Citizens Advice Annual Conference 2008: Keynote Speech
Speaker:
Lord Newton of Braintree, Chair of the AJTC
Topic:
Better Access to a Fairer Justice System
Introduction:
I am delighted to have the opportunity to speak at the Citizens Advice's Annual Conference. I have enjoyed a long and productive professional association with your organisation, not only during my time as Chairman of the Administrative Justice and Tribunals Council, and the Council on Tribunals before that, but also as Secretary of State for Social Security in the 1980s. I have always greatly admired the role played by Citizens Advice in providing free information and independent advice to citizens about welfare and public services, debt, employment and housing matters, amongst a variety of other matters. Citizens Advice provides an invaluable service to some of the most vulnerable people in our society, who would not otherwise have the knowledge or resources to access the public services or benefits to which they may be entitled, let alone navigate the various mechanisms for redress, without the information and advice your organisation provides up and down the country.
The statistics about the numbers of enquiries you dealt with in 2007-08 alone speak volumes. The 2 million people you have advised; the 5 and a half million individual problems dealt with; and considering that all of this advice and assistance is delivered by an organisation staffed overwhelmingly by volunteers, it is difficult not to be impressed by the invaluable service that Citizens Advice provides and to wonder what citizens, or government for that matter, would do without it. What is also remarkable is the wide range of enquiries and complaints you actually deal with, including social security and housing benefits; child support; workplace disputes involving employment tribunals; housing related problems; and advice to people with personal debt problems, not to mention the advice you provide on health, criminal justice, consumer and legal services.
However, as the theme for this conference indicates, after 70 years Citizens Advice is facing change. It is clear that you have already embraced the challenges of the electronic age – indeed, over and above the people you help face to face and by telephone, many more now benefit from the information and advice available on the Citizens Advice website. However; further change lies ahead, particularly in how you compete to provide some of your services. I firmly believe that an organisation of your stature, with an outstanding record in the services it provides to the public, is well placed to face the new challenges that lie ahead.
The Role of the AJTC:
Change is something with which the Administrative Justice and Tribunals Council (or AJTC) is also familiar. Some of you may not have previously heard of the AJTC, so I would like to take the opportunity to explain a little about the AJTC's role and how it has changed and expanded following the passage of the Tribunals, Courts and Enforcement Act last year.
The Act changed the environment in which we operate through the establishment of the Tribunals Service, which brought together the administration of some of the largest tribunal systems within an executive agency under the sponsorship of the Ministry of Justice. The Act also abolished our previous role as the Council on Tribunals, which had been responsible for overseeing the working of tribunals and statutory inquiries since 1958. The Act also established our new role as the AJTC. In addition to inheriting a statutory duty in respect of tribunals, the AJTC is also charged with keeping under review the administrative justice system as a whole.
The first question people usually ask is what is meant by "the administrative justice system"? The Act defines this as "the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including the procedures for making such decisions, the law under which they are made, and the systems for resolving disputes and airing grievances in relation to them". Put more simply, we are charged with overseeing how decisions are made about citizens' statutory rights, including the variety of mechanisms for review, appeals and complaints, including the role of tribunals, Ombudsmen and the courts. So our interest now extends from the way in which decisions are taken at the first tier to the ensuing mechanisms for review, appeal or complaint.
The AJTC could not expect to accommodate its new broader statutory functions without changing the way that we work. In the past, the Council on Tribunals carried out its supervisory function primarily through its programme of visits to tribunal hearings, reporting our findings in our annual report to Parliament. However, it is clear that this approach would not be sufficient for our new role across the whole of the administrative justice system. Over the past few years we have therefore begun to change our working practices to adapt to our new expanded role. We have been keen to raise our profile in order to ensure that we become more visible to our new stakeholders within the wider administrative justice world.
We have also begun to make better use of our findings from our visits to tribunal hearings. Whereas previously reports from our visits to hearings were used solely for our own internal purposes, we now routinely make them available to the tribunal itself, to the President of the particular tribunal system and to the Senior President of Tribunals and the Tribunal Presidents Group.
I hope that some of you will already have seen a copy of our electronic newsletter, Adjust, which is circulated widely across the administrative justice world. Adjust aims to report on the latest developments in administrative justice, including international matters. Feedback from those who have subscribed has been largely favourable and we are gradually building up an impressive level of subscribers. I hope that Citizens Advice might consider using Adjust in the future as a platform for getting some of its messages across to those in the administrative justice world.
We have also taken a more active approach to working in partnership with other organisations. In the past, we have had fruitful working relationships with organisations such as the Disability Rights Commission, with whom we worked on producing guidance on making tribunals accessible to disabled people. We have also recently had contact with the Equality and Human Rights Commission, whose chairman, Trevor Philips, is speaking today. We have identified a common interest in the particular disadvantage faced by looked after children with special educational needs, and I look forward to working with them in finding a possible solution. We have also developed a good working relationship with the British and Irish Ombudsman Association, with whom we are working on a project to map out the landscape of administrative justice.
These working partnerships will also assist us to identify potential areas for research in administrative justice, which is yet another new, statutory function that we have acquired under the TCE Act. We plan to publish a paper at our November conference outlining options for future research and we would welcome input from Citizens Advice on what we might include.
In considering how best to fulfil our new remit we have concluded that our fundamental priority should be to focus first and foremost on the needs of the users of administrative justice. Put simply, our purpose is to help to make administrative justice and tribunals increasingly accessible, fair and effective, by keeping the needs of users at the heart of everything we do. In anticipation of our new role a few years ago we ran a series of user support workshops in London, Manchester, Bristol and Livingston in Scotland. Our workshops were attended by a wide range of delegates from those organisations that provide support to tribunal users, including many from Citizens Advice. The findings from the workshops have helped us to identify the key issues affecting tribunal users that need to be addressed by us and the Tribunals Service.
We have also recently undertaken a survey about the effectiveness of tribunal user groups, which has been useful in identifying the factors which influence their effective operation. The information we have gleaned from this piece of work will materially assist us in monitoring the future development of user groups, both within the Tribunals Service and other tribunal systems.
As for the new Tribunals Service we view our relationship with them as akin to that of "critical friend". I sit on the Tribunals Service Management Board and the Tribunals Presidents Group, the latter comprising (as the name suggests) the Presidents of the tribunal jurisdictions with the TS. This enables to me to ensure that the AJTC's voice is heard and to maintain an ongoing dialogue with TS and the judiciary. And whilst our relationship with the TS is still developing, to date it has been one which could be best described as "mutually beneficial".
In the context of our enhanced remit, we see our primary purpose as:
- playing a pivotal role in the development of coherent principles and good practice;
- promoting understanding, learning and continuous improvement; and
- ensuring that the needs of users are central.
We describe our vision of administrative justice as a system where:
- those taking administrative decisions do so on soundly-based evidence and with regard for the needs of those affected;
- people are helped to understand how they can best challenge decisions or seek redress at least cost and inconvenience to themselves;
- grievances are resolved in a way which is fair, timely, open and proportionate; and
- there is a continuous search for improvement at every stage in the process.
We define the values we promote as:
- Openness and transparency;
- Fairness and proportionality;
- Impartiality and independence; and
- Equality of access to justice.
Clearly, the AJTC and Citizens Advice share similar purpose, vision and values, although the way in which we achieve our goals differs. Whilst you are providing frontline services to the public, we seek to achieve our aims by:
- giving authoritative and principled advice and guidance on changes to legislation, practices and procedures to improve the working of administrative justice, tribunals and inquiries;
- exploring and promoting the scope for new approaches to dispute resolution;
- seeking to build up influence over forthcoming government legislation;
- recognising and responding to the diverse needs and circumstances of users, by applying effective monitoring arrangements and being alert to emerging issues; and
- raising awareness of the different approaches within the UK legal systems. Perhaps I can best demonstrate this by giving a few practical examples of our work, so that you can better see how our work complements the work of Citizens Advice.
School Admission and Appeals Panels
We have devoted a good time of time and energy over a number of years in the area of school admission and exclusion appeal panels. We have pressed the Department for Children, Schools and Families for improvements in the working of admission and exclusion panels, which deal with appeals about very sensitive issues – all parents want their children to go to the best schools and for their children not to be unreasonably excluded from school.
Our long-standing concerns about the operation of these panels relate to their lack of independence and the absence of training for panel members. Improvements have been relatively slow in materialising, but the most significant in recent years has been the introduction of legislation requiring mandatory training before members sit to hear appeals, which has already led to tangible improvements in the quality of decision-making by the panels. Changes in the constitution of the panels have also ensured a greater degree of independence on the part of the panels, not least from the perspective of the parents attending hearings.
Promoting improved first instance decision making:
We have been working with the Disability and Carers Service (now the Pensions, Disability and Carers Service) to explore ways in which first tier decision-making might be improved in respect of the benefits they administer – DLA and AA. The President of Social Security and Child Support Appeal Tribunals has continued to report a high incidence of overturned appeals in respect of these benefits, suggesting that many cases could potentially be reviewed favourably by the Agency itself. We have found that the Agency is already doing a good deal to understand the reasons why appeals are overturned by tribunals so that they might learn lessons for their decision makers.
The Agency is also taking steps to improve the quality of decision making through a work-based learning programme, or PIDMA as it is called (Programme for Improving Decision-Making and Appeals), aimed at providing formal accreditation for decision makers. Early evaluation of the programme shows that it is already leading to improvements in decision-making standards. This programme is an exciting development, which appears to us to have potential to make real improvements in decision-making standards, not just within the Pensions, Disability and Carers Service but also in other areas of administrative justice.
We are also investigating options for promoting feedback from the decisions of tribunals to decision makers to improve first instance decision-making. We have held exploratory discussions with the new President of the Social Entitlement Chamber of the First-tier tribunal, government departments and members of the Tribunals Service about this matter, which we intend to pursue further. We would welcome any views or ideas you might have about how to achieve this objective.
Exploring and promoting the scope for new approaches to dispute resolution:
The 2004 White Paper "Transforming Public Services: Complaints, Redress and Tribunals" stated the government's commitment to promoting proportionate dispute resolution more effectively, which is an aspiration we share. Too many people get drawn unwittingly into appealing when their disputes and problems could be dealt with more quickly and easily earlier on.
A number of pilots are currently underway in social security and employment appeals, trialling early neutral evaluation and mediation techniques, aimed at resolving appeals without the need for a hearing. The evaluation of the pilots is due to be completed shortly and we look forward to learning how effective they have been and considering how they might be deployed in other areas of administrative justice.
We have also paid close attention to provisions in the Employment Bill and supported proposals to repeal the existing mandatory dispute resolution regulations, which had been proven to be unworkable. The new provisions in the Bill should encourage a more flexible approach to the use of dispute resolution in employment disputes, which in tandem with a new statutory Code of Practice and guidance should provide a more effective system for resolving workplace disputes.
We will continue to promote the potential for using PDR/ADR across the administrative justice system as a means of resolving disputes at the earliest opportunity.
Highlighting Access to Justice issues which affect vulnerable user groups:
Another area of concern to us relates to the operation of the Mental Health Review Tribunal (MHRT), which hears appeals from patients who have been detained compulsorily under the Mental Health Act. I should emphasise that our concern relates to the administration of the tribunal and not its judicial performance. This is a tribunal system which will clearly benefit materially from being part of the Tribunals Service.
Following an earlier MHRT customer satisfaction survey, we have played a key role in assisting the Tribunals Service to strengthen its links with the key stakeholders of the MHRT. To this end, we have facilitated the establishment of a new MHRT stakeholder group, which I chair, to advise the Tribunals Service about changes which need to be made to improve the administration of the tribunal.
Promoting procedural fairness and avoiding delay:
We have used our membership of the MoJ's Tribunal Procedures Committee to press for appeals to be lodged with the Tribunals Service rather than with the decision-making agencies, which is the current practice in social security and child support appeals. Being keen to promote better access to justice for tribunal users, it strikes us as inherently wrong for appeals to be lodged with the original decision-making agency. We have also pressed for the introduction of appropriate time limits for the agencies to respond to appeals in order to reduce the time that appellants have to wait for a tribunal hearing, which is particularly important in cases which involve the refusal of benefits.
The resolution of these matters will become clear in due course, and certainly by 3 November when the new rules and tribunal Chambers are due to come into operation. In any event, I hope you will find that the new Chamber rules, which owe a good deal of their construction to our own "Guide to Drafting Tribunal Rules", are drafted in language which is more easily understood, if not by your clients, then certainly by your own advisers.
Conclusion
In conclusion, I believe that the Citizens Advice plays a vital role in disseminating advice and promoting access to the administrative justice system. The AJTC's role, whilst not at the frontline, is nevertheless a complementary one, seeking to improve the system from the perspective of tribunal users, from first instance decision-making to tribunal outcomes, and making use of those outcomes to encourage better decision-making.
Our work to improve administrative justice, the operation of tribunals, procedural rules and the law, I hope, complements the valuable work that you do to promote improved access and fairness for your clients. I believe that our respective organisations have a mutual interest in working together to promote better services for the users of administrative justice and to ensure that they remain central to the administrative justice system. I look forward to the AJTC and Citizens Advice working together closely in the future.