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16. Tribunals Public Law (5th edn) Mark Elliott and Robert Thomas p. 677 16. Tribunals Mark Elliott, University of Cambridge, and Robert Thomas, University of Manchester https://doi.org/10.1093/he/9780192862631.003.0016...

16. Tribunals Public Law (5th edn) Mark Elliott and Robert Thomas p. 677 16. Tribunals Mark Elliott, University of Cambridge, and Robert Thomas, University of Manchester https://doi.org/10.1093/he/9780192862631.003.0016 Published in print: 23 April 2024 Published online: August 2024 Abstract This chapter considers the role and constitutional status of tribunals that determine appeals against initial decisions made by government agencies which is a major part of ensuring the legal accountability of governmental decision-making as neither parliamentary accountability nor judicial review provides an adequate and easily accessible remedy. The chapter also examines the place of tribunals within the UK’s public law system and the reorganisation of the tribunals into a new, integrated, and unified tribunals system brought about by the Tribunals, Courts and Enforcement Act 2007. An overview of the tribunals system, tribunal procedures, and judicial oversight of tribunal decision-making is also provided. Keywords: tribunals system, government agency, public law system, tribunal, tribunal procedure and decision-making 1. Tribunals—an introduction 2. Tribunals—their place in the UK’s public law system 3. The reorganisation of tribunals 4. Tribunal procedures 5. Judicial oversight of tribunal decision-making 6. Conclusion Expert commentary Further reading Useful websites Page 1 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals In many cases, when individuals wish to challenge administrative decisions, they can appeal to a tribunal. Tribunals are a core feature of the administrative law project: unlike the courts, they do not merely review the legality of decisions already taken, but substitute their own decisions and, in so doing, administer the law. Tribunals determine more cases than the courts and have, over recent years, experienced something of a renaissance following their restructuring. This chapter considers the constitutional importance of tribunals and examines their place within the UK’s public law system—in particular, the reorganisation of the tribunals into a new, integrated, and unified tribunals system brought about by the Tribunals, Courts and Enforcement Act 2007 (TCEA). The chapter provides an overview of the principal tribunal systems, tribunal procedures, and judicial oversight of tribunal decision-making. It also critically analyses the overall effectiveness of tribunals. Watch the authors discuss the key themes of this chapter in the following video. Video playback is not supported in this format. Chapter 16 video 1. Tribunals—an introduction 1.1 What are tribunals? Tribunals are independent and judicial statutory bodies. They hear and determine appeals by individuals against initial decisions made by governmental decision-makers. In some instances, tribunals resolve disputes between individuals. Consider the following situations. A foreign national fleeing from persecution or torture in their home country who has been refused p. 678 asylum by the Home Office can appeal that decision to the First-tier Tribunal (FTT) (Immigration 1 and Asylum Chamber). The Tribunal will decide whether or not someone is a refugee. There are 10,000 asylum appeals per year and around 40 per cent are allowed. An individual whose claim for a welfare benefit has been turned down can appeal to the FTT (Social Entitlement Chamber). There are around 100,000 such appeals per year and over 60 per cent are allowed. A child who has been refused admission to the school of his or her choice by a local authority may appeal to a school admissions appeal panel. There are over 40,000 such appeals per year and over 20 per cent are allowed. In each case, the tribunal will consider the individual’s appeal. The appellant can appear before the tribunal in person at a hearing or submit written arguments in support of the appeal. The tribunal will consider the evidence and apply the relevant legal rules. It will then substitute its own decision for that of the initial decision-maker by either allowing or dismissing the appeal. Tribunals do not therefore review Page 2 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals the lawfulness of initial administrative decisions as happens in judicial review cases. Instead, tribunals decide appeals by making substantive decisions. For instance, when a tribunal allows an asylum appeal, it is deciding that the person concerned must be given refugee status by the Home Office. The tribunal’s decision is legally binding unless it is successfully overturned through an onward challenge to the Upper Tribunal. Tribunals are a vitally important part of the legal system, providing access to justice for a large community of users across a wide range of issues. As the courts have noted: ‘In 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 2 a right of access to the courts.’ People are far more likely to have their case decided by way of appeal by a tribunal rather than through judicial review or, indeed, going to any other part of the legal system. When viewed collectively, tribunals comprise the most important component of the legal system for ensuring legality in respect of the mass of front-line government decisions in area such as benefits, immigration, and tax amongst others. One strength of tribunals is that individuals dissatisfied with initial governmental decisions can participate directly in the tribunal process, which is intended to be both independent and fair. Tribunals have developed on an ad hoc basis in specialist areas of government with little consideration of the coherence of the ‘tribunal system’ as a whole. However, over recent years, government policy has shifted to ensure greater coherence. The TCEA established a new, simplified, statutory framework for tribunals. The principal issues that we will be addressing will therefore be the extent to which tribunals now comprise a distinct system and provide individuals with an effective remedy for challenging administrative decisions. However, we first consider the historical development of tribunals and the nature of the ‘tribunals world’ today, before examining the nature of tribunal appeals and the reasons for their creation. p. 679 1.2 Historical background Tribunals have existed in some form or other for many years. The General Commissioners of Income Tax— the oldest tribunal—were established in 1799. During the nineteenth century, tribunals became a popular 3 choice of government to resolve disputes speedily. During the twentieth century—with the development of the welfare state—tribunals proliferated. Government introduced new policies such as National Insurance and old-age pensions which required mass decision-making. Tribunals were also created to determine appeals against such decisions. The development of tribunals therefore reflects the expanding role of government. The Franks Report (1957) on the procedure and operation of tribunals recommended that tribunals should 4 be informed by three values: openness, fairness, and impartiality. Following the Franks Report, Parliament provided that tribunals should be overseen by the Council on Tribunals, that they should give reasons for their decisions, and that there should be an appeal from the decisions of certain tribunals on a 5 point of law to the High Court. Following the report, the ‘tribunals maze’ continued to expand and 6 concerns were expressed over its unsystematic nature. New tribunals were established in the fields of immigration, mental health, and education, amongst others. Page 3 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Over recent years, the government has introduced major reforms to the tribunal system. This reform agenda commenced with the Leggatt Report (2001), followed by a White Paper, Transforming Public 7 Services, in 2004. Parliament then enacted the TCEA. This Act introduced a new structure for tribunals. There is a First-tier Tribunal which determines first-instance appeals (meaning initial challenges to decisions). The Tribunal is divided up into various specialist chambers (eg immigration, tax, social entitlement, etc). There is also an Upper Tribunal which decides onward appeals from decisions of the FTT. The Upper Tribunal is also divided up into specialist chambers (eg administrative appeals, tax, and immigration, etc). 1.3 The tribunals world There is a bewildering diversity in the range of tribunals and the types of issue upon which they adjudicate. There are currently some 70 different tribunal systems that operate in a wide variety of areas that span our political and social life. The principal areas in which tribunals operate include social security benefits; health; education; employment; tax, finance, and pensions; criminal injuries compensation; immigration and asylum; traffic; and transport. There is an array of different tribunals that have been established across a range of governmental functions and resolve a number of different types of dispute. p. 680 1.3.1 ‘Citizen v State’ and ‘Party v Party’ tribunals Most tribunals are required to resolve disputes between a government agency and an individual or business. Many tribunals determine ‘citizen v state’ disputes that involve appeals against decisions of central or local government or an independent regulatory body. For example, the War Pensions and Armed Forces Compensation Chamber of the FTT hears appeals from ex-servicemen or women who have had their claims for a war pension rejected by the Ministry of Defence, a central government department. By 8 contrast, valuation tribunals determine appeals against decisions taken by local authorities, whereas the Tax and Chancery Chamber of the Upper Tribunal hears appeals against, among other things, decisions made by the Financial Conduct Authority, an independent regulator. Other tribunals that determine ‘party v party’ disputes sit outside the administrative justice system. For example, employment tribunals hear appeals concerning disputes between employers and employees over employment rights. The Lands Chamber of the Upper Tribunal and the Residential Property Tribunal, determine both ‘citizen v state’ and ‘party v party’ disputes. 1.3.2 What is at stake in tribunal proceedings? Tribunals have been established to deal with a wide range of problems; they decide a vast number of cases in a large number of subject areas, and it is therefore unsurprising that a great diversity of rights and 9 interests may be at stake in tribunal proceedings. For example, tribunals operating in areas such as asylum, immigration, and mental health determine cases 10 in which fundamental human rights are often in issue. In such areas, tribunals are not merely examining whether or not primary decisions affecting fundamental rights are lawful; they are also determining the Page 4 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals boundaries of such rights. Indeed, some tribunals, such as the Special Immigration Appeals Commission, operate in acutely sensitive areas that concern both human rights and national security. Other tribunals determine cases that do not directly raise human rights issues, but rather what might be termed political rights. For example, the FTT (General Regulatory Chamber) hears appeals against, among other things, data protection enforcement notices issued by the Information Commissioner, while the Administrative Appeals Chamber of the Upper Tribunal hears appeals concerning national security exemptions and freedom of information. Other tribunals deal with appeals concerning an individual’s entitlements to material benefits and entitlements. For example, the Social Entitlement Chamber of the FTT—the tribunals with the highest caseload—decides appeals concerning individuals’ entitlement to social security benefits. Some tribunals deal with cases that concern social rights, which can be highly conditional on limited resources. For example, school admission appeal panels hear appeals by parents whose children have been refused admission to their preferred school. Tribunals that operate in the health context similarly determine a diverse range of disputes. The FTT (Health, Education and Social Care Chamber) handles p. 681 appeals concerning mental health and care homes. Overall, ↵ tribunals decide matters that are of real importance to the people concerned and are therefore an important part of the legal system. Q Why is there such diversity between different tribunals? Why do tribunals deal with very different types of appeal? Test your understanding of this section by answering Self-test questions 16.1. 2. Tribunals—their place in the UK’s public law system 2.1 Tribunals and judicial review compared To understand tribunals, we can compare them with judicial review. First, tribunals are directly responsible for considering the merits of the initial decision. Whereas the judicial review court is limited to examining whether or not a decision is lawful, tribunals are specifically authorised to substitute their own decision for that of the initial government decision-maker. Rather than sending the decision back to the initial decision-maker to be retaken, tribunals substitute their own decision for that of the initial decision-maker. Tribunals exercise a ‘merits appeal’ jurisdiction, whereas the reviewing court has a more limited, supervisory jurisdiction. A second difference concerns the basis on which the initial decision may be overturned. Judicial review focuses on the legality of administrative decisions; it normally does not involve fact-finding. By contrast, tribunals make their own findings of fact by hearing witnesses and considering the evidence. A tribunal will then consider the matter de novo. In this respect, a tribunal appeal is quite different from and more far reaching than judicial review. Page 5 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Third, there are different jurisdictional bases underpinning judicial review and tribunal appeals. Judicial review is an inherent common law supervisory jurisdiction. By contrast, tribunals are statutory bodies. Just as Parliament establishes rights of appeal to tribunals, so it can also limit or restrict them. Whereas the abolition of judicial review is now widely considered to be unconstitutional, appeal rights can be simply curtailed through statute. For instance, the Immigration Act 2014 significantly reduced the number of 11 immigration appeal rights—despite protests that this weakened access to justice. Tribunals provide a wider remedy than judicial review, but their introduction and continued existence is largely a matter for the government and Parliament. The existence of an appeal right normally precludes any judicial review challenge. Conversely, if there is no right of appeal to a tribunal, then judicial review remains available. 2.2 The overall administrative law system It is important to place tribunals within the overall system of administrative law. Table 16.1 compares p. 684 682 683 internal administrative review, tribunals, ombudsmen/complaint ↵ ↵ ↵ handlers, and judicial review. Each mechanism has a distinctive role. No single mechanism could handle all types of dispute. The challenge is finding the best way of correcting different types of wrong decisions or actions. Each of these mechanisms has its advantages and drawbacks. There are inherent trade-offs between justice and fairness on the one hand and cost and efficiency on the other hand. Figure 16.1 sets out the overall structure of the administrative law system. Page 6 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025 16. Tribunals Figure 16.1 The structure of the administrative law system Page 7 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025 16. Tribunals Table 16.1 Administrative law mechanisms Administrative Legal basis Institution/ Function Procedure Technique Remedy Trade-off law mechanism character Internal Statute and Public To review primary Request public Paper-based Uphold or overturn Low cost; quick; high administrative non- authorities/ decisions for case- authority to review review. May include initial decision volume processing review statutory Administrative working errors its own decision telephone call to capacity, but lower Fees payable in claimant to collect quality in terms of some instances (eg further evidence process and decision- £80 for immigration making administrative review) Appeals Statute Tribunals/ To determine merits Appeal directly to Informal Allow/dismiss Decent standards of Judicial appeals on fact and tribunal adversarial/ appeals fairness and decision- law Fees payable in investigative/ making; more costly and some tribunals enabling lengthier than internal In future, online reviews, but quicker and dispute resolution cheaper than the higher courts Complaints Statute and Ombudsmen To investigate MP filter/ Investigative Recommendations Similar trade-off non- and other complaints of complain and compensation between volume and statutory complaint- maladministration quality. Ombudsmen far directly handling superior than internal bodies/ Free complaint processes Page 8 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025 16. Tribunals Administrative Legal basis Institution/ Function Procedure Technique Remedy Trade-off law mechanism character Neither administrative nor judicial Judicial review Inherent Administrative To review legality Judicial review Formal and Discretionary public Highest quality of judge. common Court and Upper and human rights procedure in the adversarial law remedy Most costly and lengthy law Tribunal/ compliance Civil Procedure procedure. Legalistic jurisdiction Judicial Rules, Pt 54 and exclusive. Fees: £154 to apply; Administrative Court’s £385 for oral caseload capacity is renewal; £770 for highly limited substantive 12 hearing Page 9 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Q How do tribunals differ from judicial review? Why do these differences exist? As you progress through this chapter, look at the trade-offs in Table 16.1. Who should strike these trade-offs— Parliament, government, civil servants, unelected experts? And on the basis of which criteria? (NB: this is a highly problematic issue: your authors are unsure about the answers.) 2.3 Why have tribunals? The traditional rationale is that tribunals are quicker, cheaper, more informal, and more expert than the 13 courts. And because tribunals are less adversarial and formal than the courts, the need for the parties to p. 685 be legally represented, and so the need for ↵ legal aid funding, is—or should be—reduced. Tribunals are not bound by the formal legal procedures and the rules of evidence. They can therefore deal with appeals in a more informal and user-friendly way. A central issue is that there are widespread concerns over the quality of many types of initial governmental decisions. Over recent years, there have been many criticisms raised to the effect that the quality of initial 14 decisions is all too often indifferent and sometimes unacceptably poor. It has been noted that ‘[T]he scale 15 of the injustice and the cost to the taxpayer caused by poor decision-making are wholly unacceptable.’ Part of the challenge is to provide people with an effective remedy against poor decisions. The relevant concept here is that of ‘proportionate dispute resolution’—that is, ensuring that there is a proportionate 16 relationship between the issues at stake in a dispute and the costs of the procedures used to resolve it. For example, it would be out of proportion for disputes over entitlement to welfare benefits that, although of immense significance to individuals, might involve only comparatively small sums of money to be resolved through a judicial process akin to that used by the higher courts, which might cost more than the amount of money at stake—especially when the volume of such disputes is substantial. Tribunals can also provide a more effective means of redress than other forms of legal and political accountability. Government Ministers may be formally responsible for a decision made by civil servants. But in practice Parliament cannot really hold Ministers to account for the mass of front-line administrative decisions because of the sheer number of such decisions and the length of the decision- making chain between the initial decision-maker and the Minister. Furthermore, the avenue of seeking legal accountability of public decisions by way of judicial review cannot always be regarded as satisfactory or accessible because of the costs, time, and procedural complexity—especially for individuals without legal assistance. The alternative of a tribunal can remedy these gaps in accountability by providing an accessible means of appealing against governmental decisions. Tribunals also provide a buffer for the courts by dealing with large volumes of individual appeals: this prevents the courts from becoming overloaded with a mass of cases, and allows them to focus on constitutional challenges on grounds such as the legality of public policy and compliance with human rights. If an individual wishing to challenge a decision can appeal to a tribunal, then he or she should pursue this avenue of challenge rather than make a judicial review claim. Tribunals can then reduce the pressure on the higher courts. For example, the introduction of a right of appeal to the County Court for homeless individuals refused temporary Page 10 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals accommodation by local authorities was motivated in part by the perceived need to reduce the number of 17 homelessness judicial reviews received by the High Court. Furthermore, judicial review procedures are not necessarily appropriate for determining some types of issue. p. 686 ↵ It has, though, been questioned whether the traditional rationales for tribunals—their speed, convenience, accessibility, efficiency, and procedural simplicity—are convincing. Despite the supposed accessibility and informality of tribunals, most individuals who are entitled to appeal decline to do so; appeal hearings before tribunals can also be legally complex and unrepresented appellants can be at a 18 disadvantage. While the intention is that tribunals provide quick justice, in practice, delays may be common. Governments may also create tribunals for political reasons. For example, it has been argued that the reasons for establishing tribunals created during the early welfare state lay more with concerns that the ordinary courts were unsympathetic to new redistributive social policies and that channelling legal 19 challenges into a specialist tribunal would therefore be more appropriate. Governments might also establish appeal rights not to provide individuals with a mechanism for securing redress, but to enable government Ministers to avoid responsibility for individual decision-making and to defuse political 20 opposition to controversial policies. The Leggatt Report suggested three tests to determine whether tribunals rather than the courts should decide cases in any particular area: (i) direct participation by 21 tribunal users; (ii) the need for special expertise; and (iii) expertise in administrative law. The first point refers to the fact that there is much greater scope for people to represent themselves in tribunal, as opposed to court, proceedings. Where such direct participation is possible—for example, because the legal and factual issues are unlikely to be particularly complex—the use of a tribunal is likely to be appropriate. Second, the membership of tribunals will usually include those with special expertise in the particular subject matter; for example, some tribunals consist of legally qualified members plus experts in relevant fields (such as doctors or accountants). When such breadth of experience is called for, again the case for a tribunal may be stronger. Third, because tribunals specialise in specific areas, they will develop an expertise in the issues of law and fact raised in a particular area of administration, which enables them to reconsider decisions taken by government agencies. In appropriate contexts, this, too, may point in favour of reliance on tribunals rather than on the necessarily generalist High Court. Like all policy decisions, the establishment of a tribunal system involves the balancing of competing interests. On the one hand, because tribunals are more accessible than the higher courts, they can provide individuals with an informal and independent mechanism of redress that also combines fairness and expertise. On the other hand, there may be drawbacks from the government’s perspective. Tribunal systems need to be funded; government must take responsibility for the costs of administering an appeals process, and for devoting resources to the preparation and representation of appeals. The introduction of p. 687 appeal rights will also inevitably mean some ↵ delay in the implementation of decisions and government must be content to allow decisions to be taken by an independent decision-maker. Such considerations may lead government to restrict appeal rights in certain areas. For example, when government Ministers want to get tough on immigration, they also tend to restrict immigration appeals. In 2013, the then Home Secretary, Theresa May MP, described the system of immigration appeals as a ‘never-ending game of snakes and ladders, with almost 70,000 appeals heard Page 11 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 22 every year’. Immigration appeals were subsequently significantly cut back; only asylum and human 23 rights appeals were retained. The Home Office can now certify human rights appeals as unfounded with the consequence that such appeals can only be heard once the appellant has left the UK. This makes the 24 exercise of the right of appeal acutely difficult in practice. We can only understand these developments by reference to the government’s policy of restricting immigration. Appeal rights are not entrenched; rather, they are granted, and can be withdrawn or restricted, by statute when government policy changes. Test your understanding of this section by answering Self-test questions 16.2. 3. The reorganisation of tribunals 3.1 The Leggatt Report and Transforming Public Services Until the TCEA, tribunals had been created by individual pieces of primary legislation, without any overarching statutory framework. And it was common to find that a tribunal was administered by the very government department responsible for making the decisions that fell to be challenged before the tribunal. A major problem with this arrangement was the impression that tribunals were not sufficiently independent. Tribunals had developed on an ad hoc basis, with new tribunals being established whenever government decided that a new tribunal was necessary. Furthermore, each government department was used to managing ‘its’ tribunal by having responsibility for providing administrative support to the tribunal, drafting its procedural rules, and sometimes even making judicial appointments to the tribunal. The consequence of this was that, while it was possible to identify tribunals as a discrete topic of administrative law, tribunals themselves did not comprise a coherent system in their own right. Leggatt concluded that tribunals had developed in an almost entirely haphazard way with wide variations 25 of practice and approach, almost no coherence, and little focus on the needs of tribunal users. The lack of a coordinated approach to the establishment and operation of tribunals had contributed to a fragmented and complex administrative and judicial landscape without common standards for performance or accountability. Leggatt therefore recommended extensive reform: tribunals needed to be brought together p. 688 in a single system, be structurally independent from ↵ government, and be administered instead by a single Tribunals Service—an executive agency under the auspices of the Ministry of Justice (MoJ). 26 The government subsequently accepted the Leggatt recommendations. Its White Paper, Transforming Public Services, signalled a distinct change of government policy with a new focus on tribunals, and a recognition of their crucial role in dealing with the real-world legal problems faced by very large numbers of people. The White Paper suggested a number of reforms. These included the bringing together of tribunals administered by central government departments in a unified system, the introduction of proportionate dispute-resolution mechanisms, the improvement of initial and tribunal decision-making standards, and the reform of the Council on Tribunals into an Administrative Justice and Tribunals Council (AJTC). Many of these changes were implemented by the TCEA. Page 12 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Nonetheless, it has been argued that notwithstanding these structural reforms, the aim of a simple, accessible, coherent, and proportionate system of administrative justice expressed has not yet been realised. In 2011, the AJTC warned that, without sufficient focus, administrative justice might itself be at 27 risk. 3.2 Judicial independence and tribunals As part of the judicial branch of government, tribunals should be impartial and independent. These two 28 concepts are closely linked, but are not exactly the same. Impartiality concerns the tribunal’s approach towards the case before it in the sense of a lack of personal interest or bias, on the part of tribunal judges, in the outcome of a case. By contrast, independence requires that tribunals be structurally and 29 institutionally separate from the executive branch of government. Because tribunals were traditionally overseen and managed by the government departments the decisions of which tribunals had to scrutinise, there was an absence of structural independence and at least the risk of people perceiving an absence of impartiality. For example, until 1987, immigration adjudicators (now immigration judges) were appointed and paid by the Home Office—yet they were determining appeals against Home Office decisions. Following political pressure, responsibility for appointments was 30 transferred to a predecessor department of the MoJ to ensure independence. It is now accepted that 31 tribunals should be, and be seen to be, more independent of government. The TCEA recognised this point by placing the Lord Chancellor and other Ministers of the Crown under a duty to uphold the independence p. 689 ↵ of the tribunals judiciary, just as they are under a duty to uphold the independence of the courts 32 judiciary. 3.3 His Majesty’s Courts and Tribunals Service (HMCTS) While important (at least symbolically), the imposition of such a duty was not sufficient on its own to meet the concerns, noted earlier, about the independence, actual and perceived, of tribunals. A major plank of the reform programme was therefore to shift administrative responsibility for tribunals from individual government departments to the MoJ and in particular its delivery agency, His Majesty’s Courts and 33 Tribunals Service (HMCTS), which administers both the courts and tribunals systems. Many formerly separate tribunals have now migrated into the new tribunals system, meaning that they are part of the new structure described in the next section, and that they are administered by HMCTS. The existence of that agency is central to the achievement of the Leggatt vision of ‘one system, one service’. Some of the reasons for a unified tribunals administration—such as providing greater coherence and reducing costs—are managerial. But there is also an important constitutional issue here. Locating HMCTS within the MoJ is important because that department does not take the kinds of decision that can be subject to appeals before tribunals; as the department responsible for the administration of justice, it has a special mission to protect judicial independence. The purpose of the unification of the tribunals system under the MoJ was to ensure that tribunals are seen to be manifestly independent from those parts of government the decisions of which they are examining. As Secretary of State for Justice, the Lord Page 13 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Chancellor is under a general duty to ensure that there is an efficient and effective system to support the carrying on of the business of the new tribunals system and that appropriate services are provided for 34 tribunals. 3.4 The First-tier Tribunal and the Upper Tribunal Before the 2007 Act, there was great variety in the structure of tribunals. Some had a two-tier structure, with the first-instance tribunal hearing appeals from governmental decisions, and a second-tier body that determined appeals from the first-tier tribunal. Other tribunals were organised on a single-tier basis, albeit with the possibility of further challenges in the higher courts, by way of appeal or judicial review. Structural differences aside, the overall pattern was to have initial merits appeals determined by a fact- finding tribunal, with any further challenges, whether decided by a specialist tribunal or a higher court, focusing on whether any error of law afflicted the first-tier tribunal decision. It was generally recognised 35 that this was an incoherent system with little, if any, logical structure. The 2007 Act established a new unified structure by creating two new generic tribunals: the First-tier 36 p. 691 690 Tribunal (FTT) and the Upper Tribunal (Figure 16.2). These ↵ ↵ two new generic tribunals are themselves divided into ‘chambers’. There are seven FTT chambers and four chambers of the Upper Tribunal. The four largest chambers are the FTT (Social Entitlement Chamber) and (Immigration and Asylum Chamber), and the Upper Tribunal (Administrative Appeals Chamber) and (Immigration and Asylum Chamber). This structure is more malleable than its predecessor: judges within a given chamber can work across different areas, enabling judicial resources to be deployed more flexibly and efficiently. Each chamber is headed by a chamber president and the tribunals judiciary is headed by the Senior President of Tribunals. Page 14 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025 16. Tribunals Figure 16.2 The tribunals system 37 The Upper Tribunal hears appeals on points of law against the FTT’s decisions. It also has a first- 38 instance jurisdiction in relation to a small number of matters. In addition, it has powers of judicial review 39 in limited circumstances, as we explain later. Another important function of the Upper Tribunal is to develop general guidance for the benefit of the FTT. The Upper Tribunal is a superior court of record, like 40 the High Court and the Employment Appeal Tribunal. This underlines its status, and also raises questions about whether the Upper Tribunal’s decisions may themselves be subject to judicial review—a point considered later. In essence, First-tier Tribunals undertake the first-level appeals. They are largely fact-finding bodies that undertake the trial-level work of hearing evidence, finding facts, and applying the rules. By contrast, the various chambers of the Upper Tribunal are more in the nature of higher-level, expert courts that deal with onward challenges and resolve the more complex legal matters that arise. Both the FTT and the Upper Tribunal are adaptable institutions, able to take on any existing or new tribunal jurisdictions. So, in the future, when Parliament decides to create a new appeal right or jurisdiction, it will not have to create a new tribunal to administer it. The Lord Chancellor also has the 41 power to transfer the jurisdiction of existing tribunals to the two new tribunals. Not all tribunals are now located within the new unified structure. Some tribunals—mostly those dealing with appeals against decisions of local authorities, such as parking appeals and school admission appeals —remain outside. However, most tribunals are now accommodated within the unified structure. Page 15 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 3.5 Devolved tribunals With devolution to Scotland, Wales, and Northern Ireland, responsibility for some tribunals has also been devolved. The situation differs in each country. In Scotland, the First-tier Tribunal for Scotland and the 42 Upper Tribunal for Scotland have been established. The Scottish Tax Tribunals, created following the devolution of responsibility for some areas of tax policy, will be transferred into this new framework. 43 p. 692 Beyond this, the wider administrative justice and tribunals system in Scotland is ↵ complex. Wales is 44 to establish a similar structure: the First-tier Tribunal for Wales and the Appeal Tribunal for Wales. 45 Northern Irish tribunals remain unformed. The result is a complex picture in which different tribunals operate at different levels (eg UK, Britain, England and Wales, Wales, Scotland, and Northern Ireland). 3.6 Tribunal caseloads The two biggest tribunals are social security and immigration. The volume of appeals determined by individual tribunals fluctuates over time depending on the wider context involved. The number of social security appeals can vary in line with the health of the economy. Furthermore, the Department for Work and Pensions has sought to reduce the number of such appeals by introducing ‘mandatory 46 reconsideration’ to filter out those cases that do not need to proceed to a tribunal. The number of immigration and asylum appeals can be influenced by a wide range of factors, such as the number of people entering the UK to claim asylum. The work of tribunals is often of particular importance to government. Other tribunals handle a lower volume of cases, but the caseload is nonetheless substantial. For instance, Mental Health Tribunals handle over 30,000 cases per year. 3.7 The Senior President of Tribunals The Senior President of Tribunals provides senior judicial leadership of tribunals and oversees the tribunal 47 48 judiciary. The Senior President presides over both the FTT and the Upper Tribunal. In discharging his functions, the Senior President must have regard to the need for tribunals to be accessible; the need for proceedings before tribunals to be handled fairly, quickly, and efficiently; the need for members of tribunals to be experts in the subject matter of, or the law to be applied in, cases in which they decide 49 matters; and the need to develop innovative methods of resolving disputes. The Senior President reports 50 annually on the tribunal system. 3.8 The tribunals judiciary The 2007 Act introduced measures to ensure judicial independence as regards appointments to the tribunal judiciary. Previously, tribunal ‘members’ were often appointed by the government departments 51 that they decided appeals against. Those arrangements suggested that tribunals were not fully p. 693 independent and separate of ↵ government. There was no direct political interference, but it gave rise to concerns about the appearance of independence and impartiality. The 2007 Act changed the position of the tribunals judiciary. There are now tribunal judges who are appointed in the same way as court judges. Page 16 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals That is, both sets of judges are appointed by Judicial Appointments Commission (JAC), which was 52 introduced by the Constitutional Reform Act 2005. The 2007 Act placed the responsibility for 53 recommendations for appointment of tribunal members under the remit of the JAC. 54 The 2007 Act also introduced a new basis of eligibility for appointment as a tribunal judge. The purpose of this was to increase the pool of those eligible for office and to promote greater diversity in appointments, while maintaining quality. Furthermore, under the new unified system, tribunal members will also be able to sit in more than one jurisdiction if there is an operational need. The reforms will therefore make it easier for judiciary and staff to work more flexibly across different tribunals. A distinctive feature of tribunals has been the participation of lay members—that is, people who are not legally qualified but who possess other specialist expert knowledge. For instance, social security tribunals have a judge as chair and a medical member and sometimes also a disability member. This is because many appeals concern decisions about people’s medical and mobility conditions. Non-legal members expand the breadth of specialist knowledge needed to decide such appeals properly. Some appeal panels, as in school admission appeals, are comprised entirely of non-legal members. There is no hard rule about tribunals having to have non-legal members. For instance, first-tier immigration appeals are heard by a single tribunal judge. However, one feature of tribunals is that they possess the flexibility to have non-legal members when appropriate. A judge will always chair a First-tier Tribunal. The Upper Tribunal is entirely comprised of experienced tribunal judges who specialise in the relevant area (such as tax, social security, or immigration and asylum). 3.9 Oversight of administrative justice Given its size, it is important to have oversight of the whole tribunals system. From 1958 until 2007, this was the responsibility of the Council on Tribunals, which reviewed the constitution and working of 55 56 tribunals. The Council did much good work. But it was sometimes seen as an ineffectual body with 57 limited powers. With the 2007 Act’s reform of the tribunal system, the Council became the Administrative Justice and Tribunals Council with a wider remit of overseeing the whole of the administrative justice system and championing users’ causes. The ‘administrative justice system’ was defined as the overall system by which decisions of an administrative or executive nature are made in p. 694 relation to particular persons, including the ↵ procedures for making such decisions, the law under which such decisions are made, and the systems for resolving disputes and airing grievances in relation to 58 such decisions. It seemed that government was finally taking administrative justice seriously. However, in 2013, the government abolished the AJTC to save money—despite a select committee warning that it 59 performed a vital national role. In 2018, a new body—the Administrative Justice Council (AJC)—was 60 established to oversee administrative justice. It is chaired by the Senior President of Tribunals and includes people with expertise in administrative justice. Page 17 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Q Think back over the issues examined in this section. What prompted the reform of tribunals? Will the reforms achieve their purposes? Do you think that the tribunals system is more independent and coherent as a result of them? Test your understanding of this section by answering Self-test questions 16.3. 4. Tribunal procedures How do tribunals operate in practice? Are there obstacles that prevent potential appellants from pursuing appeals? What procedures do tribunals adopt? Should they mimic the courts by adopting an adversarial style or should they be more interventionist? What is the role of legal representation? Are tribunals more informal than the courts, or are they adversarial and legalistic? To what extent should they give reasons for their decisions? Examining tribunal procedures is complex because of the range of questions raised and also because practice varies between different tribunals. The discussion here seeks to illuminate some of these issues with a view to testing the effectiveness of tribunals in providing administrative justice. It is fair to say that, overall, the picture has become increasingly negative: long-standing concerns about the difficulties people experience in trying to access justice have been exacerbated by austerity policies, in particular legal aid 61 restrictions. 4.1 Internal administrative reviews of initial decision-making We start with internal administrative review. In many areas, an individual dissatisfied with a decision must first ask the public body itself to review its decision before proceeding to a tribunal. Internal administrative review has been increasingly adopted by government as the first step on the p. 695 dispute-resolution ladder. It is widely used in areas such as tax, social ↵ security, immigration, and 62 homelessness. In the immigration context, it involves ‘the review of an eligible decision to decide 63 whether the decision is wrong due to a case working error’. Where there is a procedure for the review of initial decisions, dissatisfied individuals must normally first apply for such a review before proceeding to a tribunal. For example, the Welfare Reform Act 2012 introduced mandatory reconsideration as an intermediate stage between primary decisions and an appeal to a tribunal. A social security claimant seeking to challenge a negative decision must first apply for an internal review before appealing to the 64 FTT. This was introduced in order to resolve disputes without the need for cases to proceed to a tribunal, which is a costly and time-consuming process. However, concerns have been raised that people with winnable cases may, as a result, be discouraged from going to tribunals. Page 18 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals In other systems, such as immigration, internal review has largely replaced appeals. Following the abolition of almost all immigration appeal rights, most initial decisions can now only be challenged through internal review and then judicial review. This controversial policy has been criticised. As one MP put it, ‘The Home Secretary has decided it is better to crack down on appeals rather than to get the decision 65 right first time.’ Far more cases are handled through internal review than by tribunals, judicial review, and ombudsmen. For instance, the Department for Work and Pensions had made several hundred thousand mandatory reconsiderations. The advantage of internal review is that it can filter out clearly wrong initial decisions more quickly and more cheaply than appeals. Government favours internal review as a low-cost means of resolving disputes speedily. However, there are drawbacks. Internal review is an administrative process. Unlike a tribunal, it 66 is not an independent and judicial mechanism. It is also ‘characteristically non-participatory’. In 67 contrast to tribunals, internal review involves no hearing. There is the concern that such reviews may, in 68 practice, amount to little more than a ‘rubber-stamping’ exercise that reaffirms initial refusal decisions. Concerns about internal review systems have been highlighted. In 2016, the Social Security Advisory Committee concluded that, properly conducted, mandatory reconsideration could be an efficient process for reviewing primary decisions, but there was much evidence that the process was not working as well as 69 it should. A 2016 report into immigration administrative reviews found various problems and 70 p. 696 ↵ ‘significant room for improvement in respect of the effectiveness of administrative review’. Reviews were being undertaken by low-level and untrained staff. Quality assurance of reviews was minimal and ineffectual. Valid applications had been incorrectly rejected and this had not been picked up. The review system failed to identify some case-working errors. Success rates were lower than expected— far lower than previously successful appeals. Despite assurances that the Home Office would establish feedback mechanisms to ensure that lessons are learnt by caseworkers, in practice, there was no systematic feedback to some original decision-makers or to reviewers and so organisational learning was at best patchy. In response, the Home Office recognised that ‘quality has not consistently been of the 71 standard to which we aspire’ and accepted the need for improvements. There is clearly an issue here concerning the appropriateness of internal review and its effectiveness as a 72 mechanism of administrative justice. Indeed, in this context we encounter a paradox: the purpose of the administrative law system is to ensure judicial control of administration, but, for the vast majority of people, internal review will be their only experience of redress. Most primary administrative decisions are not challenged through the judicial process, but through the administrative process itself. Judicial control through tribunals is gradually being displaced by cheaper review processes, typically of lower quality. Administrative justice is consequently weakened. Whatever the (de-)merits of internal review, one thing is clear: it handles far more disputes than tribunals and judicial review. In other words, it may not much matter that administrative law mechanisms situated higher up the system enjoy additional features— more process, independence, more qualified decision-makers—as most challenges start and end with internal review. Further, the design of internal review is essentially ad hoc and executive-driven. Judicial oversight is minimal. There is no formal legal framework or agreed set of principles that govern and regulate the range of internal review systems. Should internal reviewers be functionally separate and independent from Page 19 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals primary decision-makers? Should reviewers contact the individuals concerned to enable them to participate? What should be the scope of internal review? Ironically, the most heavily used administrative 73 law mechanism is the least regulated and least studied. 4.2 Access to tribunals Are tribunals accessible? Most people who could challenge negative decisions before a tribunal do not do so even though the success rates for those who do is often high. Some 60 per cent of social security and immigration appeals are allowed. Why do so many people decide not to appeal—even with an apparently high chance of success? 74 p. 697 ↵ There are several practical barriers that may prevent potential appellants from appealing. First, potential appellants might be ignorant of tribunal appeal rights. There is low public awareness of what a tribunal is. Second, there is the cost of pursuing an appeal. Some people may not appeal because of the costs of legal advice and/or representation and other costs of preparing an appeal, such as commissioning 75 expert evidence. In 2016, the government introduced fees for various tribunals, prompting concerns that 76 people are being priced out of the justice system. Third, the complexity of the appeal process and the absence of appropriate help may mean that many potential appellants find appealing a confusing and off- putting prospect. Another concern has been that individuals from deprived socio-economic backgrounds tend not to pursue 77 appeals. Potential appellants might also be deterred from appealing in light of the perceived lack of independence of tribunals and the perception that pursuing an appeal may be difficult and time- consuming. It is therefore likely that some individuals with legitimate grievances may not pursue an appeal. Ison has noted that ‘the total volume of injustice is likely to be much greater among those who accept initial decisions than among those who complain or appeal’, whereas Genn has argued that the prevalent failure of potential appellants to exercise their right of appeal demonstrates the very limited 78 contribution that tribunals can make as a corrective to inaccurate initial decision-making. Appeal rates against initial decisions are generally low, except in the immigration context which is marked 79 out by an exceptionally high rate, which has been characterised as a ‘culture of pervasive challenge’. On the one hand, the high rate of challenge by asylum applicants might be seen as a necessary feature of a decision-making process in which matters of life and death are at stake, and in which the quality of decision-making at both initial and appeal stages has regularly been criticised. On the other hand, government has seen the high rate of challenge as evidence of abuse and therefore frequently sought to tighten up the appeals process. 4.3 Tribunal Procedure Rules Before the TCEA, each tribunal had its own procedure rules. Such rules were typically made by the Lord Chancellor or the Secretary of State in the department with the decisions of which the tribunal was concerned. This gave rise to problems both of coherence and (in the case of rules made by the relevant Secretary of State) independence. The 2007 Act has established the Tribunal Procedure Committee, to 80 p. 698 makes ↵ rules governing the practice and procedure in the First-tier and Upper Tribunals. The Page 20 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals Tribunal Procedure Rules must ensure that tribunals provide justice, that the system is fair and accessible, and that proceedings are handled quickly and efficiently. The Rules should be simple, and, where appropriate, responsibility is conferred on tribunal members for ensuring that proceedings are handled 81 quickly and efficiently. The Senior President of Tribunals also makes practice directions concerning 82 tribunal procedures. 4.4 The conduct of tribunal hearings Tribunal hearings can be either adversarial or inquisitorial. A further possibility is that tribunals can adopt 83 an active and enabling approach. In adversarial hearings, the judge is enabled to get at the truth by holding the ring between the parties, while each side presents its own case and assails that of its opponent. To maintain judicial independence, the judge does not descend into the arena between the parties; instead, the two parties are adversaries. An adversarial process works best if both parties are represented, but if the appellant is unrepresented, then the parties are competing on an unequal basis. Immigration tribunals are mostly conducted on an adversarial footing. In an inquisitorial process, the judge takes full control of the proceedings, governs the participation of the parties, and intentionally descends into the arena to elicit the necessary facts to make a decision. The judge controls the proceedings, but at the risk of appearing to favour one party. Few tribunals adopt a truly inquisitorial approach. Third, there is the enabling or active approach in which the tribunal supports the parties in ways that give them confidence in their own abilities to participate in the process, and in the tribunal’s capacity to compensate for the appellant’s lack of skills or knowledge. This seeks to avoid the problems for unrepresented appellants posed by the adversarial approach, but without the tribunal taking full control. The tribunal will be alert for factual and legal issues that appellants have not brought out but which may have a bearing on possible outcomes. It also intervenes to ensure the issues are properly investigated. In practice, the conduct of hearings varies between different tribunals. Some tribunals have an adversarial 84 culture, whereas others adopt more of an enabling or active approach. Hearings may also vary depending on whether there is representation and on the preferences of the individual judge. 85 Leggatt argued that tribunals should adopt an enabling approach to assist unrepresented appellants. In p. 699 such circumstances, tribunal judges may need to intervene in ↵ the proceedings more than might be thought proper in the courts, in order to hold the balance between the parties and to enable individuals to present their cases. Tribunal members should do all that they can to understand the point of view, as well as the case, of the appellant. This is important to ensure effective access to justice. ‘There is clearly a duty upon a tribunal to ensure that all relevant questions have been asked of a claimant. It could not be otherwise, given the complexity of social security law and the fact that few claimants have advisors and 86 that many are poorly educated.’ Furthermore, tribunals should focus upon getting decisions right rather than upon resolving an adversarial contest. As Baroness Hale has noted, the benefits appeals process is ‘a cooperative process of investigation in which both the claimant and the department play their part’; it is 87 inquisitorial rather than adversarial. Page 21 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 4.5 Legal representation Legal representation has traditionally not been considered to be necessary or even desirable, because it might add to the cost, length, and formality of tribunal proceedings. Representation might also make tribunal hearings more legalistic. But because many appellants lack the skills necessary to present their cases effectively, the lack of representation may put them at a significant disadvantage—especially when challenging the decision of a large public authority that is experienced in defending itself in tribunal 88 proceedings. Represented appellants are significantly more likely to win. This is unsurprising. Representation can help appellants to prepare their appeals and navigate unfamiliar law and the tribunal process. It can also promote the equality of arms between an individual and the state. On the other hand, representation can add unnecessarily to cost, formality, and delay. It can also work against the objective of making tribunals directly and easily accessible to the full range of potential users. This was the view of the Leggatt Report. It noted that a combination of good-quality information and advice, effective procedures, and well-conducted hearings, along with competent and well-trained tribunal members, could go a very long way to helping the vast majority of appellants to understand and 89 put their cases properly themselves. Beneath these arguments, there is a basic issue: who will pay for representation? Some appellants pay for 90 representation themselves. But for many, representation is simply out of the question—unless it is funded by the state. While legal aid has not been available across the board for all tribunals, the government previously funded legal advice and representation in some tribunals. Since 2013, legal aid has 91 p. 700 been ↵ severely restricted to reduce public spending. Only very limited cases now qualify for legal aid. Publicly funded advice (though not representation) was previously available in relation to social security appeals; this has now been withdrawn. Likewise, legal aid used to be available for all immigration appeals, but is now restricted to asylum and detention cases only. These restrictions on legal aid were highly controversial and opposed by lawyers and interest groups for undermining access to justice. In response, the government pleaded scarcity of resources: legal aid, it said, was affordable only in the most important cases, such as those raising fundamental rights issues. And in any event, said the government, the user-friendly nature of tribunals enables effective self- representation. There is some scope for exceptional legal aid funding if human rights would be breached if 92 the appellant did not have legal aid. However, this is intended by the government to be a high threshold and it is envisaged that only a small number of cases will attract exceptional funding. The most relevant human right in this context is Art 6 of the European Convention on Human Rights (ECHR), which 93 guarantees the right to a fair hearing when someone’s rights and obligations are being determined. 94 Nonetheless, the overall effect of restricting legal aid has harmed access to justice for some litigants. In the absence of publicly funded representation, tribunals adopt the ‘enabling’ approach advocated by Leggatt. However, it is generally accepted that the system has not been designed in such a way as to assist 95 unrepresented appellants. Much depends in practice on the personal preference of the tribunal judge or panel. On the one hand, the fact that an appellant is unrepresented may require the tribunal judge to play a much more active role in the proceedings than would normally be expected. Some judges may therefore spend some time in hearings questioning appellants, checking documentation, and ensuring that Page 22 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals appellants understand the submissions being made by the governmental agency. On the other hand, some tribunal judges may be concerned that to provide such assistance might undermine their perceived independence; consequently, they may provide little assistance to unrepresented appellants beyond asking 96 them whether there is anything they would like to say. In any event, advice before a tribunal hearing may actually be more important than representation at the hearing. Such concerns notwithstanding, there is much to commend the adoption of the ‘enabling’ approach as regards unrepresented appellants. Another issue concerns representation of the public authority the decision of which is being appealed against. The authority will normally be represented by one of its officials—a presenting officer, whose function it is to defend the initial decision and to assist the tribunal in coming to a legally correct decision. p. 701 The presenting officer may ↵ cross-examine the appellant to establish the facts of the case and may make submissions to the tribunal as to why the appeal should be dismissed. The risk here is that unrepresented appellants may be disadvantaged by an inequality of arms. After all, government agencies are ‘repeat players’: they frequently appear before tribunals, and are fully aware of tribunal procedure and 97 case law. By comparison, most appellants are ‘one-shotters’ who are appealing for the first time; unfamiliarity with the system will often place them at a disadvantage. Yet, in some tribunals—social security and immigration—the absence of presenting officers has become a familiar criticism. While this may reduce any inequality in relation to an unrepresented appellant, it may, at the same time, pose some difficulties for the tribunal judge, because the tribunal will still want to have the appellant’s evidence tested properly. Without a presenting officer to conduct cross-examination, the tribunal will have to ask its own questions, but will need to be careful not to be seen to be undertaking cross-examination, as this might imply that the judge has descended into the arena and compromised his or her independence. 4.6 Is access to justice in crisis? 98 The widely held view is: yes, access to justice is in a deep crisis. With limited legal aid and advice, it is often impossible for people to navigate an adversarial judicial system that largely operates on the basis that litigants are legally represented. Appeal rights have been restricted. Fees have been introduced and 99 criticised on the ground that they limit access to justice. This is not just a matter of legal procedure, but one of substance: restricted access to justice undermines the very content of legal rights, which cannot be enforced without effective legal remedies. ‘There can be no effective rule of law when we lack a fully 100 accessible and affordable judicial system.’ In this context, various proposals have been advanced to widen access to justice. One proposal is to make the system more user-friendly for unrepresented people by introducing primary dispute-resolution officers who would get to the heart of cases quickly and use their expertise and authority to resolve as 101 many cases as possible using alternative dispute-resolution methods. Registrars would only refer cases to a judge where no other resolution is likely to be effective or appropriate. This model could be more effective than the current system by engaging directly with unrepresented parties in order to resolve most disputes quickly and informally and save resources in the long term. But it has not been taken up. Page 23 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 102 p. 702 ↵ Since 2016, the MoJ and HMCTS have been introducing digital methods. These include online evaluation, whereby individuals access online materials to classify and categorise their problem, become aware of their rights and obligations, and understand the options and remedies available to them. There is 103 also online dispute resolution in which hearings are conducted online rather than in person. A reform 104 programme was established to design and deliver better and more efficient systems. Online methods are 105 now used by many tribunals. However, there are concerns about how well these processes work and whether they really meet people’s needs. While the reform programme seeks to modernise courts and tribunals through digital methods, HMCTS has struggled to deliver the reforms it promised and meet its 106 deadlines. HMCTS had also not done enough to listen and respond to users’ concerns. 4.7 Oral and paper appeals In most, although not all, tribunals, oral hearings are the norm. Appellants have a choice between an oral hearing or having their appeal decided on the papers. Some tribunals, such as the Traffic Penalty Tribunal, have innovated with conducting appeals online and over the telephone. Appellants who opt for oral hearings experience higher success rates than those who have their appeals determined on the papers 107 (Figure 16.3). This happens because tribunal appeals often turn upon the tribunal’s assessment of 108 whether the appellant’s evidence is credible. This task is easier to undertake at a hearing. The procedure by which appeals are heard seems to influence substantive outcomes. The concern is that people who have their case considered on the papers are put at a disadvantage. Figure 16.3 Oral and paper outcomes in social security and immigration appeals, 2010–15 Page 24 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 109 Oral hearings have advantages. They are more user-friendly than written procedures. They might be particularly suitable in cases that turn on many disputed facts or complex issues, making it necessary to have the evidence tested rigorously. For example, if the credibility of a witness has been questioned, then p. 703 the tribunal might ↵ be assisted by an oral hearing at which the tribunal can assess the witness in person. Oral hearings also give tribunals a better opportunity to uncover information not available in the documentary evidence. Appellants can present additional evidence or shed new light on existing evidence; tribunal members have the opportunity to check information and elicit evidence that may have appeared irrelevant to the appellant. There is always the risk that, without an oral hearing, the tribunal may simply confirm the initial refusal decision by rubber-stamping it. The importance of oral hearings has been 110 recognised by the higher courts. There are, though, drawbacks with oral hearings. They can be costly, time-consuming, and inefficient. As some tribunals deal with high caseloads, an expectation that all appeals be dealt with through oral hearings can substantially increase costs and delays. Determining appeals solely on the basis of the papers reduces operating costs because large volumes of appeals can be processed efficiently. Nonetheless, administrative justice is not just about efficiency and cost; it is about the delivery of justice. Looking to the future, online appeals are likely to be refined and more widely used. 4.8 Tribunal reason-giving Tribunals must give reasons for their decisions. This promotes the aim of reaching demonstrably accurate decisions by showing that the decision-maker has collected and analysed the relevant facts, and applied the relevant legal rules. It also tells the losing party why he or she has lost, shows that the factual and legal issues have been addressed, and enables the losing party to appreciate whether or not there has been any appealable error. The way in which tribunals discharge this duty varies. Until 2013, social security tribunals 111 p. 704 did not have to give their reasons unless requested to ↵ do so. They now give reasons as a matter of course. Other tribunals produce a written determination detailing their reasons. Reasons should be proper, adequate, and intelligible, and deal with the substantial points that have been 112 raised. A failure to give such reasons may amount to an error of law. Most challenges to tribunal decisions are made on the ground that the reasons given were inadequate. How detailed must the reasons be? It all depends. If the Upper Tribunal is giving an important guidance decision raising complex legal and factual issues, then this may require detailed, lengthy reasons. As regards first-instance tribunals, there is an obvious tension here between the pressure on a tribunal to process a large number of appeals quickly, and the need to reach demonstrably robust and adequate decisions. Reasons should deal with the principal issues, but need not cover every single issue. It is ‘a long established principle of administrative law that it is not to be assumed that a decision-maker has left a piece of evidence out of account merely because he 113 does not refer to it in his decision’. A tribunal decision should not be set aside unless the tribunal had failed to identify and record the matters that were critical to the decision in such a way that a reviewing court is unable to understand why the decision was reached. Tribunals must explain briefly their conclusions on the central issue in an appeal, but such reasons need not be extensive if the decision as a 114 whole makes sense, having regard to the material accepted by the tribunal. Page 25 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 18 February 2025  16. Tribunals 4.9 Improving initial administrative decision-making Tribunals allow many appeals. These appeals concern fundamentally important matters, such as whether someone was entitled to benefits, an individual’s immigration status in the UK, whether someone was entitled to asylum because she would be at risk of persecution or torture overseas, and whether a victim of violent crime was entitled to compensation. The increased proportion of successful social security appeals has been stark. In 2007/08, 44 per cent of appeals were allowed. In 2022/23, the proportion had reached 62 per cent. The proportion of appeals allowed by the FTT (Special Educational Needs and Disability) has been over 90 per cent. These figures are startling. They raise questions about the quality of initial government decision-making. If tribunals routinely allow such a high proportion of appeals, this suggests the quality of initial decisions is quite poor. And it is important to bear in mind that the appeals that are allowed may only be the tip of the iceberg, since only people who appeal to tribunals can have their appeal allowed in the first place. Many people do not appeal because of the time, frustration, and anxiety involved and/or because they are p. 705 vulnerable. This disadvantages such people and makes it more ↵ difficult for them to secure their legal entitlements. An important and interesting recent study of social security tribunals concluded that tribunals can and often do put matters right for the appellants, although the tribunal process is not always 115 straightforward. However, the provision of justice by tribunals is preceded by significant administrative injustice which arises from the conduct of initial decision-making, and the governmental systems within which such decision-making occurs. The variable quality of initial decisions taken by government is indeed a real problem. The quality of immigration and benefit decisions is very mixed indeed. If initial decisions are not made on the basis of a full appreciation of the relevant facts or if initial decision-makers do not thoroughly investigate initial claims or misapply the relevant rules, then the decisions will be wrong. Tribunals have themselves often 116 raised concerns as to the quality of initial decision-making. The high proportion of allowed appeals demonstrates the usefulness of tribunals in providing an effective remedy. Yet, relying on tribunals to correct poor initial decisions is costly, inefficient, and delays the decision-making process. Public bodies