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interchangeable case law between judiciaries?

benefitsadviser
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Sunderland West Advice Project

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Hi All
Legalish question for those more in the know than me

I supplied a missing UC113 to a tribunal that the DWP “forgot” to put in the bundle
The UC113 basically supports my appeal to put her back from LCW to LCWRA group.

A well known Northern Judge has decided to direct that the Uc113 be ignored for the next hearing, as “The court of appeal in FATIMA V FAMILY CHANNEL LIMITED (2020) Civ 824 made it clear that an opinion must be supported with facts and evidence otherwise it is little or no value. This is directly relevant to the Uc113)”

So basically according to this particular Judge all ESA113s/UC113s should be ignored? Anything else then? HCP report to be ignored as well as GP records as they are just opinion? DWP submissions to be ignored for the same reason?

Anyway, the fatima ruling is not a social security tribunal, its a civil court hearing regarding money owed.

Does this have any weight regarding the social security tribunal? Can he use caselaw from 1 to support the other?

I know its a ludicrous argument from the judge, and im sure the next judge will ignore his ramblings, but i was wondering if he can use that fatima ruling?

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Paul Stockton
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In principle, a ruling from a court dealing with jurisdiction A can be relevant if the decision is germane to the issue to be decided in jurisdiction B. If the decision is from the Court of Appeal or the Supreme Court it will be binding on both jurisdictions. But the decision has to be germane to the issue.

The Fatima case is not germane. It is not about medical evidence at all, but about the principles to be applied by a judge hearing an appeal from a decision to set aside a judgment. Judge X refused an adjournment in a civil trial. Judge Y set that decision aside. Judge Z allowed an appeal and so reinstated Judge X’s decision. The Court of Appeal reversed that decision, upholding Judge Y. The issue of how to approach medical evidence was part of Judge X’s reasoning, quoting a couple of High Court decisions (paragraphs 7 and 8 of the judgment). That has nothing to do with the CA decision. The High Court decisions are relevant only to the extent that they advance the argument that medical opinions have to be based on facts and evidence, which applies as much in social security tribunals as any other jurisdiction. But the UC113 specifically asks the doctor for the evidence on which they base their opinion.

So in my view Fatima is irrelevant, and not an authority for what the judge has done. in addition i don’t know of any provision in the tribunal rules which allows one judge to instruct another judge to ignore a piece of evidence.

Elliot Kent
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The proposition which the Judge is aiming at - i.e. that unexplained opinion evidence which amounts to no more than bare assertion is likely to carry little weight - is not really a controversial one. There is perfectly good caselaw from within the welfare benefits context to support that proposition - see e.g. IM v SSWP (IB) [2010] UKUT 110 (AAC). Although there is also authority that a GP expressing an opinion is doing so as a professional person and can usually be taken to be doing so based on their independent knowledge and professional judgment - see CE v SSWP (ESA) [2018] UKUT 106 (AAC) at [12]-[14].

Oddly though, Fatima provides no support that proposition at all. It is a case where the claimant apparently could not make their trial and sought an adjournment. The Judge thought the medical evidence didn’t provide sufficient basis for her non-attendance, refused to adjourn and ultimately found against her in the trial. The claimant then applied for that decision to be set aside and a different judge did set the decision aside based on new medical evidence - the appeal was exclusively about whether doing so was a proper exercise of discretion.

However, ultimately the Judge is risking entering impermissible territory. It is not for a Judge, as part of interlocutory directions, to dictate to the tribunal which actually hears the case what weight to give to particular evidence (and therefore participate in the decision making). The fact finding is exclusively a matter for the panel hearing the case. Perhaps it would be okay for the Judge to flag up the potential issue, e.g. by noting that the evidence just contains bald assertions and the tribunal may not regard it as carrying a great deal of weight as a result, but I don’t see how the Judge can direct particular evidence is to be ignored unless it can properly be excluded altogether.

Perhaps the appropriate response is either to revert to the doctor for further explanation of their view or to request the medical records for the same purpose.

Martin Williams
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1. Agree that best thing practically is to go to Doctor and seek reason for the view expressed.

2. However, to say this evidence should be excluded is I think wrong. It should be admitted and then the FTT dealing with the case can decide how to weight it.

3. It is worth looking at the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 on these sort of issues.

3. Rule 15(2)(a) allows evidence to be admitted regardless of whether it would be in a civil trial. The power to exclude evidence depends on whether it is fair to do so (as the other possibilities don’t apply)- see rule 15(2)(b)(iii).

4. To my mind the Judge here seems to have purported to issue a direction excluding the evidence based on fact s/he thinks it would not be admissible in a civil case. That is wrong as that is not the test- judge would have to decide it was not fair to admit the evidence. Given that the DWP already received and presumably considered but rejected the evidence in making their decision I cannot see how it would be unfair to admit it now- indeed arguably the DWP were under a duty to include it (rule 24).

5. I would additionally apply for a direction that previous exclusion be set aside and the evidence be admitted with it being for the FTT to decide how to weight it in the normal way.

The last thing claimants need in the FTT jurisdiction is formal rules of evidence of this sort. The sensible approach of admitting everything and then weighting it accordingly is what makes the thing work for claimants many of whom are unrepresented.

Additionally, the idea that the claimant GPs opinion, even if not explained, is to be rejected for that lack of explanation is a bid dodgy- as said earlier in thread it might be a reason not to weight it heavily but it could also be that actually with other evidence (not from GP) the reasons for the GP opinion might become clear and it could reinforce that other evidence.

Depressing to see an FTT judge who wants to run a benefits case like a civil trial.

 

Mike Hughes
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It’s what happens when you target barristers as your recruitment pool for tribunal judges. Getting worse by the year now.

Elliot Kent
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Mike Hughes - 17 December 2021 01:01 PM

It’s what happens when you target barristers as your recruitment pool for tribunal judges. Getting worse by the year now.

Absolutely nothing to do with it Mike, in this instance. Anyone working in certain parts of the North East will know instantly who wrote these directions and they are neither a new recruit nor a former barrister.

CHAC Adviser
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Elliot Kent - 17 December 2021 01:18 PM
Mike Hughes - 17 December 2021 01:01 PM

It’s what happens when you target barristers as your recruitment pool for tribunal judges. Getting worse by the year now.

Absolutely nothing to do with it Mike, in this instance. Anyone working in certain parts of the North East will know instantly who wrote these directions and they are neither a new recruit nor a former barrister.

A well known individual indeed! I do enjoy their five or six page long direction notices…