Robert Thomas, School of Law, University of Manchester
This blog contribution is 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”. The purpose of the paper was to provide a broad overview of current and future developments across tribunals, a core institution of administrative justice.
Tribunals need few introductions: they are independent judicial bodies that (mostly) determine appeals against initial administrative decisions. But, some aspects of tribunals system do deserve highlighting. First, the diversity of the tribunal “system” is well-known, but it is important to underscore this point. There is a world of difference between, on the one hand, the two principal large systems of social security and immigration tribunals and other tribunals were much lower caseloads. Social security and immigration have an established structure with permanent hearing centres and judges. That compares with, for instance, school admission appeals that are heard in school premises and not by legally qualified judges but by appeal panel members.
There is also a world of difference between social security appeals and immigration appeals or parking appeals. Social security appeals are fairly inquisitorial and the whole culture is toward assisting an individual whereas hearings in immigration appeals are more adversarial. By contrast, the Traffic Penalty Tribunal determines appeals through telephone hearings and online.
There some 4,055 tribunal judges in the First-Tier and Upper Tribunal structure (excluding employment tribunals) of which 3,729 are fee paid and 326 are permanent salaried judges. But there are various tribunals that stand outside this formal structure. It is not currently known how many tribunal judges there are in total: there is a lack of system-wide data. But, given this diversity of tribunals, it is often difficult to make valid generalisations about tribunals and how they operate.
There are two other points to be made here. First, while the purpose of tribunals is clear – to adjudicate upon disputes individuals have with administrative bodies – the wider concept of administrative justice, at least as applied to adjudication, is less clear-cut and more ambiguous. We know that tribunals should be fair, independent, and impartial. We also know that they should make accurate, consistent, and good quality decisions. But, they are also under time and resource pressures to decide a high number of appeals. But, they must also be cost-effective, efficient, and produce timely decisions. Tribunals then are often under a variety of different pressures and clearly tensions arise. In some contexts, such as immigration, tribunals work on the basis of a 1:1 ratio – that is, one day hearing appeals, to one day writing up determinations. The number of appeals heard in a day will depend upon the type of appeal, but it is usual for a judge to hear three or so appeals in a day. Trade-offs are inevitable.
Tribunals cannot be considered in isolation from the administrative machinery to which they are attached.
A second point is that tribunals are not usually the starting point for anyone’s encounter with the decision-making process. Tribunals cannot be considered in isolation from the administrative machinery to which they are attached. Instead, tribunals are best understood as comprising one part of the wider decision-making process by which government implements its policy goals. The distinctive function of tribunals is that they provide an institutional process – adjudication – by which individuals can participate in process by which policy is to be implemented. Look at it this way: the task of the Department for Work and Pensions (DWP) – which comprises over 700 Jobcentres staffed with around 80,000 decision-makers – is to administer complex social security rules and policies. Likewise, tribunals also administer the same rules to achieve the same end – to implement the underlying policy goal – but they do so an adjudicative process of hearings and paper decisions.
Tribunals are then attached to specific administrative systems, some of which are relatively small, but some others operate on a mass scale and affect millions of people. However, as we know, there are often concerns about such administrative systems: poor communications between departments and individuals; delays in decision-making; poor quality decisions – in addition to the never-ending policy and legal changes imposed. To give one example, consider the implementation of Personal Independence Payments by the DWP. The Commons Public Accounts Committee found that many disabled people have experienced long and unacceptable delays in having their claims assessed; the process was inaccessible and cumbersome; and the department significantly underestimated the number of face-to-face assessments to be undertaken. This produced an “unacceptable level of service provided has created uncertainty, stress and financial costs for claimants, and put additional financial and other pressures on disability organisations, and on other public services, that support claimants.”
For every one tribunal decision, there are hundreds if not thousands of cases that do not proceed that far. The whole of the administrative justice system rests upon the principle that individuals must actively decide to challenge decisions.
A further point concerning the relationship between tribunals and initial decision-making departments and agencies is that while there are many appeals decided by tribunals, there are many more decisions that never reach a tribunal. For every one tribunal decision, there are hundreds if not thousands of cases that do not proceed that far. The whole of the administrative justice system rests upon the principle that individuals must actively decide to challenge decisions.
But, as we know, many people decide not to challenge decisions, even though they might have good prospects of success. Everyone is entitled to a good quality decision irrespective of whether they challenge a decision and regardless of the level at which the decision is produced – initial decision, internal review, or tribunal. Relying just on tribunals to correct poor decisions can only go a certain distance – and even this limited distance is in the process of being steadily dismantled and eroded. Given the concerns about the quality of initial decision-making, it should be task of academics and others interested in administrative justice to think about how to ensure that all decisions can be of good quality.
The current backdrop in which tribunals operate is clearly influenced by the wider situation concerning public expenditure. Tribunals and the administrative justice system more generally are not immune from cuts in public spending. The issue of legal aid is the most obvious example of this. But there are other ways in which resources affect tribunals. Consider two recent consultations. The first consultation concerns closing some court and tribunal hearing centres. In 2013-14, 170 courts and tribunals—more than a third of the total number—were empty for more than half their available hearing time. The Government’s clear view is that the current court estate is clearly inefficient and underused.
An alternative is greater use of technology to increase access to justice – Online Dispute Resolution (ODR). In the future, we may well see the advent of the e-tribunal. To a degree, this already exists. In 2013/14, the Traffic Penalty Tribunal decided over 50% of its caseload through e-decisions. Expansion of ODR to other tribunals raises important questions. Is ODR the way forward? If so, then how will it work in practice? Which types of cases can be resolved appropriately through ODR? Which types of cases should be excluded? What about vulnerable people? What of those cases in which credibility is at stake and there are high stakes at risk? Will individuals have a choice between ODR and traditional hearings?
The second consultation concerned fees for tribunals. The Government’s proposals is that fees should reflect more of the cost of going to tribunals by reducing taxpayer subsidy for tribunals. The policy is to move towards 25% cost recovery across the following tribunals: immigration; tax; general regulatory chamber; land tribunal. (Social security and mental health would be excluded.) The operating costs of these tribunals was £110 million in 2014/15 and fee income was £8.5 million. The Government’s view is that increased fee income would reduce taxpayer burden. The proposal is to ensure that fees will not undermine access to justice. Therefore, a fee remission scheme would operate. Tribunal judges would have the power to order the respondent department or agency to reimburse the fee to a successful appellant.
Both consultations raise obvious access to justice concerns and it remains to be seen what results from them. While both consultations have been issued by the Ministry of Justice (MoJ), it is a debatable point whether the MoJ has any real political power in this respect. Measures such as these will be driven entirely by the Treasury and the need to reduce costs. It remains to be seen what may arise from the Chancellor’s spending review in November – given that non-protected departments, such as MoJ, have been required to model spending cuts of 25% and 40% respectively.
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 1 shows 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 absence of a time limit within which reconsideration must take place, or of any
commitment to introduce such a limit, could have the effect of delaying indefinitely the exercise of the right of appeal to an independent tribunal. If indefinite delays become widespread, this would have serious practical consequences, not least for those claimants who may not have any other source of income. The effective “de facto” withdrawal of a statutory right of appeal would also have grave and unprecedented implications on constitutional and justice grounds.