Conduct of FTT

Hi all,

I could not believe the conduct of a recent tribunal panel where I was rep.  Basically the wing members interrogated my client and didn’t take into account any of her verbal submissions or the witness evidence or the medical evidence submitted as part of the appeal, including an ESA report (I know I would not usually have used this but it was good) and neurological assessments etc.  To add insult to injury the medical expert referred to my client as a ‘chunky lady’ - asking why if she were so chunky she had not considered taking larger doses of analgesia/ pain relief!  Needless to say the appeal was lost.

However, I got this decision set-aside - not over the ridiculous comment (which I argued was a breach of natural justice) but on the blatant and multiple inadequate findings of fact and inadequate reasons for their decision.

My key question is - has there been anyone out there with similarly inappropriate comments being made by tribunal members?  If so, aside from complaints procedures - is there any other recourse?

Thanks

Eri

Hmm, tricky one-ive had similar comments made to clients-but these tend to be client who are really are obese (morbidly obese) and their own GP has noted that their problems are either caused/exacerbated by obesity. I dont think is anything wrong in essence in the Tribunal mentioning a factor that directly affects their care and mobility needs. In fact by saying they were a bit tubby meant they were trying ; unsucessfully not to call them overweight, fat, obese etc. It isnt kind but it is a fact that affects the case, but should be balanced with all the other evidence. However the decision to take more pain relief would be as directed by their GP and that would link into the clinical evidence.

cheers both,

of course there is nothing wrong in specifying a medical or observational fact and to relate it into clinical findings - that’s their job.  But there is a medical term for someone very overweight (as you have stated) i.e. morbidly obese or just obese.  I personally do not think it apt that a medical professional refer to a claimant as ‘chunky’ ‘fat’ or any other derogatory term.  In fact I have a feeling that this could have been even discriminatory.

Having said that, I can see what you mean.  Maybe he was in his own way trying to put the client at ease by being less formal?? 

Nevertheless, there must be a code of conduct that we can refer to so that if a panel member is clearly offensive then he can be called to account?  There must be guidlines somewhere???

There is nothing in the Tribunal rules about conduct specifically-but you could complain or give feedback to the Tribunals Service. Ive certainly experienced panel members using what they think is kind alternative words and they do just come out more awkward.
I have brought up a judges manner in one leave to appeal request before but never made a direct complaint-I think they can all be a bit offensive most of the time in my experience!

As discussed, it seems the only recourse is to file a complaint with the district judge and/or maybe attend a users forum - I just think that as judiciary and as a public body, they should be more easily held accountable, especially when there are vulnerable service users who are at risk.

CSBailey01 - 08 June 2012 08:55 PM

The primary role of a representative at a tribunal hearing is the concern of the treatment of appellants.

Really, the primary role? I’ve been working too hard then… under the incorrect impression that a rep was there to put forward legal argument, evidence, relevant case law and ensure the appellant’s case is argued effectively.

CSBailey01 - 11 June 2012 10:48 AM

None of the clients I have represented have been “interrogated” at the hearing itself. I would not allow it. If a client is interrogated they are unable to be heard literally nor technically and therefore a representative is clearly not doing a proper job if they have allowed or allow a client to be interrogated.

I’m glad we are agreed on that.

Not sure how many FTTjudges would let you get away with an “I would not allow it” attitude in an FTT. Conduct of an FTT is clearly and explicitly at the discretion of the judge - and in my experience - they know it.

Questioning of the appellant is a normal part of an FTT. The questioning can get very personal - particularly in disability cases but it only gets tiresome when the FTT are not getting answers they are looking for.

In the disability cases an FTT are often most interested to form their own opinion of integrity of the appellant. Frequently the appeal is straightforward if they get the answers theyare looking for.

If they form the opinion that the person is honest - they will usually find in favour of the submission you have prepared as rep.

If they form the opinion that the appellant is honest and sympathetic, they will go out of their way to pass the appeal.

If they cannot get the answers they are seeking - it is here that the questioning gets difficult.

Had an extreme example the other week. An appellant (for whom I had worked hard to get a passable submission even though the medical evidence was patchy) managed to talk her way out of the appeal due to a massive attack of nerves. She said do not know or cannot remember to every question - even to those points central to her case in the submission.

The FTT Doctor and Judge repeatedly pressed her which I suppose you could say was interrogation. But I formed the impression that they were sympathetic but frustrated at not getting any answers..

I could do nothing on the day - you cannot answer for them - so she lost. I put it down to a chronic case of FIMS.

In my experience bad treatment by the FTT panel is rare and is best dealt with by the approach of the original post of eritrea74. i.e.  Get written reasons and explore set-aside and / or appeal

Wow! That was a lively set of responses!  Thanks again though.

I questioned Judge Maddox at the recent NAWRA meeting and he simply confirmed the complaints procedure route .. I think that had my FTT set-aside req not been successful I would have pursued the article 6 of the European Convention on Human Rights route further into the UT.. but as it stands, we will await the result of the complaint ..

I have to say that in general, I have not found tribunals to be so ferocious as I did on that occasion .. on that occasion, they were not just forceful - they were also inappropriate by referring to my client as ‘chunky’ (this was of course challenged at the time)... I wonder though, whether the recent bottle-necking of appeals is creating some visible strain on the usual decorum of panel members

CSBailey01 - 10 June 2012 12:15 PM

Funny isn’t it? How I do all of what you state you do, prior to the appellant turning up at the hearing itself.

 

I am not clear why you need to be so antagonistic.

I prepare a case as described when my clients seek advice in time (although most don’t until days before the hearing) however this does not detract from the fact that a rep’s role at the hearing is not a passive one existing solely to act as ‘interrogation overlord’.

hi

i have to say that i can’t agree with CSBailey that ‘this is an example of poor representation’.

i agree with tony that the judge of a tribunal is the only one with the authority to influence the conduct of wing members or the line of questioning adopted.

it seems to me that eritrea has done exactly the right thing in getting the decision set aside on facts and reasons grounds and in considering a complaint to the district judge.

cheers ros