Workshop on Administrative Justice Research in Scotland

by Tom Mullen, University of Glasgow, and Chris Gill, Queen Margaret University

University of Glasgow, Tuesday 20 May 2015

This is a report of the discussion at a workshop on Administrative Justice Research in Scotland sponsored by the UK Administrative Justice Institute. The workshop was designed to address three principal questions:

• What should we be researching?
• How should research be supported and developed?
• What are the needs of researchers, policymakers and practitioners in Scotland and what can UKAJI do to support them?

What follows is a summary of the discussion and is not a comprehensive record of what was said.

1          What should we be researching?

The topics seen as the highest priority for research by workshop participants were in the area of social security law and administration. These included:

• reforms to the appeal process;
• changes in administrative practice including greater use of telephone calls to claimants/appellants;
• the drastic decline in the number of social security appeals;
• increased use of benefit sanctions
• the effect of recent welfare reforms on persons with mental health difficulties; and
• the outsourcing of administrative functions by the Department for Work and Pensions (DWP) and Her Majesty’s Revenue and Customs (HMRC)

Mandatory reconsideration and appeals Many of those present expressed concern (which has also been expressed in other fora) about the effect of legal reforms to the process for appealing social security decisions and changes in DWP administrative practices, mandatory reconsideration and associated reforms to social security appeals and the increasing use of benefit sanctions.

Since October 2013, all benefit decisions must be reviewed by the DWP before an appeal can be lodged. Claimants are also required to lodge their appeals directly with HM Courts and Tribunals Service (HMCTS) (‘direct lodgement’) whereas, under the previous system, claimants had submitted their appeals to the DWP which then transmitted them to HMCTS. The administrative changes have included increased use of telephone calls to discuss reconsideration and appeal with claimants who are challenging decisions.

Following these changes, there has also been a dramatic decline in the number of social security appeals heard by the First-tier tribunal. Many of the participants thought that the reason for the decline in the number of appeals was the changes just described and that, as a consequence, claimants were being denied their rights.

Use of telephony Concern was expressed that telephone calls to claimants who had appealed were being used to persuade claimants to drop appeal by offering them a more favourable decision and that claimants were settling for less than they may be entitled to if they pursued their appeal.

Reference was made to research in Sweden on officials contacting citizens by telephone which indicated that a need for neutrality had been emphasised in initial training. It was suggested that a pilot conducted by the DWP had been well-resourced and involved intensive training of the DWP staff involved. These conditions had not been replicated when the new approach to telephony had been rolled out across the country.

Increased use of benefit sanctions The concern here was the DWP were taking an increasingly hard line on the availability for work and ‘actively seeking employment’ tests for jobseekers allowance, resulting in the imposition of unjustified benefit sanctions.

Effect of recent welfare reforms on persons with mental health difficulties Concerns were expressed that insufficient account had been taken of the needs of persons with mental health difficulties in the design and implementation of reform. For example, it was felt that they often lacked sufficient support in applying for benefit and that greater use of online applications for benefits would be particularly challenging for some and that sanctions would fall disproportionately on those with mental health problems.

Outsourcing of administrative functions Two examples were discussed. The first was the medical assessments carried out for purposes of Employment and Support Allowance on the one hand, and on the other, Disability Living Allowance (replaced by Personal independence Payment for new adult claims). Contracts had been awarded to two separate companies in Scotland to carry out these assessments and these could result in inconsistent assessments, undermining confidence in the decision-making process.

The second was that since November 2014 a private company, Concentrix, had been working on behalf of HMRC to check that claimants are receiving the correct amount of tax credits. One priority appeared to be checking whether those claiming as single adults were in fact being supported by an undisclosed live-in partner. Large numbers of claimants had been contacted and asked to supply further financial and other information beyond that submitted when the claim was approved. Concern was expressed that the reviews were being instigated on a speculative basis predicated on suspicion of claimants and often amounted to a fishing expedition lacking a sound factual basis.

Participants thought that it was crucial that empirical research was carried out into these matters (particularly mandatory reconsideration, direct lodgement, use of telephony and their effect on appeals) in order to get a clearer picture of trends in DWP decision-making, and of the effects of both the legal reforms and changes in administrative practices.

Two caveats mentioned were first, that such research would require DWP consent, which might not be forthcoming, and that the landscape was changing so rapidly both in terms of changes to benefits and DWP’s administrative processes that any research might be out of date by the time it was published. Other topics suggested included research into:

• the skills decision-makers need;
• the barriers to accessibility to administrative justice remedies;
• the questions users have about routes to administrative justice remedies, e.g. complaints versus appeals;
• the availability of advice, support and representation;
• the choice of courts or tribunals as the primary means of challenging administrative decisions;
• inconsistency in the availability or nature of remedies;
• the user/customer journey when complaining/appealing;
• the policy-making process for administrative justice; and
• the implications of further devolution including the transfer of responsibility for currently reserved tribunals.

With regard to advice and advocacy, participants noted that this varied substantially according to where people lived and this issue would benefit from research. This linked with the wider theme of considering regional and geographical variations in participation in the administrative justice system.

2          Supporting and developing research: data on administrative justice

Workshop participants discussed the difficulty of using data published by the DWP and Her Majesty’s Court and Tribunals Service (HMCTS), particularly when trying to match up data published by each organisation. For example, the categories used to report the data are different, as are the timescales that are used. One of the issues was that the DWP owned the data all the way up until the tribunal, while HMCTS owned it from that point on.

A particular problem was the feedback of data from HMCTS to DWP following a tribunal. Another issue was the lack of information provided specifically in relation to Scotland, making regional comparisons very difficult. Data were not reported on a regional and national basis, which could make it difficult to use. This was a particular problem in terms of assessing the possible impact of the Smith Commission proposals to transfer currently reserved jurisdictions to Scotland and responsibility for some substantive welfare benefits. There was limited data available to assess the impact and costs associated with this transfer.

An example of emerging good practice was discussed in relation to the production of data on complaint handling in Scotland. The Scottish Public Services Ombudsman’s Complaint Standards Authority now required public service providers in Scotland to report annually on complaint numbers and outcomes. This could potentially provide a very helpful source of data for practitioners and academics working in this area.

Participants also discussed issues around data categorisation and terminology. A recent study looking at the informal resolution practices of ombudsman and complaint handling schemes in the UK and Ireland, for example, found a variety of terminology used to describe such practices. Data were also often reported in ways that were unhelpful for researchers, for instance, only providing percentages and not the raw data itself. There appeared to be consensus amongst workshop participants that more standardisation of data would be helpful. 

3          Supporting and developing research

Research funding

Participants mentioned the Nuffield Foundation and the Economic and Social Research Council as potential funders of research on administrative justice. There was also discussion of the potential for academics to work with administrative justice organisations through tendered and commissioned research. This was seen as an opportunity for academics to produce relevant research that could have an impact and be used by practitioners. Examples of organisations which had funded such research included the Care Inspectorate, Citizens Advice Scotland, and the National Endowment for Science, Technology and the Arts (NESTA).

The issue of government funding for research was discussed and it was noted that, in terms of its research priorities, the Scottish Government was focusing on civil and criminal justice, rather than administrative justice.

A key role for the UK Administrative Justice Institute (UKAJI) was to promote administrative justice as an area of concern to both government and other research funders. The field needed to be raised in the eyes of funders. Workshop participants also discussed the possibility that UKAJI could act as a broker in relation to getting research projects off the ground. For example, it could bring together different organisations which might each have small research budgets in order to pool resources and fund projects of broad relevance.

Research capacity

Workshop participants noted that empirical research in administrative justice could be difficult to do well. Often, research would need to involve hard-to-reach groups, which were difficult to access. This could result in the production of incomplete and unhelpful data. An example was research conducted by the UK Government about benefits sanctions, which had failed to contact 1/3 of the sample and as a result had not been able to consider the impact of sanctions on the most vulnerable.

The complaints area was highlighted as an area where there was potential to build fruitful partnerships between practitioners and academic researchers. For example, there were a number of networks and associations operating in this area that could be accessed by researchers.

Linking research and practice

Workshop participants noted that the Welfare Reform Committee had commissioned research on administrative justice issues. Participants pointed out that the Scottish Parliament lacked a committee with a specific focus on administrative justice issues and there was a suggestion that the creation of a committee similar to the Public Administration Select Committee (now the Public Administration and Constitutional Affairs Committee) might be helpful to raise the profile of administrative justice issues. That committee had looked at decision making, complaints, and social security issues, and placed a lot of useful data into the public domain. Participants discussed the possibility of a regular forum for those interested in administrative justice.

An event organised by the Scottish Tribunals and Administrative Justice Committee (STAJAC) had attracted 90 delegates and had been very successful. STAJAC was seen as having an important role in bringing stakeholders together and acting as a focal point in Scotland. STAJAC had also worked in partnership with others to conduct some research on administrative justice.

Dissemination and use of research

Participants noted that a limitation of research was that its outputs could often come too late to influence policy and practice. Practice communities required quicker feedback. There was also a need to ensure that academic language was tailored to practitioner audiences. Dissemination needed to include the publications that practitioners actually read, for example, publications like Scottish Legal News.

Participants discussed the current state of administrative justice and suggested that the field had been put back significantly by the abolition of the Administrative Justice and Tribunals Council (AJTC). Research needed to address the current crisis in administrative justice that had resulted from recent government policy. Participants discussed the role of UKAJI in linking research and practice communities. It could have a particular role in communicating and making research accessible. If this was going to work, it was suggested that the website needed to offer space for conversations and engagement as this would ensure that people continued to use it.

A particular challenge that was noted by workshop participants was the diversity of administrative justice practice. A large range of organisations, with quite different interests and outlooks, were involved in the field. Providing resources and information relevant to all of these was acknowledged to be a very difficult task.

3          The role of UKAJI

Participants discussed the need to ensure that Scottish perspectives were represented within the UKAJI project. Given the increasing divergence between the UK’s constituent nations in terms of public service delivery, there was a need to ensure that this was accounted for in terms of how UKAJI develops. UKAJI was seen as having the ability to direct the research agenda towards issues of particular concern. An example was discussed in relation to legislation dealing with adults with incapacity, with a suggestion that the impact of the legislation and its implementation would benefit from research.

Participants discussed the importance of considering the impact of administrative justice bodies and suggested this could be a theme that UKAJI considered. This linked to broader questions in relation to the way in which first instance decision making could be improved and the quality of legislation and how it was implemented.