Jun 19 2009

Does legal representation in tribunals make a difference?

Two recent studies suggest that the answer largely depends on the tribunal.

In one, ‘Tribunals Ain’t What They Used To Be‘, which is summarised in the March 2009 edition of the newsletter of the Administrative Justice & Tribunals Council, Professor Michael Adler of Edinburgh University looked at five tribunals. These were the Criminal Injuries Compensation Appeal Panel; the Social Security and Child Support Tribunal; the Additional Support Needs Tribunal (Scotland); Special Educational Needs and Disability Tribunals (England); and the Employment Tribunal. As he comments, “research and ‘experience’ seemed to have made it clear that having a representative (although not necessarily a legal representative) greatly increased the prospects of a successful tribunal outcome… across the board, the ‘premiums’ associated with representation were 15-18 per cent.” 1 He found, however, that while success rates for citizens (in the first four tribunals) and employees had increased substantially, the percentage increase in success rates from legal representation had dropped; there seemed to be several reasons for this, but the key was greater intervention by tribunal members; an inquisitorial rather than adversarial approach. Better tribunals result in less need for legal representation.

As he pointed out, however, these findings would not apply to every tribunal. I asked him what he thought about the removal of legal aid for Scots appellants before the Upper Tribunal. He commented

“I… regard this as a most retrogressive step. Since the Upper Tribunal only hears cases involving issues of law and since it has been given the power to hear cases of judicial review, there would appear to be an overwhelming case for legal aid being available to those who qualify for it. My own research was concerned with first-instance appeals in four/five tribunal jurisdictions and although I have argued that the ‘active, enabling and interventionist’ approach of these tribunals is now making it possible for appellants/applicants to present their own cases without being represented, these findings emphatically do not apply to the Upper Tribunal.”

A second recently-published study confirms that even in some first-instance tribunals which are concerned primarily with issues of fact the representation premium remains very high.

Citizens’ Advice looked at the Asylum Support Tribunal, where the majority of appellants are unrepresented. They found that whereas only 38.6% of appellants with no legal representation or pre-legal advice were successful in their appeals, the success rate for those who were legally represented at the hearing rose to 71.3%. These findings were independently confirmed by the Tribunal itself, which produced statistics showing that the difference was 31% to 70%. To put it another way, of all unsuccessful unrepresented appellants, the majority would have won if they had only had legal representation.

As a recent commentary argues, “it is time to make the Asylum Support Tribunal a genuinely fair as well as efficient tribunal”. However much it improves, it will still in all probability be one of the tribunals in which legal aid is required if appellants are to receive a fair hearing. The Additional Support Needs Tribunal for Scotland is not; although Consumer Focus, an organisation which sometimes seems to be driven by pure ideology rather than practical needs, recently claimed to Parliament that there was a lack of ‘equality of arms’ there between local authorities with legal representation and parents without it, Michael Adler’s statistical analysis seems to show there is equality of arms in the ASNT anyway; its representation premium was zero.2

  1. Thus, Hazel Genn’s landmark study of representation in tribunals, ‘The Effectiveness of Representation in Tribunals’, 1989, indicated that representation had a substantial impact on tribunal outcomes. Representation increased the chances of success from 30 per cent to 48 per cent in Social Security Appeal Tribunals, from 20 per cent to 38 per cent in Immigration Hearings, forerunners of the Asylum and Immigration Tribunal (AIT), from 20 per cent to 35 per cent in Mental Health Review Tribunals and from 30 per cent to 48 per cent in Industrial Tribunals.” [back]
  2. Although it does publish a helpful guide to legal representatives entitled ‘Meeting Tribunal Expectations‘, it may be that this is in the event more assistance to unrepresented parents than to lawyers. [back]
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