Other means of adjudication Flashcards
Are more challenges raised in courts or tribunals?
Tribunals
Options for challenging Gov
1) JR
2) Statutory appeals(where right in statute)
3) tribunals
4) external review
5) ombudsmen
6) internal complaints/ review
Decision criteria of internal complaints review?
Leglaity
Merits
Maladministration
Decision criteria for ombusmen?
Maladministration
Decision criteria for tribunal?
Legality and merits
Decision criteria for courts?
Legality
Method of internal complaints review?
Inquisitorial
Written
Informal
Method of ombudsmen?
Inquisitorial
Written
Informal
Method of tribunals?
usually oral and informal
Method of courts?
Adversarial
written and oral
formal
Do you need illegality in tribunals?
No, as look at merits can be other unfairness
With ombudsmen does your problem need to be with the decision?
No, can be with your treatment at any point.
What act kick started tribunals?
National Insurances Act 1911
Need for tribunals?
To act as expert referees in disputes arising over these new benefits
Franks Report 1957 reasons for tribunals?
- cheaper
- faster
- more accessible
- more informal
- experts on subjects
Did Franks Report push tribunals towards courts or administration?
Courts
desired them to be fair, open and impartial
Leggat Review
- indépendant governed body of tribunals
What act reformed the tribunal system?
Tribunals, Courts and Enforcement Act (TCEA)
aRT 6 EFFECT?
All tribunals must be independent
What act del with devolved tribunals?
Tribunals (Scotland) Act 2014
Leggats structure
2 tiered
Senior President
Uniform appeal structure
Twin themses: rationalisation and hamronisation
Characteristic weaknesses of courts?
- slow
- expensive
- in accesable
Characteristic weaknesses of tribunals?
- in accessablie?
- Not as fair as portrayed
- Experts sway panel
- no right to representation
Characteristic weaknesses of Ombusmen?
- slow
- cost to gov
- low visibiliyu
Characteristic weaknesses of Internal Review?
- low visibility
- openess?
7 Steps to evaluate grievance mechanisms?
1) appropriate outcomes
2) impartiality and indépendance
3) fairness of procedures
4) speed
5) Cost
6) Accessibility
Positive features of courts?
- appropriate outcomes
- independence
- fair procedure
Positive features of tribunals?
- outcomes
- independence
- fair procedure
- low cost to gov and person
- accessible
- speedy
Positive features of ombudsmen?
- not sure outcomes are appropriate
- independant?
- fair process?
- expensive to gov?
- accessible?
Wouldn’t it be better if ad decisions weren’t made?
- Courts and tribunals do little for this
- Ombuds claim to help
Where do the principle of Good Administration come from?
Principles of good administration Parliamentary and Health Services Ombudsmen 2009
What are the 6 principles of good administration?
1) Getting it right
2) Customer focus
3) Being open and accountable]
4) Acting fairly and proportionately
5) Putting things right
6) Seeking continuous improvement
Ombudsmen are hybrids of what two forms of accountability?
- political and legal
Role?
- Non curial means of administrative justice
Function
Improve decisions making
Adress systematic problems
Resolve problems and seek solutions
Differences in Scotland and England
- Scotland one Public Services Ombudsmen does everything
- England more spread out
Parliamentary Ombusdmen Legislative authority?
Parliamentary Commission Act 1967
Scottish Public Services Ombudsmen(SPSO) authority?
Scottish Public Services Ombusdmen Act 2002
Main difference between Parliamentary Ombudsmen and Scottish Public Services Ombudsmen?
Parliamentary- MP filter, all cases must come via MP (s6(3))
SPSA s9 gives direct access
What part of act gives direct access to Scottish Public Services Ombudsman?
s9
What part of Parliamentary Commissioner Act 1967 creates the MP filter?
s 6(3)
What matters can the Parliamentary Ombudsman investigate?
s5
Injustice as consequence of maladministration s5
What matters can Scottish Public Services Ombudsmen 2002 investigate? s 5
injustice or hardship of maladministration or service failure
(so can be service failure too, not just maladmin)
Key operational features of Ombudsmen?
- Independence
- Investigative process
- Injustice caused by maladministration
- Reporting
Qu to considering when wondering if Ombudsman can investigae the matter?
- was complaint made by appropriate person
- was it duly made
- is the body in the jurisdiction of the Ombud.
- is it an excluded matter?
Some qu to consider when thinking will the ombud investigating?
- other remedies available? Is it reasonable to expect them to resort to these remedies ?
AUTHORITY TO LOOK AT OTHER REMEDIES FIRST FOR PARLIAMENTARY OMBUDSMEN?
Parliamentary Commissioner Act 1967 s 5(2)
AUTHORITY TO LOOK AT OTHER REMEDIES FIRST FOR SCOTTISH PUBLIC SERVICES OMBUDSMEN?
Scottish Public Authority Ombudsmen Act 2002
s 710
Other relevant qu?
Did maladministration occur?
Did it cause injustice?
What if public body doesn’t accept finding?
- can issue special report
- can refer to select committee who can investigate further
- also may seek JR of gov decision not to accept findings
Cannot qu the merits of the decision without being maladministration
PCS 1967 s 12(3)
SPSOA 2002 s7(1)
Crossman Catalogue of maladministration
Richard Crossman, 1996, Hansard
- bias
- neglect
- inattention
- delay
- incompetence
- inaptitude
- perversity
- turpitude
- arbitrariness
- so on
Injustice not just illegality but sense of outrage at treatment
Sedly J. R v Parliamentary Commissrion for Administration ex p Balchin 1997
So the argument that at the end of the day regardless result would have been the same has no effect here
Sedley J.
R v Parliamentary Commissioner for Administration ex p Balchin 1997
Authority for investigation in PCA 1967?
S 7
Authority for investigation in SPSOA 2002?
s 12
What are the rules of investigation outlined in these two sections?
- private
- PB has opportunity to comment
- Ombudsmen determines all other bits of procedure
Not lawful for public body to block access
Court can interfere and force coooperation s9/s14
Means of redress?
Individual reports or annual reportts before Parliament
Equitable Life (2007-2008)
Failure. Refused compensation scheme. Gov refused. Laid report before Parl. Still refused.
Shows system doesn’t always work
Reports have no legally binding effects
R (Bradley) v SoS for Work and Pensions 2007
- can refuse so long as not irrational in JR case (just need cogent reasons for decision)
Ombudsmen and JR?
- Oms should always refuse if other means of resolution
- but reports of Oms and goes reactions can always be subject to JR
