By Robert Thomas
The Ministry of Justice recently released the tribunal statistics for April-June 2016. This note highlights some of the principal points of interest from the statistics.
There are two points to highlight from the statistics on social security appeals. First, there is the high success rates of appeals concerning two of the main benefits. Some 60% of Employment & Support Allowance appeals were allowed in April-June 2016. The figure for Personal Independence Payment appeals was 65%. These are the highest ever appeal success rates for these two benefits.
This must be connected to the introduction of Mandatory Reconsideration and the associated decrease in the overall number of appeals being lodged. With fewer cases going to appeal, it is likely that weaker cases have been filtered out – and/or some claimants with strong cases have been put off from pursuing their case. The result is that social security tribunals have been allowing a higher proportion of appeals. This point does highlight the need for the Department for Work and Pensions to consider more closely the reasons why such a high proportion of appeals are being allowed and to then feed this back into the initial decision-making process.
Improving the timeliness of appeals by two weeks is an important achievement.
The second point to highlight is the timeliness of social security appeals. Timeliness is measured from receipt by the tribunal to the time that a final decision is made. Of those cases disposed by social security tribunals in April to June 2016, the mean age of a case at disposal was 17 weeks, two weeks less than the same period in 2015. In other words, the average timeliness of cases has improved overall by two weeks. By itself, two weeks may not seem like much, but it must be put in the context of some 150,000 appeals per year. In reality, improving the timeliness of appeals by two weeks is an important achievement and will benefit both claimants and the department.
Overall, there has been a longer-term substantial decline in the volume of social security appeals determined from 550,000 appeals in 2013/14 to around 150,000 appeals per year. It is easy to see the financial attractions of the reduced caseload. The average estimated unit cost for disposing of a social security and child support appeal is £592. By contrast, the average cost of a Mandatory Reconsideration is £80. At the same time, the figures raise questions about the quality of decision-making. In this respect see the recent report of the Social Security Advisory Committee on Mandatory Reconsideration.
The Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) now handles most immigration judicial reviews. In April-June 2016, the Tribunal received 3,704 judicial review claims – roughly double the number of non-immigration claims received by the Administrative Court per year. In April-June 2016, the Tribunal disposed of 3,605 judicial review claims.
A recent paper examined the statistics on immigration judicial reviews and found that the proportion of claims certified as Totally Without Merit (TWM) by the UTIAC had increased. What do the most recent statistics tell us?
Interestingly, the latest statistics show a dramatic decrease in the number of immigration judicial review claims deemed TWM by the UTIAC. The proportion has fallen from 47% to 26%. In other words, the proportion of claims certified as TWM has more than halved. At the same time, the proportion of immigration judicial review claims refused permission on the papers has remained the same at 94%. It seems likely that the reduction in the proportion claims deemed TWM reflects a change of approach by the UTIAC.
The proportion of claims certified as Totally Without Merit (TWM) has more than halved.
As regards statutory appeals, the latest figures show that 47% of first-tier asylum appeals were allowed in April to June 2016. In other words, 1 in 2 asylum appeals were allowed. Previously, the success rate has hovered around 30%. This, I think, is the highest ever proportion of asylum appeals allowed. (For a detailed empirical analysis of asylum appeals, see Thomas, Administrative Justice and Asylum Appeals (2011)). Overall 42% of immigration appeals were allowed.
The restriction on appeals introduced by the Immigration 2014 has now started to bite. The number of immigration appeals under the old regime has dropped significantly. In April-June 2015, there were 11,446 receipts of managed migration appeals. In April-June 2016, the figure was 562 appeals. That is a 95% decrease in the volume of appeal receipts for managed migration appeals. Entry Clearance appeals have decreased from 3,215 by 98% to 51 and Family Visit Visa appeals have reduced from 967 to 1 appeal.
Again, it is easy to see the financial attractions of this. The unit cost for the average first-tier immigration appeal is £707. It also means that the Home Office has fewer of its decisions overturned. The issues of the quality of decision-making therefore arises. Furthermore, appeals have been replaced by the Home Office’s new administrative review process, on which see the critical report of the Chief Inspector for Borders and Immigration.
The unit cost for the average first-tier immigration appeal is £707.
There has, though, been an increase in the number of first-tier human rights appeal received. In April-June 2016, there were 7,335 human rights appeals received. There is, however, a curious feature of these new human rights appeals. Of the 2,270 appeals disposed of in April-June 2016, only 36% of appeals were determined. In other words, of the appeals lodged, just over a third of them resulted in a substantive appeal decision. The rest of the appeals were not substantively determined on their merits. Some 33% of appeals were withdrawn; 9% were struck out; and 21% were invalid/out of time.
The proportion of human rights appeals actually determined is much lower than that of other types of immigration appeals. Nonetheless, if having only 36% of first-tier human rights appeals lodged being determined seems low, the statistics show that this is actually the highest proportion of human rights appeals determined so far. In the second quarter of 2015/16, only 7% of human rights appeals were determined. I do not know the reasons for this and would welcome any comments from readers.
As regards timeliness, the mean age of a case at disposal was 44 weeks in April to June 2016 – 14 weeks longer than the same period last year. In other words, the average length of time taken to dispose of immigration appeals has significantly increased. The Ministry of Justice states, ‘The increase in average time taken for cases to be cleared is due to an increased proportion of more complex cases which require more court time. This also impacts the number of disposals over the reporting period and in turn, is reflected in the number of cases outstanding.’
This note has highlighted the trends in social security and immigration. That is because there is more data collected on these two tribunals than other tribunals. For instance, how many tax, criminal injuries compensation or mental health cases are allowed? There is no published data. Better statistics on the judicial system are required and would be appreciated.
About the author:
Robert Thomas is Professor of Law, School of Law, University of Manchester.