Week 4 - Tribunals, Ombudsman Inquests and Inquires

Question 1

Why does legal accountability matter?

Answer 1

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

Question 2

Routes to accountability

Answer 2

Tribunals - specific decisions

Ombuds schemes

Inquests

Public Inquiries

Internal complaints mechanism

Administrative reviews and reconsiderations

Question 3

Tribunals

Answer 3

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

Question 4

The first-tier tribunals and the upper tribunals

Answer 4

1. 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
2. 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
3. Each of the First-tier tribunals, and the Upper Tribunal, is to consist of its judges and other members
4. The Senior President of tribunals is to preside over both the First-tier Tribunal and the Upper Tribunal
5. The Upper Tribunal is to be a superior court of record
   His Majesty’s Courts and Tribunals Service (HMCTS)

Question 5

Tribunals are supposed to

Answer 5

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

Question 6

Poor quality decision-making

Answer 6

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

Question 7

Are tribunals cheaper?

Answer 7

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

Question 8

What if there is no right of appeal?

Answer 8

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%

Question 9

Tribunal trade-offs

Answer 9

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

Question 10

Ombudsman

Answer 10

‘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

Question 11

What is maladministration

Answer 11

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

Question 12

Intended advantages of the ombudsman

Answer 12

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

Question 13

Ombudsman schemes

Answer 13

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

Question 14

Sources of Ombudsman powers

Answer 14

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

Question 15

Two main functions of ombudsman

Answer 15

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

Question 16

Caveats

Answer 16

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)

Question 17

JR of the ombudsman decision

Answer 17

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

Question 18

Inquests

Answer 18

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

Question 19

Article 2: Right to life

Answer 19

A negative obligation to refrain from taking life
AND

A positive obligation to take appropriate measures to safeguard life

Question 20

The positive obligation

Answer 20

… give rise to a PROCEDURAL OBLIGATION to hold a more wide-ranging inquest if:

1. The death offered in state custody
   AND
2. Where is it arguable on the evidence the substantive duties under Article 2 have been breached in relation to the death

Question 21

Inquest juries

Answer 21

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

Question 22

Preventing future deaths

Answer 22

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

Question 23

Response to the report of Paragraph 7 - preventing future deaths

Answer 23

Paragraph 7…

3. 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

Question 24

Current inquires

Answer 24

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

Question 25

Six routes to legal accountability

Answer 25

Internal administrative review

Tribunal appeals

Ombudsman schemes

Public inquires

Article 2 inquests

Judicial review

Question 26

Individual and collective routes

Answer 26

“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

Question 27

Collective routes

Answer 27

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

Question 28

Housing Ombudsman report

Answer 28

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

Question 29

Grenfell Tower Inquiry

Answer 29

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