JH v Secretary of State for Work and Pensions & Anor

The Social Security Commissioners warned almost 30 years ago of the dangers of one member of a tribunal having knowledge of evidence that was not shared by all the members. The danger is particularly acute for the First-tier Tribunal as it is the primary fact-finding tribunal. Knowledge of the whole of the evidence is essential for sound fact-finding. As the Commissioners said in R(U) 3/88:

Despite the Commissioners’ warning against overlapping panels hearing different parts of the proceedings, that is what happened in this case. Paragraph 10 of the tribunal’s reasons explained:

Tribunal Judge Poynter gave permission to appeal to the Upper Tribunal. He drew attention to the decision of Upper Tribunal Judge Wright in GO and HO v Barnsley Metropolitan Borough Council [2015] UKUT 0814 (AAC), who relied on the analysis of the majority of the three-judge panel in MB v Secretary of State for Work and Pensions [2013] UKUT 111 (AAC), reported as [2014] AACR 1. Judge Wright held the First-tier Tribunal to be in error of law by reason of being improperly constituted in that there had been overlapping members of the panels involved in evidence gathering during the proceedings. He relied on the reasoning in MB that the tribunal must be constituted in accordance with the Senior President’s practice statement on composition throughout the proceedings. That statement authorised three members to decide a case. In GO and HO, four had been involved, albeit not all at the same time.

Judge Poynter helpfully explained the practice of the Social Entitlement Chamber of the First-tier Tribunal in child support cases. The case might begin before a judge who then decided that a financially qualified panel member was required. The tribunal would adjourn and resume with the same judge sitting with the panel member. He explained that ‘That exception to the normal practice was necessary because there is only a limited number of salaried judges in the chamber who are sufficiently experienced to undertake complex child support work and the number of FQPMs is smaller still.’

With respect to Judge Wright, I do not consider that it is necessary to analyse the terms of the practice statement or the provisions of the legislation under which it is made. The statement must be read as subject to the rules of natural justice and the Convention right to a fair hearing. A simple, if perhaps not very realistic, example shows why that must be so. Suppose a judge hears a child support case involving a parent who runs a business. The hearing has to be adjourned and the judge decides to buy shares in the parent’s company. That would give the judge a direct financial interest in the outcome of the appeal such that it would not be proper for that judge to sit on the resumed hearing. That could not be right, regardless of whatever a practice statement might say or the convenience of the listings arrangements might seem to require. Legislation must always be read in a way that complies with the procedural safeguards of a fair hearing: see Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255 at 1263 and section 3 of the Human Rights Act 1998. And that limitation would carry through to the practice statement. It must comply with natural justice and the Convention right to a fair hearing, a point I made in Wheeler v Information Commissioner [2016] UKUT 0052 (AAC) at [8].

The position is the same here. I appreciate the care with which the tribunal attempted to ensure that the hearing was fair, but the dangers identified by the Commissioners remain and the tribunal’s reasons only serve to emphasise that fact. The tribunal decided not to rely on the evidence previously given unless there were inconsistencies. But how would they know there were inconsistencies? They might be apparent on the face of the record of proceedings from the earlier hearing. But those records do not have to be verbatim and that would leave the financial member in the position of giving evidence of what was said previously if the parties or their representatives did not accept the member’s recollection. There is also the assessment of the evidence to consider. The member might be influenced by impressions formed at the earlier hearing, without necessarily being aware that these were operating at the resumed hearing. For that reason, I set aside the tribunal’s decision.

I understand the impact that this may have on the listing of complex child support appeals. But that impact arises from limited judicial availability. It would not be right to override safeguards that exist to ensure a fair hearing for the convenience of listing. Those difficulties could be reduced, if not entirely avoided, by earlier and detailed case management of complex cases.

As to the other grounds of appeal, the Secretary of State does not support them and the other parent has not responded to the appeal. In those circumstances, I prefer to make no comment other than to say that any errors that occurred will be subsumed by the rehearing.

For the convenience of the parties, I will set out what a rehearing in accordance with KK means (see direction B). The tribunal will consider all aspects of the case, both fact and law, entirely afresh. It will not be limited to the evidence and submissions before the tribunal at the previous hearing. It will decide the case on the basis of the relevant evidence and submissions made at the rehearing. It must come to its own conclusions on issues of both fact and law that it considers without being bound by any conclusions of fact or law reached by the tribunal in the decision that I have set aside.