Tribunals on trial

An independent review of tribunals is soon to get under way.

Alison Clarke talks to some of the people involved to find out what changes need to be made to the system

When Professor Martin Partington of Bristol University called for an official inquiry into the administrative justice system earlier this year, he had no idea that the government would be so quick to respond.Cut to 18 May, when the Lord Chancellor, Lord Irvine, announced a wide-ranging independent review of tribunals in England and Wales under the chairmanship of Sir Andrew Leggatt, a retired High Court judge.

Professor Partington is now one of the five expert consultants who have been asked to contribute to the work of the review.When announcing the inquiry, Lord Irvine said the tribunal system had been ignored for too long - since 1957, in fact, when the last review took place under the chairmanship of Sir Oliver Franks.

He said he was astonished at the extent to which tribunals had expanded in that time.

From the 30 or so tribunals of the 1950s, there are now more than 100, the largest of which hears more than 300,000 cases a year.The review is to report by March 2001 and will look at the administrative justice system as a whole - its independence, its accessibility, its general structure and, most importantly, its compatibility with the European Convention on Human Rights.Article 6 of the Convention, which the Human Rights Act 1998 will incorporate into domestic law in October this year, says that everyone should have the right to a fair trial by an independent and impartial tribunal.

Although all tribunals are governed by a set of rules, Alison Stanley, a partner and head of immigration at London law firm Bindman & Partners, says that differently constituted immigration tribunals often reach different decisions, but on a similar set of facts.

'It is absurd.

It is a lottery about what tribunal chair you get as to which way the case goes.'Others complain about the intervention of funding departments in the way that decisions are taken.

Jacky Starling, a partner at east London firm TV Edwards, says that in social security appeal tribunals, the chairmen and chairwomen are appointed by the Lord Chancellor's Department, but the administrative staff, including the clerks, are appointed by the Department of Social Security.

'Under the regulations, the clerks have a lot of powers and can decide whether or not to adjourn a hearing.

That is a judicial function and should be challenged under the Human Rights Act.'In the pensions field, Giles Orton, a partner at Eversheds and chairman of the litigation committee of the Association of Pension Lawyers, says that the ombudsman system does not provide an independent hearing in about 99% of cases.

This is because most pension cases 'are document heavy', as a result of which the ombudsman makes a paper decision.

He warns that the requirement to have more oral hearings will undoubtedly drive up costs, something that the review will presumably want to avoid.

Alistair Shaw, the secretary to the review, says that one of the other main themes will be to make sure that tribunals are 'accessible to customers'.

In other words, that users are able to get the right sort of advice and support to enable them to use the system, at the time they need it.The lack of legal aid to provide free representation is one of the main gripes of representatives working within the tribunal system.

Catherine Bartholomew, a welfare benefits specialist with east London legal aid firm Hereward & Foster, says that when claimants appear with a representative, their chances of success are greatly enhanced.

She complains that ordinary people are disadvantaged when they appear on their own, because they are not familiar with the procedures and complexities of the law.

'Although the original tribunal system was set up to be user-friendly,' she says, 'you will find out if you are ever a user that it is far from friendly.' Little wonder that so many advisers would like to see a duty system operating for tribunals in much the same way as the criminal courts.

The Council on Tribunals - the body that oversees the administration of the tribunal system - also acknowledges the problem.

The secretary to the Council, Pat Fairbairn, says: 'One of the weaknesses of the current system is that people have problems obtaining representation and getting information about what a tribunal does.'Although the review is committed to looking at levels of advice and support, it will not have to consider the funding implications of any of its findings.

At the moment, legal aid is available for mental health and (since April) immigration, but not for employment, social security and pensions tribunals.

In a report last year, the Legal Aid Board's regional legal services committees identified strong grassroots support for extending legal aid to other tribunals.

For example, a number of committees argued that the lack of legal aid for people who were not members of a trade union caused them 'significant disadvantage' in employment tribunals.

This is still the subject of a review, which will look at how accessible tribunals are and whether people need help in using them.

Mr Fairbairn says that if it becomes apparent that legal aid is needed to make that a reality, then he is confident that the review will make that clear in its recommendations.

That does not mean to say, of course, that lawyers will be the people providing the help.Professor Partington warns that, although some tribunals still provide good value for money, lack of funding means that some of them are almost at breaking point due to increased caseloads, but with no additional resources to deal with them.

The provision of clerks is a case in point.

Suffolk sole practitioner David Mylan, a mental health specialist, says: 'Tribunals always used to be clerked, but they have gradually disappeared, with the result that one of the three panel members has to become the usher, or else we are reliant on the goodwill of the hospital Mental Health Act administrator.' Another major bugbear is delay.

Mr Mylan says that if someone is detained in a psychiatric hospital for up to 28 days, a review tribunal should be called within seven days; for six months to a year, the target time is about two months.

Although the waiting time has come down recently in anticipation of challenges under the Human Rights Act, he says there are still frequent delays of three months or more.And it's a similar story in the field of social security.

Both Ms Starling and Ms Bartholomew say that delays of two to two and a half years are common before appeals to social security commissioners are heard.

Employment specialist Julie Quinn at City firm Allen & Overy says that delays are also a familiar aspect of the employment tribunal system.But whatever the different complaints, just about everyone is agreed that a review is long overdue.

Alison Clarke is a freelance journalist

Links www.tribunals-review.org.uk

Mental health tribunals: not taken seriously

Anyone detained in a psychiatric hospital by a doctor or social worker has the automatic right to have that decision reviewed, writes Alison Clarke.

The problem is that the patient might have to wait a couple of months for a mental health review tribunal to be convened.

And that, says David Mylan, a sole practitioner in Suffolk, mental health lawyer and part-time tribunal president in the North Thames and Eastern region, is just not acceptable when someone's liberty is at stake.A practitioner for nearly 20 years, he has a number of other criticisms of the mental health tribunal system.

For instance, he thinks that some part-time tribunal presidents do not have enough expert knowledge of mental health law.

As a result, they tend to adopt a broad-brush approach, which may not always be consistent with the rules.

He suggests that, to be effective, tribunal presidents may have to become full-time.He is even prepared to consider lawyers sitting alone, without a medical or lay representative on the panel.

'At the moment, tribunals are being cancelled for lack of medical members.

We may have to end up with lawyers on their own, but able to call on experts when they think it necessary.

It could be a better system than at present, where in many instances, doctors do not take the tribunal system as seriously as they should.'Mr Mylan says the Human Rights Act 1998 will provide a number of ways in which tribunals can be challenged.

For instance, as a body funded by the Department of Health, he wonders whether the mental health review tribunal can be considered a truly independent system.

He also has his doubts about the quality of representation available, and would like to see the quality standards for getting onto the Law Society's mental health panel raised.

Employment tribunals: too much delay

One of the main problems facing employment tribunals is delay, reports Alison Clarke.

Julie Quinn, the deputy chairwoman of the Employment Lawyers Association and an associate at City giant Allen & Overy, has a case that was lodged at the start of this year, but will not be heard until January 2001.

She attributes part of the backlog to an expanding jurisdiction and a spiral in the number of discrimination cases, 'but without more resources, I can't see what the tribunal system can do to improve things'.She thinks a review is long overdue, not least because employment law has become so complex.

'Although the original idea was that employment tribunals should have a relatively informal procedure to encourage the parties to represent themselves, that is no longer credible.

Employment protection legislation has become so complex that it is not realistic to expect people to appear unrepresented.' She ensures that her employer clients have legal representation, but says: 'There is no legal aid for applicants, which means that they are at a huge disadvantage.

It would be useful to have a system similar to that in the criminal courts, where there is a rota and an on-call solicitor to provide advice and, where necessary, representation.'Ms Quinn would also like to see a more coherent structure for the administration of employment law: 'It is difficult to explain to clients that their breach of contract claim for 50,000 has to be heard in the county court, but the claim for unfair dismissal has to be heard in the employment tribunal.

Having one forum would be much more helpful.'She says that although most chairmen are very professional, some tribunals can appear more partial to one side than the other, with the result that justice ends up being a bit of a lottery.

Social security tribunals: ripe for an overhaul

Jacky Starling is a partner in the east London legal aid firm TV Edwards, and chairwoman of the Social Security Law Practitioners Association, writes Alison Clarke.

She says that although there have been some fairly major changes to social security tribunals as a result of the Social Security Act 1998, the system is still ripe for an overhaul.She points to the existence of the housing benefit review boards, currently administered by the local authorities, but to be transferred to the tribunal system next April.

'When you apply for housing benefit, you apply to the local authority which administers the system and pays over the money.

If you disagree with a decision, you have a right of review to an officer of higher standing, and then a review board of three local councillors.

That set up is hardly compatible with Article 6 of the European Convention on Human Rights, which gives you the right to a fair hearing which is independent and impartial.'She is also critical of the lack of legal aid for tribunal work, which means no free representation for claimants.

Although expensive to administer in the short term, she argues it would pay for itself in the long term because advisers can make better (and shorter) presentations than claimants, and can advise against taking hopeless appeals.

She would like to see a system of duty advisers at tribunals, similar to that at courts.

There are also huge delays within the system, with claimants waiting up to six months for a tribunal date and two years for appeals to the social security commissioner.

At the same time, claimants have to observe strict time limits to avoid having their claim struck out.

She would like to see time limits on tribunals and social security commissioners to ease the delays.