The use of Proportionate Dispute Resolution in Tribunals
Introduction
One of the key themes of the Government’s 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals was the promotion of:
... a range of tailored dispute resolution services, so that different types of dispute can be resolved fairly, quickly, efficiently and effectively, without recourse to the expense and formality of courts and tribunals.
Following on from this paper, it was envisaged that the new Administrative Justice and Tribunals Council (AJTC), would, amongst other things:
make suggestions for … proportionate dispute resolution and for the balance between the different components of the system … [and] be concerned to ensure that the relationships between the courts, tribunals, ombudsmen and other ADR routes satisfactorily reflect the needs of users.
Hence, in 2006 in the lead up to the establishment of the AJTC, the Council on Tribunals conducted a survey on the use of ‘alternative’ and ‘proportionate’ dispute resolution techniques in tribunals. The aim of the survey was to identify good practice and opportunities in dispute resolution that encourage effective and swift resolution of disputes.
The survey, devised by the Dispute Resolution Group of the Council on Tribunals, asked a brief series of open-ended questions on the use of dispute resolution in tribunals, the perceived scope for introducing ‘alternative’ or ‘proportionate’ dispute resolution techniques, case management, the remittal of matters back to the initial decision-maker and the use of telephone and video conferencing. Respondents were also asked how dispute resolution is promoted within jurisdictions and whether and in what format feedback is provided to initial decision-makers.
The survey was then sent to 44 tribunals throughout England, Wales and Scotland in August 2006, of which 28 responded. Respondents either answered each of the specified questions in turn or responded by providing general information relating to their jurisdiction, some of which effectively provided answers to the survey questions.
Proportionate dispute resolution within tribunals
Respondents were asked to give details of the different dispute resolution techniques used in tribunals. According to responses, techniques range from oral hearings, hearings decided on paper and over the telephone, early neutral evaluation, pre-trial reviews, arbitration and mediation. Respondents were also asked whether there is scope for introducing other dispute resolution techniques in their jurisdictions.
The different types of dispute resolution techniques adopted appear to reflect the types of matters heard in different jurisdictions and whether these matters need to be resolved in an adjudicative manner or whether they can be resolved using alternative methods of dispute resolution. Not all tribunals believe that Alternative Dispute Resolution (ADR) is suitable for their jurisdictions. However, this does not appear to undermine the introduction of other techniques, such as case management, early neutral evaluation and telephone and video conferencing, which have been introduced to allow disputes to be resolved more efficiently and fairly.
Alternative Dispute Resolution
A relatively small number of respondents reported that ADR is used within their jurisdictions and that there is scope for building on and formalising these processes. For example, the UK Intellectual Property Office, which deals among other things with disputes between parties regarding patents, offers mediation either through accredited external providers or office staff who are accredited mediators. They encourage the increasing use of ADR as a means to resolving disputes and will consider any request to stay proceedings to allow parties to seek alternative means to resolve a dispute.
The Private Rented Housing Panel for Scotland is intending to introduce a mediation service as an alternative means of resolving disputes over a landlord’s obligation to meet the new repairing standards under the Housing (Scotland) Act 2006. The Valuation Tribunal Service for Wales also reported that the option to refer parties to mediation could be useful where there is a misunderstanding between parties, although the Tribunal would rely heavily on the judgement of one or both of the parties as to whether there would be any benefit in pursuing this course of action.
Respondents emphasised the need for ADR providers to be appropriately trained and accredited, that recourse to a hearing before the tribunal should not be precluded where ADR had been used and that the independence of the tribunal and the transparency of ADR processes should be assured.
Hearings
Although a small number of respondents were in favour of ADR, the majority of respondents were of the opinion that the use of ADR was not suitable for the kinds of matters heard within their jurisdictions. More specifically, respondents believed that there is a lack of applicability of such techniques in cases where there is little room for negotiation in the outcomes of an appeal.
For example, the Social Security and Child Support Appeals Tribunal stated that mediation is not considered to be a suitable mechanism for resolving welfare benefit appeals as there can be no ‘settlement’ or ‘agreement’ as a means of resolving the dispute. The entitlement either exists or it does not. Similarly, the National Parking Adjudication Service reported that there is little room for negotiation in the sense that very few outcomes are permitted by the legislation: the appellant either has to pay the penalty imposed or not. The Mental Health Review Tribunals (MHRT) of England and Wales also reported that ADR techniques are not appropriate in this jurisdiction as hearings involve “fundamental questions of liberty, health, safety and public protection”. The National Association of General Commissioners of Income Tax argued that negotiation is likely to have taken place between the HMRC and the taxpayer, having limited application by the time a case is listed for hearing.
Alternatively respondents such as the Immigration Services Tribunal cited legislative constraints as an impediment to the introduction of ADR. Other tribunals were concerned about the increased time spent in resolving disputes when a streamlined system is already in place. For example, the Additional Support Needs Tribunals for Scotland noted that an increase in choice of other forms of dispute resolution can result in uncertainty of procedure and increased delay when tribunals are working to a tight time scale.
Some tribunals are bound to issue a formal determination and to hold a hearing prior to so doing. The Adjudication Panel for England (which has the power to suspend or disqualify Councillors) is one such tribunal although it uses its case management powers to seek to secure agreement on identification and wording of findings of fact in advance of the hearing, thus allowing the hearing itself to focus on those matters which remain subject to dispute.
Matters are determined at hearing in the Transport Tribunal because it is essentially an appellate disciplinary tribunal. The Special Educational Needs and Disability Tribunal (SENDIST) stressed that although local authorities must explain that an Independent Dispute Resolution Service is available at a pre-hearing stage (separate to SENDIST), it regards the “tribunal process as one of decision making rather than brokering a compromise between parties”. Similarly, the Educational Needs Tribunal for Wales explained that they do not employ proportionate dispute resolution, as making dispute resolution available is the statutory function of local authorities rather than the Tribunal. The Pensions Appeals Tribunal reported that the extensive nature of the reconsideration process inside the Veterans Agency means that there is little scope for the use of ADR, and that “...it is on the whole quicker and cheaper simply to process outstanding disputes to a Tribunal for final determination.”
Flexible procedures
Of the respondents that did not support the introduction of ADR, many supported other mechanisms that increase the flexibility and reduce the formality of processes. For example, appeals heard by the Adjudication Panels for England and Wales can sometimes be determined on the papers and such a course would usually be followed if there are no issues of fact in dispute. In the Valuation Tribunals in England some matters can be decided on papers alone. Furthermore, the Adjudication Panel for England argued that the Panel seeks to use existing processes as flexibly as possible and is willing, where appropriate, to depart from a one-size-fits-all approach to accommodate the needs of the particular case or meet the wishes of the parties. The National Parking Adjudication Service offers hearing by telephone and the Asylum Support Tribunal offers less formal processes.
The Criminal Injuries Compensation Appeals Panel (CICAP) did not really see the scope for introducing ADR, instead preferring to build on existing mechanisms primarily by way of greater pre-hearing scrutiny of cases by adjudicators prior to an oral hearing (dealt with in further detail below) and extension of the scope to determine matters on papers alone.
Case management
Respondents also indicated that some form of case management is utilised in the majority of jurisdictions. This ranges from fairly basic systems of case allocation to much more complex systems of case management which are aimed at ensuring that, when a matter finally proceeds to a hearing, the hearing itself can be relatively short and focused. For example, the Parking and Traffic Appeals Service reported that there was generally little scope for pre-hearing case management because the process for appealing to an adjudicator is simple and usually brief. Conversely, the Competition Appeal Tribunal deals with large and complex litigation that requires more intensive and active case management.
In some jurisdictions, administrative staff, caseworkers, clerks and even tribunal members themselves actively manage cases. For example, in the Planning Inspectorate each appeal is allocated to a case officer whose role is to ensure that the case is properly handled. Specialist teams of caseworkers advise Traffic Commissioners about proposed conditions in appropriate cases. The MHRT is piloting fulltime presidents in one major Trust in London, who utilise a range of case management techniques to facilitate more efficient resolution of matters before the Tribunal. Professional staff are employed by the Crofters Commission to report on a range of applications in order to provide the background required to make sound decisions.
Pre-hearing reviews and early evaluation
Many jurisdictions have also adopted proportionate dispute resolution techniques such as early assessment and evaluation of papers that identify the main issues that need to be addressed pre-hearing and avoid lengthy hearings.
For example, the Asylum Support Tribunal issues lengthy directions to parties with a view to identifying at an early stage the issues the Tribunal considers to be pertinent to an appeal. The UK Intellectual Property Office also has a system in place that seeks to identify at an early stage patent related cases that might be better resolved through mediation. It has also adopted a ‘preliminary indications’ process, which involves the development of a short statement detailing the likely outcome of matters with regard to unregistered trademarks.
Respondents from the National Association of General Commissioners of Income Tax and the Social Security and Child Support Appeals Tribunal suggested that there was scope for introducing early neutral evaluation in these jurisdictions. The Asylum Support Tribunal and the Finance and Tax Tribunals also hold pre-trial reviews to ensure that parties take the correct steps before appeals take their statutory courses. The Social Security and Child Support Appeals Tribunal is piloting a scheme to examine the use of early neutral evaluation for 6-12 months.
The use of telephone and video conferencing in tribunal hearings
Respondents were asked whether telephone or video conferencing is used in their jurisdictions.
Over half of the 25 respondents who responded to this question utilise some form of telephone or video conferencing. For example, the National Parking Adjudication Service conducts hearings by telephone and the Parking and Traffic Appeals Service and CICAP may conduct hearings by videolink. The UK Intellectual Property Office remarked that a high percentage of trademark hearings are done by video and telephone conferencing. The Social Security and Child Support Appeals Tribunal plans to further develop facilities to allow hearings by video conferencing.
More commonly, telephone conferencing is used at the pre-hearing stage, for example in the Mental Health Review Tribunal and the Additional Support Needs Tribunals for Scotland. The Finance and Tax Tribunals aim to make much better use of telephone and video-conferencing facilities as a means of increasing communication in pre-hearing matters. The Adjudication Panel for Wales reported that although it routinely uses telephone conferencing for the purpose of undertaking the initial consideration of case papers, there may be potential legal and/or logistical barriers preventing it from using such conferencing for actual hearings. The Competition Appeal Tribunal holds case management conferences on the telephone “but not to any great extent because of the complexity of the issues and the volume of the documentation”. It indicated, however, that it would welcome video conferencing, and recognises the advantages of phone conferencing as a case management tool which it would like to make more use of in the future.
Other respondents indicated their preference for the use of videolinking as opposed to phone conferencing. For example, the Transport Tribunal stated that it was not opposed to video conferencing but thought that telephone conferencing is less useful outside of interlocutory hearings due to the ‘impersonality’ of the medium.
Lack of need in terms of the geographical spread of Tribunal participants appeared to play a part in why the use of such technology had been rejected in the Social Security, Child Support and Pensions Appeals Commissioners and Immigration Services Tribunal. Other barriers to the use of telephone and video conferencing include the nature of the work undertaken, such as for example, the need to discuss plans and drawings in the Planning Inspectorate.
The encouragement of proportionate dispute resolution within tribunals
Respondents were asked how tribunals inform and promote the use of alternative techniques to resolve disputes within tribunals. Given the fact that only a few tribunals offered ADR, this question had a relatively low response rate. Of these, only the UK Intellectual Property Office actively promotes ADR.
However, more generally, other tribunals did discuss the ways in which they promoted other methods of dispute resolution. For example, the National Parking Adjudication Service and the Information Tribunal indicated that they publish information on their websites, describing the appeal process and explaining when an appellant is entitled to appeal. The Valuation Tribunals in England informed clients of the different options for resolving disputes through guidance leaflets that are sent out with notices of acknowledgement for the hearing. Other methods revealed by respondents included telephone advice, direct communication with individual appellants and information provided in CD or DVD format. In some cases, it was apparent that information is provided to prospective appellants by relevant advice services, or in the case of SENDIST, by the initial decision-maker.
The Finance and Tax Tribunals do not advertise judicial techniques aimed at improving the decision process, as they do not regard themselves as, in effect, “financial social workers”.
Remittal of matters back to an initial decision-maker
Respondents were asked whether their jurisdiction had the capacity to remit matters back to the initial decision-maker for review. Only half of respondents answered this question. Of these, a small number, including the Planning Inspectorate, SENDIST, Valuation Tribunals for Wales, and the Information Tribunal, indicated that these jurisdictions have no legal power to remit cases for reconsideration once an appeal has been made.
Other tribunals, such as the VAT and Duties Tribunals, have a duty to send a matter back to the initial decision-maker if they have failed to take into account some relevant consideration or if they have placed too much reliance on an irrelevant consideration. The UK Intellectual Property Office and the Office of the Schools Adjudicator will refer a matter back in certain circumstances such as in ex parte cases for the UK Intellectual Property Office and for cases regarding school reorganisation for the Office of the Schools Adjudicator.
The Social Security and Child Support Appeals Tribunal will refer a matter back to the initial decision-maker when it is made apparent, during early neutral evaluation, that an appeal is most likely to be successful. In the interests of avoiding further adjudication, the National Parking Adjudication Service will encourage Local Authorities to review an initial decision when new facts come to light.
In some jurisdictions, such as the Asylum Support Tribunal and the Competition Appeal Tribunal, it is possible to refer a matter back for reconsideration. However, respondents expressed concerns that remittal of matters back to an initial decision-maker can add unnecessary delay to resolving disputes expeditiously.
Of the tribunals that do refer matters back to the initial decision-maker, it appears that tribunals either have to have a duty to send a matter back or they send a matter back when new facts come to light. Early neutral evaluation seems to be a useful tool that enables tribunals to identify when a matter should be remitted back for reconsideration by the initial decision-maker. Without such evaluation, the remittal of matters back may cause unnecessary delay.
Feedback mechanisms
Respondents were asked whether their tribunal provides any feedback on the quality of decisions to the initial decision-maker and whether there are any links between the tribunal and the initial-decision maker which enable good communication. The aim of such feedback is to encourage the development of good practice in decision making. There was a good rate of response to the question.
Some tribunals, such as the Adjudication Panel for England and the Immigration Services Tribunal, cited publication of written decisions on their website as the primary method of feedback. Other tribunals, such as the Adjudication Panel for Wales, Social Security, Child Support and Pensions Appeals Commissioners and the Office of the Schools Adjudicator, send decisions directly to initial decision-makers and parties. Other common modes of feedback are through commentary in Annual Reports or the publication of decisions in separate reports, which are published on a tribunal’s website or sent to the relevant government department.
Other methods of providing feedback to initial decision-makers included meetings or correspondence between tribunal members and relevant decision-makers. For example, CICAP holds quarterly meetings with the Criminal Injuries Compensation Authority where issues such as the quality of decision-making by claims officers are discussed. Another example is where the President of the Transport Tribunal meets biannually with Traffic Commissioners and discusses recent appeals. The Office of the Schools Adjudicator also notes that Adjudicators have occasionally written separately to an initial decision-maker, after a decision is published to provide some specific feedback.
Summary
Under the new Tribunals, Courts and Enforcement Act 2007, the Administrative Justice and Tribunals Council has a new remit to encourage the use of proportionate dispute resolution, ensuring that its implementation reflects the diverse needs of users. This survey sought to investigate what dispute resolution techniques are utilised within tribunals in addition to identifying good practice and opportunities in dispute resolution that encourage effective and swift resolution of disputes.
It found that the use of ADR such as mediation and arbitration tended to be used more in those jurisdictions that deal with direct with party and party disputes as opposed to disputes between citizen and stage. For the majority of jurisdictions in which ADR is not used, most respondents stated that this was because it did not adequately reflect the types of matters heard in these jurisdictions. Despite this, jurisdictions employ procedures that aim to increase efficiency and provide a flexible approach to resolving disputes.
For example, flexible processes, case management and early evaluation are all techniques with which tribunals are able to streamline the dispute resolution process, making it more efficient and user-friendly. Additionally, they offer the potential to encourage withdrawal or settlement of cases, for example, through the reality check offered by early neutral evaluation.
In a number of jurisdictions case management appears to be a significant focus and one which is resulting in benefits in terms of increased efficiency, while at the same time ensuring that processes before the tribunals are more flexible and able to be tailored to the needs of individual parties. Although not suitable for all jurisdictions, telephone and video linking are also ways in which jurisdictions can increase accessibility to tribunals and expedite processes, particularly in the pre-hearing stage. It was also apparent from responses that remittal of decisions back to initial decision-makers generally only occurred where this would reduce the need to use a tribunal or court.
This survey does not amount to a comprehensive audit of the use of proportionate dispute resolution in tribunals and its impact on users in England, Wales and Scotland. However, the results provide a useful overview of the different types of dispute resolution currently used within a selection of tribunals and how these reflect the nature of matters heard within these jurisdictions.
List of respondents
- Additional Support Needs Tribunals for Scotland
- Adjudication Panel for England
- Adjudication Panel for Wales
- Asylum Support Tribunal
- Competition Appeal Tribunal
- Criminal Injuries Compensation Appeals Panel
- Crofters Commission
- Educational Needs Tribunal for Wales
- Finance and Tax Tribunals
- Immigration Services Tribunal
- Information Tribunal
- Mental Health Review Tribunals of England and Wales
- National Association of General Commissioners of Income Tax
- National Parking Adjudication Service
- Office of Fair Trading Adjudication Unit
- Office of the Schools Adjudicator
- Office of the Traffic Commissioner
- Parking and Traffic Appeals Service
- Pensions Appeal Tribunals
- Planning Inspectorate
- Private Rented Housing Panel for Scotland
- Social Security and Child Support Appeals Tribunal
- Social Security and Child Support and Pensions Appeals Commissioners
- The Special Educational Needs and Disability Tribunal
- Transport Tribunal
- UK Intellectual Property Office
- Valuation Tribunals in England
- Valuation Tribunal Service for Wales