Category: Public administration

Judicial Review may be denied to many

A blog by Mark Elliott draws attention to a recent statute which gravely undermines the rights of citizens.  Section 84 of the Criminal Justice and Courts Act 2015  states that the High Court

      (a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award … on such an application,
if it appears to the court to be highly likely that the outcome for the applicant would  not have been substantially different if the conduct complained of had not occurred.

That means, Elliott suggests, that there will be no effective remedy for breaches of procedure, such as the failure to give reasons for a decision.  I’d be concerned that it also reduces the already limited rights of benefit claimants to processes that are transparent, accountable and fair.

The 2015 Act applies throughout the UK, but the specific provision only applies to England and Wales, because the precise wording is an amendment of a section in the 1981 Act which has that restriction.  This could imply a parting of the ways for judicial review in England and Scotland.

How much will Scottish benefits cost to run?

I spoke yesterday to a reporter from the National, who asked me about the administrative costs allowed for benefits in the new fiscal framework.  She quotes me as saying, “The lack of clarity as to what the arrangements will be and what the costs will be that the Scottish Government are expecting to carry makes it very, very difficult. There are clearly matters of concern.”  I actually went into a lot more detail than that – for example, the difficulty of dealing with benefits in transition, the uncertain predictions for PIP, and the precedent for costing administrative change in central government.

Nicola Sturgeon has written to David Cameron in these terms.

“there is still considerable distance between us, including capital and revenue borrowing and the transition costs – set up and administration – associated with the devolution of powers within the bill and specifically welfare powers.
For example, on the last of these issues, based on information provided by DWP and our own analysis of published data from DWP’s Personal Independence Payment and Universal Credit business cases, we estimate ongoing administration costs to be approximately £200m annually, and set up costs to be between £400m-£660m.”

The Treasury, it seems, has dismissed the estimate of £200m for administration.  Apparently they have commented that “either the Scottish Government plans on running a remarkably inefficient benefit system, or is not serious about agreeing a deal and doesn’t want the responsibility of using its new powers.”  So – is £200m a serious estimate?

The problem that most of us have in estimating the costs of administration is that this sort of information is no longer publicly available.  The DWP claims a general administrative cost of about 3.5% a year, but that lumps together high cost benefits like ESA with low cost ones like the State Pension.  The DWP Annual Reports used to carry a breakdown,  but in recent years they have been replaced by glossy propaganda, and nothing in the balance sheets tells us what the administrative costs are.  I went back a few years, then, to get an indication of the costs.  In 2007-08, the administration of working-age benefits cost £2.98bn, on expenditure of £47.3bn: that comes to 6.3%.  Pensions cost £220m for £97.8bn benefits, equivalent to 0.23% of the cost.     The administration costs of some benefits will have increased in the intervening period – that is the result of personalisation, conditionality and assessment.

The benefits being devolved to Scotland are not like pensions – they are nearly all the more expensive, fiddly ones.  (It’s been reported that there were proposals from the Smith Commission to pass over some more straightforward ones, and they were vetoed by the Cabinet. ) The value of benefits currently being devolved to Scotland is just below £2.7 bn, so the estimate of £200m looks like an administrative cost in the region of 6.9% (that is, £200m out of £2.9bn.)  Please bear in mind here that I do not have access to the real figures – I am piecing together a puzzle in an attempt to get a sense of what is happening.  That suggests that £200m might be on the high side – 6.3% of costs would be closer to £183m – but it’s a long way from being ‘remarkably inefficient” or “not serious”.

The NAO expresses concern about disability assessments

The National Audit Office has expressed concern about the management of contracts for the assessment of people on ESA and PIP.  98% of claimants for PIP have been receiving face to face assessments. They are critical of ” a cycle of optimistic targets, contractual underperformance and costly recovery”.

The DWP has been quite clear about its reason for doing so many assessments:  they save money.

“The Department introduced a target of 1 million ESA assessments to be carried out in 2015-16. It told us it derived the non-negotiable target from the number of assessments needed to achieve expected benefit savings rather than from discussions with bidders or modelling of the possible number of assessments.”

Assessments do save money.  Some people would say that that’s because people aren’t really entitled, and the assessments find them out; but it’s just as likely that the assessments are counting people out for the wrong reasons, such as not getting to the interview, not understanding the tests, or relying on the wrong sort of evidence.   The assessments are slow, intrusive, and presumptuous (they overrule extensive medical evidence about people’s situations over time).  We ought to be asking whether assessments are really the right way to save money, or whether we need to review the rules so that the benefits make more sense to everyone.

The no detriment principle in operation

The Smith Commission proposed that neither administration should be better or worse off as a result of devolution, and argued for compensation if the effect of decisions were to push costs onto the other party.  A House of Lords Committee has described this as a ‘recipe for continuing conflict’, and they may well be right.  A small report from the Auditor General remarks on a small element in the costs of transferring responsibility from HMRC to Revenue Scotland.

HMRC has charged the Scottish Government £0.73 million for it to stop collecting Stamp Duty Land Tax.  HMRC charges the Scottish Government for costs associated with the devolution of Stamp Duty Land Tax. … It estimates this will cost £1 million, most of which is for changes to IT systems.  For the period up to the end of 2014/15, HMRC has invoiced the Scottish Government for £0.73 million.

So HMRC has charged the Scottish Government for the costs of not doing anything. This is an ominous precedent for the transfer of responsibility for benefits; if the DWP bills the Scottish Government for not doing disability benefits any more, it’s going to be an expensive business.

The Universal Credit business cases: a reply to my FoI request

I have received a response to my Freedom of Information request about the Universal Credit Business Case.  I asked:

”(a) What is the expected timetable for the submission and approval of the Outline Business Case and the Final Business Case?
(b) When will the business cases be published and subject to public scrutiny?”

The Treasury response referred me to Sharon White’s oral evidence to the Public Accounts Committee last year, which I’d already cited in my query, but continued:

The first stage of this process, the Strategic Outline Business Case, was agreed for Universal Credit in September 2014. The next step, the Outline Business Case, is currently with Treasury Ministers for approval. The Full Business Case will follow for Ministerial approval by the end of 2017. This is in line with the process within Government and a Programme of the scale and complexity of Universal Credit.

With regards to your second question, I can confirm that the Government is not planning to publish the Universal Credit Business Case. The Government does not generally publish internal business cases.

Additional note:  It appears, from evidence to the Public Accounts Committee, that the Ouline Business Case had actually been approved shortly before this letter was sent.  The PAC was rather surprised to hear this, too. 

Does the Supreme Court know how to make sense?

I opted out of legal studies when I was still a student, choosing to a PhD in Social Administration instead, and my only legal qualification expired a long time ago, but on occasion I still like to dip a toe in the water.  I was intrigued enough by a debate reported by Mark Elliott to read a lecture by John Finnis on judicial power.   Finnis thinks the Belmarsh judgment was a ‘debacle’, comparable to the nonsense they got into when the House of Lords was reviewing attempts to do the  impossible. I agreed about the silly rule on impossible attempts, which was the law when I took the exams, so I wondered whether I might also agree about Belmarsh, and read the judgment front to back.   I don’t agree with Finnis, as it happens, but I think I can see the problem.

I’ve only read a handful of judgments like this, but all have followed the same process.  Up to nine judges offer individually written, considered arguments, most of which make sense in their own terms.  There will usually be a statement to the effect that they agree with a particular one of their number, but hardly anyone does what Lord Caswell did in Belmarsh, and stop after saying, more or less, that ‘I agree with that one’.

This process creates two immediate problems.   The first is a problem of over-inclusion. Each of the judges addresses a slightly different agenda.  The longest judgment, by Lord Bingham, addresses a long series of issues:  the statute, human rights law, international obligations, discrimination, public emergency, and proportionality.  In the eight judgements, all the judges consider human rights issues; all refer to the terms of the 2001 Act (which Finnis accuses them of not considering adequately); nearly all consider discrimination (one only indirectly); six consider the public emergency; five refer to proportionality.  The difficulty here is that even when judges are similar things in different words, it can be difficult to determine which is the best or clearest statement of the law.   When they say different things, it is impossible.

The second problem is a problem of exclusion.  Each of the Lords has arrived at an an individual judgment, and to do that they have had necessarily to select the issues that they consider to be most relevant and important.    Two judges thought it relevant to refer to the International Covenant on Civil and Political Rights; the others presumably did not.  It is much more difficult to spot the issues that no-one thought pursuing, but that is the substance of Finnis’s complaint – that there were further considerations in the statute and the Human Rights Act which ought to have been included too.

Both of these problems have a common root.  If the material was ordered thematically, instead of being argued one judge at a time, the contradictions, elisions and omissions would be evident; if there were visible gaps, they could be plugged.  The decisions of the Supreme Court are not the decisions of individual judges; they are decisions of the Court.  Unless and until they are stated collectively, they will never make sense.

 

Will more paperwork avert global catastrophe?

I am on the committee of a small music society which organises chamber music concerts.  We have just been asked by the funding authority to make formal returns about our carbon emissions, based on the distance and method of travel to be used by the musicians who visit.   I thought it was unlikely that itinerant musicians had been singled out as making a major contribution to climate change, so I looked around to see who else has been included in this sort of request.  This led me to DEFRA’s Guidance on how to measure and report your greenhouse gas emissions, published in 2009.  This gives the example of how  a countryside Bed and Breakfast can calculate its own part in world destruction.  The 2009 code was  voluntary for smaller organisations.   What’s been happening, however, is that funding and grant-making authorities are passing down the responsibility to smaller units.

There are two main reasons why governments ask for this kind of return.  In part, it’s based in the belief that it will help to make people aware of the issues, and change the way that they behave – the process of making returns becomes a form of public education.  There may be examples where this is helpful – gender equality, disability discrimination, and distributive assessments among them.  The more requirements we put on an organisation, however, the greater is the overall burden of administration.  The voluntary sector already has heavy duties relating to the protection of vulnerable people, risk assessment, financial transparency  and public benefit.   Every new priority ought to be asking whether making such returns is an effective way to achieve the desired end.

The other main reason for asking for this kind of return is that government wants to collect the information.  This is not the way to count anything.  If we get selective returns from miscellaneous small organisations we will not be able to do anything with it, and it’s questionable that we can even use the data validly as a sample; but even if all organisations receiving public money make the return, the information cannot be extended to understanding carbon emissions more generally.  If the government wants to know how much energy is being used in total, it needs to look at supply, not demand;  it is the energy suppliers who hold the information about what kinds of fuel we burn, how much, and in which sector.  If it wants to get a sense of the relationship of different types of economic activity to energy use, any social scientist could tell them immediately that they should be looking to relate a sample against the totals they already know, not trying to census everyone’s activity.   As a source of information, this exercise is pointless.

 

Unexpected item in bagging area: a plan for supervising offenders

The Guardian has a long and honorable tradition of running preposterous stories on April 1st; this year, one seems to have escaped and appeared a day early.  Apparently Sodexo, which has been contracted in England and Wales to provide probation services, intends to replace probation officers with automated check-ins so that offenders can report for supervision without making contact with a human being.

Long ago, probation officer Geoffrey Parkinson shocked some of his readers by suggesting that the thing to do with his old lags was to give them 50p to go away, and then to ask “was there anything else you wanted?”    But that was in the days when people thought probation officers were supposed to be doing helpful things like advising, assisting and befriending their clients.  (I should translate that for anyone who’s not as long in the tooth as I am; I mean, of course, nonscripted business processes where human resources interface in supportive coproduction with customers.)  In those days, hard as it is to believe, people imagined that probation officers could help to make a difference to the social behaviour of offenders.  How quaint that seems now.

 

Poisonous drivel about leadership, from a former Prime Minister

In an interview broadcast this morning, Tony Blair argues that what people want is strong leadership.  He told Nick Robinson that seven times.

I still think people, what they actually want is clear leadership and direction.  They want answers to their problems.  …  There is a whole swathe of the population that thinks, “I elect my government, you guys go and govern. You know, don’t keep troubling me every three seconds with what I should think or shouldn’t think.”  They want to see their leaders leading.

The way he put it put me in mind of one of the test questions used in the classic study of The Authoritarian Personality: “What this country needs is a few strong, courageous, hard-working leaders in whom the people can put their faith.”  That question was included in the study, of course, because it is so deeply opposed to democratic values.

There are certainly some people who want the smack of firm government, but fortunately they’re in a minority.  What more people want, and what they are entitled to expect from people who are elected to office, is service, not instruction.  They want people who listen, and people who are competent – the two tend to go together, because it is not possible to serve people adequately or to deal with problems if you don’t listen.  And as long as the political class is convinced that what we really ought to get instead is “leadership and direction”, someone telling us what to do, we will have neither understanding nor competence.

Death: going live after the next election

Relax; this is not about the forthcoming zombie apocalypse.  A note from the Public Health Directorate to the Healthcare Improvement Scotland explains:

I am writing to confirm death certification implementation will continue to move forward but with a new go live date.  Given the proximity of the current planned ‘go live’ date for the new scrutiny system to the UK General Election in early May next year, we have considered it would be best to move the ‘go live’ date by a few weeks until after the Election. Therefore, following discussion with key stakeholder groups we have agreed that the new ‘go live’ date will be 13 May 2015.

I’ve done a little spadework, so to speak, to find out how going live became a live issue for people working with the dead.  This is what I’ve dug up.  I think the culprits may be American (they do things differently there).     In Arkansas, for example, the Project Schedule for Electronic Death Registration began in 2009, and had seven stages:

  • Kickoff
  • Confirmation of Requirements (Gap Analysis)
  • Design and confirmation
  • User Acceptance Testing
  • Pilot
  • Go-Live at Pilot Location
  • Statewide Roll-out

It’s understandable, perhaps, that public administrators lapse on occasion into a little jargon – it’s infectious.  They really ought to be aware, though, that in any contemporary public service, whatever they do is liable to be read by a general public, and it ought to be written with that audience in mind.