Chapter Five - The Tribunals Service
5.1 This chapter contains our
recommendations for the establishment, structure, performance measurement
and funding of a new executive agency to provide administrative support
to the Tribunals System.
A Tribunals Service
5.2 The Lord Chancellor’s Department
(LCD) already contains a substantial executive agency responsible for
the administration of the ordinary courts in the Court Service. We have
naturally considered in some detail whether it would be an appropriate
home for the administration of tribunals. We have concluded that it
would not. Procedural rules will be different. As we indicate in Chapter
Seven panel composition will require careful selection of cases to be
heard by individual panels. Putting together panels from a mix of lawyers
and experts will require different skills and systems from those in
the courts. The arrangements for providing information to tribunal users,
and for training staff to explain tribunal requirements, will be different.
Although it may be appropriate for some tribunals to use court facilities
on some occasions, the much greater informality of tribunal proceedings
points to rather different hearing facilities. For all these reasons,
IT systems will therefore need to differ in important questions of detail.
Finally, a Court Service which was also responsible for the administration
of tribunals would be a large organisation, and one at some danger of
becoming unwieldy and inflexible. Despite the attractions of being able
to use an existing organisation, we have therefore concluded that the
tasks of tribunal administration are sufficiently distinct for it to
be unlikely that there will be many successful synergies.
5.3 We see two
strong arguments of perception in favour of a separate service. First,
we have been struck by the pervasive sense that tribunals are regarded
in many quarters as inferior to courts not only in jurisdiction, but
in status, and in priority. We think there is some risk of that perception
being confirmed if the Court Service which faces major organisational
challenges in the reform of both criminal and civil justice in the ordinary
courts is also charged with the wholesale programme of reform which
we think necessary if tribunals are to meet the needs of the modern
user. Instead, we want an organisation committed to producing a distinctive
tribunal service and tribunal approach and directed at providing tribunal
"services of the highest quality, matching the best anywhere in
the world... responsive to the user and... seamless".18
[62]
5.4 Secondly, tribunal
administration must make sense to the user. That will not be achieved
simply by better arrangements for helping users to identify the nature
of their problem, and allocating them to the relevant part of the system
— although those are surely needed. The new arrangements will have
to be sufficiently focussed to develop and communicate to users the
sense of coherence we refer to in the introduction. That is unlikely
to be achievable for an organisation which also has to deal with the
ordinary courts. That does not mean that the two organisations should
work in artificially separate ways. Many of the tasks which the Court
Service faces in the modernisation of the civil courts19
have strong similarities to those the Tribunals Service will face in
its initial years. It can only be productive for them to work together,
and to seek out common tasks and solutions. We therefore recommend that
the Tribunals Service should be a separate agency. [63]
5.5 The model of
an executive agency was devised to enable arms of government which deliver
a service to concentrate on the recipients and the delivery of that
service. The Tribunals Service would be free to develop its own financial
and personnel systems within the wider constraints imposed on the Government
centrally. In setting it up, it will be important to ensure that lessons
learned from the creation of other agencies are taken fully into account.
Features of an executive
agency
5.6 The main features of agency status
are:
(a) A customer-focussed
and business-orientated organisation, which uses the best public and
private sector management techniques;
(b) Direct
accountability to the ministers of a single department;
(c) More
accountable management by way of a framework for monitoring, supervision
and disclosure of the agency’s performance, including corporate
and business plans agreed with ministers and published; key performance
indicators and annual targets agreed with ministers and published;
and a published annual report;
(d) Audited
annual accounts, published in an annual report;
(e) Commitment
to service-first charter standards;
(f) Autonomy
in running the day-to-day business of the organisation within the
limits set by the governing framework document; and
(g) Freedom
to develop financial and personnel regimes, which best suit the needs
of the business within the limits of central government rules and
guidelines.
User-focussed
5.7 Setting up
the Tribunals Service will provide an opportunity to create an organisation
which is user-focussed and is also dynamic, while applying the principles
of Modernising Government. In order to ensure that the organisation
concentrates on the concerns of the user, existing "best practice"
should be identified, spread throughout the new organisation, and developed.
[64] In our visits to tribunals, we have been struck by the efforts
and commitment managers and staff have put in to give the best service
they can, despite often tight constraints. That impression has been
confirmed by much of the evidence from the consultation response. It
will be important in the development of the new Service to preserve
and develop the user focus and expertise to be found so often within
the constituent tribunals, and use it to create a clear sense of purpose.
The people who work in the Tribunals Service should be given the opportunity
to develop their own sense of what kind of organisation it is to be,
and to determine the new agency’s corporate values. [65]
5.8 Bringing together the administration
of tribunals into a single administrative service may be expected to
result in a better corporate image. Users will benefit by a single point
of contact for appeals against administrative decisions; and members
and staff will benefit by a higher profile, because they will no longer
live in the shadow of the courts. The provision of central support services
for all tribunals will mean greater administrative efficiency. There
will, for example, no longer be a need for each system to invest in
the development of individual IT solutions. Similarly, there will be
opportunities for rationalising accommodation. Greater flexibility may
be expected in matching resources to demand. The Appeals Service has
already reported that the amalgamation of five separate social security
jurisdictions has allowed it to move members and staff between jurisdictions
as occasion demands. Similarly, in a unified Tribunals Service the resources
needed to cope with the recent increase in the workload of immigration
tribunals might have been met by redirecting resources released by the
reduction in the workload of the Appeals Service.
5.9 The single service may be expected
to yield better career opportunities for staff. The fish will all be
swimming in one pond, and it will be a large one. In Franks’s time
bringing all the clerks together under the LCD would not have resulted
in sufficient opportunities for career development for staff. The situation
has since been reversed. Tribunals now require greater administrative
support, but none, with the exception of the Appeals Service and the
Employment Tribunal Service (ETS), is large enough to offer their own
career opportunities for staff. Staff are still mostly recruited from
sponsoring departments; and tribunals are not seen as offering attractive
career development opportunities for the most ambitious and able staff.
Staff turnover is high, and many tribunals, particularly in the South
East, have reported difficulties in recruiting and retaining staff.
Many of these difficulties would be overcome by the creation of a Tribunals
Service.
5.10 Amalgamating
the 2500 or so staff who currently provide support for citizen and state
tribunals, and the many staff who support local government tribunals,
would create a body amply large enough to offer opportunities for staff
career development and to work in different tribunal areas by moving
around within the organisation. Tribunal staff might also be expected
to gain experience in the Court Service, and in related areas, such
as working for an Ombudsman. It would be helpful for tribunals to employ
some staff who have had experience as actual decision-makers, or in
making policy. [66] The Tribunals Service should have an active
policy of encouraging secondments to and from relevant departments,
in order to widen opportunities. [67]
5.11 Again, the
diversity of the current system means that at present investment in
training for staff in tribunal-specific skills is only cost-effective
for the Appeals Service and the ETS. The result is that service to users,
communication and administrative skills are often undervalued and under-developed.
Our proposals for better-focussed assistance for tribunal users will
put new demands on staff interpersonal skills and expertise. These should
be a particular feature in the training programmes within the new Service.
[68]
Creating the Tribunals
Service
5.12 It would be neither appropriate
nor practical for this review to attempt to produce a detailed project
plan. We want to be sure that what we recommend is feasible. That has
required us to take account of the size and implications of the proposed
programme, give thought to possible approaches to implementation, and
take due account of the practicalities.
5.13 There are two main approaches
to the creation of the Tribunals Service: first, to create a service
to provide administrative support for all tribunals, from the day of
implementation, with new values, culture and processes established at
the outset; secondly, to include on day one a core of tribunals, adding
other jurisdictions, and developing new ways of working, over time.
5.14 The first option would involve
legislating for the new Tribunals Service before bringing together any
of the existing jurisdictions. Preparatory work would be undertaken
across the range of existing jurisdictions by the departments currently
responsible for administering each of the separate tribunals. This approach
would ensure the creation of the new service was marked by a clean break
with the existing arrangements. It would, however, be impracticable
to reform and unify 70 separate tribunals simultaneously. Some might
be relatively straightforward. Others (such as the School Admission
Panels) are a major task in themselves. Creation of a new Tribunals
Service should not be delayed until all the details have been worked
out for all the tribunals; to do so would be a recipe for inaction.
Appeals Service example
5.15 Recent developments in social
security may provide a useful example on which to model the creation
of a wider Tribunals System and Service. These are outlined in the section
on the Appeals Service in Part II.
Initial size and scope
of the Tribunals Service
5.16 The diversity
of the tribunals world, and the marked differences in tribunals are
such that a staged approach is needed. [69] That would create
a project with three distinct elements: creating the initial core service;
developing new ways of working, new processes and new rules for the
service; and preparing other tribunals for inclusion in the service.
5.17 It is important that these three
elements of work proceed in parallel. Tribunals that are not to be included
in the initial core may nevertheless provide much information in the
way of examples of best practice or processes or demands that have to
be accommodated. This must be taken into account as the initial core
body is established, and as new ways of working are developed. We should
also emphasise that the new service will need all the resources, skills
and talents of those currently working in tribunals.
5.18 For the initial
core, we recommend combining the tribunals which are currently administered
by the LCD with the Appeals Service. [70] In our view, the LCD-administered
tribunals would not be sufficient to form the core. The Appeals Service
has successfully amalgamated a number of separate tribunals, and demonstrates
most of the features that we are recommending for the new service. Its
experience, and the skills of its management and staff, will be vital
elements in making a success of the project.
5.19 Table A provides
a process map outlining an approach to the creation of the Tribunals
Service. Central to the approach is the need to consult each of the
key stakeholders: Government departments, local authorities, the devolved
administrations, and tribunal members, staff and users. [71] The
map outlines our suggested approach, and emphasises the importance of
the three elements running in parallel as part of a coherent programme
of change. [72] Indeed, we recommend that all three elements
are overseen by a programme team reporting to a President and Chief
Executive designate. [73]
Features of the Tribunals
Service
Size and scope
5.20 If the Tribunals
Service is made responsible for providing administrative support for
all citizen and state (central and local government) tribunals both
first-tier and second-tier, it will be a major new factor in the system
of administrative law. Its creation will give a new coherence to the
system, making it clear to users that they have a single point to go
to when dealing with administrative appeals. That will offer a raised
public profile for all tribunals and will also give rise to efficiencies
of scale. These roles, and particularly the role of Chief Executive
designate, will be critical. The Chief Executive will be required to
provide the creation of the Tribunals Service with the vision, energy
and coherence it needs to succeed. It is therefore important that the
post-holder brings to the project leadership and management skills,
and the ability to deliver a large-scale programme of this type. [74]
The trawl for the person to fill the post should be a wide one.
Table A - Creation of
the Tribnals Service: a process map
5.21 Tribunal
users are spread across the country and many are among those least able
to travel any great distance, as is sometimes necessary for a tribunal
hearing. The Tribunals Service must therefore be a national organisation,
with a strong local presence. This in turn will require a regional structure
and regional management to ensure that the service is responsive to
local needs and offers management at a regional level for staff and
members. [75] It would not be appropriate to prescribe as part
of this review what form that regional structure should take. Its detailed
creation will depend on the best way to build on what is best in the
current services, and improve them through a more coherent management
structure. In creating such a structure, attention should be paid to
existing regional management within different tribunals; to the regional
presence and management of decision-making departments, agencies and
authorities; to good practice from other organisations, such as the
Court Service and the Legal Services Commission; and to local authority
needs. [76]
Service to users
5.22 We set out
in Chapter Four our proposals which the Tribunals Service should adopt
in providing information for, and assisting, users. This new role must
be reflected in a Customer Charter, and in its reports. [77]
A Charter
5.23 In addition
to measures to test the efficiency and effectiveness of the Tribunals
System, the Tribunals Service should set out in its charter for users
the standards of service which they can expect, and what to do if they
do not think those standards have been met. [78]
5.24 Many of the more practical questions
can, and should, be similar to those which apply to the ordinary courts.
The current Courts’ Charter gives a series of undertakings which
cover such matters as what kind of service to expect at a court’s
public counter; how quickly telephone calls will be dealt with; how
quickly hearings will be fixed; effective routes of complaint; and the
use of comment cards and local surveys.
5.25 More is likely
to be needed for tribunals, in order to build public confidence in the
capacity to use the system without representation. [79] In particular,
tribunals should ensure that they:
(a) provide
carefully structured information in a variety of formats which enable
the user to understand whether and how to operate the system;
(b) provide
(through telephone helplines and staff at regional centres) tailored
support from a person to explain anything which is unclear in that
information;
(c) provide
information about advice and information services which will be able
to help on a more individual basis, including substantive advice;
(d) set
out a clear schedule for all of the principal stages of a case, including
the date of the main hearing, once an appeal has been registered;
(e) take
responsibility for ensuring that the parties to the appeal keep to
that schedule, insofar as it lies within the tribunal’s powers
to do so (including the imposition of penalties for delay);
(f) explain
in a way that users will understand what instructions mean which the
tribunal gives about getting cases ready for hearing, and what they
should do to comply with them;
(g) explain
the ways in which the tribunal will be able to assist unrepresented
parties at the hearing (and what it cannot do);
(h) explain
what sanctions are available to the tribunal to impose on individuals
and departments.
Business processes
5.26 From the
outset the Tribunals Service should have business processes that are:
robust, to cope with a large volume of work and ensure efficient throughput;
flexible, to cope with changes in workload, and the demands of different
jurisdictions; clear and transparent, to enable monitoring and reporting
on performance, and to enable management to identify areas producing
difficulties or delay; linked to the processes used by first-tier decision-makers,
to ensure smooth working relationships; and planned, to make the best
use of IT. [80]
5.27 In particular,
effective relationships with first-tier decision-makers and central
and local government will be critical to the Tribunals Service’s
ability to process work efficiently. Tribunals should be helping departments
to improve their own decision-making; and they should in turn be accountable
to departments for the efficiency with which they handle cases. Our
proposals for these aspects are put forward in Chapter Nine. [81]
Administrative performance
measures
5.28 Our visits to tribunals have
revealed evidence that tribunals are becoming increasingly conscious
that they should measure their performance. Many tribunals have developed
performance standards for the speed of processing cases. This is an
encouraging development, but falls some way short of capturing the full
range of performance indicators that is important for users and other
stakeholders. Indeed, focussing only on speed of processing tends to
drive out other criteria, such as the quality of service.
5.29 Consideration
of performance measures was a key feature of our seminars with tribunal
users and tribunal administrators. Following these discussions, we have
identified five key areas in which performance should be measured. First
is the area where tribunals have done the most work already, which is
determining acceptable time-frames for cases. This involves setting
standards for each stage of the process, and identifying where delays
are taking place. In looking at this area, most tribunals have focussed
on the progress of a case through their own jurisdiction. It is, however,
essential that a wider, end-to-end, view is taken of the process: the
user faced with a first-tier decision followed by one or possibly two
appeals will not be impressed by individual examples of timeliness if
the overall process is drawn out. The second area in which performance
should be measured is cost. The Tribunals Service should have systems
that resolve disputes at reasonable cost, both to the state and, in
the few tribunals where fees are charged, to the parties. The third
area is the standard of accommodation: premises should be accessible,
fit for the purpose, and used to the full. Fourth is service, and fifth,
quality standards. [82] There should be clear and simple standards
setting out the users’ entitlement to a comprehensive, smooth and
fair process; and an effective complaints mechanism. Standards should
be clearly set out in written form and there should be reference to
specific objectives.
5.30 Table B provides
an outline of the objectives that should be set in each of these areas,
and measures that can be used to assess performance. [83] We
also give an indication of the type of source that can provide this
information.
Funding arrangements
5.31 Funding
arrangements must provide adequate support for the Tribunals System
and the Tribunals Service. They should have three clear objectives.
First, arrangements must ensure that users are provided with a service
that promotes confidence, is accessible, and delivers timely decisions.
Secondly, funding must also provide a modern, efficient service which
is seen to provide value for money. [84] Thirdly, funding should
provide incentives for Government departments and local authorities
to improve first-tier decision-making, the clarity with which policies
and decisions are communicated, and even in some cases the effectiveness
of policy or legislation itself, in order to reduce the number of cases
proceeding to a tribunal. [85] The fewer appeals they generate,
the less they should pay. This should ensure that users are provided
with a better service at the first-tier, and result in fewer users needing
to take their cases to a tribunal, thereby bearing down on costs.
Table B - Measuring Performance
in the Tribunals Service
5.32 To achieve
these objectives, we recommend that the funding of the Tribunals System
and Service be linked to the number and type of cases generated by a
first-tier decision-making body. In essence, this would amount to the
Tribunals Service charging departments (or local authorities as appropriate)
in proportion to caseload. [86] The details of any such scheme
will need to be worked out as part of the development of the Tribunals
System and Service. The scheme should balance the advantages of a direct
link for departments and authorities between appeals and cost, and the
aim of minimising bureaucracy.
5.33 If this scheme
is adopted, it should also apply to local authorities, so they should
be represented on any consortium overseeing the finances of the Tribunals
Service. [87] Care will need to be taken to reflect the distinctive
nature of local authority funding. For example, we were told that there
are advantages in the current arrangements for funding the Parking Appeal
Service (PAS) and the National Parking Adjudication Service, which allow
contributing local authorities to consider in an integrated way the
resources and efforts devoted to parking enforcement as a whole, in
the light of local priorities.
Best value services
5.34 The Tribunals
Service should be encouraged to develop the greatest possible flexibility
in how it provides its services. That should include a readiness to
consider the use of external suppliers for the provision of some of
its functions. [88] The provision of IT, for example, is especially
likely to lend itself to the involvement of the private sector. We have
seen two particular examples of tribunals working successfully with
private sector suppliers to provide IT services. The first is the PAS,
which has outsourced all administrative support to a private contractor.
The contractor provides powerful IT support, which is described in our
note on the PAS in Part II. The second example is the Appeals Service,
which has developed a more mixed approach: overall responsibility for
the development of IT services rests with the Appeals Service itself,
but relevant expertise is brought in as and when required. Other areas
of the Tribunals Service’s non-core business, such as cleaning,
catering, security or accommodation, might also lend themselves to this
type of approach. The involvement of private contractors would, however,
be wholly inappropriate for the core functions of the Tribunals Service,
such as preparing cases for trial, and assisting and advising tribunal
members.
Savings for departments
and authorities
5.35 Clearly, setting up the Tribunals
Service will result in some initial costs. But we would expect a unified
Tribunals Service to provide efficiencies and economies of scale for
departments and authorities which will in due course offset these initial
costs. Each individual tribunal requires accommodation and services.
These are currently provided separately, with much duplication of effort.
For the smaller tribunals hiring venues on an ad hoc basis is costly.
Some tribunals with larger workloads are required to hold hearings close
to appellants’ homes or schools, but cannot justify permanent hearing
centres. The largest tribunals have to maintain more accommodation and
support service than they need in order to provide flexibility. Unifying
support for all tribunals creates the opportunity to develop, for example,
either from existing estates or in partnership with the private sector,
a network of hearing centres that will provide accessible venues for
smaller tribunals, and efficiency and economies of scale for the larger
tribunals. These savings can be passed on to departments and authorities
in the form of lower unit costs.
Building afresh
5.36 In preparing these recommendations,
we have been very conscious that setting the right performance measures,
and reporting and monitoring systems, are crucial in planning a new
organisation if it is to deliver its services to the user most effectively
and economically. It will only be possible to do it properly for the
Tribunals Service by close consideration of what is already working
well in the existing systems, and developing with staff a clear vision
for the future. We expect, too, that the new agency will require all
the skills and experience of staff currently working in tribunals. Our
comments are meant to be an indication of how the Tribunals Service
might proceed, not a detailed prescription.
18 Cm 4310; p10
19 Described in its paper Modernising the Civil Courts,
Court Service, January 2001
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