Complaint re: conduct of panel members at FTT

Hi everyone, quick query for comment/opinions:

I attended FTT with a client and his wife. Client has learning dis and physical problems. We were appealing a DLA decision. The medical member and disability member were, in my view, totally out of order in how they conducted themselves. The Judge was new, recently trained and was polite/professional but did not keep control of proceedings.

Medical member conducted questioning in a very aggressive, adversarial manner, asking very leading and rhetorical questions. For example, on a submission that the claimant had little concept of the passage of time (in relation to how long can you walk before you have to stop) the medical member said, “Well, you used to work didn’t you? And you had to get there for a certain time, yes? and you had to leave at a certain time, yes? So you must have a concept of time.”

On becoming confused about some questions, his wife tried to rephrase the question so her husband could understand and the medical member shouted her down and accused her of prompting her husband.

The disability member stated she had watched the claimant arrive and had timed him walking until he was out of sight. She said the distance covered was approx 50 metres, the client did not stop and it took 1 minute before he went out of view. She then said she had asked security whether the client had stopped on walking the distance to the front of the building and asked security how long it had taken. She stated security had told her he did not stop and took about 2 minutes.

The client and his wife disputed all statements claiming they had stopped to the side of the building next to a set of double doors. Both the medical and disability members insisted there were no double doors in that area. I checked after in relation to the doors…there is a set of double doors exactly where the client said. I also asked security re: the observations they supposedly made, each denied ever being asked such a thing and stated they would not have been able to answer as they had not seen the client arrive.

Obviously I have requested SoR and record of proceedings with the intention to request a set aside but I wondered whether anyone thought it might be appropriate to complain about the conduct of the panel members individual conduct in addition to the conduct of proceedings as a whole. It really was the most outrageous hearing I have attended to date, adversarial and more akin to a criminal cross-examination than to an informal, inquisitive, evidence eliciting Tribunal.

Any thoughts/opinions etc would be much appreciated.

Thanks,

JT-Appeals Officer

I’m generally leery about complaining about the conduct of panel members as it can be so difficult to quantify/substantiate but from your description of what happened I think a complaint is certainly justified in tandem with the set aside request. I’d be tempted to include a photo of the double doors with both. I suppose there’s no chance of the security guards making statements?

Will be interested to see what others think.

Their observations whether accurate on not would not be relevant to the date of the decision and may not be the distance etc that the client could do regularly anyway. I have commented on conduct on “leave to appeal” and “set aside"requests before, though I now would normally tackle them at the time-request a break and then go back in seperately and say something-if they shout you down, fair enough, at least youve made your point.

Like “multi storey car park crime - wrong on so many levels” (c) Tim Vine

I don’t think a setting aside or complaint will achieve the desired result (i.e. the setting aside of the decision). It is remarkably hard to prove that “hostile” questioning is not “robust” questioning instead, and I am not at all sure that it comes close to judicial misconduct (complaint) or a procedural irregularity (setting aside).

I would think that an appeal may be the only way forward, and even then an Upper Tribunal judge may well consider that the tribunal has not erred in law. I think the actions of the disability member warrant a degree of scrutiny and I am fairly sure there is some case law on something similar to this

Brian

edited for spelling

There has been a flagrant breach of judicial propriety here which warrants an immediate review of the decision providing that it is clear from the record of proceedings.

The disability member was not entitled to ask the security guards anything at all about their observations of the client prior to the tribunal convening and, certainly, without the prior knowledge of the other members.  Acting judiciously the tribunal should have, if it thought necessary, called the guards as witnesses thereby making their evidence part of the record proper and giving the appellant the chance to question them.  As to the probative value of their evidence, as dbcwru points out, it is after the date of the decision and might, if true, not be typical of her walking anyway. 

Her behaviour was outrageous and the tribunal’s wholly amateurish.  Like you said, a stronger, more experienced judge was obviously needed.  A reasonably minded impartial observer could have a field day with this.

As to a formal complaint.  You might want to send a copy of your leave to appeal application to the regional chair simply inviting him to comment.

edited to correct spelling mistake

Thank you all for your differing views and opinions, it just goes to show what is outrageous to one rep appears less so to another so no doubt you can all see the dilema.

Just to clarify a few points, 1, the medical member has apparently received a number of complains regarding her conduct to date, she really should not be sitting in my view and I had promised myself that the next time she acted aggressively and offensively towards a client I would report her conduct accordingly. She only ever seems to act in this way with especially vulnerable clients and it is simply unacceptable. 2. The same panel sat earlier in the day on another case of mine and questioned irrelevancies such as the claimant’s ability to care for his wife (recently diagnosed with terminal cancer) rather than his inability to care for himself or her. I have just received the SoR from that case and half a page is dedicated to the fact his wife does not have McMillan nurses in to care for her and considered that it was probable Macmillan would have arranged support if they felt it was necessary and/or arranged a care assessment in relation to his needs if she had thought he required assistance. Therefore the Tribunal finds the claimant cannot need any assistance with his own care needs or that of his wife-0 Award. Talk about irrelevancies!

3. The security guards were outraged at the what they stated was an outright lie and certainly 3 of the four guards on duty that day would be willing to make a statement.

Finally, I have to say it really was that fierce in there that I was seconds away from losing my temper, grabbing my client and his wife and storming out of there all together, there really was little point in attempting to put any argument forward because I simply kept being told I would have an opportunity at the end. Well, the end did not materialise for 1.5hrs (obviously at the time I was not aware we had been in there so long) but it really does show how much they were enjoying grilling my poor client, his wife and I, repeatedly asking the same questions over and over again.

No other word for it, it was outrageous and against any principles of natural justice, impartiality, unbiased, independent and informality and i could write a page on the procedural irregularities occuring during that hearing.

Thanks everyone!

JT-Appeals Officer

JT - I do think that what happened is outrageous, I just don’t have any great faith in the “system” viewing the manner in which this tribunal was conducted as being as wrong as I am sure we all do. Everyone at some stage comes across something similar. As you say, it is often one particular member who seems, week in week out, to get away with asking irrelevant or leading questions, often clearly with the sole purpose of “catching the client out”. Your member seems to be especially hostile.Perhaps you can liaise with other representatives using the same venue, and see if they all find that member equally problematic. If so, you could put together a joint letter to the district judge, with examples of what you all see to be poor conduct. Sometimes you find that a number of complaints does lead to something being said to the judge or member, but that is rarely communicated to representatives. A bit like the Premiership manager refusing to criticise his players publicly but having “a word” behind closed doors. The tribunal members are unlikely to do anything other than cover their own backs - perhaps recording of hearings may be a good way forward in some respects, so that those who deal with further appeals and complaints can actually hear for themselves what goes on

I think the claim to have privately questioned the security guards, away from the parties to the appeal and other tribunal members is the clearest error of law. Rudeness and hostility seem to be unofficially tolerated though.

I completely agree with making a complaint. Thankfully I have never witnessed behaviour such as this and in my experience Tribunals tend to be better behaved when a professional rep is present - the fact that they couldn’t care less about your presence and witness to this is even more outrageous and they should not be allowed to get away with this without a complaint.

If the tribunal gave weight to the evidence allegedly obtained from the security guards, without the whole tribunal questioning them or the appellant having the opportunity to question them, I would say that was a breach of natural justice and also Wednesbury unreasonable ) which means, taking into account things that ought not to be taken into account, and not taking into account things that should be)
This is a classic example of hearsay evidence and, while the normal rules of evidence do not apply in Tribunals, the fact that evidence is hearsay will tend to make it less compelling than direct evidence.
I believe that if a member of the Tribunal believes they have personal knowlege relevant to a claimant’s case - in this case, the doctor’s own alleged observations - the evidence should be clearly put to the appellant who should be given every opportunity to respond to it. That does not apply in the same way to hearsay evidence which is not the doctor’s personal evidence, and the tribunal should have required very strong grounds indeed to accept it as more compelling than the appellant’s - or even at all.

It follows that I think the decision is flawed in law and that you stand a good chance of getting it set aside with a well-written submission. With luck the full-time judge who deals with the application may know the premises and be aware of the lack of double doors, for example. S/he may also know the medical member in question.

Coming to this very late but:

1) Natural justice would suggest that no member of a tribunal starts the hearing with more knowledge of the appellant than the others. As a rep I would therefore always query whether the point was put to other members of the tribunal before matters commenced. The fact that the observation was after the date of claim is relevant but not entirely so else there would be little point in seeing an appellant at an oral hearing. I do think reps can get themselves in a fair old pickle if they enter a tribunal room with any expectation that an appeal will be determined solely on the evidence and findings of fact. You have to be prepared to challenge conduct appropriately and to know your Tribunal procedure regs and guidance and your errors of law.

2) Complaints against tribunal members are a tricky area where a number of interests need to be balanced. However, the measure for me has always ultimately been whether the appellant is sufficiently distressed (beyond the norm of the stress of appearing at a hearing) to want to support the pursuing of a complaint. Even then I would tend not to pursue the matter if it came down to me and the appellant versus the tribunal members. Where there were third parties I have always tended to the view that if they are supportive complaints are likely to be upheld.

3) I once complained against a GP on a tribunal who had interrogated the appellants partner (the appellant was not physically capable of being present) to the extent that they developed shaking hands during the course of the hearing and the CPN had to intervene. The CPN was advised by the GP to not tell them “how to deal with poor people”! This quote has resonated with me down the years but it meant that myself, the appellants partner and the CPN were quite amenable to a complaint.

This leads me onto an important point. There is a tendency to see a tribunal as a unified thing and to think complaints are something that lies between futile and dangerous. However, it is not always the case. There are three individuals and they may neither like nor respect each other. In the above example the Chair and the GP absolutely denied what had taken place despite statements from myself; the partner and the CPN. The other member of the tribunal made it clear that said conduct was absolutely what had taken place and basically confirmed that the other two were somewhat distant from the truth. Complaint upheld. GP had the scope of appeals they attended somewhat narrowed down. Chair was moved elsewhere.

In this case I am torn. Out of context I am sure but the questioning re: concept of time looks aggressive but not wholly out of order. I’d challenge all the rest of it though with statements as other posters have suggested.

Quick update and further advice sought!

I decided not pursue complaint when the security guards had been advised that they were not allowed to give me a statement by their boss. I requested statement of reasons and copy of the record of proceedings, both of which were completely inadequate and made barely any mention of the points I was complaining about, for example, with regard to the discussion about the double doors at the side of the building, the RofP simply state, “DM: saw you walk to front-2minutes-out of sight-no stopping. MsT: stopped at double doors side of building. DM: no doors there.” Nothing is stated about the rest of that conversation and nothing is stated about the disability member speaking to security guards.

Decided to request set aside anyway on grounds of error of law, pre-judgement and perceived/actual bias.

Received decision notice last week stating following:

Appellant has applied for permission to appeal…
1. Permission to appeal is refused
2. No arguable question of law is disclosed by the application.
3. It is not considered that the allegations of procedural irregularities or pre-judgement are made out.
4 It is considered that the factual findings and conclusions of the Tribunal were reasonable on the basis of the evidence before the Tribunal. The statement of reasons gives a clear explanation for the findings of fact and conclusions reached.

It is then signed by the SAME Judge who heard the appeal!

I contacted Birmingham and they say because she is a District Judge she can decide the matter irrespective of the fact that she heard the appeal. I seriously would have thought she should recuse herself at the very least but I am told that my only options are not to request permission to appeal directly to the UT and/or make a complaint.

Any thoughts anyone????

Renew the application to the UTT requesting that the tribunal compel the security guards to attend to give evidence or (as is more likely) to give sworn statements as to the matter in hand.  Refusal to comply (unless it is something they were not required to produce in a court of law) is contempt of court, with all that that entails.

This case sounds just like my experience - a medical panel member referred to my client as a ‘chunky lady’ - outrageous - and they were aggressive and intimidating despite my client being suicidal - unbelievable. 

I got the decision set aside however but not on the basis of a breach of natural justice but on inadequate findings of fact and reasons etc.  The set-aside decision Judge (although accepted the complaint against the comment) referred to the fact that the tribunal had not been challenged during proceedings on the other matters.  Trouble is, we all are aware that we risk further escalating an already tense situation if we do.  Frankly, I am shocked that a panel member can conduct themselves against the principles of natural justice and still get away with it.

Hi everyone,

The plot thickens! My application for permission to appeal to the UT is still undecided. I made submissions on the grounds discussed in earlier posts. In Oct last year, the UT Judge requested the UT registrar obtain comments from the panel members in relation to my submissions on the procedural irregularities.

These were not forthcoming and on 28/11/12 they wrote again directing responses to be returned within 28days.

Rang for update on 23/01/13 and was told a decision had been made and would be issued to the parties shortly. On 05/02/13 was told decision had gone to photocopying and would be with us shortly. On 04/03/13 rang querying delay and was told the file had been returned to the Judge because it appears a number of documents have been added to the file! Was advised that since the decision in Jan ‘13 had not yet been issued it may be reviewed before being issued.

Rang again today and told the file was first with the Judge. It was then referred to a registrar (who I am informed is a Gov lawyer) and has now been referred to a different registrar!

Explained that I am concerned that as the appellant’s rep we are yet to receive a copy of these additional documents and am equally concerned as to why the file keeps being referred to a registrar before a decision is reached.

Has anyone come across this before? I am beginning to get extremely frustrated and little concerned about all this cloak-and-dagger stuff yet the UT clerk could only say if it has been referred I should rest assuraed that it is with good reason!

Any thoughts greatly appreciated as always.

JT