Welcome to the fourth edition of the AJC Newsletter. As well as updating you on the work of the Administrative Justice Council and its members, we offer contributions from across the UK jurisdictions, from those representing the judiciary, the advice sector, ombudsman schemes and academics. We welcome your feedback; contact us at ajc@justice.org.uk
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NEW MEMBERS
A warm welcome to the following members who have recently joined our Council: Mick King (Local Government and Social Care Ombudsman), Linda Mulcahy (Oxford University), Richard Blakeway (Housing Ombudsman) and Chris James (Commission on Justice in Wales).
Welcome to David Hawkes (Disability Rights UK) who joins the Advice Sector Panel.
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FAREWELL
Thank you to Chilli Reid (Disability Rights UK) who has stepped down from the Advice Sector Panel.
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AJC Members Lunch Event
25 November 2021
On Thursday 25 November, the AJC hosted a networking and brainstorming lunch at The British Academy, funded by the Arts and Humanities Research Council.
The purpose of the event was to bring together members from across the AJC to discuss some of the current issues in administrative justice as a result of the pandemic. Approximately 24 people attended the event from across the Academic, Advice, Pro Bono Panels and the Council. A live scriber was at the event to capture the discussions of the day (see the above artwork and link to a larger version). Two brainstorming sessions were held as follows:
Session 1: Courts and Tribunals modernisation
The first session looked at the impact of the pandemic on the courts and tribunals modernisation programme including the benefits and challenges, lessons learnt and digital support for more vulnerable users.
Session 2: Vulnerability
Members were asked to discuss the issue of vulnerability with a particular focus on how best to identify existing as well as new communities who were being failed by the administrative justice system, improving accessibility, improving data collection on those that fall through the gaps and the role of early legal advice.
After lunch, members got creative when asked to design their perfect 'garden of administrative justice', to include pictorial representations of good practice alongside illustrations to signify barriers to justice.
The Secretariat extends its thanks to all members who attended and made the event such a success; and in particular to Naomi Creutzfeldt, Robert Thomas, Lindsey Poole, Sarah Nason, Donal Galligan and Arabella Kyprianides for their assistance on the day.
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Administrative Justice News from Scotland
Rosemary Agnew (Deputy Chair of the AJC and Scottish Public Services Ombudsman) offers a Scottish administrative justice round-up:-
While the different UK jurisdictions have many similarities in the field of administrative justice, we often taken different approaches or focus on different things. This is a brief flavour of some of what has come to my attention in Scotland.
I will start with an update about the Scottish Tribunals service. My thanks to them for providing me with their update. The Scottish Tribunals were quick to adapt to the challenges of the pandemic. A move to remote hearings, both via telephone and through video conference ensured that essential business continued to flow. As a result the Scottish Tribunals have managed to avoid a case backlog. The focus is now on how best to retain the benefits of these new ways of working. At the recent Scottish Tribunals conference, at which the Lord President and Lord Hodge, Deputy President of the UK Supreme Court, gave speeches, access to justice was a central theme. There were compelling presentations on this from the Mental Health Tribunal and the Health and Education Chamber, for example. The Scottish Tribunals take a user-centric approach and place our service users at the heart of our processes.
These themes of learning and improvement, placing users at the heart of processes, and building on the positive, resonate across AJC members.
As Scottish Public Services Ombudsman, I am aware of, or involved with, a number of initiatives. In terms of my own jurisdiction, my new powers as the Independent National Whistleblowing Officer for the NHS in Scotland took effect from 1 April 2021. This is a significant contributor to the wider access to justice landscape. One of the underlying aims is to enable and promote a culture of speaking up with trust and confidence. At a practical level, it also strengthens the position for whistleblowers. The new whistleblowing standards I have issued give a range of people (volunteers, employees, employees of contractors and students in the NHS) access to more support and greater protections.
Volumes of complaints to us about Scottish Public Services continue to be high, and the combination of increased numbers, impact of the pandemic on our staff and the impact of the pandemic on public bodies means a backlog of complaints is building up. While the Scottish Parliamentary Corporate Body has listened positively to our concerns about delays, and is making additional resources available to us, these will take time to have an impact and I remain concerned about the delays complainers are experiencing and the impact on them, and my staff. Despite this, we continue to focus on and prioritise cases concerning vulnerable people and continue to develop our resolutions based approach. This seeks to resolve complaints early, without long investigations and focusing on outcomes for individuals and learning for public bodies. We are also engaging with Scottish public bodies, who throughout the pandemic have endeavoured to maintain front-line complaint handling.
There are a number of wider developments that all contribute to access to administrative justice. These include the creation and appointment of a Scottish Biometrics Commissioner, an intention to create a Patient Safety Commissioner and an increasing focus on rights based approaches. A prominent example of rights based is in relation to children and the desire to incorporate the UNCRC into Scots Law. Notwithstanding that this has stalled because of the Supreme Court decision about the competence of the Scottish Parliament in relation to aspects of the passing of the bill, the focus on children and their rights remains. A key consideration of this will be child-friendly complaints, and entitlement to child-friendly access to other forms of administrative justice.
Should you wish to know more about any of this, please get in touch via my website https://www.spso.org.uk/ I might not be able to answer your detailed questions but am happy to put you in touch with others.
In terms of the AJC, I am very much enjoying the Deputy Chair role and working with such a caring and professional group of colleagues.
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Public Services Ombudsman for Wales publishes homelessness review
On 6 October 2021, the Public Services Ombudsman for Wales, Nick Bennett, published the findings of his first-ever ‘own initiative’ investigation under the powers granted by the Public Services Ombudsman (Wales) Act 2019. The investigation focussed on the administration of the homelessness review process by local authorities in Wales. The report found that despite evidence of good practice, many people facing homelessness were being let down by “systemic maladministration”.
The Ombudsman highlighted unacceptable delays in the review process, inadequate processes, poor communication and vulnerable people being offered unsuitable accommodation as issues of serious concern. He also found that Human Rights and Equality Act 2010 duties were not always taken into account in assessments and reviews.
The investigation also identified examples of good practice and recognised the exemplary work undertaken by Homelessness Teams in Wales in response to the COVID-19 pandemic.
The Ombudsman made several recommendations to the 3 Investigated Authorities and invited the other 19 local authorities to embrace the opportunity to drive improvements in public service delivery across Wales. He also made the case for creating a Housing Regulator role in Wales to add value to the development of homelessness processes and act in support of local authorities.
You can read the full report here: Own Initiative – Wider Investigations – Reports (ombudsman.wales).
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Traffic Penalty Tribunal takes lessons
from lockdown
Caroline Sheppard OBE (AJC Council member and Chief Adjudicator, Traffic Penalty Tribunal) and Patrick Duckwork (Principal Communications and Digital Consultant, Traffic Penalty Tribunal) offer an update on the work of the Tribunal.
The Traffic Penalty Tribunal (TPT), which decides motorists’ appeals against Penalty Charge Notices issued by local authorities in England (outside London) and Wales for parking and traffic contraventions, has been well placed to both adapt and innovate its service offering in response to the challenges of the pandemic.
Parking and traffic enforcement may not be the first thing that comes to mind when considering the impacts of a pandemic. However, with members of the public experiencing hardship, stress and anxiety in their day-to-day lives and local authorities having to manage their road networks against the backdrop of lockdowns and restrictions, the TPT has had to respond in the way it manages its caseload.
Digital capabilities allow smooth transition and identify pain points
The TPT was already well placed to respond due to its longstanding ‘Digital First’ approach, typified by its world-renowned case management system that sees over 95% of all appeals submitted to the Tribunal processed end-to-end online. Additionally, while TPT Adjudicators have always been based from home, all administrative and office staff were able to transfer seamlessly to home working (a culture that will remain, with the office in Wilmslow now scaled back as an occasional ‘hub’ work space).
TPT staff were able to continue supporting appellants and authorities even during the height of lockdown, calling particularly on long-established instant messaging and Live Chat channels and registering appeals over the phone (rather than relying on paper forms and post) for those appellants who chose not to go online. Staff received many enquiries from appellants whose financial circumstances had been affected by recent events and case explanations and message conversations within appeals highlighted wider hardships members of the public were facing.
The TPT also became aware that many local authorities’ staff (who had also started to work from home) did not have full access to the enforcement and notice processing systems that allowed them to respond to appeals and were not in a position to deal with the COVID-related requests and queries about payment from the public at the time.
Putting a hold on appeals activity
Responding to the impact on appellants and authorities, the TPT took the decision to put on hold all appeal activity, including decisions being made on cases, for a minimum of eight weeks, effective 30 March 2020. This also meant that authorities did not refer any unpaid penalty charges to the Traffic Enforcement Centre (TEC) at the Northampton County Court or instruct bailiffs.
The TPT started considering cases again as normal on 11 June. This followed a survey of authorities to establish their adapted response to reviewing cases in the light of COVID restrictions. The survey revealed that authorities had already introduced policies to deal with financial hardship resulting from the pandemic.
Innovating the hearings process
One unexpected consequence of the COVID restrictions was that families became used to communicating by video technology, often in groups for, say, a quiz. Taking this as the catalyst, the TPT undertook a wholesale review of the processes around hearings. The project was also started with a particular eye on the likely increased appeal caseloads to come from Clean Air Zone schemes, which launched in March 2021. The review set the objectives of:
- allowing those appellants and authorities who are able and wish to connect themselves to hearings to do so, through Microsoft Teams (with a choice of audio or video)
- improving the appellant and authority user experience, communications and TPT administrative processes for scheduling and connecting hearings.
Following implementation of the new processes, over 60% of appellants are now self-connecting to their hearings. The timescales for scheduling hearings have also reduced significantly, with a date booked within seven days of the request in 96% of cases (compared to 53% previously) and a hearing taking place within 28 days in 82% of cases (compared to 56% previously).
The team also established a post-hearing survey, which is used to continually improve the service. This has seen an average response rate of 25%, significantly higher than the 10-15% average expected of an external survey.
Find out more about the improvements to the TPT hearings service and read a wider overview of the Tribunal’s ‘Digital First’ approach to case management in its recent paper in response to the Ministry of Justice Dispute Resolution in England and Wales consultation. Access the paper here>>
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The Westminster Commission on Legal Aid publishes review of legal aid sustainability
by Chris Minnoch, Advice Sector Panel member and Chief Executive Officer of Legal Aid Practitioners Group
- There has been a continued and gradual decline in access to justice with increasing numbers of people across England and Wales unable to access legal advice when they need it.
- It seems likely that this need will increase as we emerge from the pandemic, rebuild our communities and ‘level up’.
- This decline in access to justice has a number of causes including the areas of law taken out of the scope of legal aid, firms and organisations leaving legal aid and difficulties recruiting and retaining lawyers in civil and criminal legal aid.
- Legal aid fees
- Recruitment and retention
- Broadening the scope of legal aid and meeting legal need
- Exceptional case funding
- Judicial Review
- Means testing
In launching the report, Karen Buck MP (Chair of the Commission) said:
‘We began this Inquiry fearing that life during the pandemic has intensified the underlying stresses on the legal aid system and those who work in it. The wealth of evidence we heard confirmed this to be the case. Levels of need have soared whilst access to legal aid and to legal aid providers, in both civil and criminal law has declined. Legal aid lawyers go above and beyond in serving the public, but the business model on which they rely is increasingly unsustainable. Our report provides an in depth analysis of the state of legal aid in 2021 and, we believe, a roadmap to rebuilding a service upon which justice itself rests.
James Daly MP (Vice-Chair of the Commission) said:
‘As a practising criminal defence solicitor for 16 years I know how important a vibrant legal aid sector is to ensuring access to justice for all. The profession is going through a period of unprecedented challenge and I hope this Inquiry can be part of an ongoing review to ensure criminal legal aid has a sustainable future and a realistic career option for young lawyers.’
The work of the Commission will complement the Justice Committee's inquiry into the future of legal aid, LAPG’s Legal Aid Census (results due December 2021) and the Independent Review of Criminal Legal Aid.
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The Strategic Public Law Clinic
at Warwick University
Karen Ashton (Advice Sector Panel member, Head of Public Law and Human Rights, Central England Law Centre) introduces the clinic:
The Strategic Public Law Clinic (SPLC) is an innovative initiative between Central England Law Centre (CELC) and Warwick University’s Law in the Community (Warwick LinC).
It provides students with the opportunity to use public law creatively to tackle systemic injustice. It doesn’t undertake individual client casework but uses a variety of tools and strategies such as research, public legal education, and policy-influencing, alongside support for strategic casework in projects designed to address issues identified by the Law Centre or partner organisations. Students work alongside practitioners and academics to devise and develop strategies to identify and address the causes of patterns of unlawfulness. The aim is to achieve effective change and provide a meaningful benefit to our local communities, particularly those sectors most likely to find it challenging to navigate the justice system.
The Clinic is now in its third year. It has taken on a number of significant issues across many aspects of the social welfare sector. The operation of the Universal Credit system for those with significant health problems or a disability has been of concern for some time. The clinic investigated evidence of a pattern of a specific administrative failure, identified a systemic unfairness, and has made a targeted recommendation to address the issue. A current project is looking at the local impact of the local housing allowance on the ability of families in receipt of means-tested benefits to access the private rented sector and its relevance to the local authority’s decision-making. It is also continuing the work it started last year investigating the impact of the pandemic on adult social care rights in the region. The aim is to support the Law Centre’s casework team to target public legal education and casework in their efforts to roll back the erosion of rights in this sector.
The Clinic has also focused on the administrative justice system itself, tacking the low awareness of judicial review and its relevance to daily life. Our project team created an accessible fact sheet about judicial review and a series of real-life case studies to draw attention to the impact it can have in helping resolve everyday unfairness.
In addition to continuing and expanding on the work we have started, we hope that our clinic can provide a model for supporting more strategic work in public law and encourage innovative partnerships between the university and voluntary sector.
More information about the Strategic Public Law Clinic and the projects we have carried out over the past year can be found by following this link.
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Parliamentary and Health Service Ombudsman
invites feedback on its new Strategy
By Rebecca Hilsenrath, Director of Strategy and Communications at the Parliamentary and Health Service Ombudsman (PHSO) and Council member
As I said when I was interviewed to be Director of Strategy and Comms at PHSO, the two biggest drivers of my career have been access to justice and public sector leadership, so my current role feels a bit like coming home. After working for some years as a Government lawyer, I spent six years as CEO of LawWorks, during which time I was part of the team which established the National Pro Bono Centre. After spending the last seven years at the Equality and Human Rights Commission, first as Chief Legal Officer and then CEO, I’m really enjoying the opportunity to get back to my roots and work with old friends in the advice sector.
I was lucky to join PHSO when I did, in April this year, because the organisation was on the cusp of revising its new corporate strategy. Originally drawn up in 2020, then paused for a year due to the pandemic, the strategy will now take effect from April 2022 and run for three years. I spent my first few months in post working on the draft and consulting with colleagues, which is a great way to learn about a new organisation. The strategy is now out for external consultation and we are really keen to hear people’s thoughts and get comments on our proposed new strategic objectives, which are:
- that people who use public services have a better awareness of the role of the Ombudsman and can easily access our service;
- that people we work with receive a high quality, empathetic and timely service, according to international Ombudsman principles; and
- that we contribute to a culture of learning and continuous improvement, leading to high standards in public service.
To achieve these objectives, we need to work with our partners in the justice sector and with advocacy groups to better understand the common themes that prevent people from accessing our services. That will help us to identify the ways in which we can work together to overcome these barriers and make our services more accessible for everyone.
Our mandate means we should be central in the effort to improve public services in this country, and that’s never been more important than in the post-pandemic landscape. These objectives will shape our future priorities and ensure we continue to make complaints count.
I’m really keen to get feedback from members of the administrative justice sector. Please take our short survey to let us know your views. And I’m really looking forward to working with you all. |
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Response to the Ministry of Justice's
Call for Evidence on Dispute Resolution
Following a virtual meeting in September, a number of members of the AJC collectively responded to the Ministry of Justice's Call for Evidence on Dispute Resolution.
The Response focused on the principles of dispute resolution, providing examples and evidence, and offering links to previous research and reports undertaken by our members, where applicable.
The Secretariat would like to thank all members who attended the meeting and contributed to the report, which can be read in full here.
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Pro Bono Economics Unit's Report on Disability Benefits
The AJC's Advice Sector Panel commissioned Pro Bono Economic Unit to produce a report on disability benefits and the far-reaching consequences of poor first-instance decision-making by the DWP.
The report was published in October and highlights the increased stress, uncertainty and financial hardship experienced by claimants who choose to appeal PIP decisions.
Read the full report here.
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Response to DWP's Health and Disability Green Paper
Following on from our joint AJC/JUSTICE Benefits Reform report published in July, JUSTICE provided a response to the DWP's Green Paper.
The response highlighted the need for a number of procedural changes to the benefits system, including the following:
- Better data collection and evaluation on the disabilities and health conditions of claimants. This is vital in order to understand the accessibility and support needs of claimants.
- Improvements to the quality of the health and disability assessments, including through opt-in audio recording of assessments; clarity over who obtains medical evidence; claimant choice of assessment mode; assessment by those with specialist knowledge of the claimant’s condition, and an end to assessment outsourcing.
- Recognition of claimants as experts in their own disability / health condition so that there must be a strong evidential basis and explanation for rejecting a claimant’s own account of their impairment.
- Clear structures and rules to prevent the inconsistent and unfair application of discretion, including a standard list of topics to cover in initial interview, longer interview times for individuals with disabilities, additional opportunities to avoid sanction through a ‘yellow card’ system and to explain non-compliance.
- The adoption of a ‘no wrong door’ approach to Universal Credit including meaningful paper-based and telephone channels of engagement.
- Improving routes of redress which claimants, particularly those with health conditions and disabilities, often find lengthy, daunting and stressful, by removing the mandatory reconsideration stage so claimants can appeal directly to the Social Security Tribunal.
- Better provision of advice, information and support through improved signposting, better use of video, an expansion of Help to Claim and the creation of an advice portal providing a comprehensive and quality-controlled list of advice organisations, where they are based and what they are able to assist with.
- We also strongly welcome the introduction of independent advocacy support which should be available throughout the benefits process and should be entirely independent from the DWP.
Read the full response here. |
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- New Project -
Delivering administrative justice
after the pandemic
The AJC was delighted to hear that it had been successful in a funding application to the Nuffield Foundation to undertake a research project on the court reform project and response to the pandemic.
The aims of the projects are:
- to better understand the effect of rapid digitalisation on the advice and redress systems as well as its users;
- to identify the effects on access for marginalized groups; and
- to explore how trust can be built and sustained in specific parts of a justice system affected by the pandemic.
Led by Professor Naomi Creutzfeldt, the project will look at pathways to justice in the administrative justice system across three areas: housing (Property Chamber, Housing Ombudsman); special educational needs and disabilities (Special Educational Needs and Disability tribunal, Local Government and Social Care Ombudsman and Parliamentary and Health Service Ombudsman).
The emphasis on these institutions will allow us to better understand the effects of the pandemic, how they managed to provide their services remotely, and what lessons can be learned. This research will deliver evidence to create a better, joined-up, service for users. The project will also inform the digitalisation agenda, building on the work of the AJC’s Ombudsman and Tribunals Familiarisation Working Group whose aim has been to bring together ombuds and tribunals to have a better understanding of each other. The project began on 1 September and will run for 18 months.
For more information, please contact Naomi Creutzfeldt or Heidi Bancroft via the AJC email address - ajc@justice.org.uk
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