Judges all round – the White Paper on tribunal reform
The Department for Constitutional Affairs has recently published a White Paper on reform of tribunals. This points the way to a new appeal tribunal service. Stewart Wright summarises its contents.

Introduction
Leggatt
Philosophy of complaints
'Proportionate dispute resolution'
A unified tribunals service
Benefits of the new scheme
Judicial reforms – Judges all round
Structural changes
Comment

Introduction
The White Paper – Transforming Public Services: Complaints, Redress and Tribunals – was published in July of this year. Its stated aim is about improving public services and improving access to justice. The language it uses is that 'Where mistakes occur, or where there is uncertainty we [ie, citizens] are entitled to complain and to have any mistakes put right with minimum difficulty'. This language is instructive, as the use of the word 'complain' fits oddly with the language of entitlement, rights and appeal; and this approach is confirmed elsewhere in the White Paper where it refers to tribunals being but one means of redress but not the only one.

Leggatt
The White Paper is described as a formal response to Sir Andrew Leggatt's report on reform of tribunals, Tribunal for Users – One System, One Service. The White Paper says that Leggatt set out a convincing case for reform of tribunals, one with which the Government agrees. However, it goes on that the programme of reform set out in the White Paper goes further than just looking at tribunals.

'It looks at the administrative justice system as a whole and sets out proposals to improve the whole end to end dispute resolution process'.

Philosophy of complaints
The starting perspective for the White Paper is 'what users want'. They are said – in the arena of complaints – 'to want to achieve something', but 'are not volunteering for the experience of going before a tribunal'. The Paper states that users search for a solution to the problems they have can, at present, only be met by a tribunal. However, if they can get resolution of their dispute easily and early, without going to a tribunal, this would be preferable.

Accordingly, the White Paper is: as much concerned with how the system can resolve disputes at source rather than in tribunals. This means helping to improve standards of decision making across government and, where things do go wrong, promoting quicker and more effective means of dispute resolution, so that fewer cases come before tribunals.

(Readers may be forgiven for thinking they have heard all of this before, when the DMA reforms under the SSA 1998 were being put forward.)

'Proportionate dispute resolution'
All of the above is said to amount to 'proportionate dispute resolution', which is claimed to be the first manifestation of the Department for Constitutional Affair's (DCA) new strategy for helping users of the justice system resolve issues without recourse to formal hearings.

A unified tribunals service
At the heart of the White Paper are plans for a unified tribunals service. The largest tribunal organisations (including the Appeals Service and the Social Security Commissioners) will be administered by the Tribunals Service (which will come under the auspices of the DCA), rather than the government Departments whose decisions the tribunals often sit in judgment on. Collectively, the Tribunals Service will be responsible for more than 90 per cent of tribunal cases. It will formally come into being in April 2006, but a Chief Executive is being recruited now.

The intention is that bringing the largest central government tribunals together in a single service will ensure a more effective and efficient delivery of tribunals justice. However, the new body will be more than just a federation of existing tribunals. It will be a new organisation and a new type of organisation. It will deal with administrative justice appeals and employment cases. Its mission will be:

to help prevent and resolve disputes, using any appropriate methods and working with its partners in and out of government, and to help improve administrative justice and justice in the workplace, so that the need for dispute is reduced.

It will be made up of tribunal members and staff, who will be:

working together to provide a range of established and innovative services to tribunal users and to those who currently do not seek redress from the system.

The administrative arm of the Tribunals Service will be an executive agency of the DCA. Its name – the Tribunals Service – is only provisional, and the White Paper seeks suggestions for a new name for the organisation as a whole.

Benefits of the new scheme
These are said in the White Paper to be:

• manifest independence of tribunals from those whose decisions tribunals are reviewing;
• a proper, national network of hearing centres providing greater accessibility;
  
• better information about the tribunal process;
  
• better advice and support;
  
• reduced or more appropriate waiting times;
  
• a common look and feel for tribunals including common terminology and common customer service standards;
  
• hearings that are less daunting and less legalistic; and
  better standards of original decision-making – the new organisation will have a statutory duty to work with decision-makers to improve the system as a whole.

Judicial reforms – Judges all round
Bringing the 'tribunals' judiciary' together in a single service is also intended to strengthen the independence of the judiciary and allow for greater flexibility in the way they are deployed. To this end the White Paper sets out what it calls are 'a number of judicial reforms', including:

• creating the post of Senior President of Tribunals, providing the tribunals' judiciary with clear leadership and a single voice. Lord Justice Carnwath has been appointed to take on this role in advance of legislation;
  
• creating a unified and cohesive system of deployment for those sitting in first-tier tribunals and another for those sitting in appellate tribunals;
  
• renaming legal members of tribunals 'Tribunal Judge' and 'Tribunal Appellate Judge' respectively;
  
• simplifying the arrangements whereby panel members can sit in more than one jurisdiction while safeguarding necessary expertise; and
  
• further improving arrangements for training and appraisal.
  

Structural changes
These are said to be needed to some parts of the tribunal system to bring about a more coherent system. They include creating:

• a statutory tribunals rule committee;
• a more coherent structure of appeals and reviews;
  
• a unified tax appeals system; and
  
• a new and enhanced role for the Council on Tribunals, which will in time evolve into an Administrative Justice Council.
  

Comment
Much of what is included in the White Paper is to be welcomed, not least the moving of tribunals out from under the auspices of the government Departments whose decisions they hear appeals from and creating some degree of uniformity (but not 'watering down') of tribunals' procedural rules.

However, there are a number of areas of concern.

Firstly, the reference to improving first-instance decision-making, although welcome, is completely lacking in any specifics or bite. Experience of social security appeals, particularly those relating to DLA and incapacity benefit where up to 50 per cent of appeals are allowed, does not suggest any 'end-to-end' thinking leading to a reduction in the number of appeals.

Secondly, the White Paper seems to continue Leggatt's worrying misconception that most 'complaints' can be easily resolved, and that many do not require a tribunal hearing or representation before a tribunal. Given the poor quality of the first instance decisions and (rightly) the legal nature of the entitlement conditions, a dispute as to legal entitlement cannot but be resolved by an independent, legally based tribunal, where all the research shows that a representative will increase the chances of success. The failure of the 'reconsideration' stage in SSA 1998 appeals to be anything other than a rubber stamp exercise for the decision-makers is clear evidence that the 'having a chat with the decision maker' model does not provide administrative justice for claimants.

Finally, there is re-branding Deputy District Chairman (or the even more frightful, Legally Qualified Panel Member) as a 'Tribunal Judge'. One of the successes of social security appeals over the years has been the ability of those appeals to blend authority with informality, and not to be seen as a 'court', with all the traditional trappings that many people may expect that to entail. The use of the title 'Tribunal Judge', while perhaps pleasing to the office holder, could mark a step back from this success. It is concerning that no research has been or is to be made into the impact of such a change before any decision is made as to whether to implement it.

Welfare Rights Bulletin 182 October 2004