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Medical member sitting in on ESA (non attendance) Appeal
Had a recent appeal for a failed to attend medical. Should have been a Legal chair only appeal. However the medical member decided to sit in. Neither my client nor myself were asked about this. He also remained in the tribunal room throughout the chairs deliberation and decision while as normal we were outside.
Now normally I would not mind this. However at the following set of appeals thereafter I found them both to be of “the same mind” and very unfair on my clients. My clients would have had a fairer hearing with IDS and Cameron as the Tribunal. They were far from independent.
I have never felt so angered after a hearing and will seek full reasons. My question is…..should the medical member been allowed in the room???? Even observers are asked to leave during deliberations.
Having cases listed for hearing by a wrongly constituted tribunal happens quite often. We had a case concerning housing costs for income-related employment and support allowance that was listed for hearing before a panel comprising a Judge and a doctor. The proceedings had to be postponed because the Judge wasn’t ticketed to hear administrative appeals.
Ever since we have tried to avoid the situation recurring by making clear on the Tribunal Service’s Enquiry Form that the hearing requires only a Judge.
pp 1346 of the current volume 3 would have me believe that the Tribunal was not properly constituted.
Sounds pretty naughty to me too; a doctor sitting in on a question of non medical fact… Was the Judge ticketted to deal with such an issue?
A while back I had a notorious First tier Judge with a reg 17 permitted work case mistakenly listed in front of him on an IB session. He wasn’t too pleased when I questioned his competence to hear the appeal but after a phone call to someone he adjourned…
pp 1346 of the current volume 3 would have me believe that the Tribunal was not properly constituted.
Sounds pretty naughty to me too; a doctor sitting in on a question of non medical fact… Was the Judge ticketted to deal with such an issue?
A while back I had a notorious First tier Judge with a reg 17 permitted work case mistakenly listed in front of him on an IB session. He wasn’t too pleased when I questioned his competence to hear the appeal but after a phone call to someone he adjourned…
“Was the Judge ticketted to deal with such an issue”
Not sure what this actually means to be honest. I thought as a judge they could sit on any Tribunal???
Also, how do you find out if they are ticketed???
For clarification the medical member sat beside the judge throughout. He did not take part. My problem is he sat in on the judgement and I have no idea if they spoke/consulted during the decision making. My point is I do not think he should have been in the room.
SSCS Judges have a ticketing system which indicates which type of appeals they can deal with.
I’m not sure of the exact details but…
They start on ESA/DLA appeals, then advance to specific area of law work like right to reside, capital etc. I got the feeling a few years back that Housing Benefit required a separate ticket; whether other issues; R2R, capital etc do I don’t know although I doubt it.
It’s entirely possible though that your Judge had not been trained to deal with that particular area of law; it’s certainly happened to me.
In your circumstances the best guide would be ask ask yourself whether you’ve ever seen the Judge concerned doing 01 appeals where they’re sat on their own; if not I’d be considering a letter to my District Judge if I were you, as well as a set aside application.
I agree that you should check to see if the Judge has a tickets to hear ‘01s’. And if the doctor was in the room then it would have to have been only in the capacity of an observer and as such he should have left the room whilst the decision was being made. I think you would have a very strong arguement for a set aside as this is definately a ‘procedural irregularity’.