holding ib and esa appeal at same time

had a client who lost both the ib and esa appeals on the same day.  prior to the esa hearing i asked for a adjournment on the basis that client could not get a fair hearing due to losing first appeal with same tribunal.  adjournment denied.

just wondering if anyone has had a go at challenging the second decision in a case like this due to fairness?  i am thinking the argument is very likely to be rejected but would be happy to be proved wrong.

Breach of the rules of natural justice? Bias? Sounds like an awful situation.

I’m not convinced.  There is a presumption that an independent finding of fact tribunal will act fairly and judicially unless the contrary can be proved.  There is no legal presumption that a tribunal hearing the second ESA appeal will not have garnered all the relevant facts and applied the relevant legislation fairly just because it has dismissed the earlier ICB appeal.  If it finds the appellant’s evidence unreliable and calls into question his credibility it is entitled to dismiss his evidence in whole or in part providing it gives adequate reasons when called upon to do so. 

Furthermore, there is no guarantee that a newly convened tribunal to hear the second ESA appeal would not have come to the same conclusions.  Moreover, magistrates in the criminal courts often try the same defendants on different charges many times over and there is certainly no presumption in that jurisdiction that they do not try each case on its merits even though they might have formed certain privately held views about those defendants.

Litigants/defendants/appellants are not free to pick and choose who hears their cases otherwise the judicial wheels would grind to a halt.  What they do have a right to, however, is a fair and impartial hearing.  If an appellant thinks he has been denied that then he must evidence it.  This will require more than the mere assertion that a tribunal hearing the second appeal did not bring an open mind to it.  After all the same tribunals (either wholly or partially) often hear appeals from the same appellant across time on different decisions.

Finally, two real cases to show the opposite.  I did a hearing for a client for DLA and IDB before the same tribunal.  The tribunal took all the relevant facts.  It disallowed the DLA appeal but upheld the IDB one.  Similarly, I did the same with a DLA case and an ICB case.  Result, DLA disallowed. ICB allowed.

I have tried two arguments related to this one.  the first being that as both appeals were similar in a core issue i.e. the appellants disagreement with the findings of the results of a DWP sponsored medical then it is unfair to have the same panel hear them.  i have also mentioned the fact that it is important that a appellant also feels he has had a fair hearing (i know how i would feel as a claimant if i were in their shoes going into the second appeal).

the second part is i am arguing the tribunal didnt give sufficient consideration to my response as the sor just states that as the second appeal dealt with a second set of descriptors it was ok to go ahead.  basically i am trying to argue that even if refusing my request they still should have given more consideration and explained why they felt in this particular case it was ok to go ahead.

my money would be on nevin being correct in his response for the exact same reasons he has given but theres no harm in trying as i think the client would have a decent chance in front of another tribunal.

So did the Tribunals ask relevant questions relevant to the date of the ESA medical and the relevant descriptors? Have they weighed the evidence fairly and correctly? I see no reason why they couldnt deal with both appeals subsequently and fairly.
Really you should look at each statement of reasons and see if there are any significant errors in law and deal with it in that way.