Chapter 15 Answers to quick test questions

Many of the issues resolved by tribunals, while important to the individuals concerned, involve relatively small sums of money. As going to court can be expensive, an alternative process is needed to ensure that decisions can be challenged. Tribunals are one of those processes.

The advantages that tribunals have over the ordinary courts are cost, access, expertise, and speed.

• Cost: Access to tribunals is free and – at least in theory – there is less need for legal representation.
• Access: Tribunals sit in centres across the country. By contrast, applications for judicial review are heard by the High Court, which is based in London with regional centres in Manchester, Birmingham, Cardiff and Leeds.
• Expertise: Tribunals specialise in particular areas of law so are able to accumulate expertise in those areas, which tend to be quite complex – for example tax, immigration, and social security. By contrast, the courts are ‘generalist’, with the administrative court required to deal with judicial review applications involving any area of public law. In addition, tribunal judges can have specialist expertise of the issues involved, for example accountants sitting in tax cases.
• Speed: As tribunals are specialist they can focus on the core issues that arise in a particular case, perhaps more easily than a generalist court may be able to. Tribunals are also able to follow quicker and simpler procedures, meaning that they can deal with many more cases than the courts.

Tribunals had developed in an ad hoc fashion, particularly when they proliferated with the development of the welfare state after the Second World War. There was no form of central organisation to tribunals, with government departments creating and then administrating them as and when they felt it necessary. The Leggatt Report found that there were over seventy different tribunals which together heard nearly a million cases a year, but only twenty of those tribunals heard more than fifty cases a year. The Leggatt Report also found that the quality of decision making by different tribunals varied from ‘excellent to inadequate’.¹

Consequently, the Tribunals, Courts and Enforcement Act 2007 accepted many of the Leggatt Report’s examples and made several improvements to the previous structure. In particular, the 2007 Act introduced a ‘two-tier’ structure. The First-tier Tribunal is formed of seven chambers, within which different specialised tribunals sit, and it usually hears first instance cases. Appeals on a point of law can be made to the Upper Tribunal with the possibility of onward appeal to the Court of Appeal and, exceptionally, the Supreme Court.

This is a significant improvement on the previous structure as it allows for resources to be deployed more effectively, and the structure is flexible to allow each chamber to adopt its own procedures, tailored to the areas of law it deals with. The Act also removed from government departments any remaining responsibility for appointing tribunal judges. They are now appointed along similar lines to the judiciary by the Judicial Appointments Commission.

Following the Tribunals, Courts and Enforcement Act 2007, a feature of tribunals is their relationship with the courts. Under section 13, an appeal on any point of law can be made from the Upper Tribunal to the Court of Appeal. In R (Jones) v First-tier Tribunal (Social Entitlement Chamber), ² the Supreme Court made clear that the court should be reluctant to intervene in decisions made by tribunals given their (the tribunals’) expertise within the areas of law in which they act. By deferring to tribunals in this way, the courts are making clear that it is for the Upper Tribunal to develop the necessary precedents and guidance for the First-tier Tribunal to apply at first instance. The rationale for the tribunal system would be undermined if the parties needed to go to the courts in order to reach a final decision on the law. This is one way in which the tribunal system gives effect to the principle of ‘proportionate dispute resolution’.

The principle of proportionate dispute resolution can also be seen in the Upper Tribunal’s judicial review jurisdiction. This ensures that the expertise of the tribunal system is available for applications for judicial review, and it has had a significant effect on the number of judicial review applications involving immigration reaching the High Court.

Cart judicial reviews are attempts to challenge decisions made by the Upper Tribunal when it has refused permission to appeal to the Court of Appeal. The argument is that the Tribunals, Courts and Enforcement Act 2007 had thought carefully about the relationship between the tribunal system and the courts and did not make provision for these types of judicial reviews. The 2007 Act emphasized the finality of decision making within the tribunal system, and Cart judicial reviews added a further stage before some disputes reach a final resolution. The argument against abolition is that Cart judicial reviews deliver positive results for up to 9% of applicants. In addition to successful applications, this could mean that the relevant government department has revisited the decision being challenged or reaches a settlement with the applicant. This suggests that a reasonable proportion of decisions are legally defective in some way. If Cart judicial reviews are abolished, those subject to these defective decisions would suffer an injustice, as the decisions would go uncorrected.

Any system that relies on incorrect decisions being successfully challenged in order to reach the correct decision is inefficient and, depending on the subject matter, causes applicants unnecessary stress and anxiety while they wait for the original decision to be changed in their favour. It would be much more effective for original decisions to be correct in the first place.

One way this could be addressed is for decisions overturned to be fed back to decision-makers within the department making the decision. They could then reflect on their processes and how decisions are reached taking into account the approach of tribunals. This could be furthered with the relevant decision-maker being required to defend their decision before the tribunal. However, this is not the existing practice of government departments, and sometimes they do not even send a representative to a hearing, especially before the First-tier Tribunal. The reduced costs of online hearings may create an opportunity for this to change.