Martin Partington: Spotlight on the Justice System

Just before Christmas 2011, the Government published a Consultation Paper proposing that those wanting to use the Employment Tribunal should be required to pay a fee to do so; at present access is free.

The Government argues that it has to reduce the £84 million cost currently borne by the taxpayer. Fees are an obvious way to do this. At the same time, it is suggested that fees may deter some people from using Employment Tribunals, thereby reducing the case load, which has expanded rapidly in recent years.

The consultation  puts forward two options for consideration:

• Option 1: an initial fee of between £150-£250 for a claimant to begin a claim, with an additional fee of between £250-£1250 if the claim goes to a hearing, with no limit to the maximum award; or
• Option 2: a single fee of between £200-£600 – but this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

In both options the tribunal would be given the power to order the unsuccessful party to reimburse fees paid by the successful party.

The Government, consistently with its policy in the civil justice arena of encouraging out of court settlement, states that it will continue to fund the cost of  the Conciliation Service ACAS, which helps people in employment disputes reach agreement without the need for legal proceedings, and is free to users.

The Government also argues that introducing fees will bring employment tribunals into line with civil courts where claimants already pay a fee to use the service. The paper states that, just like in civil courts, the Government will also continue to fund a system of fee waivers for those who cannot afford to pay.

Although many may think that these proposals are sensible, they mark another step in the development of the tribunal system, which until recently has been more or less free to users. There have been recent moves to introduce fees in immigration and asylum hearings. The development in relation to employment tribunals could lead to similar moves in other contexts as well, for example land and property disputes or tax disputes that are dealt with by tribunals.

My view is that, while politically it may make sense for each of these initiatives to occur individually, there should be a much more open discussion about the implications of a general policy to make tribunals more like courts through the incremental imposition of fees. A discussion of this broad principle should not be allowed to go by default.

The present consultation runs until March 2012; the Government has announced that no change is likely before 2013/14.

To read the Consultation, go to http://www.justice.gov.uk/consultations/et-fee-charging-regime-cp22-2011.htm

One of the curiosities of the Ombudsman in this country is that members of the public are not permitted to take complaints about government maladministration direct to her. They have to start by going to their Member of Parliament; only if the MP agrees to refer the case will the Ombudsman be able to take it on. (The ‘filter’ does not apply to her health service complaints.)

For many years, it has been argued that the filter is unnecessary and this summer the Ombudsman consulted on whether the time had come to remove the filter. Today, she reports that the overwhelming consensus of opinion is that this time has come.

Following a recent report from the Law Commission, calling for a more general review of public service ombudsmen, it seems as though there might be an opportunity to make the requsite changes to the law. It won’t happen overnight – but would be a sensible reform that would improve access to the Ombudsman.

For access to the Ombudsman report go to http://www.ombudsman.org.uk/about-us/media-centre/press-releases/2011/new-report-from-parliamentary-ombudsman-says-reform-of-the-mp-filter-is-long-overdue

For the Law Commission report see http://www.justice.gov.uk/lawcommission/publications/ombudsmen.htm

Although the future of the Administrative Justice and Tribunals Council has for some months appeared to be doomed, the wisdom of this decision – given the trivial amount of public expenditure that will be saved – is still being called into question. The latest body to get involved is the House of Commons  Public Administration Select Committee (PASC) which has decided to undertake an inquiry into the Government’s plans for future oversight of the administrative justice system.

It will not be a long inquiry – just one day of oral evidence from both the Ministry of Justice and from the Council – plus consideration of any written evidence that may be submitted. Anyone interested in contributing to this last ditch endeavour needs to be quick; evidence must be with the Committee by 11 November 2011.

Further details are at http://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-select-committee/news/administrative-justice-inquiry/

In (probably) its  dying days, the Administrative Justice and Tribunals Council – earmarked by the Coalition Government for abolition – has decided to go down, all guns blazing. In its latest report, Securing Fairness and Redress: Administrative Justice at Risk?, published on 21 Oct 2011,  it gives a stark warning that principles of fairness and the right to challenge decisions perceived not to be fair or lawful – which have been a hallmark of public administration for decades – are currently under serious threat.

In the words of the report:  ‘ In an age where so much emphasis is rightly placed on empowering people, on improving public services and on upholding the Rule of Law, it is astonishing that there is so little focus on the system for ensuring that the State gets it right in its dealings with individuals and families.’ Complaining that administrative justice is the ‘Cinderella service’ of the justice system, the Council warns that the current programme of austerity will reduce the quality of much administrative decision-taking, while at the same time make it much harder for those adversely affected by bad decisions to challenge them.

This latest report – which presents an overview of the current position – notes that three times as many cases are decided by tribunals each year as go before the criminal courts; yet all the focus of policy making is on the criminal justice system. This despite the fact that the administrative justice system deals with key questions affecting the individual – liberty, employment, housing and even, in asylum cases, with matters of life and death.

The Council acknowledges that there is no reason why new ways of deciding cases should not be tried – cutting public expenditure can be an opportunity for developing new and possibly better procedures. But it argues that at just the time when the Council’s expertise would be most useful, its voice is going to be silenced under the quango cutting programme.

The report sets out an agenda for long-term strategic change  the administrative justice system:

• better and more stable laws and regulations, especially in the areas of welfare benefits and immigration;
• a ‘Right First Time’ culture in government decision-making;
• proper access to help, advice and representation for citizens pursuing redress against government decisions;
• further reforms to ensure coherent access to administrative justice across the whole of the UK;
• new and proportionate models for resolving disputes faster and in more user-friendly ways.

The full text of their excellent report is at http://www.justice.gov.uk/ajtc/docs/AJTC_at_risk_%2810.11%29_web.pdf

In a new report, the Administrative Justice and Tribunals Council makes the argument that there are too many successful appeals before tribunals, the result of poor decision taking within government. It argues there should be more emphasis on ‘getting it right’; and that departments that have unacceptably high levels of successful appeals should be made to help fund the tribunals and ombudsmen that sort incorrect decisions out. The following note is taken from the executive summary.

‘The report‘s key message is that public bodies can save money and improve the quality of service by making fewer mistakes and learning more from those they do make.

‘Every day, public bodies make thousands of decisions about individuals across a diverse landscape – welfare benefits, immigration, education, tax, health and so on. Unfortunately, evidence suggests that far too many of these initial decisions are incorrect. Across the public sector there are high volumes of
appeals (over a million each year) against decisions and complaints about service provision. A worrying proportion of these appeals  and complaints – nearly 40 per cent in some cases – are upheld by tribunals or ombudsmen.

‘Incorrect decisions impact significantly on the lives of those directly concerned. Compounding the problem is the repetition of these expensive errors. Too few public bodies have in place feedback mechanisms to ensure that the outcomes of appeals and complaints are understood throughout the organisation.

‘Getting it right first time saves money. Mistakes result in considerable costs for the users of public services, the organisations concerned, and for the wider  public purse. There is little evidence that the financial costs of not getting it right first time are fully understood by public bodies, partly because many of the  costs can be off-loaded to tribunals and ombudsmen. As a result, the precise financial cost of poor decision-making and poor service delivery is unknown.

‘Poor service and waste of public money are unacceptable. The need for a sustained initiative to tackle the problem is long over-due. Public bodies must make it a priority to reduce mistakes and the financial and non-financial costs which go with them. This is particularly important at a time when there are  significant cutbacks in public spending.

‘Taking evidence from previous studies and two case studies conducted as part of this project, this report explains what right first time means and offers  practical advice on how public bodies can ensure that their decision-making or service delivery meets that standard.

‘Right first time’ means:
• making a decision or delivering a service to the user fairly, quickly, accurately and effectively;

• taking into account the relevant and sufficient evidence and circumstances of a particular case;

• involving the user and keeping the user updated and informed during the process;
• communicating and explaining the decision or action to the user in a clear and understandable way, and informing them about their rights in relation to  complaints, reviews, appeals or alternative dispute resolution;
• learning from feedback or complaints about the service or appeals against decisions;
• empowering and supporting staff through providing high quality guidance, training and mentoring.

‘A key finding of the study is that in order to get things right first time, public sector bodies must be learning organisations, always understanding their users and genuinely putting their perspective at the heart of processes and systems. The report identifies the fundamentals of right first time as Leadership, Culture,
Responsiveness, Resolution, and Learning.

‘The study also highlights Practical Steps that should be adapted and followed by leaders of public bodies when reviewing their services and attempting to establish a right first time approach. These Practical Steps relate to undertaking analysis, deciding on action and encouraging monitoring and learning.

‘Public bodies with responsibility for making original decisions must take the lead in improving the quality of the service they offer. All such bodies should carry out a review of their systems, procedures and decision-making structures, using the guidance offered in the Practical Steps, to ensure that they are doing all they can to get decisions right first time. As part of this, they should audit and
report on the volumes and costs of handling appeals, complaints and reviews on an annual basis. In addition, they must take demonstrable steps to feedback learning from appeals and complaints.

‘Embedding and supporting right first time in the culture and practice of administrative justice must also be seen as the responsibility of governments and parliaments.

‘The report argues that it is time to adopt a ‘polluter pays’ approach to help promote a right first time culture. Tribunals (including, but not limited to, those within the Tribunals Service) are currently carrying a heavy share of the financial burden caused by incorrect decisions.

‘It recommends the development of funding models by which original decision-making organisations contribute to the cost of running tribunals through direct reference to the volume of successful appeals they generate.

‘This report is intended to be a practical working tool to help public bodies  improve their performance, thereby reducing stress and cost for both end users and for the administrative justice organisations who deal with complaints and appeals. It is vital that all bodies serving the public should improve the quality of decision-making.

‘By implementing the findings and recommendations of this report they will not only save money but will help to improve the public’s trust and confidence in public services.’

For further information see http://www.justice.gov.uk/ajtc/docs/AJTC_Right_first_time_web%287%29.pdf

In April 2011, I commented on the creation of HM Courts and Tribunals Service – the single executive agency responsible for running both courts and tribunals.

In this note I comment on two matters:

judicial diversity; and access to tribunals.

Judicial diversity: One of the arguments made in favour of merging courts and tribunals was that the merger would make it easier for those appointed to chair tribunals also to as judges in the courts. This idea is being actively developed in the context of thinking about ways of increasing judicial diversity – i.e. ensuring that the judiciary is better balanced in terms of the numbers of women judges and judges from ethnic minority groups.

This is an issue that the Judicial Appointments Commission has been grappling with for some time. It is now clear that judicial leaders and others engaged in the judicial appointments process are coming to see how the merger of courts and tribunals can enable new thinking to develop about judicial careers – with people gaining judicial experience in a variety of judicial contexts, both tribunals and courts.

The Judicial Diversity Taskforce has recently published a report on progress towards greater diversity, in which this benefit from the merger of courts and tribunals is particularly noted. See: Improving Judicial Diversity; Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’ available at http://www.justice.gov.uk/downloads/publications/policy/moj/judicial-diversity-report-2010.pdf

Access to tribunals: One feature of the current system of tribunals is that, for the most part, access to them is free to users. The merger of Courts and Tribunals, combined with the economic challenges facing the current government has caused officials to start a process of identifying those tribunals which should charge fees and what those fees should be. The recent update on the delivery of the MoJ Business Plan indicates that this work should be completed by the end of 2011.

If changes on the lines contemplated are introduced this will do much to change the accessibility of members of the public to tribunals. While it is not possible to prejudge the outcome of this review at this stage, it is worth noting that many of those concerned with the future development of administrative justice view these potential developments with considerable alarm.

For example, in responding to a Ministry of Justice consultation on introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, the Administrative Justice and Tribunals Council argued against the introduction of fees in individual vs state jurisdictions as such charges fall on individuals who already face a massive inequality of arms in challenging state decisions. From this perspective a compelling argument would need to be made in favour of the imposition of fees to persuade the Council that fees should be introduced. The consultation paper contained no such argument.

The Council is not opposed in principle to the charging of a fee for the underlying public service of providing and administering the system of immigration visas. However the AJTC remains concerned about any proposal that treats tribunals as if they were providing a chargeable public service like any other. They are not. It has been well established for more than half a century that tribunals are necessary to provide an independent mechanism by which individuals can seek redress for alleged mistakes by government departments and other public bodies. Individuals should not have to pay a second time to challenge mistakes in a situation where the state is alleged to have been at fault.

Most unfair of all is the suggestion that appellants will not receive a refund of appeal fees even if the Home Office withdraws its case or the appellant wins his or her case. Collectively, these proposals appear to place administrative ease and income generation above basic principles of fairness and justice which in the Council’s opinion is unacceptable.

The Council considers that a major factor in the cost of the appeal system is a lack of effective incentives for initial decision takers to get their decisions right first time. The current proposals fail to recognise that the failure rate in original decision making by the UK Border Agency is unacceptably high. The Council recognises that improvements are being made but the introduction of appeal fees does not appear to encourage UKBA and Tribunals Service staff to make the correct decisions. It actually reduces any existing incentive. This cannot be the right way to proceed if public services are to improve. See http://www.justice.gov.uk/ajtc/adjust/articles/feesinequality.htm

This robust line of argument is worth bearing in mind as further proposals for fee charging start to emerge from the Government