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1st Tier Judge making deciding whether error in law on their own decision
I don’t see a problem. in courts this happens all the time. one side asks for leave to appeal - judge either says yes, if he thinks he might be wrong/it’s an important point/whatever, or no. if judge says no, party can apply to the higher court, whichever that is, for leave to appeal.
whilst it is true that most of us usually struggle to see how our own logic is wrong, that’s the same for judges as anyone else, there is a next port of call if you don’t like the judge’s decision.
I think Martin nails this pretty much on the head. It really should not be an issue and the tendency to assume any individual cannot look at something they have done and re-visit it objectively contains an element of arrogance. Are we all so infallible?
A few other things worth saying:
1) The Tribunals Service is now firmly part of the Courts Service. The clerks from the latter are taking over tribunals. Tribunal informality is being inevitably replaced by court like procedures and this is reflected in everything from re-labelling chairs as judges to absolutely refusing to take appeals without the completion of the correct form. Get used to it. It isn’t changing any time in the next five years. These practices are indeed normal in the courts system but it’s naïve and wrong to suggest they are new to the tribunals system. This is something which has operated for decades. Bit late to froth about it now.
2) Provided there is a remedy then it really isn’t worth shouting about. Clearly renewing the application to a UT produces the desired result. Perish the thought that a percentage of applications to a FTT fail because the arguments weren’t made out well enough or at all.
Now, having said that, I am as frustrated as the next person when I have written out my argument in full immediately (which I always do so there is no doubt from day one as to what I am arguing) and a FTT simply refuses to entertain not a single one of the three clear cut errors of law I’ve identified, but, what does that really highlight?
Where it’s the same judge as made the original decision it tells me no more than they are either incredibly stupid, stubborn or hold a genuinely thought through and firmly held perspective on the issues that I happen to disagree with. I will never know which one it is and it serves neither me nor my client any benefit my trying to second guess or assume which one it might be. There is nothing to be done but to renew the application directly to the UT. Where there is genuine cause for complaint then by all means complain as well but perhaps a little realism is in order.
The delays are frustrating and may be unnecessary but it’s not as if, if everybody here had agreed that the current process is appalling and needs changing, that there would have been much subsequent activity from all here to change it.
3) An element of this which appears to have been completely overlooked is that, at present, there is not enough work for fee paid judges. The overwhelming majority of work is being undertaken by salaried judges. That means that your case is almost always going to be heard by a salaried judge and further determinations also made by a salaried judge. Now, in an ideal world I’m sure they and we could agreed that each decision by a salaried judge should go to a different one so that objectivity could never be in doubt.
However, that’s just a patina of objectivity. A superficial pretence at it. Would such a change really produce something we could not doubt? Judges have friends who are judges. Doubtless some dislike each other immensely and have little respect for the approach of their colleagues. What guarantee is there that such a process as we desire produces any more objective an outcome? I think we all know the answer to that is none.
Now, if this was your workplace, in the face of cost cutting etc. would you busy yourself devising such a procedure; upping your postage costs as you distribute stuff fair and wide in the name of so called fairness or would you think it simpler to crack on, as quickly as possible, so that if people disagree they could pursue the appropriate remedy?
In the final analysis it doesn’t matter what we think. This is long standing and well established legal practice and it is not going to change any time soon, so why let it exercize the mind. I’ve got plenty of other things to be concerned about. Have a rant by all means and then move on.
I’m with Chris.
I agree with everything Martin says. However, it is quite clear that asking the person who made the decision to change it can rarely, if ever, guarantee an impartial response - regardless of how long the practice has been happening and how widespread it is.
If we accept that that’s just the way it is, then surely we should’ve welcomed MR with open arms and a nice cup of hot chocolate since MR is essentially bringing the custom and practice to the lowest possible level (as far as it is comparable).
It’s also wasteful and inefficient. I suspect if we look at how many renewed application refused by the FTT (especially when made by us) are admitted by the UT, the numbers will be statistically significant and demonstrative of a lack of impartiality in these considerations.
I always expect an application to the FTT for leave to appeal be refused as a matter of course. That says it all.
Why “rarely, if ever”? My experience over 28 years has been that I’ve seen no statistically significant difference between applications dealt with by the same judge and those dealt with by different ones. If anything I’d say it’s probably marginally the other way. I’ve had better results when it has been the same judge than when it wasn’t.
I also don’t see any obligation anywhere in the legislation or case law to “guarantee” objectivity. That would be foolish and unworkable. There are checks and balances. That’s the best you will ever have.
There is, to my mind, undoubtedly an issue at Liverpool at present with specific salaried judges routinely refusing applications. I raised it as a question at our local TUG. TS dismissed it as a concern but it became obvious my perception was shared by pretty much everyone in the room (on all sides of the various fences)from the feedback I received from multiple sources. Not one of those people raised the issue as being the same judge who made the FTT decision looking at the application. The issue is more about specific judges not entertaining applications in general.
You’re admitting a bias to begin with by saying “I always expect…” For that and the other reasons already stated I can’t agree it’s “quite clear” at all. It’s no such thing. It’s neither obvious nor evidenced. The numbers eventually allowed to proceed also, in isolation, tells us nothing. In the same way two DMs can look at the same evidence and come to different conclusions so can judges with regard to errors of law.
You can argue forever that any decision subsequently shows waste but, in reality, again, it’s simply not that clear cut. It may show some structural issues as mandatory reconsiderations appear to do. It could just as equally show that things only get sorted properly once arguments are better understood; once better evidence is obtained; once a representative is involved and so on.
I’ve no problem with an “us and them” approach but I think it unproductive and inaccurate in this specific instance. I’d suggest the mods. close the thread and we direct our energies elsewhere.
It’s not a question of embracing anything. It’s a question of accepting the things you cannot change, fighting for the things you can and having the wisdom to know the difference. No one has a monopoly on anger and a sense of injustice, and being angry is not a badge of honour. And, being ‘grass roots’ is not a sign of authenticity either.
I wonder
.... Would it be acceptable to see the same person making the decision on an initial claim for benefit also undertake the MR?
....If someone was unhappy with their care would it be acceptable to see that the reviewing officer was the same social worker or doctor/nurse?
I don’t think it would be. Isn’t it oppressive to have the same person have power over their decision that you’ve just challenged? What about the many clients who don’t have a WRO or other agency to support them? How does it look and feel to them? Does it feel like justice?
I think the argument for it being a different judge has merit but I don’t think some of your comparisons are fair as ultimately there is still the opportunity to take it to the upper tribunal to have an independent look at the legal basis for the decision.
On a general point though I think people need to calm down and not take a difference of opinion personally, if threads like these turn into personal arguments then its going to stop potentially interesting debates on the site.
“On a general point though I think people need to calm down and not take a difference of opinion personally, if threads like these turn into personal arguments then its going to stop potentially interesting debates on the site”.
Wise words Stephen.
I have been fighting injustice and sticking up for the disadvantaged for 35 years, either through welfare rights work, working with homeless teenagers, or political activism and need lessons in anger from no one. However, for my part, I apologize to anyone I might have offended
Locally in Leeds I have found though im sure others could say the opposite that it is rairly(if ever) the same judge who looks at the case again though quite clearly they could.
What always concerns me is that the client who this is about may have to wait yet again for justice as we see it to take its course.
A client who may well be on a very low income ( or no income) who is relying on us as advisers ( who probably have far more clients than we did and have to make hard decisions on who and at what level we can assist) has to manage for yet another period while awaiting something to happen
On a busy bad day this feels personal and just another way of reducing the number of people claiming and on a favorable day par for the course .
The guidance for the Upper Tribunal Administrative Appeals Chamber shows that they deal with appeals arising from at least 28 different First-tier Tribunals, taking in everything from child support and social security through to to estate agents and gambling. Across all of these vastly different areas of dispute, the procedure for appealing is the same, i.e. the appellant is required to lodge an application for appeal directly with the FtT that heard their case before making an application to the UT.
I’m slightly puzzled as to why there’s a case being made for social security appeals to be treated as, judicially, something special and different to the extent that wholly different procedures need to be bought in to protect the appearance of justice. Yes, the appeals are generally concerned with people living on low incomes and therefore possibly/probably in greater financial need than other appellants to other tribunals perhaps, but the process of an appeal going through the UT system takes months, if not years, anyway. And as I stated before, in my experience, when the FtT does agree to a set aside request, the subsequent appeal hearing is often listed very speedily indeed, hence the first stage appeal can actually be beneficial in expediting an appropriate resolution.
One thing that does puzzle me though is the apparent lack of statistics on appeals to the UT. I’ve had a root around and can’t find anything on this, and wondered whether anyone else knows where to look? As Tony and others have raised, it would be interesting, at least, to be able to understand the comparative quantities of appeals admitted, set aside, refused permission, etc, to begin to understand whether there is an issue with the way that applications are dealt with currently.
Absolutely. Why are some people apparently frightened of having a discussion on what is an important part of our job and one in which, to my mind and clearly Tony’s as well, justice is not being seen to be done?
Why is it arrogant or biased to express opposition to what is clearly, by anyone’s standards (or so I thought) unfair? In the latest case, when I wrote my letter after receiving the statement of reasons I specifically asked that a different FTJ be asked to look at it again. There is no reference to this request at all in the response from the Judge which simply states that he can see no error of law.
As Mandy Rice-Davies is supposed to have remarked in Court in 1963: Well, he would say that, wouldn’t he?
My client is no fool and she is far from happy. She felt she had not had a fair hearing in the first place and seeing the same name on the refusal letter has made her feel even more indignant than before, and I don’t blame her. This is an ESA case involving an argument over the WRAG/Support Group so every week that goes by without a resolution is another week without any entitlement to payment. That the case will now drag on for months on end is consequently very relevant to her.
We are an essential part of this system but that doesn’t mean we have to defend it from criticism from those who are at the sharp end of it. Personally, the obvious (to me) unfairness involved in expecting a FTJ to disagree with him/herself makes me embarrassed.
Clearly no-one is “frightened” of this discussion. It’s just that the majority don’t see the point. This has been the practice for decades. It’s nothing new. It’s absolutely consistent with other jurisdictions and there’s no special case to be made on the back of what is essentially anecdote and anger. By all means vent away into the digital void but this is the first discussion on here I’ve seen for many moons that has merited a shut down precisely because
a) it’s going nowhere, and,
b) it was clearly going to get as personal as it has. Calling peoples comments “unworthy” is probably enough really.
One thing that does puzzle me though is the apparent lack of statistics on appeals to the UT. I’ve had a root around and can’t find anything on this, and wondered whether anyone else knows where to look? As Tony and others have raised, it would be interesting, at least, to be able to understand the comparative quantities of appeals admitted, set aside, refused permission, etc, to begin to understand whether there is an issue with the way that applications are dealt with currently.
It would.
It may be that there are different issues iin different parts of the country. Most of my applications at FtT level go to Sutton (and always have) - in my experience (and although it’s only mine, I have been doing this work since 1998) I’ve had no real issue with the same judge reviewing their own decision. What I have experienced as an issue is what at times seems almost a policy of blanket refusal for permission to appeal from the salaried judges that deal with applications.
These days I tell clients to expect a refusal and that it is only once we are at the stage of applying direct to the UT that I expect any proper consideration of the merits of an application.
Some context; I have lost count of the Commissioner/UT applications I’ve done. Only twice have I ever been given permission by the FtT when applying, though I have had several set-asides. I have lost count of the applications to FtT for permission that have been refused on the basis my grounds showed ‘no legal merit’ or words to the same effect. But then when renewing to the UT/Commissioners only once have I been refused permission - and there’s an ongoing application to the CoA on that one.
I’m pretty convinced that some applications are not even read properly.
Oh - and those two cases where I was given permission? In both it was by a judge reviewing their own decision.
[ Edited: 1 Jul 2014 at 11:11 am by past caring ]Hello everyone,
I just got back from some leave and have seen all of these posts; completely unexpected. I must say that it’s refreshing to see that we appear to have retained much of the enthusiasm that brought many of us into the job, and similarly that we have retained a healthy “raised eyebrow” of some decision making processes and decision makers; no matter what level they hold. I can think of one name at the bottom a UT letter that frequently issues a refusal; even in the most meritorious of cases. But I think it prudent to dilute this by adding that there are many, many others who provide an expertise and insight ensuring correct decisions are frequently done.
I must admit that I’m a bit uncomfortable at some of the vitriol in flight agin them as in on the same side.
Over the years we have all witnessed the introduction of higher barriers to benefits and a slow erosion of ease of appeal; MR, in my opinion, being amongst the most iniquitous. We look on in horror at the delays in ESA and PIP decisions and a readiness of some Decision Makers to deny people their only source of income by overzealously applying a punitive sanction regime. I’m sure I’m not the only one who scratches their head in disbelief at some reasoning of sanction decisions.
I suppose my original point was propagated by the frustrations I am experiencing being faced with situations similar to those above. Is it any wonder then that these frustrations sometimes overflow into doubts about the trustworthyness of denial of leave to appeal on decisions, heated disagreements and strong opinions; opinions that are essentially held by an overwhelming majority of people heading in the same direction? Even though these opinions differ, they mostly make good and creditable points.
Thank you.
Patrick
Just a small point. It’s actually CLIENTS that generally raise this as an issue by the way. They sense it as intrinsically unfair.
No need to read on but…
I think all that is being stated is merely that judges are human? Some will be capable of objectivity and other not: no doubt following the same distribution curve as the rest of humanity with regards to this ability.
Would it not be in a judge’s best interest if a pair of fresh eyes made the FT ‘application for leave to appeal permission’ decision? It’s usually what happens anyway!!! (In my experience it’s only a minority of cases where the judge on the panel is the same person to determine the application for leave to appeal).
Totally agree with first. para. However, surely if the distribution curve is the same as the human race is that the basis for a revised process? Second para. is perhaps illustrative of a couple of things:
1) Many judges may see it as being more in their interests to re-examine their own decisions before someone else does :)
2) Your experience is local to you just as ours is local to us. In this area I’d say it was 50/50 and, if anything (and this is purely anecdotal obviously) probably edging more towards the majority being decided by the original judge.
As has already been observed it’s often those who do re-examine their own decisions who produce the better outcomes and, as Patrick has observed, we do have one who doesn’t think any appeal has any merit whatsoever, judging by their rejection rate.
I take the point about claimants raising the issue as a perceived injustice rather than reps. I remain to be convinced it’s relevant or adds any credibility to the discussion/argument. Claimants have many perceptions informed by perhaps having an incomplete understanding of the law and the process. I can see in this instance why some claimants may see an injustice. I don’t necessarily agree and see it as part of my role to explain why all may not be as it appears.
Mike. a quick and incomplete reply .... It’s gone 5 after all :)
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
— Gordon Hewart, Ist Viscount Hewart Case of Rex v. Sussex Justices, 9 Nov
No doubt the debate will continue. Albeit in a philosophical bell jar…
I’m quite liking the idea of Rightsnet as a “philosophical bell jar”.
I shall not explain the circuitous route by which I came to be here at 20:40 at night :) but it involved Dexys - the group not the tablets!!!
Mike. a quick and incomplete reply .... It’s gone 5 after all :)
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
— Gordon Hewart, Ist Viscount Hewart Case of Rex v. Sussex Justices, 9 Nov
No doubt the debate will continue. Albeit in a philosophical bell jar…
I’m quite liking the idea of Rightsnet as a “philosophical bell jar”.
I shall not explain the circuitous route by which I came to be here at 20:40 at night :) but it involved Dexys - the group not the tablets!!!
Lucky you! Were they good?
I don’t think I can cope with any more philosophical bell jar stuff. My brain will explode.