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R58: Response to Transforming tribunals: Implementing part 1 of the Tribunals, Courts and Enforcement Act 2007 Note: Responses were made in questionnaire form. You can view the consultation document from the link below.
Question 1. Do the proposals on assignment of judges and members strike the correct balance between maintaining judicial expertise and encouraging judicial career development?
Comments: No comment
Question 2. Do you agree with this general approach for Chambers?
Comments: Yes
Question 3. Is the allocation of jurisdictions to Chambers the right one?
Comments: See comments on tax appeals
Question 4. Do you agree with the proposed three-chamber structure for the Upper Tribunal?
Comments: No comment
Question 5. Do you agree with this approach to where the Upper Tribunal is located?
Comments: No comment
Question 6. Do you agree with the proposals for transferring existing appeal rights?
Comments: It is correct that benefit appeals should continue to be heard by the Social Security Commissioners.
Question 7. Are there other appeal rights not listed?
Comments: No comment
Question 8. Mental Health Review Tribunals (MHRT). Do you agree?
Comments: No comment
Question 9. Special Educational Needs and Disability Tribunals (SENDIST). Do you agree?
Comments: no comment
Question 10. Pensions Appeals Tribunals (PAT). Do you agree?
Comments: no comment
Question 11. Child Support Tribunals (CST). Do you agree?
Comments: No comment
Question 12. Lands. Do you agree?
Comments: No comment
Question 13. Transport. Do you agree?
Comments: No comment
Question 14. Which would be the appropriate option for the Information Tribunal’s work?
Comments: No comment
Question 15. Do you agree that this is the right approach to tribunal composition?
Comments: A high proportion social security appeals (and tax credit appeals) involve an assessment of “disability” “disablement” or “incapacity”, i.e. an assessment of the effects of an appellant’s medical conditions on their ability to carry out specific tasks. Social security tribunals hearing these appeals will have a wing member who is a doctor, and often a wing member who is disabled or works with disabled people. We would like to see the role of these members continue, and the role of one of the members to increase.
The role of the doctor on these tribunals is very important. Evidence before the tribunal will often consist of conflicting medical reports. One of the doctor’s tasks is to interpret and evaluate these reports. Knowledge of medicine well above that possessed by most lawyers is often necessary to do this.
Several years ago, doctors were removed from these tribunals. Instead an independent medical adviser who played no part in the decision-making was asked to advise tribunals. This was quickly found to be unsatisfactory and doctors were soon re-appointed tribunals.
However, it is important to separate the role of doctors who sit on adjudicating tribunals from those who carry out medical examinations for the relevant department. Historically, combining these roles has created resentment amongst appellants and generated a significant amount of case law on whether combining the two roles creates an appearance of bias. In future, we would like to see doctors (or other medical advisers) prevented from carrying out both of these roles.
The role of the “disability” wing member is less obvious, but probably equally important. They help bring a practical perspective to the assessment of the impact of disability on everyday life. At present, disability members are used only for assessment of disability (i.e. mainly for disability living allowance). We would like to see their role increased so that they also sit on tribunals assessing disablement (industrial disablement benefit) and incapacity (incapacity benefit and income support).
Question 16. Should there be different principles for certain Chambers or appeal rights, and if so, why?
Comments: In principle, we do not object to the use of other healthcare professional where they have sufficient expertise. However, where the appellant has multiple disabilities the professional must have sufficient skills to assess the effects of each medical condition.
Question 17. Do you agree that these are the appropriate categories for members?
Comments: For social security appeals dealing with disability issues, disabled people and carers with no specific professional qualification have sat as tribunal members for several years. We believe that this category of lay tribunal member should continue.
Question 18. What should the description be?
Comments: No comment
Question 19. Would the term ‘member’ suffice?
Comments: No comment
Question 20. Do you agree that where a function of a tribunal is carried out by staff there should always be right of access to a judge?
Comments: Yes. Tribunals are bodies that examine whether the law has been applied correctly. They must be seen to take every effort to apply the law correctly themselves. Where a lay member of staff takes an administrative decision that could affect the way that the appeal continues, it is important that the appellant should be able to refer the matter to a legally qualified tribunal member to ensure that the decision is correct.
Question 21. Are there any functions of a tribunal which should never be performed by staff, whatever the safeguards?
Comments: Staff should never make decisions that decide whether or not an appeal will be heard by the tribunal.
Question 22. Are these the right criteria against which a costs regime should be judged? Is there good reason for inclusion of other principles?
Comments: Social security (and tax credit) tribunals hear appeals from appellants who are almost all on very low incomes. The benefits they are attempting to claim are paid at subsistence levels. Also, all appeals are against decisions of government departments. As such, it is unreasonable to expect these appellants to either to be liable for costs or pay fees.
The costs and deterrent effect of introducing costs and fees for the few appellants who could afford them is disproportionate to the benefits expected.
Question 23. What features of the present system should be retained in the new one?
Comments: We restrict our comments to tax credit appeals. We believe that tax credit appeals should be retained within the social security appeals system. The tax credits themselves have more in common with benefits than with tax assessments. The disability element of the working tax credit has much in common with incapacity assessments in social security appeals. At present, these appeals are heard by tribunal members selected from the same panel and therefore a loss of expertise may occur if these appeals are transferred.
Question 24. What are your views on the type of cases that could be heard by non-legal members?
Comments: All tax credit appeals should be heard by legal members, perhaps assisted by medical members and “disability” members where there is a disability issue; or members with a financial qualification where an assessment of a complex income or capital question is required.
Question 25. What types of case should go straight to the Upper Tribunal?
Comments: For tax credits, none. All appeals should be heard by a first-tier tribunal.
Question 26. What types of case will require early case management?
Comments: No comment
Question 27. What are the types or features of cases that you think should be subject to an award of costs?
Comments: For tax credits, none. The issue is entitlement to a system of poverty relief and so should not be subject to fees or costs.
Question 28. How do you think the award of costs should operate in practice?
Comments: See above
Question 29. Do you agree that this is the right long-term vision for tribunals dealing with land, property and housing? If not, do you have an alternative?
Comments: No comment
Question 30. Do you agree that the jurisdictions of the RPTS and the ALR should be transferred to the First-tier Tribunal and their administration to the Tribunals Service?
Comments: No comment
