Can the same judge who refused permission to appeal to the upper tribunal be on a new first tier tribunal?

Hi

A client of mine lost her DLA appeal with a part time judge.  I asked for permission to appeal to the upper tribunal but was refused permission by a district judge. 

I appealed to the upper tribunal without permission and they accepted that three errors of law had occurred and said a new first tier tribunal should take place.

When we went for the new tribunal the judge on the tribunal was the same judge who refused us permission to appeal to the upper tribunal!  It did not matter because it was adjourned for more evidence. 

However, should I have objected to the presence of the judge?

usually the UT will direct a freshly constituted tribunal; it should say in your UT judgement what was said. if so, then yes, you should have objected (that judge should not have been listed to hear it).

Hmm. Not convinced. That’s freshly constituted as in “not a member of any previous tribunal which has heard evidence on the matter”. The basic principle being that no member of a panel should start with more knowledge of the case than any other member.

The judge who refused leave to appeal will have read a statement of reasons and made a decision on leave to appeal based on consideration of errors of law rather than fact. They have not taken or heard evidence and they have no more knowledge of the case than any other panel members because all the paperwork relating to the original case and the application for leave to appeal will be contained within the new papers. All 3 tribunal members will know they are dealing with a UT re-hearing and that it was refused leave at a local level and by whom.

So, what’s the issue?

Now, if there was specific evidence of a certain amount of resentment coming from the judge that the UT had looked at the matter and concluded differently to them and that this had perhaps impacted the conduct of the new hearing there may be something to go at, but how exactly is/was that demonstrated?

Whilst I think it beggars belief that Liverpool, as my local example, persist in the belief they don’t have judges who routinely refuse leave to appeal in the most perverse circumstances, it’s only fair to say that it must be pretty routine for a case to be given due consideration at local level and a rational decision of no leave to appeal subsequently being changed at UT level with there being no resentment whatsoever. Looking deeper into errors of law is what UT judges are for after all so one would always expect a number of perfectly rational (on the surface) referrals to be overturned by UT without FTT judges taking umbrage and subsequently taking it to heart and taking it out on the appellant or their rep. at the fresh hearing.

Equally there has to be a sense of realism. Less work at present. A proportion of part-timers leaving or moving jurisdiction in consequence and still not enough work for full-time judges. Inevitably first dibbs on those things which are listed must surely fall to salaried judges unless there’s a part-timer with some specific knowledge I’d have thought.

I would if any previous tribunal member reappeared who had heard evidence. I wouldn’t think to object in these circumstances.

I had a DLA appeal where leave was refused by the District Judge, but granted by UT. When the appeal came back for re-hearing, the District Judge who refused leave was in the chair. He openly asked if I objected to him hearing the appeal as he had been involved in the last one (albeit only by considering the application for leave to appeal). I didn’t object and the appeal went on to be allowed!