Internal review
9.2 However good departments’
decisions are, there will always be a need for tribunals and other forms
of dispute resolution. But that need will be minimised if departments
take well-founded decisions in the first place, communicate them clearly
and with reasons, and are prepared to review them thoroughly if they
are challenged.
9.3 Respondents to our consultation
criticised the quality of initial decisions by departments, in particular
saying that the decision-makers did not always make sure that they had
all the facts before making decisions. The quality of departmental decision-making
in general obviously goes beyond the scope of this review; but in paragraphs
9.11 — 9.14
we make recommendations about how tribunals should help departments
to improve their decision-making.
9.4 Respondents also commented that
many decisions and the reasons for them were unclear, making it difficult
for recipients to understand them. This resulted in unnecessary appeals,
or insufficient evidence to support them. Part of the reason for this
seems to be a lack of adequate communication between the decision-maker
and the appellant. We have commented in Chapter
Four that decision-makers should ensure that the appellant has full
reasons for the decision and knows the requirements for an appeal to
succeed.
9.5 Criticism has been levied that
decision-makers often simply left it to the tribunal to sort out any
inconsistencies in their decision, to make good deficiencies in reasoning
or to seek further necessary evidence; or that they do not have sufficient
powers to correct any errors once the initial decision has been taken.
This is unsatisfactory.
9.6 As part of
its reform of decision-making and the appeal system, the Department
of Social Security has now regularised the practice (also adopted in
Customs and Excise and some other departments) of automatic review of
decisions which have been challenged to see whether to defend the case.
The National Parking Adjudicators have a procedural rule which allows
them to review cases and the Criminal Injuries Compensation Appeals
Panel (CICAP) has a system of review. Departments should regard it as
part of their duty to avoid putting the citizen to the cost and stress
of appeal, where that can be avoided. It is also a good investment for
government, because it enables experienced officers to identify problems
in the system, as well as avoiding the costs (to the department as well
as the tribunal) of unnecessary appeals. In short, it is a valuable
way of improving service to the public. We recommend that departments
consider the scope for review procedures to establish that, on the papers,
the department’s decision appears to it to be correct in fact and
law; that contesting the appeal is the only realistic course of action
(as opposed to further explanation of the decision to the appellant,
or mediation); and that an appeal is a justifiable use of public funds.
It provides an opportunity for the department to put itself in the appellant’s
shoes and look at its own case critically. [216]
9.7 How such a
review can most effectively be conducted will vary from area to area.
It can be carried out by a senior officer in the original management
chain, or it may be more efficient and appropriate to deploy an officer
whose special responsibility it is. The reviewing officer should have
power to remedy obvious errors; and should make such a review as is
proportionate to the issue, and ensure that, where cases do go forward
to the tribunal, there are no obvious deficiencies. [217]
9.8 If it is to
be worthwhile, reviewers should bring to this process the kind of independent-mindedness
and impartiality which can be expected from tribunals, and it will take
time. But it must not simply have the effect of protracting the appeal.
We think that the time limits for cases in which review procedures operate
(and we would expect this to be general) would prescribe a period of
working days for effective review. [218] How much time will be
required is likely to vary according to the subject. Departments should
adopt, publish and report on the time set for the review process. [219]
Under our proposals, tribunals will have overall responsibility for
maintaining progress once appeals have been lodged. [220] Programmes
for review should be agreed with the tribunal (probably with the relevant
President), and should be discussed in annual meetings with departments
to review initial decision-making. [221]
Responding to the requirements
of tribunals
9.9 Once an appeal
has been made to the tribunal, it is for the tribunal, not the department,
to manage the case. But departments must respond to the requirements
of the tribunal as the case proceeds. First, and obviously, they are
part of the end-to-end process and must play their part in ensuring
the timely resolution of the case. Secondly, they must provide, fully
and promptly, the information which the tribunal needs. Thirdly, we
have seen the help that good departmental presenting officers can give
the tribunal at a hearing, and we hope departments will, wherever possible,
find the resources for this useful function. [222]
9.10 Decision-making
departments should also make clearer commitments to standards of service
for tribunal users. In addition to improvements in the standard of decisions
and initial information provided to users, they should make it clear
to the user what evidence they hold which might be useful to the user’s
case, and explain how to obtain it; and, possibly, commit to standards
of Government practice as model litigants with the aim of achieving
the right or preferable decision in the user’s case. [223]
Learning from tribunal
decisions
9.11 There is
a general recognition that the quality of primary decision-making is
the key to service to the user, and that it is fundamental to how tribunals
operate. It is also recognised that tribunals are well placed to pick
up systemic problems in decision-making within the department, from
decision letters which are confusing, through administrative systems
which muddle or miss key facts, to a flawed decision-making process
which leads to misconception of the law.
9.12 Providing feedback for decision-makers
is an underdeveloped practice in many tribunals. There are examples
of good practice: one tribunal (the Appeals Service) has a requirement
for the tribunal President to report annually on the quality of decisions.
Other tribunals, such as the CICAP, hold regular meetings with decision-makers.
This approach has been developed particularly successfully by successive
Presidents of the Administrative Appeal Tribunal in Australia, who have
developed close links with Government agencies, and established systems
which would enable systemic problems and weaknesses to be identified
in cases which came before the tribunal. The current President sees
the heads of all agencies at least twice a year, to discuss these and
ways in which practice might be improved.
9.13 United Kingdom tribunals do
not match those in Australia in providing robust feedback for decision-makers.
In some tribunals this is a result of structural shortcomings: those
tribunals without a national, presidential structure cannot provide
a coherent view of the overall performance of decision-makers, nor can
they easily identify problems of regional variation. There are other
possible explanations for poor feedback. First, tribunals and departments
lack the resources to analyse the outcome of tribunal cases. Secondly,
members of tribunals who hear appeals from a department or authority
that provides administrative support and funding for the tribunal are
reluctant to be seen to be developing too close a relationship with
decision-makers, for fear of seeming to collude with them. A third possible
reason is that inconsistent tribunal decisions make it difficult for
decision-makers to learn lessons.
9.14 We want to
make sure that a new system enables primary decision-makers to learn
the lessons of adverse decisions. This involves building on the examples
of best practice both here and in Australia. It is particularly important
that close relationships are forged where tribunals are independent
of the department, or authority, making decisions. As the Australians
have found, however, clear structural independence from departments
facilitates the development of relationships that are well managed,
transparent, and able to dispel any appearance of improper collaboration.
Departments
9.15 Where they
have not already done so, departments should develop a central capacity
for scrutinising tribunal decisions, drawing out common themes, and
disseminating lessons learned. [224] There may be wider resource
implications. A tribunal (or an Ombudsman, or anyone else looking hard
and with hindsight) can often see ways in which cases could have been
handled better. Applying lessons learned from that sort of concentrated
scrutiny to all subsequent cases of that type may well involve departments
in using more staff, or at a higher level. Departments must be prepared
to examine critically arguments that they do not have enough, or the
right, resources to do to the job correctly. They may save time and
money in the long run by getting it right first time. Perhaps above
all, departments must be willing to learn from mistakes.
Tribunals
9.16 To carry
authority in this exchange of views, tribunals should themselves make
consistent decisions. They have to be mindful of the need for their
decisions to be replicable by departments, possibly in thousands of
cases. They too need sufficient central capacity to pick up, analyse,
and suggest remedies to, significant systemic problems. [225]
This must be proportionate: a review of a statistically valid sample
of cases, rather than comprehensive reporting, may be appropriate in
some areas.
9.17 There should
also be a forum for discussions. [226] There is no impropriety
in tribunals alerting departments to the fact that departmental notices,
or desk instructions, incorrectly reflect the law, if that comes to
the tribunal’s attention, particularly in the light of administrative
changes proposed in order to enhance independence. If a scrutiny of
cases shows that internal record-keeping or case-handling is poor, the
tribunal should say so. It should also report on types of cases which
departments are consistently deciding wrongly. [227]
9.18 The mechanism
for that reporting must be entirely transparent. One way is by means
of a regular, formal report. There is no objection to suitably high-level
meetings. Reports, and meeting notes, should be publicly available.
[228] They could be sent to the Council on Tribunals. The Tribunals
Board should regularly review the work on improving primary decision-making,
and report on it in its annual report. [229] All these mechanisms,
and the separation of tribunals from policy departments, should ensure
that there is no question of discussing individual cases, or influencing
the outcome of individual cases.
9.19 A mechanism for enabling the
Tribunals Service to develop good practice in its quality assurance,
service delivery, and management of staff and members would be to seek
national or international quality standard recognition. These standards,
such as Investors in People, or the European Foundation for Quality
Management set levels of good practice for improving organisational
performance.
9.20 Tribunals
should also be ready to learn. Departments as main users should report
problems with tribunal procedures, and service shortcomings. There is
no reason why they should not also comment on possible inconsistencies
in decision-making by tribunals. [230] The Tribunals Service
would be expected to report against performance measures and charter
standards (which will be quantified wherever possible) in its annual
report. [231] The discussions may help tribunals to identify
their own training needs.
9.21 As Government
departments and local authorities will be funding the Tribunals System
and Service in proportion to caseload, mechanisms should be established
to enable departments and authorities to ensure that Tribunals Service
resources are being used as efficiently as possible. [232] We
therefore recommend establishing a consortium of departments and authorities
to which the Chief Executive of the Tribunals Service is required to
report with details of spending. [233] This requirement should
be in addition to the Chief Executive’s usual responsibility to
report to the Lord Chancellor.
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