Archive for the ‘chapter 6’ Category
Administrative Justice Council – new website
In 2019, the Administrative Justice Council launched its new website. Go to https://ajc-justice.co.uk/ for further information.
Understanding Courts – a report from JUSTICE
In January 2019, the Human Rights Group JUSTICE published the report, Understanding Courts. It was the work of a group chaired by Sir Nicholas Blake.
The central message of the report – which builds on other reports published over the last few years by JUSTICE – is that going to court can be a confusing, intimidating and disempowering experience for lay people, whether as parties, witnesses or jurors. This is only compounded for people who are unrepresented, and for otherwise vulnerable people.
This report argues that, in the context of the current programme of reform of courts and tribunals, lay people should be put at the heart of court processes. The objective is to encourage meaningful access to justice through effective participation.
There are 41 recommendations in the report which focus on what effective participation should mean in practice. In broad outline, the key issues are that
- lay people should be informed about what will happen at their hearing through advance information provided by multiple means;
- court professionals should recognise that lay people should be their primary focus and adapt their approach accordingly;
- case management should ensure that lay people understand processes and assists with that understanding;
- legal jargon and confusing modes of address should be avoided, using plain English alternatives;
- there needs to be a change in professional culture that can otherwise exclude lay people;
- there should be appropriate adaptations to enable participation by children and those with a disability; and
- there should be support for all users who need it.
It is an interesting report, which deserves to be taken seriously. But I have the specific comments to make.
1 Tribunals have long espoused the key principles set out in this report. There is mention in this report that the user focus of tribunals needs to be brought into the court system. If this report has the effect of stopping (court) judges regarding tribunals as second class courts, rather than as first class dispute resolution forums, then it will have served a useful purpose.
2 There are many recommendations in the reports about ensuring that information provided by courts is user-friendly and up to date. This again is welcome but this is a message that has been developed on many occasions over recent years. Now is the time to get down to the hard work of developing user-friendly information and forms that really do enable individuals to improve their access to justice – using the potential of IT to the full.
3 If the change of culture recommended in the report is to be fully realise this has a significant implication for the training, not just of the judiciary, but also of court staff and other legal professionals. The recent spate of press stories about bullying judges is extremely worrying – it is hard to see how a bullying judge would have the empathy or patience to adopt the approach outlined in this report. Judges already in post will need as much training in the interpersonal skills required to change court culture as those coming new to the role.
The full report is available at https://justice.org.uk/our-work/areas-of-work/what-is-a-trial/
Resolving Housing Disputes: proposal for a Housing Complaints Resolution Service
The last two blog items have considered proposals for making the disputes resolution activities of the county court and the property tribunal in relation to housing matters work more coherently. But for many people, the very idea of going to a court (or tribunal) is daunting.
Increasingly, governments use non-court avenues for redress, where this can be done cost-effectively and in a way which promotes access to justice – in the broad sense of access to a service that will take an independent look at a dispute and resolve it. The outstanding example is in the field of financial services, where the Financial Services Ombudsman offers a dispute resolution service across the financial services sector.
In relation to housing disputes, the problem is rather different. There are a number of different complaints handlers – so many, in fact, that members of the public often don’t know which route to resolution to take.
The Government has been concerned about this issue for sometime. In January 2019, the Secretary of State announced that he would be bringing forward legislation to create a single Housing Complaints Resolution Service which will become the single port of entry – for both owner occupiers and renters – with disputes they wish to have resolved.
From broken boilers to cracks in the wall, the new Housing Complaints Resolution Service will potentially help millions by providing a straight-forward way of getting help when faced with unresolved disputes about problems with their home – such as repairs and maintenance.
One feature of the new service is that all Private Landlords – who currently do not have to belong to a redress scheme – will be required to sign up – with penalties for failure to do so.
In addition the government has announced that there will be a New Homes Ombudsman, to resolve complaints about the condition of new homes.
These changes will not happen overnight – they will require legislation. The details of the Housing Complaints Resolution Service will be developed with a new Redress Reform Working Group made up of representatives from across the sector, working with industry and consumers.
I will keep an eye on these developments as the details emerge.
For further detail, including links to background papers see https://www.gov.uk/government/news/james-brokenshire-announces-overhaul-of-broken-housing-complaints-system
Considering the case for a specialist housing court
In November 2018, the Government published Considering the case for a Housing Court: call for evidence. It sought evidence in particular from the judiciary, landlords and tenants to help the government better understand and improve the experience of people using courts and tribunal services in property cases.
It is not hard to think of other groups who might also provide useful evidence, such as lawyers, housing advisers, letting agents and other property professionals.
The Consultation made clear that, included in the ideas being considered was whether there was a case for the creation of a specialist Housing Court.
In its press release, the Government stated that it particularly sought evidence on:
- private landlord possession action process in the county court
- user experience in both the county courts and the First-tier Tribunal for property cases
- case for a new Housing Court
- case for other structural changes such as an extension of the remit of the property tribunal.
Little attention was given to the important question of whether any changes could improve access to justice. There is good evidence that many – both landlords and tenants – with potential legal disputes do not use the courts to resolve those disputes. (In relation to this, the Paper did ask whether better information might be helpful.)
The Consultation Paper indicated that there were two principal options being considered.
Either, changes might be made to the ways in which the courts and first-tier tribunal operated to ensure that between them they could deal with cases more cost-effectively and efficiently. (In essence this covered the same ground as that considered by Judge McGrath in her recommendations to the Civil Justice Council, see this blog previous item).
Or, a specialist Housing Court might be created. (The Consultation did not specifically seek views on the creation of a more broadly based Housing Tribunal on the lines of developments in Scotland. )
The Consultation Period is now closed. Decisions are awaited.
For further information on the Scottish Housing Tribunal see https://www.housingandpropertychamber.scot/
Dealing with housing disputes: proposals from the Civil Justice Council
Housing Law is complex – a large number of statutes attempt to regulate the housing market, in particulat the relationship between landlords and tenants. Housing Law potentially affects both renters (who rent their accommodation on a monthly basis) and leaseholders (who have a long-term interest in the property they live in).
The law has created a vast number of legal rights and responsbilities. It has also created different pathways for the resolution of disputes. In particular, some cases need to be dealt with in the county court, others go to the Property Chamber in the First Tier Tribunal.
One problem with this is that there are circumstances which arise in practice where – in order to fully resolve the dispute – the claimant may need to start proceedings in both the county court and the first tier tribunal. This is obviously wasteful of time and resources – very frustrating for those caught up in an almost Dickensian-like jurisdictional battle.
This is not new; the issue has been acknowledged for some time. The Civil Justice Council has, however, been trying to do something practical to solve the problem. In 2015 it established a working group on property disputes to consider whether access to justice in property disputes could be improved by the deployment of judges to sit concurrently in courts and tribunals. In other words, those appointed as tribunal judges could in relevant circumstances be authorised to sit as county court judges and vice versa.
Following a pilot, Judge Siobhan McGrath, Property Chamber President, in November 2018 published a proposal and recommendations to amend the Civil Procedure Rules and the First-tier Tribunal Procedure (Property Chamber) to reflect this. In her report she stated that her preferred solution was to deploy judges to sit concurrently in the court and the tribunal. The deployment of judges to sit in both the court and the tribunal concurrently would, in Judge McGrath’s view, provide a practical solution to a difficult challenge.
She stated that ‘The concept is supported by the MoJ who have agreed to provide resource to explore rule changes in more detail; to engage with judiciary and the Civil Procedure Rules committee and the Tribunal Procedure Committee and to provide analytics about the practical impact of deployment.’
What the status of this recommendation is is currently no clear; it is likely to have got wrapped up in the consultation on the creation of a Housing Court – which is the subject of a separate blog item.
To see Judge McGrath’s report, visit: https://www.judiciary.uk/wp-content/uploads/2018/11/property-chamber-deployment-project-report-oct2018.pdf
Tribunal case workers – who they are and what they do
One aspect of the Tribunals Reform programme that has not had that much attention is the role of Tribunals Caseworkers (TCWs). The idea of tribunals employing caseworkers who could undertake some of the more routine work of the tribunals judiciary is one that has been around for some time. (Indeed it builds on the use of Registrars in other court contexts, who have long been part of the legal system.) But their use in tribunals is now becoming more widespread as HMCTS seeks to ensure that the tribunals work as cost effectively and as efficiently as possible – key objectives for the reform programme.
The first edition of Tribunals Journal 2018, that was published earlier this year, carries an interesting collection of short articles from a number of Caseworkers, working in different tribunals contexts – including, social security, employment, and special educational needs.
One feature of their descriptions of their work is the variety of things that they are asked to do. They also provide those undertaking the role with the opportunity to acquire new skils and to enhance their career opportunities within the Tribunals service.
See further https://www.judiciary.uk/wp-content/uploads/2013/07/tribunals-journal-edition1-2018-v2.pdf
Transforming administrative justice – current projects: progress reports
Information about the progress of the Transformation: Courts and Tribunals 2022 programme has been emerging from HMTCS. (See this blog October 2 October 2018).
In this note I look in a little more detail at projects in the administrative justice area.
In their recent progress update, HMCTS listed 5 projects that were either started or in prospect relating to administrative justice. These were:
- Upper Tribunal: Building the IT infrastucture to enable new digital ways of working across Upper Tribunal.
- Social Security and Child Support (SSCS): Establishing a new, digital process to improve the experience of appellants, allowing them to submit, track and manage their appeal online. Pilot projects are already been trialled in a number of venues.
- Immigration and Asylum Chamber (IAC): Developing the administration of the Immigration and Asylum Chamber’s service so that it can adapt according to different needs of users. It will enable case resolution both online and by video.
- Employment Tribunals (ET): This project will use a combination of the tribunals authorisation and the civil money claims models to develop an ET service that can change the way it works according to what the user needs. This will include the ability to resolve cases online and by video.
- Specialist Tribunals: The project will establish new ways of working across the tribunals, developed on a tribunal-by-tribunal basis. This includes the Pilot project enable appeals to be made to the Tax Tribunal on-line, which are being tested and evaluated.
Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review
In June 2018, I noted here the critical report from the National Audit Office – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.
The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.
The PAC found, in summary:
- It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
- It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
- Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
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The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
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It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
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The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.
In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.
In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.
In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.
The Government has just announced that it has agreed to all the PACs recommendations.
As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.
I will keep readers of the blog posted as and when new material is published.
The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm
The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf
Transformation: Court and Tribunals 2022 – progress reports
I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.
For some time there has been an occasional blog, setting out information about a number of initiatives.
In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct 2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.
The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.
The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).
I will be adding further detail on these projects, dividing the information into broad subject headings.
The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.
The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf
The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/
Employment Law Hearing Structures: Consultation from the Law Commission
The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.
But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.
The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which courts and tribunals dealing with employment and discrimination cases interact.
For example:
- At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
- Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
- Employment Tribunals have no power to make an order to enforce a decision that it has made.
- Courts have exclusive jurisdiction over no-employment discrimination cases
These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.
The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.
But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.
(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)
The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/
The Consultation runs till January 2019. Final recommendations will be published in 2019.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 