District Tribunal Judge refused permission to appeal to UT then heard the subsiquent new tribunal.

DLA appeal heard at the start of July last. Appeal found no entitlement for appellant. Request made for appeal to UT and District Chair refused stating that there were no grounds to review decision. Upper Tribunal decided that new tribunal should hear the appeal. Same District Tribunal judge was sitting on new tribunal in January this year, again unsuccessful. As she had already reviewed the case papers in August last year and found the original decision acceptable was there not a conflict of interest with her taking the rehearing. A DWP Presenting Officer was in attendance at the rehearing.

did you object to this judge hearing the case?

No, I sort of thought she would do it initially as it was referred back from UT and she is the most senior (and by far the most competent) Tribunal chair in our area. It was only after we didn’t get anything I started to look for straws to clutch at!

You can always go to Commissioners again. I have done that once and the third hearing was successful. Treat the 2nd decision like the first. Go through the written decision and see if there were any errors. I have gone to Coms and they always find more reasons than I.
Also, you may have to consider that if the Chair is that good maybe the decision is good also. There is no point in flogging a dead horse. Sometimes you have to decide it is better to explain the tribunals decision to your client so they can move on.
Good luck!

There is a very good reason why a new tribunal should not comprise members who sat on the first one trying the same facts and that is the perception of justice.  While it is perfectly possible for the earlier tribunal members to come back to the facts with an open mind it is still difficult to change one’s mind on substantially the same evidence.  And it is that on which the impartial, reasonably minded observer concludes that a fair hearing night be in jeopardy as he will likely conclude that the decision has been made in advance.

The difference between that scenario and yours is that the judge was not a tryer of fact in the first instance.  She was only ever called upon to determine whether there was an error of law.  Her opinion on the facts was never solicited or given.  Obviously, she might have reached a view but without an error of law she was powerless to change the decision even if she would have reached a different view on the same facts that the tribunal did.  So she might be entirely sympathetic.  That is a crucial difference.  Nobody could accuse her of ‘having a position to defend’.  Of course, she will have read the papers, including the record of proceedings, and will have formed a view.  However, so will a tribunal made up of members who have never been involved in the case.  So, merely having a view in advance of the hearing would not be sufficient to disqualify her from the re-hearing. 

It might be safer to disqualify her in order to remove any lingering doubt whatsoever of possible bias but, in my view, that could be an unnecessary safeguard too far.  For one thing, no-one knows what her view might be.  It could be favourable for the appellant for all anyone knows whereas a new judge’s view might not be.  Added to the fact that she has no position to defend there is no ground to assume that she would not have approached the case impartially and with an open mind.

[There is no point in flogging a dead horse. Sometimes you have to decide it is better to explain the tribunals decision to your client so they can move on.
Good luck![/quote]

Thanks for the advise all. I had already decided to explain the option of trying again in 6 months to my client when he can decide if his mobility and care needs merit it