December 02 2023

Not fit for purpose

Not fit for purpose

The Government’s principal – if not only – defence against the charge that its proposed fees of up to £1,750 for employment tribunal (ET) claimants would create a substantial barrier to justice, is to cite its intention to extend the existing remission scheme for civil court fees to its proposed ET fees regime.  In its consultation paper on ET fees, the Ministry of Justice states that ‘just like in civil courts the taxpayer will continue to fund a system of fee remissions (waivers) for those who cannot afford to pay. In this way [the proposed ET fees regime] would rebalance the system, without denying access to justice for those on limited means.’

There’s just one, eensy-weensy problem: the civil court fee remission scheme is not fit for purpose. Indeed, it is so unfit it has come close to passing away.

The scheme was introduced in October 2007, to replace an earlier exemptions and remissions scheme.  It allows for three types of remission: Remission 1 provides full remission to those in receipt of specified means-tested benefits, such as Income Support or income-based Job Seeker’s Allowance; remission 2 provides full remission to those with a gross annual income below a specified threshold (currently £13,000 for a single adult with no children, and £23,860 for a couple with two children); and remission 3 provides full or partial remission based on an income and expenditure test to calculate monthly disposable income.

In its consultation paper on ET fees, the Ministry of Justice estimates that 10 per cent of ET claimants would be ‘eligible’ for remission 1, that 17 per cent would be eligible for remission 2, and that a further 50 per cent would be eligible for at least partial remission under remission 3. But the Ministry’s use of the term ‘will be eligible for [remission]’ – rather than, say, ‘will receive’ – is significant. For Remission 2 and, in particular, Remission 3 are extremely complex, and so difficult not just to understand, but to evidence.

Indeed, the scheme is so complex that it is poorly understood not only by low-income civil court users. In December 2009, a report by consultants PricewaterhouseCoopers (PwC), commissioned by the Ministry of Justice, concluded that remissions 2 and 3 are so complex that they are poorly understood by many of the HM Courts & Tribunals Service officials administering the scheme. As a result, a shocking one in three of all decisions on an application for remission were found, upon scrutiny by PwC’s researchers, to be incorrect. Worse still, ‘where the correct decision was to approve remission 2 or 3, the majority of staff gave the wrong answer’.

These findings were so disturbing that, in 2010, Ministry of Justice officials began work on reforming the fee remission scheme. In discussions with Citizens Advice, officials indicated that they were considering a number of radical options, including merging remissions 1 and 2, and abolishing Remissions 2 and 3 altogether. However, when we asked recently how this work was progressing, we were told that it had been shelved sometime after the formation of the Coalition government in June 2010.

And that’s not all. In 2013, the specified means-tested benefits which ‘passport’ a civil court user to Remission 1 will be abolished, and replaced with Universal Credit. And, as the population in receipt of Universal Credit will be far greater than that in receipt of the existing passported benefits, the two are not analogous. In short, Remission 1 will simply not exist in its current form by the time any ET fees regime comes into force.

In short, the Ministry of Justice is relying on a fee remission scheme that is so ‘not fit for purpose’ that it is in intensive care and the doctors are thinking it might be time to turn the life support machine off.