Tribunals Flashcards
History
After WW2 the government gave people more social rights. Tribunals are another form of ADR and run alongside the sourt system. They are used to help people enforce their entitlement to certain social rights.
Tribunals have more informal procedures and each Tribunal specialises in a different area.
If your case fails in the Tribunal, you cannot take it to court.
Types Of Tribunals
Administrative Tribunals
Most of these deal with disputes between individuals and the state arising from welfare legislation e.g. benefits or immigration.
One well-known example would be the Employment Tribunals, which deal with disputes between an Employer and the Individual.
Domestic Tribunals
This is an ‘In-House’ Tribunal, set up by private bodies for their own internal disciplinary control. For example, The General Medical Council supervises Doctors and The Law Society supervises Solicitors. These Tribunals investigate complaints against members and don’t apply to members of the public, only certain professions.
Development Of Tribunal System
As new laws gave new rights, the Tibunal System developed along with them; trying to create a new specialised area for each one.
Franks Report 1957
The Franks committee investigated the operation of the Tribunal System and predicted they would become a major part of the legal system. They recommended that the system should be:
- Open - Hearings in public and explinations of decisions.
- Fair - Clear Procedure, Parties should know their rights and the case against them.
- Impartial - Free of any Government influence.
The Report Was Largely Ignored.
Leggatt Report 2001
Tribunals have been reformed since the Tribunals, Courts and Enforcement Act 2007, which was prompted by this report from Andrew Leggatt CoA judge. The report said there were 70 different Tribunals varying in quality (excellent to inadequate).Leggatt said the system was not user friendly and lacked coherence, consistency and unity. He recommended a complete overhaul, which was done in 2006/7.
New Tribunal System
- In 2006, The Tribunals Service was created and was part of the Ministry of Justice.
- In 2007, The Tribunals, Courts and Enforcement Act was passed.
- In 2011, Tribunals joined Her majesty’s Courts Service to form Her Majesty’s Courts and Tribunals Service (HMCTS). They provide administration for most of the Tribunals.
Tribunals, Courts and Enforcement Act 2007
Part 1 of this Act created a new, simplified Tribunal Framework. Tribunals were categorised into 2 groups:
- First-Tier Tribunals: Like 1st instance Courts
- Upper-Tier Tribunals: Mostly Appelate Tribunals
- The only tribunal outside this framework is the Employment Tribunal.
The Act gave the Lord Chancellor power to transfer cases to the new system. Since 2008, more than 30 Tribunals have been transerred. The Two Tribunals are split into chambers with different jurisdictions.
Tribunal Chambers
Upper Tribunal
- Administrative Appeals Chamber
- Lands Chamber
- Tax and Chancery
- Asylum and Immigration
First Tier Tribunal
Chambers and Jurisdictions
- Social Entitlement Chamber: Social Security, Child Support, Criminal Injuries Compensation.
- Health, Education and Social Care: Mental Health, Special Needs Education, Disability.
- War, Pensions and Armed Forces Compensation: Appeals Only.
- General Regulatory: Charity, Estate Agents, Information Rights, Transport.
- Tax: Direct and Indirect Taxation.
- Asylum and Immigration: Immigration and Asylum.
Each Chamber is headed by a Chamber President and the Tribunals Judiciary is headed by the Senior President of Tribunals. Some Tribunals are excluded from this system e.g. Employment because it is a Domestic tribunal rather than Administrative.
Tribunal Structure
Who Supervises?
The council on Tribunals was abolished and replaced by the Administrative Justice and Tribunals Council. The council has a similar role but it also has the responisbility of keeping the whole Administrative Justice System under review. It has 10-15 members
Tribunal Procedure
Under Courts, Tribunals and Enforcement Act 2007, a new Tribunal procedure Committee has been established with responsibility for Tribunal rules of procedure. It porduced a set of Civil procedure rules, Introduced by the Civil procedure Act 1997.
Composition
Most Tribunals consist of a legally trained chairperson, known as a Tribunal Judge, and two Tribunal Members.
Tribunal judges are legally trained with expertise in the areas of law required for each type of Tribunal. Judges independence is protected by the Constitutional Reform Act 2005. They have the same security as judges. They are mainly appointed by the Judicial Appointments Commission.
Tribunal Members aren’t legally trained but have some expertie in the relevant subject areas e.g. doctors sit for certain health cases. The panel members have an active role in decision making Claimants are often appealing against the decision of a Government agency e.g. the NHS Recovery Unit.
Process
- Claimants must complete a appeal form first. Once this form is completed and sent to the Tribunal Service you may be asked to use the Pre-Claim Conciliation process if your claim is about Employment.
- If there is no conciliation process, a date will be set for the hearing.
- On the day, both sides will put their case to the Tribunal Judge and Panel. You can bring witnesses, documents etc.
- You can adress the Panel yourself, you don’t need to be legally represented. However, you can use a Lawyer or a nominated person i.e. a Trade Union Official or trusted associate.
- There may be an Online Service for making and responding to claims. If you choose to use this service (if there is one for that Tribunal), then you don’t have to appear before the Panel.
Appeals
Tribunals, Courts and Enforcement Act 2007 now provides a unified appeal structure for the Tribunal System. In most cases, a First Tier decision may be appealed to the Upper tribunal and the Upper to the Court of Appeal Civil Division. It is now possible for the Upper Tribunals to deal with some Judicial Review Cases that would have been dealt with by the High Court.
Employment Tribunal
Has its own Employent Appeals Tribunal, further appeal is available to the Court of Appeal Civil Division, on a Point of Law only.
Advantages
- Fast and Cost Effective: Many hearings are dealt with in a day. Tribunals don’t normally charge fees, so you will only have to pay if you hire a Lawyer. Each party pays own costs.
- Informal: Varies between Tribunals but strict rules of Evidence don’t apply and attempts are made to create an unintimidating atmosphere. However, the system is becoming increasingly formal.
- Flexibility: Tribunals don’t operate strict rules of precedent so can respond more flexibly than courts.
- Specialisation: Tribunal Members have expertise in relevant subject areas so the Panel has more in depth knowledge than any judge in court has.
- Awareness of Policy: Expertise of Members means they are likely to understand policy behind legislation.
Disadvantages
- Lack of openness: Some Tribunals are held in private which creates suspicion about their fairness.
- Unrepresented Applicant: Applicants who aren’t represented have lower chance of winning. Hazel Glenn, Effectiveness of Representation at Tribunals 1989 found applicants with lawyers had 49% success rate, those without had 28%.
- Lack of State Funding: Public funding isn’t available for most Tribunals, which puts people at disadvantage if other side uses a Lawyer. Average person won’t have good enough knowledge of legal system to present case well enough.
- More formal than ADR: Proceedings are very formal. Unfamiliar place and rules can be confusing for people presenting their own case. Judge is expected to take Inquisitorial role and help establish point person is trying to make, but this isn’t always achieved.
- Fees for Employment Tribunals: Government imposing to introduce fees, so person wishing to bring a claim will have to pay. The amount will depend on the value of the claim.
