Future Directions for Tribunals: the UK Perspective

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Future Directions for Tribunals the UK
Perspective

• Professor Nick Wikeley
• School of Law
• University of Southampton

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A personal pen picture

• ACADEMIC EXPERIENCE
• Judging Social Security (OUP, 1992)
• Child Support in Action (Hart, 1998)
• JUDICIAL EXPERIENCE
• Deputy District Chairman
• Deputy Social Security Commissioner

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Themes for this session

• Impact of appeals on front line agencies
• Are tribunals different?
• The link with the courts

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The tribunals pyramid
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The tribunals ziggurat
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The tribunals iceberg
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The tribunals landscape?
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Getting it in perspective

• From the point of view of the citizen who is
  aggrieved by a decision of a public authority,
  the administrative processing of his complaint
  may be as important as any actual hearing before
  a quasi-judicial body.
• R J Coleman, Supplementary benefits and the
  administrative review of administrative action
  (CPAG, 1971)

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Improving decision-making

• We see the new organisation as having a key
  role in stimulating improvements in
  decision-making Right First Time means a
  better result for the individual, less work for
  appeal mechanisms and lower cost for
  departments.
• Leggatt Review para 6.32

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The reality of the local office

• Good quality adjudication requires that all
  the evidence be collected and considered
  carefully, the facts established in an objective
  and impartial fashion, and the relevant law
  identified and applied correctly. In short, it
  requires time, and time is something that is in
  short supply in local offices.
• Wikeley Young 1992 Public Law 238 at 248

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What does research tell us?

• Impact of appeals systems is affected by
• volume of cases appealed
• spread of cases appealed
• types of feedback involved
• countervailing factors

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The tribunal effect

• What really made me diligent of course was
  getting it in the neck from tribunals. The
  chickens really come home to roost then Its not
  really internal monitoring that makes you careful
  so much as tribunals. If the chairman says, You
  dont seem to know the law here, it only needs
  to happen once.

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Feedback and SSATs (1992)

• Role of presenting officer
• Full written decisions
• Chief Adjudication Officers annual reports

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Feedback and ATs (2005)

• Secretary of States report on own
  decision-making standards
• Presidents report on standards of
  decision-making by the Secretary of State
• Standards Committee reports
• the system currently lacks integration
• NIAO, Decision-making and DLA (June 2005) para
  4.20

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DWP DMA Process Consultation

• Feedback mechanisms to Decision-Makers from
  tribunal hearings are not robust. One-third of
  Decision-Makers said they never received
  feedback, and whilst many who did would use it to
  inform/change practice, it is not being used to
  maximum effect.
• DWP Decision-Making Standards Committee
• Summary Report, para 2.4 (2005)

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Competing values

• Mashaws work identified 3 models of
  administrative justice
• Bureaucratic rationality
• Professional treatment
• Moral judgment
• J Mashaw Bureaucratic Justice (1983)

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Bureaucratic rationality

• core values accuracy and efficiency
• primary goal programme implementation
• structure hierarchical
• approach information processing

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Moral legal judgment

• core value fairness justice
• primary goal dispute resolution
• structure independent
• approach contextual interpretation

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Are tribunals different?

• Tribunals as informal courts
• The inquisitorial approach
• The enabling role for tribunals
• Constraints on inquisitorialism

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Inquisitorialism

• to carry out a complete reconsideration and
  redetermination of the facts and merits of the
  decision under appeal, the purpose being to
  ascertain and determine the true amount of social
  security benefit to which the claimant was
  properly entitled.
• Tribunal of Commissioners R(IS) 17/04

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The enabling philosophy

• Keeping its independent judicial role in mind,
  the tribunal must seek clarification and if
  necessary the elaboration of all relevant
  facts... the tribunal must create the atmosphere
  in which such an enquiry might effectively take
  place.

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The enabling philosophy

• The underlying principle is that the tribunal
  should in all things conduct itself so as to
  enable the appellant to maximise his performance
  and himself to feel that he has done so.
• HH Judge John Byrt QC

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Tribunals for diverse users

• There are limits to the enabling role there
  are some differences between users that are so
  significant that a tribunal cannot realistically
  be expected to compensate entirely and where an
  advocate is not merely helpful, but necessary, to
  the requirements of procedural justice.

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UK tribunals and courts

• Tribunal judicial career paths
• The relationship between the Upper Tier and the
  Court of Appeal

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Cooke v Secretary of State for Social Security

• It is also important that such appeal
  structures have a link to the ordinary court
  system, to maintain both their independence of
  government and the sponsoring department and
  their fidelity to the relevant general principles
  of law. But the ordinary courts should approach
  such cases with an appropriate degree of
  caution.

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Cooke v Secretary of State for Social Security

• It is quite probable that on a technical issue
  of understanding and applying the complex
  legislation the Social Security Commissioner will
  have got it right. The Commissioners will know
  how that particular issue fits into the broader
  picture of social security principles as a whole.
  They will be less likely to introduce distortion
  into those principles.

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Cooke v Secretary of State for Social Security

• They may be better placed, where it is
  appropriate, to apply those principles in a
  purposive construction of the legislation in
  question. They will also know the realities of
  tribunal life. All of this should be taken into
  account by an appellate court when considering
  whether an appeal will have a real prospect of
  success.

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Leggatt Report and Independence

• Responsibility for tribunals and their
  administration should not lie with those whose
  policies or decisions it is the tribunals duty
  to consider. Otherwise, for users, as has been
  said, Every appeal is an away game.

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A post-Leggatt world?