Chapter Eight - Active case management
8.1 We recommend that tribunals
should take control of the programmes for cases, and develop more effective
but selective case management techniques. We recommend that each Division
should have at least one registrar to assist chairmen and members in
case management duties. We recommend differing approaches to the development
of case management in disputes between citizen and the state, and between
individual parties. We also recommend measures to facilitate the development
of techniques of alternative dispute resolution appropriate to tribunal
cases.
Scheduling
8.2 We make proposals in two areas
for the evolutionary development of how tribunals now work. First, cases
take too long. No one in the system has a responsibility for ensuring
that the time between the initial decision and the conclusion of any
appeal is proportionate to the nature of the case. For example, the
Select Committee report36 on the Social Security
Commissioners pointed to the particular importance of ensuring timely
decisions, where appeals are about eligibility for or receipt of income
replacement benefits. The decision of the tribunal or an appellate tribunal
is not the end of the process. Decisions have to be referred back to
the Department of Social Security (DSS) to process any benefit payments
due. That is done in competition with demands for urgent payments from
other benefit claimants. Further considerable time may also elapse before
appellants see the final outcome of their appeals, thus continuing to
disadvantage successful appellants. Tribunals and Commissioners have
no control over the time it takes for an appeal to be processed and
sent to them, nor over the time it takes the department to deal with
their decision after it is made and notified. There are cases in other
tribunals where further significant action has to be taken after the
appeal decision in order to conclude the appeal, such as in war and
other pension appeals and in some tax appeals.
8.3 Secondly, the use of tribunal
time is not effective. Case bundles are often poorly prepared and incomplete.
The late submission of documents, including production at the hearing,
is unfortunately common. The result is that procedures are sometimes
adopted before tribunals that would look very old-fashioned in a modern
court. We propose a package of measures.
8.4 Reporting on
the time taken for the appeal process should measure time from the initial
decision as a primary indicator, breaking it down to the time in each
stage. [183] Users perceive the time of the whole process, not
of the stages which it comprises. Different procedures are needed for
party and party from those needed for citizen and state tribunals. The
aim must be to set a framework which is as simple, proportionate
and flexible as possible. Speed on its own is not a desirable end
— it follows from the others. But cases must be handled in a purposeful
way. Rules should set time limits to show what the expected programme
for individual cases will be. [184] With the acknowledgement
of the lodging of an appeal both parties should receive a copy of the
case programme, with a proposed date for the substantive hearing. [185]
Either party should be able to apply, on notice, for a change of
hearing date. Extensions should be discouraged, but tribunals should
recognise the problems of appellants, particularly those who are unrepresented.
[186]
8.5 Tribunals will
need, and will have to use, sanctions. These should include: power to
disallow the production of documents submitted late; power to award
costs where delay has created problems for the other party, or for the
tribunal; power to refuse adjournments; and power to allow the appeal.
[187] The way in which the time is managed, and the sanctions
used, will determine a tribunal’s effectiveness. Suitable IT will
be needed for work flow management and tracking. Properly designed,
it will provide comprehensive management information. [188] The
annual report of each tribunal should report on: the time from initial
decision to eventual implementation; the time taken by the tribunal,
including average time spent waiting for a hearing; the proportion of
target times exceeded, with broad categories of reasons for doing so;
and the use of sanctions. [189] The Council on Tribunals should
monitor results, and discuss them with the tribunals concerned. [190]
8.6 We do not start
with the assumption that the civil justice reforms could readily be
adapted for tribunals, particularly citizen and state tribunals. It
is true that they have similar broad aims of timeliness, proportionality
and control of cost. But the differing nature of administrative cases
creates different needs, which will vary between and across Divisions.
The Lord Chancellor’s powers to make rules for tribunals will have
to be correspondingly broad. For example, some Divisions with a spread
of cases from small and simple to bulky and complex might benefit from
a power to allocate cases to tracks on the basis of financial value,
remedy, the likely complexity of facts and law, and the number of parties.
Each Division should be left to determine which approach is the most
suitable for its own needs. [191] Tribunal chairmen should be
responsible for ensuring that cases adhere to the programme, for supervising
the listing and allocation of cases, for the suitable conduct of hearings
and for the prompt promulgation of clear decisions. [192] There
should be IT systems to support the management of caseload (to ensure
that resources match fluctuations in numbers of appeals), caseflow (to
ensure effective allocation) and case management (to ensure effective
tracking and control). Electronic filing systems would aid document
control. [193]
8.7 Tribunals should
make more use of pre-hearing procedures and review. [194] Active
case management provides the opportunity to identify misconceived or
manifestly unfounded cases, and those which might benefit from mediation
(see our comments regarding alternative dispute resolution mechanisms
later in this section). It also allows scrutiny at an early stage of
case preparation to ensure that cases are presented as effectively as
possible. Tribunals should take a more active role in directing what
is required of parties in making their preparation. [195]
Registrars
8.8 Members should
be responsible for actively managing cases. This does not mean that
there is no scope for delegation. But there must be a clear separation
of adjudicative control and management from the administrative support
to be given by the Tribunals Service. To assist the tribunal fulfil
a more proactive role we recommend that a registrar (or registrars)
should be appointed to each Division. [196] The registrar would
have a role which was partly legal and partly managerial and act in
place of tribunal members. We have based our views about the role of
the registrar on the Registrar of the Lands Tribunal. The role in each
Division should be clearly distinguished from that of clerks on which
we comment in Chapter Four. Legally qualified registrars would carry
out an initial scrutiny of cases and determine how they should be dealt
with. In suitable cases this might involve referring back to the initial
decision-maker to consider an internal review; suggesting to the parties
that alternative dispute resolution such as mediation should be considered;
or referring to a tribunal chairman or member for pre-hearing review
and directions. Registrars should have powers to order the production
and exchange of documents within or at a specified time, to order parties
and witnesses to attend oral hearings, to issue directions and to refer
parties who abuse tribunal procedures to courts for contempt action.
[197] We envisage that, once registrars have decided that a case
is appropriate for the tribunal and that, as far as they can see, all
the necessary evidence is to hand, they should refer the case to the
President for allocation to a tribunal chairman or member (either legally
or expertly qualified as the case demands) for further consideration
and to give directions to the registrar for any additional action required.
In effect, registrars would undertake preparatory pre-hearing work and
make interlocutory decisions for the tribunal, under direction. They
could also offer legal or procedural advice to tribunal members or administrators,
as may be required. It may be useful for the powers and duties of the
registrar to be set out in legislation. [198]
Procedures: citizen and
state tribunals
8.9 The basis
of the practice should be the Council on Tribunals’s Model Rules.
[199] The aim should be to achieve the greatest possible coherence
across the System, whilst recognising the needs of different Divisions
(and perhaps of classes of case within Divisions) at least for different
time limits. [200] Divisions will also need their own Practice
Directions. To foster overall consistency, the President should issue
the Practice Directions after they have been considered and approved
by the Tribunals Board. [201]
8.10 Rules and
Practice Directions should outline the arrangements for case management,
using that term in its widest sense to denote minding cases during their
progress through the tribunal. [202] Throughout much of the Tribunals
System, this should be largely routine. The aim should be to ensure
that the time limits are complied with; that each party’s material
is copied to the other side; that the appellant (particularly when unrepresented)
has had proper guidance on tribunal requirements; and that the case
material discloses the facts of the case clearly, so that the issues
may be identified.
8.11 In many cases,
this will be a largely clerical task, to be carried out by tribunal
staff. But even in routine work, some issues may need specialist consideration.
This may include discussion with parties about documents, and perhaps
also hearings by telephone or video conferencing. Effective office preparation
and imaginative IT solutions save valuable tribunal time. The registrars
in each Division would oversee preparation work, and undertake interlocutory
discussions and hearings. A small minority of cases overall (although
the number may be quite a high proportion in some Divisions, like tax)
will need formal pre-trial review procedures, to be carried out by a
tribunal chairman. It would be helpful if, when a case was allocated
a programme, an indication were given of which route was likely, by
marking the case for administrative preparation only; for registrar’s
directions; or for review by the tribunal. [203]
8.12 These suggestions should be
read with our recommendations about tribunal staff supporting users
and explaining to them what they have to do to get cases ready for hearing,
and what interlocutory instructions and orders mean.
Procedures: party and
party tribunals
8.13 A different
approach is needed for party and party tribunals. Their case-management
procedures should follow modern court procedure. [204] The current
ET rules should be thoroughly reworked, to correspond more closely with
the Civil Procedure Rules, including a similar overriding objective
and duty to manage cases, similarly broad management powers, tracks
for differing weights of case, measures to encourage settlement (including
the widest possible use of the Advisory Conciliation and Arbitration
Service (ACAS)), measures to encourage a more co-operative approach
to cases, the active pursuit by the tribunal of shorter, more certain
timescales, and where necessary, publicly funded assistance to enable
litigants to cope. [205]
8.14 We recommend
a similar approach to changes in the rules of the Lands Tribunal.
[206]
Hearings
8.15 For tribunals
of both sorts, the express aim for chairmen and registrars should be
to have the evidence assembled, the issues identified, and attempts
at settlement exhausted before the hearing. [207] The imaginative
use of IT, from telephone hearings to full electronic document management,
will help. Although parties, and particularly unrepresented appellants,
need enough time to put their cases, there is considerable scope for
streamlining and abbreviating all the practices permitted at the hearing.
8.16 Many who
made representations to us thought oral hearings were more user-friendly
than written procedures. Responses to our consultation said that oral
hearings were particularly suitable where cases turned on many disputed
facts or complex issues where it was necessary to test the evidence
rigorously. Some thought that oral hearings gave a better opportunity
to uncover information not disclosed in written evidence, though this
should be less of a factor if our recommendations regarding information
exchanges and case-management are adopted. It was felt that oral hearings
offered parties the equivalent of their "day in court", and
allowed justice to be seen to be done in a more transparent way than
by use of written procedures. We agree. But there is a wide variation
in practice between tribunals. In some tribunals oral hearings are the
norm. In others, written procedures are used very successfully for most
cases. The National Parking Adjudicators and the Social Security Commissioners,
who handle very different types of cases, do nearly all their business
on paper. As part of their active case-management, tribunals should
assess the merits of written and oral procedure for the particular case,
including whether to ask each of the parties their preference. [208]
Alternative Dispute Resolution
8.17 An important objective of effective
case management is to identify those cases for which tribunal resolution
might not be the most appropriate answer. Such cases should reduce in
the future as far as citizen and state disputes are concerned, as a
result of our recommendations for systematic departmental review in
Chapter Nine. But the introduction of specific provision in the new
civil justice reforms for a specific power for the courts to halt case
programmes to enable the parties to consider Alternative Dispute Resolution
(ADR) has been widely welcomed, and it is likely that increased use
of ADR may be possible in at least some areas of tribunal work.
8.18 ADR already
represents a broad range of techniques, encompassing early arbitration,
early neutral evaluation, expert determination, conciliation and mediation37.
These have all, however, developed in response to specific problems
felt to exist in taking cases before the courts. Tribunals themselves
represent in an important sense an alternative to the courts. There
are other processes, such as ombudsmen, internal departmental adjudicators,
and such institutions as the Social Fund Inspectorate, which combine
a form of internal review with a novel documentary procedure for dispute
resolution. We have heard some suggestions that the demarcation between
these various methods is not as clear as it might be, with departments
(and tribunals) allowing appellants to pursue appeal cases where the
nature of the grievance is more of a complaint about the effectiveness
of administrative process, and where a claim for compensation would
therefore appear to be the more appropriate form of redress. We recommend
that departments should give clear guidance to staff, particularly those
involved in departmental review, on the kinds of case for which the
various processes of review are appropriate. [209] They should
also give clear information in their leaflets to users about the circumstances
in which an appeal to a tribunal is the route to follow and, by explaining
the differences in jurisdiction, those in which a complaint to an ombudsman
or adjudicator is more appropriate. For example, some disputes are not
about entitlement to a benefit but about claims of maladministration,
to which a compensation payment might be the appropriate response. In
paragraphs 10.13 —
10.14 we suggest that
expert systems will be a helpful way to guide users towards identifying
effective solutions for their problems, and such systems would help
in presenting explanatory material of this kind effectively.
The benefits of ADR
8.19 ADR processes vary in the benefits
which they may bring. Sometimes the benefit is very simple. The Council
on Tribunals has pointed to the potential for reduction in the number
of contested cases, or at least of contested issues, in the work of
the Special Educational Needs Tribunal and the Registered Homes Tribunal
created by the opportunities for informal discussion on tribunal premises.
In the administration of complex schemes, it would appear that the opportunity
for regulators to explain what they see as the requirements of legislation,
and for appellants to set out the problems which they see with that,
has a positive role. Moreover, many ADR processes do not have the stark
result of litigation ("win" or "lose"), but provide
scope for negotiation. ADR solutions can be particularly helpful in
cases where the parties are likely to want to maintain good relations
after the conclusion of the dispute.
8.20 The extent
to which ADR activity should be encouraged in tribunal disputes will
be determined largely by what kind of processes might be useful in the
disputes concerned, what kind of benefits they might bring, and whether
they would be proportionate to the kinds of cases involved in the relevant
part of the Tribunals System. We recommend that consideration should
be given by the registrar (with advice, as needed, from the tribunal
chairman) as to whether the case is suitable for some form of ADR during
pre-hearing procedures. [210] We have some further, specific
suggestions.
Employment Tribunals
8.21 Conciliation
is already an integral part of employment disputes, with compulsory
reference to ACAS being a precondition of Employment Tribunal (ET) litigation.
Many of those who responded to our consultation on this topic suggested
that additional investment in ACAS would be amply repaid, because the
number of cases which got as far as a hearing before the tribunal would
be reduced, and because the issues would be clarified in those that
did, thereby shortening hearing times. We agree. ACAS’ involvement
at an early stage in all cases will reduce the need for a provision
in the ET’s rules for reference to ADR at a later stage, paralleling
those in the new Civil Procedure Rules, but will not remove it. When
the ET rules are reworked, such a provision should be introduced.
[211]
Land and property
8.22 The scope
for the use of ADR in disputes between parties involving land or property
is at least as great. For example, mediation has a proven record of
efficacy in cases involving a number of parties with conflicting interests,
and that is a common feature of leasehold disputes before the Leasehold
Valuation Tribunal and the county courts. A comprehensive look at the
substantive and procedural law in this area (as we recommend in Chapter
Three) should include examining the scope for formal and informal ADR
procedures. [212]
The way forward
8.23 This confirms the view that
there is a valuable role for ADR, but one which would have to be carefully
considered according to the area of jurisdiction, and the needs of individual
cases. Existing ADR methods are likely to need adaptation to meet the
specific needs of tribunals. The examples cited by the Council indicate
that there may be more immediate progress to be made in considering
methods of assisted settlement rather than alternative adjudication.
We recommend that the way forward is to charge the President of each
Division with the responsibility for exploring appropriate forms of
ADR. [213] The Tribunals Board should refer specifically to ADR
in its annual report. [214] The Council on Tribunals should keep
this important topic under review, and report on it in its annual report.
[215]
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