1. PUTTING IT RIGHT – THE AJTC’S STRATEGIC APPROACH TO DISPUTE RESOLUTION
Brian Thompson

2. Outline The AJTC Proportionate & appropriate dispute resolution
Four stages
Matching the forum to the fuss
Law Commission Housing: Proportionate
Dispute Resolution (Law Com 309) (2008)

3. AJTC Administrative Justice & Tribunals Council
Leggatt proposed as ‘hub of the wheel’
Holistic approach with user focus
Keep the administrative justice system under review, constitution & working of tribunals
Advise on keeping system accessible, efficient and fair, proposals for change & research

4. Approach Putting It Right – A Strategic Approach to Resolving
Administrative Disputes (2012)
Develops PDR (proportionate dispute resolution)
outlined in Transforming Public Services:
Complaints Redress and Tribunals (2004)
Proportionate & Appropriate
Holistic, end to end and covers the separate redress
routes of complaints & tribunal appeals

5. Dispute cycle Reducing the escalation of disputes
Prevention of disputes
Reducing the escalation of disputes
Resolution of disputes
Learning from disputes

6. Prevention Simplify complex laws Provide clear guidance for users
Provide independent advice to users, queries &
comments
Embed ‘right first time’ culture
Develop strategic intervention

7. Reduce escalation Better explanation of decisions
Opportunities of questioning decisions
Internal reviews or reconsiderations

8. Resolve Variety of techniques can be matched to disputes
Third party review Mediation
Early Neutral Evaluation Ombudsmen
Dispute resolution without a hearing
Tribunals
Courts

9. Fitting the Forum to the Fuss
General Principles
Mapping Factors favouring:
Traditional hearing
Early Neutral Evaluation
Mediation
Third Party Review
Hearings are not the norm

10. General Principles (a)
The over-arching objectives should be to resolve (or limit) the issues in dispute, to be accessible, to use resources efficiently, to resolve cases as early as possible, to produce outcomes that are lawful and effective and to enhance the satisfaction of the parties.
Any dispute is potentially suitable for disposal without a formal hearing

11. General Principles (b)
All schemes within the Administrative Justice system should adopt an inquisitorial approach, but the trend should increasingly be towards fact- finding by trained administrative staff, not judicial figures, using telephone and/or electronic communication.

12. General Principles (c)
A Triage system should be used within each scheme to identify the issues in dispute and other relevant circumstances and to decide which route should be pursued. Triage should normally be undertaken by suitably trained administrative staff

13. Matching Factors Capacity of the parties to participate effectively
Whether and how the parties are represented
Context of the case, including the history of past disputes
Any identified need for urgency
Nature, importance and complexity of the issues in dispute
The likelihood of an agreed outcome
Cost to the parties and to the taxpayer

14. Traditional Hearing
Fundamental rights cases, such as asylum and mental health review adjudications where the liberty, life or safety of individuals may be at stake.
Cases where there are allegations of fraud etc or where the credibility of an individual is directly at stake.
Cases, especially those turning on medical considerations, where the presence of the individual is essential.
Cases (e.g. many employment disputes) where there are allegations or counter-allegations about conduct.

15. Early Neutral Evaluation
Identification of a legal and/or factual issue that is decisive
Agreement about the nature and impact of the issue
Willingness to have the case, or an identified issue, evaluated
Most investigations and gathering of evidence has been completed
Convenience of evaluating on the papers without the need for parties to be present

16. Mediation
There will be an on-going relationship and future disputes could be limited by an exploration of the issues or explanation of the system
An apology, concession or explanation could assist resolution
Flexible options need to be explored
The matter is complex or likely to be lengthy
The matter involves more than two parties
Legitimate desire of parties to keep the dispute confidential

17. Third Party Review
The public body is committed to creating and resourcing a genuinely independent third party review mechanism - whether to save money or to improve its own service
There is clarity about the scheme’s scope, powers and relationships with other relevant institutions
Use of the scheme does not involve unjustified delay or prejudice to the individual’s rights

18. Hearings are not the Norm
Dispute is essentially concerned with service delivery or maladministration
The dispute is about the quantum of a financial claim
The dispute is about entitlement to a financial claim, but the issues do not need to be determined with the physical presence of the parties
Outstanding findings of facts can readily be made by written, telephone and/or electronic exchanges
The dispute does not affect livelihood or reputation or is otherwise objectively of low priority
The applicant requests such a route

19. Learn Seek out insight and act upon it
Included in all complaints handling best practice
for service providers and ombudsmen
Feedback from tribunals

20. Law Commission (1)
Triage plus should be adopted as the basic organising principle for those providing advice and assistance with housing problems and disputes.
Other means of resolving disputes, outside of formal adjudication, should be more actively encouraged and promoted.
There should be some re-balancing of the jurisdictions as between the courts and the First-tier and Upper Tribunals in the new Tribunals Service, combined with modernisation of procedural rules which effect the ability of the courts to act as efficiently as possible.

21. Law Commission (2) Triage plus for Housing Advisors consists of
Signposting – initial diagnosis and referral
Intelligence gathering and insight
Feedback
Greater use of ombudsmen and redress methods such as mediation
Rebalance housing jurisdiction between courts and specialist tribunal.