Public Administration CommitteeWritten evidence submitted by the Administrative Justice and Tribunals Council (OAJ 01)

1. The Committee’s inquiry into the government’s plans for future oversight of the administrative justice system takes place against the background of the government’s announcement that it plans to abolish the Administrative Justice and Tribunals Council (AJTC). The AJTC submits this evidence to assist the inquiry. The Chairman and Chief Executive will be happy to elaborate on any aspect at the oral evidence session scheduled for 22 November 2011.

The Administrative Justice System

2. The administrative justice system, as defined by the Tribunals, Courts and Enforcement Act 2007, is crucial to how the state treats its citizens, especially where there have been mistakes, misunderstandings or unacceptable standards of service. This includes decisions made by central and local public bodies about individuals, plus the arrangements available for questioning, challenging and/or seeking to change the decision of a public body. Such arrangements include:

complaint schemes;

ombudsmen;

tribunals – both within and outside the unified tribunals structure administrated by HMCTS; and

the administrative court.

3. As part of its early work, the AJTC produced this model to illustrate the links between the various elements and stages of the administrative justice system:

4. The range of subject matter encompassed by administrative justice includes social security and child support, war pensions, immigration and asylum, mental health, tax, criminal injuries, special educational needs and disability, school admissions and exclusions, care standards and parking. For the vast majority of citizens, this is their principal engagement with government and democratic processes and the issues are of great (often life-changing) importance to their family welfare, their livelihoods and sometimes even their liberty. It is surprising that the system does not receive the same recognition or priority as other aspects of public policy or justice, and often appears to suffer from a lack of understanding and strategic direction. Despite much rhetoric about the need to improve public services, to focus more on users, to concentrate on fairness and to uphold the rule of law, administrative justice continues to have “Cinderella” status.

5. The scale of the system makes its low priority even more surprising. There were around 650,000 formal tribunal appeal hearings in 2010, compared to 223,000 criminal justice hearings and 63,000 civil justice hearings (excluding family hearings). In addition, the Parliamentary and Health Service Ombudsman received 23,422 complaints in 2009-10 (although not all of these proceeded to an investigation) and the Local Government Ombudsman received 21,840 complaints during the same period. But these appeals and complaints represent only the tip of the iceberg that is the administrative justice system. Government departments and agencies make tens of millions of decisions affecting citizens every year. The costs associated with original decision-making processes within government cannot be readily quantified as the data is not available. The cost of the tribunals administered by the Ministry of Justice (MoJ) in 2010-11 was £336 million.

6. The concept of an administrative justice “system” is taking time to be universally recognised. It implies a strategic, cross-cutting view of decision-making and redress mechanisms across government, making it is possible for general principles to be stated, good practice to be shared, and comparisons to be drawn between alternative approaches. The concept challenges the historical silo-based approach that often appears to define the public sector in the UK. Tribunals have little control over the demand which flows to them from departments and agencies. The latter have few financial or other incentives to learn from complaint or appeal outcomes or to reduce demand by doing more to get it “right first time”. At the policy level, the Cabinet Office has the lead on ombudsman policy, while the MoJ has responsibility for most (but not all) tribunals. The MoJ also has nominal responsibility for the administrative justice system as a whole, but has little influence over the rest of central government and no influence over local or devolved governments. In practice, collaboration between decision-making departments and the MoJ, to understand and improve the end-to-end experience of the citizen when disputes occur, is in its infancy. And there is a complex mix of devolved and non-devolved tribunals in Scotland and Wales, with confused responsibilities, a lack of clarity about strategic direction and no-one (apart from AJTC) with UK oversight of the system as a whole.

Administrative Justice at Risk?

7. Despite the challenges, the AJTC considers that the administrative justice system has made laudable progress in recent years. This is largely attributable to the reforms which followed the Leggatt Report of 2001, in particular in the area of tribunal reform. However, there remains a long way to go before the system can be said to meet the needs of individuals and the public purse.

8. The AJTC recognises that the UK currently faces a period of austerity and that the government is reducing public spending in real terms. This makes it especially important to save money by reducing the need for costly appeals and complaints. It is equally important that decisions taken to achieve cost savings in the area of administrative justice actually achieve this goal, while avoiding unintended and deleterious effects on individual rights and legitimate expectations. For example, cuts in legal aid and the provision of advice services are likely to reduce access to justice for individuals, result in fewer unmeritorious cases being weeded out and prolong cases which do proceed. Unresolved disputes may also generate greater costs both for individuals and families and ultimately for government and the taxpayer. This is especially important in times of economic and social uncertainty when it is vital to have acceptable arrangements for the redress of grievances.

9. The AJTC’s most recent report, Securing Fairness and Redress: Administrative Justice at Risk? (Annex A) highlights both the current problems and ongoing risks, explaining the need for longer-term reform. The report challenges the government and Parliament to recognise the scale of poor decision-making, and therefore unnecessary cost, generated as a consequence of complex and poorly drafted laws in some areas of administrative justice. It explores the effects of recurrent poor decision-making and highlights the importance of access to advice and guidance in seeking redress against an administrative decision. It concludes with a series of suggestions for wider strategic reform.

“Accessible, Fair and Efficient” – The Focus of the AJTC

10. The AJTC was created under the Tribunals, Courts and Enforcement Act 2007 as the successor body to the Council on Tribunals. Schedule 7 of the Act charges the AJTC with “keeping the overall system under review” and gives it responsibility for considering ways to make the system more accessible, fair and efficient. The focus is very much on individuals as users of public services and redress mechanisms.

11. The creation of the AJTC formed part of the same package of reforms that saw the introduction of a unified structure for central government tribunals and the creation of the Tribunals Service as a distinct executive agency to administer them. The Tribunals Service has subsequently been subsumed into HM Courts and Tribunals Service. It was recognised that over time these new structures would make a number of the functions of the Council of Tribunals, which had overseen tribunals for 50 years, redundant. However, the creation of an AJTC with a much wider remit, working alongside the new structures, was seen as a key part of the new arrangements.

12. The AJTC comprises 10-15 members, selected for their expertise from across the administrative justice system. The Parliamentary and Health Services Ombudsman is an ex officio member. The AJTC also has statutory Scottish and Welsh Committees. The Scottish Committee is made up of three to four members, and the Welsh Committee of two to three members. These Committees meet separately, and are represented at AJTC meetings by their respective Chairs. The annual running cost of the AJTC and its Committees is approximately £1 million. The Annual Report for 2010-11 is due to be published on 14 November (see Annex B).

Work of the AJTC

13. The AJTC played a significant part in the recent reform and transformation of the tribunals system. Its contribution included participation by its former Chairman, Lord Newton of Braintree, in key committees devising and implementing reforms; hosting a series of conferences and consultative events for the administrative justice sector in support of the reform process; and through its Guide to Drafting Tribunal Rules and participation in the Tribunal Procedure Committee, playing a significant role in work to simplify and streamline tribunal procedural rules. AJTC members have a statutory right to attend tribunal hearings and are assiduous in feeding their observations back into the system.

14. The AJTC has subsequently focused on its wider remit. In addition to its most recent report “Securing Fairness and Redress: Administrative Justice at Risk?”, AJTC publications have included:

The Developing Administrative Justice Landscape, September 2009 (Annex C)
A preliminary examination of the constituent elements of the administrative justice system, exploring the links between these elements;

Principles for Administrative Justice, November 2010 (Annex D)
A set of seven Principles intended provide a coherent framework for both decision-makers and redress bodies, and to demonstrate the standards which the AJTC uses to evaluate the system and its component parts;

Time for Action, February 2011 (Annex E)
An investigation into the length of time it takes the Department for Work and Pensions’ agencies to reach a final decision on benefit claims, calling for the introduction of a 42 day time limit for decision-makers to respond to appeals in order to achieve greater fairness between the parties to an appeal;

Patients’ Experiences of the First-tier Tribunal (Mental Health), May 2011 (Annex F)
A joint report undertaken with the Care Quality Commission, looking (for the first time ever) at the actual experiences of patients who applied to and appeared before the Mental Health Tribunal;

Right First Time, June 2011(Annex G)
An assessment of the quality of decision-making by public bodies, highlighting the low level of engagement in appeals and lack of feedback or learning. Drawing on examples of good practice, the report suggests practical steps to be taken by public bodies and calls for concerted action across central and local government. It also highlights the lack of data about the costs of poor-decision making, the need for new funding models and the potential savings of a “right first time” approach.

15. The AJTC has also engaged with the government on significant proposals that have an impact on administrative justice. Over the past twelve months, these issues have included:

Legal aid reforms;

Fees for immigration and asylum appeals;

Welfare Reform Bill, and in particular proposals for a new statutory reconsideration process;

Education Bill, and proposals for new Independent Review Panels to hear exclusion appeals;

Special Educational Needs Green Paper.

16. The AJTC also seeks to work with stakeholders in the administrative justice system. As part of this, the AJTC Chairman acts as an independent Chair for the Mental Health Stakeholders Advisory Group and the War Pensions and Armed Forces Compensation Appeals Stakeholder Group.

Proposed Abolition of the AJTC

17. The AJTC is a listed body in Schedule 1 to the Public Bodies Bill, which is expected to receive Royal Assent later this year. The MoJ recently consulted on the proposed abolition and the outcome of this process is anticipated before the end of the year. The government appears to accept that the functions assigned to the AJTC are valuable but argues that these are functions already being performed by MoJ and HM Courts and Tribunals Service, rendering the AJTC unnecessary.

18. In its response to the consultation on abolition, the AJTC (Annex H) has argued that:

despite the importance of administrative justice to citizens and the major challenges it presently faces, the issue is not given any real priority within government, whether in Business Plans or otherwise;

the work of the AJTC is complementary to the governance arrangements in HMCTS and is not a duplication;

independent advice cannot (as claimed) be replicated within a government department, especially when the subject matter concerns disputes between the citizen and government;

inadequate account is taken of the wider UK dimension; and, that the savings from AJTC abolition are overstated.

Four Key Issues for Administrative Justice

19. The AJTC considers that the leading key issue for administrative justice is how to embed a “Right First Time” culture across the public sector. The benefits of learning from mistakes and complaints have long been embraced by most of the private sector, but the culture of the public sector largely remains one of denial and/or defensiveness. The benefits of improved decision-making for users, for taxpayers and for decision-making bodies themselves clearly merit greater attention, especially at a time of financial austerity.

20. At the same time, the AJTC is deeply concerned about the increasing trend towards the introduction of fees for those wishing to appeal against governmental decisions. This is the wrong way to manage demand levels. It is especially ironic that fees are being introduced for individuals while departments generally do not contribute to the cost of tribunals by reference to actual caseload volume or outcomes. If departments had to pay for each mistake they make, that would be the quickest route to “Right First Time”.

21. In view of the likely cuts to legal aid and advisory services, the AJTC also considers it imperative to understand the consequences of reduced advice, guidance and representation on user behaviour and the functioning of tribunals. In particular, it will be important to monitor the number of unrepresented and (increasingly) unadvised people appearing before tribunals, and to assess the impact of this on the fair and efficient delivery of administrative justice. To do justice, and keep costs down, tribunal judiciary and administrators will have to adapt current practices and approaches in order to accommodate the emerging needs and interests of such users.

22. On a number of occasions, the government has made clear its wish to develop new and proportionate dispute resolution models – not necessarily involving a traditional appeal hearing. The AJTC has been at the forefront of those supporting the development of proportionate and appropriate dispute resolution approaches, and is due shortly to publish a report on this subject. It believes that there already exists much good practice that could and should be built upon. In addition, it takes the view that any new approaches should be rigorously piloted and assessed prior to wider introduction.

Conclusion

23. The AJTC is committed to efficient and better decision-making and justice. We do not understand why the government wishes to abolish the AJTC, which at comparatively low cost, can contribute a great deal of expertise and experience while also bringing both government and the justice system closer to the needs of their users. The AJTC hopes that the Committee’s inquiry will shed light on various unanswered questions, such as:

What is the real reason for wishing to abolish the AJTC?

Why does administrative justice have such a low status?

How can MoJ officials provide independent advice?

How will MoJ promote and safeguard the administrative justice system as a whole?

How will the Right First Time agenda be carried forward?

How will the MoJ ensure that the needs of users are properly understood and acted upon?

Annex ASecuring Fairness and Redress: Administrative : Justice at Risk?

http://www.justice.gov.uk/ajtc/docs/AJTC_at_risk_(10.11)_web.pdf

Annex BAJTC Annual Report 2010-2011 :

http://www.justice.gov.uk/ajtc/docs/AJTC-AR-2010-11-WEB-071111.pdf

Annex C:The Developing Administrative Justice Landscape 

http://www.justice.gov.uk/ajtc/docs/landscape_paper.pdf

Annex D:Principles for Administrative Justice 

http://www.justice.gov.uk/ajtc/docs/principles_web.pdf

Annex E:Time for Action 

http://www.justice.gov.uk/ajtc/docs/Time_Limits_final.pdf

Annex F:Patients’ Experiences of the First-tier Tribunal  (Mental Health)

http://www.justice.gov.uk/ajtc/docs/AJTC__CQC_First_tier_Tribunal_report_FINAL.pdf

Annex G:Right First Time 

http://www.justice.gov.uk/ajtc/docs/AJTC_Right_first_time_web(7).pdf

Annex H: AJTC response to Ministry of Justice consultation – “Public Bodies Bill: reforming the public bodies of the MoJ”

http://www.justice.gov.uk/ajtc/docs/AJTC_abolition__response_to_consultation__final_web.pdf

November 2011

Prepared 7th March 2012