Response to Leggatt

Listening to the User

Citizens Advice Bureaux have a great deal of experience of advising potential tribunal appellants. ALISON GREEN responds to Sir Andrew Leggatt's Report, 'Tribunal for Users'

Every year, Citizens Advice Bureaux (CAB) help hundreds of thousands of people experiencing problems with their benefit claims, involved in disputes with their employers or facing difficulties with their immigration applications to this country. In many cases, the CAB has to consider whether there is a case to take to tribunal, give advice and assistance with the preparation of the case, and sometimes provide representation.

CAB advisers therefore, not only have direct experience of tribunal processes, but also see at first hand the perception that their clients have of those processes, and the impact which a client's experience of a tribunal can have on his or her life. This article draws on those experiences, as reported by CAB advisers around the country, and reinforces the need for a tribunal system that truly places users at its heart.

For many of the CAB clients who take a case to tribunal, this will be the first time they have come into contact with the judicial system in any form. Most approach the idea of taking a case to tribunal with caution and some trepidation. There has been some recent speculation that increases in the volume of cases going to tribunal, and particularly employment tribunals, is caused by people all too readily pursuing weak cases. This is certainly not the experience of CAB advisers who find that most clients require encouragement and assistance before considering taking a case forward.

As Hazel Genn discovered in her research, Paths to Justice 1, the lay person's perception of the legal system is, in general, a confused one, with people often not distinguishing between the criminal and civil justice system, and simply associating courts with breaking the law and a fear of prison. Similar apprehensions attach to tribunals, and particularly to the prospect of appearing unrepresented.

Most approach the idea of taking a case to tribunal with cuation and some trepidation

It is worth emphasising that, in the majority of cases, the subject matter is of vital importance to the client. Even the small amount of money involved in the application for a higher rate of disability living allowance can have a huge impact on the quality of life of someone on very low income. As to employment tribunals, it is not just money, but also reputation, on which a person's future employability, and therefore livelihood, may hinge.

It is for these reasons that the way in which users are treated by tribunals is of such significance in ensuring that justice is done, and is perceived to be done.

Initial information
Sir Andrew Leggatt's Report makes clear that good quality information is needed even before the tribunal process is embarked upon. In making the decision whether or not to pursue a case, a potential appellant needs clear and full written reasons why the original decision was made.

It is our experience that this is frequently not the case, particularly with regard to decision letters on social security benefits, when only minimal information is provided. Often, the further written statement requested Most approach the idea of taking a case to tribunal with caution and some trepidation to enable a claimant to decide the merits of an appeal is simply a repetition of the original decision. As well as being unhelpful to users, this also does nothing to discourage appeals with little merit from being pursued. This is one area that would in our view benefit from the implementation of Sir Andrew's proposals with regard to feedback between tribunals and originating departments.

Feedback on decisions
We strongly support the Report's emphasis on the need for feedback arrangements, which should be given on the quality of the decisions made, how those decisions are communicated to appellants, and the department's compliance with the tribunal's demands during and after the case. It is also important that departments act on the feedback that they are given, and on the decisions of tribunals. For example, in one recent case, a client was refused incapacity benefit because of a low points assessment, but was awarded a much higher level of points by the tribunal. The benefit was subsequently withdrawn as he was again assessed at the previous low level. The tribunal subsequently awarded the higher level of points once again, and the benefit was reinstated. The CAB adviser was concerned that this could in fact occur annually, and that whilst the tribunal chair agreed the situation was incongruous, no one seemed able to do anything about it.

Feedback on experience
Sir Andrew's Report also raises the issue of seeking feedback on the views and experiences of users and we welcome the Report's recognition of the value of formalised consultation with user groups and representatives. We also support the proposed enhanced role which the Report foresees for the Council on Tribunals, effectively as a champion for the cause of the user. What must not be forgotten however, is an extremely valuable and more direct source of information - namely users themselves. Such information can be gained from feedback questionnaires on a user's experience of a tribunal hearing and the surrounding administrative process, or perhaps by inviting, periodically, appellants to attend a focus group to discuss their experiences, all of which should then be evaluated and fed back into administrative and training plans.

While it is undoubtedly true that a user's experience is, to a degree, coloured by the outcome of their own case, an appellant's perception of the fairness of the process will also be affected by how they feel they have been treated. In one CAB, a client felt that the panel had not listened to her, nor read any of the medical evidence, and that the chair had been rude and abrupt. The hearing was subsequently adjourned, but, despite the fact that she lost the case at the following hearing, she felt much happier, believing that the panel had listened and had been sympathetic.

It is also important that departments act on the feedback that they are given, and on the decisions of tribunals

Training
We welcome the importance ascribed in the Report to the need for tribunal chairs and members to demonstrate good interpersonal skills in their approach to users, and to seek to ensure that users are enabled to take a full part in a hearing.

Our experience suggests that there is real inconsistency in the demonstration of such skills currently. Whilst some advisers praise the actions of a tribunal chair in setting an appellant at their ease and encouraging their full participation, others report judgemental attitudes, aggressive questioning, a complete lack of understanding or sensitivity towards the appellant's situation, or sometimes just an absence of basic courtesy.

Good interpersonal skills are particularly important at disability appeal tribunals, where an appellant may be required to discuss what they consider to be intimate and embarrassing details. For other appellants, their experience may lead to an unwillingness ever to become involved in the system again, even where they have a good case. One CAB described a case where an elderly couple had been refused applications for attendance allowance. Despite the help and encouragement of the adviser, who felt that they had good grounds for appeal, the clients refused to consider challenging the decisions as the result of their previous experience of tribunals.

It is worth noting that good interpersonal skills are not only important in the chairs and members of tribunals, but in the staff who are often the first point of contact for those attending a hearing, to ensure that people know what to expect, and to address any immediate concerns or queries.

There is an urgent need for the national co-ordination of training for tribunals with, as Mr Justice Sullivan put it in his article in the last edition of this journal, a 'recognisable structure' complete with accountability. We certainly support Sir Andrew's recommendation for the Judicial Studies Board to be given responsibility for the organisation and delivery of training for tribunal chairs and members and for establishing national training standards and agree that resources must be made available for this work as a matter of urgency.

...for many lay users the legal and procedural complexities of taking a case to tribunal are simply too great for them to comtemplate without representation

Representation
Will the implementation of the Report's proposals ensure a lay user can, in the majority of cases, properly represent themselves without suffering adversely? We remain sceptical. While the recommendations that we have discussed above have intrinsic value in itself, they will not alter the fact that for many lay users the legal and procedural complexities of taking a case to tribunal are simply too great for them to contemplate without representation. Nor do we consider that the Report provides sufficient reasons for its conclusion that representation is, in itself, undesirable. We believe that representation improves the balance between the parties, and also assists in ensuring the efficient running of a tribunal hearing. We believe that more consideration needs to be given to this area, and in particular to the way in which the current provision of lay representation can be bolstered and supported.

Although the National Association of Citizens Advice Bureaux (NACAB) has developed expertise in tribunal representation, using experienced and specialist volunteers as well as paid case workers, and in the provision of second tier consultancy support, training, as well as the maintenance of an information database, demand outstrips resources, and CAB advisers find it impossible to provide representation in every situation deemed necessary.

One Tribunals Service
The key proposal in Sir Andrew's Report, for a single Tribunals Service, is one that we broadly support. Such an organisation - a sister agency to the Court Service - would undoubtedly raise the profile and status of tribunals. There would also be the advantages of shared administrative resources and information technology, best practice and consistent standards. We are concerned, however, that reforms aimed at improving users' experience of the tribunal system should not be significantly delayed because of longer-term structural changes. While unification may be the ultimate aim, steps can and must be taken immediately to improve users' experience of tribunals in the ways in which this article has described.

ALISON GREEN was Social Policy Officer at NACAB until April 2002.

(1) Hazel Genn with National Centre for Social Research: Paths to Justice: what people do and think about going to law 1999.