Week 4 - Tribunals, Ombudsman Inquests and Inquires Flashcards
Why does legal accountability matter?
Improving the quality of decision-making
Ensuring compliance with the law
Preventing officials from acting in their own interests or carrying out their own biases
Protecting people in state custody including hospitals/residential care
Protecting people in public in general
Preventing unlawful actions by all levels of government
Routes to accountability
Tribunals - specific decisions
Ombuds schemes
Inquests
Public Inquiries
Internal complaints mechanism
Administrative reviews and reconsiderations
Tribunals
Independent, statutory, specialist judicial body
Hears appeals against specific decisions
Can only act when there is a right of appeal/application
Decides cases on substantive merits and CAN substitute its own decisions
Most important due to their level of power
The first-tier tribunals and the upper tribunals
- There is to be a tribunal, known as the first tier, for the purpose of exercising the functions conferred or under or by virtue of this act or any other act
- There is to be a tribunal, known as the Upper Tribunal, for the purpose of exercising the functions conferred on it under or by virtue of this act or any other act
- Each of the First-tier tribunals, and the Upper Tribunal, is to consist of its judges and other members
- The Senior President of tribunals is to preside over both the First-tier Tribunal and the Upper Tribunal
- The Upper Tribunal is to be a superior court of record
His Majesty’s Courts and Tribunals Service (HMCTS)
Tribunals are supposed to
Deal with far more cases than the administrative court
Be cheaper, quicker, less formal, more specialized and less adversarial than the courts
Provide proportionate dispute resolution
Act as a safeguard against poor-quality decision-making
Poor quality decision-making
Department for work and pensions (DWP) - October to December 2023
30,000 cases were completed in the quarter
62% were revised in favour of the claimant, the same proportion as last year
Are tribunals cheaper?
High Court Judges £198,439 pa as of April 2022
Tribunal judge daily fees are £537.46 including all preparation and decision writing
Would have to sit 369 full days a year to cost the same as a High Court judge
71 judges in total in the kings judge and hundreds of tribunal judges
What if there is no right of appeal?
Immigration: Administrative review only for many visa categories
- The success rate in 2015/16 was 8%
- The success rate in 2016/17 was 3.4%
Tribunal trade-offs
Elliot and Thomas - Tribunals are:
- Slower and more expensive than internal review
- But judges would be more specialized in that area of law than a high court judge
- But quicker and cheaper than a full judicial review
- Judges are not as well qualified as those in the High Court
Ombudsman
‘Complaint man’
The role is to:
1. Investigate complaints of maladministration;
2. Secure redress for the injustice caused by maladministration;
3. Identify underlying reasons for maladministration and lessons which should be learned
What is maladministration
The law says the ombudsman must look for ‘maladministration’. The definition of maladministration is very wide and can include:
- Delay incorrect action of failure to take any action
- Failure to follow procedures or the law
- Failure to provide information
- Inadequate record-keeping
Failure to investigate
Failure to reply
Misleading or inaccurate statements
Inadequate liaison
Inadequate consultation
Broken promises
Intended advantages of the ombudsman
Cheaper, less formal and less legalistic than court proceedings
Free
Inquisitorial
Able to investigate lawful but poor service, rudeness, delays, maladministration
Will resolve disputes of fact
Last resort
Ombudsman schemes
Parliamentary and health service ombudsman investigates complaints about government departments, some other public bodies and complaints about NHS hospitals or community health services
Local Government and Social Care Ombudsman - investigates complaints about local councils, care homes and some other organizations providing local public services
Housing Ombudsman - resolves tenant or leaseholder disputes with the social landlord or a voluntary member of an ombudsman scheme
Prisons and Probation Ombudsman - independent investigators into deaths and complaints in custody
Sources of Ombudsman powers
Parliamentary and Health Service Ombudsman - powers almost wholly from the Parliamentary Commissioner Act 1967, as amended
Local government and social care ombudsman - powers from Local Government Act 1974
The housing Ombudsman scheme - section 51 and Schedule 2, Housing act 1996
Regulatory reform (collaboration etc between ombudsmen) order 2007 amended the 1974 act and clarified the powers of the LGSCO and the PHSO to work together
Two main functions of ombudsman
Redress Function: investigating, putting it right and obtaining an apology if appropriate, regarding individual grievances and complaints
Quality control function: broader role in looking at systemic issues
Eg. the “Debt of Honour’ cases; the Windrush Compensation Scheme
Caveats
Remedy of last resort - have to go through the body’s own complaints system first
Only deals with complaints about the body’s exercise for its public function
(There are also private-sector ombudsman schemes(
No single overarching body that runs the ombudsman schemes
Different remits between devolved nations (See Elliott and Thomas - table 16.1 pg653)
JR of the ombudsman decision
Not to investigate at all, or not to investigate all issues
Scope of investigation;
Lawfulness of the ombudsman’s decision-making process, on normal JR grounds
And the government’s failure to implement Ombudsmand recommendations
Inquests
Section 5(1) of the Coroners and Justice Act 2009: the purpose of a coroner’s investigation into a person’s death is to ascertain:
- Who the deceased was;
- How, when and where the deceased came by his or her death; and
-Certain formal particulars which need to be registered concerning the death
Article 2: Right to life
A negative obligation to refrain from taking life
AND
A positive obligation to take appropriate measures to safeguard life
The positive obligation
… give rise to a PROCEDURAL OBLIGATION to hold a more wide-ranging inquest if:
- The death offered in state custody
AND - Where is it arguable on the evidence the substantive duties under Article 2 have been breached in relation to the death
Inquest juries
Coroners and Justice Act 2009 s7 (2) - jury required if a coroner has reason to suspect that the deceased died in state custody and the death was violent or unnatural or the cause of death is unknown
In an inquest jury, the jury is allowed to ask questions to the witnesses etc
Preventing future deaths
Paragraph 7 of Schedule 5, Coroners and Justice Act 2009 - Report to Prevent Future Deaths. These go to the public authority/authorities concerned and to the Chief Coroner and are published on the Chief Coroner’s website
Paragraph 7(1) of Schedule 5 - Response from the public body - further detailed in The Coroners (investigations) Regulations 2013 Reg 28 and 29
Response to the report of Paragraph 7 - preventing future deaths
Paragraph 7…
- The response to a report must contain
a. Details of any actions that have been taken or which it is proposed will be taken by the person giving the response or any other person whether in response to the report or otherwise and set out a timetable of the action taken or proposed to be taken; or
b. An explanation as to why no action is proposed
(4) The response must be provided to the corner who made the report within 56 days of the date on which the report is sent
Current inquires
Post office Horizon inquiry
Grenfell fire inquiry
UK Covid inquiry and a Scottish counterpart
Undercover policing Inquiry
Thirlwall inquiry (events around the murders of babies at the Countess of Chester Hospital)
Independent Inquiry Relating to Afghanistan
Six routes to legal accountability
Internal administrative review
Tribunal appeals
Ombudsman schemes
Public inquires
Article 2 inquests
Judicial review
Individual and collective routes
“The ombudsman intervened and helped me to challenge the compensation Scheme’s decision. Now, they have accepted that I am eligible and that my case can be considered. The scheme has also changed the criteria so that others who are unable to live together are eligible for consideration - Beverley
Collective routes
Windrush Lessons Learned Review: The Windrush scandal was foreseeable, avoidable, and demonstrated a need for systemic and cultural change
30 recommendations
The home office accepted all 30 recommendations and published an implementation plan in September 2020
The home office announced it was dropping three key recommendations in January 2023
Judica review judgement June 2024
Unlawful to drop the plans to appoint a Migrants commissioner and to review the powers of the Independent Chief Inspector of Borders and Immigration (ICIBI)
-Indirect discrimination against Windrush victims;
- Breach of legitimate expectation that the Home Office would consult, and procedurally unfair
Housing Ombudsman report
This only applied to landlords who are members of the Ombudsman scheme 0 usually social landlords (housing associations, local authorities)
Complaint volumes and outcomes April 2019-March 2021
Grenfell Tower Inquiry
2.4 we conclude that the fire at Grenfell Tower was the culmination of decades of failure by the central government and other bodies in positions of responsibility in the construction industry to look carefully into the danger of incorporating combustible materials into the external walls of high-rise residential buildings and to act on the information available to them
