Tribunals (4) PDF

Lecture 10 Tribunals Lecture 10 Learning outcome By the end of this lecture, you are able to:  discuss the organisation of tribunals  explain what tribunals do and how they do it  examine critically the role of tribunals and their effectiveness Initial government d...

Lecture 10 Tribunals Lecture 10 Learning outcome By the end of this lecture, you are able to:  discuss the organisation of tribunals  explain what tribunals do and how they do it  examine critically the role of tribunals and their effectiveness Initial government decision- making People apply to government concerning eg benefits (UC), immigration (visas) and tax. Initial decisions taken by government departments, eg Home Office, Department for Work & Pension (DWP), HM Revenue & Customs (HMRC). Huge complex bureaucratic machines. Decision-makers within government under pressure, subject to performance targets e.g. how many decisions can they make per day, substantial cuts to budgets Toxic department culture, eg contempt and disbelief toward benefit and asylum seekers. Decision-makers often do not meet people in person. Very easy for decision-makers to lose sight of the human beings whose lives can be badly affected by poor quality decisions. What is tribunal? What is the definition of tribunal?  No accepted definition  Self-introduction:  The tribunals are specialist courts whose judges and members hear a wide range of cases, such as tax, employment, and immigration and asylum. Government Tribunals Executive branch Independent and judiciary bodies, similar to courts Large and monolithic process Judicial independence, fair procedure, better reasons Focused on efficiently processing mass of decisions Adjudication – considering each case on its own e.g. DWP, Home Office merits Junior case-workers Tribunal judge & non-legal members Quality of decision-making is variable, same errors Reasonably good quality of decision-making, not come up repeatedly perfect but good No hearings, decisions processed on the papers / Oral hearings, representation, limited legal aid online Advantages: mass processing capacity, but Advantages: good quality decisions; fair process; variable quality of decisions and political pressures independent, but smaller volumes and lengthy / organisational cultures processes, e.g. 1 year for benefit appeal The development of tribunals  First tribunal established in 1799 – income tax appeals.  During the 20th century, tribunals proliferated, which linked to growth of welfare/administrative state. It developed in an ad hoc basis whenever the government thought a new tribunal was necessary.  Originally, tribunals were administrative bodies, not judicial. They were operated by government Department. Government ministers appointed tribunal members and the department took responsibility for the administration of the process. (independence conundrum)  In 1955, the Committee on Administrative Tribunals and Enquiries (Franks Committee) were set up to review the operation of tribunals. Franks Report (1957) recommended that tribunals should be informed by three values: openness, fairness, and impartiality.  Many suggestions have been adopted by the Parliament in the Tribunals and Inquiries Act 1958, including establishing a Council on Tribunals to supervise the tribunal work, tribunals should give reasons for their decisions, and an appeal from the decisions of tribunals on the point of law to the High Court.  Tribunals worked in different ways and lacked cohesion.  Significant reform: Tribunals, Courts and Enforcement Act 2007 – established  The Tribunals, Courts and Enforcement ACT 2007 (TCEA)  Brought unity to tribunals by introducing the new tribunal structure of First- tier and Upper Tribunals.  This covers most – but not all – tribunals (eg the School Exclusion Panels, Valuation Tribunals)  Brought tribunals into the judicial system.  Tribunal members became judges.  Tribunals are protected by the principle of judicial independence – the same as court judges (TCEA, s 1)  HM Courts and Tribunals Service (HMCTS) was established in 2011 and is responsible for the administration of tribunals and courts in England and Wales. It aims to ensure that tribunals are independent from the government departments the decisions of which they are challenging. The structure of Tribunals  Two generic tribunals: First-tier Tribunal and Upper Tribunal. (TCEA, s 3)  They are divided into different chambers. (7 FTT chambers & 4 UT chambers) (TCEA, s 7)  UT has two main functions: (1) correct errors of law by the First-tier Tribunal; and (2) give guidance on complex issues to ensure consistency and certainty.  The UT issues important decisions on legal issues, eg statutory interpretation of social security law.  UT (Immigration and Asylum Chamber) also does immigration judicial review. Tribunals outside of the FTT and UT structure  School Exclusion Panels: school admission and exclusion, others  Property valuation tribunals: local government tax  Traffic Penalty Tribunal: appeals against parking and traffic Penalty Charge Notices  Investigatory Powers Tribunal: cases concerning alleged unlawful action by the UK intelligence agencies using covert investigative techniques  Special Immigration Appeals: dealing with immigration terrorism cases The members of Tribunals  The Tribunals members comprise judges and non-legal members. (TCEA, ss 4 &5)  Non-legal members: people who are not legally qualified but who possess other specialist knowledge.  One feature of tribunal is the flexibility to have non-legal members when appropriate. They use their personal or professional experience to facilitate a fair hearing. Example: in social security appeals: one judge (chair), a medical member, and a disability member.  No hard rule about composition of a tribunal panel: Example: immigration appeals are heard by a single tribunal judge.  FTT judges and members are appointed by Senior President of Tribunals. (TCEA, sched 2)  UT judges are appointed by the Crown on the recommendation of the Lord Chancellor. UT Non-judge members are appointed by the Senior President of Tribunals. (TCEA, sched 3)  Appointment takes place after selection by the Judicial Appointments Commission. The appointments process has greater independence from the executive than previously.  A judge will always chair an FTT chamber. The tribunal procedures The overriding objective – Tribunals must deal with cases fairly and justly. (a) dealing with cases proportionately to the importance & complexity of the issues, and costs and resources (b) avoiding unnecessary formality and seeking flexibility; (c) ensuring parties can participate fully in the proceedings; (d) using Tribunal’s special expertise effectively; and (e) avoiding unnecessary delay The tribunal procedures ① Jurisdiction ② Pre-appeal reconsideration ③ Oral hearings and paper appeals ④ Representation and legal aid ⑤ Adversarial v inquisitorial ⑥ Standard and burden of proof – how to assess evidence ⑦ Tribunal reason-giving ⑧ Appeal to UT and to Court of Appeal ⑨ Online Dispute Resolution – the Traffic Penalty Tribunal ① The tribunal procedures: jurisdiction Jurisdiction - what issues a tribunal can and cannot decide Jurisdiction - the limits of tribunal’s powers. Tribunal’s jurisdiction is only conferred by legislation. “Jurisdiction” is a constitutional principle reflecting the proper distribution of the judicial power of the State under the ultimate authority of Parliament. A statutory tribunal must not act outside its statutory jurisdiction. Immigration and Asylum Chamber refuse your protection claim (also known as ‘asylum claim’ or ‘humanitarian protection’) revoke your protection status refuse your human rights claim revoke your British citizenship refuse you a residence document or deport you under the Immigration (European Economic Area) Regulations 2016 refuse or revoke your status, vary the length or condition of your stay, or deport you under the EU Settlement Scheme refuse or revoke your travel permit or family permit under the EU Settlement Scheme or restrict your rights to enter or leave the UK under those permits refuse or revoke your permit, or deport you if you’re a frontier worker refuse or revoke your leave, or deport you if you’re an S2 healthcare visitor  Tribunal cannot claim to possess jurisdiction beyond the relevant statute. Tribunal either has jurisdiction or it does not. Tribunal always has jurisdiction to decide whether a case or issue falls within its jurisdiction If tribunal thinks a case raises a jurisdictional issue, then it must consider the issue - even if not raised by the parties Jurisdiction cannot be conferred or taken away by waiver or agreement between the parties. The Tribunal must strike out the whole or a part of the proceedings if it does not have jurisdiction in relation to the proceedings or that part of them. Example: School Exclusion Appeals The Education Act 2011 created a right of appeal for children permanently excluded from school. Sammy has behaved badly in school and insulted a teacher. The school excludes Sammy for two weeks. His parents: “This is completely unfair”. Example: School Exclusion appeal Act only gives the tribunal the jurisdiction to hear appeals against permanent exclusion. Sammy was excluded for 2 weeks, a time-limited period. Sammy was not permanently excluded. Tribunal has no jurisdiction to hear Sammy’s appeal.  Example: School Exclusion appeal The Education Act 2011 created a right of appeal for children permanently excluded from school. Sarah is permanently excluded. She appeals against the exclusion. She also wants damages for the harm and distress caused by the exclusion and for the loss of time in school and affect on her education. Case-law says that there is a possible civil action for damages.  Example : School Exclusion appeal Under the Act, the Tribunal can either uphold an exclusion or order the child to be re-instated at the school. The Act says nothing about an action in damages Tribunal can only hear appeals and only allow or dismiss an appeal. Tribunal has no jurisdiction to award damages. Answer: Tribunal should hear the appeal, but must strike out the damages claim because it’s outside tribunal’s jurisdiction. Sarah can take a civil action in the civil courts. ② The tribunal procedures: pre-appeal reconsideration Administrative review (reconsideration) is an internal review procedure. It enable the public body itself to review its decision, before or during proceeding to a tribunal or court. Where there is a procedure for the reconsideration of the initial decisions, dissatisfied individuals must normally apply for reconsideration before proceeding to a tribunal or court. Example, social security mandatory reconsideration (Welfare Reform Act 2012, s 102) Parking or traffic Penalty Charge Notices In some systems, reconsideration has largely replaced appeals. Example, almost all immigration appeals (except on asylum and human  Volume of cases Average Classes of case Average cost (2023) clearance time Administrative Social security 13 days £ 80 reconsideratio n Immigration 15 days £ 80 Social security and 120,000 125 days £ 592 child support Tribunals Immigration 58,000 230 days £ 707 Upper tribunal (IAC) 3,000 Judicial review Administrative Over 300 days Over £ 30,000 2,500 court ③ The tribunal procedures : Oral hearings and paper appeals Tribunal must hold a hearing unless (a) each party has consented to the matter being decided without a hearing; and (b) the Tribunal is able to decide the matter without a hearing. ‘Hearing’ means an oral hearing and includes hearing conducted by video link, telephone or other such means. Oral hearing are important, and it has been suggested that claimants are more likely to be successful when they appear before the tribunals. ④ The tribunal procedures: representation and legal aid Individuals can be self-representing. Legal representation is generally permitted. Legal representation is usually not considered to be necessary or even desirable, because it adds cost, length and formality to appeals. But, represented appellants are significantly more likely to win. Representation with their legal knowledge can help appellants to prepare their appeals. Who pays for the representation? Appellants or states? Legal aid is limited and only few cases now qualify for legal aid. Legal Aid, Sentencing and Punishment of Offenders Act 2012 severally restricted legal aid. (ss 9-10 & schedule 1) Balance between access to justice and public spending? ⑤ The tribunal procedures: Adversarial v inquisitorial Adversarial hearings: Two parities are adversaries. While each party presents their case and assails that of its opponent, judges do not descend into the arena between parties. This works best when both parties are represented. Example: Immigration tribunals are mostly adversarial. Inquisitorial hearings: Judges take full control of the proceedings, govern the participation of the parties, and intentionally descend into the arena to elicit the necessary facts to make a decision. There is a risk of appearing to favour of one party. Few tribunals adopt a truly inquisitorial approach.  Enabling or active approach: the tribunals help the parties in ways that give them confidence in their own ability to participate in the process. It is relatively common in appeals concerning social security, child support, and special education needs. The flexibility of tribunal appeals. ⑥ The tribunal procedures: Standard and burden of proof To make a decision, the tribunal needs to: Collect relevant information – hear the evidence Make findings of fact – decide what evidence is accepted or not accepted Find the relevant legal rules to be applied Apply the law to the findings of fact Make a decision to allow or dismiss the appeal Evidence Tribunal must assess the evidence to make findings of fact. Different types of evidence – oral, documentary and expert. Evidence can be reliable or unreliable. It all depends. Some people tell the truth; some people lie. Documents may be reliable or unreliable. So too expert evidence. As judicial decision-maker, the Tribunal must consider and evaluate the evidence and make findings of fact. But how exactly? Standard of proof It concerns the degree of certainty required to make findings of fact The law never requires 100% certainty. There are different standards of proof that apply Criminal standard – proof beyond reasonable doubt Civil standard – on the balance of probabilities In tribunal cases, typically the civil standard of proof applies Burden of proof 1. It decides which party has the duty to prove the case. 2. Criminal proceedings – burden of proof on prosecution to prove defendant guilty (beyond reasonable doubt) 3. Civil proceedings – burden of proof on party bringing the proceedings (on balance of probabilities) 4. Tribunal appeals – burden of proof on appellant to prove their case (on balance of probabilities)  Example : immigration appeal Immigration judge hearing an immigration appeal. Burden of proof on appellant. Appellant gives evidence; Home Office did not attend the tribunal hearing to test the appellant’s case Judge reasons: the appellant gave evidence; the Home Office rejected his case, but did not attend before the tribunal. Judge decides: “I conclude that the Home Office has failed to disprove the appellant’s case and therefore I allow the appellant’s appeal.” Did judge make an error of law?  Example : immigration appeal Judge stated that it is for the Home Office to disprove the appellant’s case. This is WRONG: the burden of proof is on the appellant. Judge has reversed the burden of proof – an error of law. Appeal must now be re-heard by a different judge.  Example Judge has a heavy list of 4 appeals to hear. In the third case, the appellant’s representatives submits 600 pages of poorly photocopied documents all in wrong order without page numbers. Judge asks representatives to identify the key points in the case Judge later dismisses the appeal. Appellant’s representative appeals because judge did not consider a minor point of evidence contained in footnote 39 at page 489 that was not raised at the hearing.  Example It depends on the nature of the issues. But, it is generally unnecessary for a judge to rehearse every detail or issue raised in the case. That leads to long decisions. Not a proportionate approach. But, judge must identify and resolve the key conflicts in the evidence and explain clearly and briefly the reasons so that the parties understand why they have won or lost. Possible that representatives trying to manipulate the tribunal process, but what of the  Example Asylum appeal Home Office had considered an asylum claim in detail. Home Office gave 7 reasons why appellant lacked credibility, was not telling the truth. Judge concludes: “Appellant's evidence was consistent and the Appellant gave a credible account.” Home Office appeals to Upper Tribunal on basis that judge did not properly engage with its case/give proper reasons. Did judge give proper reasons? Example Asylum appeal The judge’s conclusions about appellant’s credibility needed to be based on evidence and proper reasons. Judge committed an error of law. The relevant evidence has not properly been considered by judge. The effect of that error was to deprive both parties of the opportunity for their case to be properly considered by the Tribunal. Appeal to be re-heard by different judge. ⑦ The tribunal procedures: Tribunal reason- giving Tribunals must give reasons for their decisions. Reasons must be proper, adequate and intelligible. Most challenges against tribunal decisions concern the reasons given. If tribunal finds oral evidence is implausible or document is unreliable, it must give reasons for this. A bare statement that a witness was not believed or that a document was unreliable is not enough.  Example Immigration appeal Mr. Hassan is an asylum seeker from Syria. His application for refugee status was rejected by the Home Office. Appeal to tribunal. Case lasted half day before the tribunal judge. Judge in his decision wrote: “I dismiss this appeal because of the reasons already given by the Home Office”. Did the judge get it right?  Example Immigration appeal Tribunal must make its own decision on issues of both fact and law. It must not simply endorse the Government’s initial decision. Tribunal must not start from the position that the appeal is to be dismissed unless persuaded otherwise. It must hear the evidence, make findings of fact, give reasons, and decide the appeal. Tribunals must decide appeals independently and afresh ⑧ The tribunal procedures: Appeal to UT 1. A right of appeal from the FTT to the UT is permitted. (TCEA, s 11(1)) 2. There are exceptions. (TCEA, s 11(5) & (8)). 3. A permission is required. Either the FTT or UPcan grant an appeal permission. (TCEA, s 11(4)). 4. If there is an error of law, the UT can set aside the decision of the FTT or remit the case back to the FTT for decision or make its own decision on the case. (TCEA, s 12). ⑧ The tribunal procedures: Appeal to UT 6. Appeal to UT is confined to error of law. 7. A person whose appeal has been dismissed on factual grounds cannot appeal to the UT and cannot re-argue their case again. 8. What is an error of law? Most common examples: I. making a material misdirection of law, including making mistakes about the meaning of law, failing to following a binding decision of a higher court II. failing to give adequate reasons; III. failing to take into account important evidence; IV. failing to solve conflicts of fact or opinion on material matters; V. committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings. ⑧ The tribunal procedures: Appeal to Court of Appeal 1. A right of appeal on a point of law from the UT to the CA is permitted. (TCEA, s 13(1)) 2. There are exceptions. (TCEA, s 13(8)&(14)). 3. A permission is required. Either the UT or CA can grant an appeal permission. (TCEA, s 13(4)). 4. Precondition: appeal to CA is not given unless (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. (TCEA, s 13(6)). 5. If there is an error of law, the CA can set aside the decision of the UT, remit the case back to the UT for decision or remake decision ⑨ The tribunal procedures: Online Dispute Resolution Big reform programme: tribunals are trying to move digital, but the process is delayed. Current system is paper-based, slow and costly. Appellants with mobility issues… Traffic Penalty Tribunal – parking disputes resolved online. Online is convenient, quick, efficient, people expect online services. But online is not appropriate for all cases. Challenge administrative decisions before Tribunals Upper Tribunal Appeal on error of law only First-tier Tribunal Appeal on fact and law Administrat ive review Government body initial decision-maker – eg DWP, Home Office  Appeals against the refusal of benefits. Cases involve issues such as the nature of Social someone’s disability, whether or not someone is fit or unfit for work – often involve medical Entitlement evidence and someone’s ability to work. Appeals heard by tribunal judge, medical Chamber member, and and a disability member. Low rates of representation. Tribunals have expertise to collect and draw out the evidence. Tribunals adopt an inquisitorial approach.  Each appeal is listed for 45 min hearing and then a decision. Social Tribunals do not automatically give detailed reasons, but these can be requested. Entitlement A rough and ready process. Chamber A tribunal will typically hear 7/8 appeals per day. But people wait 6 months for a hearing – too slow for people waiting to find out about their benefits. At present, around 70% of appeals allowed. Very few onward appeals to the Upper Tribunal.  Increase in appeals to over 500,000 appeals in 2013. Government concerned about costs and time taken. Social Concern about the quality of initial government Entitlement decisions. Government has introduced two reforms: Chamber (1) introduced better feedback from tribunals to government to promote better initial decisions – to get it right first time (2) Introduced mandatory reconsideration – an internal review by the DWP before claimant can go to tribunal  Most appellants are represented, but quality variable. Immigration Legal aid only available for asylum and and Asylum detention cases. Oral or paper appeals. Chamber Adversarial process. Burden of proof is on appellant. Immigration rules and case-law – very detailed and complex.  “The system of immigration appeals is a never-ending game of snakes and ladders, with almost 70,000 appeals heard every Immigration year” (Theresa May MP, then Home Secretary, 2013) and Asylum Immigration Act 2014 replaced most appeals Chamber with administrative review. Now only asylum, human rights, and EU Settlement Scheme cases go to immigration tribunals. Other cases go to judicial review in the Upper Tribunal.  Over 95% of all judicial decision-making concerns fact-finding rather than issues of law. Fact-finding involves hearing the evidence, Immigration subjecting it to scrutiny, and then considering its weight and importance. and Asylum Has an asylum applicant been tortured? Medical Chamber evidence may say that a person’s scars are consistent with torture, but they may be consistent with other causes or self-inflicted. Fact-finding is inevitably imperfect and involves judicial discretion & judgment. Impossible to know if decisions are objectively correct. Summary: Tribunal 1. Tribunals determine appeals against routine individualised administrative decisions, e.g. a refusal of benefits to a claimant. Such disputes are “low-level,” but every decision is of immense importance to the people involved 2. Tribunals have developed over time. Now Tribunals are judicial and independent. 3. Tribunal judges specialise in particular areas, e.g. social security, immigration. 4. Tribunals are lower courts, but less formal than the higher courts. The procedure is more flexible. 5. First-tier tribunals are largely fact-finding bodies that apply the law to Tribunal appeals and judicial review compared Judicial review Tribunals the courts review the lawfulness of Tribunals decide appeals against government decisions administrative decisions normally does not involve facts-finding tribunals make their own findings of fact by hearing witnesses and considering the evidence the courts can only strike down an Tribunals are not limited just to striking administrative decision and send it back down an administrative decision to the public body to be re-decided The courts cannot substitute their own Tribunals can remake the administrative decision for that of the government decision on issues of fact and law Tribunal appeals and judicial review compared, cont’d Judicial review Tribunals The courts are limited in this way Tribunals can take their own decisions because they have a common law because they have a statutory jurisdiction jurisdiction the courts follow more formal procedure Tribunals take more flexible procedure Usually more complex legal issues and Self-representation, limited legal aid represented by lawyers Adversarial hearing Adversarial or inquisitorial hearing Common law right to judicial review Statutory right to appeal to Tribunals, which can be limited by Parliament