Report on administrative justice calls for widening of legal aid means test, introduction of Public Services Ombudsman for England

The report also called for the Government’s proposed plans in 2023 to widen legal aid eligibility in the Legal Aid means test to be implemented urgently.

The AJC report explored the barriers faced by individuals who experience “disadvantage” in the administrative justice system (AJS) due to personal circumstances, characteristics or systemic factors.

It identified key challenges faced by users and outlined 11 recommendations for the role that government, educators, ombudsman schemes, legal advice providers and other stakeholders can play in strengthening the AJS.

Beginning with a discussion of initial decision-making, the AJC noted that receiving an incorrect, or potentially incorrect, initial decision from a government department or local authority is the first point where an individual will make contact with the administrative justice system, if they are considering challenging the decision.

It said: “The AJS is, by its nature complex, and whilst measures can be taken to mitigate the difficulty navigating the process, the most impactful measure that can be taken is to reduce the overall number of disputes reaching the AJS through improved initial decision-making.”

The report observed that the first barriers to understanding the administrative justice system are a “lack of legal awareness and legal knowledge”.

It warned that many individuals “do not recognise their problems as legal in nature, are unaware of their rights, do not know that redress is possible and do not know where to start”.

Meanwhile, once an individual has identified their problem is legal, accessing legal advice to take steps to resolve it can be “challenging”.

The AJC observed: “Legal aid deserts, fragmented services, digital exclusion and limited capacity in the advice sector contribute to unmet legal need.”

In the report, the working group recognises the importance of legal aid to assist users to make an appeal to the tribunal, and recommends the implementation of the Government’s plans in 2023 to widen eligibility in the legal aid means test to allow more people to access legal aid.

It warns: “The decline of legal aid providers had led to advice deserts and recruitment and retention issues in the sector. Funding is also essential for the advice sector to support individuals unable to access digital information and digital services.”

Lastly, the working group observed that all staff working on the frontline of the AJS are facing “increased pressures, rising caseloads, complex needs, precarious funding and emotionally challenging topics”.

It warned: “These challenges effect the individual wellbeing of each member of staff but also have a wider effect on the quality and availability of the services they provide.”

The AJC made the following 11 recommendations for strengthening the administrative justice system:

1. Stakeholders should collaborate to design and create effective feedback tools so that initial decision makers can be better informed about the consequences of their incorrect decisions and subsequent cost to claimants and other public services.
2. Public legal education should be encouraged through both public and private sector efforts through education and at a community level.
3. Funding, investment and collaboration between public bodies to enable services to deliver integrated and end-to-end support and to ensure that signposting to advice organisations takes account of their limited capacity.
4. Addressing existing complexity and inefficiency in the network of ombudsman schemes through the creation of a national Public Services Ombudsman for England who can drive systemic improvements to public services and help to restore public trust and the belief that failures will be put right.
5. Legal advice services should be embedded in community settings, with an emphasis on local advice provision.
6. In pursuit of the overarching objective in Tribunal Procedure Rules to deal with cases justly, the parties should collaborate to minimise delay and make it more likely that a case can be fully prepared by the first hearing, which can then be effective.
7. Communication by HMCTS and ombudsman schemes should be improved to increase users understanding of the dispute resolution.
8. The burden on appellants to request and justify reasonable adjustments should be reduced.
9. The MoJ should increase funding and service provision for the advice sector to support individuals unable to access digital information and digital services.
10. Government’s proposed plans in 2023 to widen legal aid eligibility in the Legal Aid means test should be implemented urgently.
11. Wellbeing should be an intrinsic element of organisational practice across the administrative justice system. Existing local and central Government funding structures should embed wellbeing assessment into the provision of grants and funding criteria.

Lord Justice Dingemans, the Senior President of Tribunals and Chair of the Administrative Justice Council said: “This report highlights the ongoing challenges within the administrative justice system and offers practical solutions to address them. The system is vast and complex, with hundreds of thousands of people relying on it each year to resolve disputes – from social security decisions to special educational needs provision. The barriers identified underscore the need for organisations across the system to work together to ensure it is truly effective. Improving public understanding of how, where, and when to seek redress, and ensuring resources are in place to assist them, is fundamental to upholding the Rule of Law.” 

Lottie Winson