Witnesses at Appeal

A colleague of mine had an interesting experience at Tribunal concerning an Employment & Support Allowance Appeal.  The case involved our client and his mother, the mother being his constant support.  The judge implied that the mother could not make a supporting statement for him at the tribunal as she has sat through the entire procedure and therefore had the hindsight of the proceedings.  He stated if she had wished to make a statement she should have been declared as a witness at the outset and sat outside until called.

However he did let her make her statement and our client won his appeal.  The judge then raised the issue of witnesses in our next Tribunal, but with that case the client was just with us so it was not an issue.

My general understanding is that a Tribunal Judge can conduct a Tribunal in the manner they feel appropriate so to derive the correct outcome.  Can see his point, however feel that it is usual for a judge to involve a client’s family / friends in the process of the hearing and derive the facts of the case from where ever he can, then applying the level of weighting that it is felt they demonstrate.  Feel that by pursuing the line of declaring witnesses at the outset may well hamper the process, and could well sour the informal atmosphere a tribunal would be best conducted under.  Would be interested on views and experiences that you may have on the topic of declaring witnesses in the context of Social Security Tribunals. 

G Regis A4U

I agree with your point on the issue of re-formalizing tribunals.  Its been more than 50 years since the Franks report on tribunals emphasising their informality and ease of use by appellants. Tribunals should not be like courts.

However, as you say, first tier tribunal judges do have discretion over proceedings.  But they ought not to get carried away with their new found nomenclature and should never lose sight of rule 2 of the tribunal rules.  Excluding witnesses from proceedings only to call them to give evidence should really be reserved for expert witnesses who have no familial or private connection with the appellant and whose evidence cannot thus be open to modification (subliminally or otherwise) by evidence already heard. 

Appellants often find comfort from having family members with them during the hearing.  They can provide a re-assuring presence or act as a memory prompt when appellants often struggle with ‘pure’ facts (dates, for example).  Tribunals must be wary of walking down this road, particularly with unrepresented appellants.  Tribunals must not only act fairly but be seen to act fairly.  Going down this road is an unnecessary and retrograde step which serves no useful purpose in a system which has functioned well enough in this area, with no reason to disturb it.

In many years of repping I have never experienced this personally, never heard of it happening to a colleague nor heard of it happening at all.

I had an appeal last week for a client with a large income support overpayment - relating to both her ongoing entitlement and recovery of the overpayment - caused by a decision made on capital relating to a lottery win. 

Her friend had wanted to come into the tribunal room to give my client moral support and he also wanted to speak to the tribunal, but the chair was having none of that. The friend was made to wait out in the waiting room so he could not hear the proceedings and was only allowed to come in to speak to the tribunal as a “witness” when the tribunal and PO had finished questionning my client.

This was a first for me, having been representing clients at appeal for 20 years - as was the judge getting both my client and her friend to swear an oath before giving their statements ...

Since our tribunal chairs became Judges they do seem to be having grand ideas about the tribunal room. This hearing felt a bit too much like being in a criminal arena.

There has always been the power for Tribunals to put witnesses (including appellants) on oath. It’s rarely used but it is there. All Tribunal venues hold a supply of different holy books for the purpose!