A huge industry has sprung up around it. Somebody has to skim off the money, and in this case, most of the time, it’s the lawyers. I don’t want to criticise them, as they are professionals, but the incentive is obviously for them to continue trying to squeeze out what they can get for their client.
There are many such examples from employment tribunals where, as in asylum cases, the person complaining often pays nothing, not even if they lose. The company they have complained about, meanwhile, will have spent between £7,200 and £50,000 before the first witness is called, according to our research – and that is just for the most marginal cases. In fact, many cases that are heard in tribunals should have been thrown out before they reached that stage – a point that presiding judges often make themselves. It is an own goal.
Over the course of working on our report, we came across countless, staggering examples of wasted resources. In one property dispute from January of this year, where a landlord had claimed £47,000 from leaseholders in service charges, these costs were reduced by just £400 – after a full tribunal that would have cost many multiples of the sum awarded. There may have been no other way to solve this other than through a tribunal, but it does make you wonder whether a better triage system is needed.
In another case against HMRC, a group of opportunistic taxpayers who had used stamp duty land tax avoidance schemes were awarded £1 after a costly full hearing. They claimed they had been unfairly investigated by the taxman and appealed for costs amounting to over £80,000. The tribunal upheld their appeal, but only on a technicality. Ultimately, the taxpayers weren’t entitled to the stamp duty land tax relief – they had just got lucky (hence the award of only £1). But, because the claimants won, the costs were paid by HMRC.
These pale in comparison with an example from the Information Tribunal (formerly known as the Data Protection Tribunal), where an individual had waged a one-man war against various public bodies for 30 years. He had been making information requests, demanding investigations and appeals from a university, then a council, since 1992. This continued until a tribunal found a way to stop it. Again, the complainant never paid a penny.
We settled on including just a few examples in the report, as there were so many, and so many of them were completely farcical. Others, meanwhile, just show a system that is failing at its core. Special educational needs and disabilities (Send) is another area I focus on, because the Government or local councils lose up to 95 per cent of cases brought by parents over provision, funding and alleged discrimination against their children.
The public sector wastes £60m to 80m a year on such disputes, and the law makes it virtually impossible for a Send case to be overturned. The problem there isn’t the tribunal itself – it is the system that underpins it. And yet applications have risen exponentially in recent years – they held steady at 3,000 to 4,000 per year until 2016, but last year hit 23,861. There have been 21,344 in the first nine months of this year.
I believe much of this could quite easily be addressed. In previous decades, when a small fee was introduced for tribunals, it decreased the case load dramatically. For example, when employment tribunal fees were introduced in 2013, claims fell by 69 per cent. Then, when the Supreme Court struck them down in 2017, claims rose by 39 per cent.
Some of these things are real problems that need real solutions. The focus must be on them. Until it shifts, every day there will be another crop of cases that cost an awful lot of money yet will get nowhere.