Chapter Four - A more user-friendly
system
4.1 It is important to remember
that tribunals exist to serve the users, not the other way round. They
need to be accessible by the variety of users they are intended to help.
In order to make the tribunal experience a positive one for users they
need advice and support at all stages of the appeal process. This chapter
outlines the range of information and practical help we consider should
be available from original decision-makers, from tribunals and from
independent advisers. Actively seeking the views of user groups as to
what information and facilities are required, tribunals should try to
do all they can to make themselves understandable, unthreatening and
useful to users. Information and facilities, such as telephone helplines
and clerking services, should be geared to meeting the needs of different
types of users and provide them with everything they require to give
them the best chance of preparing and presenting their own case. This
chapter also suggests what help by way of independent advice and representation
should be made available. We make recommendations on information, advice,
representation, user groups, cost regimes and clerking services.
Information for the user
4.2 One of the most prominent messages
in the responses to the Consultation Paper was the need for better information
for users. We have seen the efforts which most tribunals have made over
recent years to improve what they do in this area. There are many excellent
examples of clearly written (often Crystal-marked), attractively designed
publications, forming part of a sensibly thought out series for different
cases and circumstances. Some, like the video prepared by the Special
Educational Needs Tribunal (SENT) for those who have appealed to it,
are outstandingly useful.
4.3 The effective
communication of information about how to start a case, prepare it for
submission to the tribunal and present it at a hearing is not an optional
extra of good service to users. It is fundamental to the reason why
tribunals exist separately from the ordinary courts. [22] With
very few exceptions the aim should be that tribunals’ distinctive
procedures and approach should enable users to prepare and present their
cases themselves. [23] We received the clearest possible indications
from what we saw and from the responses to the Consultation Document
that this aim was not being met, and that users were increasingly turning
to lawyers or others for help. Overall, that is a serious failure in
the system, which should be corrected urgently. It is imperative that
all tribunal users should have easy access to clear and timely information
suitable for their individual needs. We recommend the adoption of a
consistent, monitored, field-tested approach to producing and communicating
information throughout the Tribunals System to enable users to participate
effectively. [24]
4.4 The various
suggestions we make for developing a more user-friendly system will
all require some additional investment. Without that investment, we
can only see an increasing inability to meet users’ needs, and
an increasing need for legal advice if ECHR requirements are to be met.
[25]
The approach
4.5 Material prepared
by government decision-makers of all kinds, and by the tribunals, should
meet the following aims:
(a) Information
should be carefully graduated starting with a clear decision and reasons
and a simple explanation of what to do if dissatisfied. Further material
should be supplied in one or more instalments as deemed relevant or
if requested by the claimant. The contents of instalments of material
will probably increase in factual and legal difficulty. [26]
(b) Information
should be available in a range of media and formats. Although much
of it will have to be available in printed form, a graduated approach
probably lends itself most effectively to presentation by means of
IT and the Internet. [26]
(c) It should
take account of special needs, by making printed text available in
Braille and large text, and on tape. Where possible, translations
should be provided in the minority languages most commonly found.
Our Australian experience suggests that IT and the Internet are particularly
helpful here. [27]
(d) Material
should be carefully and professionally designed by experts, in order
to make it accessible to the widest possible audience. Wherever possible,
formats for information and standard decisions should be field-tested
by a valid sample of users, and the results of the tests expertly
analysed. [27]
(e) The
approach should be as consistent as possible throughout all tribunals,
and to a common standard, on which the Council on Tribunals should
be consulted. [28]
4.6 The object of the exercise will
be to reassure users about what it will be like to appear before a tribunal.
If there is an opportunity before the day of the hearing to view a video
of mock tribunal proceedings, that will often provide the most effective
way of explaining how it is to be conducted.
Information from
decision-makers
4.7 Decision-makers
in all areas of government, central and local, should always be striving
for clearer decisions, and better presentation of the material supporting
their submissions. The feasibility should be examined of specifying
in regulations, rules of procedure or codes of practice the particular
documents and other information in their possession which decision-makers
should be responsible for supplying to potential and actual appellants.
[29]
4.8 Basic information
should be provided initially on what the appellant’s statutory
entitlement is, what has been decided in the case, and for what reason
and whether or not there is a right of appeal, to which tribunal or
court, by what date and on what grounds. [30] Information should
also be provided by decision-makers about any process of internal review,
about whether they have power to review their own decisions, and about
other ways in which the same dispute might be resolved (not only seeking
Alternative Dispute Resolution (ADR), but the possibility of a complaint
to an ombudsman or claim for compensation for maladministration).
[31]
4.9 Ideally, decision-makers
should give a complete list of all the relevant material supporting
their decisions. [32] But it would be difficult, expensive, and
perhaps even impracticable to provide it all in traditional written
form. Initially, decision-makers should concentrate on improving the
quality of the notification of their decisions. But once well-designed
IT, including suitable websites, is in place, it should be possible
by that means to give a complete account of the relevant material. [33]
4.10 It is axiomatic
that Government departments must give decisions that are both clear
and comprehensible. That has a critical effect on how departments are
seen by users, how much confidence the users have in the decision and
how the users respond. The efforts of the Department of Social Security
to improve their performance and achieve clear, focussed and relevant
decision notifications, which resulted from direct ministerial interest
and responsibility, are particularly to be commended. This shows the
importance of ministers in other departments taking the lead in lifting
the quality and relevance both of decisions notified and of information
provided to users, a function we would encourage. [34]
4.11 Local government should determine
how best they can meet the requirements we have outlined.
Information from
tribunals
4.12 Users should
be given the information they will need on the following topics: [35]
Jurisdictional
issues
Jurisdiction
and remedies, and their limits. Possible alternatives to a tribunal
appeal, including reference to organisations providing ADR, whose
own procedures should direct to the Tribunals Service any cases relevant
to a tribunal that are wrongly sent to them. What appellants will
have to prove. What the relevant Government department or public authority
can be expected, or required, to provide. What sort of evidence is
needed, and how it should be presented.
Procedural
issues
Timetables
and pre-hearing procedures. The procedure at the hearing and what
to do if dissatisfied with the outcome of a hearing. What standard
of service to expect and what to do if it is not received.
Facilities
The place of
hearing, and how to get there and whether travel expenses will be
reimbursed. What facilities are available, such as library or photocopying
services or interpreter service, and how to get access to them.
Decisions
The nature
of the decision to be expected, and when it is likely to be given.
Any further rights of appeal, and the procedure for exercising them.
4.13 An integrated
tribunal administration creates scope for supplementing published material
with information personal to an enquirer. A tribunal telephone help-line
should be available, with e-mail back-up. [36] All tribunal offices
should aim to provide designated user service points. [37] Greater
emphasis on the pre-hearing stages of some cases may mean that face-to-face
support is required as well as communication by the telephone, IT, video
conferencing and so on. Personalised information should supplement more
general information provided by interactive computer programmes at the
tribunal’s premises as well as other premises easily accessible
to potential appellants, such as local authority premises and government
offices which are generally open to the public. [38]
4.14 The provision
of information that is clear and intelligible to users is of fundamental
importance. We recommend that responsibility for information and communication
be entrusted to a minister in the Lord Chancellor’s Department
(LCD). [39] We contemplate that the minister would be likely
to need the assistance of a design team, as well as of user groups (see
paragraphs 4.29 —
4.32) and the
Council on Tribunals. [40]
Independent help and
advice
Preparation
4.15 Tribunals can only give general
procedural advice. Many users will need additional support if they are
to participate fully in their cases. We are much impressed by the way
in which users are helped to prepare cases in ways that assist tribunals,
and weak cases are gently weeded out, by much of the expert (often non-lawyer)
advice we have seen. The Community Legal Service (CLS) is clearly intended
to make access to such support a reality in many areas. The Government’s
commitment to focussing advice on areas of greatest need is of course
to be welcomed. Social welfare and special educational needs are two
areas which deserve priority.
4.16 The time
limits for making an appeal vary considerably between tribunals. It
is important that appellants should be able to get timely advice. [41]
In relation to war pension appeals, for example, the provision of funding
to enable some users to travel to meet their representative prior to
the hearing would sometimes enable cases to be withdrawn from hearing
in consequence of advice then given. If withdrawal does not occur until
the day of hearing it is too late to fill the gap in the list, and the
tribunal’s and the other party’s time is to that extent wasted.
But if the withdrawal of a case is notified beforehand, another case
can be listed for hearing in its place. We are confident that this would
happen often enough to save at least the costs of travel.
4.17 It is important to keep tribunals
accessible and user-friendly, so that most users can understand the
process and prepare their cases themselves. But they may need appropriate
help at various stages. The main elements are likely to be:
(a) Legal
and factual advice on the merits of the case, and how to put it to
the tribunal, including advice on whether to proceed at all, or whether
to seek some alternative remedy.
(b) Expert
evidence required as part of a legal case, for example medical evidence
in social security disability benefit cases, or psychiatric assessments
in mental health.
(c) Expert
professional advice instead of legal assistance, such as from accountants
in tax cases, and from valuers or surveyors in property cases.
(d) Additional
support for those with particular requirements or disabilities, such
as foreign language interpreters and signers.
4.18 The current
CLS system provides money for advice and assistance, short of representation,
and known as "legal help". It includes legal advice on the
legal merits of the case, form-filling and the preparation of written
submissions. Legal help can be provided under the contract scheme administered
by the Legal Services Commission (LSC) by solicitors or advice agencies
who meet the quality standards. In theory, legal help should be available
for most tribunals. It is important to ensure that financial eligibility
testing is suitable for the Tribunals System [42] and, whilst
we do not at all suggest recipients of state benefits should have automatic
entitlement to public funding for tribunals, we do think that in assessing
income for the purpose of determining whether public funding should
be available, there should be consistency in the treatment of state
benefits and consistency in the treatment of tax credits across the
Tribunals System. [43] We note that the LCD has recently announced
changes to the CLS scheme which will bring a potential further five
million people into the scope of the current CLS legal help scheme;
this will be helpful. Investment at the preparation stage could bring
savings in money, time and tribunal resources. The CLS contract scheme
should be extended to key advice organisations. [44] User groups
and tribunal staff should therefore be consulted about which organisations
merit public funding. [45] But public funding is not the total
answer to ensuring that appellants are provided with the best advice
and help. It is important that advice services and experts who help
or represent appellants should have sufficient, up-to-date knowledge
in the legal and procedural requirements and the specific subject-matter.
4.19 We endorse the framework of
the CLS as capable of providing the mix of legal, specialist and general
advice which tribunal users will require. At this stage it is unclear
whether the framework would in fact include a sufficient range of sources,
with an adequate national spread to meet the needs of users. There may
be some areas, such as war pensions, where too few potential users meet
financial eligibility criteria to enable viable CLS contracts to be
developed, but where users and the tribunal would benefit if such support
were available.
4.20 In consultation
with the LCD and LSC, the Council on Tribunals — discussed more
extensively in Chapter Seven — has a role to play in seeing how
effectively the CLS meets the needs of tribunal users, and in helping
to identify areas where additional funding might be required. The LCD
should consider whether the CLS’s financial constraints should
be adjusted so that it can fulfil the requirements of tribunal work.
A small expansion of the time limits for non-means tested legal help
might, for example, be an effective way of providing initial advice.
Some general adjustment to the financial eligibility means-testing may
also be required. [46]
Representation
4.21 There has been evidence since
research carried out in the mid-1980s by Professor Hazel Genn,16
that under the current tribunal regime appellants benefit significantly
from representation. We are convinced, however, that representation
not only often adds unnecessarily to cost, formality and delay, but
it also works against the objective of making tribunals directly and
easily accessible to the full range of potential users. We accept that
that objective is challenging and will not always be achievable. But
measures in this report are designed to achieve it for most people in
most cases and, therefore, should radically reduce the need for representation
whilst meeting human rights requirements. A combination of good quality
information and advice, effective procedures and well conducted hearings,
and competent and well-trained tribunal members should go a very long
way to helping the vast majority of appellants to understand and put
their cases properly themselves. It is of fundamental importance to
regard a Tribunals System as participatory and to do all that can providently
be done to make it so and enable it to remain so.
4.22 Some appellants
will not be able to present their cases adequately themselves even with
our full recommendations in place, because the factual or legal complexity
of some cases make representation indispensable, and physical or mental
incapacities of some users make it difficult for them to represent themselves
adequately. Pro bono advice is not widely available, and cannot be general;
but it deserves every encouragement. [47] The need for representation
in particular cases accords with responses to our consultation. The
CLS system already recognises this where appeals have particularly serious
outcomes or are purely matters of law in a complex field, in tribunals
such as the Mental Health Review Tribunals (MHRT), Immigration Adjudicators,
the Immigration Appeals Tribunal, and the Employment Appeal Tribunal
(EAT). We recommend that the remit of the CLS should be extended to
include representation in more tribunals. But this should be done on
an exceptional basis by reference to specific cases, or classes of cases,
rather than to particular tribunals. [48]
4.23 To identify
cases in which representation should be provided and which merit public
funding, specific criteria should be developed to take account of tribunal
work. No public funding should be considered unless a case has a reasonable
prospect of success. The test of reasonableness should be included in
the LSC’s Funding Code, which is put before Parliament. [49]
Given that prospect of success, help with representation should
be provided where it is required because applicants’ personal circumstances
(such as inadequate knowledge of English, or mental or physical disability)
or the complexity of the case in fact or law, make it unreasonable to
expect them to present the case themselves. The overall aim should not
be to supplant the expectation that users will argue their own cases,
but to help those users who are subject to particular disadvantages
or difficulties to play a full part. State assistance should be directed
to helping users to understand their case and its merits; to take a
view about whether to proceed with an appeal; and if so, to find out
how to prepare for a hearing. [50]
4.24 The delivery
of public funding should be through existing mechanisms such as central
and local government grants to bodies which give advice, by means of
the current CLS system, which covers England and Wales, and by means
of the comparable schemes in Scotland and Northern Ireland. [51]
There are obvious advantages in using a ready-made system, because it
has a developing expertise, a greater likelihood of consistent application
across the country and before different tribunals, and a better control
of limited finance. It could be argued that the relevant tribunal itself
would be best placed to assess the features of the case. But it would
be invidious for the tribunal to have to determine cases in which it
had already concluded that one party had reasonable prospects of success,
and there would also be an unavoidable risk of inconsistency. The LSC
could consult tribunal Presidents about the types or aspects of cases
in their own jurisdiction which were likely to cause most difficulty,
or to merit state funding.
4.25 The LSC should
set tribunal-specific criteria, under direction by the Lord Chancellor
where appropriate, against which applications for public funding would
be tested. [52] It would be necessary to ensure that they, and
also the Public Interest Advisory Panel and the Funding Review Committee,
have expert as well as legal members capable of advising specifically
about funding for tribunals. [53] More importantly, it would
be necessary for the Lord Chancellor to issue directions to bring tribunals
within the scope of the CLS, and to set the relevant criteria.
4.26 To further
this approach, we recommend pilot studies in specific tribunals. [54]
By way of example, the written procedure of the Social Security Commissioners
may make theirs a suitable jurisdiction in which to explore the provision
of help in the preparation of cases.
4.27 The Lord Chancellor is also
responsible for the public funding scheme in Northern Ireland. We suggest
that he should consider our recommendations in relation to that scheme
and that Scottish Ministers may wish to do so insofar as they have relevance
to the scheme in Scotland.
4.28 Two of the most comprehensive
and helpful responses to our Consultation Paper came from the Bar Council
and the Law Society. Not surprisingly they advocated the provision of
more legal advice and representation for tribunal users. Unfortunately
for the lawyers, as the title of this report declares, its focus has
been upon enabling users to prepare and present their own cases without
legal advice or representation. This approach has therefore prevented
us from paying to the responses that regard which their quality deserved.
User groups
4.29 We consulted
a range of organisations that give advice to and represent individuals
and organisations. There is a large network of national and locally
based advice and support groups who have a valuable role to play in
any Tribunals System. Respondents to our consultation expressed the
view that there should be a clear demarcation between the help and advice
given by tribunal staff, which should be confined to explaining tribunal
procedures and requirements, and that given by advisers and representatives,
who should advise on the merits of the case and its presentation. The
user group representatives who attended one of our seminars stressed
the importance of individual case-specific advice coming from good and
suitably qualified legal or, where appropriate, expert advisers. They
acknowledged that independent advisers should be more robust in giving
advice about weak cases.
4.30 There was
support for formalised ongoing consultation with the various groups
that advise and represent those who use tribunals. We were told that
there is a large national forum of user groups with an interest in the
activities of the Appeals Service, which periodically meets them to
advise them of new and proposed developments. It was suggested that
there should be more such forums and that they should be constituted
and managed in a way which would facilitate exchanges of information
and ideas across the groups and between the groups and the tribunals.
We support the idea of user groups. It would be a useful mechanism to
identify practical problems, to get feedback on the users’ perspective,
to test out drafts of new documentation and to act as a quality feedback
mechanism. The group structure should meet two needs — to provide
a forum for discussion on particular matters in specific tribunals or
Divisions and to enable those running the Tribunals System to discuss
with user representatives issues relevant to the System as a whole.
[55] Those running the Tribunals System should have the benefit
of a strategic view across all tribunals in order to share best practice
and help achieve consistency and cross-fertilisation of ideas for improvements.
4.31 There may be merit in having
groups which include representatives of tribunal members, tribunal administrators,
the key professions involved with tribunal work, and organisations representing
claimants and complainants. It is important, however, that people who
attend such gatherings have experience of the specific tribunals under
discussion, whilst at the same time having the knowledge to be able
to represent, and the authority to speak on behalf of, their organisation.
User group forums of this sort will be really effective only if there
is a commitment on both sides to an open dialogue and a willingness
to listen to and learn from each other. We attended a meeting of the
Appeals Service National Users’ Forum, and were struck by the lack
of feedback for the Chief Executive and President. The forum only seemed
to enable the Appeals Service to give out information.
4.32 It would
be necessary to have clear terms of reference in order to avoid discussion
of matters outside the responsibilities of the tribunal, such as po..licy,
and to ensure that all types of users were represented by such a forum.
Careful consideration should be given to how such consultation would
be managed. For example, it may be practical to set up a group for each
of the new Divisions we propose in Chapter Six in order to focus discussion
or it may be thought necessary to have a group that operates across
the whole System. We recommend that our proposed Tribunals Board should
take the idea of user groups forward. [56]
Employment advisers
4.33 As we note
in Part II, during our visit to the Employment Tribunal (ET), and in
responses received to our consultation document, concern was expressed
about vulnerable users being badly served by employment advisers. At
present, users are offered little protection from unscrupulous advisers.
They have no benchmark against which to measure their performance; as
likely "one-off" users, they would have no previous experience
against which to compare the service provided; they might not be aware
of other sources of advice and so not "shop around" for the
best service; and the user has no source of redress in the event of
dissatisfaction with the service received. A further and serious concern
is that such advisers charge on a contingency basis (ie a fixed percentage
of any award received).
4.34 We note that the concerns are
not new. In 1999, the LCD established a Committee, under the chairmanship
of Brian Blackwell CBE, to investigate the activities of non-legally
qualified employment advisers acting for reward. Concerns expressed
about such advisers by a number of those involved in ETs centred on
the quality of advice and service offered, and the level of fees charged.
4.35 The Committee considered the
model of statutory regulation introduced for immigration advisers by
the Immigration and Asylum Act 1999, under which it will become unlawful
for any person to provide United Kingdom immigration advice, unless
registered to do so. Members of a designated professional body or European
equivalent are exempt under the terms of the scheme. The Immigration
Services Commissioner was appointed on 22 May 2000 and the expectation
is that he will have a staff of between 50 and 60 to support him. The
budget for this regulatory body is anticipated to be in excess of £1
million per annum. This will be met by a grant from the Home Office
until such time as the Commissioner believes that the scheme has become
self-financing. However, there is little expectation this will happen
in the foreseeable future, due to the high proportion of advisers exempted
under the scheme. Registration fees range between £1800 per annum for
a sole practitioner, to £6000 for a firm employing 20 or more advisers.
4.36 The Blackwell Committee was
unable to ascertain a sufficient constituency of employment advisers
to suggest that any regulatory body would ever be capable of being self-financing.
The taxpayer would therefore have to contribute the bulk of the budget
which it was considered would be unattractive to the Government. The
Committee also questioned whether the public interest would necessarily
be served if employment advisers were driven out of business by high
registration fees. They offered an alternative to those who were not
members of a union; who were unable to access voluntary agencies; and
to whom, for a variety of reasons, solicitors were unattractive.
4.37 In February
2000, therefore, the Committee recommended17
instead a range of measures, including encouraging trade unions to offer
their services more proactively and to draw up and promulgate a code
of practice for employment advisers, for which the endorsement of the
Employment Tribunals Service (ETS) should be sought. Additionally, the
chairmen of tribunals should be consulted to consider "naming and
shaming" employment advisers who mishandled their clients’
cases; and the charging regimes available to clients in employment disputes
should be publicised widely.
4.38 None of the recommendations
has been implemented. The Trades Union Congress is in discussion with
its member unions about how the first two points might be taken forward:
the ETS is understood to be willing to consider any proposals suggested.
Department of Trade and Industry officials have consulted the President
of the Employment Tribunal on the proposal to "name and shame"
employment advisers, which raised questions about how such a scheme
might work in practice, given the lack of a regulatory body for such
advisers. There are no plans, at present, to publicise charging regimes:
difficulties have been envisaged as to enforcement.
4.39 Given that
concerns similar to those which gave rise to the Blackwell Committee
being established remain, we are uneasy that no apparent action has
been taken to curb employment advisers’ activities. We would urge
the Government to reconsider this issue and suggest that the time might
now be appropriate for stringent action to be taken to protect the vulnerable.
[57]
Costs and conditional
fees
4.40 Since Franks
the general rule has been that tribunals should not normally have the
power to award the costs of representation. There are exceptions, such
as in employment and tax tribunals. Some who responded to our consultation
were not in favour of tribunals having general powers to award costs;
it could be a significant deterrent to some appellants pursuing what
appears to be an arguable case. Some respondents thought it was appropriate
for tribunals to have such power in cases where the tribunal process
was abused or where one party behaved unreasonably to such an extent
that additional expense was incurred for the other party, including
the state. Others contended that tribunals should have power to award
costs. There was an argument that, where representation was the norm,
appellants who succeed in their actions against the state should not
have to bear their own costs. No evidence was presented to suggest that
the state would seek costs orders. On the arguments put before us we
are not persuaded that further extension to tribunals’ costs powers
is necessary. [58]
4.41 In the particular case of (ETs)
there was significant argument over the extent to which costs should
follow the event, particularly as a deterrent to an increasing volume
of cases perceived as frivolous or vexatious. This was also seen as
an issue in SENT. The DTI intends lifting the ceiling on costs which
the Tribunals can currently award and has introduced other measures
designed to weed out mischievous, misconceived or non-meritorious cases.
As our note on ETs records, we suggest that this issue merits further
investigation.
4.42 Costs following
the event significantly assists the use of conditional fees. Responses
to our consultation did not see conditional fees as being appropriate
where eligibility for monetary benefits is at issue in citizen and state
cases (such as in the Appeals Service tribunals and the Pensions Appeal
Tribunal) and in disputes between parties such as where levels of rent
and service charges are being challenged. We agree. We see no merit
in widening the scope and application of conditional fees generally.
[59]
4.43 The position in ETs is distinctive.
Cases before ETs are not included within the definition of "contentious
business" to be found in Section 87 of the Solicitors Act 1987,
although they are directly comparable to other forms of contentious
business. As a result, contingency fees (which offer no protection against
the proportion of awards which might be absorbed by "no win, no
fee" agreements) are not prohibited, although they are in contentious
business before the courts. This appears to be an anomaly. Conversely,
since ET disputes are therefore non-contentious, it has been suggested
to us that conditional fee agreements can be formed, although there
is little sign of them being used. We wish to see the ETs, like all
other tribunals, working in a way that enables users to conduct cases
without legal advice or representation. It is, however, clear that lawyers
are used in a increasing proportion of ET cases, and we would wish to
see the most effective ways of securing and paying for them available
to users in this important area. In the courts, after-the-event litigation
insurance and other funding products have been designed to work in litigation
where costs are recoverable, and the absence or limitation of costs
may hinder or stultify the market in extending those products to ETs.
4.44 The limit
on costs in ETs has recently been significantly increased. That provides
an opportunity to study how the availability of costs is affecting the
conduct of cases, and in paragraph 23 of our note on the ETs and EAT,
we recommend research. That should include investigating the extent
to which conditional and contingency fees are being used, and how far
either assist access to the tribunal. In principle, we consider that
contingency fees should be prohibited, or allowed, if found to be beneficial
to users when properly regulated, in the same ways as in other contentious
business. [60]
Clerks
4.45 The clerk makes a vital contribution
to tribunal work. It is the clerk who welcomes appellants and claimants
to the tribunal, shows them such facilities as may be available, and
gives an outline of the likely procedure that will be adopted by the
chairman. In some tribunal systems, where chairmen are not legally qualified,
the clerk may also have an advisory role, similar to the role played
by the justices’ clerk. A good clerk sets the tone for the effective
running of the tribunal, and for delivering the level of service to
the user that we envisage for the Tribunals System.
4.46 While we
saw many examples of excellent practice, we are also aware that some
tribunals have sought to make financial savings by reducing the availability
of clerks. The MHRT has suffered worst in this respect, but we have
heard, for example, of tribunal members in other tribunals having to
usher the parties into the hearing and look after them in other ways.
This is not acceptable practice. Clerks are not an optional extra. Steps
should be taken to ensure that tribunals have good quality clerking
available. [61] The chairmen and members of tribunals have a
hard enough task to do. They should not also be required to look after
those who are going to appear before them. Nor is it appropriate for
a tribunal member or chairman to talk informally to parties in the waiting
room, as clerks often do, because this could easily compromise, or be
thought to compromise, the impartiality of the tribunal.
16 Genn, H and Genn, Y, (1989), The
Effectiveness of Representation at Tribunals, LCD
17 The investigation of non-legally qualified claims
assessors and employment advisers who act for reward: a report by the
Blackwell Committee: February 2000: LCD
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