly tribunal statistics and other official sources. Figure 1shows the overall volume of appeals disposed by the First-tier Tribunal. It includes the two largest tribunal systems – social security and immigration. Two points can be made here. First, there is the overall volume of cases and its increase over recent years. The second point is the significant drop in the overall volume of appeals from 2013/14 onwards, which has been largely driven by the decline in the social security caseload.
Figures 2 and 3 show the caseload for both social security and immigration appeals, including the number of appeals determined and those allowed.
The dramatic decline in social security appeals has been attributed to two main causes: (1) the reduction in the volumes of initial decision-making in two of the main benefits: employment and support allowance and personal independence payments; and (2) the introduction of mandatory reconsideration. From the DWP’s perspective, mandatory reconsideration (MR) has been successful to the extent that it has helped to resolve more disputes without the need for appeal. However, in 2014, the Commons Work and Pensions Committee raised the concern that MR may deter some individuals from appealing even though they might be successful because it inserts another stage in the process which some individuals may find too onerous. In other words, if a claimant has already been told “no” at least twice – once following the initial claim and secondly through MR – then he or she might be inclined just to give up rather than pursue their claim to the tribunal stage. This is just one of the many areas in which it would be desirable for empirical research to be undertaken.
By contrast, consider the position as regards immigration appeals. The decline in immigration appeals has been less widely discussed. It may be attributed at a general level to the reduction in initial claims and refusal decisions. But there have been other matters, such as tougher immigration rules, the introduction of the immigration cap, and a slight reduction in asylum claims. But the major change here has been the widespread abolition of appeal rights under the Immigration Act 2014. Most ordinary immigration appeals against the refusal of leave to enter the UK and leave to remain have now been withdrawn. The only remedies now are: (1) administrative review within the Home Office; (2) an appeal on human rights grounds, but not full grounds of appeal; and (3) judicial review by the Upper Tribunal (Immigration and Asylum Chamber).There is a risk that over time the standard of decision-making not subject to external scrutiny may decline.
It is often thought that quality will decline if the initial decision-maker is not subject to an independent appeal. On the other hand, in June 2015, the Independent Chief Inspector of Borders and Immigration reported that the abolition in 2013 of the 40-50,000 family visitor appeals per year had not led to a higher refusal rate or to an overall reduction in initial decision-making quality. It is an open question whether this finding will remain valid over time. There is a risk that over time the standard of decision-making not subject to external scrutiny may decline.
In this context, the current Immigration Bill 2015 seeks to tighten the screw even further by extending the “deport first, appeal later” process to human rights cases. These appeals would be heard out of country unless this would create a real risk of serious irreversible harm. The effect will be to separate physically an appellant from the tribunal. Unable to attend in person, the appellant would face more difficulties in seeking to convince a judge and to instruct any representative. Further, given the long delays – many months – before appeal hearings take place, the practical obstacles are formidable: an individual will have to leave the UK, end their employment, and be separated from family. The result may be that many appellants may simply give up. As an indication of departmental attitudes, the Bill’s accompanying impact assessment does not contain even a tokenistic recognition of the value of administrative justice. The rationales are wholly policy oriented. Extending the “deport first, appeal later” approach would: ensure the removal of illegal immigrants; reduce detention costs; reduce the exploitation of appeals to extend individuals’ stay in the UK, and remove the scope for existing human rights to be strengthened while awaiting the outcome of an in-country appeal.
Putting social security and immigration to one side, the caseload of specific tribunals varies enormously as figure 4 shows.
The figures for school admission appeals are those for 2013/14 because more recent data is currently unavailable. While the caseload for the two larger jurisdictions has been quite volatile, the caseload for other tribunals, such as Mental Health Review Tribunals (MHRT), the Tax Tribunal, and Criminal Injuries Compensation Appeals (CICA), has been more stable although not altogether static (figure 5).
Finally, what of decision outcomes? How many appeals are allowed? Figure 6 shows the proportion of social security and immigration appeals that have been allowed over recent years. This data concerns the overall rate of allowed appeals. It is possible to break this figure down into specific appeals types. Over this period, the mean average of allowed social security appeals was 40%; the equivalent figure for immigration appeals was 42%.
A Note on Tribunal Statistics
Having collected the above figures, the following points arise. The availability and range of statistics on tribunals is highly variable. There is detailed data on social security and immigration appeals. Appeal receipts, those determined and outcomes are broken by specific types of appeals. However, the data on other tribunals is much more mixed. For instance, some time ago I wanted to know the number of tax appeals that were allowed. I lodged an FOI request, the response to which was that the information requested was only available at disproportionate cost.
Another example: there is very little data concerning the types of appeals determined by the Upper Tribunal (Administrative Appeals Chamber) (UTAAC) and the outcome of those appeals. The official tribunal statistics only contain data on the number of appeals disposed of by the UTAAC. By comparison, the Ministry of Justice releases a detailed database concerning judicial review claims. Yet, the Upper Tribunal is a superior court of record and of equivalent standing to the Administrative Court. Appeals from the UTAAC lie direct to the Court of Appeal. The higher courts have increasingly come to stress the need to recognise the expertise of specialist appellate tribunals and to exercise caution before interfering with their decisions. However, the data on such tribunals is variable.
Following the introduction of the First-tier and Upper Tribunals in 2008, there was much talk about tribunals being brought more clearly within the judicial fold. The situation now seems somewhat different. Some appeals rights have been withdrawn. There has been a significant decline in social security appeals. Legal aid has been cut. It is likely that more and higher fees will be introduced and hearing centres closed. Resolving disputes online seems is emerging as a way forward. But, there should also be a renewed focus upon departments and public bodies getting it right first time. Given the impact of cuts, there remain significant concerns as to whether current arrangements provide individuals with effective means of securing redress against administrative decisions.
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.