Online Dispute Resolution, Tribunals and Measurement of Success

The modernisation programme for England and Wales affects not only courts but also tribunals. Sir Ernest Ryder, the Senior Tribunal President, gave a recent speech summarising progress. He put down some important markers for how both the absorption of the tribunals within the court administration, undertaken as the result of legislation in 2007, and the subsequent digitalisation programme are progressing. He does not raise outcomes measures to monitor these reforms and this silence needs to be addressed.

Institutional memories are notoriously short and it may be worth putting Sir Ernest’s remarks in their historical and political context. Tribunals have been evolving since the Franks Committee in 1957 stated that they should be distinguished by three values: openness, fairness and impartiality. They were initially also committed to informality. Social security has very much been a battleground for the relationship of the interplay of fairness and legality. Critical experience of social security appeal tribunals in the 1970s led to a 1978 government review calling for ‘a clearer legal structure and better communications’. It also contained the startling lament that failure of the existing system ‘is beginning to encourage resort to the Courts, who are concerned to satisfy themselves that powers have been exercised not only legally but reasonably’ (Para 3.11, DHSS Social Assistance: a review of the supplementary benefit scheme in Great Britain  1978). 

The Health and Social Services and Social Security Adjudications Act 1983 duly reformed social security tribunals to respond to a more legalised scheme from which attempts had been made to exclude as much discretion as possible. The Act established a President and encouraged legal chairpeople of the tribunal. A culture was developed of the ‘enabling tribunal’ which would help appellants to present their case, albeit retain objectivity in decision-making. 

It was from this basis that the 2007 legislation took the tribunals within the court service. Research by Professor Robert Thomas revealed that there were ‘1.7 million first-tier social security appeals determined over the years 2000-15’. He found a sharp difference between the results of cases based on oral hearings and those decided on the papers: ‘The data show that some 48 percent of [orally heard] social security appeals were allowed, whereas the proportion of allowed paper appeals was 15 percent’. He explored a number of reasons for this disparity including the value of direct evidence; the ‘the tribunal hearing generated additional evidence’; ‘the Tribunal sees the appellant in person and may be better placed to take a view on credibility issues’; the greater time and attention given to oral appeals – ‘doing an “appeal on the papers” can become synonymous with disposing of a case quickly.’

There is one further background point to bear in mind. Social security is in the midst of a controversial major reform designed both to harmonise a formerly diverse set of benefits and to implement cuts. Use of charitable food banks is escalating and their major provider certainly believes that ‘”A clear link” exists between the reforms and the increasing popularity of food banks’ Furthermore, perhaps unsurprisingly at such a time of pressure, social security administration has not distinguished itself by its quality. Ken Loach’s film I Daniel Blake gave international coverage to the problems of a benefit claimant seeking to challenge ‘the decision maker’ in his case through unfamiliar computers; a legal provision which converts an appeal automatically into a request for a ‘mandatory reconsideration’ subject to no time limit and what elsewhere has been referred to as the creation of a ‘hostile environment’.

With these points in mind, back to Sir Ernest. He expands on seven IT projects in the tribunal field. One group of these are administrative reforms – for example automatic notification by text or email of the stage of a case; an improved ‘judicial interface’ allowing better judicial case management; improved scheduling and listing; and a common platform for appeals and judicial review. These seem good – though the devil, as ever, will reside in the detail. As indeed he does in the other more delicate projects listed such as the use of video hearings and the deployment of administrative staff to undertake certain judicial functions. 

The court modernisation programme must, overall, be desirable in its purpose. To be desirable in fact, those implementing it need to be aware that a the dangers in a field like social security so close to the political concerns of government. The independence of tribunal adjudication has been hard fought for and hard won. In that process, justice has suffered losses. Elements like mandatory reconsideration on an untimed basis are, frankly, a challenge to any notion of fairness or equality of arms. Once the budget cost of tribunals was transferred from individual departments to the Ministry of Justice, the Department of Work and Pensions ceased to send presenting officers to appeal tribunals. It generally attends only if there is a further appeal. That can be taken to indicate its evaluation of the worth of appeals.

There may, however, be opportunities in digitalisation. Sir Ernest reported: ‘Associated with this is a new simple online way to start an appeal. We are designing and trialing questions in plain language that build intuitive application forms using judges, our expert panel members, behavioural psychologists and volunteer users who are asked about the language people prefer to use.‘ This is hinting at the kind of approach advocated by Lord Justice Briggs as stage one of the new digital process. Well, just imagine if the tribunal form of appeal replicated the kind of interactive review presentation pioneered by organisations like SeAp’s C-App and AdviceNow. That may not be quite what the Department of Work and Pensions expects but many claims for benefits like personal independence payments must fail because applicants fail adequately to present their needs against the requirements for the benefits. How helpful if the appeal tribunal could help through technology in the way explored in these two projects.

Professor Thomas’ conclusion on ODR in a tribunal context was a warning: ‘One test of ODR will be on outcomes and how the outcomes of ODR appeals compare with traditional oral appeals’. Those behind the court modernisation programme are rather shy generally of outcome measures which are not related to staff cuts and expenditure savings. That might be expected from Her Majesty’s Courts and Tribunal Service which is a Ministry of Justice agency. But, Sir Ernest and the senior judiciary could surely raise the kind of outcome measure suggested by Professor Thomas. If video hearings have as good a success rating for appellants as oral hearings currently do, then let us celebrate. If they don’t, then failing some acceptable explanation, we should deplore and start again. And, in all eventualities, we should start talking about these measurements now – and make the ensuing commitment explicit as a key performance indicator of these reforms.

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