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Tape recording reasons for Tribunal decisions
I am currently waiting for a Statement of Reasons for an appeal last month. This particular PIP Tribunal panel included; a typically ineffectual Doctor, a ‘Disability Expert’ who used to be in the gestapo and a Judge who loves to strip away points already awarded (not disputed by appellant) and randomly award points for other areas- though never usually enough to get an award!
This Judge also goes to great length to explain the decision to the Rep when we go in to get the decision (usually a longwinded explanation as to why they didn’t find the appellant credible) I have noticed that this Judge puts the recording back on when delivering her lecture to the Rep.
I presume this will be on the CD when I get it, but I was looking for some views on the legitimacy of this practice from the Rightsnet community. As the Judge’s explanation is not given in the presence of the appellant, surely it should not be recorded as part of the proceedings.
I’m not sure there’s really anything in this myself;
1. If the appellant is not in the tribunal room to hear the decision, isn’t that due to the appellant having chosen to remain in the waiting room whilst the rep goes in alone to get the decision? i.e. the tribunal are surely not saying that only the rep can return to the tribunal room to receive the decision?
2. As the tribunal rules (rule 11 (5)) permit anything that may be done by a party to the proceedings to be done by their representative, I’m not sure that there’s strictly any difference if the appellant is in the room or not? Subject, that is, to what I’ve already said about appellants not being allowed back in…...
3. My own view is that a recording of the tribunal’s reasons is, in any event, likely to be more advantageous than not. I’ve had a number of cases where the FtT has gone beyond a ‘bare bones’ decision and has given some detail in its written decision - and I have then been able to use this detail where the subsequent statement of reasons is at odds with this or has sought to qualify what was clearly said in the original decision.
I think the situation you are describing is similar. In other words, by recording its reasons in this way, the tribunal is nailing its colours to the mast - and by giving such ex tempore reasons risks being unable to undo any damage later. I think an argument along the lines that reasons given when a decision is delivered are more likely to represent the the real reasons than a written statement prepared some months later would be very difficult to counter…...
The bench book is unequivocal in saying that the tribunal must never ask the representative to come back in alone. The suggestion must come from the representative and there must be good reasons to accept it. “Client is knackered after 90 minutes of interrogation” usually isn’t challenged :)
However, I’m with past caring. Any judge who invites a rep. in alone; gives something other than the very brief explanation envisaged by the BB and is then daft enough to record all of the above will more likely than not come aground on their own hubris.
[ Edited: 22 May 2017 at 06:54 pm by Mike Hughes ]I’m not sure there’s really anything in this myself;
1. If the appellant is not in the tribunal room to hear the decision, isn’t that due to the appellant having chosen to remain in the waiting room whilst the rep goes in alone to get the decision? i.e. the tribunal are surely not saying that only the rep can return to the tribunal room to receive the decision?
Thanks for your prompt and clear views on this.
As regards to tribunal guidance regarding appellant coming into the room for the decision; this Judge does point out that they can come back for the decision but always recounts the same jocular comment ‘You can come back to get the decision but you will probably have seen enough of us for one day so feel free to stay in the waiting room and your rep can come and get it for you’.
As I said I have not had the SOR yet but do take on board the value of having ex tempore reasons to listen to as well as the written reasons. It will also become apparent if the judge is using the tape as an aide-memoire.
I raise this issue as none of our other tribunal judges offer any explanation for the decision in this way.
[ Edited: 25 May 2017 at 04:14 pm by shawn mach ]
The bench book is unequivocal in saying that the tribunal must never ask the representative to come back in alone. The suggestion must come from the representative and there must be good reasons to accept it. “Client is knackered after 90 minutes of interrogation” usually isn’t challenged :)
However, I’m with past caring. Any judge who invites a rep. in alone; gives something other than the very brief explanation envisaged by the BB and is then daft enough to record all of the above will more likely than not come aground on their own hubris.
My experience is that FtT’s across Scotland, bar one case I can remember in ten years, never call the appellant in with the rep to get the decision - even regional and district judges follow this practice.
Is this a devolved issue then? I would be interested in having a broader poll for common practice regarding Tribunal panels; requiring, encouraging, discouraging or demanding that the appellant returns for the decision. I can confirm that it has become custom and practice for the representative to go and get the decision on their own, on every occasion that anybody can remember in my team.
I suspect it is but one of many things in the Bench Book which are more breached than observed. Would be very surprised to hear of dramatic regional differences.
I experience it with some regularity - but only where the appellant has clearly struggled, either with the walk to the tribunal room or emotionally with the hearing itself. But even then it’s always an option offered by the judge out of consideration for the appellant rather than any impression being given they are not welcome back.
In fact, in some of the cases I’m thinking of, it’s not been that unusual to get the decision allowing the appeal whilst we are in the hearing - and the option then is wait in the waiting area for it to be typed up or have it sent out in the post.
We have our appeals at Fox Court/Sutton and the appellant is always called back in for the decision as a default. Occasionally if their mobility is really poor the judge will give them the option of letting the rep come back to pick up the decision, especially at Fox Court where it is a bit of a trek from the waiting room. Sometimes if things are running late they’ll send the decision out in the post.
Also, I think I’ve only ever had one case where the judge gave verbal reasons which was a case where there were competing claims for CTCs and both parents were present. Otherwise you just get the decision notice and a brief verbal explanation confirming the outcome and that the decision will be sent over to the DWP.
Interesting that there is such regional variation.
Varies on a judge by judge basis in my experience. Had one, and occasionally two, who come out to the waiting area to deliver the decision. Had others who expect you both back in but are accepting when only you go back in. In fact, I’d say most in GM take that approach. A few occasionally encourage the appellant to wait outside or indeed go home.
None of this complies with the Bench Book but it’s mostly okay to be fair.
I experience it with some regularity - but only where the appellant has clearly struggled, either with the walk to the tribunal room or emotionally with the hearing itself. But even then it’s always an option offered by the judge out of consideration for the appellant rather than any impression being given they are not welcome back.
In fact, in some of the cases I’m thinking of, it’s not been that unusual to get the decision allowing the appeal whilst we are in the hearing - and the option then is wait in the waiting area for it to be typed up or have it sent out in the post.
The above pretty much mirrors experiences in Somerset and Dorset.
I have the same experience as dundee and falkirk but thats not surprising given ive worked in both their council teams.
I rep at a few venues now in scotland (mainly Glasgow) and i always go in to get the decision.
So, is the consensus that judges are just scared of Scottish appellants?
So, is the consensus that judges are just scared of Scottish appellants?
have you not seen I daniel blake :) that guy outside the JCP was a realistic interpretation
Varies on a judge by judge basis in my experience. Had one, and occasionally two, who come out to the waiting area to deliver the decision. Had others who expect you both back in but are accepting when only you go back in. In fact, I’d say most in GM take that approach. A few occasionally encourage the appellant to wait outside or indeed go home.
None of this complies with the Bench Book but it’s mostly okay to be fair.
This mirrors my experience in GM tribunals. Appellant is usually given the option of waiting outside or returning for the decision.
So, is the consensus that judges are just scared of Scottish appellants?
have you not seen I daniel blake :) that guy outside the JCP was a realistic interpretation
I was not impressed with Ken Loach’s typecasting of the drunk, mouthy, homeless character as a Scottish man when he was filming in Newcastle. This stereotyping is what gives us drunk mouthy Scots a bad name Steven!!