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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Judicial imparciality

AdviceShop
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Advice shop - West Lothian Council

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Hi

Looking for some advice.

I had an appeal which was being re-heard following a successful appeal to UT. The presiding judge at the hearing was the District Judge who had previously refused Leave to Appeal for the original appeal and in her refusal decision had commented that she felt the client did not meet the disputed activity (was a PIP appeal) as she had listened to the recording and felt that the client did not meet the requirements of the activity.

I am minded to ask for a set-aside as I feel that her involvement in the LTA decision could leave her impartiality open to question. This is the first time I have came across this, so I’m not sure what the best thing to do is.

Peter

ClairemHodgson
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Solicitor, SC Law, Harrow

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AdviceShop - 03 November 2016 01:21 PM

Hi

Looking for some advice.

I had an appeal which was being re-heard following a successful appeal to UT. The presiding judge at the hearing was the District Judge who had previously refused Leave to Appeal for the original appeal and in her refusal decision had commented that she felt the client did not meet the disputed activity (was a PIP appeal) as she had listened to the recording and felt that the client did not meet the requirements of the activity.

I am minded to ask for a set-aside as I feel that her involvement in the LTA decision could leave her impartiality open to question. This is the first time I have came across this, so I’m not sure what the best thing to do is.

Peter

do you mean you’ve now had the decision following the rehearing?

i should think you need to get the statement of reasons and see if they show an error of law.  Also reread what the UT judge said when allowing your original appeal and sending back to FTT.  did the new FTT do what the UT said should be done?  was, in fact, there a direction that no one involved in the earlier decision should be involved in the new FTT, as is common?

Mr Finch
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Benefits adviser - Isle of Wight CAB

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Interesting - I’m not aware that this is prohibited as such, but it certainly seems unwise for a judge to sit having already offered a view that was overruled by the UT.

Martin Williams
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Welfare rights advisor - CPAG, London

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I would say that this is best tackled not as an issue of impartiality but as an issue of fairness more generally.

The Judge in this case has listened to the recording of the FtT. Unless the new medical member and the new disability member have also listened to that recording and arguably in addition unless a copy of that recording has been provided to the claimant then there is an issue of the Judge having had access to evidence which not all the tribunal members/parties had access to.

That would probably be a case of the judge allowing a procedural unfairness to have affected the proceedings in a way that could be material to the outcome.

Martin.