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Annual Report 2004/2005

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The 20th Report of the Scottish Committee of the Council on Tribunals was laid before the Scottish Parliament at the request of Scottish Ministers on 3 November 2005.

Contents

Foreword

I have pleasure in presenting our twentieth Annual Report. This tells you about the work of this Committee in fulfilling its role to keep under review the constitution and working of tribunals.

This year we have looked at significant proposals which will have a direct effect on the tribunal arena in Scotland. The Children's Hearings system for so long a major support system to deal with vulnerable children became the subject of a detailed review, not only of its operation but of its actual relevance to modern life and circumstances. We have seen the first detail of how the Mental Health Tribunal for Scotland will operate when it comes into effect in late 2005. We have begun to consider details of the operation of the new Additional Support Needs Tribunal and we supported the legislative proposals for a Scottish appeals system connected with the registration of charitable institutions.

These new tribunals, together with a number of existing ones which sit in Scotland regularly, are part of the wide range of subjects in the field of administrative justice which, to a greater or lesser extent, is likely to affect huge numbers of people and families living in Scotland. We must not forget that an individual is far more likely to become involved in a tribunal hearing than in proceedings in a court. The Scottish Committee remains vigilant to ensure that those individuals are given the best possible advice and treatment; it might be a cliché but it is nevertheless valid to say that justice must be done and be seen to be done.

I have been immensely proud to be the Chair of the Scottish Committee for the past seven years and, as I demit office, I believe I leave the tribunal world in Scotland with a more robust and trusted future than when I first became involved in it.

I want to thank all members of the Committee, past and present, and the staff of the secretariat for their forbearance and diligence during my term of office and to wish my successor well.

John Elliot, Chair

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Summary

The topics covered in this report include:

  • our initial views on aspects of the Scottish Executive's consultation on the future of Children's Hearings including specialism, family hearings, legal representation and resources
  • our response to proposals for the establishment of new Scottish tribunals dealing with mental health, additional support needs and charities
  • developments over the year on the matter of administrative justice following the Department for Constitutional Affairs' White Paper in 2004 and proposals for the establishment of the Tribunal Service
  • our reaction to proposals for new provisions to widen rights of appeal in planning
  • our continuing policy of feedback to tribunal systems following our visits to their hearings
  • observations from our routine visits to a number of tribunals
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Review of the Children's Hearings system

1.  During the last year the Scottish Executive has consulted widely on a review of this major Scottish tribunal system. Rightly, the consultation went back to basics and questioned whether the existing system was as relevant for vulnerable children in modern society as it was when first established in the 1970s.

2.  A lot of the underlying policy questions are not for us and we concentrated on the actual hearings system. When we produced our special report on this tribunal in 2002 we knew then that a review was scheduled and we said that everything which we saw as good within the system should not be discarded merely in the name of progress.

3.  Our response concentrated on the following questions in the consultation:

  • Specialism we believe that one of the strengths of the existing system is the generalist approach using lay membership. In our view specialism would destroy the ethos of one panel working together in the interests of the child. Specialism would introduce logistical problems in determining just what was the predominant specialism required. Who and where are the specialists? Crucially perhaps, how long to get them to a hearing? We know that there is a shortage of specialists in child welfare issues; this means they would be almost certain to come from outside the area, perhaps even outside Scotland, so they could have little or no knowledge of the local social environment and thus be unable to relate to the appellant's situation. We see it happen in other tribunal systems and it leads only to delays, frustration and misguided decisions.
    We would welcome specialist assistance being made more available but we believe that it should be brought in from outside if panel members want it and, if possible, ahead of the hearing. This should be coupled with enhanced training for panel members in relevant medical and sociological skills for them to understand better the complex issues which might apply. In this way essential flexibility would be maintained and the additional training would result in stronger and more knowledgeable panels.
  • Family hearings we believe that the strength of the system is the focus on the child and it must remain so. The needs of the family can be addressed already by a social worker responsible for the child and the family as a unit, by a colleague responsible for the parents or other siblings or by other support workers helping to introduce and promote parenting and other skills. There is therefore plenty of existing opportunity to address the needs of the wider family. We also envisage huge practical problems in running a hearing if the needs of all the family are to be validly considered, not least of which would be the number of people potentially entitled to attend. Each family member could be represented and appear at a hearing; it is difficult enough at times under the current regulations to cope with all who can be involved. There is also the danger of accusations of invasion of privacy and violation of civil rights since a panel could presumably call for reports on members of the wider family if they were an integral part of the process.
  • Legal representation it is our belief that representation does not have to be legal but it does have to be effective. But it is also a fact that the advice system available to individuals before they come to a hearing can be absolutely critical. We want the Scottish Executive to examine the whole range of advice and advocacy as well as mediation and other avenues of dispute resolution. We want to see the creation of a strong and consistent network of advocacy organisations for those involved in the hearings system.
  • Our final comment on the consultation was about resources. These must be adequate to do the job, not only to provide support which makes panel members feel valued and respected but to put in place the necessary social work and secure residential facilities so that a panel can be assured its decision will be implemented.
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Mental Health Tribunal for Scotland

4.  During the year we have been following closely the establishment of this tribunal's administration and the production of its procedural rules. We are very conscious that the tribunal will deal with a particularly vulnerable sector of the population, often within extremely short timescales, and that even more attention than normal will need to be given to the organisation of, and arrangements for, hearings so that all procedures are understood and scrupulously fair. At times, panels will be considering the need for patients to be compulsorily treated or detained, perhaps against their will, and we have stressed throughout the consultations that the training of, and preparation by, panel members will be crucial to the success of the system.

5.  We learned at the beginning of 2005 that Ministers had decided to delay implementation of the tribunal for 6 months from the original date of April 2005 to enable all of the necessary legislation and procedures to be put into place. We agreed that it was crucial for the system to have a firm, legally defensible footing but it is nevertheless disappointing that that the tribunal has to start off with this as its background.

6.  The complexity of the subject has led to a long, detailed Act and the need to reflect the various provisions properly inevitably led to a complex set of procedural rules.

7.  We had a number of fundamental points to make about the first draft of the rules and we were gratified to note that the majority of these was taken into account in subsequent revisions. As we write this report the rules are still being finalised but we still have a few significant concerns which we continue to highlight in discussions with the Scottish Executive. Our overriding fear is that this tribunal is being seen as a further case discussion on patients' treatment and hospitalisation rather than part of the administrative justice system. This does not bode well. The system will have our full attention over the coming months.

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Additional Support Needs Tribunal

8.  There has been much progress in the establishment of this new tribunal, which will be under our supervision, since we reported last year on our consideration of the then draft Bill. The tribunals have now been established by the Education (Additional Support for Learning) (Scotland) Act 2004 which will put in place a new framework for children and young people with additional support needs when it is commenced in November.

9.  We are impressed by the logical way in which the Scottish Executive Education Department has approached consultations on this major exercise: the inevitable large number of policy papers has been well presented and, despite the complexity of the subject matter, easy to follow.

10.  Our principal involvement so far has been in the Code of Practice and in the proposed publication of information by the local education authorities. On the first, we made a number of comments particularly about the proposals for alternative dispute resolution. We felt it was imperative that the need for independence in any mediation or adjudication process was given greater prominence and that the whole subject of dispute resolution in general should be more carefully explained since it could be a significant element in a case. We are also aware that since the Code is to be followed by all local authorities it is vital to ensure there is no ambiguity which could lead to inconsistency of treatment across Scotland. We were happy to see that a number of changes have been made to the Code and now it should be a sensible basis for all who need to be involved with it.

11.  We were happy with the proposed publication of information but we did express disappointment that it did not include details of appeal rights and routes. There is a lot of information to impart in this appeal system and there is scope for confusion, so we are concerned when perhaps vital information is dependent on the individual giving it. We do want the facts to be published so that parents and representatives can make an informed choice of any steps which they should or could be taking.

12.  We are continuing to stress the need for great care in ensuring that children are not disadvantaged by any confusion about which of the two appeal routes they should be following, either the Additional Support Needs Tribunal or the continuing Education Appeal Committee system for children who do not meet the criteria for consideration by the new tribunal. Each system will have time limits and so much will depend on local authorities, and indeed other support agencies, giving the right advice at the right time. We will be monitoring this in particular when the new tribunal starts hearing cases.

13.  We will also want to see satisfactory arrangements for transitional cases which are part-way through the education appeal committee process on the date of commencement of the new Act. We will also be looking at how education authorities deal with the transfer of placing request appeals between themselves and the new tribunal when the child's or young person's circumstances change during the progress of an appeal. We are looking forward to seeing the procedural rules.

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Charities

14.  We were very interested to note the proposals in the Charities and Trustee Investment (Scotland) Bill to establish a new tribunal which will hear appeals against decisions by the Office of the Scottish Charities Regulator in connection with the registration of charitable organisations. We are pleased that the Bill proposes our supervision of the tribunal's procedures. We support the proposals set out in the Bill; however we did express the view that the specified legally qualified panel member should act as the convener rather than be just one of the panel members. We also suggested a requirement that at least one of the panel members should have a suitable background knowledge of charitable and investment matters since the consideration of appeals is likely to involve technicalities which may not be appropriate for a lay person.

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Administrative Justice

15.  In last year's report we noted that the White Paper 'Transforming Public Services: Complaints, Redress and Tribunals' had just been published and, together with our parent Council on Tribunals, we have spent a lot of time considering the proposals. Naturally we support strongly an improved delivery of administrative justice and we noted in particular the intended creation of the Tribunal Service whereby the ten largest GB tribunal organisations will come together as an agency of the Department of Constitutional Affairs. This will enable the sharing and integration of tribunal resources and functions, especially hearing venues and other common facility services. Importantly, it will also allow for the more efficient use of tribunal members by encouraging greater flexibility of deployment across jurisdictions. We believe that the stated key elements of developing policies which help empower citizens to manage their own problems, of moving disputes out of courts and tribunals if they can be resolved elsewhere, and making tribunals 'fit for purpose and cost effective' could provide considerable benefits.

16.  We were pleased that Lord Justice Carnwath was appointed early in the process as Senior President designate of the Tribunal Service. That will provide essential continuity as proposals develop further.

17.  Our own organisation is not unaffected by the proposals since it is envisaged that the Council on Tribunals will evolve, in time, into the Administrative Justice and Tribunals Council. Our remit will change somewhat because we will need to embrace the whole administrative justice system in addition to our supervisory role over listed tribunals but we look forward to the challenges involved.

18.  Discussion was inevitable as to whether our Scottish Committee would continue in its present format. We concluded, after much consideration, that there were significant benefits in maintaining our close links with the Council on Tribunals and remaining part of the cross-border public body which we presently are.

19.  For the Scottish Committee, our main concern has been to quantify the effect of this on Scotland. The Tribunal Service will not include any Scottish-only tribunals and thus in many respects, it will be a continuation of the status quo. There are thousands of hearings of GB-wide tribunals which sit in Scotland, for example the Appeals Service and Employment Tribunals, but at present we do not foresee changes which will affect the day-to day operation of those.

20.  We are concerned, however, that over time, Scottish-only tribunals may become left behind if the proposals result in a two tier system in Scotland, especially regarding resources and training. We know that the Scottish Executive has also been involved closely in discussions about the likely impact on the appointments process and the need to retain fully a Scottish dimension in this aspect. One positive step is that Lord Hamilton has been designated by the Lord President as the liaison judge in the whole matter of tribunal reform so we are reassured that matters affecting Scotland will not slip by.

21.  We expect a Bill to be introduced at Westminster in the autumn.

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Rights of appeal in planning

22.  In April 2004 the Scottish Executive Development Department published a consultation document entitled 'Rights of Appeal in Planning' seeking views on whether there should be new provisions to widen rights of appeal in planning. Our main interest lay in the effect these proposals would have on the existing appeal system and their possible influence on the access which an individual has to the system.

23.  We expressed concerns that the proposals could have a detrimental effect on the ability of the Scottish Executive Inquiry Reporters Unit to manage its programme of inquiries. We know that in the last few years the Unit has made significant effort and progress in reducing the time taken to hear appeals and we felt this could be jeopardised unless additional resources were made available.

24.  We are disappointed that no mention was made of the use of alternative resolution procedures to resolve contentious issues: it seems to us that local planning would have been an ideal arena in which to introduce, for example, mediation to reduce the number of cases going forward to inquiry. Members were also concerned that the introduction of fees could be prohibitive especially for simple householder disputes.

25.  We do support the idea of hearings being mandatory and we agree that some sort of screening process should be established, always provided that those taking on this role are independent from the decision-making process.

26.  We understand that Scottish Ministers are considering the responses and a White Paper should be published sometime this year. We look forward to seeing the proposals during the next round of consultations.

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Feedback

27.  The Committee continues to believe that giving feedback after its members have visited a tribunal hearing is an essential part of our work: there is no point in us observing the procedures if we cannot let those charged with the tribunal's administration know what we saw and felt as outsiders to the process.

28.  Although it is now three years since the Council on Tribunals published its Framework of Standards, the text remains totally valid for any tribunal hearing and we still base our comments on it. We said last year that the instances of the Framework standards not being met were decreasing and that is still very much the case. Premises being used by some local authority tribunals are still not as independent as we would like but there is a growing acknowledgement that there is always some set of premises within the authority's estate which is not connected directly with the decision-making department. There are also continuing difficulties in some authorities with the recruitment and training of suitable panel members.

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Tribunal training

29.  We have continued to take every opportunity to stress the benefits of tribunal training. We hosted a conference in Glasgow in May of last year at which Lord Wheatley, Chair of the Judicial Studies Committee, set the scene by stressing that training was a tool to allow tribunal members to do their job properly. Delegates participated in a number of workshops which focused on the user, on training and on the recruitment and retention of panel members. The opportunity to share in others' experiences was judged by delegates to be very valuable.

30.  We also produced an updated version of our Tribunal Training Register where a number of tribunal systems give details of the training materials which they have and which they are prepared to make available to others. The Register can be viewed on our website.

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Tribunal systems and our routine visits to them

31.  Our visits to tribunal hearings and inquiries continue to be the main feature of our work which tells us how well procedures are being adhered to and which highlights potential or developing difficulties. We have visited all major systems at least once and the summary below details our observations this year.

32.  The Appeals Service continues to hold by far the largest number of hearings in Scotland. During the year we visited five sessions each at a different location. All the panels were strong and impressive and they came to decisions in a practical but understanding, sympathetic manner; there had clearly been careful consideration of the case papers prior to the hearing. We think that all appellants would have felt they had had a fair hearing with every opportunity to put their points forward.

33.  We share the concern expressed by the tribunal itself that there is rarely a Presenting Officer in attendance. This can make a difference in a number of cases. Panel members have told us they feel strongly that the absence of a Presenting Officer puts them in the position where they are perceived by appellants to be part of the establishment which made decisions against them rather than being part of an independent tribunal. We are pleased that the President of the Appeals Service has now obtained an agreement with the Department of Work and Pensions that at least some categories of hearing will have a Presenting Officer present.

34.  One member also attended a panel members' refresher day. The training organised by the Appeals Service has always impressed us and this event was no exception. The group work and interactive sessions were excellent - well planned and well delivered by the Service's own trained facilitators. The success of the ongoing rolling programme can be seen in the enthusiasm and enjoyment shown by the participants.

35.  We made two visits to hearings of Immigration Adjudicators, now renamed the Asylum and Immigration Tribunal; this is another system with excellent facilities at its Glasgow hearing centre. The judges leading the proceedings were well trained and highly professional and despite the understandable need for formality, the appellants were put at ease without any loss of authority. Our visiting member was also pleased to see that on one occasion a standard procedure about consultation in the hearing room was varied to ensure fairness.

36.  Earlier in this report we covered the ongoing Review into the Children's Hearings system. During the year members visited three sessions of hearings at different locations. Our observations continue to find a system which is well organised and one where the members are extremely well trained, very much alive to the needs of parents and children and very aware of the consequences of their decisions. We also welcomed the improvements made to one of the older northern hearing centres which enable panels to do their job better with appropriate, modern facilities.

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37.  We still have concerns about how often a panel has to tailor its decision because it is aware that secure or other residential accommodation is not available. At one of our visits a switch of resources within the social work department, resulting in the loss of support to a parent, was brought to the panel's attention. Members were understandably concerned that this effectively negated their previously agreed course of action. We share their concern that no advance notice, or indeed communication, by the social work department had been felt to be necessary: ultimately the panel believed a child could have been put at risk.

38.  Panel members continue to tell us that there is insufficient provision of secure accommodation. We raised this in our response to the Review consultation and we wait to hear what is proposed to remedy the shortfall.

39.  We made two visits to Criminal Injuries Compensation Appeal Panels, both of which utilised the excellent facilities at the permanent hearings centre in Glasgow. We have continued to express concern about the long delay within the Authority before these casepapers are sent to the Panel. We also had doubts about the increasing use of twomember panels which we were told is due to financial constraints. We hear the Panel's view that, although this might not be desirable, the alternative is to postpone the hearing and thus have even more delay. While three-member panels provide the appropriate degree of experience, balance and diversity for fair, just and consistent determinations, this balance may be affected by two-member panels.

40.  One member visited a Crofters Commission fact-finding public hearing, chaired by one Board member, and was also present at the subsequent Board meeting where the Board member's recommendation was agreed by the whole Commission. This unique process, which is totally responsive to the community in which it operates, meets all of our standards and because of the way in which all appeals are decided at a Board meeting, consistency of approach is transparent and assured.

41.  We made five visits to Education Appeal Committees. For a number of years we have reported on the vast differences between local authorities in the effectiveness of this major tribunal system. Most of our criticisms have centred on the lack of training for panel members, and there is a quite noticeable difference between those panels where training is available and those where there is none. There have been some improvements but to echo what we have said in the past, without a central driving force and a commitment to resources for training from the Scottish Executive, there will continue to be some authorities where a fair hearing may not be achieved.

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42.  Whilst all panels comprised committed individuals, there are still instances when the presented evidence is not weighed up, no facts are probed and where hearts are allowed to rule heads. At the end of the day, we are talking about the fairness, both actual and perceived, of administrative justice and the future of a child's development.

43.  We commend those authorities which have introduced training programmes; it is a pleasure to see what can be achieved and we have told them so in our feedback. Unfortunately too much still depends on the attitude of decision makers within an authority. Even an authority with just a few appeals can do something of value we know because one of our members went to one. There is also the COSLA guide which gives an excellent outline of the legal issues involved in the process but we still come across panel members who say they have not seen it.

44.  There is one positive outlook. In last year's report we referred to the training package due to be produced by Govan Law Centre with support from Glasgow City Council. We know the training video has now been made and we hope it will be available to local authorities soon. This is certainly a major step forward but it will only be of benefit if authorities arrange practical training sessions and if all panel members whether parents, councillors, school board or chair are required to participate.

45.  We visited two Employment Tribunals hearings which were both very fair and always backed up by a sound administrative process. One of the hearings was for a very quick, straightforward case which had previously been postponed twice when all other case business for the allotted days had settled prior to the hearing resulting in the cancellation of the session. Under a new procedure, such 'minor' cases are being fast tracked. We were also told that the tribunal office in Inverness now has set days where a chair will always be available, whether or not advance hearings have been set down, to hear postponed or minor cases. We consider this to be a good example of a system instigating a pragmatic solution.

46.  One member attended one of a series of seminars held to discuss the new Regulations which came into effect last October. Worryingly, we understood that almost one quarter of claims in Scotland had to be rejected as a result of claimants failing to comply in one way or another with the new statutory requirements.

47.  We also attended two Employment Tribunal User Group meetings. We do appreciate joining in these because we can hear how the users find the experience and no matter how user-focused a tribunal system may try to be, learning the views of users in a relatively informal setting gives it an insight into life from the other side. On the second of these occasions it was of benefit to hear how cases were being progressed following the rule changes and we were relieved to be told that the initially high rejection rate of applications, due mainly to incomplete information being provided, was reducing.

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48.  We visited a hearing of the Lands Tribunal when it was convened in Perth. Despite the formalities which are inherent in this jurisdiction the chair went out of his way to make the proceedings as informal and inclusive as possible and all of our procedural standards were met.

49.  Two members made visits to NHS Discipline Committee hearings. It is now a number of years since we first expressed our concerns about this system where we consider the underlying regulations to be flawed with their lack of time limits or provision for legal representation. The various stages of report and investigation, with no apparent control over scheduling, are unsatisfactory. One case we observed was being heard more than two years after the alleged breach of service: this was then exacerbated by the health board which did not meet to make its decision on the Disciplinary Committee's recommendations for a further 5 months. During all of this time the practitioner is under a cloud.

50.  We have pressed for a revision of the regulations and for a centralised system to be established but this has been rebuffed over the last couple of years due to the introduction of the new GP contracts and the questions over the need for a disciplinary system. We now understand it has been decided that the system will be retained and that work will begin shortly on revised guidance to health boards together with amending regulations. We shall do whatever we can to press the Scottish Executive for a modern system with appropriate mandatory time limits.

51.  We made only one visit to an NHS National Appeal Panel for Entry to Pharmaceutical Lists. As with the previous system, this tribunal operates under outdated regulations which prevent legal representation for the appellant but as much as possible has been done within the current strictures to make the process as fair as possible and the centralised system in operation here does ensure consistency. Resources have also been allocated to regular training. The hearing which we observed was well conducted with a useful premeeting of the panel to identify the issues in question and focus attention.

52.  We made two visits to sessions of the Scottish Parking Appeals Service. This comparatively new system of a single adjudicator hearing appeals has worked hard to establish an informal, user-friendly experience for appellants and our standards were all met. We were pleased that the Parking Appeals Service was looking at the information provided to appellants, especially on the website pages which, at the time of our visits, concentrated too much on England and the English legal system.

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53.  One of our members also attended the 2004 joint conference, held in Edinburgh, of parking adjudicators for Scotland, England and Wales. This training event was extremely well organised and delivered and was very much appreciated by all those attending who had the opportunity to exchange views and experiences with their colleagues.

54.  Our one visit to a session of Pensions Appeal Tribunal hearings confirmed a very competent performance which met all of our standards. A good example of a panel showing care and consideration for its disadvantaged appellants.

55.  One member attended a Traffic Commissioner's inquiry. It was clear that both the proceedings and the decision were governed by the relevant law and that there is a high commitment to training, using both internal sessions and an outside facilitator. We welcomed the Commissioner's plans to try and soften the court-like layout of the hearing room and to consider the provision of additional information for appellants before any hearing takes place.

56.  We visited two Valuation Appeal Tribunals. Many hearings are cancelled because the system is, to a certain extent, misused by appellants who lodge an appeal just to force a settlement to be reached with the assessor. The panels we did see worked well together although at one visit, the proceedings were dominated by the clerk who inappropriately exceeded his role by taking over the panel's questioning and subsequently leading the deliberations and delivering the decision.

57.  We made a number of other visits. An increasing proportion of our work relates to visits which are not actual hearings but are nevertheless important in the wider sphere of administrative justice. We have continued to participate in meetings arranged by some tribunal systems where appellants' representatives and advisors come together to discuss developments and experiences.

58.  Our occasional attendance as participants at training conferences arranged by tribunal systems is a useful opportunity for us to meet panel members outside the actual hearing environment so that we can get first-hand knowledge of the difficulties which they face in carrying out their role. Also this year, one of our members attended the series of 6 seminars organised by the Scottish Consumer Council to consider the need for modernisation in the civil justice system in Scotland and we subsequently submitted our formal response to the review.

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Annexes

This Report contains the following annexes:

  • Annex A: Role and costs of the Scottish Committee
  • Annex B: Constitution and functions
  • Annex C: Code for consultation
  • Annex D: Tribunal statistics
  • Annex E: Scottish Committee visits
  • Annex F: Membership of the Council on Tribunals

View the annexes as a pdf  (58KB)

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