The creation of an online court for England and Wales merging tribunal and court jurisdictions will bring a greater degree of transparency to some of the murkier areas of currently different jurisdictions and, indeed, invite some international comparison on our government’s efficiency.
First, in relation to social security claims, there is what is little short of the scandal of ‘mandatory reconsideration’. A claimant wishing to appeal a decision in relation to many social security benefits must do so within a time limit, usually a month. The Department must respond by reconsidering the claim but is not subject to a time limit. The operation of mandatory reconsideration has been controversial and widely criticised, for example by a recent report of the Social Security Advisory Committee. Failures of the department have been acknowledged by implication in its response to the committee which accepted that it would be:
• Increasing the number of Presenting Officers attending [social security] Tribunal cases from this month. The feedback will provide our Decision Makers at all stages of a claim with valuable insight into why decisions can be overturned at Tribunal;
• Undertaking a test with Decision Makers at the Mandatory Reconsideration Stage. This looks at what more can be done operationally to improve evidence gathering and the quality of decision making; and
• Exploring the different ways we can improve our communications to make the [mandatory review] process easier for claimants to navigate, for example by improving the online guidance available.
One consequence of the mandatory reconsideration procedure has been a major decline in the number of appeals since it was introduced in October 2013 – raising suspicions of the unfair deterrence on claimants, an allegation given some support by the Social Security Advisory Committee. This has been a major source of debate within the social security world – and, indeed, brought by Ken Loach to an international audience in the searing film I, Daniel Blake.
Mandatory reconsideration has nothing to do with technology and moving the decision-making structure online. However, it illustrates an important underlying problem. Online determination will not alter underlying unfairness of procedure – though it may make it more visible. The opportunity must be taken when bringing courts and tribunals together to ensure that there are common and acceptable standards. In this particular case, the remedy is very simple. Most reconsiderations actually happen within ten working days – the problem lies in the ones that get lost. There should be a provision that an appeal proceeds automatically if no reconsideration is made within this or some other agreed finite time. The alternative is that the system just looks too rigged in favour of the government – something which when further incorporated within the court structure may become more visible and more embarrassing as manifestly contrary to any notion of equality of arms.
A second issue is fees. These are the current fees for civil small claims in England and Wales:
Claim amount Paper form fee Online claim fee
Up to £300 £35 £25
£300.01 to £500 £50 £35
£500.01 to £1,000 £70 £60
£1,000.01 to £1,500 £80 £70
£1,500.01 to £3,000 £115 £105
£3,000.01 to £5,000 £205 £185
£5,000.01 to £10,000 £455 £410
These are the fees for employment tribunals:
Type of case Claim fee Hearing fee
Unpaid wages £160 £230
Redundancy pay £160 £230
Breach of contract £160 £230
Unfair dismissal £250 £950
Equal pay £250 £950
Discrimination £250 £950
Whistleblowing £250 £950
Again, the level of employment tribunal fees have been the subject of considerable controversy. An employer skips payment of a last month of wages and resists all requests to make good the amount owing – which may be an objectively small sum. It will cost the employee a minimum of GBP390 to have a chance of getting the sum back. That puts the employment claim at a similar cost as a vastly greater money claim. Again, this unfairness has nothing to do with technology but it needs to be sorted out when technology brings closer together these formerly separated jurisdictions.
Finally, we might note that the British Columbia Civil Resolution Tribunal provides a point of comparison in relation to fees for online courts as it becomes the first small claims court to go online in a similar way. From 1 June 2017, it will charge $75 to issue online and $50 for a determination for a claim under $3000. The fee will be $125 over $3000 with the same determination fee. That is the equivalent of fees to issue of GBP43 and GBP71. That looks like a potential performance indicator against which we will be able to judge our own Ministry of Justice. If an online procedure does not reduce the costs for small claims litigants then it loses its major source of attraction in terms of access to justice. And, if British Columbia can produce a similar determination at a cheaper cost, why?