1

Administrative Justice, Better Decisions, and Organisational Learning

(The final version of this paper will appear in Public Law [2015]).

Robert Thomas*

School of Law, University of Manchester

Abstract

Every year, government takes millions of decisions on matters such as individuals'

entitlement to social security, their immigration status, and tax liability. There are significant

and pervasive concerns about the quality of these decisions. Government case-workers can

make poor decisions if they do not collect all the relevant facts or if they misinterpret the

relevant legal rules and guidelines. Poor decision-making means more appeals and challenges,

increased costs and time, and stress for the individuals involved. Over recent years, the "right

first time" agenda has been advanced as a solution to this problem. This article critically

examines this agenda and the mechanisms available to government agencies to improve their

decision-making. Recognising the difficulties of measuring the quality of decision-making,

the article considers how poor decision-making arises and how it might be remedied. I argue

that to improve their decision-making, government agencies need to engage in organisational

learning. This occurs when individuals within an organisation experience a problematic

mismatch between expected and actual results and inquire into it on the organisation's behalf.

Organisations learn when they identify appropriate lessons from history which are then

encoded into routines that guide future behaviour. The paper examines mechanisms to

improve initial decision-making including: re-organising internal decision processes; using

feedback from tribunals; making polluters pay; and modifying agency culture.

* Thanks go to Michael Adler, Emma Laurie, Gráinne McKeever, and Chris Thornhill for comments.

The usual disclaimer applies.

2

Administrative Justice, Better Decisions, and Organisational Learning

Robert Thomas*

School of Law, University of Manchester

Government takes millions of administrative decisions. In mass-transactional

governmental agencies, such as the tax, immigration, and social security agencies,

case-workers interact with the public at both the counter- and screen-level. There are

significant and pervasive concerns about the quality of the decisions produced. Initial

decision-makers can get things wrong if they do not fully collect or properly assess

the relevant facts concerning a claimant's circumstances or if they fail to apply, or

misinterpret, the relevant rules and guidance. Individuals may either unwittingly

accept a poor decision or feel compelled to challenge it.

Over recent years, the “right first time” agenda has gained wide currency. If

government could make good initial decisions, then this would mean better results for

individuals and less work for tribunals; it would speed up decision-making and reduce

costs. Introduced as part of the tribunal reforms of the 2000s,1 the “right first time”

agenda was overtaken by other priorities and became “very much unfinished

business”.2 Renewed impetus has come from the now-defunct Administrative Justice

and Tribunals Council (AJTC) and the Ministry of Justice.3 In the meantime,

administrative justice - that part of the legal system which most engages individuals,

but which is often neglected - has been weakened through legal aid restrictions, the

AJTC's abolition, the curtailing of appeal rights, and the introduction of appeal fees.4

This article examines the importance of good administrative decision-making,

the standards of such decisions, and the mechanisms available to government agencies

to improve their decision-making. Recognising the difficulties of measuring the

quality of decision-making, the article considers how poor decision-making arises and

how it might be remedied. I argue that to improve the quality of their decisions,

government agencies should engage in organisational learning. This occurs when

individuals within an organisation experience a problematic mismatch between

expected and actual results and inquire into it on the organisation's behalf.

Organisations learn when they identify appropriate lessons from history which are

then encoded into routines that guide future behaviour. By doing so, agencies could

raise the standard of their decisions. Traditional mechanisms of administrative justice,

such as tribunals, have a vital role to play in this respect. Given the scale of

* Thanks to Michael Adler, Emma Laurie, Gráinne McKeever, and Chris Thornhill for comments. The

usual disclaimer applies. 1 Department for Constitutional Affairs (DCA), Transforming Public Services (Cm 6243, 2004),

[6.32]-[6.34]. 2 R. Carnwath, “Tribunals Reform: Five Years On” (2009), p.3.

3 AJTC, Right First Time (2011); Ministry of Justice (MoJ), Administrative Justice and Tribunals: A

Strategic Work Programme 2013-16 (2012), pp.17-18. 4 AJTC, Securing Fairness and Redress: Administrative Justice at Risk? (2011); M. Adler, “The Rise

and Fall of Administrative Justice - A Cautionary Tale” (2012) 8 Socio-Legal Review 28; AJTC,

Future Oversight of Administrative Justice (2013).

3

administrative activity, the primary responsibility rests with government agencies.

Productive organisational learning poses some real challenges, but if agencies are to

raise decision-making standards, then they need to learn from experience to improve

for the future.

Getting it right and decision-making standards

"Right first time" and concern about the quality of initial decision-making are

comparatively recent features in the administrative justice world. The focus has

traditionally been almost exclusively upon providing external redress for grievances.

However, much of the work of administrative justice occurs in government offices.

This is the most important level; all decision-making starts at this level and most of it

finishes there. Yet, little light has been allowed into this “closed, dark and

windowless” world.5

What does getting it right mean?

Making correct decisions is an essential principle of good administration.6 It involves

collecting information relevant to the decision-making task and then applying the

legal rules or standards to produce a decision that corresponds with the facts and is

well-reasoned and robust. Decision-makers must assess the evidence and exercise

sound judgment. Making correct decisions in all cases sounds idealistic and may be

unattainable, but is worth striving for. A number of competing values inform

discussions of administrative justice, such as: accuracy; fairness; cost-effectiveness;

and efficiency.7 However, accuracy is arguably the primary goal of administrative

justice: regardless of what other desirable attributes are embodied within a decision-

making process, decisions are unlikely to be acceptable if they are wrong.8

There are several reasons why government should make correct decisions.

First, administrators exercise considerable power over people's lives; any error or

inefficiency in the handling or outcome of such decisions will be potentially

distressing for the individuals concerned. A single administrative decision may not

seem that important to the government, but it is significant to the person concerned.

Poor decisions create unnecessary anxiety for individuals who ultimately succeed in

challenging them. As appeal rights have increasingly been limited or curtailed, it is

important to make good initial decisions.9 Second, poor decisions generate

unnecessary costs and delay when they are challenged. Using tribunals to rectify poor

initial decisions is an example of “failure demand”, that is, a demand that produces

5 J.A.G. Griffith, “Tribunals and Inquiries” (1959) 22 M.L.R. 125, 127.

6 Parliamentary and Health Service Ombudsman, Principles of Good Administration (2007); AJTC,

Principles for Administrative Justice (2010). 7 See generally M. Adler (ed), Administrative Justice in Context (2010).

8 R. Sainsbury, “Administrative Justice: Discretion and Procedure in Social Security Decision-Making”

in K. Hawkins (ed), The Uses of Discretion (1992), p.302. 9 Under the Education Act 2011, school exclusion appeals have been replaced with a review process

which cannot order a child's reinstatement. Under the Immigration Act 2014, immigration appeals can

be curtailed significantly.

4

waste as it arises from a failure to get things right in the first place.10

Third, decision-

making is an essential part of implementing policy, such as awarding people their

entitlements. If government is to accomplish its policy goals (administering benefits,

collecting taxes, determining immigration status), as approved by Parliament, then

good decisions are required. Fourth, correct decisions enhance the legitimacy of

government agencies and their decision-making processes. Poor decision-making

carries a reputational risk for agencies and can undermine public confidence in

government as a whole and its legitimacy. Such problems are exacerbated if

government repeats the same mistakes rather than learning from them.

What are the current standards of initial decisions?

Given the diversity of administrative decision-making, generalisations concerning the

quality of initial decisions are inherently suspect. The lack of consistent system-wide

data on decisions taken by many different government agencies makes it difficult to

identify those areas in which there is genuine concern. Nonetheless, there is a general

impression that initial decisions are of variable quality. According to Adler, “the

quality of first instance decision-making is, at best, indifferent and error rates are

frequently unacceptably high.”11

Consider the following. The President of social security appeal tribunals has

repeatedly raised concerns about decision-making by the Department for Work and

Pensions (DWP). The following themes have emerged from the President's reports:

many decisions were overturned because the tribunal elicits additional information

from appellants at appeal hearings; there was no consistent evidence to show that

cases are effectively reconsidered before coming to tribunals; and there was confusion

on the part of decision-makers about the appropriate evidential weight to be given to

medical reports.12

Noting that there has been “no significant improvement in the

quality of administrative decisions coming before appeal tribunals”, the President has

highlighted the need for reforms, such as: collecting all relevant evidence and

properly evaluated it; and a willingness to reconsider challenged decisions.13

Tribunals should be there to deal with the difficult cases; straightforward claims

should be decided properly by initial decision-makers. But, in practice, too much of

the time of tribunals is devoted to undertaking the initial fact-finding and decision-

making for which the government agency is responsible.14

The standard of immigration decisions has long been criticised. For the Home

Affairs Committee, much of the delay in concluding asylum and other immigration

10

J. Seddon, Systems Thinking in the Public Sector (2008), pp.53-60. 11

M. Adler, “From Tribunal Reform to the Reform of Administrative Justice” in R. Creyke (ed),

Tribunals in the Common Law World (2008), p.164. 12

Report by the President of Appeal Tribunals on the Standards of Decision-making by the Secretary

of State (2008), [1.13]. See also N. Wikeley, "Future Directions for Tribunals: A UK Perspective" in R.

Creyke (ed), Tribunals in the Common Law World (2008), pp.175-181. 13

Report by the President of Appeal Tribunals on the Standards of Decision-making by the Secretary

of State (2008), [1.8] and [1.15]. 14

S. Wright, “Benefits at the Crossroads: Delivering Justice in an Age of Austerity” (ESRC seminar

series The Impact of Austerity and Structural Reforms on Accessibility of Tribunal Justice, IALS,

2012).

5

cases stems from poor initial decisions.15

Asylum decisions have been repeatedly

criticised.16

Visa decision-making leaves considerable room for improvement.17

The

trend is repeated in other areas. The Children's Commissioner has reported that some

schools have informally and illegally excluded children; around one in four who

appeal succeed.18

Concerns have also been raised over the quality of school admission

appeals.19

Common failings in initial decision-making include: not following relevant

policies or procedures; incomplete collection of relevant evidence; the failure to

assess the evidence properly; factual errors; not applying relevant legal rules; and not

giving proper reasons. According to the Commons Public Administration Select

Committee (PASC), “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.”20

This illustrates the breadth of concern, but it is necessarily impressionistic. Can the

quality of initial decision-making be ascertained with greater precision?

One argument frequently deployed is that high appeal success rates indicate

significant shortcomings in the quality of initial decisions. Success rates vary between

different jurisdictions and over time, but are notable (see table 1). Since 2009/10, the

overall success rate for social security appeals has hovered around 35 to 40 per cent.21

The proportion of allowed appeals casts doubt upon the accuracy of initial decisions.

In far too many cases the DWP gets decisions wrong at considerable cost to both the

taxpayer and the claimant.22

In 2013-14, 308,033 Employment and Support

Allowance appeals were decided of which 44 per cent were allowed. This is an

inefficient way of correcting poor decisions - the appeals cost £69.9 million and took

an average of 25 weeks - and a source of stress and hardship for claimants.23

In the

immigration context, the overall success has, since 2007/08, ranged from 34 to 48 per

cent.24

15

House of Commons Home Affairs Committee (HAC), The Work of the UK Border Agency (HC 587

2010-11), [10]. 16

Amnesty International, Get it Right: How Home Office Decision Making Fails Refugees (2004);

Amnesty International/Still Human Still Here, A Question of Credibility (2013). 17

Independent Chief Inspector of Borders and Immigration (ICIBI), Entry Clearance Decision-Making

(2011). 18

Children's Commissioner for England, “They Never Give Up on You” (2012); “Always Someone

Else’s Problem” (2013). 19

Local Government Ombudsman (LGO), School Admissions (2011). 20

PASC, Future Oversight of Administrative Justice: the Proposed Abolition of the Administrative

Justice and Tribunals Council (HC 1621 2010-12), [18]. 21

MoJ, Tribunals Statistics Quarterly: January‐March 2014 (June 2014), table 2.7. 22

House of Commons Public Accounts Committee (PAC), DWP: Contract Management of Medical

Services (HC 744 2012-13), p.3. 23

MoJ, Tribunals Statistics Quarterly: January‐March 2014 (June 2014), tables 2.7 and 4.2; Hansard

HC Deb vol 684 col 103wa (7 July 2014). 24

In 2013/14, the outcome by appeal type was: asylum - 29 per cent allowed; managed migration - 49

per cent; entry clearance - 48 per cent; family visit visa - 43 per cent; and deportation and other appeals

- 37 per cent (MoJ, Tribunals Statistics Quarterly: January‐March 2014 (June 2014), table 2.5).

6

Appeal type Volume of appeals

decided

% of appeals

allowed

Average case

clearance time

Social security and child

support appeals

(2013/14)

453,498 40% 25 weeks

Immigration and asylum

appeals (2013/14)

67,449 44% 28 weeks

School admission

appeals (2013/14)

36,965 22.7% N/A

Parking appeals

(2011/12)

16,667 50%25

N/A

Criminal injuries

compensation appeals

(2012/13)

2,811 49% N/A

Tax appeals (2013/14) 6,626 appeals

closed

4,076 appeals

settled before a

hearing

2,550 tribunal

hearings

44% settled in

taxpayer's

favour

23.8% allowed

N/A

School exclusion review

panels (2012/13)

300 28.2% N/A

Table 1: Appeal volumes, success rates, and clearance times in select tribunal

jurisdictions26

From one perspective, tribunals are well-placed to identify systemic errors in

initial decisions.27

They handle a high volume of appeals, are independent, and adopt

fair procedures. Tribunals specialise in particular contexts and undertake the same

decision-making operations as initial decision-makers. However, it has been queried

whether appeal outcomes provide a valid measure of initial decision-making

standards. First, only a small proportion of people appeal. This may cast doubt upon

both the representativeness of appeal outcomes and the ability to extrapolate wider

conclusions from them. While 40 per cent of social security appeals are allowed and

even though they comprise a substantial number of all appeals, less than one per cent

of social security claimants lodge appeals. Similarly, the headline success rate of

criminal injuries compensation appeals - 50 per cent - is, taken alone, potentially

misleading. Only 4.5 per cent of cases proceed to an appeal; almost 96 per cent of

25

Of which, 26 per cent were not contested by the council involved. 26

MoJ, Tribunals Statistics Quarterly: January‐March 2014 (June 2014), tables 2.5, 2.7, and 4.2;

Department for Education (DoE), Admission Appeals for Local Authority Maintained Primary and

Secondary Schools in England 2013/14 (2014); Traffic Penalty Tribunal, Annual Statistics 2011/12

(2012); Criminal Injuries Compensation Authority (CICA), Annual Report and Accounts 2012/13

(2013); HMRC, HMRC's Reviews and Appeals - 2013-14 (2014); DoE, Permanent and Fixed Period

Exclusions in England: 2012 to 2013 (2014). 27

A. Leggatt, Tribunals for Users (2001), [9.11].

7

cases were decided without an external appeal.28

It might be that claimants are at self-

selecting themselves, that only poor initial decisions are challenged. If so, then having

2.25 per cent of all cases overturned on appeal may indicate good decision-making.

However, it is highly dubious to suppose that only poor decisions are

challenged. On the contrary, it is likely that much poor decision-making exists but

goes undetected because it is not challenged. Whether or not people challenge

decisions is often unrelated to the perceived quality of a decision. Many people do not

challenge decisions because of barriers to accessing redress mechanisms, ignorance,

lack of self-confidence, scepticism, fatigue, or a lack of advice.29

Appeals represent

just the tip of the iceberg of the tens of millions of administrative decisions taken each

year. It is impossible to know for certain how many individuals who do not appeal

would succeed if they did so. If more individuals appealed, would success rates

increase, decrease, or remain the same? No-one knows. However, it is likely that

many unchallenged decisions are of poor quality. As Ison has argued, “the total

volume of injustice is likely to be much greater among those who accept initial

decisions than among those who complain or appeal”.30

The converse situation also

arises. Appeals lie only against negative decisions. It is impossible to ascertain how

many initial decisions favourable to an individual may be wrong. Such decisions are

rarely scrutinised by tribunals.31

Both situations underline the need for better initial

decisions.

A second ground for querying the relevance of appeal success rates is that

appeal outcomes may be affected by factors unrelated to the quality of initial

decisions. Appeal procedures (oral hearings or paper appeals) may influence

outcomes. Most appeals are decided de novo. An appeal may be allowed not because

the initial decision was flawed, but because the tribunal evaluated the evidence

differently. Conversely, a tribunal may uphold an initial decision, but for entirely

different reasons. Appellants may present new evidence on appeal. A tribunal may use

an inquisitorial approach to collect new evidence. Yet, if new evidence is only being

considered for the first time on appeal, then this is itself a cause for concern. All

relevant evidence should be captured through the initial decision process, but this

does not always happen. Social security tribunals often elicit further evidence from

appellants which could be collected earlier in the process without incurring the cost

and delay of an appeal. Effective communication between the initial decision-maker

and claimant could resolve such matters without recourse to a tribunal. The wider

point is that the need for good decisions (those, for instance, that take account of all

relevant evidence) does not arise solely in regard to that narrow subset that are

appealed. The aim should be to ensure that all decisions are of high quality.

28

CICA, Annual Report and Accounts 2012/13 (HC 296 2012-13), pp.8 and 11. 29

D. Cowan and S. Halliday, The Appeal of Internal Review (2003); R Thomas, 'Immigration Appeals

for Family Visitors Refused Entry Clearance' [2004] P.L. 612, 625-631. 30

T.G. Ison, “Administrative Justice: Is It Such a Good Idea?” in M. Harris and M. Partington (eds.),

Administrative Justice in the 21st Century (1999), p.23.

31 However, the DWP has estimated that £2.3 billion of overpayments are made as a result of

administrative errors by its staff and mistakes by customers. See House of Commons Work and

Pensions Committee (WPC), Fraud and Error in the Benefits System (HC 1082 2013-14).

8

A fundamental issue is that there is no means of establishing whether any

decision-maker – an initial decision-maker or tribunal judge – has made an

objectively correct decision. Many decisions involve the exercise of judgement both

in relation to fact-finding and the application of legal standards. It can often be

difficult, if not impossible, to say what a correct decision would look like, especially

when the disputed issues largely concern facts rather than law. A tribunal may simply

reach a different conclusion on the evidence or exercise its discretion differently. A

certain degree of inconstancy is to expected; perfect equality of treatment is

impossible. However, significant differences of approach between administrators and

tribunal judges prompts criticism that legal standards are being applied inconsistently.

This invites investigation into the nature of and reasons for differential approaches. If

a tribunal is regularly allowing a particular type of appeals, then the initial decision-

maker should follow suit or provide strong reasons for taking a different approach.

There may not be any simple correlation between appeals and initial

decisional standards. Appeal success rates nonetheless provide cause for concern.

Putting outcomes to one side, there are other means of gauging decisional quality.

Consider reason-giving. A common criticism is that government decision letters are

often inadequate because they contain factual and legal errors.32

Decisions

unaccompanied by adequate, proper, and intelligible reasons are of poor quality,

undermine confidence, and prompt challenges.33

Tribunals have often commented

upon the (in-)adequacy of reasons in refusal decisions.34

In practice, the quality of

decision letters vary considerably from well-reasoned decisions to those containing

either standard paragraphs not generally related to the details of the specific case or

ill-prepared and inadequate reasons. Tick-box or computer-generated decision letters

make it difficult to understand how a decision was reached. Poorly prepared reasons

indicate a basic failure to perform the decision-making task. Better reasons both

improve decisions and may reduce the volume of appeals. In summary, there is

significant concern that initial decisions are of variable quality.

Why does poor decision-making arise?

The variable quality of decision-making has myriad causes, which vary from one

context to another. It is possible to identify, at a general level, the reasons why poor

decision-making occurs. Relevant factors include the role of decision-makers and

aspects of the decision-making environment, such as decision-making procedures, the

organisational context, the degree of legal complexity, and the nature of the decision-

making task.35

32

See, eg, NAO, Compensating Victims of Violent Crime (HC 398 1999-2000), [2.23]; House of

Commons WPC, Decision Making and Appeals in the Benefits System (HC 313 2009-10), [103]-[109]. 33

Re Poyser and Mills' Arbitration [1964] 2 QB 467, 478; South Bucks DC v Porter [2004] 1 WLR

1953, [36]. 34

See, eg, IO v Entry Clearance Officer, Lagos (“Points in Issue”) Nigeria [2004] UKIAT 00179, [3]:

“The reasons given ... are quite inadequate and it is disappointing to see that decisions of this quality

are still being prepared.” 35

Cf. the analysis in S. Halliday, Judicial Review and Compliance with Administrative Law (2004).

9

In any decision-making process, much will depend upon the competence and

qualities of individual decision-makers. Their role is to collect the relevant facts,

apply the rules and legal standards, to make decisions supported by adequate reasons,

and, sometimes, to defend their decisions externally. The competence and quality of

such personnel will be affected by the job specification requirements, the training and

support provided, the incentives and pressures upon such decision-makers face, their

career structure, and the degree of staff turnover.

Various aspects of the decision-making environment will help or hinder the

quality of decision-making. Whether decision-makers are able thoroughly to

investigate initial claims will be affected by the procedure adopted. Long and

complex claim forms may increase the likelihood that errors or omissions will occur

in the initial application process which may, in turn, affect the quality of decisions.

Some decision systems involve personal interviews with claimants, which can enable

decision-makers to collect further information; others do not. The quality of IT

support systems may help or hinder effective decision-making. Other aspects include

the quality of communication with claimants and document management.

The organisational context is likely to exert a powerful influence on decision-

making. Pressure to process a mass of decisions quickly may mean that the quality of

decision-making is accorded a low priority. For instance, the build-up of immigration

backlogs may create a pressure for decision-makers to make a decision - any decision

- to reduce outstanding cases. Departments that handle a high-volume of interactions

with individuals tend to prioritise managing processes and the efficient handling of

workflow rather than ensuring quality outputs. In some contexts, a command and

control management style may result in front-line staff adopting a tick-box approach

to deflect blame.36

Organisational complexity also generates problems. Large-scale

agencies are comprised of many individuals situated at different levels of an agency's

internal hierarchy and who are engaged in different tasks. Instructions and influences

may emanate from multiple and shifting sources and will often rub-up against ground-

level operational reality. Different units within an agency may vie for influence. There

may be internal differences of perspective or conflicts about competing priorities.

There will also be contextual as well as political and fiscal factors. Agencies

differ significantly from each other in terms of their goals, structures, personnel, and

cultures. Such contextual factors may influence the causes of good/poor decision-

making and also the possible remedies. Political pressures may either push

administrators in certain directions or set a general background tone. It has often been

argued that immigration decision-making is influenced by a culture of disbelief.37

Cuts in public spending provide another obstacle to good decision-making.

The degree of legal complexity, a recognised problem in many large-scale

systems, may increase the risk of error. The intrinsic difficulty of decision-making

also presents challenges. Some decisions are relatively straightforward. But other

decisions, such as determining refugee status or incapacity to work because of ill

36

House of Commons Treasury Committee, Administration and Effectiveness of HM Revenue and

Customs (HC 731 2010-12), [56]-[65]. 37

HAC, Asylum (HC 71 2013-14), [12].

10

health or disability (Employment and Support Allowance), are problematic. This

increases the risk of error - or, at least, the scope for arguing that errors exist. There

are also wider design issues that alter the nature of decision errors. Over recent years,

there has been a discernible trend across government to replace discretion with

objective criteria to process a large volume of applications quickly.38

This can make

decision-making more straightforward risk, but risks superimposing a simplistic tick-

box approach upon a complex personal and social reality.39

Beyond this, there may be

uncertainty as to how particular issues are to be handled, such as the collection and

assessment of evidence, or a lack of up to date guidance to assist decision-makers.

There will always be contested decisions where the parties cannot agree and

external recourse is required. No system will ever be perfect. Determining the scale of

errors in a given system is often a question of degree. Nonetheless, there are

significant and persistent concerns as regards the quality of much initial decision-

making. Governmental pressures for efficient initial decision-making can be

inefficient and counter-productive in practice if many of the decisions are wrong.

Administrative justice should be concerned not just with the redress of grievances, but

with ensuring good initial decisions. The challenge is to how to this achieve this end.

Government as a learning organisation

“One of the problems with DWP, and the fact that they keep losing at appeals, is

they do not seem to have any process whereby as an organisation they then

learn from that. The individual people who have had [their] decisions

overturned never know that this has happened, which seems extraordinary. If

they were a learning organisation that would be quite an important part of their

philosophy.”40

“Perhaps above all, departments must be willing to learn from mistakes.”41

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. Learning organisations are those in

which people continually expand their capacity to achieve results, where new and

expansive ways of thinking are nurtured, and where people are continually learning

how to learn together.42

In the public sector context, organisational learning concerns

“the ability of an organisation to demonstrate that it can learn collectively by applying

38

Examples include means-tested benefits such as Child Tax Credit and the Points-based immigration

system. 39

R. Thomas, “Agency Rulemaking, Rule-type, and Immigration Administration” [2013] P.L. 132,

145-149. 40

A. Barton, Citizens Advice Bureau, in evidence to the Commons WPC, Decision Making and

Appeals in the Benefits System (HC 313 2009-10), Ev 10. 41

A. Leggatt, Tribunals for Users (2001), [9.15]. 42

P. Senge, The Fifth Discipline: The Art & Practice of the Learning Organization (1990), p.3.

11

new knowledge to the policy process or innovation in policy implementation”.43

Organisational learning covers a large field of inquiry and has generated a large

literature.44

It concerns the capacity of an organisation to improve its performance

based on experience. Successful learning organisations share some key

characteristics.45

They are agile and innovative. They are quick to identify, digest, and

apply the lessons learned in their environments. Focused upon continuous

improvement, such organisations can change their behaviour accordingly. The

organisation's leadership prioritises learning. There is an openness and receptiveness

toward learning. The organisation supports the sharing of knowledge and actively

seeks to learn appropriate lessons.

The link between organisational learning and better decision-making has been

recognised.46

Seeking to apply the insights of organisational learning to the problem

of decision-making standards requires a different perspective on administrative

justice. The traditional focus on the redress of grievances must be supplemented by an

understanding of how decision-making is organised, the mechanisms for improving

decision-making, and how government can learn for the future.

Government agencies that function as learning organisations want to make

good quality decisions that are robust and correct. Organisational learning is a

continuous process which includes learning from both internal and external sources. It

comprises at least four aspects: knowledge acquisition; information distribution;

information interpretation; and organisational memory.47

Agencies that function as

learning organisations collect information concerning their decision-making, interpret

its relevance, ascertain what lessons could be learnt, and then embed those lessons

within their memory and processes. They 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.48

Such agencies utilise the mechanisms

to promote good decisions not just to reduce costs, but to improve the delivery of

public services. Furthermore, the learning accumulated has to be implemented.

Organisational learning occurs when “observations and influences from experience

create fairly enduring changes in organisational structures and standard operating

procedures”.49

A fundamental issue concerns precisely what "right first time" might mean

when viewed through the prism of organisational learning. Does it simply involve

43

R. Common, “Organisational Learning in a Political Environment” (2004) 25 Policy Studies 35, 37. 44

See B. Levitt and J.G. March, "Organizational Learning" (1988) 14 Annual Review of Sociology 319;

C. Gilson, P. Dunleavey, and J. Tinkler, Organizational Learning in Government Sector

Organizations: Literature Review (2009). 45

NAO, Helping Government Learn (2008-09 HC 129), p.6. 46

DCA, Transforming Public Services (Cm 6243, 2004), [1.5]: “we are entitled to expect that where

things have gone wrong the system will learn from the problem and will do better in the future”. See

also AJTC, Right First Time (2011), p.23; Adjudicator's Office, Annual Report (2013). 47

G.P. Huber, “Organizational Learning: The Contributing Processes and the Literatures” in W.D.

Cohen and L.S. Sproull (eds), Organizational Learning (1996), p.124. 48

As James Joyce noted, "Mistakes are the portals of discovery". See also D.C. Dennett, Intuition

Pumps and Other Tools for Thinking (2013), pp.19-28. 49

J. Olsen and B.G. Peters, “Learning from Experience?” in J. Olsen and B.G. Peters (eds), Lessons

from Experience (1996), p.6.

12

reducing appeal success rates? Or does it imply a wider notion of how better decision-

making outputs can produce more effective policy implementation and outcomes?

The organisational learning literature draws a distinction between single-loop and

double-loop learning, which is relevant here.50

Single loop-learning concerns the ability of a system to detect and correct

errors in relation to a given set of operating norms (eg does the system properly apply

the operating norms?). It is focused upon efficiency and cost-minimization. By

contrast, double-loop learning concerns the relevance and appropriateness of the

operating norms themselves (eg do the operating norms produce the desired policy

outcomes?) and is focused upon effectiveness. Simple systems can detect and correct

deviations from predetermined norms (single-loop learning) whereas more complex

systems also detect and correct errors in operating norms and processes that then

influence the standards being applied (double-loop learning). Single-loop learning can

result in better decisions, but it might reinforce ineffectual outcomes. The promise of

double-loop learning is that government agencies do not solely scrutinise their

decisions against predetermined norms and procedures. The relevant norms, policies,

and procedures being applied are themselves scrutinised to determine whether they

are conducive to accomplishing the desired policy goals.

The capacity for double-loop learning in government may be restricted

because departments and agencies have to fit in with the political values held by

Ministers.51

Yet, all organisations, such as government agencies, exist to accomplish

stated goals. Decision-making is part of the implementation process. Policy-makers

responsible for formulating the rules, systems, and operating norms should know

whether the application of the rules on the ground by caseworkers is furthering policy

goals and, if not, what changes are required.

Embedding the culture of the learning organisation ideal into government

agencies is an attractive idea, but presents several practical challenges. Bureaucratic

structures and processes may obstruct learning. Given their enormous size and scale,

departments responsible for high-volume interactions are often organised into smaller

units which handle different aspects of the wider decision-making process. Such units

can operate on the basis of different aspects of the total picture. Such division can

reduce the scope for learning. Further, effectuating change, such as enhancing

learning in large organisations, is difficult. Even relatively simple changes that affect

management information systems may require large change programmes to be

sustained over a period of years. The number of initiatives to be taken forward at any

one time in a large process organisation will need to be carefully controlled because

of bounded rationality, that is, the cognitive limits on human rationality as reflected in

the structure and operations of organisations.52

It can be difficult for staff to absorb

50

C. Argyris and D.A. Schön, Organizational Learning II: Theory, Method and Practice (1996),

pp.20-25; C. Argyris, On Organizational Learning (1999), pp.67-69; G. Morgan, Images of

Organization (2006), p.84-5. 51

C. Gilson, P. Dunleavey, and J. Tinkler, Organizational Learning in Government Sector

Organizations: Literature Review (2009), p.18. 52

H.A. Simon, Administrative Behavior (4th edn., 1997), pp.118-122.

13

and implement change while also continuing with operational tasks. Other barriers to

learning include: ineffective mechanisms to support learning; defensive routines; high

staff turnover which undermines institutional memory; and insufficient time for

learning.53

The fragmented nature of contemporary governance may also increase the

difficulties.54

For instance, the medical assessments for Employment and Support

Allowance decisions have not undertaken by the DWP, but by a private company,

ATOS. Organisational learning must then extend beyond government to private

contractors involved in decision-making.

A distinctive feature of organisational learning in government is the political

context. The need to respond to political pressures can direct the attention of

government agencies away from the need to reflect critically upon their own

behaviour. The associated blame-game for failure can generate defensiveness, which

prevents learning. The doctrine of ministerial responsibility can place short-term

political pressure on ministers to interfere in administrative detail at the expense of

longer-term goals. Specific shortcomings within British government are also relevant

- insufficient skills within the civil service and aspects of the constitutional

framework, such as: inadequate accountability; a weak Parliament; and rushed and ill-

considered legislation.55

For these reasons, government agencies are “seriously

disadvantaged as learning organisations”.56

Being able to learn from past mistakes and create positive learning present a

general challenge for government agencies. At the same time, agencies recognise the

need to avoid repetitive cycles in which initial errors are corrected through appeals,

only to be followed by the reappearance of the same errors.57

Using organisational

learning to produce better decisions is simultaneously necessary and problematic. One

task is for an agency to adopt a management philosophy that encourages individuals

within the organisation to view learning as a key priority. Another is for agencies to

generate institutional designs that support genuine learning.

Mechanisms to improve initial decision-making

To engage in organisational learning, agencies need to design mechanisms that enable

them to learn and improve decision-making. One size is unlikely to fit all. A non-

exhaustive list of options is analysed here: re-organise internal decision processes; use

feedback from tribunals; make polluters pay; and modify agency culture.

Re-organise internal decision processes

53

NAO, Helping Government Learn (HC 129 2008-09). 54

See A. Gamble and R. Thomas, “The Changing Context of Governance: Implications for

Administration and Justice” in M. Adler (ed.) Administrative Justice in Context (2010). 55

R. Bacon and C. Hope, Conundrum: Why Every Government Gets Things Wrong—and What We

Can Do About It (2013); A. King and I. Crewe, The Blunders of our Governments (2013); M. Korris,

“Standing up for Scrutiny: How and Why Parliament Should Make Better Law” (2011) 64

Parliamentary Affairs 564. 56

G. Reschenthaler and F. Thompson, “Public Administration in a Period of Change: Moving to a

Learning Organization Perspective” (2001) 1 International Public Management Network Journal 1, 53. 57

NAO, Citizen Redress (HC 21 2004-05), p.58.

14

There are clear differences between administrative and appeal procedures

proportionate to the volume of decisions to be taken. Initial decision-makers may

process decisions solely on the basis of application forms whereas in appeal hearings

tribunals can elicit additional information. Such differences may suggest that a

tribunal approach is preferable. However, given the volume of claims, it is not

possible for them all to be adjudicated upon. To a large extent, decision-making

standards depend upon the quality of the information available. One starting point is

then for an agency to ensure that as much information from claimants is collected

through the initial decision process. If appeals are being allowed because additional

evidence is being submitted for the first time at the appeal stage, then an obvious

reform is to re-design the application process to capture such information earlier. The

design of application forms and their comprehensibility may affect the data collected.

Engagement by agencies with claimants at an early stage of the process can also assist

with collecting and checking relevant evidence. To illustrate: the DWP has, as part of

mandatory reconsideration, introduced a decision assurance call to collect further

information from claimants.58

Decision-makers could also be encouraged to adopt a

customer-oriented approach. For instance, many social security appeals are allowed at

appeal because the tribunal elicits evidence from appellants. The DWP Standards

Committee has stated that accepting and trusting the customer is fundamental to

getting decision making right. A better understanding of the customer’s viewpoint

could positively impact upon the number of appeals that are processed and the

number of allowed appeals. This could be achieved by meaningful and non-

judgmental contact with claimants to collect such evidence prior to the tribunal

stage.59

At the post-decision stage, agencies can monitor the quality of decisions.

Some agencies have instituted quality assurance systems whereby senior case-workers

review a sample of decision letters to ensure that they are robust and contain good

reasons. The Home Office reviews a sample of asylum decisions.60

Quality assurance

systems can, depending on sample size, provide a continuous flow of information

concerning the quality of both positive and negative decisions. Another technique -

internal review or reconsideration - is increasingly used. This can be either optional or

mandatory before an appeal. There are mixed views on internal review. In theory, it

enables departments to collect additional evidence and correct errors.61

But there is a

risk that in practice, it can operate as a rubber-stamp and weaken appeal rights.62

Use feedback from tribunals

58

DWP, Mandatory Reconsideration of Revision Before Appeal (2012), p.8. 59

DWP Standards Committee, Annual Report 2007-2008 (2008), p.14. 60

PAC, Management of Asylum Applications (HC 325 2008-09), pp.11-13. 61

M. Harris, “The Place of Formal and Informal Review in the Administrative Justice System” in M.

Harris and M. Partington (eds), Administrative Justice in the 21st Century (1999).

62 R. Sainsbury, “Internal Reviews and the Weakening of Social Security Claimants’ Rights of Appeal”

in G. Richardson and H. Genn (eds), Administrative Law & Government Action (1994). On the DWP's

mandatory reconsideration system, see "Thousands Left in Limbo in Benefit Appeals System Grinding

to a Halt" The Guardian 18 June 2014.

15

Tribunal decisions provide an external and essential source of feedback for agencies.

The primary role of tribunals is to determine appeals. Giving feedback has been an

underdeveloped practice.63

Further, unlike ombudsmen, tribunals do not investigate

systemic problems.64

Nonetheless, given their role in the wider decision-making

process, tribunals are well-placed to identify general problems in decision-making,

such as the failure to collect relevant evidence or to assess it carefully, flawed

interpretations of the law, and poor reason-giving. Successful feedback comprises two

aspects: first, clear messages from tribunals which are focused, practical, and

designed to improve decision-making; and, second, the willingness of agencies to

implement the lessons being received. Beyond the general educative effect of

tribunals - the existence of tribunals may induce initial decision-makers to be more

careful - tribunal feedback can be used in a number of ways to improve decision-

making.

One mechanism is to undertake higher-level analyses of a large sample of

decisions of the reasons why decisions are overturned. Comprehensively analysing

appeals is time consuming, but can identify wider trends in decision-making. Social

security provides an instructive example. The annual reports by the President of social

security tribunals issued during 2001/09 made various recommendations to improve

initial decisions, but were largely overlooked by government. The reports' limited

effect has been attributed to departmental indifference and that the reports were not

easily accessible for decision-makers.65

The DWP found it difficult to use the

empirical data as a basis for instrumental reform of the decision-making process.66

Higher-level analyses of appeal outcomes therefore need to be supplemented by more

focussed and practical feedback. Another option is for tribunals to sample decisions to

produce thematic reports, such as the handling of types of evidence, such as medical

reports.

A second form of feedback is for presenting officers to communicate lessons

about tribunal outcomes and reasoning to initial decision-makers or for one person to

undertake both roles.67

One concern here is that the level of departmental

representation, particularly in social security appeals, has declined significantly.68

If

presenting officers do not attend hearings, then the department loses a valuable source

63

A. Leggatt, Tribunals for Users (2001), [9.12]. 64

Helping government learn is often identified as a key aim for ombudsmen, but is rarely mentioned in

relation to tribunals. The now-defunct Social Fund Commissioner was obliged, under the Social

Security Act 1998, s.37(5)(a), to "monitor the quality of decisions of social fund inspectors and give

them such advice and assistance as he thinks fit to improve the standard of their decisions". No tribunal

is under a similar duty. 65

House of Commons WPC, Decision Making and Appeals in the Benefits System (HC 313 2009-10),

Ev 18 & 21 (HHJ Robert Martin). 66

Report by the President of the Social Entitlement Chamber of the First-tier Tribunal on the

Standards of Decision-making by the Secretary of State and Child Maintenance and Enforcement

Commissioner (2009), [1.3]. 67

See N. Wikeley and R. Young, "The Administration of Benefits in Britain: Adjudication Officers and

the Influence of Social Security Appeal Tribunals" [1992] P.L. 238. 68

The proportion of social security appeal hearings attended by a presenting officer has declined from

40 per cent in 2000-01 to 6 per cent in 2013: Senior President of Tribunals (SPT), Annual Report

(2014), p.35.

16

of feedback. Even if presenting officers do attend, then this may not necessarily result

in feedback. For instance, the Criminal Injuries Compensation Authority has in the

past not utilised feedback from presenting officers to initial decision teams - even

though this would have improved initial decisions.69

The absence of feedback signals

the loss of an opportunity to learn.

A third form of feedback is to scrutinise individual tribunal decisions. If those

making initial decisions receive individual tribunal decisions, then this will help them

understand why a decision was either confirmed or overturned. Giving reasons for a

decision has an important role to play "in developing the mental capacity and sense of

fairness" of the initial decision-maker.70

If so, then understanding the reasons why a

decision has been overturned on appeal can also enable a deeper understanding of the

decision-making task. The evidence suggests that front-line staff would welcome

more feedback on individual decisions.71

This has not always happened, but is now

being trialled in particular jurisdictions. Consider recent experience in the social

security and immigration contexts.

The DWP receives around 7 million benefit claims per year. Administering

such a high volume generates a series of challenges. Concerns have been raised about

both the volume of appeals and the overturn rate.72

The DWP has been criticised for

being “unduly complacent” about allowed appeals.73

Until 2013, the Department did

not routinely request a statement of reasons from tribunals because of the burden this

would impose (however, the department had not considered the benefits alongside the

costs).74

In 2012, the DWP piloted the collection of data from allowed appeals to

improve decision-making standards.75

In the pilot, judges provided the primary reason

why an appeal was allowed through a drop-down menu, but this did not yield

sufficient detail to identify shortcomings in overturned appeals.76

In 2013/14, the

DWP therefore analysed some 7,000 summary reasons in Employment and Support

Allowance appeals from four tribunal centres and scrutinised 120 decisions in depth.77

Despite internal targets concerning the timeliness of processing claims, the

summary reasons project appears to have enabled insight into why decisions are

overturned and prompted some learning. The project has revealed areas for

69

NAO, Compensating Victims of Violent Crime (HC 100 2007-08), [3.31]. 70

W.A. Robson, Justice and Administrative Law (3rd

edn, 1951), p.381. 71

See, eg, DWP Decision Making Standards Committee, Annual Report (2010), p.5; ICIBI, An

Inspection of applications to enter and remain in the UK under the Tier 1 Investor and Entrepreneur

categories of the Points Based System (2013), p.37. 72

Commons WPC, The Role of Incapacity Benefit Reassessment in Helping Claimants into

Employment (HC 2010-12), [146]. 73

PAC, DWP: Contract Management of Medical Services (HC 744 2012-13), p.3. 74

NAO, Contract Management of Medical Services (HC 627 2012-13), [3.10]. 75

DWP, Social Security and Child Support Tribunal hearings: early analysis of appeals allowed from

pilot data (2012). 76

In 40.5 per cent of appeals were allowed because the appellant gave cogent oral evidence at the

appeal hearing; in 37.5 per cent of allowed appeals, judges did not ascribe a reason. 77

Senior President of Tribunals (SPT), Annual Report (2014), pp.35-36. From April 2014, summary

reasons have been provided nationally in Employment and Support Allowance and Personal

Independence Payment appeals.

17

improvement and training needs.78

Enabling initial decision-makers to understand

why their decisions have been overturned is an important learning opportunity.79

On

the other hand, more could be done. The data collected could be aggregated to

identify systemic shortcomings. The project could also be more transparent. Little

detail has been published. The crucial issue is whether government uses the summary

reasons collected to improve initial decisions. The DWP should set out how it will

analyse and use the summary reasons.80

Feedback schemes themselves should be

scrutinised to assess whether they result in better decision-making.

The Home Office has been repeatedly criticised for the variable quality of

immigration decisions and encouraged to analyse appeals: “appeal determinations

provide an essential source of feedback for decision-makers, which is likely to result

in improved decision quality”.81

Calls to improve asylum decision-making by

analysing tribunal decisions have belatedly resulted in some limited action.82

Caseworkers are expected to read allowed appeal determinations.83

As regards

immigration decisions, the practice has, in this large and geographically dispersed

agency, varied. Some work units have analysed appeals whereas in other units case-

workers have not received determinations (on the grounds that it would reduce the

number decisions caseworkers could make and they might become demoralised

seeing their decisions overturned).84

The Chief Inspector has criticised the

complacency of senior agency managers for not analysing tribunal determinations -

even though half of appeals succeeded.85

The remedy is to adopt a strategic agency-

wide approach to analysing appeals.86

The Home Office is now analysing appeal

outcomes to improving decision-making by producing trend analysis reports across all

immigration appeal types.87

However, the political direction is all the other way. The Home Secretary has

castigated the appeals system as a "never-ending game of snakes and ladders" and can

now abolish some appeal rights and replace them with internal review.88

The Home

Office has hailed administrative review as a quicker method for identifying case-

working errors and stated that lessons will be fed back.89

Yet, the disparity in success

rates between administrative review (21 per cent) and appeals (44 per cent) casts

78

MoJ, Annual Administrative Justice and Tribunals Performance Report 2013-14 (Cm 8873, 2014),

p.17. 79

Presentation by DWP at the Administrative Justice Forum, 15 May 2014. 80

House of Commons WPC, Employment and Support Allowance and Work Capability Assessments

(HC 302 2014-15), [113]. 81

ICIBI, An Inspection of Applications to Enter and Remain in the UK under the Tier 1 Investor and

Entrepreneur Categories of the Points Based System (2013), p.37. 82

See HAC, Asylum Applications (HC 218 2003-04), [144]; ICIBI, Asylum (2010), [2.54]. HAC,

Asylum (HC 71 2013-14), [18]. 83

Government Response to HAC Report on Asylum (Cm 8769, 2013), p.5. 84

ICIBI, An Inspection of Applications to Enter and Remain in the UK under the Tier 1 Investor and

Entrepreneur Categories of the Points Based System (2013), pp.36-38. 85

ICIBI, An inspection of Entry Clearance in Abu Dhabi and Islamabad (2010), p.2. 86

ICIBI, An inspection of Applications to Enter, Remain and Settle in the UK on the basis of Marriage

and Civil Partnerships (2013), pp.44-45. 87

Home Office, Response to the Independent Chief Inspector’s Report (2013), p.4. 88

T. May, speech at the Conservative Party conference, September 2013; Immigration Act 2014, s.15. 89

Home Office, Administrative Review (2013).

18

doubt upon the former as both an effective remedy and a learning mechanism.90

Indeed, the Home Office's view is that the 60 per cent of appeals allowed due to case

working errors are better resolved through internal review.91

Relying upon internal

review, a shadowy process lacking independence, is unlikely to produce better

decisions. Tribunal feedback depends upon the prior issue of access to appeal rights.

A fourth form of feedback is for tribunals to issue guidance on recurring and

problematic factual and legal issues to aid initial decision-making. By taking a

pragmatic approach to the distinction between issues of law and fact, the Upper

Tribunal can produce guidance on the handling of evidence and its assessment,

procedure, and points of law.92

Such guidance can help assist decision-makers by

promoting consistency and certainty.93

The Upper Tribunal has a relatively free hand

in this regard because its specialist expertise is, in general, respected by the higher

courts.94

Such guidance then needs to be communicated effectively within an agency,

usually through incorporation into internal guidance. In asylum cases, the Upper

Tribunal (Immigration and Asylum Chamber) issues country guidance on the risks

facing claimants in particular countries, which is normally inserted into agency

guidance.95

In the social security context, a similar initiative to help initial decision-

makers is “benchmark decisions” which provide guidance on how to approach fact-

finding in common areas of difficulty.96

A final option is for tribunals and agencies to engage in dialogue to understand

why different decisions are arrived at and to produce collective learning. Dialogue is

not concerned with either party seeking to dominate or to determine who makes the

best decisions or the adoption of a defensive approach. It involves the sharing of

assumptions and understandings to produce innovative solutions to complex problems

and to advance a common goal.97

Tribunals and agencies have not generally engaged

in such dialogue.98

Tribunals have been concerned that direct exchanges with

government may undermine judicial neutrality. Such concerns should not necessarily

be an obstacle, provided that the process is transparent and even-handed. As

Richardson and Genn have noted, “ideally feedback should be designed to improve

the substantive quality of the initial decision, not simply to render that decision

90

From April to December 2013, 93 per cent of administrative reviews were completed within 28 days

and 21 per cent resulted in the original decision being overturned: Hansard HC Debs vol 580 col 225 7

May 2014. 91

Home Office, Impact Assessment of Reforming Immigration Appeal Rights (2013), p.7. 92

Jones v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, [16] and

[42]-[43]. 93

T. Buck, “Precedent in Tribunals and the Development of Principles” (2006) C.J.Q. 458; R.

Carnwath, “Tribunal Justice - A New Start” [2009] P.L. 48, 56-64. 94

E. Laurie, "Assessing the Upper Tribunal's Potential to Deliver Administrative Justice" [2012] P.L.

288. 95

R. Thomas, Administrative Justice and Asylum Appeals (2011), ch.7. 96

SPT, Annual Report (2011), p.11. 97

D. Bohm, On Dialogue (2004). 98

For a recommendation that they do so, see M. Harrington, An Independent Review of the Work

Capability Assessment – Year Three (2012), p.9.

19

immune from appeal.”99

Mutual learning can benefit all parties without undermining

tribunal independence. While agencies could learn from tribunals, they might also

wish to highlight inconsistent tribunal decision-making.

The wider relationship between tribunals and agencies will clearly influence

the degree to which they can enter into effective dialogue. Tribunals and agencies

adopt different perspectives - the administrative and judicial - which are underpinned

by different values and strongly influence how they approach and understand

decision-making.100

Tribunals only see those cases come to appeal, not the vast

number of positive decisions. Further, some decisions are finely balanced. Feedback

is best reserved in those cases in which the initial decision was clearly wrong. The

relationship between specific agencies and tribunals is also relevant. In the

immigration context, there is a lack of mutual confidence between the Home Office

and the tribunal.101

In the social security context, an “adjudication gap” has

emerged.102

Previously, the department adjudicated claims, that is, through a

combination of expertise and deliberation, officers examined the evidence and applied

relevant case-law.103

However, since the late 1990s, adjudication has been

downgraded in favour of administration; decision-making has become the processing

of data compiled from a lengthy claim form. The department has also withdrawn from

regular participation in the tribunal process. The risk is that this adjudication gap may

reduce the scope for effective dialogue. Despite such differences of perspective,

improved decision-making is only likely to be achievable if tribunals and agencies

engage in productive learning through dialogue that enhances trust, collaboration, and

effective communication.104

Make polluters pay

Another suggestion to improve decision-making is to make polluters pay.105

The

principle is simple. Agencies that make substandard decisions are polluters that

generate unnecessary costs. Such polluters may be indifferent to the quality of

decision-making because they do not bear the consequential costs of poor decisions,

which are shifted onto tribunals, claimants, and a shrinking legal aid fund. The

remedy is to develop new funding models by which agencies contribute to the cost of

99

G. Richardson and H. Genn, “Tribunals in Transition: Resolution or Adjudication?” [2007] P.L. 116,

125. 100

D. Galligan, Due Process and Fair Procedures (1996), pp.237-240. 101

HAC, Immigration Control (2005-06 HC 775), [335]. See, eg, AW v Entry Clearance Officer,

Islamabad (Duties of Immigration Judge) Pakistan [2008] UKAIT 00072, [4]: “It is indeed within the

knowledge of every member of this Tribunal that Entry Clearance Officers typically treat judicial

directions, and regulations made by Parliament, with utter disdain.” 102

N. Warren, “The Adjudication Gap - A Discussion Document” (2006) 13 Journal of Social Security

Law 110. 103

A.W. Bradley, “Recent Reform of Social Security Adjudication in Great Britain” (1985) 26 Les

Cahiers de droit 403. This was supported by the Chief Adjudication Officer. See R. Sainsbury, “The

Social Security Chief Adjudication Officer: The First Four Years” [1989] P.L. 323. 104

M. Partington and E. Kirton-Darling, Tribunals Service Research Issues Paper (1): Feedback

(2007), p.19. 105

Law Society, Access to Justice Review (2010), pp.20-21; House of Commons Justice Committee,

Government's Proposed Reform of Legal Aid (HC 681 2010-12), [60].

20

tribunals by reference to the volume of successful appeals. This, in turn, will create a

financial incentive for agencies to make better decisions.

The idea raises some interesting questions. Is it possible to devise appropriate

funding models that reflect the cost of poor decision-making - as opposed to

differential appeal outcomes? Would a financial incentive encourage agencies to

make better decisions – or would it be another cost to bear? From one perspective, a

polluter pays approach has much to commend it. It is no good exhorting agencies to

do better. Stronger levers, such as financial incentives, are required. On the other

hand, a polluter pays approach could be counter-productive. Agencies seeking to

improve their decision-making often require more resources and reducing available

resources may only reinforce the problem. There may be other structural implications.

Increasing the funding of tribunals by the departments whose decisions are being

appealed against may undermine tribunal independence. These issues require detailed

analysis. Much may depend on the design of specific funding models and how the

incentives operate in practice. It is possible that a polluter pays approach could, as

part of a broader package, improve decision-making, and result in cost-savings. Such

an approach has attracted some political support,106

but not from government.

Modify agency culture

Beyond the mechanisms considered above, there is an underlying issue concerning

governmental culture. The prevalent impression is that agencies 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. There may be little incentive to improve decision-

making. 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. The Senior President of Tribunals has been reluctant to extend the

reports on decision-making produced by the President of social security tribunals

“unless and until there is a responsive culture in the receiving departments and

machinery to give it effect”.107

Effective organisational learning to improve decision-

making requires a change of focus and culture. The challenge for agencies is not

merely that of collecting and analysing tribunal decisions, but also putting the lessons

drawn into practice to guide future behaviour.

Agency culture is perhaps the most important and problematic aspect of all.

To some extent, it is determined by political priorities, but there are other dimensions.

Organisations often fall into the trap of relying upon defensive routines that inhibit

learning.108

This can be reinforced by internal targets. For instance, setting a target for

winning a certain proportion of appeals and rewarding presenting officers who win

appeals may create a perverse incentive to win at all costs rather than to exercise

106

R. Reeves and K. Green, "How Labour Would Reform the Work Capability Assessment" The

Independent 16 April 2014: "Failure to get it right first time will result in financial penalties." 107

SPT, Annual Report (2010), p.12. 108

C. Argyris, Organizational Traps: Leadership, Culture, Organizational Design (2010).

21

judgment on the merits of each case.109

Being receptive and responsive to criticism

can be difficult. When there is the possibility of embarrassment or a threat, then an

organisation will often respond defensively. Getting beyond these barriers is

challenging. For this reason, tribunal feedback should identify both good and poor

practice in decision-making. Beyond this, there is the wider context of agency

activity. Decision-making is only one task. Agencies are also responsible for other

functions, such as enforcement and managing large-scale change.110

They have

massive agendas to pursue and have to negotiate multiple and often conflicting

interests and accountability regimes.111

Departments face major challenges with their

performance, staff engagement, transformational change, and with formulating and

implementing a strategic vision, and budget cuts.112

For agencies seeking to create an environment in which a right first time

culture can become embedded and learning can flourish, the lesson is clear: a number

of different elements are required. A significant component is leadership within

government, that is the role of ministers and senior officials in influencing

organisational learning capability.113

The notion of transformational leadership is

relevant here. This is a moral process by which leaders and followers raise each other

to higher levels of motivation and morality.114

Of course, the political context may

determine whether organisational cultures can develop accordingly. Another element

is democratic scrutiny and accountability. Political accountability can hold agencies to

account for how they deliver public services, ensure that they remain responsive to the

needs of users and focused upon producing better decisions. Political concern over the

proportion of overturned social security appeals suggests that democratic scrutiny can

exert influence.

Can government do it? The prospects may not seem great, but there are some

encouraging signs. The DWP's summary reasons project is an initial step toward

organisational learning. New leadership in the Criminal Injuries Compensation

Authority (CICA) has introduced a culture of continuous learning focused upon good

decision-making, reduced appeals, and improved customer satisfaction. The agency's

staff have been encouraged to admit their errors rather than defend appeals

unnecessarily. The agency has also instituted performance management processes to

learn lessons from tribunal decisions.115

Aspects of the CICA's operational context

109

D. Taylor and R. Mason, "Home Office Staff Rewarded With Gift Vouchers for Fighting Off

Asylum Cases" The Guardian 14 January 2014. 110

Such as: Universal Credit (DWP); the Points-based System (Home Office); and a continual process

of change (HMRC). 111

J.L. Mashaw, "Accountability and Institutional Design: Some Thoughts on the Grammar of

Governance" in M. Dowdle (ed), Public Accountability: Designs, Dilemmas and Experience (2006). 112

On HMRC, see House of Commons Treasury Committee, Administration and Effectiveness of

HMRC (HC 731 2010-2012). In 2013, the Home Secretary announced that the UK Border Agency – “a

troubled organisation for so many years” which had “created a closed, secretive and defensive culture”

– would be split up to provide a customer-oriented immigration and visa service making high-quality

decisions. 113

K.D. Smith and W.G.K. Taylor, “The Learning Organisation Ideal in Civil Service Organisations”

(2000) 7 The Learning Organization 194, 195-196. 114

J.M. Burns, Leadership (1978). 115

AJTC, Right First Time (2011), pp.35-37; CICA, Annual Report and Accounts (HC 222 2012-13).

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may have made this relatively straightforward: it is a small agency; staff are located

on a single site; and the agency attracts a low level of political scrutiny. The

challenges are more acute for those mass geographically-dispersed agencies that

regularly attract political scrutiny and have been experiencing large-scale change

programmes. Reforms could be made both within individual agencies and across

government. Agencies engaging in front-line decision-making could appoint an

individual with specific responsibility for organisational learning and improving

decision-making to review processes and engage with tribunals. Taking a cross-

government approach, the Ministry of Justice could lead departments to devise

improvement strategies.

Conclusion

This article has explored the importance of good decisions, the standards of such

decisions, and the mechanisms to improve their quality. Concerns about the quality of

administrative decisions are both longstanding and widespread. Assessing the

standards of decision-making is not clear-cut, but there is significant evidence to

justify such concerns. Poor decisions overturned by tribunals generate considerable

financial cost, personal hardship and stress, and delay. Beyond this, government

makes millions of decisions many of which are of variable quality. The need to

produce good decisions does not arise solely because of a decision may be appealed;

it is there in the first place. The main focus of resources and attention should be to

produce high quality initial decisions. I have argued that agencies should seek to

improve to quality of decision-making by engaging in organisational learning. This

involves agencies consciously assuming responsibility to raise decision-making

standards, 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. More

concretely, agencies could introduce a range of measures to enhance decisions, such

as better training for case-workers, re-designing procedures to ensure relevant

evidence is collected, and quality assurance systems. In particular, tribunal decisions

contain much useful data on the quality of decision-making and on the nature of

decision-making. Agencies should collect and analyse such feedback and enter into

dialogue with tribunals and other bodies. Some agencies have made initial efforts to

learn from tribunals. The tasks ahead are to collect and interpret relevant feedback,

learn appropriate lessons, and implement those lessons into agency practice. A key

issue is to develop cultures and structures which value such learning.

The scale of this challenge cannot be underestimated. The barriers to

organisational learning - bureaucratic structures, political influences; bounded

rationality, and the risk of defensiveness - are considerable, but they are not

necessarily insurmountable. Some government agencies recognise the need to learn

and have instituted various processes to this end. More could be done and this article

has set out some of the options. It might be argued that the prospects for improving

decision-making are slim - especially given public spending reductions and the

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challenging environment for administrative justice. However, better initial decisions

has numerous benefits in terms of ensuring individuals are awarded their entitlements,

financial savings, and implementing policy. Better decision-making is also important

in terms of the wider constitutional legitimacy of government. There is something of

constitutional significance happening within government agencies. They are

implementing policy through individualised decision-making processes. It is for

agencies to assume responsibility for promoting consistently good decision-making.

The goal of better decisions is fundamental to both the project of administrative

justice and to the constitutional legitimacy of government. Seeking continuous

improvement in decision-making through organisational learning should become part

of an agency’s day to day operational work tasks. There is no better place for

government agencies to start than by valuing learning more and embedding this ethos

into their leadership, structures, processes, and culture so as to guide future action.