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Ensuring access to justice for vulnerable people will be at the heart of the Government's Court and Tribunal digital reform programme

03 October 2019

The Legal Education Foundation (TLEF) has published a report, setting out a blueprint for evaluating the impact of the Government’s £1 billion online courts programme, and for ensuring the needs of all court users.

The HMCTS seven-year courts and tribunals reform programme, launched in September 2016, aims to create services that are digital by default and design including digitising paper-based services, moving cases online, court closures, introducing virtual hearings, and centralising customer services.

TLEF’s report, by its research director Dr Natalie Byrom, sets out 29 detailed recommendations for how Her Majesty’s Court and Tribunal Service’s (HMCTS’s) digital processes should be designed or adapted to ensure they capture the data necessary for government and others to evaluate if online courts are disadvantaging some types of users.

Dr Byrom says:

“In order to honour its commitment to monitor the impact of digital courts on vulnerable people, government must collect data about those using the courts.

To avoid exclusion, or to be able to correct procedures if some groups are being excluded, my recommendation is that court users are asked a small number of questions about protected characteristics – for example, in relation to age, mental or physical disability, gender, and other factors associated with vulnerability.

These questions would be optional and reflect the attributes currently used by judges to determine when an individual may be vulnerable. This information should be collected as a matter of routine.”

She adds:

“The move to online courts is an incredible opportunity to create a justice system that works well for everyone, whether they are an individual in crisis who has never been to court before, or a large organisation which regularly brings claims.

We need to ensure that digital processes are designed and monitored in line with recognised access to justice principles. We also need to be able to measure how different groups fare under the online processes, compared with paper-based, or face-to-face systems.

The detailed recommendations in my ‘Digital Justice’ report are intended to be a blueprint for putting access to justice at the heart of the HMCTS reform programme.”

Dr Byrom’s recommendations include:

  • collecting data about court users’ vulnerabilities, including age, mental and physical disabilities, literacy levels, and gender;  
  • monitoring outcomes in the digital courts, both to compare with outcomes under pre-digital processes, but also to evaluate how different groups fare compared with each other under the new system;
  • collecting data on the outcomes of cases - for example abandoned/withdrawn/settled/determined - and the amounts awarded/settled for across the different processes, e.g. Continuous Online Resolution, Online Civil Money Claims;
  • monitoring which types of users and which types of cases are decided by a judge (rather than being determined earlier in the process);
  • ensuring strict, clear and ethical controls over how accumulated information is used, to avoid misuse and ensure privacy is protected; and
  • publication as soon as possible of HMCTS’ open data strategy, which should be developed in line with legal and ethical principles.

Ken Butler DR UK’s Welfare Rights and Policy Adviser said:

“The TLEF report contains many welcome detailed recommendations aimed at ensuring that digital reform will not be implemented to the detriment of justice for all groups including disabled people.

The HMTCS digital reform programme is of great relevance to disabled people. Around 4 in 5 appeals made to social security tribunals are made by disabled people and both ESA and PIP appeals are currently upheld in favour of the claimant in 75% of cases.

It is vital that any digital reforms do not disenfranchise disabled people by effectively excluding their ability to seek justice and do not deny them justice by leading to a drop in the number of successful ESA and PIP appeals.”

The TLEF report Digital Justice: HMCTS data strategy and delivering access to justice is available @ www.thelegaleducationfoundation.org

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