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Are tribunals independent ?
Could we actually say the tribunals are independent? I don’t think they are. When we represent someone in a tribunal the Judges always state that they are an independant panel. How true is this? In Hounslow there is DWP medical examiner who is also a member of the tribunal. This is in clear in breach of natural justice , contravenes the Human Rights Act 1998 and the European Convention of Human Rights. However it does seem the commissioners support the decision of an EMP sitting in a tribunal. I would like to hear further on this if anyone has experienced it. This doctor also sits on the DWP medical advisory panel.
[ Edited: 15 Apr 2011 at 03:44 pm by Ros ]“This is in clear in breach of natural justice, contravenes the Human Rights Act 1998 and the European Convention of Human Rights.” Unfortunately, the Law Lords (as they were then) in Gillies v Secretary of State for Work and Pensions (2006) UKHL, did not think EMP’s sitting on tribunals breached any common law rules of fairness and found in favour of the Secretary of State.
However, that and similar cases have been decided that way because the courts have taken the view that EMP’s are not employed directly by the DWP but are independent experts providing independent assessments. From the Law Lords’ discussion in Gillies it can be implied that it might not be so straight forward if the EMP’s were employed directly by the DWP.
On a practical level, however, I do find the first tier Tribunals, at least those in Liverpool with which Paul and I deal, to be independent. The figures for successful appeal both locally and nationally support this view. Whilst we do not always agree with the decision, my overwhelming experience is of fair impartial and thorough decision making. If, as we fear, appeal rights become curtailed under UC we won’t half miss the Tribunal system
Yes, I agree with Grant’s assessment of the situation here in Liverpool. I am often astonished by some of the horror stories I see posted on here.
But see Cunningham http://www.scotcourts.gov.uk/opinions/XA80.html having this dual role can cause all sorts of problems when
reports from the EMP come before tribunals with members who have sat with the EMP as tribunal member.
In such a case the tribunal probably ought to adjourn with directions.
There’s a similar problem for any tribunal member who finds him/herself faced with somebody they know across the table. It’s actually why I stopped repping at tribunals for my own bureau: I knew too many of the members of the Tribunals. It’s even worse if you are a tribunal member from a CAB in the same area as your own CAB. One DQPM I knew was in this position and had a sort of firewall agrement with TS that she would not sit on any cases in which her own bureau had been involved. It didn’t always work because the other welfare adviser at the Bureau would often take on a case at the last minute and just turn up.
Advice to the wise: should you ever be tempted to go onto tribunals, eg as a DQPM, do not do so at the venue at which appeals from your own organisation are likely to turn up.
I agree with previous comments - on the whole fair, but sometimes judgemental but….................................
One thing that has been going through my head more and more is rehearings of tribunal decisions that have been set aside.
I have had a spate of them recently where I get the impression from the start that the panel are determined to remake the same decision. I even had one where the upper tier judge had virtually spelt out what should be awarded (DLA case and further investigation needed for other component), yet the less generous initial decision was remade. The obvious answer is for TS to remove documents pertaining to 1st decision from the pack, so that a completely impartial decision can be made, but I don’t think this is allowed by current legislation.
I agree with the previous posters but I do think the delays in listing appeals doesn’t help especially in relation to ESA & DLA. It’s so difficult to make findings of fact in relation to how someone was a year or 18 months prior to the hearing date. I find that in general, clients find it hard to grasp this however carefully prepped. Leaving aside the obvious difficulties clients have in remembering how they were or what they did over a year earlier, Tribunals tend (understandably) to start by asking the client whether they are better, worse, or the same as they were at the date of the decision and clients have a tendancy to say ‘worse’ (even if I have spent time carefully establishing that things are much the same) because they think it will help. The hearing is then inevitably slanted as a result.
Me to client at interview: are things roughly the same now as they were 6 months ago?
Client: the same.
Tribunal chair to client: are things roughly the same now as they were 6 months ago?
Client: worse.
Clients, don’t you just love ‘em!
LOL!
I SO know the feeling. Happens nearly every time.
Or at tribunals:
Chair to appellant: How are you now compared to how you were back in the summer?
Appellant. Just the same, only worse if anything.
Ariadne’s post reminded me of an appeal hearing I attended with our Welfare Rights Caseworker when I had just started my training at the CAB. The panel and the client had exactly the same exchange, and as she listened my colleague repeatedly stabbed herself in the leg with her biro under the desk…..
It must now be in question whether the facts in Gillies still apply to the present day. That decision was based on the medically qualified member providing an independent professional opinion in both scenarios.
This is not necessarily the case any more as ATOS have instructions to remove benefit from a certain number of people, and this is a clear conflict of interest,
I agree with previous comments - on the whole fair, but sometimes judgemental but….................................
One thing that has been going through my head more and more is rehearings of tribunal decisions that have been set aside.
I have had a spate of them recently where I get the impression from the start that the panel are determined to remake the same decision. I even had one where the upper tier judge had virtually spelt out what should be awarded (DLA case and further investigation needed for other component), yet the less generous initial decision was remade. The obvious answer is for TS to remove documents pertaining to 1st decision from the pack, so that a completely impartial decision can be made, but I don’t think this is allowed by current legislation.
totally agree with this.
I can only agree with Nevip’s comments. I have always found judges and tribunals in this part of the world to be impartial and i too am amazed by some of the incidents other welfs report
ATOS have instructions to remove benefit from a certain number of people, and this is a clear conflict of interest,
Has that ever been evidenced?
Because then Gillies gets dusted off and we roll out the arguments again. But I won’t get too excited just yet…..
In the meantime I’ll stick with the OBL alive/dead in 2001/never existed/etc etc.