Part III         

the leggatt review and the need for reform

Introduction

                    3.1              The impetus for reform of the LVH tribunals comes from the Leggatt Review. The Review asks the Law Commission to look at the jurisdictional overlaps between the LVH tribunals and the county courts. It also notes the need for an expert decision-making forum for land, property and housing disputes.[1] We have considered not only the narrow question of jurisdictional overlaps but have additionally thought about how the LVH tribunals could be more fundamentally reformed in the light of the general principles that came out of the Leggatt Review, as part of a  comprehensive solution.

                    3.2              The Lord Chancellor’s Department has not yet published its final response to the Leggatt Review’s proposals. Whatever the Government’s final position in relation to the Leggatt Review’s substantive proposals, this paper sets out possible reform options for these tribunals in the light of the principles behind the Review. Our review makes no assumptions about exactly how the LVH tribunals would fit in to any larger reform of tribunals as a result of the Leggatt Review.

                    3.3              We understand that there have been some recent reviews and reforms to the LVH tribunals and that other reforms may be in the pipeline.[2] Consultees may wish to consider how any overall reform of the LVH tribunals will fit with any other proposed changes to these tribunals of which they are aware.

The leggatt review principles

                    3.4               In Part I, we gave an indication of the Leggatt Review’s proposals for reform of the tribunals system.[3] The main recommendation was that there should be a single tribunals service under the administrative control of the Lord Chancellor’s Department.

                    3.5             The Leggatt Review emphasises that tribunals should bring two distinctive advantages for users. These are first, the advantage of expert knowledge and secondly, simpler and more informal procedures and hearings which lead to more direct user participation. The Review states that tribunals do not always deliver these advantages to users because of the lack of a coherent and visibly independent tribunal system.[4] The two key principles to come out of the Leggatt Review are therefore that tribunals should be structured coherently and that they should be seen to be independent.

Coherence

                    3.6              The Leggatt Review’s argument for greater coherence in the tribunal system runs as follows. The delivery of the tribunals’ key advantages is hindered by the lack of a coherent structure and the current system as a whole does not meet what the modern user needs and expects.[5] There are several  problems with tribunals that could be addressed by a more coherent structure. The most striking feature of tribunals is their isolation, which as well as engendering a narrowness of outlook,  leads to a duplication of effort. Each tribunal has its own IT systems and its own internal procedures. There is under-investment in training in many tribunals; most find it difficult to retain suitable staff because of limited career prospects and some tribunals have under-used accommodation while others find it difficult to obtain suitable hearing venues.[6] The current systems of administrative support do not meet the needs of tribunals and users. Users and their advisers are confused by the differing requirements of the current collection of tribunals.[7] A more coherent framework would create greater opportunities for improvement than can be achieved by tribunals acting separately, and that framework will enable tribunals to develop a more coherent approach to the services which users must receive to be enabled to prepare and present cases themselves.[8] A programme of improvements  could not be taken forward in the absence of greater co-ordination between tribunals without disproportionate expenditure and wasteful duplication of effort.[9]

                    3.7              The LVH tribunals have grown up in an ad hoc way and do not form a coherent structure. In Part IV, we set out three suggested options for structural reform of the LVH tribunals which will be designed to meet the problems identified in the Leggatt Review.

                    3.8               The Leggatt Review also attached considerable importance to tribunals being seen by users to be independent. The Review’s argument is as follows. Users need to be sure that decisions in their cases are being taken by people with no links with the body they are appealing against.[10] Tribunals are often not perceived as independent, and the disadvantages of Government departments with policy responsibilities also providing administrative support and funding are seen to outweigh any advantages. There are therefore doubts about whether the current arrangements give users the necessary confidence in tribunal independence.[11]

                    3.9               The Council on Tribunals has also highlighted the importance of tribunal independence, stating that it should be the "principal hallmark" of the tribunal system. The Council has recommended that a judicial head be created in each tribunal, with responsibility for the creation and maintenance of the conditions fostering independence and to consult with the sponsoring department on policy, administration and funding issues. [12] 

                3.10               The Leggatt Review stated that in the interests of securing the independence of tribunals, all tribunals should be administered by the Lord Chancellor.[13] We agree that for tribunals to be seen to be independent, they should not be linked closely to sponsoring Government departments.[14] We have not examined the issue of the perceived independence of the LVH tribunals in this consultation paper.

Jurisdictional issues

                3.11              As well as the incentives for positive reform of the structure of the LVH tribunals, there are also perceived problems with jurisdictional issues, as raised in the Leggatt Review. The Review states that some of the disputes handled by the LVH tribunals are very similar to those handled by the courts, and in some jurisdictions can be heard in whole or in part by both courts and tribunals.[15] The Review’s concerns are the overlaps and scope for forum shopping which the current system permits.[16]

                3.12              Our review of the LVH tribunals shows that the disputes where overlaps cause problems are those between private parties as opposed to those between citizens and the state, and mostly concern cases heard by the RPTS tribunals. We think that overlaps could be confusing for users if they are unsure about whether to start a case in the courts or in one of the LVH tribunals. Confusion over the correct jurisdiction could deter potential users from commencing proceedings and thus effectively hinder access to justice. Tribunals may have limits to their jurisdictions, resulting in the need for users to start two separate sets of proceedings. The system as a whole may seem unnecessarily complicated to users if discrete but similar aspects of their case have to be dealt with in different forums. Deliberate forum shopping might allow users to take advantage of uncertainties and inconsistencies in the system. The possibility of forum shopping may give an advantage to those who are experienced in bringing LVH cases or who have the funds to obtain legal advice when their opponents do not. In Part V of this consultation paper, we outline the areas of jurisdictional overlap which we have identified and ask consultees whether these overlaps do cause problems in practice.

                3.13              Given that the LVH tribunals have an important role to play in the resolution of land, valuation and housing disputes, how can their advantages best be delivered to users? Following the principles of the Leggatt Review, we have first considered how the tribunals could be restructured and how a more coherent framework can be put into place.[17] We secondly consider jurisdictional overlaps and question how these can best be dealt with.[18] The overall structure of the LVH tribunals system will to some extent influence whether, where there are currently unnecessary jurisdictional overlaps, jurisdictions should more properly be dealt with by the tribunals or in the county court. If the LVH tribunals are reformed in a way that ensures they are a coherent expert forum for the resolution of land, valuation and housing disputes, there is a greater argument that jurisdictions should be allocated to these tribunals than if they are not so reformed. In this way we seek to build up a rationally structured expert decision-making forum, without unnecessary overlapping jurisdictions, as recommended by the Leggatt Review.