Tribunals (L15/16)

Question 1

What are tribunals?

Answer 1

Tribunals are independent and judicial statutory bodies.

They hear and determine appeals by individuals against initial decisions made by governmental decision-maker (and some resolve disputes between individuals).

Tribunals are specialist.

People are far more likely to have their case decided by way of appeal by a tribunal rather than through judicial review.

Question 2

Why do tribunals exist?

Answer 2

Growth of the welfare/administrative state in the 20th century.
State begins to affect all aspects of our lives: housing, education, health, work.
Lots of new entitlements created and services provided: who will deal with disputes?
Perception that courts could not cope and were unsuited.
Need for high volume, accessible, expert remedy.
An early concern with ‘proportionality’.
Balancing the need for redress with cost of providing it.
Executive’s distrust of courts and desire to maintain control.

Question 3

What are the key features of tribunals?

Answer 3

Free standing, mono-functional adjudicatory institutions.

Understood as being “court substitutes”.
- P.Cane, Administrative Tribunals and Adjudication (Oxford, 2009).

Some core tribunal features:
Consider merits at first instance appeal. Often sit in panels (lay/legal/expert). Low cost. Informality. No/limited legal representation. Inquisitorial and supportive (?) Limited onward appeals on point of law.

Question 4

How does the legal basis for appeals differ from judicial review?

Answer 4

Appeals: statute.
Judicial review: inherent common law jurisdiction.

Question 5

How does the institution/character for appeals differ from judicial review?

Answer 5

Appeals: tribunals/judicial.
Judicial review: Admin Court/Court of Session/Upper Tribunal.

Question 6

How does the function for appeals differ from judicial review?

Answer 6

Appeals: to determine the merits, appeals on facts and law.
Judicial review: to review legality and human rights compliance.

Question 7

How does the procedure for appeals differ from judicial review?

Answer 7

Appeals: appeal directly to tribunals; fees payable in some tribunals.
Judicial review: civil procedure rules/ Court of Session rules; fees and charges are significant.

Question 8

What are the rationales for tribunals (and why are some of these flawed)?

Answer 8

Accessibility?
- Most people don’t appeal.

Procedural simplicity?
- Hearings can be legally complex.

Informality?
- Unrepresented applicants often at a disadvantage.

Speed?
- Delays common.
BUT
- “Unacceptable” scale of poor-quality initial decisions (PASC HC 162 2010-12).

Tribunals provide a more effective means of redress than other forms of legal and political accountability.

Question 9

Which are the 4 modern landmarks (both UK and Scotland) which led to reform of tribunals?

Answer 9

UK:
The Franks Report (1957).
- Led to Tribunals and Enquiries Act 1958.
The Leggatt Report (2001).
- Led to Tribunals Courts and Enforcement Act 2007.

Scotland:
The Phillips Report (2008).
- Was responded to in Tribunals (Scotland) Act 2014.
The Smith Commission (2014).
- Led to provisions on tribunals in s39 of Scotland Act 2016.

Question 10

What did the Franks Report (1957) identify as the advantages of tribunals?

Answer 10

Speed
Cheapness
Accessibility.
Freedom from technicality
Expert knowledge of subject matter.

Question 11

What did the Franks Report (1957) say were the three principles to underpin the tribunals system?

Answer 11

Openness.
Fairness.
Impartiality.

Question 12

What is the significance of, as well as the criticisms of the Franks Report (1957)?

Answer 12

Of his three principles, ‘impartiality’ is key:
- Debate about whether tribunals part of administrative or justice system.
- Franks pushed for a more independent, judicial approach.
- Ongoing tension between this move and informality.

Key criticisms:
Regime is chaotic. Different procedures. No ‘system’.

Question 13

What did the Tribunals and Inquiries Act 1958 achieve?

Answer 13

Amongst other things:
Creation of the Council on Tribunals;
Provisions on appointments, rights of appeal on a point of law, the giving of reasons;
Restrictions on exclusion of judicial review; and
Started a trend towards judicialisation (e.g. more use of legally qualified chairs).

Question 14

Which issues did Leggatt outline in his report in 2001?

Answer 14

Inefficient use of resources.
Lack of independence.
Lack of coherence.
Insufficient user-friendliness.

Question 15

How did Leggatt propose to remedy the issues within the tribunal system?

Answer 15

Aim was to create a system which was ‘independent, coherent, professional, cost-effective and user-friendly.’

A single unified two tier tribunal system; Clearly independent of policy departments; Headed by a President and with unified administration; Tribunals more user-friendly so users could represent themselves; Non-lawyers should sit only on the basis of relevant expertise; Procedure rules should be harmonised; Performance management for members and effective case management; More effective use of IT.

Question 16

As well as implementing Leggatt’s recommendations, what did the Tribunals, Courts and Enforcement Act 2007 achieve?

Answer 16

Also reflected the broader themes and ambitions of the 2004 Transforming Public Services White Paper.

The purpose of TCEA was to rationalise the tribunal system. TCEA created a new structure for ‘reserved’ tribunals i.e. UK/GB/England and Wales tribunals:
Two tier system: First-tier Tribunal (FTT) and Upper Tribunal (UT); FTT has eight chambers, and UT has three; Led by Senior President of Tribunals; Uniform onward appeal structure (from FTT to UT to Inner House/Court of Appeal).

Question 17

What did Administrative Justice Steering Group Options for the Future Operation and Supervision of Tribunals in Scotland (2008) conclude about the tribunal system in Scotland?

Answer 17

System in Scotland “complex and fragmented”.
Raised questions about actual or perceived independence.
Inconsistent appointment process.
Tribunals worked in isolation (lack of value/ variable performance).

Question 18

How was the Scottish tribunal system reformed between 2008 and 2015?

Answer 18

In 2010, a Scottish Tribunal Service was created to provide a unified administration for some Scottish tribunals.

In 2014, the Tribunals (Scotland) Act 2014 established a new framework for devolved tribunals broadly aligning with the reserved system.

The Tribunals (Scotland) Act 2014 creates a similar structure for Scotland: Two tier system - First-tier Tribunal for Scotland (FTTS) and Upper Tribunal for Scotland (UTS); FTTS will have several chambers, and UTS will have divisions; Under leadership of the Lord President assisted by the President of the Scottish Tribunals; Uniform onward appeal structure (from FTTS to UTS to Inner House); Implementation period of several years.

Question 19

How does Scotland Act 2016 s39 affect tribunals in Scotland?

Answer 19

Devolution of powers over the management and operation of reserved tribunals in Scotland.

Potential for conflict between the Scottish and UK Governments over balance to be struck between delivering reserved policy consistently and leaving room for a distinctively Scottish approach where appropriate?

See T Mullen and C Gill, Scottish Tribunals: Smith Commission Proposes Major Transfer of Jurisdiction to Scotland (2015) Scottish Constitutional Future Forum Blog.

Question 20

How do Scotland Act 2016 ss22 – 35 affect tribunals in Scotland?

Answer 20

Social security provisions:
Powers to amend aspects of Universal Credit.
Devolution of benefits for carers, disabled, and people who are ill.
Regulated social fund.
Discretionary housing payment.

Question 21

How does Social Security (Scotland) Act 2018 affect tribunals in Scotland?

Answer 21

Creates a social security decision-making process.

Establishes Scottish Commission on Social Security.
Requires Scottish Govt to draw up a Social Security Charter.

Recognises a human right to social security.

Imposes duty on Scottish Ministers to promote take up of assistance.
BUT
85% of social security spend still controlled from Westminster.
- See C. O’Cinneide “The Social Security Scotland Act 2018 – a rights based approach to social security?” Edin Law Review 2019, 23(1), 117-123.

Question 22

What is the stage of Scottish tribunals currently?

Answer 22

On our way to a two tier tribunal system, with broad equivalence between reserved and devolved structures.
A system that is more independent and more court-like.
A system which, consequently, is likely to feel less informal and user-friendly.
A GB/UK system which has seen a sharp drop in receipts following policy-led restrictions in appeal rights, especially in social security and immigration.
A Scottish devolved system which is more coherent and (potentially) distinctive in the longer term.

Question 23

What were early critiques of tribunals?

Answer 23

Early critiques of tribunals were that they affronted the rule of law or presented a form of poor man’s justice outside courts.

Question 24

How have tribunals become judicialised?

Answer 24

Chairs now ‘judges’. Upper Tribunal given a Judicial Review jurisdiction. Emphasis on structure and consistency against flexibility and creativity.

“[Before] it was mediation. It was, ‘We’ve got a little bit stuck now. It’s time for somebody independent to help us with this.’… [Now it is] ‘We’re going to a court of law and I’m bringing a solicitor’’ – a local authority administrator commenting on the First Tier Tribunal (Special Educational Needs and Disability).

An independent and more explicitly judicial tribunal.
E.g. Asylum appeal determines “de novo” whether individual has a well-founded fear of persecution or serious harm i.e. Determines facts and law.
Asylum Appeal personnel at First Tier Tribunal (Immigration and Asylum Chamber).

Question 25

How do onward appeals work within the tribunal system?

Answer 25

Most decisions of the First Tier Tribunal may be appealed (with permission) on a point of law to the Upper Tribunal.
Upper Tribunal decisions may also be subject to appeal (again with permission) to the Inner House or the Court of Appeal.

Question 26

How did the TCEA 2007 alter the nature of the Upper Tribunal?

Answer 26

Augmented the status of the Upper Tribunal by giving it a judicial review jurisdiction, normally the preserve of the higher courts:
The Court of Session ( and the High Court) now transfer some Judicial Reviews to the Upper Tribunal.

Implications of this new status?

Question 27

What happens when tribunal appeal rights have run out?

Answer 27

Judicial review may be an option – but the scope of review is limited.
E.g. Decision of UT to refuse permission to appeal from the FTT is non-appealable. But should it be subject to judicial review?

Question 28

What does R(Cart) v Upper Tribunal and Era v Advocate General for Scotland [2011] UKSC 29 tell us about when judicial review can be applied to tribunal decisions?

Answer 28

Held: judicial review of non-appealable UT decisions is restricted to:
(a) situations where an important point of principle or practice is at stake or
(b) there is some other compelling reason for review.

Led to “Cart JRs” – Independent Review of Administrative Law recommended that these be abolished on the (contested) basis that they were high volume but very unlikely to succeed.
Judicial review and Courts Bill Clause 2 contains “ouster clause” excluding UT’s permission decisions from judicial review.

Question 29

What are ongoing concerns about how accessible tribunals actually are now?

Answer 29

Concerns over:
Internal review as a substitute/mandatory stage before appealing.
- E.g. in immigration.

Restrictions to appeal rights.
- Government can remove appeal rights because they are statutory.

High tribunal fees.

Limited representation (exacerbated in the context of a more explicitly judicial tribunal system).

Question 30

What was said in the joint statement by Ministry of Justice, Lord Chief Justice of England and Wales, and Senior President of Tribunals, Transforming our Justice System (September 2016)?

Answer 30

Pilot to explore options for problem-solving approach by single judge.
Digital by default.
More staggered approach… resolve cases earlier down the line.

Question 31

What was said in Thomas and Tomlinson, “A different tale of judicial power” PL 2019 (supra) about the reforms required for the tribunal system?

Answer 31

“It would be naïve to suggest the Ministry of Justice’s ongoing reform project will be the breakthrough moment ( for administrative justice)….nevertheless it does indicate that there is a need to reform the effectiveness of justice processes and this should not be focussed exclusively on tribunals and courts. Given the increasing prominence of administrative review as either a substitute to or a mandatory stage prior to appeals and the concerns raised about this shift, the effectiveness and quality of initial and review decision making also requires improvement”.

Question 32

What reforms are being made to tribunals in Scotland?

Answer 32

Devolution of social security powers leading to new rights being created Social Security (Scotland) Act 2018.
Extent and value of appeal rights remain to be seen….