For decades, tribunals have provided a relatively quick, cheap, accessible, and straightforward means of challenging administrative decisions. Given the volume of initial decisions that can be appealed, tribunals handle many times more...
moreFor decades, tribunals have provided a relatively quick, cheap, accessible, and straightforward means of challenging administrative decisions. Given the volume of initial decisions that can be appealed, tribunals handle many times more cases than the courts. The notion of a tribunal appeal implies a wider remedy that provided by way of judicial review: a full de novo assessment to assess an individual's eligibility for the relevant entitlement. This involves an adjudication process in which factual evidence and legal arguments are considered. The tribunal then produces a substantive decision that determines whether the appellant qualifies for the relevant entitlement or status. This decision is binding, unless it can be overturned on appeal. Tribunals are core institutions of administrative justice and will remain so, but they are also changing. One purpose of this chapter is to examine how tribunals are changing and to identify the underlying forces driving such change. Since 2010, various developments have affected the work and operation of tribunals: legal aid restrictions; the abolition of the Administrative Justice and Tribunals Council (AJTC); the marginalisation of tribunals following the introduction of internal review mechanisms; and the erosion and abolition of some appeal rights. A second purpose is to assess the likely impact of such changes in terms of the accessibility and effectiveness of tribunals. It is argued that many of these developments are likely to have adverse consequences and limit the role of tribunals. On the other hand, some aspects of tribunals have been strengthened. The courts increasingly recognise the Upper Tribunal's specialist expertise and approach its decisions with a degree of caution. There has also been a stronger focus upon the need for public bodies to make better decisions first time round. Looking forward, online dispute resolution (ODR) methods may reduce the need for oral hearings and increase the accessibility of tribunals. Put together, these developments reflect the next stage in the evolutionary development of tribunals: a new model of tribunals is gradually coming into being. The paper speculates on the likely components of this new model. The Old and New Models of Tribunals Tribunals have evolved over time. Closely linked to the development of administrative government, tribunals in part reflect the changing nature of government itself. In the nineteenth century, they emerged as multi-functional administrative entities operating in areas such as railways regulation and tax which, amongst other things, resolved disputes. 2 The advent of the modern tribunal system can be traced back to the National Insurance Act 1911, which introduced unemployment insurance. The Act bypassed the ordinary courts by requiring that appeals against decisions of insurance officers be brought to a court of referees. In doing so, the Act introduced the concept of a local, non-legal tribunal that specialised in a particular area of administration. These courts were accessible for users and legal representation was unnecessary. 3 Following the Great War, tribunals proliferated. 1 I would like to thank Michael Adler, Ray Burningham, Tom Mullen, Brian Thompson, and David Williams for their comments. The usual disclaimer applies.