Introduction: CAB work with Tribunal Services
The Citizens Advice Bureaux (CAB) network is the largest independent network of free advice centres in Europe, providing advice from over 3,200 outlets throughout Wales, England and Northern Ireland. We provide advice from a range of outlets, including GPs’ surgeries, hospitals, community centres, county courts and magistrates courts, and mobile services both in rural areas and to serve particular dispersed groups. In 2006/7, the CAB service dealt with 5.7 million enquiries on the whole range of issues on which bureaux give advice, including 1.7 million on debt, 1.6 million on benefits, 505,000 on employment issues and 424,000 on housing.
The CAB service has over the years developed expertise in the area of tribunal representation, using experienced and specialist volunteers as well as paid tribunal case-workers. In 2006/7, bureaux dealt with 38,876 enquiries about employment tribunals and 106,005 on social security appeals. In 2005/6, 79 per cent of bureaux provided tribunal representation, and 94 per cent provided pre-tribunal advice. The main tribunals covered are social security, employment and immigration. Citizens Advice nationally supports the work of bureaux as advocates before tribunals through the provision of information systems, training, and second tier consultancy support. We hope we can build a constructive partnership with the new Tribunals Service in seeking to enhance access to representation before tribunals.
Helping our clients gain redress from tribunals is an important part of our work as there is a significant scale of unfair or wrong decisions by public officials. For example, NAO reports have found significant levels of errors in decisions, particularly relating to benefits.1 Around half of benefit appeals are decided in the customer’s favour.2 A similar pattern has been found for social fund reviews. Tribunals are often the only means people have to get a wrong put right, although it is enormously complex and daunting for them to even attempt to get redress for unfair decisions. For many CAB clients who take a case to tribunal, this will be the first time they have come into contact with the judicial system in any shape or form. They are not repeat players and tend to approach the idea of taking a case to tribunal with caution and trepidation. Tribunals form the public’s core experience and perception of the legal process, as people rarely distinguish between criminal, civil and administrative jurisdictions. Apprehension of officialdom and authority is the norm, so it is vital that the tribunal system maintains high standards of user focus and fairness in decision-making. Put simply, the user must come first.
We are therefore pleased to use this opportunity to feedback to the Ministry of Justice just how users do perceive the tribunal system and the quality of decision-making, and how this should bear on the structure of the new Tribunals system. It is essential that we learn from experience to get the system right to deliver real access to justice. The CAB service can talk legitimately about users’ experience as bureaux as we are so involved in helping people with the tribunal system.
General comments – Tribunals reform and the TCE Act
Citizens Advice supports this much needed modernisation process for Tribunals. The administrative law system has developed in an ad-hoc way and too often individual tribunals have lacked the capacity to deal with cases effectively. So these reforms are an important development in ensuring that tribunals have the resources to fulfil their role in delivering justice, not only adhering to the principles of ‘fairness, openness, impartiality,’3 but delivering a process that is actively focussed on redressing unfair decisions. To these ends
- We welcome the structural reforms as a step forwards in the modernisation of tribunals, but are concerned that Sir Andrew Leggat’s key recommendations, and proposals from the White Paper aimed at improving users' experience of the tribunal system remain largely unimplemented.4
- For these reforms to work in the interest of users, it is vitally important that corresponding reforms should be introduced so that tribunals can work on a par with rights exercised by users in other parts of the civil justice system, especially in relation to access to representation.
- Proper feedback mechanisms from tribunals to government departments making the original decisions and policy are needed, and detailed consideration must be given to the development of effective links between the Tribunal Service and departments from which decisions ultimately originate.
The re-organisation of tribunal jurisdictions and management systems is not in itself going to achieve this. And whilst the White Paper focused on many of the right issues, these proposals fail to include any consideration of how the new tribunal jurisdictions will contribute to better first instance decision-making, spread good practice and ensure equality of arms for appellants.
During the passage of the Tribunals, Courts and Enforcement Bill we argued that for both the first tier and upper tribunals, the Access to Justice Act Funding Code should be amended so that representation can be included within the scope of Legal Services Commission contracts. The Ministry of Justice’s own research has found “appellants find it difficult to represent themselves….the process is more complex and legalistic than they imagine.”5 For many of our clients the system is simply too daunting to go it alone. For example:
A West London CAB reported that a single Pakistani woman on income support due to illness needed advice about appealing the recovery of an overpayment of child benefit. The CAB referred the client to a local solicitor’s firm to seek free legal help, as the client would qualify under legal aid scheme. She was advised by the firm that they would not represent her at the tribunal. She felt anxious and unable to attend the tribunal without her solicitor present despite the information given to her about the tribunal process and formalities. The client told the CAB that she was so anxious about the 'tribunal' and that she was 'afraid of the word itself' that she did not want to attend alone at all.
It would be preferable for policy makers to think in terms of how tribunals can encourage appellants to present their cases effectively, and how the experience of users who have suffered from poor quality decision-making can be communicated to first instance decision-makers, so that issues can be redressed collectively as well as individually.
User and customer focus, both key threads of the White Paper, do not have the same prominence in these proposals which focus exclusively on the legal architecture. So as regards the specific re-organisation of tribunal jurisdictions and management systems, whilst the proposals appear coherent, following the legal framework from the Tribunals, Courts and Enforcement Act, we do question whether the grouping of jurisdictions into fewer more logical clusters, should be described as ‘Chambers’ or for that matter whether each Chambers head should be described as ‘President.’ It is precisely this type of remote and misleading terminology that users find intimidating, and that the system needs to move away from.
We now turn to the questions posed in the consultation paper
Responses to Questions
First Tier Tribunal Chambers and Judiciary – Questions 1-3
The government proposes five ‘Chambers’ in the First-tier Tribunal under judicial management whereby judges and members can be assigned to the component jurisdictions of each chamber. The proposed Chambers are:
- Social Entitlement
- General Regulatory
- Health, Education and Social Care
- Taxation
- Land, Property and Housing
We consider that there is some benefit in rationalising the work of several of the existing tribunal functions in this way for a number of reasons.
Firstly sharing services within a Chamber makes better use of resources, including a wider range of tribunal venues through access to different hearing centres. For some of our clients, simply getting to the tribunal can be an issue.
A Dorset CAB reported that a woman had an appeal hearing about her claim for disability living allowance in Bournemouth. As the client had physical and mental health problems (preventing use of public transport) and it would be a 40 mile round trip for her to get to the tribunal, the CAB had to get approval for her using a taxi to get there (costing £59).
We therefore look forward to hearing further details on proposals for a network of ‘multi-jurisdictional Hearing Centres’ throughout the UK to provide a range of services to tribunal users. All hearing venues should be considered as Tribunals Service venues rather than venues specific to individual jurisdictions. The current situation whereby Asylum Support Tribunals are only held in Croydon, is unsatisfactory. Indeed other than the Employment Tribunal Service and the Appeals Service, there are few local networks of permanent tribunal venues, so many hearings can only take place locally on the basis of ad-hoc venue hiring.
We are therefore concerned that in the Ministry of Justice’s new ‘‘Value for Money Delivery Agreement’’ suggests that the Tribunals Service may, by contrast, actually be considering a drastic net reduction in jurisdictional hearing centres in order to deliver efficiency savings.6 This would be a clear case of ‘levelling down’ rather than ‘levelling up’. It has always been the Government’s message that tribunals reform has been about levelling up the standards and services of all tribunals.
A second benefit of the Chambers system is that similar work can be dealt with by judges and members best able to deal with it. With respect of the assignment of judicial expertise, whilst is true that ‘judgecraft’ skills can be transferable from one area of law to another, we do consider it important that expertise is maintained, and that where possible specialisation should be enhanced and developed. It is absolutely essential in the public interest that tribunals not only have a high level of expertise in complex and technical issues, but are also served by Chairs, legal and lay members who can treat applicants’ issues sensititively and empathically, especially where issues of vulnerabilty are concerned. Some cases that CABx see give cause for concerns in this respect.
A CAB in County Durham reported that they had helped their client to request a review of the decision not to award him disability living allowance. This was also turned down so the case went to appeal. The bureau did a submission and provided a great deal of additional medical evidence in support of the client’s claim. When the client attended the hearing, he found that the tribunal had never seen the medical evidence and were frantically reading it when he arrived. His appeal was late being heard and the client complained that tribunal members were continually watching the clock as though trying to catch up on their next appointment.
We hope that the Chambers system will provide for better training of Tribunal members all round. From the proposals it is unclear whether each Chamber should be regarded as a single tribunal, or as a grouping of the currently existing tribunals which will now share common procedures, case management, and overlapping judicial and lay memberships. The proposed ‘ticketing’ system whereby Chamber Presidents will have discretion as to how best to use judges and members within a Chamber to match their experience and expertise to the jurisdictional issues, risks the development of a highly arbitrary and random process for the assignment of personnel with appropriate skills to particular types of cases. Instead, the Tribunals Service may want to consider whether to operate accredited specialist panels for identifying appropriate skills and delivering appropriate training.
It is hard to predict whether the particular combinations that the Chambers system offers will be successful and deliver benefits for users. It will be of particular importance that the new Social Entitlement Chamber has robust administrative support. The Appeals Service, which reviews DWP decisions and is being slowly absorbed into the new Tribunals Service, currently receives by far the largest number of appeals of the largest tribunals administered by central government. This will become larger still with the inclusion of Criminal Injuries Compensation and Asylum Support within the same Chamber. The new jurisdiction will play a major role in both welfare policy and the standard of living of the most excluded citizens. Even small awards of money, refused for example following an application for a higher rate of disability living allowance, can have a huge impact on the quality of life of someone on very low income. CAB evidence consistently points the problems of delays and administrative failings with the administration of appeals. The result of these failures often leaves claimants who otherwise qualify for benefits in a desperate situation for months before their case is heard. Part of the delay is clearly attributable to the DWP’s failure to produce submissions on time, but the Appeals Service could do more to put pressure on them to stick to deadlines:
A Lincolnshire CAB reported that their nearest Appeals Office has backlogs of over 1,000 appeals, all of which require submissions to be prepared, written and submitted. This backlog is having a dramatic impact on clients who are usually living on hardship payments (income support minus 20%) whilst waiting for their appeal about their capacity to work to be determined. Incapacity benefit appeals are taking about six months plus before they are looked at and appeals are returned to the Jobcentre Plus office at to be dealt with again by another decision-maker before it is sent on to the Appeals office and added to their backlog. It can be months before the appeal submission papers are prepared, and then at least another two to three months before a tribunal hearing is set. When a TAS1 is received by the Tribunals Service they have a target of 11 weeks to book the Tribunal Hearing. In the meantime CAB clients are often living on 20% below what the Government sets as a subsistence level of income debt is often a problem but anxiety for mental health clients is immense.
A Devon CAB reported that a 61 year old single man, living alone, with stress and mental health problems, had been on incapacity benefit for 16 years. He had failed his Personal Capability Assessment and had no other income as money in bonds made him ineligible for income support. His incapacity benefit was eventually reinstated by the Tribunal after six months, but he experienced financial hardship from the long delay between refusal of his incapacity benefit and the Tribunal hearing.
A Sussex CAB complained that their client was not been kept informed of his tribunal hearing’s date, time and location. He had waited over ten weeks since the notification letter. The client was concerned that he did not know whether his application was being processed. The onus has been on the client to chase the appeals process.
A new Social Entitlement Chamber will therefore need to deliver a far quicker and improved service. It is essential that this Chamber is not simply a re-badging of the Appeals Service. The DWP must also improve its performance in completing appeals submissions.
If an enhanced Social Entitlement Chamber works effectively, has appropriate support from the Tribunals Service, and can deliver just decision-making that take into accounts applicants’ real needs, it could be used as the basis of a wider jurisdiction dealing with social compensation issues. Elsewhere, Citizens Advice have argued that low value personal injury claims could be transferred to a tribunal jurisdiction as the current court process, cost and administration does not serve claimants well.7 Some jurisdictions have already made this move (for example Ireland), and the Ministry of Justice has been consulting on a new fast track claims process; there is widespread scepticism that the small claims process could deliver a more proportionate process, however an enhanced social entitlement tribunal jurisdiction could potentially provide an alternative. Ultimately, the success of this Chamber will depend on its capacity to deliver improved customer service, whilst maintaining an ability to deal with specialist issues.
Notably, the Employment Tribunal and Immigration Tribunals have not been slotted into the new Chambers system, and will instead remain as stand alone jurisdictions. However, is essential that these key tribunals receive an appropriate share of resources from the Tribunals Service. It is also less clear how the ‘cross-ticketing’ provisions will work for these jurisdictions.
Finally, we have serious reservations about whether claims for possession and disrepair of rented dwellings should be transferred from the county court to the Land, Property and Housing Chamber as proposed the Law Commission.8 Firstly, it seems to us that it is a real possibility that a transfer of jurisdictions could be followed by a reduction in legal aid availability, in the first-tier in particular. Secondly, early feedback from CAB advisers has been very positive about the impact of the rent arrears pre action protocol. They report that the protocol has made a real difference to the extent to which social landlords only use possession action as a last resort, and that it has also made it easier for the courts to take a proportionate and consistent approach to those cases which do come before them. Thirdly, we have concerns over the Law Commission’s proposal that the same tribunal should be empowered to step into the shoes of a local authority and make “first instance” determinations on housing benefit claims, especially when housing benefit appeals will be within the Social Entitlement Chamber’s jurisdiction. We explore these issues further in the last section.
The Upper Tribunal and Appeals – Questions 4-19
We welcome the unified appeals structure as many tribunals - such as the Mental Health Review Tribunal and the Special Educational Needs and Disability Tribunal - which were a last resort and only challengeable through the difficult process of Judicial Review in the High Court, are now to be provided for the first time with an appellate tier tribunal. Concerns were expressed in the original Leggatt Report about constituting appellate tribunals as superior courts of record, as well as reservations about creating a large body of case law by making second tier decisions binding. However, we see real value in enabling the second tier appellate tribunals to set precedents and thus promote consistency and good practice standards within a tribunal jurisdiction. The important principle is that First-tier Tribunals should not be setting laterally binding precedents in other cases before it, but that all decisions of the Upper Tribunal should be creating vertically binding precedents on the First-tier Tribunal.
We also welcome the government’s commitment to ensuring that hearing facilities for appeals are available throughout the UK, organised according to business need and the position of the parties. However, the extent to which processing of Upper Tribunal cases can be decentralised will depend on venue availability, judicial deployment and the establishment of Administrative Support Centres. Again we are concerned about what impact the proposed efficiency savings that the Tribunals Service is expected to deliver might have on these.9
Overall, there needs to be clear channels of communication between the upper and lower tribunals, both and for establishing precedents and best practice, and ensuring that users have access to appeal rights. For example, tribunal chairmen need to be able to produce reasons for their decisions:
A CAB in the East Midlands reported that their client’s incapacity benefit and income support reduced. An appeal went to tribunal in June 2007, and the client won her case. The DWP suspended action on the decision, as they were considering appealing the decision. The DWP requested a statement of reasons when decision announced at the hearing. The statement was not received for a month so the client asked the CAB to help. The DWP chased the Tribunal Service, who had no record of request for statement of reasons, and made the request again. A statement was still not received after a further week passed. The DWP appeals again approached Tribunal Service, but the statement had not yet been received from the chairman of the tribunal. The client was left in a state of uncertainty, on reduced benefit and suffering financial hardship, not knowing whether DWP would appeal. There is a target of three weeks for the production of statements, but no requirement to produce them in this period.
The proposed appeal routes, and grouping into Administrative, Finance/Tax, and Land ‘Chambers’ appears sensible. However, for the two latter divisions the Upper Tribunal in these areas will be hybrid, rather than purely appellate. In some types of cases this could lead to a loss of procedural rights (see our comments on the Land, Property and Housing Tribunal). We also question whether there should be a continued exclusion of appeal rights for Asylum Support and Immigration Services. We propose instead that there should be a direct route of appeal for these to the Administrative Chamber.
Finally, although we agree that the next ‘step-up’ from the appellate tribunaI should be the Court of Appeal, it does seems to us that if tribunals – at either tier – are dealing with administrative justice, then it is not appropriate to oust the supervisory role of the High Court. Judicial review has important functions not available to an ordinary appeal; for example, it can examine the scope of secondary legislation, identify procedural impropriety and can draw attention to ‘unreasonableness’. There may well be a small number of cases where the decision of the first tier tribunal is not amenable to appeal, but they should nonetheless challengeable as unlawful in this broader sense. It is therefore disappointing that the relationship between appeals through the Tribunal system, and judicial review, remains so undefined and could be subject to numerous ‘Practice Direction’ variations.
Procedure and Improving the Service to Tribunal Users – Questions 20-21
The Act empowers the Tribunal Procedure Committee to make rules which allow the functions of the First-tier Tribunal and Upper Tribunal to be carried out by staff, in order to provide for ADR mechanisms and case-management discretion. In our view, the suggestion that Tribunal Service staff should be able to work with delegated judicial powers must be approached with caution, to ensure that they are not expected to carry out tasks that require detailed understanding of the law or involve judicial skills. It is not always clear whether or not a case involves a point of law. Staff members with delegated powers should be closely supervised through face-to-face contact with tribunal judges, and be able to consult with them as necessary and/or refer complex cases to them. Where a function of a tribunal is carried out by staff there should always be right of access to a judge.
Training of tribunals support staff is also an important issue. A user's experience, and indeed confidence in approaching the tribunal, can be significantly affected by the attitude of the staff with whom they come into contact. And we regularly see major administrative errors by tribunal staff, so it is vital that there is judicial oversight over a tribunal staff functions so that errors can be remedied. Our evidence also suggests that there are significant problems of accountability and line management in the Tribunal Service’s staff functions. The results of poor quality administration or service can be devastating. For example:
A CAB in Surrey reported that their client's DLA appeal was adjourned so that a medical report could be obtained. The client had a medical examination and then received a copy of a medical report from the Tribunal Service which turned out to be for another, unconnected, appellant and contained detailed information about the other appellant’s unusual personal circumstances and medical conditions. The client suffered from long-term mental health problems and had had paranoid and delusional thoughts. On reading the report she believed it was describing things that had happened to her. It appears that her own medical report, again containing detailed personal information, was sent to the other appellant. When The Tribunal Service realised the error, they sent the correct report and promised that client would hear further from a line manager, but three weeks later nothing further had been heard.
A CAB in Worcestershire complained that a blind client lost three months’ benefit due to the maladministration of a benefits tribunal. Papers of evidence that were submitted with the application were lost by the tribunal administration.
Support staff and systems also need to take account of the need to process decisions quickly.
A South London CAB reported the experience of a man who was profoundly deaf from birth and had other disabilities including restricted movement of left wrist from an old injury, and a damaged right knee. He also had hepatitis B and C, anaemia and a stomach ulcer. His appeal against the decision not to award him disability living allowance was successful, with the lower rate care component awarded for an indefinite period with immediate effect. However, three weeks later, the client received a letter from the DWP Disability and Carers Service stating that he was due £564.30 benefit arrears - but he had received nothing. When the CAB contacted the DWP Disability and Carers Service on the client's behalf, they said that they had not received a copy of the tribunal decision and were unaware that action was needed.
Costs – Question 22
As regards cost regimes, in the consultation on the draft TCE Bill, we argued strongly that for many tribunal jurisdictions, a cost regime linked to charging applicants’ fees would prevent socially and financially vulnerable people from accessing justice. For these reason we think that fees should not, under any circumstances, apply to the Social Entitlement Chamber. Whilst it appears that Ministers have given assurances that applicants will not have to bear costs in benefit cases,10 these proposals suggest that single costs regime should operate across the work of the First-tier and Upper Tribunals.
Tax Appeals Modernisation
We have no evidence to offer on tax appeals so have not attempted to answer these questions.
Land, Property and Housing – Questions 25-26
As above, we have expressed misgivings in relation to the Law Commission’s proposals for the transfer of all housing, land and property related decision-making issues and dispute resolution to a two tier specialist jurisdiction. Citizens Advice considers that if the tribunal is to be effective for resolving housing cases, then sufficient resources are needed to enable ADR and other alternatives to court to work efficiently. The lack of resources is not merely a problem within the existing court system, but also in the funding available to advice agencies for advice and representation. So it is absolutely essential that users of the system do not lose rights and access to representation.
We have also argued that it would make no sense to move rent related and possession action cases from the county court to the first-tier tribunal, without also moving mortgage possession cases. Citizens Advice believes that there is a strong and compelling case for a mortgage arrears pre-action protocol to be developed in order to ensure lenders take court action for possession appropriately. We also have called for improved judicial training on relevant legislation and case-law relevant to possession action for mortgages and secured loans.11
We recognise that there could potentially be some advantages in terms of local accessibility in transferring homelessness statutory appeals and related judicial review applications to the Upper Tribunal. However, as with housing benefit, we are concerned that this framework would reduce the procedural rights available to the applicant who would lose their right to an internal review of the initial decision as well as their subsequent right of appeal as the Upper Tribunal would have concurrency with the High Court. And as above, we are not convinced that sufficient attention has been paid to the accessibility of Upper Tribunal hearings.
Conclusion
We support the basis of these reforms to establish greater coherence to the Tribunals system, and making better use of resources so that users will benefit from an improved service. However, we doubt they will fully achieve the aim of establishing a Tribunals Service that meets the needs of users, without addressing some of the more fundamental issues about power imbalance and insufficient resources. This in no way diminishes our support for the Tribunal modernisation programme. However, CAB advisers emphasise the negative impact on their clients of confusion arising from poor information and customer service, and distress as a result of aggressive or intimidatory hearings. We need to move to a system which has better outcomes for users though improving administration and feedback.
1. Dealing with the complexity of the benefits system NAO 2006
2. Appeal Tribunal Statistics: DWP 2006
3. Report of the Committee on Administrative Tribunals and Enquiries Cmnd 218 1957 (re ‘the Franks Committee’)
4. Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users - One System, One Service [2001]. Transforming public services: complaints, redress and tribunals, DCA 2004
5. Genn et all Tribunals for Diverse Users DCA (2006).
6. Value for Money Delivery Agreement, Ministry of Justice 2008
7. No win, no fee, no chance, CAB evidence on access to injury compensation , Citizens Advice 2004
8. Proportionate Dispute Resolution Law Commission 2006
9. Value for Money Delivery Agreement, Ministry of Justice 2008
10. Baroness Ashton Letter to CPAG – 29th November 2006
11. See Set up to fail – CAB client’s experience of mortgage and secured loan arrears problems, Citizens Advice, 2007
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