A client of mine recently attended a DLA appeal, he had an arguable case, probably for LRC but it was by no means clear cut and in fact the appeal was dismissed. Client had in fact appealed by himself against an earlier DLA refusal about a year ago but again failed. Client now tells me that the same three members heard both appeals and is convinced that because of this they were biased against him. Can anyone point me to any case law on this? I am aware of SDLA/364/2005 but that relates to an EMP sitting as a tribunal member and hence 'crossing the table' so I think that can be fairly clearly distinguished on the facts.

Thanks as always for any suggestions

a hot off the press one that might be worth looking at is CDLA/1312/2006

.... it's not exactly the same as your case in that its about, on application for leave to appeal to the cmmr, the district chair setting aside the tribunal's decision and refering it back to the same tribunal .....

.. but again, may be worth a look ?

http://www.osscsc.gov.uk/aspx/view.aspx?id=2144

i went to a tribunal with clients recently and when we went in client recognised one member as a member who sat on previous tribunal re. same issue (dla for autistic child). Chair immediately took note and the tribunal is ajourned to a new, freshly constituted tribunal with a list of those who could not sit on it...the ground was fairness, to prevent me being able to appeal on that particular point of law later, and rightly so.

if the tribunal members knew they'd sat previously, as they must have done, they should have ajourned it immediately. since they didn't, i would have thought you've a good ground?

disclaimer ....this a contribution to debate.

Yes I agree. I also did a tribunal recently where the chair had sat previously on an appeal by my client regarding the same benefit, DLA, where she had lost.

At the beginning of the hearing he announced this and offered an adjournment. On my advice, however, my client was happy to proceed. I was confident (as I'd appeared in front of him many times) that he was fair, knowledeable and that his input into the decision would reflect that. We won.

If an adjournment is not offered at the outset, however, then there may be a breach of natural justice and a breach of article 6 of the HRA.

Many thanks for the responses to this, very helpful! I am currently waiting for the SOR/ROP and will re-evaluate when received! In the meantime I came accross this in chapter 7 of the benchbook which I thought I would post up in case it it useful to anyone else:




8. The fact that the same chairman or member has previously heard an appeal from
the appellant will not necessarily mean that they cannot sit again. Such a situation
can arise from time to time, particularly in appeals relating to disability living
allowance where claimants can often make repeat claims. An appellant may feel that
it is unfair, where a tribunal has dismissed an earlier appeal against decision A, that
the same chairman or members are to hear his later appeal against decision B.
However, the same problem arises in the courts, where a judge or magistrate may
have dealt with the same party or defendant on a previous occasion, and the general
rule is that a party to proceedings is not entitled to 'shop around' in order to find a
judge who may be more sympathetic. This general rule has been confirmed by the
Court of Appeal in Locabail (UK) Limited -v- Bayfield Properties (2000) 1 AER 65,
where it was said that no sustainable objection can arise merely because, in the
same case or a previous case, the judge has commented adversely on a party or a
witness, or found their evidence to be unreliable, unless the judge has expressed his
views in such extreme and unbalanced terms that they cast doubt on his ability to try
the issue with an objective judicial mind. And in the more recent case of Dobbs v-
Triados Bank NV <2005> EWCA Civ 468, 15 April 2005, Chadwick LJ confirmed that
a judge should not recuse himself from hearing a case simply because he has been
criticised by a litigant; even though such a course might be tempting it should be
resisted as otherwise litigants would be able to select their preferred judge simply by
criticising all the judges that they did not want to hear their case.

I'd guess that on a typical DLA case if it was more than a few weeks before and the facts were nothing special, a busy tribunal member won't remember anything about the case or the client anyway.

This is why I am a bit hesitant, the previous tribunal was about a year ago (although I have no detials) and this client is rather fond of his conspiracy theories so I am trying to not to fuel that particular fire!

This issue also came up in CCS/1876/2006.

If I remember correct, I think it says similar to other decision above that there is nothing in law in similarly constituted tribunals but it may not be good practice.

here is the link to OSSC site

http://www.osscsc.gov.uk/aspx/view.aspx?id=2058

Thanks for that one, I'll have a look before I finilise my advice.

A colleague had a tribunal yesterday where the disablity wing member had sat on, and the chair had observed, an appeal a month ago at which our client had been a witness (in her husband's DLA appeal).

They not only offered an adjournment, but also, when our client said she was happy to go ahead, reserved the right to adjourn if they felt that their impartiality might be called into question during the course of the hearing.

just found this.....

http://www.bailii.org/uk/cases/UKSSCSC/2007/CSIB_85_2007.html

which is very useful on the point

Thanks Claire. Thats a good decision to read as it summarises a lot of the previous case law. What a star you are!

In the end, in my case the SOR was received and I advised client not to proceed, and the above case, whilst it was in the claimant's favour, can be distguished from mine and and there are several findings which support the view that my case probably wasn't going very far. The previous case was at least a year ago, although i suspect more like two or three years ago, the SOR and ROP were watertight, well reasoned, fair and took into account all the evidence and in fact very symathetic to client, I don't think he could realistically have expected a fairer hearing, the case was at very best borderline and the previous appeal had of course related to different time period, with no suggestion by the client had he had received other than a fair hearing all that time ago. There is no indication at all the the panel remmbered him, and in fact, he didn't realise hiimself until after the hearing. In addition the particular facts of this clients condition mean that he is probably better served waiting for his next relapse and making a fresh claim. I also had concerns that this client would not be able to stand going to another hearing, as undoubtedly, even if sucesfull, this would have been referred back for a new tribunal. Couldn't see much point in putting him through that particular mill.

Thank you for everyone's help and pointers towards relavent cases. It will all be useful in the future!

Please accept my apologies for the lack of full stops!

Isn't that a TV programme?