Administrative Review Paper: Judicial Power and Tribunals - PDF

**A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals** Robert Thomas[^1^](#fn1){#fnref1.footnote-ref} Joe Tomlinson[^2^](#fn2){#fnref2.footnote-ref} Administrative review is the process by which an administrative decision made b...

**A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals** Robert Thomas[^1^](#fn1){#fnref1.footnote-ref} Joe Tomlinson[^2^](#fn2){#fnref2.footnote-ref} Administrative review is the process by which an administrative decision made by a public official -- to refuse benefits or immigration status - is reconsidered by a different official within the same public body. Administrative review has operated in various contexts for years, but the rate of its recent expansion has been remarkable. Two systems have been key to this rapid growth. In the social security context, the introduction of 'mandatory reconsideration' requires that claimants refused benefits must first seek administrative review before appealing to a tribunal. In immigration, long-established appeal rights have been replaced entirely by administrative review. The volume of disputes channelled through administrative review exceeds that of tribunals and makes judicial review appear esoteric. This is a radical change to how people access and experience justice in the public law context. For the last fifty years and more, individuals in receipt of a negative administrative decision could appeal directly to independent and judicial tribunals to determine their legal rights and entitlements. The rationale for this fundamental shift is clear: the increase in tribunal caseloads and the success rates for appellants, austerity, and political objectives (the desire to reduce social security spending and immigration rates) have prompted the Government to reduce the number of tribunal appeals by requiring individuals to use administrative review. Within the longer arc of administrative justice developments, we suggest that administrative review should be understood as a consequence of the progressive judicialisation of tribunals. Government departments have argued that administrative review can provide people with an efficient and quicker way of correcting case-working errors and thereby reducing unnecessary appeals. On the other hand, there are concerns that administrative review is often an ineffective mechanism for challenging administrative decisions. This article argues that administrative review -- as it currently operates - is a problematic response to the increased judicialisation of tribunals. Administrative review has largely weakened the ability of people to secure redress. Reforms are therefore necessary to ensure administrative review can work more effectively in practice. The first part of this article discusses the need for justice within administrative decision-making and the development of tribunals. The second part turns to the recent expansion of administrative review. The third part considers the practical operation of administrative review in both the social security and immigration contexts. The fourth part assesses administrative review and suggests ways of enhancing its effectiveness. The final part considers the wider constitutional implications of the growth of administrative review. In particular, we suggest this episode of de-judicialisation provides an insight into nature of judicial power in UK public law. In contrast to the standard, high-profile debate about the growth of judicial power and the rise of 'juristocracy', the recent experience of administrative review tells a different tale. The greater use of administrative review has gone hand-in-hand with a correspondingly smaller role for the judicial control of front-line administrative decisions. **Administrative decision-making and the judicialisation of tribunals** *Justice within administration* The need for administrative justice begins with initial administrative decision-making and its impact upon people. All decision-making starts -- and most of it finishes -- at this level. Government departments, such as the Department for Work and Pensions (DWP) and the Home Office make millions of individualised decisions each year to determine people's entitlements and to implement policy. Such bodies are variants of a particular organisational model: the machine bureaucracy. That is, a large heavily-staffed organisation that undertakes a vast number of repetitive operating tasks through routinised and formalised procedures.[^3^](#fn3){#fnref3.footnote-ref} The basic legitimating value of this model is its ability to process a massive volume of decisions efficiently and accurately. Given their technical superiority, administrative bureaucracies are often the only viable means of managing large-scale social issues and for implementing democratically-mandated policy goals.[^4^](#fn4){#fnref4.footnote-ref} The ideal model of machine bureaucracy assumes the rational, accurate, and efficient implementation of policy. Yet, in practice, administrative bureaucracies are often afflicted by dysfunctional behaviour, which constrains their capacity to make robust decisions. Government agencies are subject to intense political pressures, overwhelmed with individualised decision-making, and administratively unstable. These dysfunctional aspects often have tragic consequences for those who interact with government. At the whim of a faceless 'decision-maker', claimants can often feel alienated and a loss of trust and dignity. For their part, caseworkers have to make complex, sensitive, and morally-demanding decisions that are often life-changing for the individuals involved.[^5^](#fn5){#fnref5.footnote-ref} For instance, is a benefit claimant unable to work for health or disability reasons? Is a foreign national entitled to leave to enter to join a family member already present in the UK? Yet, government bodies frequently operate in an impersonal and rule-bound manner. The often 'byzantine complexity' of administrative rules reflects a hyper-legalism in which their frequent misapplication is inevitable.[^6^](#fn6){#fnref6.footnote-ref} Weighed down by the volume of decisions and processing targets, caseworkers often apply the rules not as a means to an end but as an end in themselves. The mechanical application of the rules to a wide variety of citizens and circumstances can in turn result in arbitrary, insensitive, and incorrect decisions. Mistakes and errors arise either because of unintentional carelessness, oversights, and communication issues or from ill-intentioned bias.[^7^](#fn7){#fnref7.footnote-ref} The variable quality of administrative decisions and their implications for claimants is a long-standing theme of administrative justice.[^8^](#fn8){#fnref8.footnote-ref} Representatives and advocacy groups have frequently criticised the poor quality of government decisions. Tribunal decisions often illustrate the mix of intense concern and bafflement at chaotic procedures and poor decisions: '\[e\]very working day, the First-tier Tribunal overturns decisions of the Secretary of State because the decision maker has omitted to consider all the relevant issues';[^9^](#fn9){#fnref9.footnote-ref} '\[y\]et another case in which the removal of an award of the Personal Independence Payment was not dealt with in any sense adequately';[^10^](#fn10){#fnref10.footnote-ref} 'yet another case in which the putative appellant and the First-tier Tribunal was misled by HM Revenue & Customs and its defective procedures... A combination of Kafka and Captain Mainwaring might be thought unlikely to come up with such a sorry state of affairs.'[^11^](#fn11){#fnref11.footnote-ref} Immigration decisions frequently 'do not sufficiently rely on the law and guidance' relevant to the decision.'[^12^](#fn12){#fnref12.footnote-ref} Clearly administrative performance varies, but, at its worst, it includes inflexible attitudes, incomprehensible decision letters,[^13^](#fn13){#fnref13.footnote-ref} aggressive enforcement, and incompetence. The need for the effective control of government bureaucracies, and redress for those subject to their decisions, is clear. *Tribunals and judicialisation* For the last century and more, the principal remedy for challenging routine administrative decisions has been to allow people to appeal to tribunals. The overarching ethos of tribunals has long been swift, inexpensive, and uncomplicated access to justice.[^14^](#fn14){#fnref14.footnote-ref} The task of tribunals is to undertake a full examination of the merits of a claim. Government bodies engage in administrative processing and operate large, monolithic, and monopolistic processes. By contrast, tribunals appeal to a different set of values: judicial independence; fair procedures; and better-reasoned decisions. The emphasis is upon adjudication as a technique and a wider body of thought comprising: an impartial and judicial state of mind; consistency; and the careful collection and analysis of evidence.[^15^](#fn15){#fnref15.footnote-ref} Given the impact of decisions upon people, the exercise of sound judgement is at the heart of adjudication. Another crucial feature is the ability of affected persons to participate directly in the decision-making process.[^16^](#fn16){#fnref16.footnote-ref} There are inherent challenges to this ideal in practice. There is frequently an unequal relationship between claimants and government bodies 'One-shotter' claimants go up directly against 'repeat-player' public bodies.[^17^](#fn17){#fnref17.footnote-ref} The latter benefit not just from experience of the system, but also influence its design.[^18^](#fn18){#fnref18.footnote-ref} Given this fundamental inequality, tribunals provide some counterweight to the routinised, rigid, and impersonal processing of decisions. In hearings, tribunals meet claimants face-to-face and use their expertise and inquisitorial procedures to draw out evidence from claimants in order to make complex judgments. Just as importantly, given that their vulnerable clientele are often intimidated by legalistic procedures, tribunals try to cultivate an empathetic atmosphere in which claimants can feel confident about explaining personal aspects of their lives. Tribunals are far from perfect. There have been instances of failures by tribunals to act fairly and in accordance with legal principles.[^19^](#fn19){#fnref19.footnote-ref} Some tribunal hearings can be too adversarial and delays are now common. Nonetheless, generally speaking, adjudication by tribunal judges generally results in a higher standard of decision-making compared with that of pressurised front-line initial decision-makers. The development of tribunals both individually and collectively is not easily summarised, but a prominent theme over recent decades has been judicialisation.[^20^](#fn20){#fnref20.footnote-ref} This trend has various features: increasingly complex substantive rules; the appointment of legally qualified personnel as tribunal judges; a greater role for representatives; orderly procedures; reasoned decisions; and onward appeals.[^21^](#fn21){#fnref21.footnote-ref} This trend culminated in the creation of the First-tier and Upper Tribunals. Designated as a superior court of record, the Upper Tribunal is recognised as a specialist and expert body.[^22^](#fn22){#fnref22.footnote-ref} The gradual judicialisation of the tribunals system in recent decades has been largely led and approved by successive governments. Judicialisation is not necessarily an unmitigated good; it has been described as a 'profoundly ambiguous device'.[^23^](#fn23){#fnref23.footnote-ref} Making tribunals more like courts risks undermining their distinctive role. Legalistic procedures can significantly limit the ability of unrepresented claimants to participate effectively. Complex legal rules and Upper Tribunal case-law are well-known to government, but often impenetrable to unrepresented appellants. Formal equality can mask substantive inequality. Nonetheless, judicialised procedures have, on the whole, provided advantages for claimants in terms of fair process and legal accuracy.[^24^](#fn24){#fnref24.footnote-ref} In recent years, though, judicialisation has raised a number of concerns for government---namely the cost and delay of tribunal appeals, and the risk that a high proportion of allowed appeals will frustrate policy goals. Even before the financial crisis of 2007/08, the Government had framed the discussion of tribunals, and administrative justice more broadly, around the concept of 'proportionate dispute resolution'.[^25^](#fn25){#fnref25.footnote-ref} In practice, tribunal procedures, with their (current) heavy reliance on paper documents and hearings, are complex, drawn-out, and inefficient.[^26^](#fn26){#fnref26.footnote-ref} With austerity, legal aid restrictions have prompted concerns about a crisis in access to justice.[^27^](#fn27){#fnref27.footnote-ref} Previously, legal aid had been available for advice (in social security tribunals) or advice and representation (in immigration tribunals), but is now largely unavailable,[^28^](#fn28){#fnref28.footnote-ref} prompting the familiar problem of how litigants in person can navigate and participate in a legal process.[^29^](#fn29){#fnref29.footnote-ref} The coalition Government (2010-15) and the subsequent Conservative governments have focused on reducing public spending and have viewed tribunals as both overloaded and costly. Appeal fees have been introduced across a range of tribunals, though some have been found to be unlawful and some planned fee increases have been abandoned.[^30^](#fn30){#fnref30.footnote-ref} These restrictions, combined with the abolition of the Administrative Justice and Tribunals Council, have weakened administrative justice.[^31^](#fn31){#fnref31.footnote-ref} The main response of the Ministry of Justice to such concerns has been to announce a programme of court and tribunal reform that will introduce digital and online dispute resolution methods into tribunals.[^32^](#fn32){#fnref32.footnote-ref} In the meantime, government departments have expanded the use of administrative review. **Administrative review** Illustrating the fragmented administrative justice landscape, administrative review schemes have developed on an *ad hoc* basis. Indeed, from one perspective, 'administrative review' encompasses a wide miscellany of systems. Administrative review has been used widely in homelessness decision-making.[^33^](#fn33){#fnref33.footnote-ref} In the context of the Social Fund (abolished in 2013), there operated a distinctive scheme under which initial decisions were reviewed by a functionally separate administrative body, the Independent Review Service. Despite its controversial origins, this scheme developed a strong reputation for providing an independent, expert, timely, and high quality service.[^34^](#fn34){#fnref34.footnote-ref} Since 2009, tax decisions have been challengeable by way of administrative review or tribunal appeal.[^35^](#fn35){#fnref35.footnote-ref} In 2011, school exclusion appeals were downgraded to review panels.[^36^](#fn36){#fnref36.footnote-ref} A form of administrative review also operates at the preliminary stages of judicial review litigation in which many claims are settled out of court.[^37^](#fn37){#fnref37.footnote-ref} The growth in the use of administrative review in social security and immigration represents a major expansion of the technique. Tables 1 and 2 provide detailed information on social security and immigration reviews and appeals. **\ Table 1: Administrative review schemes** **Social security mandatory reconsideration** **Immigration administrative reviews** -------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------------------- **Basic design** Administrative review is mandatory before proceeding to a tribunal Administrative review has replaced most appeal rights **Who reviews?** A different decision-maker A different decision-maker **Legal basis** Secondary legislation Immigration Rules and administrative guidance **Time limit for requesting review** 30 days, with scope to extend for good reason; can appeal to a tribunal if request to extend is refused[^38^](#fn38){#fnref38.footnote-ref} 28 days for overseas decisions; 14 days for decisions taken in the UK; 7 days for detainees **Scope of review** **Revision on any grounds:** to reconsider the decision afresh To resolve case-working errors **Review procedure** Paper-based. Reviewers may telephone claimants to explain decisions and collect additional evidence Paper-based **Range of evidence considered** Additional evidence can be submitted Additional evidence cannot be submitted **Fee** No fee £80 fee (refundable) **Deadline for public authority to undertake reviews** No formal deadline; straightforward cases expected to be completed within 14 days No formal deadline; service standard of 28 days to complete reviews **Onward route of challenge** Appeal to tribunal Judicial review **Sporadic inspection** Report by the Social Security Advisory Committee (2016) Two inspections by the Independent Chief Inspector of Borders and Immigration (2016) and (2017) **Continuous external oversight** None None **\ ** **Table 2: Comparison of social security and immigration administrative reviews and tribunal appeals**[^39^](#fn39){#fnref39.footnote-ref} ----------------------------------------- -------------------------------- ---------------------- --------------------------------------------------------------- -------------------------------------------------- **Social Security** **Immigration** **Mandatory reconsiderations** **Tribunal appeals** **Administrative reviews** **Tribunal appeals** **Volume** (2017/18) 317,000 178,818 7,000 in-country reviews[^40^](#fn40){#fnref40.footnote-ref} 52,514 tribunal appeals; 10,000 judicial reviews **Unit cost** £80 £592 £80 (estimated) £707 **Average clearance times** 13 days 125 days 15 days 230 days **Proportion of successful challenges** 15 per cent 65 per cent 18 per cent 49 per cent ----------------------------------------- -------------------------------- ---------------------- --------------------------------------------------------------- -------------------------------------------------- The intention is that, by filtering our clearly wrong decisions, administrative review will reduce both unnecessary appeals and the associated costs and delays. Administrative review could also provide a more efficient and user-friendly redress mechanism than that offered by increasingly legalistic tribunals, especially in areas of mass administration. There are also arguments for administrative review from the claimant perspective. Research into users has found that people attach great importance to the timely resolution of disputes.[^41^](#fn41){#fnref41.footnote-ref} A legal model that situates vulnerable claimants and public authorities as adversaries is unlikely to assist those with urgent social needs, such as access to benefits. By contrast, a swift review by the public body has considerable advantages in terms of ease, efficiency, and providing a better way to resolve matters informally without the delay and anxiety of a hearing. For instance, a student visa appeal may take months to be heard---and conclude long after the start of the academic year---whereas an administrative review can take 15 days. The lower costs of administrative review arise from procedural differences. In tribunals, appellants attend hearings before a legally qualified tribunal judge and, in some appeals, a non-legal member (or members). By discarding costly and lengthy judicial procedures, administrative review can handle a large caseload more quickly and efficiently. Tribunal judges specialise in particular areas of administrative law whereas non-legal members bring other specialist skills, such as medical knowledge. Tribunals draw out evidence actively, through either inquisitorial or 'enabling' procedures for unrepresented appellants or more adversarial hearings with represented claimants.[^42^](#fn42){#fnref42.footnote-ref} They also issue detailed reasons and decisions that can be appealed to the Upper Tribunal. By contrast, administrative review is a wholly paper-based process typically undertaken by relatively junior officials. The reviewer will consider only the evidence previously submitted. In some contexts, such as social security, reviewers may contact claimants over the telephone to explain the initial decision and collect further information. Another difference is that appeals involve a complete assessment whereas administrative review is typically limited to correcting case working errors.[^43^](#fn43){#fnref43.footnote-ref} Beneath these formal differences lie differing cultural orientations and presuppositions between tribunal judges and reviewers located firmly within the administration. The debate over administrative review has largely fallen into two camps: traditional scepticism and a more sanguine view. In 1989, the Council on Tribunals stated that where an administrative decision affects a citizen\'s liberty, livelihood, status or basic rights, then nothing less than an appeal to a properly equipped judicial and independent adjudicative body would suffice.[^44^](#fn44){#fnref44.footnote-ref} Given its lack of institutional independence, administrative review cannot 'in any sense be regarded as a proper substitute for a right of appeal'.[^45^](#fn45){#fnref45.footnote-ref} On this view, any attempt to compromise the status of appeals in whole or in part on resource grounds would be wrong in principle. By contrast, the 2001 Leggatt review argued for the systematic use of administrative review to ensure that only the right cases would be taken to tribunals*.* Administrative review could be used to avoid the costs and stress of appeals and enable senior and experienced officers to identify problems in the system.[^46^](#fn46){#fnref46.footnote-ref} According to Leggatt, administrative review would be a 'valuable way of improving service to the public'---if public bodies looked at their own decisions critically and adopted the 'kind of independent-mindedness and impartiality which can be expected from tribunals'.[^47^](#fn47){#fnref47.footnote-ref} The critical question is then not one of principle but of practical effectiveness. To assess the recent growth of administrative review, it is necessary to examine its operation in areas such as social security and immigration. It is this to which we now turn. **Administrative review in operation** *Social security mandatory reconsiderations* The Department for Work and Pensions (DWP) makes some 12 million benefit decisions per year. Initial claims for benefits are lodged and then decided by officials. For the two principal benefits, Employment and Support Allowance and Personal Independence Payments, a health care assessment will often be undertaken by a 'healthcare professional' employed by a contracted-out provider. Refused claims can be appealed to the First-tier Tribunal (Social Entitlement Chamber) comprised of a tribunal judge and non-legal members.[^48^](#fn48){#fnref48.footnote-ref} In addition to appeals, the DWP has long had the power to revise its decisions.[^49^](#fn49){#fnref49.footnote-ref} In this way, administrative review is a fundamental feature of the system given that decision-making is often based on factors --an individual's circumstances, including their health and income -- that change frequently. In 2013, the DWP introduced mandatory reconsideration with the aim of resolving disputes as early as possible and reducing unnecessary demand on tribunals. This major process change made administrative review a distinct and mandatory stage before claimants could proceed to a tribunal. The former position was that claimants seeking to challenge initial refusal decisions could appeal direct to a tribunal. On receipt of an appeal, the DWP would routinely review its decision. If the decision was reviewed in the claimant's favour, then the appeal would lapse; if not, the appeal would proceed to the tribunal. With mandatory reconsideration, the review stage is a separate and compulsory stage. Claimants can now only appeal if they first request a mandatory reconsideration and then, second, lodge an appeal with the tribunal.[^50^](#fn50){#fnref50.footnote-ref} Such changes have taken place against a background of austerity and welfare reform to reduce benefit spending through stringent rules and policies, such as benefit sanctions.[^51^](#fn51){#fnref51.footnote-ref} A related and controversial feature has been the outsourcing of health assessments to private companies, such as ATOS and Maximus. Such providers have been subject to criticism concerning the quality of assessments and the resulting high appeal success rates. Between 2013 and 2017, some 300 officials (mostly at Executive Officer grade) decided some 1.5 million mandatory reconsiderations. The principal advantage of the process is timeliness. Since 2014, the average monthly clearance time for mandatory reconsiderations has not exceeded 20 days.[^52^](#fn52){#fnref52.footnote-ref} This compares with an average timescale of 20 weeks for appeals.[^53^](#fn53){#fnref53.footnote-ref} Given that benefits claimants have a significant interest in timely decisions on their entitlements, the shorter time taken by mandatory reconsideration is a considerable advantage. At the same time, there are various concerns with other aspects of the process. A major concern is that the two-stage nature of the process---mandatory reconsideration then appeal--has weakened access to justice by deterring claimants with strong cases from proceeding to tribunals. As Figure 1 demonstrates, there has been a dramatic decline in the number of appeals lodged following the introduction of mandatory reconsideration. In 2014/15, appeal receipts were 73 per cent lower compared with 2013/14.[^54^](#fn54){#fnref54.footnote-ref} There have been other contributory factors in play here too, such as the early cancellation in 2014 of the contract with ATOS to undertake health assessments and a consequent slowdown in initial decisions.[^55^](#fn55){#fnref55.footnote-ref} According to the DWP, the reduction in the volume of appeals is evidence that mandatory reconsideration was successful in its aim of resolving more disputes without the need for appeal.[^56^](#fn56){#fnref56.footnote-ref} \[Figure 1 here\] To some extent, a reduction in appeals was to be expected if the new system was working well. Mandatory reconsideration was justified in part as a filtering mechanism to reduce unnecessary appeals. Such filtering, common in other redress mechanisms such as judicial review and ombudsmen, is necessary to manage caseloads. Yet, with mandatory reconsideration, the filtering is being undertaken by the same government department whose initial decisions are being challenged, prompting concerns that government may have a self-interest in discouraging claimants from pursuing their cases further.[^57^](#fn57){#fnref57.footnote-ref} Furthermore, claimant fatigue can deter people from challenging decisions and this is likely to be a major factor here. Vulnerable individuals---such as those with a long-term disability or mental illness---often lack the ability and confidence to challenge official decisions, especially when their claim has already been rejected twice.[^58^](#fn58){#fnref58.footnote-ref} According to Judge Robert Martin (former President of the First-tier Tribunal (Social Entitlement Chamber)), mandatory reconsideration 'is of dubious advantage': There is also the related impact of taking social security out of scope for legal aid and reductions in advice services.[^60^](#fn60){#fnref60.footnote-ref} The Upper Tribunal has expressed scepticism as to whether mandatory reconsideration has any real advantages in reducing unnecessary appeals that have merit; under the previous system, the department would treat an appeal as a request for a revision and review the decision before it reached the tribunal.[^61^](#fn61){#fnref61.footnote-ref} Determined claimants can still appeal. Nonetheless, the need to make two applications to access the tribunal rather than the previous single application may well discourage vulnerable claimants with winnable cases from appealing because they find the process too onerous. As the Supreme Court recognised in *Unison*, impediments to access to justice can constitute a serious hindrance even if they do not make access completely impossible.[^62^](#fn62){#fnref62.footnote-ref} Such access to justice concerns have arisen in part because of the effect of mandatory reconsideration upon the behaviour of claimants. They have also arisen by the DWP adopting the position that applications for mandatory reconsideration made out of time did not generate a right of appeal to the tribunal. Instead, the Department contended, the appropriate remedy was to seek judicial review of the DWP's decision not to allow a mandatory reconsideration. However, in *R (CJ) and SG v Secretary of State for Work and Pensions* the Upper Tribunal ruled against the DWP holding that there was a high risk that vulnerable claimants with good claims could miss the time limits, a risk exacerbated by the reduction in advice services. According to the Upper Tribunal, the consequence of the Department's approach was that it had improperly assumed the role of gatekeeper to the tribunal system. To deny the right of appeal to claimants who made out-of-time applications for reconsideration would remove the right of appeal and result in a significant number of claimants entitled to benefits not receiving them.[^63^](#fn63){#fnref63.footnote-ref} What then of the quality of reconsideration decision-making? Shortcomings had been identified in the pre-2013 reconsideration system. There was little consistent evidence that the DWP had been effectively reconsidering decisions before they came to the tribunal; 'often the appeal papers show an unwillingness on the part of the decision-maker to reconsider the decision in the absence of the appellant supplying fresh medical or other third party evidence'.[^64^](#fn64){#fnref64.footnote-ref} With mandatory reconsideration, the Department stated that it would ensure its decisions would go through a 'robust reconsideration' by which decisions would be checked thoroughly and be accompanied by detailed reasons.[^65^](#fn65){#fnref65.footnote-ref} Nevertheless, the quality of reconsideration decisions has been criticised.[^66^](#fn66){#fnref66.footnote-ref} Tribunal Judges have expressed scepticism about the thoroughness of mandatory reconsideration and view the process as an additional administrative barrier for claimants who wish to challenge their decision rather than a substantive re-examination of the evidence.[^67^](#fn67){#fnref67.footnote-ref} Advisers have stated that decision notices often repeat initial refusal reasons without providing any further elaboration. There is also a widely held perception that the 'chances of a claimant actually having their decision revised at mandatory reconsideration stage are almost negligible to the point where most advisers and claimants view mandatory reconsideration as a formality and expect a negative decision.'[^68^](#fn68){#fnref68.footnote-ref} As regards claimants, of all the transactions they have with DWP, mandatory reconsideration has the lowest satisfaction rating.[^69^](#fn69){#fnref69.footnote-ref} Claimants have felt that new evidence submitted for a reconsideration is often ignored and that the process is more of a 'rubber stamp' than a thorough audit of the original decision.[^70^](#fn70){#fnref70.footnote-ref} This can in turn prompt some claimants to lodge appeals against poor decisions that could have been properly resolved earlier. It is common for claimants to be awarded no entitlement points initially, to submit additional information at the reconsideration, which then confirms the initial decision, for a tribunal to then award maximum points.[^71^](#fn71){#fnref71.footnote-ref} There are also concerns that reviewers routinely accept health care reports from the DWP's contracted-out supplier, the quality of which has been criticised,[^72^](#fn72){#fnref72.footnote-ref} and disregard other evidence such as a medical report by a General Practitioner. Tribunal judges have noted that they regularly see decision letters and health assessment reports at appeal hearings that have used standard or repetitive language for different functions, which in turn undermines confidence in the rigour of the original assessment.[^73^](#fn73){#fnref73.footnote-ref} Such features are, in turn, reflected in the noticeably lower success rates for claimants at mandatory reconsideration compared with appeals (see Figures 2 and 3). Of the 1.5 million reconsiderations decided since 2013, 20 per cent have been granted. By contrast, tribunal success rates have been substantially higher: 40per cent rising to 65 per cent. What is striking here is that while mandatory reconsideration was introduced to reduce unnecessary appeals, the proportion of appeals allowed by tribunals has increased by more than half. \[Insert Figures 2 and 3\] Comparing review and tribunal outcomes is not necessarily comparing like with like because of the different cohorts of claimants. Furthermore, the wider issue as to why tribunals allow appeals is contested. The DWP has argued that appeals are often allowed because claimants submit new evidence not previously considered.[^74^](#fn74){#fnref74.footnote-ref} The rate of allowed appeals is not a perfect way of measuring of the quality of initial decisions. Nevertheless, the high and unprecedented rate of allowed appeals -- 65 per cent -- confirms that the mandatory reconsideration process is not filtering out unnecessary appeals. On the contrary, the high success rate indicates that significant improvements are required to the reconsideration process so that it can capture the same information as tribunals. At present, the reconsideration process is likely to result in a significant number of claimants not receiving benefits to which they are entitled if they do not pursue their cases to the tribunal. The high proportion of allowed appeals erodes the trust of claimants and stakeholders in the system. According to the Senior President of Tribunals, the DWP frequently provides no justiciable defence against challenges to its decisions, resulting in unnecessary appeals and costs and an inappropriate experience for claimants. The mandatory reconsideration does not prevent a huge number of appeals proceeding to tribunals when they should not.[^75^](#fn75){#fnref75.footnote-ref} A further area of concern relates to the wider public goods of litigation which may be obscured by the expansion of administrative review.[^76^](#fn76){#fnref76.footnote-ref} One of the principal social purposes of administrative law litigation should be to identify ways of improving the quality of government decision-making more widely.[^77^](#fn77){#fnref77.footnote-ref} Ideally, a redress system should have feedback-loops built in throughout to improve front-line decisions.[^78^](#fn78){#fnref78.footnote-ref} However, there is a mismatch between the department's ambitions and administrative reality. The DWP aspires to a 'right first time' approach, but has struggled to raise the quality of decision-making. Staff undertaking mandatory reconsiderations have not been routinely notified if their decisions are overturned by tribunals.[^79^](#fn79){#fnref79.footnote-ref} Previous research has found that the most effective influence of tribunals was through direct personal experience by individual officials in seeing how tribunals adjudicated upon cases.[^80^](#fn80){#fnref80.footnote-ref} Yet, this is now something of a rarity as presenting officers rarely attend appeal hearings. The upshot is that the wider influence of tribunals upon the department is limited. Elsewhere in the benefits system, the problems have been more acute. The contracting-out of tax credit compliance checks to a private company, Concentrix, was marked by widespread failures in decision-making, such as official error and incorrect allegations of fraud. Vulnerable people lost benefits to which they were entitled, causing hardship. In this context, there was a 90 per cent success rate through mandatory reconsideration. This was accepted by both HM Revenue and Customs and Concentrix as a routine feature of the system, but there was no focus on improving initial decisions for those people who did not seek a mandatory reconsideration.[^81^](#fn81){#fnref81.footnote-ref} Overall, the underlying idea of having a quick and informal reconsideration of social security decisions is unobjectionable, but has been highly problematic in practice. The Social Security Advisory Committee raised concerns that mandatory reconsideration is not working as it should and made detailed recommendations.[^82^](#fn82){#fnref82.footnote-ref} In response, the DWP has sought to improve the gathering of evidence and the quality of decision-making.[^83^](#fn83){#fnref83.footnote-ref} Nonetheless, in 2018, the House of Commons Work and Pensions Committee, noting the renewed focus on quality, concluded that mandatory reconsiderations have **not always been characterised by thoroughness, consistency and an emphasis on quality.**[^84^](#fn84){#fnref84.footnote-ref} **Some claimants wrongly refused at both initial and reconsideration stage who do not possess the strength and resources to appeal will, to their detriment, simply accept bad decisions.** *Immigration administrative reviews* The Home Office decides some 3.5 million immigration applications per year under the Immigration Rules and supplementary policies. Immigration appeals were introduced in 1971 on the basis that it was fundamentally wrong and inconsistent with the rule of law that decisions affecting a person's whole future should be vested solely in officers of the executive without appeal.[^85^](#fn85){#fnref85.footnote-ref} Given the exceptionally sensitive nature of this jurisdiction and the risks of illegitimate executive pressure, great importance has long been attached to the safeguards provided by tribunals: a full re-hearing of the evidence by an independent and judicial decision-maker; adversarial hearings; detailed reasoned decisions; and onward rights of appeal. However, as pressures on the system have grown with the increase in immigration, so have the volume of appeals and associated costs.[^86^](#fn86){#fnref86.footnote-ref} The Home Office has long seen the appeals process as an impediment to its task of enforcing immigration controls. The deeply-embedded culture within the Home Office is that vexatious appeals are often lodged by people to postpone their removal from the UK and thereby increase their chances of being ultimately able to stay. In 2013, the then Home Secretary described the appeals process as 'a never-ending game of snakes and ladders' open to exploitation by foreign criminals, immigrants, and their lawyers to delay the enforcement of immigration law.[^87^](#fn87){#fnref87.footnote-ref} Yet, the appeals process has been relatively successful in providing individuals with an effective remedy. Some 40 per cent of immigration appeals were routinely allowed. When the Home Office has sought to weaken appeals, the courts have increasingly intervened.[^88^](#fn88){#fnref88.footnote-ref} Acutely aware of the obstacle to limiting overall immigration presented by tribunals, the Home Office has then endeavoured to curtail appeals as part of the drive to create a 'hostile environment' for immigrants. In 2014, all existing and long-standing immigration appeal rights (except on asylum and human rights grounds) were replaced with administrative review.[^89^](#fn89){#fnref89.footnote-ref} This was estimated to save £261 million over 10 years.[^90^](#fn90){#fnref90.footnote-ref} Given the toxic politics of immigration, replacing appeals with administrative review was widely viewed by immigration lawyers as another way of undermining fairness for applicants, reinforcing a deep-seated mutual distrust between them and the Home Office. In Parliament, it was argued that administrative review was not being introduced to secure fairness and justice, but to reduce the number of immigrants who would have succeeded had they been able to put their case to a tribunal.[^91^](#fn91){#fnref91.footnote-ref} **The Home Office had admitted** that the high appeal success rate was largely attributable to its own errors: approximately 60 per cent of appeals were allowed due to casework errors.[^92^](#fn92){#fnref92.footnote-ref} As one MP noted, 'the Government's response to this high margin of error is not to seek to improve the quality of their decision making, but rather to reduce the opportunities for challenge'.[^93^](#fn93){#fnref93.footnote-ref} This made little difference to the political juggernaut. Indeed, the Home Office argued that the delays and costs of appeals were 'not fair to applicants'.[^94^](#fn94){#fnref94.footnote-ref} The Joint Committee on Human Rights invoked the well-known dictum of Hale LJ: '\[i\]n this day and age a right of access to a tribunal or other adjudicative mechanism established by the state is just as important and fundamental as a right of access to the ordinary courts.'[^95^](#fn95){#fnref95.footnote-ref} Accordingly, withdrawing appeal rights undermined **the common law right of access to justice.**[^96^](#fn96){#fnref96.footnote-ref} But t**he Home Office was implacable: only fundamental rights cases justified the expense and delay of an appeal. Immigration decisions did not fall within the right to a fair trial (Article 6 ECHR).**[^97^](#fn97){#fnref97.footnote-ref} **The result is that only around 12 per cent of the 3.5 million immigration decisions per year now attract** a right of appeal. Previous administrative review processes in the immigration context have been widely criticised. Reviews had been characterised by boilerplate reasons, inconsistencies, and carelessness and were often ineffective in identifying errors.[^98^](#fn98){#fnref98.footnote-ref} **In 2004,** only one per cent of reviews succeeded for claimants compared with 40 per cent of appeals.[^99^](#fn99){#fnref99.footnote-ref} According to the then Independent Monitor, the Home Office needed to improve the quality of reviews.[^100^](#fn100){#fnref100.footnote-ref} The Home Office subsequently gave its administrative review system a clean bill of health.[^101^](#fn101){#fnref101.footnote-ref} Despite such concerns, reviews operated largely against the safety-net of appeals. By contrast, the 2014 changes marked a clean break with appeals and the withdrawal of this safeguard. Remaining appeals on human rights grounds may, in future, increasingly take place out of country.[^102^](#fn102){#fnref102.footnote-ref} To meet concerns about the abolition of appeals, ministers gave assurances.[^103^](#fn103){#fnref103.footnote-ref} Administrative reviews would be undertaken by fully trained and experienced staff who would be independent of the original decision-maker and located in a separate operational unit. Feedback mechanisms would be established. The Home Office would also monitor the overturn rate on administrative review and investigate any discrepancy with the appeal success rate.[^104^](#fn104){#fnref104.footnote-ref} In practice, none of these assurances were kept. The Chief Inspector of Borders and Immigration found that administrative reviews were being undertaken by low-level, untrained, and temporary staff with limited or no experience of immigration law, a notoriously complex area.[^105^](#fn105){#fnref105.footnote-ref} Quality assurance was minimal and ineffectual. Valid applications had been incorrectly rejected and this had not been picked up. To ensure a degree of independence, in-country reviewers had been organised into a functionally separate unit from initial decision-makers, but the unit had been staffed with junior and inexperienced officials. Complex cases were not referred upwards to more senior caseworkers. By contrast, overseas reviewers worked alongside primary decision-makers; although there was no evidence of bias, it was more difficult to demonstrate that reviewers were truly independent. As regards the quality of review decisions, reasons must be proper, adequate, intelligible, and deal with the substantial points raised.[^106^](#fn106){#fnref106.footnote-ref} While some review decisions are robust and detailed, others have been characterised by 'an over-reliance on the initial refusal decision letter' without addressing the applicant's points of challenge.[^107^](#fn107){#fnref107.footnote-ref} Perfunctory review notices that merely reiterate initial refusal reasons do not comprise an effective review.[^108^](#fn108){#fnref108.footnote-ref} Another constraining factor is that fresh evidence will normally be disregarded irrespective of its importance.[^109^](#fn109){#fnref109.footnote-ref} Tribunal appeals are *de novo*, but reviews are limited to identifying case-worker errors. Success rates have been lower - far lower - than those of appeals. Some 49 per cent of appeals allowed under the former regime. The Home Office had concluded that 60 per cent of allowed appeals succeeded due to case-working errors. By contrast, in 2015-16, the success rate for administrative reviews was eight per cent for in-country reviews and 22 per cent for at the border reviews.[^110^](#fn110){#fnref110.footnote-ref} In 2016/17, the success rate was 3.4 per cent for in-country reviews and 6.8 per cent for border reviews.[^111^](#fn111){#fnref111.footnote-ref} Assurances that such discrepancies would be investigated were unfulfilled -- as were promises of feedback loops to improve initial decision-making. The only assurance met was that reviews would be processed within 28 days. On top of this, the replacement of appeals with reviews reveals a wider flawed design. Without appeals, recourse to judicial review becomes more likely. However, judicial review is a less effective remedy than an appeal for challenging individualised decisions.[^112^](#fn112){#fnref112.footnote-ref} Tribunals undertake a full examination of the factual and legal basis of an individual's case. The inability of the judicial review court to engage in fact-finding or to substitute decisions renders it an 'entirely unsatisfactory' mechanism for determining individual fact-sensitive issues.[^113^](#fn113){#fnref113.footnote-ref} Judicial review is also more costly, takes longer than appeals, and the Upper Tribunal currently has a high caseload.[^114^](#fn114){#fnref114.footnote-ref} In 2016, the Chief Inspector of Borders and Immigration has concluded that there was 'there was significant room for improvement in respect of the effectiveness of administrative review in identifying and correcting case working errors, and in communicating decisions to applicants'.[^115^](#fn115){#fnref115.footnote-ref} Even the normally defensive Home Office accepted that 'quality has not consistently been of the standard to which we aspire' and largely accepted the recommendations made.[^116^](#fn116){#fnref116.footnote-ref} A subsequent investigation found some improvements by the Home Office.[^117^](#fn117){#fnref117.footnote-ref} Yet, it also found that the Home Office had been unable to demonstrate that it had delivered an efficient, effective, and cost-saving replacement for the previous appeals mechanisms.[^118^](#fn118){#fnref118.footnote-ref} There continue to be weaknesses remaining in respect of reason-giving, the lack of a dedicated team for overseas reviews, and the variable level of quality assurance for overseas and border reviews. In its response to the report, the Home Office, noting that in-country reviews have improved, accepted that progress has been slower for reviews undertaken overseas and at the border. **Assessing administrative review** The principal test of administrative justice is whether the qualities of a decision-making process provide arguments for the acceptability of its decisions.[^119^](#fn119){#fnref119.footnote-ref} There is a range of competing arguments for the acceptability of administrative decisions and therefore different conceptions of administrative justice, which is itself a contested concept.[^120^](#fn120){#fnref120.footnote-ref} A judicial conception of administrative justice, associated with tribunal adjudication, coexists alongside a bureaucratic conception of administrative justice, associated with administrative review. Acceptability implies a range of criteria such fairness and efficiency, but especially prominent are trust and confidence.[^121^](#fn121){#fnref121.footnote-ref} These criteria can be used to determine the optimum balance between the different conceptions of administrative justice and the institutional arrangements associated with them. The detailed examination of administrative review presents a mixed picture. There are pockets of good practice. Some individuals may feel that their particular cases are handled satisfactorily. Nonetheless, there are serious concerns concerning the operation of administrative review schemes. In principle, administrative review could provide a swift and effective review of a decision, but in practice, the quality of review procedures and decision outcomes is highly variable. Success rates are substantially lower than those of tribunals. Mandatory reconsideration seems to deter some benefit claimants from pursuing their case to a tribunal. Immigration appeals have been largely abolished. There is little evidence that administrative review has raised the quality of initial decisions. Many of the legitimising qualities of tribunals have effectively been jettisoned for little in return. In light of such features, it is unlikely that many claimants would have confidence in administrative review as an adequate remedy. It might be objected that this analysis is misplaced: administrative review will inevitably be seen as inferior when compared with tribunals. But, given the relative importance of decisions, everyone ought to be able to expect a good decision to determine their entitlements. It is important not to allow the search for the best to defeat the good but, to be effective, redress procedures must achieve minimum standards. Even from a more sanguine view of the new administrative review, the practical effect of administrative review has been to weaken the ability of people to secure effective redress. Process does not wholly determine outcome. Nevertheless, substantive legal rights and entitlements are likely to become ineffective or less effective whenever procedural guarantees are reduced.[^122^](#fn122){#fnref122.footnote-ref} The risk is that fewer claimants now qualify for their entitlements because of the shift from tribunals to administrative review. Administrative review has also weakened public accountability of government. The transparency and openness provided by independent tribunal scrutiny has been significantly reduced. Indeed, it has been argued that the real attraction of administrative review is that it enables government to conceal the full inadequacies of initial decision-making from public scrutiny.[^123^](#fn123){#fnref123.footnote-ref} Another wider consequence is that the proliferation of different administrative review schemes represents another likely source of confusion to the public. The appeals-complaints dichotomy is not widely appreciated by the public and liable to confuse.[^124^](#fn124){#fnref124.footnote-ref} Administrative review adds a further set of distinctions likely to exacerbate the problem. On the basis of the way review systems have been implemented, the recent expansion of administrative review is, in essence, a problematic response to the judicialisation of tribunals. Enhancing the quality of administrative review is then required. In this respect, the Law Commission's decision to undertake a law reform project on administrative review provides an excellent opportunity to formulate common standards.[^125^](#fn125){#fnref125.footnote-ref} We suggest that the following reforms are worthy of consideration. First, to ensure their independence and to insulate them from political and administrative pressures, administrative review systems need to operate with a degree of separation and autonomy from initial decision-making units. Second, reviews should be undertaken by senior and specialist reviewers with experience of initial decision-making. Such reviewers need specialist training in the essential aspects of decision-making: fact-gathering and assessment; using inquisitorial procedures effectively; and reason-giving. Third, independent external quality assurance panels should be established to ensure quality and promote public confidence. At present, government departments have complete control of both initial and review decisions and procedures. External and expert quality assurance has obvious benefits in terms of subjecting individual decision-making to scrutiny. In this respect, the refusal of both the DWP and the Home Office to allow such oversight is an unfortunate missed opportunity.[^126^](#fn126){#fnref126.footnote-ref} Fourth, government bodies should assume greater responsibility for promoting the quality of both procedures and decision outcomes. At present, some claimants experience unnecessary difficulty in attaining their entitlements. This is self-defeating as it undermines the legitimacy of government. Government must ensure that the quality of procedures and decisions has equal priority as speed and cost. To this end, government needs to invest in developing adjudication as a decision-making technique and embed a culture of adjudication within the administrative review process in order to raise and maintain the quality of decision-making.[^127^](#fn127){#fnref127.footnote-ref} Another option would be to make government departments themselves pay the costs of allowed appeals. More generally, there needs to be a strong commitment to the principle of systematic improvement to raise the quality of both initial and review decisions. If government bodies made better quality initial decisions first time round, there would be fewer disputed decisions and less need for dispute-resolution procedures of any kind. The fate of such proposals, of course, rests with government itself taking the initiative.[^128^](#fn128){#fnref128.footnote-ref} **Administrative review, judicial power and the separation of powers** In this part we consider the implications of the expansion of administrative review and the corresponding displacement of tribunals for the wider understanding of the public law system. In particular, we consider what insights this experience offers in respect of the debate on judicial power and the separation of powers within the UK constitution. In recent years, public law scholars have engaged in wide debates over the legitimacy of an increased judicial willingness to review government decisions as illustrated by many cases decided under the Human Rights Act 1998 and the development of a common law rights jurisprudence.[^129^](#fn129){#fnref129.footnote-ref} One concern is that the courts have been progressively trespassing their appropriate constitutional and institutional boundaries, and thereby becoming too involved in essentially 'policy' decisions that ought to be taken by elected decision-makers.[^130^](#fn130){#fnref130.footnote-ref} In turn, judicial power is usurping political and democratic power thereby breaching the separation of powers and creating a 'juristocracy'.[^131^](#fn131){#fnref131.footnote-ref} While there have been volumes written on the topic of judicial power, the significant dismantling of judicial control of government effected through the expansion of administrative review and the displacement of tribunals has been entirely absent from this debate. The growth of administrative review illustrates how judicial power has changed in *multiple* directions over recent years. The expansion of judicial control in some areas, such as constitutional judicial review, has been accompanied by the restriction and marginalisation of judicial control in other areas, such as administrative justice. This prompts questions about how *power* is understood in the debate around judicial power. The mainstream debate exclusively views judicial power as the ability of elite courts to strike down the policies and decisions of elected politicians. Yet, judicial power takes other forms. In the administrative justice context, tribunals decide appeals against decisions made by junior administrators who are themselves under pressure to clear caseloads quickly. On this approach, the growth of administrative review is one of the most significant developments in judicial power in recent years. Far from being part of a rising 'juristocracy', the tribunals judiciary occupy a relatively precarious position within the UK's constitutional framework. Their role has been marginalized and limited by the introduction of administrative review. As explained above, this has largely been prompted not just by cost considerations but also by a political desire to reduce the number of successful appeals. The rise of administrative review also provokes reflection on the nature of the separation of powers more generally. It has become more common to argue that the UK constitution is now firmly based upon the concept of the separation of powers.[^132^](#fn132){#fnref132.footnote-ref} Yet, the expansion of administrative power has called into question the appropriateness of the concept of the separation of powers. Rubin has argued that, in the context of the modern administrative state, the account of government derived from the classic tripartite separation of powers metaphor of the "three branches" checking and balancing each other is now out of place and out of time.[^133^](#fn133){#fnref133.footnote-ref} Instead, we should move beyond such simple conceptualisations and think more closely about the complex "networks" of accountability that give shape to the state and the justice system. In this respect, the growth of administrative review stands out as a clear example of the ability of government to reshape fundamentally---in both design and effect---its own procedures and external dispute mechanisms. The principal check on the performance of the administrative review systems has come from neither Parliament nor the courts, but by other parts of government, such as the Social Security Advisory Committee and the Independent Chief Inspector of Borders and Immigration. These monitoring bodies have recommended detailed reforms --some, though far from all, of which have been accepted. Overall, the expansion of administrative review underlines the huge amount of power inherent in positions occupied by government as designer, operator, participant, and controller of administrative justice processes. From this perspective, the growth of administrative review in social security and immigration represents a form of capture of the justice system by government departments that make initial decisions who have extended their own dispute resolution systems at the expense of public justice systems. There is also a perceived judicial reluctance to intervene in the operation of administrative systems. The courts have recognised that administrative review is a markedly less favourable remedy than tribunal appeals.[^134^](#fn134){#fnref134.footnote-ref} They have also undertaken increasingly wide-ranging interventions in the operation of *judicial* procedures on the developing ground of systemic procedural unfairness.[^135^](#fn135){#fnref135.footnote-ref} However, the courts are much more hesitant when it comes to inquiring into how an *administrative* process handles a mass caseload and to devise appropriate interventions to promote fair process and improve decision-making standards.[^136^](#fn136){#fnref136.footnote-ref} The right to a fair trial under Article 6 ECHR offers no scope for intervention in the immigration context, but has some potential bite in the social security context.[^137^](#fn137){#fnref137.footnote-ref} The long-established curative principle, that access to judicial review---as opposed to an appeal---is sufficient to remedy administrative unfairness, has increasingly been doubted. The Upper Tribunal and the higher courts have emphasised the advantages of appeals over judicial review when expanding immigration appeals and, in the social security context, to prevent the mandatory reconsideration time limit from reducing access to tribunals.[^138^](#fn138){#fnref138.footnote-ref} A putative common law jurisprudence on access to justice could provide a basis for judicial intervention, though this is only ever likely to reduce some of the particularly sharp edges.[^139^](#fn139){#fnref139.footnote-ref} Overall, the recent experience with administrative review exposes a different side to contemporary debates about judicial power and the separation of powers within the UK constitution. Instead of the expanded powers wielded by a juristocracy, judicial control has been significantly curtailed by government. Instead of effective Parliamentary oversight and control of administrative power, we see government redesigning and controlling its own redress system while being subject to minimal scrutiny from the legislature. Finally, the courts have demonstrated only limited power to influence the operation of administrative review systems which, on examination, can have adverse consequences for administrative justice. **Conclusions** This article has considered the recent rapid growth of administrative review through detailed studies of social security and immigration review processes. This experience reflects a wider and inherent predicament of contemporary justice systems. All justice processes face a fundamental trade-off between the need for fairness and efficiency.[^140^](#fn140){#fnref140.footnote-ref} People want an authentic and credible means for resolving their disputes which are of high-quality, effective, timely, and use fair procedures. In practice, such procedures tend to be costly. Increases in cases can produce backlogs and delays. In response, government has sought to balance the competing pressures by constraining access to formal legal procedures and compelling people to into administrative review processes. The basic problem is that such alternative processes typically, though not necessarily, lack the authenticity and effectiveness of formal legal procedures and tend to weaken public confidence. In principle, administrative review could be an advantageous way of seeking to resolve disputes quickly, at lower cost, and with less anxiety for individuals than appearing before tribunals. However, drawing upon a range of empirical evidence, we have demonstrated that the operation of administrative review in practice---at least in the contexts we have discussed---is characterised by multiple problems. The expansion of administrative review tends to reduce both access to justice and the quality of decision-making. Overall, there is a lack of independence and impartiality in how reviews are undertaken. There is variation in the way evidence is handled and in how review decisions are made. Administrative review success rates are far lower than those of tribunals. The insertion of administrative review has either withdrawn access to tribunals or made such access more difficult---displacing tribunals and curtailing judicial control of government. These shortcomings severely limit the effectiveness of administrative review. The overall outcome is a negative one for individuals in terms seeking access to justice to obtain their legal entitlements. At least in its present form, the development of administrative review represents a significant deterioration in the quality of administrative justice system. The good news is that there is considerable scope to improve the operation of administrative review processes, if government decides to demonstrate a credible commitment in this regard. Placed within the wider context of the UK's constitutional arrangements, the analysis of administrative review presented here offers a contrasting narrative to that at the centre of recent debates on judicial power and the separation of powers. This is a tale of de-judicialisation at a time when the dominant scholarly focus is on the expansion of judicial power by elite courts. The growth of administrative review and the corresponding displacement of tribunals highlights how judicial control is heavily influenced by government policy. This should now feed into wider debates about judicial power. Looking forward, there are the implications for administrative review from the tribunals modernisation programme currently being implemented by the Ministry of Justice.[^141^](#fn141){#fnref141.footnote-ref} The broad intention is to transform tribunals by making them digital by default in order to improve both efficiency and access to justice. In the social security context, physical tribunal hearings are to be largely, though not fully, replaced by continuous online hearings in which appellants interact with the tribunal through an online messaging service to narrow and resolve down the issues whilst retaining the option of oral hearings. Online procedures would be much quicker than the current average of 20 weeks. In the immigration context, greater use will be made of video link hearings. With the advent of online tribunal procedures, the distinction between administrative review and tribunal procedures may again be reconsidered: does it make sense to operate paper-based administrative review procedures while simultaneously introducing online tribunal hearings? There are many questions and concerns about these reforms.[^142^](#fn142){#fnref142.footnote-ref} Reintroducing appeals via a new online approach could increase caseloads, but doing so would also likely enable swifter and better quality decisions than those currently provided by administrative review. Such a step would follow a logic that pursues the enhancement of administrative justice. However, as highlighted above, the digitalisation of tribunals is the Ministry of Justice's response to austerity justice while administrative review is the response of other government departments---namely, the Home Office and the DWP. It would be naïve to suggest the Ministry of Justice's ongoing reform project will be the breakthrough moment where the vision of a joined-up approach to administrative justice system-design is realised, when that has not been the case so far. Nevertheless, it does indicate that there is a need to reform the effectiveness of justice processes and this should not be focused 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 require improvement. Note: this Figure shows the number of social security appeals decided, allowed, and dismissed. Source: Ministry of Justice, ***Tribunals and Gender Recognition Statistics Quarterly* (2018).** [\[CHART\]]{.chart} Note: this figure shows the number of mandatory reconsiderations decided and those allowed in favour of claimants. Sources: DWP, *Employment and Support Allowance: Work Capability Assessments, Mandatory Reconsiderations and Appeals* (2018); DWP, *Personal Independence Payments: Official Statistics* (2018). [\[CHART\]]{.chart} Note: this Figure shows the proportion of social security appeals allowed by the First-tier Tribunal (Social Entitlement) Chamber and the proportion of mandatory reconsiderations by the DWP in favour of claimants. Sources: DWP, *Employment and Support Allowance: Work Capability Assessments, Mandatory Reconsiderations and Appeals* (2018); DWP, *Personal Independence Payments: Official Statistics* (2018); Ministry of Justice, ***Tribunals and Gender Recognition Statistics Quarterly* (2018).** ::: {.section.footnotes} ------------------------------------------------------------------------ 1. ::: {#fn1} ^\*^ University of Manchester.[↩](#fnref1){.footnote-back} ::: 2. ::: {#fn2} ^\*\*^ King's College, London.[↩](#fnref2){.footnote-back} ::: 3. ::: {#fn3} H. Mintzberg, *The Structuring of Organizations* (Englewood Cliffs, N.J.: Prentice-Hall, 1979), pp.314-347. Cf. Mashaw's model of 'bureaucratic rationality': J. Mashaw, *Bureaucratic Justice: Manging Social Security Disability Claims* (New Haven: Yale University Press, 1983), pp. 25-26.[↩](#fnref3){.footnote-back} ::: 4. ::: {#fn4} Over recent years, government has increasingly outsourced functions to private providers to reduce costs. For instance, health care professional reports used in benefit decision-making are produced by private providers.[↩](#fnref4){.footnote-back} ::: 5. ::: {#fn5} B. Zacka, *When the State Meets Street* (Massachusetts: Harvard University Press, 2017).[↩](#fnref5){.footnote-back} ::: 6. ::: {#fn6} *Pokhriyal v Secretary of State for the Home Department* \[2013\] EWCA Civ 1568 at \[4\] (Jackson LJ), on the Immigration Rules.[↩](#fnref6){.footnote-back} ::: 7. ::: {#fn7} For high-profile examples, see House of Commons Public Accounts Committee, *Employment and Support Allowance,* HC Paper No.975 (Session 2017-19); House of Commons Home Affairs Committee, *The Windrush Generation,* HC Paper No.990 (Session 2017-19).[↩](#fnref7){.footnote-back} ::: 8. ::: {#fn8} N. Wikeley, 'Future Directions for Tribunals: A United Kingdom Perspective' in R. Creyke (ed.), *Tribunals in the Common Law World* (Sydney: Federation Press, 2008), pp.175-184; Administrative Justice and Tribunals Council, *Right First Time* (2011).[↩](#fnref8){.footnote-back} ::: 9. ::: {#fn9} *RR v* *Secretary of State for Work and Pensions* (JSA) \[2017\] UKUT 50 (AAC) at \[39\].[↩](#fnref9){.footnote-back} ::: 10. ::: {#fn10} *PM v Secretary of State for Work and Pensions* (PIP) \[2017\] UKUT 37 (AAC) at \[1\].[↩](#fnref10){.footnote-back} ::: 11. ::: {#fn11} *DG v HMRC and EG* (TC) \[2016\] UKUT 505 (AAC) at \[1\]-\[2\]. See also *JW v HMRC* (TC) \[2015\] UKUT 359 (AAC) at \[1\]: 'yet another case that falls into the litany of cases in which the dreadful quality of HMRC's appeal response to the First-tier Tribunal is a central issue'.[↩](#fnref11){.footnote-back} ::: 12. ::: {#fn12} Oral evidence of ***Sir Ernest Ryder (Senior President of Tribunals) before the*** House of Lords Constitution Committee, *The Legislative Process*, HL Paper No.27 (Session 2017-19), 16 November 2016, ***Q.44.***[↩](#fnref12){.footnote-back} ::: 13. ::: {#fn13} The DWP's Permanent Secretary has admitted that even he does not understand all the letters his department sends to claimants: House of Commons Public Accounts Committee, *Employment and Support Allowance,* HC Paper No.975 (Session 2017-19), para.20.[↩](#fnref13){.footnote-back} ::: 14. ::: {#fn14} *Report of the Committee on Administrative Tribunals and Enquiries,* Cmnd 218 (1957) (the Franks report).[↩](#fnref14){.footnote-back} ::: 15. ::: {#fn15} W.A. Robson, *Justice and Administrative Law* (London: Stevens, 3^rd^ edn., 1951), pp.360-418; J. Jowell, 'The Legal Control of Administrative Discretion' \[1973\] P.L. 178, 194-200. For the perspective of a tribunal judge, see N. Warren, 'The Adjudication Gap' (2006) 13 J.S.S.L. 110.[↩](#fnref15){.footnote-back} ::: 16. ::: {#fn16} Tribunals, Courts, and Enforcement Act 2007, s 2(3) and the overriding objective in tribunal procedure rules, e.g., Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008(SI 2685/2008), r.2.[↩](#fnref16){.footnote-back} ::: 17. ::: {#fn17} M. Galanter, 'Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change' (1974) 9 *Law & Society Review* 95.[↩](#fnref17){.footnote-back} ::: 18. ::: {#fn18} V. Bondy and A. Le Sueur, ***Designing Redress: A Study About Grievances Against Public Bodies* (2012).**[↩](#fnref18){.footnote-back} ::: 19. ::: {#fn19} See, e.g., *MM v SSHD and others* \[2017\] UKIAT (AA/06906/2014, 30 August 2017) \[serious errors in various decisions by the same immigration judge\]; *GC v HMRC and DC* (CHB) \[2018\] UKUT 223 (AAC), \[4\]: 'The FTT's procedural handling of these appeals has been shambolic. It has also resulted in a prolonged and unacceptable delay'.[↩](#fnref19){.footnote-back} ::: 20. ::: {#fn20} G. Drewry, 'The Judicialisation of "Administrative" Tribunals in the UK: From Hewart to Leggatt' (2008) 28 *Transylvanian Review of Administrative Sciences 45; R. Thomas, '*Current Developments in UK Tribunals: Challenges for Administrative Justice' in S. Nason (ed.)*, Administrative Justice in Wales and Comparative Perspectives* (Cardiff: University of Wales Press, 2017).[↩](#fnref20){.footnote-back} ::: 21. ::: {#fn21} C. Harlow and R. Rawlings, *Law and Administration* (Cambridge: Cambridge University Press, 3^rd^ edn., 2009), p.490.[↩](#fnref21){.footnote-back} ::: 22. ::: {#fn22} Tribunals, Courts and Enforcement Act 2007, s.3(5); *R. (Cart) v The Upper Tribunal* \[2012\] 1 AC 663 at \[40\]; *AH (Sudan) v* *Secretary of State for the Home Department* \[2008\] 1 A.C. 678; ***Jones v First Tier Tribunal and Criminal Injuries Compensation Authority*** \[2013\] 2 A.C. 48**; R. Carnwath, '**Tribunal Justice---A New Start' \[2009\] P.L. 48.[↩](#fnref22){.footnote-back} ::: 23. ::: {#fn23} T. Prosser, 'Poverty, Ideology, and Legality: Supplementary Benefit Appeal Tribunals and Their Predecessors' (1977) 4 *British Journal of Law and Society* 39, 58.[↩](#fnref23){.footnote-back} ::: 24. ::: {#fn24} There is a much wider debate here. See N. Wikeley, 'Burying Bell: Managing the Judicialisation of Social Security Tribunals' (2000) 63 M.L.R. 475.[↩](#fnref24){.footnote-back} ::: 25. ::: {#fn25} Department for Constitutional Affairs, *Transforming Public Services: **Complaints, Redress and Tribunals,*** **Cm 6243 (2004); M. Adler, '**Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice' (2006) 69 M.L.R. 958.[↩](#fnref25){.footnote-back} ::: 26. ::: {#fn26} HM Courts and Tribunals Service is currently implementing a digitisation reform programme to introduce online tribunal procedures. See Ministry of Justice, *Transforming Our Justice System* (2016).[↩](#fnref26){.footnote-back} ::: 27. ::: {#fn27} E. Palmer, T. Cornford, A. Guinchard, and Y. Marique (eds.), *Access to Justice: Beyond the Policies and Politics of Austerity* (Oxford: Hart Publishing, 2016); Joint Committee on Human Rights, *Enforcing Human Rights*, HC Paper No.669 HL Paper No.171 (Session 2017-19).[↩](#fnref27){.footnote-back} ::: 28. ::: {#fn28} Legal Aid, Sentencing and Punishment of Offenders Act 2012. In the immigration context, legal aid remains available only for asylum and bail cases.[↩](#fnref28){.footnote-back} ::: 29. ::: {#fn29} *The Judicial Working Group on Litigants in Person: Report* (2013); H. Genn, '**Do-it-yourself Law: Access to Justice and the Challenge of Self-representation' (2013) 32 C.J.Q. 411; JUSTICE,** *Delivering Justice in an Age of Austerity* (2015).[↩](#fnref29){.footnote-back} ::: 30. ::: {#fn30} Ministry of Justice, ***Court and Tribunal Fees,*** Cm 9124 (2015); House of Commons Justice Committee, *Courts and Tribunals Fees,* HC Paper No.167 (Session 2016-17); *R (Unison) v Lord Chancellor* \[2017\] 3 W.L.R. 409; J. Collinson, 'Immigration Tribunal Fees: An Update' \[2017\] P.L. 182.[↩](#fnref30){.footnote-back} ::: 31. ::: {#fn31} Administrative Justice and Tribunals Council, *Securing Fairness and Redress: Administrative Justice at Risk?* (2011); M. Adler, '**The Rise and Fall of Administrative Justice -- A Cautionary Tale' (2012) 8 *Socio-Legal Review* 28; N. O'Brien, '**Administrative Justice: A Libertarian Cinderella in Search of an Egalitarian Prince' (2012) 83 *Political Quarterly 494. In 2018, the new Administrative Justice Council was established.*[↩](#fnref31){.footnote-back} ::: 32. ::: {#fn32} Ministry of Justice, *Transforming Our Justice System* (2016), p.15. On the progress of these reforms, see: National Audit Office, *Early Progress in Transforming Courts and Tribunals,* HC Paper No.1001 (Session 2017-19). On tribunals reform, see R. Thomas and J. Tomlinson, *The Digitalisation of Tribunals: What we Know and What we Need to Know* (Public Law Project and UK Administrative Justice Institute, 2018).[↩](#fnref32){.footnote-back} ::: 33. ::: {#fn33} D. Cowan, A. Dymond, S. Halliday and C. Hunter, 'Reconsidering Mandatory Reconsideration' \[2017\] P.L. 215. ------------------------------------------------------------------------------------------------------------ [↩](#fnref33){.footnote-back} ::: 34. ::: {#fn34} Social Fund Commissioner, *Annual Report 2012/**2013*** **(2013).**[↩](#fnref34){.footnote-back} ::: 35. ::: {#fn35} The Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (SI 56/2009).[↩](#fnref35){.footnote-back} ::: 36. ::: {#fn36} Education Act 2011, s.4.[↩](#fnref36){.footnote-back} ::: 37. ::: {#fn37} V. Bondy and M. Sunkin, '**Settlement in Judicial Review Proceedings' \[2009\] P.L. 237.**[↩](#fnref37){.footnote-back} ::: 38. ::: {#fn38} The route to appeal was established by an Upper Tribunal ruling and not the DWP itself: *R(CJ) and SG v Secretary of State for Work and Pensions* \[2017\] UKUT 324 (AAC).[↩](#fnref38){.footnote-back} ::: 39. ::: {#fn39} Ministry of Justice, ***Tribunals Statistics Quarterly* (2018);** DWP, *Employment and Support Allowance: Work Capability Assessments, Mandatory Reconsiderations and Appeals* (2018); DWP, *Personal Independence Payments: Official Statistics* (2017); **FOI** 106180; FOI 106568; FOI 40166**.**[↩](#fnref39){.footnote-back} ::: 40. ::: {#fn40} The Home Office does not collect data on administrative reviews submitted by claimants overseas and those in immigration detention.[↩](#fnref40){.footnote-back} ::: 41. ::: {#fn41} A. Bryson and R. Berthoud, '**Social Security Appeals: What Do the Claimants Want?' (1997) 4 J.S.S.L. 17;** G. Richardson and H. Genn, 'Tribunals in Transition' \[2007\] P.L. 116, 123.[↩](#fnref41){.footnote-back} ::: 42. ::: {#fn42} According to an Upper Tribunal judge, the enabling role of social security tribunals has been described as their 'unique selling point': S. Wright, 'The Impact of Austerity and Structural Reforms on the Accessibility of Tribunal Justice' in E. Palmer, T. Cornford, A. Guinchard, and Y. Marique (eds.), *Access to Justice: Beyond the Policies and Politics of Austerity* (Oxford: Hart Publishing, 2016), p.138. By contrast, immigration tribunals are more adversarial. See generally R. Thomas, 'From "Adversarial v Inquisitorial" to "Active, Enabling, and Investigative": Developments in UK Tribunals' in L. Jacobs and S. Baglay (eds), *The Nature of Inquisitorial Processes in Administrative Regimes: Global Perspectives* (Farnham: Ashgate Publishing, 2013), p.51.[↩](#fnref42){.footnote-back} ::: 43. ::: {#fn43} There is no coherent approach as to the scope and grounds of administrative review. Immigration reviews are concerned with 'case working error' (Immigration Rules, Appendix AR, para.2.1). Homelessness reviews focus on a 'deficiency or irregularity in the original decision' (The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999 (SI 71/1999), r.8(2)). Social security mandatory reconsiderations focus on 'official error' and 'mistake of fact' (The Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 381/2013), r.9)). As regards tax reviews, 'The nature and extent of the review are to be such as appear appropriate to HMRC in the circumstances' (**Taxes Management Act 1970, s.49E(2) as inserted by t**he Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009 (SI 56/2009)).[↩](#fnref43){.footnote-back} ::: 44. ::: {#fn44} Council on Tribunals, *Annual Report 1989/90* (1990), para.1.14.[↩](#fnref44){.footnote-back} ::: 45. ::: {#fn45} Council on Tribunals, *Annual Report 1989/90* (1990), para.1.9. See also R. Sainsbury, 'Internal Reviews and the Weakening of Social Security Claimants' Rights of Appeal' in G. Richardson and H. Genn (eds), *Administrative Law & Government Action* (Oxford: Oxford University Press, 1994).[↩](#fnref45){.footnote-back} ::: 46. ::: {#fn46} The Leggatt Report, *Tribunals for Users: One System, One Service* (2001), para.9.6.[↩](#fnref46){.footnote-back} ::: 47. ::: {#fn47} The Leggatt Report, *Tribunals for Users: One System, One Service* (2001), paras.9.6 and 9.8.[↩](#fnref47){.footnote-back} ::: 48. ::: {#fn48} The First-tier Tribunal (Social Entitlement Chamber) has 1,700 judges and non-legal members.[↩](#fnref48){.footnote-back} ::: 49. ::: {#fn49} Social Security Act 1998, ss.9 and 10.[↩](#fnref49){.footnote-back} ::: 50. ::: {#fn50} Welfare Reform Act 2012, s 102; The Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI 381/2013). A concurrent change was that whereas previously claimants lodged their appeals with the DWP, appeals are now lodged directly with the tribunal.[↩](#fnref50){.footnote-back} ::: 51. ::: {#fn51} For an overview, see N. Timmins, 'The Coalition and Society (IV): Welfare' in A. Seldon and M. Finn (eds), *The Coalition Effect, 2010-2015* (Cambridge: Cambridge University Press, 2015); C. Beatty and S. Fothergill, 'Welfare Reform in the United Kingdom 2010--16: Expectations, Outcomes, and Local Impacts' (2017) *Social Policy and Administration* 1. On benefit sanctions, see M. Adler, *Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK* (Palgrave, 2018). ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- [↩](#fnref51){.footnote-back} ::: 52. ::: {#fn52} DWP, *Employment and Support Allowance: Work Capability Assessments, Mandatory Reconsiderations and Appeals* (2017), p.7.[↩](#fnref52){.footnote-back} ::: 53. ::: {#fn53} Ministry of Justice, *Tribunal Statistics Quarterly* (2017), main tables sheet T.3.[↩](#fnref53){.footnote-back} ::: 54. ::: {#fn54} The subsequent increase is largely accounted for by appeals lodged by claimants being transferred from Disability Living Allowance to Personal Independence Payments.[↩](#fnref54){.footnote-back} ::: 55. ::: {#fn55} J. Warren, K. Garthwaite and C. Bambra, 'After Atos Healthcare: Is the Employment and Support Allowance Fit For Purpose and Does the Work Capability Assessment Have a Future?' (2014) 29 *Disability & Society* 1319.[↩](#fnref55){.footnote-back} ::: 56. ::: {#fn56} DWP, *Government Response to the House of Commons Work and Pensions Select Committee's Report on Employment and Support Allowance and Work Capability Assessment,* Cmd 8967 (2014), p.22.[↩](#fnref56){.footnote-back} ::: 57. ::: {#fn57} One empirical study found that local authority officers could use administrative review to control claimants\' access to tribunals: T. Eardley and R. Sainsbury, 'Managing Appeals: The Control of Housing Benefit Internal Reviews by Local Authority Officers' (1993) 22 *Journal of Social Policy* 461.[↩](#fnref57){.footnote-back} ::: 58. ::: {#fn58} S. Halliday and D. Cowan, *The Appeal of Internal Review: Law, administrative justice, and the (non-) emergence of disputes* (Oxford: Hart Publishing, 2003), pp.138-140.[↩](#fnref58){.footnote-back} ::: 59. ::: {#fn59} Oral evidence of ***HH Judge Robert Martin to the House of Commons Work and Pensions Committee inquiry,** Employment and Support Allowance and Work Capacity Benefits,* HC Paper No.1212 (Session 2014-15), Oral Evidence, 7 May 2014, ***Q.96.***[↩](#fnref59){.footnote-back} ::: 60. ::: {#fn60} Legal Aid, Sentencing and Punishment of Offenders Act 2012.[↩](#fnref60){.footnote-back} ::: 61. ::: {#fn61} *R (CJ) and SG v Secretary of State for Work and Pensions* (ESA) \[2017\] UKUT 0324 (AAC) at \[26\].[↩](#fnref61){.footnote-back} ::: 62. ::: {#fn62} *R (Unison) v Lord Chancellor* \[2017\] 3 W.L.R. 409 at \[78\] (Lord Reed).[↩](#fnref62){.footnote-back} ::: 63. ::: {#fn63} *R (CJ) and SG v Secretary of State for Work and Pensions* (ESA) \[2017\] UKUT 0324 (AAC).[↩](#fnref63){.footnote-back} ::: 64. ::: {#fn64} *President of the Social Entitlement Chamber of the First-tier Tribunal, Report on the Standards of Decision-making by the Secretary of State and Child Maintenance and Enforcement Commissioner 2007-08 (2008), para.1.7.*[↩](#fnref64){.footnote-back} ::: 65. ::: {#fn65} Department for Work and Pensions, *Mandatory Consideration of Revision Before Appeal* (2012), p.11.[↩](#fnref65){.footnote-back} ::: 66. ::: {#fn66} See, e.g., ***MD v HMRC* (TC) \[2017\] UKUT 0106 (AAC) at \[11\] in which the Upper Tribunal found** the reconsideration to be 'woefully inadequate... \[without\] any meaningful reasoning'.[↩](#fnref66){.footnote-back} ::: 67. ::: {#fn67} P. Gray, *The Second Independent Review of the Personal Independence Payment Assessment* (2017), p.45.[↩](#fnref67){.footnote-back} ::: 68. ::: {#fn68} National Association of Welfare Rights Advisors, *Response to Social Security Advisory Committee Consultation Review into Decision Making and Mandatory Reconsideration* (2016), p.11.[↩](#fnref68){.footnote-back} ::: 69. ::: {#fn69} DWP, *DWP Claimant Service and Experience Survey 2014/15* (2016), p.85.[↩](#fnref69){.footnote-back} ::: 70. ::: {#fn70} P. Gray, *The Second Independent Review of the Personal Independence Payment Assessment* (2017), p.45.[↩](#fnref70){.footnote-back} ::: 71. ::: {#fn71} P. Gray, *The Second Independent Review of the Personal Independence Payment Assessment* (2017), p.29. Tribunal judges have noted that they often see appellants awarded no entitlement points initially, who are then given the maximum award possible: 'Why I went to court for my disability payments' BBC News 2 May 2017. Claims for both Employment and Support Allowance and Personal Independence Payments are decided on the basis of a graded scale of points scored against health conditions and living abilities.[↩](#fnref71){.footnote-back} ::: 72. ::: {#fn72} House of Commons Public Accounts Committee, ***Department for Work and Pensions: Contract Management of Medical Services*, HC Paper No.744 (Session 2012-13);** House of Commons Public Accounts Committee, ***Contracted Out Health and Disability Assessments,* HC Paper No.727 (Session 2015-16).**[↩](#fnref72){.footnote-back} ::: 73. ::: {#fn73} P. Gray, *The Second Independent Review of the Personal Independence Payment Assessment* (2017), p.45.[↩](#fnref73){.footnote-back} ::: 74. ::: {#fn74} For debate, see: House of Commons, *Fourth Delegated Legislation Committee* (2013-14); Hansard HC Vol.624 cols.308-335 (29 March 2017), with reference to Personal Independence Payments; P. Gray, *The Second Independent Review of the Personal Independence Payment Assessment* (2017), pp.46-47.[↩](#fnref74){.footnote-back} ::: 75. ::: {#fn75} E. Dugan, 'A Senior Judge Has Suggested Charging the Government for Every "No-Brainer" Benefits Cases It Loses in Court' BuzzFeed News 9 November 2017, available at: https://www.buzzfeed.com/emilydugan/most-dwp-benefits-cases-which-reach-court-are-based-on-bad?utm\_term=.faAjD3GQz\#.kcX6rE30n \).[↩](#fnref75){.footnote-back} ::: 76. ::: {#fn76} *R (Unison) v Lord Chancellor* \[2017\] 3 W.L.R. 409 at *\[69\]-\[72\] (Lord Reed)*.[↩](#fnref76){.footnote-back} ::: 77. ::: {#fn77} R. Thomas, 'Administrative Justice, Better Decisions, and Organisational Learning' \[2015\] P.L. 111.[↩](#fnref77){.footnote-back} ::: 78. ::: {#fn78} Administrative Justice and Tribunals Council, no 5 above.[↩](#fnref78){.footnote-back} ::: 79. ::: {#fn79} Social Security Advisory Committee, *Decision Making and Mandatory Reconsideration* (2016), p.50.[↩](#fnref79){.footnote-back} ::: 80. ::: {#fn80} N. Wikeley and R. Young, '**The Administration of Benefits in Britain: Adjudication Officers and the Influence of Social Security Appeal Tribunals' \[1992\] P.L. 238,** 250-259.[↩](#fnref80){.footnote-back} ::: 81. ::: {#fn81} House of Commons Work and Pensions Committee, *Concentrix*, HC Paper No.720 (Session 2016-17).[↩](#fnref81){.footnote-back} ::: 82. ::: {#fn82} Social Security Advisory Committee, *Decision Making and Mandatory Reconsideration* (2016).[↩](#fnref82){.footnote-back} ::: 83. ::: {#fn83} DWP, *DWP Response to SSAC Report on Mandatory Reconsideration Processes* (2017).[↩](#fnref83){.footnote-back} ::: 84. ::: {#fn84} House of Commons Work and Pensions Committee, ***PIP and ESA Assessments*, HC Paper No.829 (Session 2017-19), para.66.**[↩](#fnref84){.footnote-back} ::: 85. ::: {#fn85} Home Office, *Report of the Committee on Immigration Appeals* Cmnd 3387 (1967); Immigration Act 1971.[↩](#fnref85){.footnote-back} ::: 86. ::: {#fn86} R. Thomas, 'Immigration and Access to Justice: A Critical Analysis of Recent Restrictions' in E. Palmer, T. Cornford, A. Guinchard, and Y. Marique (eds.), *Access to Justice: Beyond the Policies and Politics of Austerity* (Oxford: Hart Publishing, 2016).[↩](#fnref86){.footnote-back} ::: 87. ::: {#fn87} Theresa May, Home Secretary, speech at the Conservative Party conference, Manchester, September 2013, \.[↩](#fnref87){.footnote-back} ::: 88. ::: {#fn88} See, e.g., *Lord Chancellor v Detention Action* \[2015\] 1 W.L.R. 5341 (fast-track detained process for asylum appeals was systemically unfair and unjust); *R (Mohibullah) v Secretary of State for the Home Department (TOEIC -- ETS -- judicial review principles)* \[2016\] UKUT 00561 (IAC) (the Home Office had abused its power by not using a decision-making mechanism that attracted a right of appeal); *R (Kiarie and Byndloss) v Secretary of State for the Home Department* \[2017\] 1 W.L.R. 2380 (out of country criminal deportation appeal process unfair); *Khan v Secretary of State for the Home Department* \[2017\] EWCA Civ 1755 (overturning the UTIAC, the Court of Appeal held that European Economic Area extended family members did have a right of appeal).[↩](#fnref88){.footnote-back} ::: 89. ::: {#fn89} Immigration Act 2014, s.15; Immigration Rules, Appendix AR. Family visitor appeals were abolished in 2013: Crime and Courts Act 2013, s.52.[↩](#fnref89){.footnote-back} ::: 90. ::: {#fn90} Home Office, *Impact Assessment of Reforming Immigration Appeal Rights* (2013), p.2.[↩](#fnref90){.footnote-back} ::: 91. ::: {#fn91} Hansard HL Vol.752 col.1353 5 March 2014 (Lord Avebury).[↩](#fnref91){.footnote-back} ::: 92. ::: {#fn92} Home Office, *Impact Assessment of Reforming Immigration Appeal Rights* (2013), p.7.[↩](#fnref92){.footnote-back} ::: 93. ::: {#fn93} Hansard HC Vol.569, col.199 (22 October 2013) (Barry Gardiner MP). See also Hansard HC Vol.569 col.189 (22 October 2013) (Fiona MacTaggart MP).[↩](#fnref93){.footnote-back} ::: 94. ::: {#fn94} Home Office, ***Immigration Bill Factsheet: Appeals* (2013), p.1.**[↩](#fnref94){.footnote-back} ::: 95. ::: {#fn95} *R v Secretary of State for the Home Department, ex parte Saleem* \[2001\] 1 W.L.R. 443, 458 (Hale LJ).[↩](#fnref95){.footnote-back} ::: 96. ::: {#fn96} Joint Committee on Human Rights, ***Legislative Scrutiny: Immigration Bill*, HL Paper No.102 HC Paper No.935 (Session 2013-14), para.39. See also House of Lords Constitution Committee, *Immigration Bill* HL Paper No.148 (Session 2013-14), paras.3-5.**[↩](#fnref96){.footnote-back} ::: 97. ::: {#fn97} Home Office, ***Government Response to the Joint Committee on Human Rights, Eighth Report of Session 2013--14* (2014), p. 2; Home Office, *Immigration Bill: ECHR Memorandum* (2013), pp.14-16.**[↩](#fnref97){.footnote-back} ::: 98. ::: {#fn98} House of Commons Constitutional Affairs Committee, *Asylum and Immigration Appeals,* HC Paper No.211 (Session 2003-04), para.107; Independent Chief Inspector of Borders and Immigration, ***An Inspection of Family Reunion Applications* (2016), para.**6.61.[↩](#fnref98){.footnote-back} ::: 99. ::: {#fn99} National Audit Office, *Visa Entry to the UK: The Entry Clearance Operation,* HC Paper No. 367 (Session 2003-04), para.2.24.[↩](#fnref99){.footnote-back} ::: 100. ::: {#fn100} **Independent Monitor for Entry Clearance Refusals, *Report for 2005* (2006).**[↩](#fnref100){.footnote-back} ::: 101. ::: {#fn101} Home Office, *Report on Removal of Full Appeal Rights Against Refusal of Entry Clearance Decisions Under the Points-Based System* (2011). By 2008, the points-based scheme for work and study routes had replaced discretion with objective decision criteria and with this various appeal rights had been replaced with administrative review: Immigration, Nationality and Asylum Act 2006, s.4.[↩](#fnref101){.footnote-back} ::: 102. ::: {#fn102} Immigration Act 2016, s.63. **See P. Jorro, 'The Enhanced Non-suspensive Appeals Regime in Immigration Cases' (2016) 30 *Journal of Immigration, Asylum and Nationality Law* 111.**[↩](#fnref102){.footnote-back} ::: 103. ::: {#fn103} Hansard HL Vol.752 cols.1357-1358 (5 March 2014) (**Lord Wallace of Tankerness, Advocate General for Scotland).**[↩](#fnref103){.footnote-back} ::: 104. ::: {#fn104} Home Office, *Statement of Intent: Administrative Review* (2013), p.4.[↩](#fnref104){.footnote-back} ::: 105. ::: {#fn105} Independent Chief Inspector of Borders and Immigration, *An Inspection of the Administrative Review Processes Introduced Following the Immigration Act 2014* (2016).[↩](#fnref105){.footnote-back} ::: 106. ::: {#fn106} *In Re Poyser and Mills' Arbitration* \[1964\] 2 QB 467, 478; *MK v Secretary of State for the Home Department (duty to give reasons) Pakistan* \[2013\] UKUT 00641 (IAC).[↩](#fnref106){.footnote-back} ::: 107. ::: {#fn107} Independent Chief Inspector of Borders and Immigration, *An Inspection of the Administrative Review Processes Introduced Following the Immigration Act 2014* (2016), para.2.10.[↩](#fnref107){.footnote-back} ::: 108. ::: {#fn108} *R (Akturk) v Secretary of State for the Home Department* \[2017\] EWHC Admin 297 at \[47\] (Holman J).[↩](#fnref108){.footnote-back} ::: 109. ::: {#fn109} Immigration Rules, Appendix AR, para.2.4.[↩](#fnref109){.footnote-back} ::: 110. ::: {#fn110} Independent Chief Inspector of Borders and Immigration, *An Inspection of the Administrative Review Processes Introduced Fo