Government departments and agencies should pay a charge every time their decisions are challenged in a tribunal, with costs rising further if they lose their case, the Administrative Justice and Tribunals Council (AJTC) has argued in a new report.

“We favour the ‘polluter pays’ approach, so we’re recommending that the original decision-makers contribute to the cost of tribunals by direct reference to the volume of appeals,” AJTC chair Richard Thomas told Civil Service World. “We’re suggesting that the Cabinet Office and Ministry of Justice try to develop a formula to give departments a direct incentive to try to prevent cases from going to appeal.”

The report, Right First Time, shows that the number of appeals to tribunals grew by 26 per cent between 2009-10 and 2010-11.Overall, about a third of appellants win their case: of 339,200 appeals to the Social Security and Child Support Tribunal, 38 per cent were upheld in 2009-10. Yet public bodies are failing to learn the lessons of their mistakes, according to yesterday’s report: ‘Too few public bodies have in place feedback mechanisms to ensure that the outcomes of appeals and complaints are understood,’ it says.

“One thing that really surprised us is that apparently there isn’t much learning going on from tribunals cases,” Thomas commented. Many public bodies are sending fewer representatives to tribunal hearings, he added: the Department for Work and Pensions, for example, now only sends an official in 16 per cent of cases.

“We’re puzzled as to how [organisations] can go about learning when they’re not even represented at the hearing,” Thomas said.

The AJTC argues that this apparent lack of interest in addressing the systemic problems that cause repeated appeals should be addressed by charging public bodies per tribunal appeal, with an additional charge where they lose the case. Most such bodies currently contribute towards tribunal costs based on forecasts that are, Thomas added, “pretty crude”, with the MoJ paying much of the balance. So currently “there’s no real financial incentive to reduce the number of cases, and if they lose the appeal they don’t actually suffer”.

Asked why the number of appeals is rising, Thomas suggested that the reasons include changes to the benefits rules; a growing public willingness to challenge authority; the tribunals’ strengthening reputations for independence and fairness; public bodies’ growing dependence on written correspondence to handle challenges, rather than telephone conversations; the fact that, for some years now, tribunal costs have not been borne by the decision-making body; and performance targets that emphasise the speed of decision-making rather than its quality.

The report also challenges government plans to charge appellants in immigration appeals, arguing that “charging fees as a way of reducing the volume of cases fails to address the root cause of the high and growing level of cases going to appeal”.

To read the report click here

Written by Matt Ross, CSW