Welcome to the sixth 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 very warm welcome to our new members: Vicky Allen (Director of Advice Services, Z2K) and Stephen Buckley (Head of Information, Mind) who both join the Advice Sector Panel.
Ryan McRobert (Head of Courts and Tribunals Unit, Scottish Government) and Denise Nash (Tribunal Hearing Centre, Department of Justice NI) join the Council.
Congratulations to current members Diane Sechi and Natalie Byrom who have been appointed to our Steering Group.
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FAREWELL
Thank you to Professor Naomi Creutzfeldt, who steps down from co-chairing the Academic Panel and from Steering Group. We extend our warmest thanks to Naomi who has been instrumental in the success of a number of AJC projects during her time as co-chair. We are delighted that Naomi will remain on the Council.
Many thanks to Paula Stevenson who steps down from the Council.
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AJC Full Council Meeting
12 July 2022
The full AJC Council met for the second time this year on 12 July 2022. Chair, Sir Keith Lindblom, Senior President of Tribunals, welcomed new Council member – Ryan McRobert (Head of Courts and Tribunals Unit, Scottish Government) and new Steering Group members Diane Sechi (Simmons & Simmons) and Natalie Byrom (The Legal Education Foundation).
Presentations and discussions centred around new project areas. Members heard from:
- Representatives from HMCTS, who updated on their modernisation programme. There followed a discussion on how the AJC might add value to the programme by way of a project;
- Representatives from the Ministry of Justice and Department for Education (DfE), who presented on the SEND jurisdiction and the DfE's recent green paper in relation to a proposal to look at first-instance decision-making;
- Diane Sechi represented the AJC's Advice Sector Panel, offering details on a prospective project that would encompass the themes of digitalisation, mental health in the administrative justice system and the cost of living crisis;
- Donal Galligan (Ombudsman Association) presented a project idea focussed on public legal education in schools;
- A further project idea on data collection was introduced by Dr Natalie Byrom (The Legal Education Foundation). Further scoping will be undertaken in relation to this proposal before approval by the Council.
If members or external stakeholders would like to hear more about the projects that were approved, or are interested in contributing, please contact the Secretariat at ajc@justice.org.uk.
Minutes will be published on the AJC's website shortly. The next meeting will be held in February 2023.
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Response to the
Joint Committee on Human Rights inquiry
JUSTICE and the Administrative Justice Council (AJC) have responded respond to the Joint Committee on Human Rights’ inquiry into whether a Human Rights Ombudsperson should be created.
In May 2022, the Joint Committee on Human Rights launched an inquiry into whether a Human Rights Ombudsperson should be created, to improve how people could enforce their rights out of court. The inquiry is to cover whether such a body should be created, the powers of this body, how it would interact with other bodies and the devolved nations, and what other steps to ensure people can effectively enforce their rights out of court.
The full response can be found here.
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Understanding the barriers to accessing social care and social housing complaint systems for vulnerable and excluded people
by Carolyn Hirst (Independent Researcher, Hirstworks), Chris Gill (University of Glasgow and AJC Academic Panel member), and Jane Williams (Queen Margaret University)
A small scale research and knowledge exchange (RKE) project which aims to explore the barriers experienced by social housing and adult social care complainants in England and Scotland is currently underway. It has been funded by the University of Glasgow Research Invigoration Fund and is being led by Carolyn Hirst (Independent Researcher at Hirstworks), with input from research colleagues Chris Gill (Senior Lecturer in Public Law at the University of Glasgow) and Jane Williams (Senior Lecturer in Dispute Resolution at Queen Margaret University).
As well as providing a basis for future research, this project contributes to an ongoing process of knowledge exchange with policymakers, practitioners, third sector advice and advocacy bodies, regulators, commissioners and ombuds where knowledge is shared through the Transforming Complaint Resolution website.
The RKE project has three elements. The first was a rapid desk-based scoping exercise to bring together the publicly available data on the demographic characteristics of people who raise complaints about adult social care and social housing and the research evidence on access to justice barriers in this area.
The second element of the project involved discussion of the scoping paper findings at three 1.5 hour online workshops held in the last two weeks of June with invited expert stakeholders (one with advice and advocacy organisations, one with social care and social housing providers, and one with ombudsman, regulators and inspectorates).
And the third element is using the findings of the scoping paper and the workshop discussions to produce a briefing paper setting out key issues and recommendations for policy, practice and research. This briefing paper, due to be published by end August 2022, will be circulated to workshop participants and will also be available on the Transforming Complaint Resolution website.
Fuller information on the three project elements can be accessed here. If you are interested in knowing more, please contact Dr Chris Gill at chris.gill@glasgow.ac.uk.
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An update on the recent work of the
Housing Ombudsman
by Richard Blakeway, Housing Ombudsman
and AJC Council member
During the last year, the Housing Ombudsman has been using two new powers from its strengthened Scheme. These are the power to undertake systemic investigations, and to issue Complaint Handling Failure Orders (CHFOs). This is in the context of intense focus on the quality of social housing, legislation to reform the regulatory environment after the tragic events at Grenfell, and unprecedented demand for our service. So how have we approached using these new powers?
Let’s start with CHFOs. These orders are distinct in our Scheme: we can issue them prior to a formal investigation if we find a member landlord is not progressing an individual complaint in line with the standards set out in our Complaint Handling Code. The orders can also be issued for not cooperating with an Ombudsman investigation or for failing to meet membership requirements. We have issued more than one hundred since their inception and most prior to formal investigation. Every quarter we publish a list of orders, identifying the landlords. Most orders will facilitate earlier resolution with the complaint. However, we include where there has been non-compliance with the order, and this may result in us taking the complaint into formal investigation. It has given teeth to our complaint standards and means the Ombudsman is proactive earlier, using transparency to drive accountability and culture change. These orders may also indicate trends for wider investigation, which brings us to our use of systemic powers.
It is crucial that Ombudsman schemes focus on systemic issues to extend fairness. This approach can also be quite different, and complementary to a regulator. The Housing Ombudsman has done so in several ways, including our Spotlight reports looking at sector-wide challenges, such as cladding related complaints or damp and mould. These reports have gained traction in the sector, being accessed more than 7,000 times on our website over the last year. They draw on the lessons arising from our casework but are often supplemented by calls for evidence, where we typically receive hundreds of responses.
We have also started to consider individual landlords as well as sector-wide issues. We did this recently with one landlord that had received multiple CHFOs, by bringing together nine formal investigations. While we considered what was fair in all the circumstances of each complaint, the investigations were progressed together to ensure we were able to identify any systemic failing in service provision.
This led to some exceptional adjudication work by my team. We made thirty findings across the cases, with most involving some level of maladministration. The cases provided several lessons that could improve services and prevent complaints. This led to us ordering several senior management reviews in areas including record keeping, repairs and complaint handling. At the end of the process, we published a special report, and the landlord has worked intensively with us to comply with the orders and learn from its failings.
Finally, we have also identified poor record keeping as an area that is resulting in poor practice throughout the social housing sector. It may appear dry, but our casework shows how the human consequences of poor records can be profound. It is a risk that some landlords do not fully recognise, and so next year we plan to undertake a systemic investigation to delve further.
CHFOs – Complaint handling failure orders - Housing Ombudsman (housing-ombudsman.org.uk)
Spotlight reports - Spotlight on... reports - Housing Ombudsman (housing-ombudsman.org.uk)
Special report – Housing Ombudsman issues Special Report on Lambeth’s complaint handling - Housing Ombudsman (housing-ombudsman.org.uk)
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JUSTICE Administrative Law Update
Benefits and Bill of Rights
by Philip Armitage, Administrative & Public Lawyer, JUSTICE
Benefits
JUSTICE met with officials from the Department for Work and Pensions (DWP) last month with Heidi Bancroft, from the AJC. The purpose of the face-to-face meeting was to discuss some of the recommendations from the Reforming Benefits Decision-making report and the DWP's upcoming Health and Disability white paper. The DWP confirmed that they were still looking to publish a white paper this year (thought this was before more recent political developments).
We discussed several recommendations from the JUSTICE/AJC report. These included the importance of claimants having a choice of assessment type, the use of healthcare professionals with specialist knowledge of conditions, audio recording of assessments being done on an ‘opt out’ basis, assessment reports being provided automatically to claimants, improved guidance for decision-makers on additional evidence and informal observations and the ‘no wrong door’ approach to universal credit. We also discussed the ‘proof of concepts’ trial on a written warning (rather than a sanction) for the first failure to attend a work-search review and the proposed advocacy support scheme discussed in the green paper.
The DWP were unable to make commitments in our meeting about what would be in the white paper but were open to discuss these recommendations. They said the intention of the white paper was to improve people's experience of the benefits system and support people to live independently. From our meeting, whilst it seems unlikely that the white paper will go as far as we consider necessary in many of the areas discussed, it seems like there is a good chance that there will be some positive changes in the areas we discussed.
We have agreed to meet the DWP once the white paper is published. In the meantime, the DWP were keen to consider case study evidence from individuals who have been affected by some of the issues we raised in our report. It would be particularly useful to send them examples of how informal observations are used against claimants in decisions and how the current guidance on additional evidence is being applied. If you could potentially assist with this or have any questions, please contact Philip Armitage ( parmitage@justice.org.uk) so we can coordinate this.
Bill of Rights
As you may be aware, the Government published their Bill of Rights Bill last month. JUSTICE are incredibly concerned about this legislation as it will diminish our domestic human rights protections and make it harder for individuals to enforce their rights. One of the most concerning aspects is that the legislation would prevent courts finding that public authorities need to comply with any new ‘positive obligations’ to protect people’s human rights and could lead to previous court findings on positive obligations being overturned. If any AJC member has any questions or concerns about the draft legislation, and how it might affect them or their organisation, please get in touch with Philip Armitage ( parmitage@justice.org.uk) who would be happy to discuss it with you.
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New Report by the
Information Commissioner's Office
by Warren Seddon
(Director of FOI and Transparency, ICO; AJC Council Member)
On Monday 11 July, the Information Commissioner’s Office (ICO) laid before parliament a new report, ‘Behind the screens – maintaining government transparency and data security in the age of messaging apps'. The report highlights the problems that can occur when public authorities fail to make sure their information management policies and procedures reflect the way they are conducting official business in practice.
It is over 20 years since Parliament first passed the Freedom of Information Act (FOI Act) and a lot has changed in that time. It is vital that public authorities ensure the way they handle FOI requests reflects how officials and Ministers are working and interacting today. The ICO must also adapt and make sure the way we regulate the FOI Act reflects the realities of the world we live in. ‘Behind the screens’ sets out recommendations that will support government departments to improve their policies and procedures in the short term and calls on government to establish a more systemic review to look at this issue more carefully so that transparency isn’t undermined in the longer term by new ways of working.
By the time the latest AJC Newsletter is published we will have also published our new three-year strategic vision – ICO25 – that will set out some significant changes that the Information Commissioner is making to ensure the ICO’s regulation of the FOI Act lives up to this challenge.
This will be available on the ICO’s website, but I also set out in a blog a few days before the launch of ICO25 some of the key developments for our FOI work that we will commit to in it. This includes our plans of:
- Prioritising requests where we consider that there is a clear public interest in moving them up the queue, so they are resolved more quickly. We already do this in some cases, but plan to publish updated criteria later this year to reflect this expanded approach.
- Taking a fresh look at how we resolve disputes. We will be working more closely with requestors to get clarity on precisely what information they are looking for and working with public authorities on exactly what exists and is available with a view to seeing whether early resolution can be reached between the parties without a need for a formal ICO decision notice.
- How, as part of the commitments we make in ICO25, we can clear the cases already with our office even quicker than planned. This will free up resources to deliver our wider ambitions and ensure we deal with new cases faster.
So, a lot to do, but also important work to make sure that the transparency that helps support public confidence in our democratic institutions is working as parliament intended. We look forward to working with public authorities, including AJC members where there is overlap, to help make it a reality.
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Homelessness Reviewed
First Wider Own Initiative Investigation
by Public Services Ombudsman for Wales (PSOW)
by Katrin Shaw
(Chief Legal Advisor and Director of Investigations, PSOW;
AJC Council member)
Background
In July 2019, the Public Services Ombudsman (Wales) 2019 Act received Royal Assent and granted the Public Services Ombudsman for Wales (PSOW) with several new powers – including the ability to investigate under their own initiative.
First Investigation
In October 2021, via an online event hosted by the Chartered Institute of Housing, the Public Services Ombudsman for Wales issued a Wider Own Initiative report into homelessness assessment processes within Local Authorities - the first of its kind in Wales.
The investigation focussed on three Local Authorities – Cardiff, Carmarthenshire, and Wrexham – selected due to their geography, demographics, and performance, and considered evidence from Local Authorities, Welsh Government, third sector organisations such as Shelter Cymru, and people with lived experience of the process.
Findings
The report highlighted that Human Rights and Equality Act 2010 duties were not explicitly considered during homelessness assessments or reviews, as well as delays and significant matters being overlooked. The report showed that inconsistent communication was a factor and led to clients not always fully understanding information. The report found that the suitability of accommodation was not always appropriately considered and that there were failures to provide support for vulnerable clients and those with complex needs.
The report also uncovered some good practice and sought to highlight this, including ‘Psychologically’ Informed Environment and ‘trauma informed’ training for homelessness officers, partnership working with other homelessness services, seeking feedback on template letters and the creation of a ‘Mental Wellbeing Support Service’.
Recommendations
The report went on the recommend several steps to address the issues found in the investigated authorities. This included creating accessible documentation for homelessness clients with learning difficulties or whose first language was not English or Welsh, reviewing the use of alternative communication methods – such as ‘WhatsApp’, planning training for officers on Equality and Human Rights, and including officers in the development of future training.
Whilst the recommendations in the report were specific to the three investigated authorities, the other 19 authorities in Wales were invited to consider the recommendations – and the report made suggestions to Welsh Government about more systemic change.
You can read the full report here: Homelessness Reviewed (Ombudsman.Wales)
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From Covid to Crisis;
Direction of Advice in 2022
Lindsey Poole (Chair of the AJC Advice Sector Panel; Director of Advice Services Alliance) introduces the ASA's upcoming conference:
The Advice Services Alliance will be holding a two-day conference for the UK advice sector in Manchester on 4-5 October 2022.
The conference will be an engaging and stimulating face-to-face event for anyone with an interest to provide the best possible advice in the challenging post-Covid world.
Whether you work for an advice service, a voluntary organisation, a funder or other close stakeholder organisation, the conference will both challenge accepted thinking and share key ideas on the future of social welfare advice.
Key themes:
- Building our future: working together in partnership to strengthen our common goals
- Strengthening communities: the role of advice in social justice
- Doing different: innovative practice to get advice to where it is needed
- What we know: using data, evidence and research for better advice
The conference will offer a range of workshops addressing skills, knowledge and values, including better quality assurance and addressing inclusion and diversity within the sector.
Programme
Plenary speakers will include:
- Andy Burnham, Mayor of Greater Manchester (video presentation)
- Dame Clare Moriarty, Chief Executive, Citizens Advice
- Julie Bishop, Director, Law Centres Network
- Sally Causer, Executive Director, Southwark Law Centre
- Fiona Rutherford, Chief Executive, Justice
- Andrea Coomber, Chief Executive, The Howard League for Penal Reform
- Clare Carter, Deputy Chief Executive Officer, Access to Justice Foundation
- Craig Simmons, Head of Debt Advice, Policy and Strategy, Money and Pensions Service
Workshop topics will provisionally include:
- Introduction to the Quality Assurance and the AQS
- Work with prisoners and people with convictions
- Engaging with young people and the advice sector
- Role of communities in accessing help
- How to write better fundraising applications
- Older people and advice: Increasing access
- Looking after advisors’ health and well being
- Digital versus face to face advice: Learning from the COVID-19 experience
Additional topics will be announced soon.
Follow the link for full details.
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More legal support available for 93% of Windrush victims not yet compensated
by Nicola Burgess (Greater Manchester Immigration Aid Unit; AJC Advice Sector Panel member)
Four years on, and with Windrush survivors still experiencing barriers to compensation, more legal support is available.
Greater Manchester Immigration Aid Unit (GMIAU) are raising awareness of the free legal support available to help more than 11,000 survivors of the Windrush scandal. Our initiative aims to encourage more survivors, who were unlawfully detained, deported or denied their legal rights by the UK Government, and who are still to apply for compensation.
Following the launch of the Windrush Compensation Scheme in April 2019, only 7% of Windrush survivors have been compensated for the hardships and discrimination they unlawfully suffered.
Around £40 million has been reportedly paid to 1037 of the 3878 Windrush generation applicants. The Home Office estimated that around 15,000 were due compensation. Recent reports on the scheme by the Home Affairs Committee, JUSTICE and the Windrush Justice Clinic all concluded that the lack of government funded legal advice was a barrier to claimants bringing claims.
In April 2021, the Joint Council for the Welfare of Immigrants (JCWI), in partnership with eight leading law firms (Taylor Wessing, Latham & Watkins, Charles Russell Speechlys, Dechert, Linklaters, Bryan Cave Leighton Paisner, Debevoise and White & Case) set up the Windrush Legal Initiative to provide legal advice and support for people to apply to the Windrush Compensation Scheme. In January 2022, the Windrush Legal Initiative transferred from JCWI to GMIAU. Over the last year it has assisted 29 people with their claims.
Over the coming year, the initiative aims to support more Windrush survivors. GMIAU have recently been awarded funding from the Access to Justice Foundation to provide outreach sessions to ensure work is targeted to those who most need it.
Those who have been impacted can contact GMIAU ( windrush@gmiau.org) to access further information and for legal support.
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- Project Update -
Delivering administrative justice
after the pandemic:
What can we learn about digitalisation
and vulnerable groups?
The research team, led by Professor Naomi Creutzfeldt, have published an interim report, map and booklets on their research on the impact of the pandemic in the areas of: Special Education Needs and Disability (SEND) and housing. The map shows the help-seekers journey in both SEND and housing including the number of stages an individual would ideally follow to resolve their problem. The booklets have been produced as guides for users on how to pursue their appeal/complaint on a) Social housing rent increase appeals; and b) Failure by the local authority to issue or implement an Educational Health Care Plan via both the tribunal and the ombudsman. Video versions of the guides will be published on the website shortly. For more information on the project, including links to the above documents and links to surveys for professionals and users, please see the website.
The team are continuing to survey and interview users of tribunals and ombudsman to understand their experience of using these institutions during the pandemic.
For further information on the project, contact Professor Naomi Creutzfeldt at n.creutzfeldt@westminster.ac.uk
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