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Initial decision-making, Internal review, Ombuds and reviewers, System design, Tribunals

Administrative justice – A primer for policymakers and those working in the system

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By Joe Tomlinson and Robert Thomas

This is a short primer targeted at those working within administrative justice. It provides an accessible overview of the key models of administrative justice in the academic literature.

What is administrative justice?

This is no single answer to this question. On the contrary, there is an ongoing discussion about administrative justice and how to get a handle on this large topic.

But, as an initial start, administrative justice can be seen a network of many different working systems, such as tribunals, ombuds, complaint-handlers and the courts. The idea of accountability for governmental action is at the heart of administrative justice. Individuals or groups that are affected by a particular decision ought to be able to call the appropriate decision-maker to account for the decision they have made. Administrative justice concerns the extent to which people may do this, the fairness with which individuals are treated, and the ability to seek effective redress where appropriate.

Administrative justice can also be understood as a set of principles and values that inform the operation of such systems. Such principles often include – but are by no means limited to – the following: fairness; participation; accessibility; accuracy; proportionality; transparency; finality; consistency; efficiency; effectiveness; and value for money.

Laying down a list of principles is the easy part. In practice, difficulties arise for at least two reasons. First, it is often difficult to know objectively whether some of these principles are fulfilled. For instance, there is no real way of knowing whether or not a decision-maker – whether in government or a tribunal – has made a correct decision, especially when the decision is fundamentally about factual rather than legal issues. By contrast, it is usually possible to find objective data on cost and timeliness. Second, these principles are often in tension with each other. The fundamental challenge of administrative justice can be reduced to the tensions between fairness and accuracy on the one hand and cost and efficiency on the other hand. Inevitably, there are often difficult and unattractive questions concerning how much money should be spent on making certain decisions.

Another issue of debate has been whether the notion of administrative justice should solely encompass external redress mechanisms (tribunals, ombuds, the courts, other complaint handlers) or whether it should also include those who bodies and agencies that make initial decisions. From one perspective, external redress mechanisms are often imbued with a different culture from initial governmental and other decision-making agencies. And while there are considerable differences between tribunals, ombuds and the courts, such external redress bodies share a concern with ensuring fairness for individuals and providing a remedy.

However, from a different perspective, initial decision-makers are just as much part of the administrative justice system as tribunals and ombuds. All decision-making – whether it is undertaken by government departments such as the DWP and HMRC, local authorities and various other bodies – starts at this level and most of it ends there too. Focusing solely on external redress is then likely to miss out much of the action.

Modeling administrative justice: Mashaw’s Bureaucratic Justice

The academic and theoretical literature on administrative justice is steadily growing but it can be difficult to access. This primer introduces some of the key areas of debate concerning administrative justice within the academic literature.

One way of thinking about administrative justice is in terms of institutions (eg government, tribunals, ombuds etc). Another way is to think about administrative justice at a higher level of abstraction. This can be done by identifying underlying models of administrative justice and the principles and values that influence them.

In terms of the academic literature, one starting point for theorising about administrative justice is the work of US law scholar Jerry Mashaw, especially his book Bureaucratic Justice (1983). In a study of the US social security disability benefits systems, Mashaw identified three different models of administrative justice. The three models are: (1) the ‘bureaucratic rationality’ model; (2) the ‘professional treatment’ model; and (3) the ‘moral judgment’ model. The main features of these models are set out in Figure 1, each having different legitimating values, primary goals, organisational structures and cognitive techniques. Each model represents a different normative model as to how administrative justice ought to be organised.

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The bureaucratic rationality model focuses upon the efficient and effective administration of policy. Decision-making on this model involves collecting and processing information and is legitimated by its pursuit of implementing, precisely, established social objects in a resource-sensitive manner. This model is very familiar. It is straightforward governmental administration. Caseworkers apply the rules and make decisions. This model can be seen reflected in many systems (eg HMRC, DWP and the Home Office).

Some might think that bureaucratic rationality could never be considered to be a type of administrative justice. However, there are two responses here. First, all decision-making starts at the administrative level. Only a relatively small proportion of cases proceed to external redress. Second, scepticism toward viewing bureaucratic rationality as a model of administrative justice itself tends to reflect a different set of underlying principles and values. This takes us onto the next model.

The moral or legal judgment model focuses upon adjudication rather than administration. Under this model, an individual is asserting her legal rights. Administrative justice is not concerned with implementing policy, but with legality and dispute-resolution. The ideal type of dispute resolution is to have an independent judge hearing a case through fair procedures. This model is reflected in the work of courts and tribunals.

These two models reflect the traditional difference between administrative and judicial approaches. But there is a third model of administrative justice. The aim of the professional treatment model of administrative justice is for a professional (e.g. a doctor, social worker or other professional expert) to serve their client. As Mashaw puts it, in the professional treatment model ‘the incompleteness of facts, the singularity of individual context, and the ultimately intuitive nature of judgment are recognized, if not exalted’. On this model, other relevant considerations—e.g. efficiency, procedures etc.—would ‘all be subordinated to the norms of the professional culture’. This is perhaps the weakest of the three models, but it can be seen reflected in the use of experts giving evidence to courts and tribunals (for instance, medical and other experts). It can also be seen reflected in the member of certain tribunals (e.g. some social security tribunal panels) which incorporate expert non-legal members.

The value of models of administrative justice

This type of analysis is valuable for the following reasons. First, each model corresponds with the practical operation of particular administrative justice institutions. The different models help us understand and explain why particular institutions – government bodies and tribunals, for instance – operate in the way they do. Further, this type of approach is a pluralistic one. There are different normative ideas of how administrative justice ought to be organised and how it ought to operate. Some people will be attracted to one model. Other people will be attracted to a different model.

Second, this analysis also helps us to understand the tensions that arise in administrative justice. Each these models is coherent, plausible and attractive. They are not necessarily mutually exclusive. Different models can and do coexist with each other. However, the models are highly competitive. Generally speaking, the greater the emphasis upon one model, then the less there will be on another. Third, this approach illuminates the inevitable trade-offs between different ways of organising administrative justice. The models also provide a framework for understanding and discussing whether particular trade-offs may be more or less desirable than others.

Developing Mashaw’s models of administrative justice: Adler’s Six Models

Mashaw’s work has been applied and developed in subsequent studies of administrative justice – most notably by UK scholar Michael Adler. Adler, whose own work has not been without criticism, has suggested various alterations and extensions to Mashaw’s models of administrative justice. Adler renames the ‘moral judgment model’ as the ‘legal’ model – suggesting that ‘legality’, and not ‘fairness’, is a better understanding of its legitimating value. Adler also argues that the models of administrative justice can be applied to competing policies as well as competing systems of administration. The most important development of Mashaw’s work by Adler was the addition of three further models: (a) the ‘managerial’ model; (b) the ‘consumerist’ model; and (c) the ‘market’ model.

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Adler’s rework of Mashaw’s models reflected the creation of New Public Management. The managerial model refers to the use of features such as audits and performance targets. This model only indirectly considers individual system users and focuses, instead, on the general management of administration.

The consumerist model also reflects the administrative reforms that took place in the last quarter of the 20th century. This model puts the individual system user at the centre: the individual citizen’s needs are seen as paramount, with the overriding aims being service experience and eliminating dissatisfaction. This model thus perceives complaints as a vital tool in the development of organisational performance. The consumerist model is often understood as being ‘bottom-up’ administrative justice, whereas the managerial model is understood as being ‘top-down’.

The market model refers to a system driven by competition. It is the free choice of the citizen-user, who is seen as being able to make a rational choice between competing options, which regulates the system. The value of this model is, ultimately, economic efficiency. Under this model, administration is seen as accountable to the free market, as the citizen may always choose an alternative.

There is debate over the labels used, but the basic point is that government has increasingly involved private-sector companies in administrative decision-making – for instance, the use of contracted-out health and disability assessments in social security and the contracting out of tax credit compliance checks. Such developments raise issues concerning contractors’ performance. This also raises administrative justice issues. All of the established models of administrative justice operate on the basis that the decision-makers – officials, judges and professionals – do not have a personal interest in the outcome of their decisions. However, contracting out functions to companies remunerated on the basis of payment by results creates the potential for the perception that profit may become a motivating factor. This can create a new tension within administrative justice.

Examples of theory in context: administrative justice in the UK, models and trade-offs

It is useful to see consider how these models work out in practice in the current UK administrative justice landscape, and some of the trade-offs involved.

Figure 3 provides an overview of different administrative justice mechanisms. It sets out the legal basis, institutional character, function, procedure, technique and remedies associated with each mechanism. A summary of some of the relevant trade-offs involved – which can be related to the models outlined above – is also included.

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Different approaches to administrative review

There are different approaches to administrative review across government. There is no single coherent system of administrative review. ‘Administrative review’ is an umbrella term for a variety of different processes – e.g. mandatory reconsideration (operating in the social security context) and the various review systems in areas such as immigration, tax, Freedom of Information, homelessness and criminal injuries compensation. However, administrative review now handles more cases than tribunals and other forms of redress.

Examining the differences between three administrative review systems – those in tax, social security and immigration – highlights divergent approaches to similar issues. These differences are set out in Figure 4. The different approaches show how different models can be deployed and how different trade-offs can be made.

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There have been two recent and important reports published on administrative review systems for social security and immigration:

Social Security Advisory Committee, Occasional Paper 18: Decision making and mandatory reconsideration (2016)

Independent Chief Inspector of Borders and Immigration, An inspection of the Administrative Review processes introduced following the 2014 Immigration Act (2016)

Initial decision-making and feedback

Another issue to draw attention to concerns the need to focus upon the quality of initial decision-making and feedback to primary decision-makers from external forms of redress (tribunals, ombuds etc). There are various arguments for focusing upon getting decisions right first time: efficiency, cost, better outcomes for affected individuals and less stress and anxiety. The main challenge here is how to measure and ensure the quality of initial decision-making.

Further reading

There is a fair amount of academic work – both practical and theoretical – on administrative justice. Only a few publications are highlighted here.

Adler, M., “A Socio-Legal Approach to Administrative Justice” (2003) 25 Law & Policy 323

Adler, M., (ed), Administrative Justice in Context (Hart Publishing 2010)

Bondy, V., and Le Sueur, A., Designing redress: a study about grievances against public bodies (Public Law Project, 2012)

Mashaw, J., Bureaucratic Justice: Managing Social Security Disability Claims (Yale University Press, 1983)

Thomas, R., “Administrative Justice, Better Decisions, and Organisational Learning” [2015] Public Law 111

About the authors

 

Joe Tomlinson is Lecturer in Public Law, University of Sheffield, and Robert Thomas is Professor of Public Law, University of Manchester.

 

Discussion

2 thoughts on “Administrative justice – A primer for policymakers and those working in the system

  1. A very useful and thoughtful overview from an academic perspective. The assertion that one model may compete with and even subordinate others is a particularly important insight. Administrative justice before the ‘reform’ of the courts and tribunal system might reasonably have been characterised as trying to operate Janus – like between good administration at provider level and fair adjudication by tribunals but remaining culturally focused on users. The ‘judicialisation’ of tribunal justice by its absorption into the courts service was in my view a retrograde step. Chairs who become judges are not unreasonably, from their own perspective, tempted to behave like judges. That seems to me potentially to create an environment more likely to discourage citizen access to redress and less likely to encourage system learning, which before then was being promoted by the AJTC. Much more could be said about this issue but the essential thing to remember is that tribunals are mostly about citizen entitlement to state-provided services, in circumstances where the parties are in no sense equal and where citizens are very often in a relationship of dependency on the state or one of its manifestations.

    A better way of conceptualising administrative justice might be to describe it as a system which begins with an administrative decision about access to a service, cycles through internal reconsideration, a variety of models for redress (mediation, conciliation, complaint handling etc) and ends with adjudication in a variety of forms but in which there is also a virtuous circle of learning and therefore service improvement. That puts the emphasis squarely on a consumerist approach i.e. one which puts citizens and their needs at the centre. It also helps to emphasise the importance of adjudicators having some obligation to feed learning back into the system.

    And one unrelated point; the principles established within the field of administrative justice are easily portable to non-state relationships. The distinction between state / citizen redress and between an individual consumer and say a large insurance company, or multinational is a superficial one, especially if one adopts an unashamedly consumerist approach as I do. A consumer buys a service. A citizen pays for it through taxes. A consumer is typically small and the provider is not. Failures in service provision occur for remarkably similar reasons in both sectors, although I would suggest that the commercial sector has better incentives to want to understand and correct service failure. Both sectors use complaint handlers and ombudsmen operating along similar lines and so on. Many state services are today and increasingly provided via commercial entities and arms length bodies trying, not always successfully, to present themselves as clones of the state but where there is great potential for organisational motivations and values to conflict at the expense of citizens.

    Thinking in this way challenges an approach which might segregate what the state does for its citizens and the private sector provides for consumers. It seeks to put users more firmly at the centre both of services and redress and has better potential to encourage learning and reduce the cost of repeat service failure. The search for a rational framework within which to describe administrative justice should not operate to lose sight of the goal of any service provider, ultimately in its own interest, namely to put the citizen or the consumer first.

    Posted by Bernard Quoroll (Former AJTC member) | September 9, 2016, 10:59 pm

Trackbacks/Pingbacks

  1. Pingback: Joe Tomlinson: The Gap between Promise and Performance – Strong, Weak, Modest and Sham Systems of Administrative Justice | Administrative Law in the Common Law World - July 3, 2017

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