Right hand. Meet left hand! Wring in despair.

HMCTS have recently upped the ante as regards tribunal modernisation and in particular COR (Continuous Online Resolution). By “upped the ante” we do of course mean that they have finally started to engage with the outside world or at least broadcast to them, which is of course as “consulty” as HMCTS tend to get.

For those of you who have no idea what we’re talking about full (ish) details can be found on an excellent thread on Rightsnet. Why are we writing this now then? Very simple.

First of all a consultation has been launched on the Courts and Tribunals (Online Procedure) Bill.

The Public Bill Committee welcomes views from anyone with relevant expertise and experience or a special interest in the Bill (that would be you GMWRAG members) which has three main effects –

• it confers regulation-making powers on Ministers, subject to the affirmative procedure – appropriate ministers can designate certain types of court or tribunal proceedings as ones which may or must be conducted by electronic means, subject to the Online Procedure Rules (OPRs);
• it establishes the Online Procedure Rule Committee (OPRC) and defines that body’s powers to make OPRs; and
• it determines the membership rules and appointments process for the OPRC.

While the deadline for evidence is expected to be 5pm on Thursday 25 July 2019, the Committee highlights that it is no longer able to receive written evidence once it concludes its consideration of the Bill which may be earlier than that deadline.

Having started in the House of Lords, the Bill was debated and read for the second time in the House of Commons yesterday, during which Parliamentary Under-Secretary of State for Justice Paul Maynard – responding to concerns about ‘digitisation by default’ – stated that –

‘I have said at least twice in the debate already that the alternative methods must be protected at all times. People can seek telephone advice, for example. We are also piloting face-to-face advice in at least 25 areas. At any point, people can opt out of the online procedure, and the paper-based alternative will always be available. Either side in a case can opt out of an online procedure to ensure that it does not occur online.’

GMWRAG members can submit evidence via have your say on the Courts and Tribunals (Online Procedure) Bill.

This brings us neatly to the second aspect of this.

The Infrastructure and Projects Authority annual report 2019 has concluded that successful delivery of the HM Courts and Tribunals Service (HMCTS) Reform Programme is in doubt for the sixth year running. Yes, you really did read that correctly!

The IPA assessed 133 projects included in its GMPP programme this year, including 43 ‘transformation and service delivery projects’, providing each with a ‘Delivery Confidence Assessment’ of green (successful delivery probable) through amber (successful delivery feasible but significant issues exist) to red (successful delivery appears unachievable).

Anyone familiar with the mystery of disappearing online appeals will of course be wondering out loud at this point what realistic chance there is that any of the more complex stuff like COR is ever delivered. On the other hand disappearing online appeals could be described as a fairly efficient way of reducing the backlog which sees people in some areas waiting more than a year for a hearing date.

In relation to the HMCTS Reform Programme, the IPA gives a rating of amber/red – as it has done for the five previous years – defined as –

‘Successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to address these problems and/or assess whether resolution is feasible’

NB – data from the Ministry of Justice to support the IPA report advises that –

‘The programme continues to deliver new services to users and has now launched a new service in every jurisdiction. Over 140,000 users have now used these services and the average satisfaction rate remains high, at above 80 per cent. As part of the business case refresh the programme timeline has been extended by one year and will now expect to close in 2023. Learning from the services that we have already delivered and the feedback received, including from the Public Accounts Committee and the National Audit Office, we have decided to re-order aspects of the programme. This will allow more time to develop some of the shared systems that sit behind our next set of online services.’

Elsewhere, the IPA reports that the DWP’s People and Locations Programme has left the GMPP after successfully delivering savings from a ‘rationalised’ DWP estate (although last year’s annual report rated the Programme as amber/red), the Universal Credit Programme is rated amber (as it was last year) and GOV.UK Verify is rated red (compared to an amber rating last year).

GMWRAG rather thinks these things speak for themselves.

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Updates on the Tribunal Modernisation Project

Some GMWRAG member organisations may have received a letter from the Ministry of Justice inviting you to subscribe to a mailing list in order to receive updates on the Social Security & Child Support (SSCS) Tribunal Modernisation Project.

For those of you who don’t know what this is… last September the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals published “Transforming Our Justice System” setting out a “… vision for transforming justice through the use of new technologies and innovative approaches to how cases are progressed and decided.

GMWRAG is not clear as to why using technology or alternative dispute resolution is considered as a use of either anything “new” or “innovative” but bear with us. “New” and “innovative” have different meanings in the Ministry of Justice compared to the general population. We’re prepared to suspend disbelief and embrace change as soon as we see them recycling those fax machines and introducing genetically modified judges.

In the meantime brace yourselves for the 14 year old technology of Skype; a further reduction in days available for hearings and video links resembling an episode of Phoenix Nights. “Cuts!” we hear you scream. “Cynics!” we respond (possibly).

The Social Security and Child Support Tribunal are the first of the tribunals to explore the above approaches and it is now proposed to email subscriber updates every 3 to 4 months. This may also involve user involvement.

GMWRAG members will all have had experience of the administration of appeals over the decades and it would not be unreasonable to suspect that not all members have received such a letter. Therefore, if you would like to subscribe to the updates please email SSCS_Tribunal_Proj@hmcts.gsi.gov.uk and ask to be added. We wouldn’t want you to miss out.

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Justice in freefall.

GMWRAG members may want to link this post back to the now distant creation of our Access 2 Advice pages and our many posts updating on the work of the Low Commission.

Our friends at Legal Action have, to quote them directly, ended “… the year with a new report analysing the Ministry of Justice’s legal aid statistics and other evidence to identify the key trends in the legal aid market since the passage and implementation of LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act) which came into effect in April 2013.

It’s not exactly a report infused with Christmas cheer – so don’t leave it until Christmas day to have a read.

Year after year the Ministry of Justice have been cutting civil legal aid more than they originally intended to, leaving large budget under-spends and even larger advice deserts, whilst at the same time surrounding the system with ever more suffocating and costly bureaucracy.”

We’re going to repeat what they say on their site in full as we think you need to see it and spread it. It bears repeating far and wide.

“The report’s main findings are-

• Basic advice cases (known as civil legal help), have dropped by 75% after the implementation of the legal aid cuts in April 2013, and are continuing to fall.
• Just over the last year the number of housing cases reduced by 18%, having already halved since 2013; the number of areas with no provision at all is growing.
• The telephone gateway established to help people with debt, special educational needs and discrimination cases is failing the public- out of 165,000 calls last year only just over 10% were referred on to specialists for help.
• The exceptional funding mechanism has demonstrably failed, with low take up and low numbers of applications (under 10%) granted.
• Despite cuts to legal aid of 25% the Legal Aid Agency’s administrative budget has increased to over £100m.
• There has been a 25% decline in solicitors firms undertaking civil legal aid work and this is leading to a lack of availability of the legal aid services which remain in scope.
• Legal aid and other cuts have had an even greater impact on not for profit providers as these have declined by 50% in ten years

By this stage you might be asking is there anything new or different happening that we can hold onto for the hope of better publicly funded provision for access to justice?  Well perhaps.

Some time in 2017 the MoJ will commence its long-awaited post-implementation review of the LASPO reforms. There is also a new strategy for the justice system at the MoJ underpinned by the principles that the system should be just, proportionate, accessible, and involving extensive investment in courts reform and modernisation. Both the review and the reform programme are integral to the responsibilities of Sir Oliver Heald MP QC as Minister of State for Justice who has shown far greater willingness to engage and listen than his recent predecessors – so it is essential that the professions and advocacy groups engage constructively with the review.

Our report spells out some key recommendations for next year:-

• Immediate commencement of the LASPO post-implementation review which should be undertaken independently from the Ministry of Justice, looking at whether, and set against three clear criteria for change and improvement in the legal aid system– just, proportionate, and accessible
• The existing under-spend in the civil legal aid from the past three years should be re-invested in an innovation and early intervention fund which could be distributed on the basis of grant funding bids (for example for second tier specialist support, online tools, and public legal education projects).

The Ministry of Justice should set a target for reducing spend on bureaucracy and re-investing this in frontline services and contracts; achievable by greater discretion and delegation of powers and decision-making.

• Immediate action should to address the low approval rates for exceptional funding through improving the guidance to decision-makers and reducing bureaucracy.
• As a response to low take-up of civil legal aid, the MoJ needs to start a public information campaign about what problems legal aid is available for, how to seek help; this could be linked to a wider public legal education initiatives.

Immediate action should be taken over the emergence of housing legal aid deserts, by making arrangements to ensure there is contracted provision in all procurement areas and introducing greater flexibility within housing legal aid work to enable providers to undertake preventative work.

The Guardian carried a story on the report in its edition on Monday the 19th of December 2016.

Note – Since completing our report, the figures for the 3^rd Quarter of 2016 have just been published showing a further decline in civil legal help over the current year. Workload in housing for example is down 9% from the same quarter last year, immigration works down 22% and help for discrimination cases is down by about a third.  

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URGENT: Dangerous times for social security appeal tribunal users – online consultation now live. Radical change ahoy.

The rather bland title chosen by the Ministry of Justice – “Transforming our courts and tribunals: consultation” – hides some serious issues for all tribunal users. We’ve known these have been brewing for some time but now they’re coming to the boil and it’s important all GMWRAG members are aware of this and respond quickly, clearly and robustly to what appears to be an online only consultation. “Transformation” is of course a word which will strike fear into the hearts of most local authority welfare rights workers and there appears to be no reason to fear it any less in this context.

The MoJ blandly state

“The justice system in England and Wales is internationally revered as one of the finest in the world; our strong and independent judiciary, world-class legal profession and adherence to the rule of law are the basis of a civilized society and strong economy. The Government is investing over £700m in the courts and tribunals and more than £270m in the criminal justice system, a sign of our commitment to building on our strengths and maintaining our international reputation. The world is moving on and our justice system must keep up to meet the changing needs and expectations of everyone who uses our courts and tribunals.

This document outlines what the Ministry of Justice is doing to achieve reform of the justice system, and invites the public and interested stakeholders to give their views on certain specific measures. Where required, we will bring forward legislation in due course.”

This of course begs the question as to what the “changing needs and expectations of everyone who uses our courts and tribunals” might be and how they have been measured thusfar? As a representative, have you been asked? Have any of your appellants been asked? Thought not.

You can find more where that came from and a link to the online survey itself at https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals

Note especially the two questions on panel composition, which start from as assumption that single person tribunals are both happening and a good thing! GMWRAG remains to be convinced on both fronts.

• Do you agree that the SPT should be able to determine panel composition based on the changing needs of people using the tribunal system?
• In order to assist the SPT to make sure that appropriate expertise is provided following the proposed reform, which factors do you think should be considered to determine whether multiple specialists are needed to hear individual cases? Please state your reasons and specify the jurisdictions and/or types of case to which these factors refer.

If you want the future to be Skype tribunals and think there’s no downsides to that you may want to look at a thread running on Rightsnet at http://www.rightsnet.org.uk/forums/viewthread/10233. As it has been memorably been described there, getting all the tech. working did not auger well and was like

“… Norman Collier meets the Chuckle Brothers on the Starship Enterprise.”

There’s a long read on this on The Guardian web site which is also well worth a look.

The consultation runs from the 15th of September 2016 to the 27th of October 2016 and the intended audience apparently doesn’t include lay representatives so you’ll need to decide if you’re responding as a “legal professional” or perhaps a “citizen”! 😦

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