Challenging state decisions: is Cinderella up to the job?

It’s probably not quite close enough to Christmas to start employing pantomime analogies, but if there were ever a Cinderella in our justice system it is surely administrative justice. It’s not a phrase that trips easily off the tongue, most of the public have probably never heard of it, most lawyers don’t pay it much attention and even the Ministry of Justice (MoJ) barely mentions it in its business plan. Which is odd because, unlike criminal justice, most people will probably come into contact with it at some point.

Last week the Administrative Justice and Tribunals Council (AJTC) published a report warning that it is getting more difficult for the public to challenge decisions by the state.  Its chair, Richard Thomas, argued that the government is using a number of tactics to ‘choke off the demand for redress’.  He cited in particular George Osborne’s announcement earlier this month introducing a fee for bringing a claim to the employment tribunal.  I am minded to think of Osborne as the ugly sister in this scenario, but he is by no means the only guilty party.

Thomas also expressed concern at delays in hearing appeals: for example the average time from receiving social security appeals to hearing was 202 days.  The longest time was 423 days.  Can you imagine what that would be like if you were dependent on benefits?  Regardless of whether your appeal was successful or not, and about a third of them are, that’s an absurdly long time to be kept waiting.  Budget cuts mean it’s unlikely there will be more resources for these appeals.  Far better, surely, to get the decisions right in the first place?

You’d think so.  But there are over a million appeals and complaints about decisions by public bodies every year and more than three times as many tribunal hearings as criminal trials.  Bad decisions cost the state money and blight the lives of some of the poorest in society.  Even so, the organisations in question seem reluctant to make data about complaints available and even less able to learn from their mistakes.

As a trustee of the Public Law Project (PLP), a legal charity helping people get access to justice, I’ve been shocked at some of these bad decisions.  In one example, Ealing Council decided to end funding for the Southall Black Sisters, which has supported Asian and Afro-Caribbean women suffering domestic violence for more than 30 years, saying such services should be provided to anyone regardless of gender, sexual orientation or race.

This may sound reasonable, but the council had failed to assess the likely impact of withdrawing funding on the black and minority ethnic women that SBS supported.  PLP challenged the council and it reversed its decision immediately before the hearing.  Makes you wonder why they got is so wrong in the first place.

In another example, PLP, working with the Law Centres Federation, discovered local authorities were systematically passing young homeless people from one department to another, often refusing to help them at all.  This blatantly contradicts the law that states homeless 16 and 17 year olds are the responsibility of social services departments and authorities must provide a package of support, not just accommodation.

I can only assume it was much easier for officials to pass the buck rather than do what they were legally required to do.  I can’t see how else they could have got it so wrong, the law is pretty clear.  But they aren’t the only ones who get it wrong.  Central government does as well even though you’d think it should surely know what it can and can’t do.

One of PLP’s most important recent cases was supporting the charity Medical Justice to bring a case about the UK Border Agency’s ‘exceptions policy’, which involves giving some migrants less than the standard 72 hours notice of removal.  These often include vulnerable people at risk of suicide or self harm and unaccompanied children.  The government said those due to be removed had ‘effective access to the courts’, but the High Court quashed the policy, saying the practical difficulties in getting legal assistance meant those affected had no ‘adequate right to justice’.  The government is appealing the decision.

These cases show that the state is quite capable of taking shoddy decisions that have a direct impact on people’s lives.  It’s bizarre that government talks endlessly about making services ‘user focused’, but doesn’t ensure public officials are properly equipped to make good decisions.

Perhaps I shouldn’t be too surprised as these decisions are often taken against a background of not exactly well-thought-through legislation.  The Legal Aid, Sentencing and Punishment of Offenders Bill shows both a lack of concern about the mechanics of access to justice and bad lawmaking.  At least two judicial reviews have been issued against the planned cuts in legal aid before the bill has even made it to the House of Lords.

One, from Action Against Medical Accidents argues that withdrawing legal aid for clinical negligence cases is ‘irrational and unfair’ and ignores the resulting extra costs to the NHS.  The other, brought by PLP on behalf of ten law firms, challenges the decision to make public funded legal advice in community care accessible only through a mandatory telephone gateway.  It argues the government has failed properly to consider the impact of this on the vulnerable groups most likely to require advice and assistance.

The betting is the government will bring clinical negligence back into the scope of legal aid, but there is less optimism about other areas.  Even if there are concessions, the fact that some organisations feel they have to resort to judicial review suggests there is something wrong with government policy making.  It seems obvious that if people can’t complain there will unresolved disputes generating costs elsewhere.  And if people can’t complain, what incentive will there be for better decision making in the first place?

As if to add insult to injury, the AJTC will be abolished as part of the government’s ‘bonfire of the quangos’.  The MoJ will take on its responsibilities because they are ‘a duplication of work that is properly the role of government’.  So rather than an independent watchdog making sure public officials make lawful and accountable decisions, the government will be monitoring itself.  It doesn’t look as if Cinderella is going to the ball any time soon.