Why redress design is important, and the role of research

Last week saw some interesting developments in terms of redress design and the role that research plays in such design. The National Audit Office published a report into complaints handling in the public sector, highlighting the need for analysis of data on complaints, and the Ministry of Justice has announced the terms of reference for its post-implementation review of tribunal fees in employment claims. The need for ‘conscious design’ of consumer-citizen redress was explored in a workshop involving a range of practitioners, academics and policy makers and highlighted the importance of research in redress system design.

Tribunal fees

 The headline aims of the tribunal fees review are:

1. to determine how successful this has been in achieving the original objectives:
   1. financial: transfer a proportion of the costs from the taxpayer to those who use the tribunal where they can afford to do so;
   2. behavioural: to encourage parties to seek alternative ways of resolving their disputes; and
   3. justice: maintain access to justice.

The review will gather data from a range of sources and make recommendations, later in the year, for any changes to the structure or level of fees.

Fees were introduced for employment tribunal claims – the first such fees for tribunal claims – in July 2013, and a fee remission scheme was put in place in October 2013. The latest statistics from the Ministry of Justice show that the employment tribunal has seen a large drop in claims since the introduction of fees: 16,456 single claims received in 2014/15, a decrease of 52% on 2013/14.

National Audit Office: Complaints system incoherent

The NAO report considers the redress systems for complaints in public services, and particularly for those where the government has given users most choice, in particular adult social care and early years education. More widely, however, the report considers:

• how complaints and redress help to improve service delivery and describe the main bodies involved (Part One);
• the consumer experience in complaining and seeking redress (Part Two); and
• how well public bodies use complaints and redress data to improve services and systems and the satisfaction of users (Part Three).

One of the key findings is that the ‘complaints and redress landscape is complex, consumers find it difficult to navigate and there are gaps in the system’.

The study also found that people are much less likely to complain about public services than about private services, and that there are gaps in redress, particularly in the education sector: ‘There are several areas with no independent formal route to seek redress, such as complaints about academies or general quality of service issues in early years education provided by private or independent organisations.’

‘The main reasons that consumers do not complain about public services are that they do not feel it would be worth the effort (35%), or they think nothing can be done (35%).’

Complaints take too long to reach conclusion:

‘In 2014, 36% of complainants spent more than a year trying to resolve their problem with their local authority, care provider or school before going to the LGO. An ombudsman investigation then takes, on average, a further 4 months to reach a finding. In complex cases, investigations can take more than a year to conclude. We examined some adult social care cases where the complainant was no longer alive to benefit from redress.’

And across public services only a third of complainants are satisfied with the outcome.

Furthermore, not enough is done by public services to use the information from complaints to make improvements:

‘Complaints intelligence and the ability to intervene are fragmented across the system, and neither the LGO nor the PHSO can enforce redress. There is no standard approach to recording or reporting on complaints. Data cannot be aggregated beyond each organisation to identify emerging trends in complaints, or analyse the user’s perspective. Despite some examples of good practice, data-sharing is irregular and informal.’

One of the difficulties highlighted is the lack of central leadership:

‘Responsibility for different parts of the system sit with different parts
of central and local government, each with different governance and accountability arrangements.’The NAO recommends that the Cabinet Office should take a lead on this: ‘The nominated authority should have the governance and mandate to change the complaints and redress system. It should have a mandate to consider how to integrate the redress system in public markets with that in private markets.’

Ombuds should ‘encourage better collection and use of complaints data across the system, to improve quality’, and government departments should ‘ensure that council executives and departmental boards review their own complaints and complaint handling as a matter of course, and that complaints handling meets best practice’, building on best practice developed by ombuds schemes.

The NAO’s recommendations aim to improve access to redress, for example through signposting; encourage consistency across the redress mechanisms (including those involving private providers in receipt of public money); and improve value for money of complaints redress systems.

Consumer-citizen redress workshop

The incoherence of the redress system highlighted by the NAO report was discussed at a workshop last week on making consumer redress accessible. The two-day event, co-organised by the Queen Margaret University (QMU) Consumer Insight Centre and the Centre for Socio-Legal Studies, Oxford, explored developments in redress in both the private and public sectors. One of the key messages was that designing redress is a constitutionally significant activity. Chris Gill of QMU described the ad hoc and piecemeal development of redress, with no evidence of principled justification for variations among the redress mechanisms available.

Gill noted that aside from work by US academic Lisa Bingham and research carried out by Andrew Le Sueur and Varda Bondy in 2012, there has been little research focus on ‘designing justice’. Bingham writes of dispute system design (DSD) and argues that in future, ‘we must become more mindful of how designing institutions and systems to manage conflict affects justice’.

With colleagues Carol Brennan, Jane Williams and Carolyn Hirst, Gill has developed a five-stage model of redress system design, incorporating a research stage, a goal-setting stage, stages on system design and process design, and a final evaluation stage.

Other discussions about redress design at the event explored:

• What complainants want from public- and private-sector ombuds (Dr Naomi Creutzfeldt, Centre for Socio-Legal Studies, University of Oxford)
• Problems with terminology and transparency of informal resolution methods used by ombuds (Carolyn Hirst, Queen Margaret University, presenting research on informal resolution at ombudsresearch.org.uk)
• Innovations in the model of public service ombuds in devolved jurisdictions, and the role that academics should take in change (Jim Martin, SPSO)
• How competition policy relates to consumer redress, and the approach taken by the Scottish Government (Sheena Brown, head of the Scottish Government’s Consumer and Competition Policy Unit)
• How redress design should take account of first-instance decision-making and use of discretion by public bodies, and the loss of a holistic approach to redress mooted by the Tribunals White Paper in 2004 (Tom Mullen, University of Glasgow)
• The need for research to identify what complainants want, what they need, and what kind of system can meet those (Carol Brennan, Queen Margaret University)
• The complex routes to redress for both simple and multi-faceted complaints (Lauren Bruce, Citizens Advice Scotland and member of the Scottish Civil Justice Council, the Scottish Administrative Justice and Tribunals Advisory Committee and the Administrative Justice Forum)
• The social contract between elected representatives, citizen-consumers and service providers, and the need to be better at listening (Richard Simmons, University of Stirling)
• Four stages of design: prevention, reduction, resolution and learning (Brian Thompson, University of Liverpool)
• Flexible approaches to consumer redress by ombuds (Caroline Mitchell, Financial Ombudsman Service; and Peter Taylor, Ombudsman Services)
• The EU ADR Directive, the role of the competent authority, and online dispute resolution for consumer redress (Mark McGinty, Chartered Trading Standards Institute, Dr Pablo Cortes, University of Leicester, and James Walker, Resolver)

Why is design important?

One participant suggested we ask ourselves why should redress be designed? Is it a matter of social justice, economic efficiency, reputation of service providers, to stave off state regulation, for quality assurance?

Asking who has an interest in redress is informative. It is especially informative as we enter (with the EU ADR Directive) a world in which the buyers of redress are the businesses and public services, not the complainants, and as we see increasing numbers of public services delivered by private providers. If we are to consider the redress system as a whole (and there is a question as to whether the disparate mechanisms make up a ‘system’ at all; one participant asked whether the idea of a ‘system’ is dead or dormant), we need to read across the private and public sectors.

How does this influence redress design decisions? Bingham argues that we need to be systematic in our approach to redress design, taking account of the many different forms of justice (eg procedural, substantive, distributive):

‘We need to build a body of knowledge based on common categories and shared meaning through which to assess empirically the way these systems function. We need to have an open and public discussion about which variety of justice we have chosen to pursue in a particular system. Moreover, we need to develop ways to generate information to determine whether the resulting system actually produces the justice for which it is designed.’

This is an area calling out for more research.