affiliated to the International Association of Constitutional Law
Every year, government takes millions of decisions on matters such as individuals’ entitlement to social security, their immigration status, and tax liability. Often, people can challenge negative decisions to a tribunal or lodge a complaint. This is the wide and variegated field known as administrative justice, that area of the legal system which most engages people, but which is often overlooked (there are more hearings before administrative tribunals than double the combined number of civil and criminal justice hearings/trials). Hence the establishment of the UK Administrative Justice Institute.
For many years, there have been significant and pervasive concerns about the quality of initial administrative decisions. Poor initial decision-making means unnecessary appeals and challenges, increased costs and time, and stress for the individuals involved. The “right first time” agenda has been advanced as a solution to this problem. The argument goes as follows. If government could make better initial decisions, then this would reduce the volume of appeals, reduce costs, and be less stressful for individuals who. In this blog, I explore the issue of the quality of administrative decision-making and suggest some possible solutions. My argument, developed in more detail in a forthcoming paper, is that government departments need to engage better organisational learning in order to raise decision-making standards.
The standard of administrative decision-making
People often have to engage with government as part of their day to day life. If someone wants a benefit, or an immigration status, to know what amount of tax they need to pay, temporary accommodation because of homelessness, or which school her child will attend, then dealing with a government agency is inevitable. What is the quality of the decisions produced by government departments and other agencies? It is impossible to know for certain because of the lack of system-wide data, but consider the follow. According to the Ministry of Justice’s tribunal statistics, in 2013-14, some 308,033 appeals against the refusal of Employment and Support Allowance by the Department for Work and Pensions were decided by the First-tier Tribunal (Social Entitlement Chamber) of which 44 per cent were allowed. The appeals cost £69.9 million. The appeals took an average of 25 weeks – nearly half a year – to be heard and decided. In the same year, the First-tier Tribunal (Immigration and Asylum Chamber) determined 67,449 immigration appeals of which 44 per cent were allowed. The average time to determine an immigration appeal was 28 weeks. In special educational needs cases, some 84 per cent of appeals are allowed (albeit that many appeals are conceded or withdrawn before they proceed to a tribunal). These success rates raise questions about the quality of initial decisions.
Such statistics can be supplemented by other evidence. In both the social security and immigration contexts, official reports have commented that the overall quality of decision-making leaves considerable room for improvement. In 2012, the Commons Public Administration Select Committee noted that government should aim to produce decisions which are right first time and command a high degree of confidence: “The scale of the injustice and the cost to the taxpayer caused by poor decision-making are wholly unacceptable.”
Bear in mind that tribunals only ever see those decisions where the individuals concerned appeal. But many people do not appeal for a number of reasons unrelated to the quality of the initial decision. They may lack self-confidence or be unable to access advice. What is the quality of all those initial decisions that are not challenged? It is impossible to know for certain, but there is reason to suppose that the quality of unappealed decisions is of variable quality.
It is important not to assume a simple correlation between appeals and initial decisions whereby the proportion of successful appeal is a clear indicator of the quality of initial decisions. Appeals can be allowed because new evidence is available, or because the tribunal takes a different view of the same evidence. Nonetheless, the standard of decision-making is often inadequate and could be improved. For instance, if appeals are regularly being allowed because new evidence is being supplied on appeal, then shouldn’t the department review its decision-making procedures to find out how such evidence could be captured through the administrative process rather than on appeal? The same point applies if a department and a tribunal are adopting significant differences of approach in how they handle particular appeals – for instance, if the Home Office is regularly refusing asylum claims lodged by nationals from a particular country and the First-tier Tribunal is allowing them. In such circumstances, the department should seek to learn from the tribunal – or, at the very minimum, exchange views with the tribunal to uncover which factors are driving the differential approaches.
Poor decision-making arises for a variety of different reasons, such as the skills and training of initial decision-makers and the environment in which they work. Decision-makers may be under pressure to make decisions quickly or lack proper guidance. Sometimes, the ‘culture’ of decision-making may exert a negative influence. For instance, it has long been argued that immigration decision-making is informed by a culture of disbelief. Resorting to appeal systems to correct poor initial decisions is costly, inefficient, and a source of stress and hardship for claimants. How can government do better?
To improve the quality of public institutions and their decision making, government agencies need to become learning organisations that seek to improve their performance by learning from their mistakes. Organisational learning is an area of knowledge within the field of organisation theory that studies models and theories about the way an organisation learns and adapts. In the public sector context, organisational learning has been defined as “the ability of an organisation to demonstrate that it can learn collectively by applying new knowledge to the policy process or innovation in policy implementation” (R. Common, “Organisational Learning in a Political Environment” (2004) 25 Policy Studies 35, 37).
Organisational learning occurs when individuals within an organisation experience a mismatch between intended and actual results and inquire into it on the organisation’s behalf. This inquiry seeks to uncover the reasons for the disparity and ways of restructuring activities and behaviours so as to reduce the risk of such a mismatch re-occurring. To become organisational, the learning and understanding that results from the inquiry should become be taken up not just by isolated individuals within an organisation; rather, it needs to become embedded within the organisation’s cultures and routines. Organisations learn when they identify appropriate lessons from history which are then encoded into routines that guide future behaviour.
Government agencies that engage in organisational learning would start from the position that they would seek to produce good, robust, and well-reasoned decisions. It is dubious to suppose that any government department could ever produce excellent decisions all of the time. The next option is for departments to engage in organisational learning. Departments could do this by collecting information on their decisions, interpreting its relevance, drawing out appropriate lessons, and then embedding those lessons within their memory and processes. Departments could positively seek out feedback on their decisions with a view to enhancing decision quality. An allowed appeal would be seen not as a defeat, but as a learning opportunity. As James Joyce once noted, “Mistakes are the portals of discovery“.
How can the standard of decision-making be improved?
The challenge facing departments is precisely how to engage in organisational learning in order to improve their decision-making. Departments are often poor at organisational learning, especially those engaged in mass-transaction processing. Consider, for instance, the problems over recent years that have affected the Department for Work and Pensions, HM Revenue and Customs, and UK Visas and Immigration.
The prevalent impression is that departments accord a low priority to decision-making and to organisational learning. They normally focus upon processing the entire volume of incoming decisions rather than producing good robust decisions in each case first time. Once a decision has been made, it is no longer the agency’s concern. Tribunals are seen as a safety-net for correcting poor decisions – or, at worst, an interference. There is also the question of incentives for individuals inside departments. For instance, in January 2014, it was reported that Home Office presenting officers had been set a target of winning 70 per cent of asylum appeals and were rewarded with gift vouchers – hardly conducive to ensuring good decisions.
There are, though, a number of way in which departments can engage in organisational learning to enhance the quality of initial decision-making and which are outlined here. First, if tribunals are allowing appeals because additional evidence is only being considered for the first time on appeal, then departments could seek to ensure that such information is collected during the initial processing stage. Departments could review decisions before they are sent out to ensure that the reasons given are adequate and they can introduce reconsideration systems which enable the claimant to present further relevant evidence. They could also introduce quality assurance mechanisms whereby senior caseworkers review a sample of decisions to ensure they are robust. It should go without saying that the operation of such processes should be transparent.
Second, departments could draw upon the large amount of information that already exists on their decision-making contained in tribunal decisions. Most of the time, when a tribunal decides an appeal, the decision will simply be inserted into the case file and that will be it. A tribunal decision will usually only be examined if the department is thinking about an onward appeal. Yet, this is to overlook an important source of feedback. As the Independent Inspector of Immigration has noted, “appeal determinations provide an essential source of feedback for decision-makers, which is likely to result in improved decision quality”.
Previous efforts by tribunals to report on the standard of initial decision-making have often been unsuccessful. Between 1998 and 2008, the President of social security appeal tribunals produced an annual report on the standards of decision-making. The Tribunal President, Judge Robert Martin told the Commons Work and Pensions Committee in 2010 that he believed no one within DWP had listened to the conclusions and recommendations detailed in his annual report.
However, the importance of tribunal feedback is increasingly recognised. In 2013, the Home Affairs Committee noted that the substandard quality of asylum decision making is compounded by the inability of case workers to learn from their mistakes. The Independent Chief Inspector Immigration recommended in 2009 that the Home Office analyse the reasons why it was losing appeals in order to improve the standard of decision-making, but that recommendation had not been fully implemented. Recognising that not all successful appeals are the result of poor decision making or administrative failure, the Committee recommended that decision-makers should view every successful appeal as a learning opportunity. When an appeal is upheld, the decision-maker should, as a matter of course, have this drawn to their attention and be given the chance to discuss the reasons for the appellate decision with a more experienced peer or senior colleague.
The Ministry of Justice is also giving greater focus on improving initial decision-making as part of its strategy on administrative justice. The most significant and developed feedback scheme to be introduced has been the summary reasons project in social security appeals. Since 2013, the Department for Work and Pensions has been working with HM Courts and Tribunals Service to improve feedback from the tribunal. The Tribunal has produced summary reasons in a number of allowed appeals. A sample of summary reasons was then been analysed by the Department. According to the Department, the project has demonstrated the value of collecting and analysing tribunal feedback, which has resulted in training for decision-makers, reviewing the guidance for decision-makers, looking to identify trends, and pulling out useful case studies. In July 2014, Work and Pensions Committee welcomed more extensive feedback from appeals through the provision of summary reasons by tribunal judges, but noted that the feedback must be used effectively by the Department to improve the initial decision-making process.
There are other mechanisms available. Presenting officers from departments can provide feedback to initial decision-makers – though a recurrent source of concern has been the declining levels of attendance at appeal hearings by presenting officers. Tribunals can produce guidance decisions on how problematic and complex factual, procedural and legal issues should be handled. They can also engage in dialogue with departments. The Senior President of Tribunals can also raise matters of concern in his annual report on tribunals.
Another mooted solution has been to introduce a polluter pays principles, that is, to have financial incentives for departments to produce better decisions by requiring departments to contribute to the cost of appeals by reference to the proportion of successful appeals. This idea has been widely raised discussed as an incentive to induce departments to produce better decisions – the Government does not appear to be keen upon it – but it could have a role to play.
The standard of initial decisions is variable, but government can improve by engaging in organisational learning. This requires departments consciously to assume responsibility to understand the causes of poor decisions, and to seek to improve. They should seek to identify appropriate lessons from both failures and successes and expand their capacity to learn from the past to improve for the future. In particular, tribunal decisions contain much useful data on the quality of decision-making and on the nature of decision-making. Departments should collect and analyse such feedback and enter into dialogue with tribunals and other bodies. Some have made initial efforts to learn from tribunals, but much more could be done. Only if departments are able to improve the quality of their own learning, will we then start to see better quality initial decisions.
Robert Thomas is at the School of Law, University of Manchester.
This blog draws upon a forthcoming paper in Public Law, available here.
Suggested citation: R. Thomas, ‘Administrative Justice, Better Decisions, and Organisational Learning’ UK Const. L. Blog (9th September 2014) (available at http://ukconstitutionallaw.org)