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1st Tier Judge making deciding whether error in law on their own decision
Ah, no. Wasn’t watching then. Did that last year. I was entering the date of their film in my work calendar to make sure it didn’t clash… and there was the Rightsnet subscription email. So hard to resist :)
I have yet to come accross a UT/Commissioner decision where the issue of the same Judge refusing permission has been discussed. If anyone knows of a case please post.
Many years ago; far too many to remember exactly but more than 15, I represented a client in a case of fit for work for Incapacity Benefit, or perhaps Invalidity Benefit. The judge [then chairperson] said that the appeal had been denied in that in the tribunal’s opinion some work would be theraputic for the client. I will not say what the appellant’s response was, but suffice it to say the air turned very quickly into a very dark shade of blue. This was without question the worst decision I had come across at the time, and at any time since. Leave to appeal to the Commissioner was sought and denied. A direct request for leave to appeal to the Commissioner was granted on the same, multiple errors in point of law identified.
Eventually the Commissioner issued a decision allowing the appeal and replacing the decision of the tribunal with one of his own. In his decision he commented:
“There are many things I could say about the decision of this tribunal. The best that I can say is that it gave insufficient reasons for its decision; I choose not to say what the worst are.”
Perhaps not entirely the same thing but it’s getting near there I think.
Whoops, I’ve just noticed that I’ve spelled my name wrong on my new address; silly me, it should read Joseph. Sorry.
[ Edited: 16 Jul 2014 at 09:24 am by Patrick Joseph Hill ]hi patrick - changed it to joseph -
cheers ros
In our area, the decision seems to either go to the judge who made the original decision or a district judge. Will a district judge be any less biased bearing in mind that they are the part time judges manager?
In our area, the decision seems to either go to the judge who made the original decision or a district judge. Will a district judge be any less biased bearing in mind that they are the part time judges manager?
It could go either way, which I think was the key point here. You can’t really assume a bias when so many other factors are at play.
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“There are many things I could say about the decision of this tribunal. The best that I can say is that it gave insufficient reasons for its decision; I choose not to say what the worst are.”
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Loving this!
It could go either way, which I think was the key point here. You can’t really assume a bias when so many other factors are at play.
But you can! I am unlikely to disagree with my own arguments at a tribunal and it seems reasonable to assume that the same applies to the judge who made the decision. Justice is simply not being seen to be done in such circumstances.
This is so fundamental that I honestly can’t understand why you continue to argue otherwise.
With respect Chris, please read the thread start to end. It’s not just me arguing. Feel free to pick on me exclusively but the arguments have been well laid out (and not by me). You rely upon a number of assumptions to counter them. They are simply not assumptions others would hold to be automatically true. That’s the nature of an assumption. You have it. Not everyone does.
People find that they were wrong in retrospect all the time, and, some of us even admit it. Your assumption is not actually reasonable at all. It’s a belief predicated on a view of human nature that is arguable at best, wrong at worst. You pays your money…
My “argument” makes no such assumptions. There’s neither anecdotal nor statistical weight of evidence for what is being asserted. It is also common practice across jurisdictions; unlikely to rouse the passions outside of this thread (possibly page or even post) and thus nothing is about to change either.
I’m very much pro wasting time on the internet but this goes nowhere…
I’ll take your points in turn then:
I’ve never wished it finished. To all intents and purposes it s dead. Nothing new being said here at all.
You’ve drawn an incorrect analogy. Adjournments in the situation you describe occur because a member has prior knowledge e.g. sat on a partially heard earlier case for the same appellant with 2 different members. The adjournment has nothing to do with their having formed a view and everything to do with the legal fact that all members should come to the table with the same knowledge. No-one should know something the others don’t. Clearly laid out in the bench book as I recall; covered in much case law over the years, and completely different to a judge having considered evidence, found facts and made a decision as part of a group of 1, 2 or 3 then, re-visiting that decision to see if it could be viewed as legally correct. Your argument starts from an assumption of 1 judge looking at their own solo decision when in fact you have to factor other members in too. Judges can be out-voted regardless of the legality of a decision and use the process to then set aside or allow further appeal. Not really bias.
Interestingly I see no-one raising an objection to a tribunal of 3 having got 90% through a hearing; having pretty much formed a view and then being presented with an argument or evidence necessitating adjournment. On the principle above the case has to be either heard by the same 3 or a completely different 3. Using your analogy the former could never be fair, and yet…
I totally accept that custom and practice doesn’t make something acceptable and I absolutely see my role as disruptive to the status quo but, equally, nor is something wrong just because it is custom and practice. Personally, and in common with others on this thread, I don’t go into bat unless there’s solid evidence and, again, here there’s nothing statistical and little anecdotally.
I’m not sure how we define working class so rocky ground there before we start. Again you start from assumptions. Given that welfare reform is cutting far and wide you might want to do an equality of access assessment on your service. “Working class” Salford is currently throwing up plenty of people with 6 figure savings being hit by welfare reform and plenty of people who’ve never claimed a benefit in their life. Personally I don’t distinguish between them or see my role as skewed one way or the other.
As far as the hearing is concerned I consider a major part of my job is to ensure an appellant feels nor experiences any disadvantage in a tribunal hearing so I couldn’t care less what their class is. It’s my job to mitigate any such issues. I’ve claimants raise many concerns about the process but not once in 28 years across 3 very different geographical regions have I heard an appellant raise this concern. Reps do. Appellants? Well I’ve yet to hear it.
Personally I think I and anyone else here is entitled to take offence at the “chummy” comment. There’s no danger here bar assumptions.
Hello,
It is right that there are often three makers of decisions on a tribunal panel. Sadly, some of those members think it important to agree with the judge whether the quality of the decision is good or not so good. I say this as I used to sit as a lay member on appeals. During one of the morning sessions I dared to challenge the chairperson as to the decision he was making and the logic that he was using to make it. During the lunch break I was chastised by the other lay member who was adamant that she was there to agree with the chairperson whatever he or she decided and that we [her and me] had no right to disagree with them, and the law was nothing to do with us at all and was purely the realm of the chairperson. Later on the chairperson asked if I thought I was the right kind of person to sit on appeals if I was to believe everything an appellant said by way of evidence. I commented that if a doctor had seen it fit to issue a medical certificate to an appellant, then that was a starter for 10 as far as I was concerned and a pointer to the fact that there may well be something wrong with the appellant. You will not believe the response from the chairperson: he said that he had lots of friends who are doctors and he was sure that they often only issued sick notes to keep a patient on their register. At that I asked if the chairperson felt that he was the right kind of person to chair appeals if he did not believe anything that an appellant said to him at the appeal. There was an embarrassing silence at that and, quite coincidentally I’m sure, I was not asked to sit on appeals again.
This is only one story of one day. There are many, many others, particularly the arrogance displayed by some medical members at appeal. The aggressive nature of their questioning is not uncommon, is unacceptable and when a representative speaks out against it they are told to keep quiet and don’t dare to speak until asked to. The appeal garden is littered with weeds; though I accept that amidst the weeds some flowers do grow and that they are worthy members of the appeals system.
There are many, many other stories I could tell about the failures of the appeals system; far too many for this site. There are many too that I could tell about the successes of the appeals system; similarly too many for this site.
Rant over and home time.
Thank you
Patrick
It can’t just be me that has had a significant number of successful cases back from UT where the client has sadly died during the whole lengthy process.
The ‘it’ll be all right in the end so it doesn’t matter’ argument doesn’t quite work for these clients…
A number? Yes. A significant number? Over the years? Well, significant in what sense? Absolute numbers? No, not significant at all. Probably, but only probably, double figures.
Can’t say I’ve given it much thought. UT appeals end for a variety of reasons. Delays in general are undoubtedly an issue. Not sure how that pertains to this thread though. Due process is, by definition, a delay. What’s an appropriate delay is arguable and I’m not sure what is gained by that. Certainly, of all the possible delays we could discuss, this isn’t really topping the charts in terms of significance.
This thread is about a pre-UT issue not UT delays themselves which are often lengthy. Happy to change topic if we’re all up for it.
As I say, I can’t say I give the death angle much thought. People die. Death leaves loose ends. A whole pile of things people are in the middle of for which death is inconvenient. I’m not sure it’s a winning argument for lessening specific delays. I’m sure it triggers a great deal of anger and frustration but then there’s always going to be an outlet for that even if there were no loose ends so again I’m not sure what it brings to the table so to speak.
Obviously of relevance in terminal illness cases but again I’m not sure the subject of this thread is the one you’d pick to highlight that. Probably more relevant to initial claims.
[quote author=“Mike Hughes” date=“1406297969This thread is about a pre-UT issue not UT delays themselves which are often lengthy. quote]
It could just be me but…. I would have thought that the ONLY reason people are concerning themselves about the issue of the judge who made the FTT decision being the same one who decides the leave to appeal application .... is simply because they hold the view that the judge is less likely to set aside their own decision.
Whereas a fresh pair of eyes may set the decision aside?? (Not will set aside, but may be more likely)...
I can’t think that anyone is concerned for any other reason?
I thinmk that’s well established. And… ???
and..
because you said that this thread was about a pre UT issue and not UT delays and so I’m pointing out its soley the delay caused by having to go all the way to Upper tier which may be avoidable if another judge had looked at the issue is what is concerning people on this thread.
But the arguments are now unproductive so have a great weekend all!!!
They’re “now unproductive”??? :)
There seems to be some conflation, and confusion, in this thread.
For what it’s worth, I think that we may have to live with a pragmatic trade off between the inconvenience for our customers caused by delays and the inconvenience caused for them by a tribunal decision being wrong. There are also accountability issues involved.
Even though it typically seems to take about 12 months or more from a wrong local tribunal decision to getting the same case in front of a differently constituted panel, via a UT decision, I think that the quality of UT decision making is high and their willingness to hear out injustices (which are not always readily apparent as obvious errors of law) is welcome. There are a limited number of UT judges and, unless there are more resources provided, the delays are just an inevitable result of a small number of people doing a largely quality job for a large number of applications. In the tragic circumstances in which someone dies whilst waiting for an outcome (as this has been raised) that it is course very regrettable but it seems just part of the territory in the present system. Would we welcome poorer UT decisions but made more quickly? I don’t think so.
In most of the cases I deal with the UT judge does not issue an outcome (entitlement) decision as such but refers the matter back to be heard again, perhaps with directions. Now, pragmatically, if a first tier tribunal judge (perhaps even the one that heard the initial appeal) looks at an application to apply to the UT and sets the original decision aside to be heard in from of a differently constituted panel then, from the point of view of delays, that could be considered a victory as the opportunity to put matters right comes around more quickly.
What may be compromised though is accountability. UT decisions are in the public domain and form a precedent. If a first tier judge decides that, say, an absolutely awful first tier decision, should be set aside following an application to the UT then that decision does not ever reach the scrutiny of the UT and, more importantly, never gets into the public domain. In such situations the local HMCTS get to ‘police’ their own decisions rather than that being done by UT judges. A few terrible decisions may never become known about by anyone other than the parties involved (rather than it being public) but then, in most cases, I guess that most customers (and perhaps their reps.) would be happy with that ‘trade off’. It doesn’t seem to matter to me if it is the same first tier judge that made the decision that then sets it aside when an application to the UT is made; the ‘trade off’ is the same.
Now, if someone can just explain to me why, when a UT judge sets aside a first tier decision in it’s entirely the record of proceedings and statement of that first (invalid) decision is not just put into a shredder rather than form part of the appeal papers for the reheard appeal ....
“Now, if someone can just explain to me why, when a UT judge sets aside a first tier decision in it’s entirely the record of proceedings and statement of that first (invalid) decision is not just put into a shredder rather than form part of the appeal papers for the reheard appeal ....”
Because the record of proceedings is a record of the evidence and might contain information that will assist the new tribunal. Furthermore, an appellant might change his evidence for the second tribunal if he thinks he did himself no favours at the first hearing. Preserving the record will allow the second tribunal to know if he does.
“Now, if someone can just explain to me why, when a UT judge sets aside a first tier decision in it’s entirely the record of proceedings and statement of that first (invalid) decision is not just put into a shredder rather than form part of the appeal papers for the reheard appeal ....”
Because the record of proceedings is a record of the evidence and might contain information that will assist the new tribunal. Furthermore, an appellant might change his evidence for the second tribunal if he thinks he did himself no favours at the first hearing. Preserving the record will allow the second tribunal to know if he does.
and, again, no real difference to the procedure in civil courts.
For example, a civil case. one side loses. judge refuses leave to appeal. party applies to higher court for leave to appeal. gets leave, appeals successfully. Unusually, case remitted to lower court to try again (this doesn’t often happen). papers continue to follow the case. including, by this time, a full transcript of the first hearing (probably) and (certainly) the appeal decision. result - many lever arch files of paperwork in court and to be lugged about by all.
Whilst i can just about see why people are exercised about the problem posited by OP, it is not, in fact, a problem where there are appeal rights that can be exercised (and, in the case of social security, can be exercised for free rather than at vast expense).