COVID-19: the road for administrative justice

The coronavirus outbreak in March 2020 led to the locking down of the UK, as a result of which the country will be subject to restrictions of varying intensity which are likely to persist for a considerable time to come. The effects are, and will be, widespread, extending far beyond the severe restriction of freedom of travel and association along with closure of shops, offices, bars restaurants etc which were imposed in March. 

Beyond all of these immediate and continuing effects, COVID-19 has altered the relationship between the state and the citizen in ways and to extents which will only become clear after we have emerged from the crisis. As the National Audit Office writes in its recent report, Overview of the UK Government’s response to the COVID-19 pandemic – Report by the Comptroller and Auditor General (20 May 2020): “Significant outbreaks of disease are among the greatest risks faced by any society, threatening lives and causing extensive disruption to public services and the economy. The scale and nature of the current COVID-19 emergency and Government’s response is unprecedented in recent history.”

As you read on in the report, you realise the scale of the intervention by Government. “The report covers the Government’s response up to 4 May 2020. It also includes any significant additional commitments (defined as those over £0.5 billion) the Government announced between 4 and 15 May, giving a total of £124.3 billion… [covering] grants and other payments (£111.3 billion); expected costs of loans (£5.0 billion) and increases to benefits (£8.0 billion).” The Overview is the first in what will be a series of NAO reports, and much more detail will emerge over time.

System capacity

It is clear that the pandemic has had a serious effect on the whole Scottish justice system, and it is probable that there will be a prolonged impact on the administrative justice sector in Scotland in a number of different ways.

As Sir Ernest Ryder, Senior President of Tribunals, said at an Administrative Justice Council (AJC) webinar on 30 April, in his capacity as chair of the Council: “COVID-19 has radically changed the way we are able to respond to events in our lives and has involved rapid measures to make the tribunals' justice system responsive to those changes. In order to keep the tribunals' justice system working, we have had to escalate our use of digital technology, backed by emergency legislation, rule and practice direction changes. Some aspects of modernisation have necessarily advanced at an accelerated pace. This affects the way hearings are arranged and the way decisions are made as well as the way the public can interact with us.”

Initial impressions suggest that courts and tribunals supported by HMCTS may have had greater resilience built in at that stage than those supported by SCTS, although that may not be as significant for administrative justice in Scotland given that the turnover and coverage of devolved tribunals is relatively limited. It is also the case that Mental Health Tribunals in Scotland appear to have been able to continue to conduct remote hearings, while children's hearings, which lie outside of SCTS, seem to have been able to move quickly to facilitate virtual hearings. The machine may understandably have slowed down, but it has not stopped.

Further problems are, however, likely to lie ahead as reduced capacity and accessibility upstream of Government agencies could result in more users being less able to interact effectively with the tribunal system. There will also probably be an increase in vulnerable users disproportionately affected by the crisis.

It is highly likely, however, that the number of cases coming before tribunals will in some areas be considerably inflated by the pandemic. On 4 May the Secretary of State for Work and Pensions reported to the House of Commons that: “Between 16 March and the end of April, there were over 1.8 million claims for universal credit, over 250,000 claims for jobseeker’s allowance, and over 20,000 claims for employment and support allowance. Overall, this is six times the volume of claims that would typically be submitted and, in one week, there was a 10-fold increase. The rate for universal credit claims appears to have stabilised at about 20,000 to 25,000 per day, double that of a standard week pre-COVID-19.”

There will almost certainly be an even higher demand for welfare benefits, due to a rise in unemployment, and in workers ineligible for sick pay such as gig workers and the self-employed. Citizens Advice contact data (at end March) suggested a substantial rise in users seeking information on benefits. As the Government’s emergency support for business is gradually reduced, it must be likely that some businesses may experience difficulty, leading to redundancies and further claims for benefits. The DWP statistics of 4 May suggest that without serious and immediate enhancement of resources, problems of delay in processing claims are likely to arise.

Test for administrative justice

That higher demand for benefits will lead to a higher demand for advice, which is likely to fall on the voluntary sector. There is also likely to be a rise in debt, and therefore higher demand for debt advice. The Advice Sector Alliance, speaking to the AJC webinar, painted a worrying picture in which a heavily overburdened system will come under even greater pressure, and  consequently, access to justice could be very seriously affected.

And for users of the system there are also other changes coming, not least of which is that the future is digital. Coronavirus has led to increased reliance on online claiming. In future we can expect an accelerating path to electronic claiming and processing. How many people are not online? In 2018, DWP’s Universal Credit Full Service Survey found that 30% of claimants reported that they found online claiming difficult, and 25% were unable to submit an online claim (Neville Harris, Ciara Fitzpatrick, Jed Meers and Mark Simpson, Journal of Social Security Law, 27(2) (2020), p 27 of paper available at ssrn.com/abstract=3607312). Citizens Advice Scotland noted a very high volume of telephone calls to DWP: 6 million between 23 and 27 March 2020.

Whether the UK could have been better prepared for this pandemic is a question which will be debated and argued over in the future. It is clear that UK and Scottish Government resilience has been seriously tested by the outbreak, not simply in the health and social care sectors but across all of government. It is also clear that access to justice is likely to be severely affected, especially as we begin to emerge from the crisis.

As Scotland continues to develop its administrative justice system and as it seeks to identify the principles which should underpin that, it will pay to try to build in greater resilience overall across the entire system. A more holistic approach is necessary, covering not just decision making and dispute resolution whether through tribunals, ADR or ombuds mechanisms, but also guaranteed support for users through properly supported advice services, including legal advice and assistance.