By Matt.Ross

21 Sep 2011

Richard Thomas chairs the body that scrutinises all the government's systems of appeals and complaints, the AJTC. But now it faces the axe – and he’s making his own appeal, arguing for its survival. Matt Ross reports.

Richard Thomas (pictured above) is frustrated; during our interview, he uses the word several times. The chair of the Administrative Justice and Tribunals Council (AJTC) is, he tells me, frustrated that administrative justice – meaning both high-quality decision-making within government, and fair consideration of citizens’ complaints and grievances – has for years had a “Cinderella status”, largely overlooked in favour of more glamorous fields such as criminal justice. He’s clearly frustrated that his efforts to improve government decision-making – in order both to save money and to improve the users’ experience – have often met with a lacklustre response, or a welcome that doesn’t quite turn into action. And above all he’s frustrated that last year, without warning, the Ministry of Justice announced that it intends to abolish the AJTC and replace it with arrangements that Thomas views as wholly inadequate.

“Administrative justice engages more people than most other parts of the justice system; this is an issue which affects large numbers of people’s lives,” he says. “It’s the bread and butter of backbench constituency surgery casework. It’s what Citizens Advice does all the time. In the best system in the world, there’s going to be mistakes made – and people become very aggrieved very quickly if there isn’t some sort of channel for resolving their disputes. But it’s always had this Cinderella status.”

Now, Thomas fears, just as he was starting to make some progress in getting Cinders invited to the ball, the Ministry of Justice (MoJ) has put the clocks forward to midnight and the AJTC is rapidly turning into a pumpkin. “I’m frustrated that I was appointed for a four-year term, but I only had one year before I was told that we were facing closure,” he says. “Now I have to deal with the problems of being on death row. Facing abolition, we’re losing people. In these circumstances, it gets more and more difficult to keep the show on the road.”

An MoJ arm’s length body, the AJTC has an advisory role overseeing all the government’s systems of administrative justice: both the processes by which public bodies make initial decisions about the services received by individuals, and the various tribunals, ombudsmen and appeals systems that handle citizens’ complaints and objections. Formerly the information commissioner, Thomas took the job two years ago:“Like any new chairman, I came in with a burst of enthusiasm. I put together a strategy that set out our values and our overall mission, and tried to put us on the front foot in undertaking a series of projects to look at particular aspects of administrative justice,” he recalls.

The AJTC adopted a more proactive approach to setting out an agenda, and published reports laying down “ground rules for the whole of the administrative justice system”; mapping out the system; examining mental health tribunals from the users’ perspective; and criticising the time limits on social security appeals. Of the latter, Thomas comments: “We think it’s inequitable and unacceptable that the claimant who has an appeal going forward is subject to very tight time limits, and if they don’t meet them their appeal is thrown out; whilst the department has no time limits at all.”

On death row
Then came the council’s death sentence – and it arrived out of the blue. “We had anticipated that there would be a review [of arm’s length bodies]. We expected to be able to contribute to that, explain in more detail what we did and how we did it,” says Thomas. “But there was no engagement with us at all; no participation in the review process. We don’t even know what the review process was.” The Ministry of Justice simply announced that the AJTC would be included in the Public Bodies Bill, putting it on the list of quangos facing the axe; the first formal opportunity for the AJTC to put its case for survival arrived in July 2011, when the MoJ launched a consultation on the abolition and its plans for the future.

This is, Thomas argues, a very bad time to be abolishing the council: the number of appeals is rising fast – he cites rising public expectations and changing policies as the key reasons – so tribunal waiting lists are growing. “And the risk with cuts is that if the cutting goes too deep, the quality of decision-making will get worse,” he says. “More arbitrariness and mistakes will creep in, and that’s going to have a knock-on effect.”

Meanwhile, the current cuts to legal aid will mean fewer complainants receive the kind of legal advice that, says Thomas, can speed cases through the system. “In the future we’ll see a big increase in litigants in person, and they won’t just be unrepresented; they’ll be unadvised,” he says. “That’s going to have quite severe costs because it’s going to extend the length of all the hearings.”

The timing is made worse still by the recent merger of courts and tribunals into HM Courts and Tribunals Service – a merger that only went through three months ago, and whose impact on tribunals is still far from clear. Thomas was a member of the merger programme board, and he’s open about his interests: “I saw my role primarily as trying to safeguard the distinguishing features of tribunals,” he says, explaining that their staff typically have more specialist knowledge, and their hearings a far more inquisitorial approach, than is common in criminal and civil courts. “I’m not saying that’s all going to be thrown out of the window; all I’m saying is that as you integrate the services, there’s a risk of that happening,” he comments. “We need to be vigilant.”

Finally, Thomas argues that it’s “perverse that we’re going to be abolished at a time when there’s meant to be increasing emphasis on championing and defending and safeguarding the interests of the user”. At the July launch of the Open Public Services white paper, he says, the prime minister made a point of talking about “the importance of the user in public services”; the decision to abolish the AJTC, Thomas believes, will ultimately weaken the user’s voice.

On ways to save
Richard Thomas also argues that the AJTC could help save the government a lot of money – both by reducing the number of complaints, and by driving down the unit cost of considering each appeal. The MoJ consultation says that abolishing the council will save £4.3m over three years, but Thomas believes the figures are wrong: the AJTC only spends £1m a year, he says, and after wind-down costs the true saving will be about £2m. Anyway, he says, this is a “relatively miniscule amount” compared to the running costs of the UK’s administrative justice systems, and there are lots of ways in which the council can help drive down public spending.

In the summer, the AJTC published a report called ‘Right first time’ (p1, CSW 15 June), which argued that public bodies should concentrate on improving their initial decision-making in order to reduce the number of expensive appeals. The problem of poor decision-making is “being compounded by disturbing signs that not very much attention – and it may even be declining – is paid to the outcome of [tribunal] cases, to teach the system where it’s going wrong,” Thomas adds. “There appears to be not a great deal of systemic learning to put in place improvements.”

Thomas believes that reform is necessary in the way that tribunals are funded. Decision-making departments do contribute to the cost of tribunals, he says, but the payments are based on “pretty crude forecasts” of demand: he’d like to see public bodies charged according to the number of appeals against their decisions – or even the number of upheld appeals – in order to give departments a much stronger interest in improving their initial decision-making. “The financial architecture doesn’t have the right sort of incentives in place,” he says, arguing that reform could save “quite significant sums”.

In praise of simplicity
The AJTC could also help smooth out the legal tangles and complicated rules that lead to poor decision-making and consequent appeals. “I think the judges are really struggling with some of this,” says Thomas. “Some of the complexity is just extraordinary. One reason why public bodies are getting it wrong first time is that they themselves don’t understand the rules and regulations.” Even the lord chief justice, he recalls, has asked Thomas if he can help “simplify social security and immigration lawmaking”.

Finally, says Thomas, the AJTC can help public bodies run their appeals systems more cheaply. “We’ve been trying to draw attention to the scope for the tribunals to resist what we call judicialisation: the tendency to become mini versions of the courts, and to take on all the complexity and delays and costs of the courts system,” he says. In fact, he continues, ombudsman-style systems are often far cheaper than tribunals, and just as effective. Legal professionals “assume that everyone wants their day in court”, he comments. “Absolute nonsense! People want their cases resolved quickly, and by competent caseworkers.” There’s plenty of potential, he says, for ‘Alternative Dispute Resolution’ (ADR): new and cheaper ways of addressing people’s grievances.

Thomas cites a review service set up to investigate complaints about Social Fund decisions: it makes decisions “in a matter of days” and costs less than £100 per appeal, he says. Unfortunately, with the end of the Social Fund, it too is being abolished. Thomas wrote to the work and pensions secretary suggesting that it be retained and offered as an alternative to the pricier social security tribunal, he says, but “so far there hasn’t been very much interest”.

The plans for the future
So the AJTC chair argues that pressures are mounting on our systems of administrative justice, and that we could retain their quality while significantly cutting their costs. But if the MoJ’s decision stands, the AJTC won’t exist to pursue these issues – and Thomas believes that the ministry’s proposals for continuing the council’s work simply don’t stand up.

For one thing, he says, the MoJ shows little interest in the field: “The strategic and business plans of the MoJ scarcely mention administrative justice.” And even if they did, the MoJ has no jurisdiction over large parts of the system: the public sector ombudsmen, for example, fall within the Cabinet Office’s remit. He worries, too, that the AJTC’s UK-wide work to manage the complexities around the progressive divergence of Wales and Scotland’s administrative justice systems will be abandoned if the council disappears.

The MoJ says a “dedicated team” of civil servants will offer “independent advice on strategic administrative justice policy”. But Thomas rejects the idea that departmental civil servants can credibly act impartially in matters that always pit the government against its citizens; and anyway, he says, this “dedicated team” comprises just “two people who’ve been in post for less than two months”. In short, “They don’t have the independence, which we think is crucial,” he says. “They certainly don’t have the capacity at the moment, and there’s no sign of that capacity being developed.”

Marking the scorecard
In the two years since he joined the AJTC, admits Thomas, he’s found it hard to get widespread buy-in to his messages about improving user experiences and cutting costs. “Ministers and civil servants now use the language that we’ve been using for many years; they talk about ADR. And it sounds nice to say that we care about users – but as a broad generalisation, decision-making and appeal bodies are not that good at listening and responding to the particular situation of the user.” On ADR, ‘right first time’ and the tribunals funding architecture, Thomas has encountered polite approval but little concrete action.

Nonetheless, he says, “we have got people to understand what this is all about.” The AJTC played a strong role in shaping the restructuring of the tribunals system, he argues, and it has a major influence on the development of tribunals’ procedural rules. “The [social security tribunal] time limit issue is under active debate right now,” he adds. “Right first time is becoming a mantra, and people are understanding that.” In short, the AJTC has made a difference – and it could make a much bigger one. “We have people who know a lot about this; who could bridge some barriers, bring people together,” says Thomas. “I’m frustrated!”

So what’s next?
Richard Thomas sees so much potential for the AJTC to help government run better and more cheaply, but his organisation is facing the axe. At the beginning of September the council submitted its – predictably robust – response to the MoJ consultation, and it’s now putting together a “fairly comprehensive report” which will “survey what the issues are, what the agenda is, and what needs to be done for the future”. The report will set out the essential areas for further reform and development in administrative justice, says Thomas, so “if we don’t survive, this at least will be something of a legacy for others to take forward”.

Given what the AJTC chair has said about the potential for his council to save far more than it costs – and the MoJ’s reluctance to involve Thomas in decisions about the body’s future – it’s not obvious why the AJTC is being axed. Thomas, for his part, seems at a loss. “Frankly, we don’t know,” he says. “It’s not saving money. The government has indicated that the functions are important but it thinks they can be brought in-house; we challenge that. It’s not ideologically driven. It’s not policy driven.” There is one other possible explanation, of course: the coalition’s need to fuel its much-vaunted bonfire of the quangos. “If it’s simply being done to chalk up one more quango, then I think that’s very sad indeed,” says Thomas.

If the AJTC is indeed abolished, he believes, “Over a period of four or five years, there will be a growing realisation that there’s a gap. The administrative justice system as a whole will suffer in terms of public credibility, in terms of our criteria of access, fairness, efficiency; I think there will be a drop in those measurements.” At a relatively small cost, Thomas argues, the AJTC provides an objective, independent overview of our administrative justice systems; an inspection agency helping to maintain quality across the board; a source of expertise and best practice; a pressure for improvements to customer service and efficiency; and a link tying together the UK’s differing systems. It may not be perfect, he says – but if it goes, it will be missed. “It would be a tragedy,” he concludes, “if in five years’ time, people said: ‘Gosh, we could really do with an independent body to overview the entire system and offer a constructive halfway house between government and everybody else’.”

The Ministry of Justice responds
Civil Service World put Richard Thomas’s main allegations to the MoJ, which responded:
“There is already a team in the Ministry of Justice that offers ministers impartial and independent advice on administrative justice reform. This dedicated team is made up of staff at all grades from administrative officers to senior management, and it has access to additional resources and external expert advice if needed.
“We also take account of the views of service users – almost all tribunal jurisdictions have user groups to enable users to discuss issues of concern with the judiciary and HMCTS management. For this reason, the AJTC is considered to offer a duplication of work that is properly the role of government. There are governance arrangements in place between the MoJ and HMCTS to ensure proper levels and forms of accountability.”

What is the AJTC?
Formed in 2007 as the successor body to the Council on Tribunals – which was itself founded in 1959 – the AJTC oversees all the government’s systems of administrative justice. Under law, the council exists to:
keep the administrative justice system under review;
consider ways to make the system accessible, fair and efficient;
advise the lord chancellor and Scottish and Welsh ministers on the development of the system;
refer proposals for changes in the system to those persons, and;
make proposals for research into the system.

In practice, says the AJTC, it pursues its work under five headings: being a voice for users; taking a systemic overview; providing a UK-wide perspective; promoting the strategic development of administrative justice; and offering expert advice on administrative justice.

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