Tribunal panels’ over-reliance on closed questions

Seems the time for tribunal discussions today.

I’ve had a few appeals lately where the panels have relied more on closed questions than I think is appropriate. In two cases it was specifically noted in my submissions that the appellants struggle with memory issues related to brain damage.

Appreciating that it’s convenient for a panel to ask yes/no questions, but I’m not sure what they intend to achieve where, for example, an appellant has stated “I never leave my home alone”, and they move to ask: “Is it right that you went shopping alone last week?”. Que confused appellant that answers, “yes”, presumably as that seems the acceptable answer. Plenty of literature on the problems with this type of questioning.

Regrettably I froze a bit during my last hearing. Judge stated at the end that he’d found the appellant’s evidence unreliable (I already knew that, due to the aforementioned brain damage). I asked if the panel could either rephrase their questions or allow me to do so, pointing out the problems with their approach. Refused, because I’d already had a chance to raise questions earlier in the hearing (true enough). I feel like I should have pressed harder to challenge it, because I now have a refused appeal in front of me.

Can it constitute an error of law where they refused my challenge to their questioning, not because they thought it would be ineffective - which could be a valid argument, but because of administrative convenience? A justifiable element of interest in conducting fast and effective hearings, but this example just seems unreasonably unfair to the appellant (and considering I hadn’t asked any earlier questions there wasn’t actually any time lost).
I’m going through the SOR and I think there is some other potential grounds for an appeal, but that seems the most obvious issue to me. The only evidence that effectively supports their conclusion are the ‘yes’ answers to their closed questions.

Going forward I feel the need to start instructing panels in my submissions on how to ask questions to get reliable answers, or maybe just a gentle reminder at the start where there are relevant issues?

There are a few ways to deal with this, but most straightforward is the vulnerable witnesses practice statement. You are supposed to set out in advance any relevant vulnerabilities and the tribunal is supposed to have regard to them. Specific communication needs can and should be identified.

There are further points particular to the case. I suppose a lot turns on the nature of the issues which arose. The question which your client was asked has an objectively correct answer. If your client was right to say “yes”, then its an adequacy of reasons point (did going out that one time mean he could do so reliably etc.) If you are saying that your client was misled by the questioning to say “yes” when the answer was “no”, thats a very different issue.

(Also a good reminder not to use the term ‘never’ in completing a PIP form)

They still record all the hearings in Scotland don’t they?

Elliot, could you expand on the “vulnerable witnesses practice statement” for the newbie reps like me? Reading/resources? I’d be very grateful because the above discussion is not a rare occurrence so I’d like to see how I can apply this to my vulnerable clients.

The practice direction (I had incorrectly given it as a practice statement as I was on my phone) is here:
https://www.judiciary.uk/wp-content/uploads/2014/07/FTTPracticeDirectionChildVulnerableAdultandSensitiveWitnesses281008.pdf

RT v SSWP (PIP) [2020] AACR 4 is authority that failure to consider the practice direction may constitute an error of law.

JE v SSWP (PIP) [2020] UKUT 17 (AAC) is authority as to the role of the representative in identifying vulnerabilities.

Since those decisions were made, most of the forms used in the civil courts have been updated to include an option to identify vulnerable witnesses - see for example box 11 on form N244 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1087082/N244.pdf)

For some reason, the SEC forms don’t seem to include a form expressly dealing with vulnerabilities, but you should identify them either in the appeal form or subsequent submissions or other material.