Public Administration CommitteeWritten evidence submitted by Centre for Justice (OAJ 11)

Executive Summary

It is essential that society has effective mechanisms for the oversight of government and for providing the citizen with redress when there is administrative injustice. With or without AJTC, it is CfJ’s concern that there is still no adequate forum for securing redress and accountability, and it has set itself the task of researching the issue and providing effective solutions.

Introduction

Proper redress for users of public services and those dealing with government is a matter of intense concern to all those involved with the public sector.

CfJ’s role in the sector has been to focus on a) securing proper redress and access to justice for those who deal with central government, local government and public sector organisations; b) improving dispute resolution and complaint handling within the sector for the benefit of both the organisations involved and those who deal with them; and c) achieving efficiencies and savings to enable the public sector to focus resources on frontline services.

The proposed abolition of the AJTC is a source of some anxiety to all who have an interest in good government, and highlights the question of what mechanisms are available to the individual, the citizen, to challenge the decisions and actions of local and central administration. It is crucial the community has the right mechanisms and that these mechanisms are effective.

Having such mechanisms is fundamental to any free and democratic society. They are essential not only for the individual but for society as a whole. A right is of no value without effective redress. The right can be ignored with impunity and is illusory. Without effective mechanisms to enforce the rights of the citizen, there can be no pretence that we are in any real sense a just society.

What every citizen and society therefore needs is a straightforward, affordable, speedy, independent and effective mechanism or forum which will protect and enforce the rights of the individual.

The existence or right to access such a forum is part of the contract between the state and its members.

It is our concern at CfJ that we lack any adequate forum. This concern needs to be explained before we address the potential roles of AJTC and CfJ in safeguarding redress.

What Mechanisms are Available

The present landscape

Present mechanisms for the protection of rights in the public sector consist of the courts, a variety of tribunals and the various ombudsman services (principally the Local Government Ombudsman (LGO), the Parliamentary and Health Service Ombudsman (PHSLO) and the Housing Ombudsman (HO)). The courts are viewed by many as slow, costly, cumbersome and high risk. It can still take years for a matter to work its way through the courts to final appeal. The stress and cost for the individual can be damaging, if not ruinous, and going to court is beyond the means of all but the wealthy, or those rare few who will in future still qualify for legal aid or be able to persuade a lawyer to take on their case on a conditional fee agreement. Lawyers working in the field acknowledge that litigation or process risk is of the order of 30% making the outcome of court proceedings highly uncertain. Lawyers consistently advise clients not to go to court, if this can be avoided, and the courts themselves are encouraging increasing use of alternative dispute resolution (ADR).

It is CfJ’s central conclusion that it is the adversarial nature of court process that creates the problems of cost, delay, complexity and risk. It is the contest and confrontational approach to dispute resolution that is at the heart of the problem, and it is this which necessitates the employment of expensive teams of lawyers and experts to guide and protect the parties through a complex process, which itself adds to the cost and delay.

The numerous tribunal services, while less formal, are equally adversarial. Through their multiplicity and complexity, they represent an even more impenetrable world for the layman, who can negotiate them usually only with the help of a specialist lawyer.

For those who cannot face or cannot afford the court and tribunal services, there is supposedly a remedy to be had from the ombudsmen. The difficulty here is ombudsman services suffer from a number of limitations. They all have different rules, jurisdictions and procedures. What they do though have in common is that they cannot usually be used until all internal complaints procedures within the organisation complained of have been followed through and concluded, resulting in long delays. These delays can seriously exacerbate the problem and cause further injustice.

As just one example of the many limitations that apply to Ombudsmen schemes, the LGO, the most relevant scheme for most people, is precluded by statute from deciding any issue which could be decided by a court or tribunal. It is therefore not an alternative. This severely restricts the role and relevance of the service. There are a whole range of further limitations.

Ombudsmen schemes are commonly viewed with scepticism. Their effectiveness and the likelihood they will deliver a fair and just result is often doubted. (We are carrying out a survey as to public confidence levels).

The figures unfortunately seem to bear out the concerns expressed. Last year the LGO upheld the highest number of complaints, but this was only 26% of cases raised and the PHSO only upheld 1.6% of those raised. We await figures from the HO. The average compensation awarded to those complaining in the last year was £19.57 (LGO), £7.38 (HO) and £54.95 (PHSO).

For every £1 spent on their investigation service the ombudsmen awarded only 11p (LGO), 1.2 p (HO) and 1.4p (PHSO).1

It is hard to answer critics who question the justification for this level of cost and the huge disproportion between cost and compensation awarded, and those who question the independence and effectiveness of these schemes.

(These figures compare with the compensation ratio for the service CfJ have been trialling where for every £1 spent, the compensation awarded or agreed averages £10.03. What is particularly interesting is that these figures are generally agreed and the “defendant” has in each case expressed itself satisfied with both the service and compensation agreed. This indicates that the service is delivering the right results but very much more cost efficiently. It is evident that government bodies can have a service which awards compensation they are happy to pay, but at a very much lower cost than they are presently paying).

What is indisputable is that if the courts and ombudsmen schemes are the only options available to a member of the public, there cannot be said to be any real or effective way to challenge government or obtain compensation or redress when an individual or SME dealing with the administration is wronged and suffers injustice. (Mediation as part of the court process makes a useful contribution, but is not taken up due to its own perceived shortcomings, which CfJ addresses in its own dispute resolution model on which we comment below).

It is here we believe that CfJ has a significant role to play, and it is reassuring that there is now a workable alternative on offer.

The abolition of the AJTC

It is important, particularly in the light of the concerns we have highlighted, that there is at least some effective scrutiny of the process of challenge. This is where the AJTC has a function and there can be no question that the oversight of government can be undertaken by government itself as the Ministry of Justice propose.

Our own concern is that the retention of ACTC is nowhere near adequate in itself to deal with the lack of proper scrutiny and redress. It can be seen that even with the AJTC proper redress has not been secured.

What is needed

What is unquestionably needed is an affordable, truly independent, quick and straightforward forum for public and government to sort out their issues.

It was to help fill the void that CfJ was established as a not for profit service and an effective alternative to courts, tribunals and ombudsman schemes.

We have concluded that the key to meeting this need is the removal of the adversarial approach from the handling of problems. It is by taking a non-adversarial approach that the cost, stress, delay and hostility are removed from the resolution of disputes and grievances. It is by treating these as problems to be resolved with the positive assistance of a CfJ style service, rather than as battles to be fought between opposing adversaries, that speedy and constructive solutions can be found, for the benefit of both the individual and the government body concerned.

What is needed is a supportive but inquisitorial adjudication model as provided by CfJ. This gives a decision through adjudication when required, but helps the parties to agree a solution through mediation where possible. Importantly, where mediation is unsuccessful, or not attractive to the parties, the CfJ service carries out a thorough investigation of the issues and makes a binding award. It does this without hostility and without the need for complex process, protracted hearings or the need for teams of lawyers to represent the parties. It is a fully non-adversarial model. It has worked well in the initial stages of simulated and actual trials and is being well received.

This paper is not intended to promote or set out the CfJ service and its benefits in detail. What we want to show is that there is a demand for an effective model which can meet the needs of the public and government; and that it is possible to find such a model, one which answers the call for greater accountability and redress set out in the recent Open Public Services White Paper, to which CfJ responded in October, and which saves money for the public sector. CfJ has demonstrated the model and established that this provides the public with redress and the public sector with reduced settlements and substantial savings in costs.

Cost Savings and Efficiencies

On this last point, our research at CfJ has shown that, from full blown disputes, fought through courts and tribunals, down to the low level problems that cause ongoing friction and dissension through endless fruitless meetings, correspondence, telephone calls, and which continue to fester unresolved sometimes for many years, public sector conflicts consume enormous amounts of staff time and public resource.

These disputes draw in councillors, MPs, media and senior staff; often escalating through various levels of complaints procedure to sometimes repeated references to the ombudsmen, and then to the courts. These disputes and grievances, resolved or not, are enormously damaging to relationships, health, morale and reputations, causing loss of productivity, absenteeism and untold further fallout within the organisations concerned not to mention for the complainants and their communities.

It is estimated that anything up to 10% of public resources can be consumed in low to high level conflicts and disputes. This is in addition to the unnecessary legal costs of pursuing and defending claims through the courts. Even in the private sector top executives have been shown by research to spend 20% of their time in dispute resolution and that a dispute of no more than £1million in value will, if contested in court, typically take up over three years in total management time2. The resources diverted from front line services in this way are enormous. This waste is avoidable.

There are clear and substantial efficiencies and savings that can be achieved through proper use of an effective dispute resolution service.

The CfJ approach is designed to provide these efficiencies, and ensure resources and funding are directed where they are needed.

We understand that studies have further shown that with checks and balances through independent scrutiny and through customer/user challenge and feedback, services improve and become more efficient, staff morale and motivation are improved and all parts of the organisation flourish.

It is of interest that the level of settlement can also be reduced using the model we advocate. Where the parties are put into a more constructive and less confrontational environment, they are usually willing to settle on more reasonable terms.

Conclusion

Through this modern and more enlightened approach to dispute resolution the government can not only improve redress and access to justice, but save money and safeguard and improve services. It is a clear win-win situation and one that needs to be pursued urgently in these difficult times.

CfJ are opening up discussions with central government, at present through the Ministry of Justice and Cabinet Office, to explore the benefits of the CfJ approach.

We would expect government to welcome the opportunity offered, though we have had no immediate response to date. We hope in early 2012 to have meetings with ministers to explore and progress the introduction of the service and would welcome the assistance of the Committee to facilitate discussions.

Note

Centre for Justice is a non-governmental organisation set up by leading lawyers to meet the need for the public, business and government to resolve their disputes quickly, reliably and cost efficiently. Working with representatives of the judiciary, government, commerce, industry and the third sector, it has developed an entirely novel approach to dispute resolution, which dramatically reduces the stress, cost and delay involved. It puts the needs and concerns of those in dispute firmly at the centre of the process.

The Centre resolves all disputes referred a very much lower cost and in very much less time than by action through the courts or statutory tribunals.

The Centre’s staff and directors combine experience from commerce, industry, government and the law.

January 2012

1 Figures given in this paper can be substantiated and sourced on request. Sources have not been included due to the shortage of time as CfJ has been asked to make a late submission.

2 See note 1 above on sources.

Prepared 7th March 2012