Nature of a tribunalTimes 20 JanuaryRe [2007] 1 FLR 1064Times 20 April
What a tribunal is
1.13Tribunal is used in a general sense and in a specific sense. In its general sense, it covers all bodies, including courts, that determine the legal position of the parties before them. In its specific sense, it is used to distinguish one particular class of judicial body from the rest.
1.14Lord Dilhorne captured this distinction in
Attorney-General v BBC1[1981] AC 303. when he said ‘While every court is a tribunal, the converse is not true’.
2[1981] AC 303 at 340.1.15There is no general definition of what constitutes a tribunal in this specific sense and of its distinctive features. Referring to that sense in
Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson,
3[1892] 1 QB 431. Fry LJ expressed the opinion that ‘… that word has not, like the word “court”, an ascertainable meaning in English law’.
4[1892] 1 QB 431 at 446.1.16The reason for this is simply that there is no need for a general definition. The proper classification of a body as a tribunal always arises in a particular legal context. That context may affect the answer, so that a body may be a court for one purpose and a tribunal for another. For example, a particular body may be a tribunal for the purposes of article 6, but a court for the purposes of the Contempt of Court Act 1981.
1.17The tribunals with which this book is concerned may be defined by a combination of characteristics relating to their method of creation, their purpose, the scope of their jurisdiction and powers, their membership, their procedures, and their relationship with the parties to proceedings before them. A tribunal in this sense is a body created by statute.
5Lords Guest and Devlin in United Engineering Workers’ Union v Devanayagam [1968] AC 356 at 382–383. Its purpose is to determine a person’s legal position in respect of a private law dispute or a public law entitlement, whether initially, on appeal or on judicial review.
6A tribunal may have an original jurisdiction, an appellate jurisdiction, a judicial review jurisdiction or a combination. The Upper Tribunal has appellate jurisdiction under, for example, TCEA s11, a judicial review jurisdiction under TCEA s15, and an original jurisdiction in the case of forfeiture under the Forfeiture Act 1982. It is given only a narrow and limited jurisdiction. But that jurisdiction is conferred generally and is not limited to an individual case. The members are likely to be expert in the jurisdiction; they are not limited to lawyers and may include others with relevant knowledge and experience. The procedures are likely to be relatively simple and user-friendly. Finally, it is independent of the parties to the proceedings. In other words, the tribunal is an expert, independent standing statutory body, available to deal with all those cases within its jurisdiction and easily accessible by users.
1.18This does not mean that these features are unique to tribunals. Court judges may, for example, be just as expert in their jurisdiction as tribunal judges. Nor does it mean that all tribunals exhibit these features. The Competition Appeal Tribunal, for example, does not operate procedures that are designed to make it readily accessible by those without legal assistance. What it does mean is that tribunals are bodies in which these features are likely to occur in combination.
1.19In the past, a tribunal’s powers were always
7At least in England and Wales. The employment tribunal in Scotland has power to enforce its own decisions. subject to the one limitation identified by Hale LJ in
R v Secretary of State for the Home Department ex p Saleem:
8[2001] 1 WLR 443.Their determinations are no less binding than those of the ordinary courts: the only difference is that tribunals have no direct powers of enforcement and, in the rare cases where this is needed, their decisions are enforced in the ordinary courts.
9[2001] 1 WLR 443 at 457.However, the Upper Tribunal has the powers of the High Court (TCEA s25).
1.20The label given to a body is not decisive. Some bodies are called tribunals and are tribunals for the purposes of this book. Other bodies bear different names, but are nonetheless tribunals within the above definition. A body that is called a court may even be within the definition. The former National Industrial Relations Court would have been a tribunal for this purpose.
1.21A tribunal may be made a superior court of record by statute. The Upper Tribunal is so designated by TCEA s3(5), as is the Employment Appeal Tribunal by section 20(3) of the Employment Tribunals Act 1996.
1.22This does not mean that the principles covered in this book are unique to tribunals as here defined. They are derived from principles that apply to all judicial bodies and many of the cases cited relate to the courts. The principles also apply to the occasional inquiries that are set up by the government outside the authority of any particular statute, whether or not the Tribunals of Inquiry (Evidence) Act 1921 applies. And they may be appropriate to domestic tribunals, which owe their existence to contract.
How a tribunal operates
1.23If the issue of definition were all that distinguished tribunals from courts, it would scarcely be worth making. However, there are features that characterise tribunals apart from definitional factors. Tribunals may be distinguished from courts by their membership and their procedures. These characteristics are not unique to tribunals, but to the particular features that are likely to be present in relation to tribunals. The same features may also be present in court proceedings. If they are, it is likely that the courts will adopt similar approaches.
10See Chancery Modernisation Review: Final Report (2013), chapter 9 of which deals with litigants in person. 1.24Some of the features that distinguish a tribunal from a court are recognised in TCEA. Section 2(3) imposes on the Senior President a duty to have regard to particular features in carrying out the functions of that office:
•tribunals should be accessible;
•their proceedings should be fair and handled quickly and efficiently;
•their members should be expert in the subject-matter or law with which the tribunal is concerned; and
•innovative methods of resolving disputes should be developed.
The requirements of accessibility, fairness and efficiency mirror the same requirements for the civil justice system under section 1(3) of the Civil Procedure Act 1997.
1.25And section 22(4) of TCEA sets the objectives for the rules of procedure:
•that justice is done;
•that the tribunal system is accessible and fair;
•that proceedings are handled quickly and efficiently;
•that the rules are both simple and simply expressed; and
•that the rules where appropriate confer on members responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
1.26Before dealing with individual features of the operation of tribunals, there is a general point to make about the language that is sometimes used in relation to tribunals. The language in which the distinctive features of tribunal procedure are described can give an inaccurate impression. The procedure before tribunals may be said to be informal and inquisitorial, but these statements must not be taken too literally. It is also said that the strict rules of evidence do not apply, but this gives no indication of how tribunals approach fact-finding. Language such as this is not descriptive of how tribunals operate. It conveys something of what tribunals are not rather than what they are. It is used to differentiate tribunals from courts, to distance tribunals from the procedures appropriate to court proceedings.
Accessibility
11Accessibility for disabled people was addressed by the former Council on Tribunals in its Making Tribunals Accessible to Disabled People (2002).1.27Ease and convenience of use is an important feature of tribunals. As Lord Reading CJ said of the Income Tax Commissioners in
R v Bloomsbury Income Tax Commissioners:
12[1915] 3 KB 768.The exigencies of the State require that there should be a tribunal to deal expeditiously and at comparatively little expense with all such questions and to decide them finally, reserving always to the individual the right to have the Commissioners’ decisions on points of law reviewed by the Courts.
13[1915] 3 KB 768 at 784.1.28This was repeated by the Donoughmore Committee on
Ministers’ Powers:
14Cmd. 4060 (1932).We recognise that such Ministerial Tribunals have much to recommend them. In cases where justice can only be done if it is done at a minimum cost, such Tribunals, which are likely to be cheaper to the parties, may on this ground be preferred to the ordinary Courts of Law. In addition they may be more readily accessible, freer from technicality, and – where relief must be given quickly – more expeditious. They possess the requisite expert knowledge of their subject – a specialised Court may often be better for the exercise of a special jurisdiction. Such Tribunals may also be better able at least than the inferior Courts of Law to establish uniformity of practice.
15Section III, para 10.1.29This description was in turn endorsed by the Franks Committee on
Administrative Tribunals and Enquiries:
16Cmnd. 218 (1957).38. We agree with the Donoughmore Committee that tribunals have certain characteristics which often give them advantages over the courts. These are cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject.
1.30The same view underpins the entire approach of Sir Andrew Leggatt in his
Review of Tribunals:
17Tribunals for Users – One System, One Service (2001).It should never be forgotten that tribunals exist for users, not the other way round. No matter how good tribunals may be, they do not fulfil their function unless they are accessible by the people who want to use them, and unless the users receive the help they need to prepare and present their cases.
18Tribunals for Users – One System, One Service (2001), para 6.1.31And the Council on Tribunals
19Replaced by the Administrative Justice and Tribunals Council. identified accessibility as one of its standards for tribunals.
20Tribunals for Users – One System, One Service (2001), para 6.1.32The courts and tribunals have been sensitive to the difficulties of parties who are either unrepresented or who lack legal representation. This has been necessary in order to render effective the proceedings that statute has made available. It has also, given the tribunal context, been necessary in order to ensure that the proceedings are fair under the principles of natural justice and article 6.
1.33Accessibility has in part been attributable to, or found its expression in, the features considered below. These approaches now have to be applied and developed under TCEA. The first duty of the Senior President is to have regard to the need for tribunals to be accessible (TCEA s2(3)(a)). This feature of the tribunal system is given more concrete expression in the requirement for the rules of procedure to ensure that the tribunal is accessible and that the rules are simple and simply expressed (TCEA s22(4)(b) and (d)). And individual tribunals are required to apply the overriding objective in determining and operating their procedure.
21See para 3.22. UTR r2(2) is illustrative:
22See also: GRC Rules r2(2); HESC Rules r2(2); IAC Rules r2(2); Lands Rules r2(2); PC Rules r3(2); SEC Rules r2(2); Tax Rules r2(2); WPAFC Rules r2(2).(2)Dealing with a case fairly and justly includes–
…
(b)avoiding unnecessary formality and seeking flexibility in the proceedings;
(c)ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d)using any special expertise of the Upper Tribunal effectively; …
1.34Fees can also inhibit access to a tribunal. A fee for initiating proceedings may be imposed. But it must be imposed directly by statute or under an appropriate statutory enabling power.
23TCEA s42 contains an appropriate power. And it must not operate to abrogate the right of access to justice. As Laws LJ explained in giving the judgment of the Court of Appeal in
R v Lord Chancellor ex p Witham: ‘Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the executive to turn people away from the court door’.
24[1998] QB 575 at 586. This reasoning is equally applicable to tribunals as it is to courts.
1.35The imposition of fees is, in principle, permissible, provided that they do not, when taken together with any remission regime, create a real risk of denial of access to justice because potential parties cannot realistically afford to bring proceedings.
25R (Unison) v Lord Chancellor (Nos 1 & 2) [2016] ICR 1 at [33], [40]–[41] and [52].Speed
1.36This is part of accessibility. It is embodied in the Senior President’s duty under TCEA s2(3)(b)(ii) to have regard to the need for proceedings to be handled quickly. However, as Sir Andrew Leggatt noted ‘Speed should not be an end in itself. It should follow from obedience to the watchwords which should inform every tribunal: informality, simplicity, efficiency, and proportionality’.
26Tribunals for Users – One System, One Service (2001), para 31.1.37Speed has to be balanced, or reconciled, with the Senior President’s duty in section 2(3)(b)(i) to ensure that proceedings are fair. It must not be attained at the cost of failing to provide a fair hearing. That would render the decision liable to be set aside, which would length the total time taken.
1.38The duty to ensure that proceedings are handled quickly does not apply directly to individual cases. It is imposed on the Senior President and not on the tribunal hearing a case. And it operates through general policy and through practice directions rather than decisions in particular cases.
1.39TCEA s22(4) is more significant in individual cases. It requires the rules of procedure to secure specified objectives. Two are relevant to the speed of proceedings:
(c)that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,
…
(e)that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.
1.40Resources will always have an impact on speed. The more hearings that can be held, the more quickly cases can be heard. To some extent, speed can be achieved through general procedures. For example: the absence of formal pleading and discovery stages reduces the time that a case would take compared to a court. And to some extent speed can be achieved through efficiency measures. For example, effective listing can ensure that time is not wasted and cases are heard as quickly as possible. However, there is a limit to the effect that these measures can have. The rules of procedure and practice directions must have an impact in individual cases if the duty is to prove effective in practice.
The law of evidence
1.41Tribunals are generally not bound by the strict rules of evidence. This allows greater flexibility in the evidence that they receive. For example: expert evidence before a court must at least conform to a minority but respected body of opinion within the profession. That limitation does not apply in a tribunal.
27See further chapter 10 below.The bridging function
1.42In all forms of legal proceedings, there is a bridge to be crossed between the lay parties and the court or tribunal. The lay parties know the facts, but do not known the law or, therefore, which facts are relevant. The court or tribunal knows the law, but not the facts within the parties’ knowledge. If the parties are represented competently (but not necessarily by a lawyer), this bridge is crossed in the pre-hearing work undertaken by the representatives. They obtain the relevant facts by inquiry of the parties and present only those that are relevant. In the case of tribunals, it is less likely than in a court that this work will be done by representatives before the hearing. It therefore devolves, in whole or in part, to the tribunal itself.
1.43This leads tribunals
28And courts in which the bridging function has not been performed by representatives. This is increasingly so even in the High Court. to adopt two approaches to help them in this task: the enabling approach and the inquisitorial approach. They are complementary. The enabling approach is concerned with the attitude to the parties. The inquisitorial approach is concerned with the evidence and issues. These approaches may require a greater degree of intervention by, and assistance from, the tribunal than is usual in the courts.
29On which see Jones v National Coal Board [1957] 2 QB 55.1.44The proper approach is a matter of duty for the tribunal, not a matter of choice. Originally, it was based in the requirement of natural justice and of article 6. Under TCEA, it is also based in the overriding objective. Every party before a tribunal has a right to be heard and the tribunal must ensure that that right is effective. As the Commissioner explained in
R(I) 6/69:
30R(I) 6/69 at [7].But the broad general principle is that a claimant has a right to be heard and that a tribunal has a corresponding duty not only to ensure that he is aware of this right but also to assist him, by such means as may be appropriate in any particular case, to exercise it.
Enabling approach
1.45Tribunals are expected to take an enabling approach. There is no express legal requirement that they do so, but it is an aspect of accessibility (TCEA ss2(3)(a) and 24(2)(b)). And the overriding objective requires that, as far as practicable, the parties must be able to participate fully in the proceedings: see for example UTR r2(2)(c).
1.46This approach requires the tribunal to try to create a framework for proceedings that allows parties who are inexperienced with the procedures involved to give of their best in an unfamiliar setting. This is achieved through appropriate application of the tribunal’s powers under its rules of procedure, the explanations given to the parties, the manner in which the hearing is conducted and the atmosphere that is created. Members are selected who have an aptitude for this approach and it is reinforced by training.
1.47Professor Kathleen Bell found that this was the approach that the appellants wanted in the former Supplementary Benefit Appeal Tribunals:
… members should play an active and
enabling role towards the appellant by showing sympathetic understanding of his problem, by listening, asking relevant questions, drawing him out and generally helping him sort out his case. They were able to distinguish this enabling role from that of an advocate.
31Research Study on Supplementary Benefit Appeal Tribunals – Review of Main Findings: Conclusions: Recommendations (1975), p18.She recommended that tribunal members should be made aware of:
… appellants’ expectations of the tribunal and their concept of it as a body which will play an active and
enabling role towards them through the medium of a rather informal but thorough exploration of the case.
32Research Study on Supplementary Benefit Appeal Tribunals – Review of Main Findings: Conclusions: Recommendations (1975), p22.1.48Sir Andrew Leggatt recommended
33Tribunals for Users – One System, One Service (2001). that the enabling approach should be taken, especially in those tribunals that involved public law entitlement:
… tribunals have developed different ways of assisting unrepresented parties, in particular when the encounter is between citizen and state,
34The reasoning also applies if someone is involved who is not a citizen, as for example in an immigration or asylum case. and departments are represented by an official or an advocate who is familiar with the law, the tribunal and its procedures. In these circumstances, tribunal chairmen may find it necessary to intervene in the proceedings more than might be thought proper in the courts in order to hold the balance between the parties, and enable citizens to present their cases. All the members of a tribunal must do all they can to understand the point of view, as well as the case, of the citizen. They must be alert for factual or legal aspects of the case which appellants may not bring out, adequately or at all, but which have a bearing on the possible outcomes. It may also be necessary on occasion to intervene to protect a witness or party, to avoid proceedings becoming too confrontational. The balance is a delicate one, and must not go so far on any side that the tribunal’s impartiality appears to be endangered.
We are convinced that the tribunal approach must be an enabling one: supporting the parties in ways which give them confidence in their own abilities to participate in the process, and in the tribunal’s capacity to compensate for the appellants’ lack of skills or knowledge …
35Tribunals for Users – One System, One Service (2001), paras 7.4–7.5.1.49As these quotations make clear, the enabling approach is particularly appropriate for an unrepresented party.
1.50As part of the enabling approach, tribunals adopt processes and procedures that are less complicated and more informal than those that are typically associated with courts. This is part of the overriding objective.
36See UTR r2(2)(b) and its equivalents in the other rules. This is not to say that courts cannot operate relatively simple processes and procedures or that they are inevitably formal. The point is that there is a range of simplicity and formality and that tribunals are typically at the more user-friendly end of the spectrum.
1.51The expectations of the parties and their ability to use the forms and procedures also reflects the difficulties they may experience without assistance. In
Burns International Security Services (UK) Ltd v Butt,
37[1983] ICR 547. the Employment Appeal Tribunal decided that:
It seems to us that in the field of industrial relations where application forms are frequently completed by individual employees without professional assistance a technical approach is particularly inappropriate …
It was pointed out in
Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 that the rules did not require that the complaint as presented should be free of all defects and should be in the form in which it finally came before the tribunal for adjudication. The purpose of the rules is to ensure that the parties know the nature of the respective cases which are made against them.
38[1983] ICR 547 at 550–551.1.52This approach is not limited to the employment tribunal and the Employment Appeal Tribunal. The courts also took the same approach in cases involving planning law and the Rent Act 1968.
39See the authorities cited in Burns International [1983] ICR 547. The Commissioners took the same approach.
40R(I) 15/53 at [4]; R(I) 50/56 at [18]. This approach may be inherent in the rules of procedure (especially rr2 and 5–7).
41R(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) at [10]. There is a limited express power in respect of some forms of application,
42GRC Rules r45; HESC Rules r50; IAC Rules r36; Lands Rules r58; PC Rules r56; SEC Rules r41; Tax Rules r42; UTR r48; WPAFC Rules r39. but the approach has been applied more widely.
43LS v Lambeth LBC [2010] UKUT 461 (AAC) at [94].1.53However, in the war pensions case of
R (Clancy) v Secretary of State for Defence,
44[2006] EWHC 3333 (Admin). Davis J decided that it was too late to rely on the substance of an application, if the appropriate form has not been used and the proceedings had been disposed of in accordance with that form.
1.54The enabling approach in action is exemplified by R(I) 6/69. The Commissioner set out the proper approach for a tribunal to take:
It is the tribunal’s duty to afford every claimant a reasonable opportunity of addressing them, of calling or adducing evidence, and of calling attention to any points or matters which he thinks should be taken into consideration. He must also be afforded a reasonable opportunity to reply to any submissions or arguments adverse to his case made on behalf of the Secretary of State. This means something more than a mere passive willingness to accede to a request, should one be made to address the tribunal; it involves a degree of active assistance and encouragement. How much assistance and encouragement is required will necessarily vary from case to case and from claimant to claimant. Some unrepresented claimants are unable to express themselves clearly or unable to distinguish between what is relevant and what is irrelevant. In many such cases the tribunal can do little more than invite answers to questions.
45R(I) 6/69 at [7].But this simplicity and informality is not uncontrolled. There are limits to which it is permissible or appropriate.
1.55Although the tribunal may help a party to develop and present a case, it must always be the party’s case. If it becomes the tribunal’s own case, the tribunal has gone too far.
46As occurred in East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293.1.56For some purposes, formal attention to the correct procedures is necessary. So in
Sivanandan v Enfield LBC,
47[2005] EWCA Civ 10; (2005) Times 20 January. the Court of Appeal decided that an employment tribunal is required formally to dismiss a claim if it is withdrawn in order to pursue a remedy elsewhere. Wall LJ emphasised the need in such circumstances for ‘a clear procedural discipline’.
48[2005] EWCA Civ 10 at [122].1.57Even if a lesser degree of formality than that used in courts is appropriate, the proceedings must not be so informal that all aspects of a case are not considered. The purpose of the enabling approach is to enhance the quality of the decision-making; it must not be used to impede it. As Pill LJ explained in the context of a planning appeal in
Dyason v Secretary of State for the Environment:
49(1998) 75 P&CR 506.A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the rigorous examination essential to the determination of difficulty questions may be diluted.
50(1998) 75 P&CR 506 at 512.1.58Informality of approach should not deprive a party of a right, such as the right to question witnesses.
51R(I) 13/74 at [9].1.59Nor should it be allowed to prejudice or embarrass a party’s presentation of a case. The recalling of witnesses in an employment tribunal was considered by the Employment Appeal Tribunal in
Aberdeen Steak Houses Group plc v Ibrahim.
52[1988] ICR 550. Wood J said:
It is possible for informality to go too far and it is important for parties appearing before any judicial body, and for their legal advisers in preparing for trial, to know the rules normally to be applied during that hearing. It is important that there should be consistency. It is also important that any sudden change from that norm should not present a party with an embarrassing situation from which a feeling of unfairness may arise.
53[1988] ICR 550 at 558.Inquisitorial approach
1.60In many jurisdictions, the tribunal will take an inquisitorial approach.
54This is not universal, as circumstances differ between jurisdictions: MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064 at [25]. Employment tribunals are not expected to obtain evidence or ensure that the parties do so, although they should use their case management powers to remind the parties of the importance of producing the necessary evidence: McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 at [26]. There is no express legal requirement that they do so, but it is an aspect of accessibility (TCEA ss2(3)(a) and 24(2)(b)). And the overriding objective requires that, as far as practicable, the parties must be able to participate fully in the proceedings: see for example UTR r2(2)(c).
1.61This approach requires a tribunal to be actively involved in identifying the issues and obtaining relevant evidence at the hearing.
55It is not unique to tribunals. Re J (Paternity: Welfare of Child) [2007] 1 FLR 1064 at [11] is an example of a court in a case involving a child contemplating raising an issue of its own motion. This may be done by identifying the issues that arise, by explaining what is relevant to the parties, by questioning them or by a mixture of these techniques. However it is done, it has two aspects. First, the issues aspect: it ensures that relevant issues are identified. Second, the investigative aspect: it ensures that those issues are properly investigated and considered. Both aspects blend with the enabling approach.
1.62What is required in a particular case is dictated by a combination of the nature of the parties, of the proceedings and of the issues. It arises in part from the non-contentious role of public parties to the proceedings, who are concerned only with the correct application of the law,
56R (Starling) v Child Support Commissioners [2008] EWHC 1319 (Admin) at [31]–[33]. from the need to protect the public interest,
57As explained by Diplock LJ in R v Deputy Industrial Injuries Commissioner ex p Moore [1965] 1 QB 456 at 486. and from the enabling approach, which recognises that lay parties may not be and need not be represented. Such factors can apply even if the tribunal is deciding a dispute between the parties or to vindicate a right claimed by a party.
58Browning v Information Commissioner and DBIS [2013] UKUT 236 (AAC) at [60] and [65]. Individually and collectively, they make it inappropriate to follow an adversarial approach.
1.63This in turn makes it inappropriate for there to be cross-examination as practised in courts. The courts see this as essential to the fact-finding process. As Viscount Sankey LC explained in
Mechanical and General Inventions Co Ltd and Lehwess v Austin and the Austin Motor Co Ltd:
59[1935] AC 346.Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.
60[1935] AC 346 at 359, quoting the Master of the Rolls in the Court of Appeal.1.64By taking an inquisitorial approach, a tribunal compensates for this lack of a rigorous challenge by each party of the other’s case, thereby ensuring a fair hearing for all the parties to the proceedings. As Pill LJ explained in
Dyason v Secretary of State for the Environment61(1998) 75 P&CR 506. in the context of a planning appeal:
If cross-examination disappears, the need to examine propositions in that way does not disappear with it…. The absence of an accusatorial procedure places an inquisitorial burden upon an Inspector.
62(1998) 75 P&CR 506 at 512.1.65The need for an inquisitorial approach may also arise from the nature of the proceedings. If a court is under a duty to make a decision on the basis of all the facts and circumstances of the case, the judge has a duty to obtain the necessary evidence regardless of the wishes of the parties.
Miller v Miller63[2006] 1 FLR 151. concerned relief proceedings ancillary to a divorce. In the Court of Appeal, Thorpe LJ referred
64[2006] 1 FLR 151 at [24]. to the ‘trial judge’s obligation to investigate whatever he conceives relevant and necessary to enable him to discharge his statutory duty’ in those proceedings and explained that as a consequence ‘Ancillary relief proceedings are quasi-inquisitorial and the judge is never confined by what the parties elect to put in evidence or by whatever they may agree to exclude from evidence.’ An inquisitorial approach is likewise required if the tribunal is under a duty to consider whether to make a particular order.
65See also Tameside & Glossop Acute Services NHS Trust v Thompstone [2008] 2 All ER 553 at [52].1.66The nature of the issues will determine the extent to which the public interest may require a tribunal to investigate a case. In
R (Starling) v Child Support Commissioners,
66[2008] EWHC 1319 (Admin). the court was concerned with an appeal in a child support case. Collins J identified a public interest in: (i) the possibility that the person with care would have to depend on social security benefits if the correct amount of maintenance was not identified; and (ii) the welfare of the children.
67[2008] EWHC 1319 (Admin) at [32].1.67To the extent that the approach is based on the abilities of the parties and their representatives to present a case, it is flexible. Its operation depends on the extent to which the parties are informed participants in the proceedings, whether they are represented and, if so, the quality of that representation. Either or both of the aspects of the inquisitorial approach (the issues aspect and the investigative aspect) may be required, depending on the circumstances. And the extent to which they have to be applied may differ.
1.68In R(I) 6/69, the Commissioner related the inquisitorial approach to the need to make the right to be heard effective:
How much assistance and encouragement is required will necessarily vary from case to case and from claimant to claimant … But the broad general principle is that the claimant has a right to be heard and that a Tribunal has a corresponding duty not only to ensure that he is aware of this right but also to assist him, by such means as may be appropriate in any particular case, to exercise it. The fact that a tribunal is master of its own procedure makes it the more urgent that this principle should be observed.
68R(I) 6/69 at [7].Accordingly, for an inarticulate, unrepresented and uninformed claimant, both aspects may apply.
1.69If the claimant is represented by solicitors and counsel before both the First-tier Tribunal and the Upper Tribunal, neither aspect may apply. As Mummery LJ said in
Jeleniewicz v Secretary of State for Work and Pensions:
69[2008] EWCA Civ 1163 at [31]; reported as R(IS) 3/09.In this case the Claimant was represented by solicitors and counsel both before the Appeal Tribunal and the Commissioner. It was proper and reasonable for the Commissioner to proceed on the basis that the claimant’s legal representatives had supplied him with all the information relevant to questions that he had to decide and that the submissions made to him by counsel were based on the available information and were directed to the relevant provisions of the Directive and the 2000 Regulations.
1.70And in
Chandra v Care Standards Tribunal,
70[2008] EWHC 2833 (Admin). the deputy judge held that, as both parties were represented before the tribunal by counsel, it was their responsibility, and not that of the tribunal, to call the authors of a report that was in evidence.
71[2008] EWHC 2833 (Admin) at [17].1.71If a party’s representative is not professional, experienced or even competent, the investigative aspect but not the issues aspect may apply. In
Kumchyk v Derby City Council,
72[1978] ICR 1116. the Employment Appeal Tribunal dealt with this issue in the course of discussing the circumstances in which a point could be taken for the first time before the Appeal Tribunal:
It is well established in these tribunals [industrial tribunals, now employment tribunals], and we hope in this appeal tribunal, that where the representation is a non-professional representation, or possibly even where it is an inexperienced professional representation (if such a thing can be conceived), in listening to an argument put forward by an advocate or evaluating a point of law put forward by an advocate, the tribunal will be as helpful as possible, perhaps by itself refining and improving the argument, perhaps by suggesting to the advocate that the argument might be put in a different or more favourable fashion, something of that sort. But we think it is very far from the duty or indeed the practice of the chairman of industrial tribunals that they should be expected to introduce into the case issues that do not figure in the presentation on the one side or the other side, at any rate in normal circumstances …
73[1978] ICR 1116 at 1123.1.72However, the inquisitorial approach is not completely excluded for parties who have access to expert legal advice. In
Krasniqi v Secretary of State for the Home Department,
74[2006] EWCA Civ 391; (2006) Times 20 April. the appellant to the Asylum and Immigration Tribunal was the Secretary of State. The Court of Appeal decided that the Tribunal, whose jurisdiction depended on there being a point of law, was entitled ‘to extract a point of law from nebulously expressed grounds of appeal, or in exceptional cases to identify for itself an obvious issue of law which the appellant had missed’.
75[2006] EWCA Civ 391 at [19]. Sedley LJ described this as ‘a potentially benign power’ and remarked that the Secretary of State ought to be less in need of this kind of assistance than a good many applicants who lacked expert legal advice.
76[2006] EWCA Civ 391 at [19].1.73Even in a case in which the inquisitorial approach applies to its fullest extent, there are limits to it. There may be statutory limits on the extent to which the tribunal may or must take the initiative.
77See chapter 4. And this approach does not relieve the parties of their responsibilities of obtaining and presenting evidence; nor can it be used to relieve them of the cost involved in doing so.
78Although there may be a statutory power to do so. See Social Security Act 1998 s20.Tribunal membership
1.74The Senior President is under a duty to have regard to the needs for members of a tribunal to be expert in the subject matter or law of the cases they decide (s2(3)(c)). And the overriding objective requires that any special expertise of the tribunal must be used effectively: see for example UTR r2(2)(d).
1.75Not being a court allows those with appropriate non-legal skills to participate directly in the decision-making as members of the tribunal rather than as assessors or witnesses.
79Lord Hope and Baroness Hale in Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at [22] and [36]. This helps to make tribunals more accessible to the parties by reducing the need to rely on legal representation and making it easier to allow representation by other specialists.
1.76A tribunal with a narrow jurisdiction is by definition specialist. Tribunals with wider jurisdiction achieve the same effect through assigning panel members to particular jurisdictions and ticketing them for particular areas of work. This specialisation of the members enhances the quality of their decisions and the potential speed of clearance.
1.77Members may be appointed to a tribunal for their expertise or they may acquire or enhance it as a result of their membership. A tribunal that appoints members with particular knowledge, experience or expert may be an expert tribunal or a specialist tribunal.
80‘Expert tribunal’ is an established expression; ‘specialist tribunal’ is not. An expert tribunal is one that is entitled to rely on its own expertise to reach conclusions independently of and, in appropriate cases, in contradiction of the evidence. In
R v Medical Appeal Tribunal (North Midland Region) ex p Hubble,
81[1958] 2 QB 228. Diplock J described the function of a medical appeal tribunal as being ‘to use their own expertise to reach their own expert conclusions upon the matters of medical fact and opinion involved’.
82[1958] 2 QB 228 at 241. A specialist tribunal is one that is not so entitled, but is entitled to use its knowledge and experience in questioning the witnesses and assessing the evidence.
83 R(M) 1/93 at [9].1.78Specialisation is not without its dangers. A tribunal can become isolated from the mainstream of jurisprudence, applying principles in a way that is out of step with other comparable areas of law. For example: the Commissioners were much more likely to find that a tribunal’s facts and reasons were inadequate than the Employment Appeal Tribunal, while the latter was far more likely than the Commissioners to find that a tribunal was biased. One potential advantage of the Upper Tribunal is that these differences can be eliminated.
Rights of audience
1.79It is consistent with ease of access to tribunals that they do not have limited rights of audience. In other words, a party may be represented by anyone regardless of qualifications. This allows representation by professionals from disciplines other than law, such as accountants or social workers. It allows representation by specialists in the relevant area of law who do not hold legal practitioner qualifications. And it allows representation by anyone else selected by the party as suitable to present, or help to present, a case to a tribunal.
1.80There is no control over those who may represent except in immigration, which is subject to control because of the perceived abuse by representatives.
Non-contentious public parties
1.81If the tribunal has jurisdiction over statutory decisions by public bodies, the public body itself is unlikely to be a contentious party to the proceedings. Its only concerns are to ensure that the facts are correctly found and that the law is properly interpreted and applied.
1.82In
R v Lancashire County Council ex p Huddleston,
84[1986] 2 All ER 941. the Court of Appeal was concerned with a local authority’s decision on a student grant. Sir John Donaldson MR put the status of the local authority in the proceedings in the context of public law which had:
… created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration.
85[1986] 2 All ER 941 at 945.The result was this:
The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities.
86[1986] 2 All ER 941 at 945.1.83In
R v Deputy Industrial Injuries Commissioner ex p Moore,
87[1965] 1 QB 456. Diplock LJ said of the position of the decision-maker dealing with entitlement to a social security benefit:
… a claim by an insured person to benefit is not strictly analogous to a
lis inter partes. Insurance tribunals form part of the statutory machinery for investing claims, that is, for ascertaining whether the claimant has satisfied the statutory requirements which entitle him to be paid benefit out of the fund. In such an investigation, neither the insurance officer nor the Minister (both of whom are entitled to be represented before the insurance tribunal) is a party adverse to the claimant.
88[1965] 1 QB 456 at 486. The courts took the same approach to the position of the insurance officer at the stage of the claim: see R v Medical Appeal Tribunal (North Midland Region) ex p Hubble [1958] 2 QB 228 at 240.1.84In
Commissioners of Inland Revenue v Sneath,
89[1932] 2 KB 362. Lord Hanworth MR said of the position of a surveyor on an appeal against an income tax assessment:
There is no interest in the surveyor, except to bring before the Court all facts relevant to the assessment. The decision does not enure in his favour unless he is to be treated as representing the taxpayers at large, exclusive of the one upon whom the assessment in question is made.
90[1932] 2 KB 362 at 382.1.85Similarly a rating valuation officer was described by Lord Radcliffe in
Society of Medical Officers of Health v Hope91[1960] AC 551. as:
… a neutral official charged with the statutory and recurring duty of bringing into existence a valuation list and maintaining its contents in correct and legal form.
92[1960] AC 551 at 565. See also Lord Edmund–Davies in Attorney-General v BBC [1981] AC 303 at 350–351.1.86And in
R (JF) v London Borough of Croydon and the Special Educational Needs Tribunal,
93[2006] EWHC 2368 (Admin). Sullivan J said of the tribunal:
Although the proceedings are in part adversarial because the Authority will be responding to the parents’ appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents’ case.
94[2006] EWHC 2368 (Admin) at [11].Co-operative decision-making
1.87The rules of procedure require the parties to co-operate. UTR r2(4) is illustrative:
95See also: GRC Rules r2(4); HESC Rules r2(4); IAC Rules r2(4); Lands Rules r2(4); PC Rules r3(4); SEC Rules r2(4); Tax Rules r2(4); WPAFC Rules r2(4).(4)Parties must–
(a)help the Upper Tribunal to further the overriding objective; and
(b)co-operate with the Upper Tribunal generally.
1.88These rules give legislative form to a principle of co-operation that was developed by the courts and tribunals. The authorities remain relevant to the interpretation and application of this duty in the rules of procedure.
Between the parties
1.89Co-operation is a characteristic of decision-making by some public bodies. However, its significance is not confined to those bodies. It also affects appellate decision-making in tribunals in two ways. First, it affects the allocation between the parties of responsibility for producing evidence. Second, it affects the way that the tribunal approaches the burden of proof on the evidence produced.
1.90In
Kerr v Department for Social Development,
96[2004] 1 WLR 1372. Baroness Hale emphasised the responsibility on both parties to co-operate in providing the information necessary for a decision. She set out the adjudication procedures on a claim for a social security benefit and noted that it was common ground that the decision-maker had power to make inquiries.
97R v Secretary of State for Social Services ex p Child Poverty Action Group [1990] 2 QB 540. She continued:
What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.
98[1990] 2 QB 540 at [62]. The same approach has been adopted for judicial review cases by the domestic courts in R v Lancashire County Council ex p Huddleston [1986] 2 All ER 941 and for discrimination cases by the European Court of Human Rights in DH v Czech Republic (2008) 47 EHRR 3 at [179].1.91This approach has, as yet, been little developed. In
Kerr, the information required for the claimant’s case either could not be obtained by the claimant or was not so readily available. It is not clear how far Baroness Hale’s reasoning extends beyond this. Nor is it clear to what extent her reasoning depends on the statutory provisions. The statutory provisions considered in that case have now been supplemented by more detailed provisions that put a greater responsibility on claimants for benefit. In
MN (Somalia) v Secretary of State for the Home Department,
99[2014] 1 WLR 2064 at [32]. an asylum case, Lord Carnwath identified an obligation on the Secretary of State to produce evidence to show that expert evidence was reliable. His reasoning is consistent with
Kerr, although he did not cite that decision on this issue.
1.92The principle in
Kerr is not limited to imposing a duty on public bodies. Nor is it limited to the initial stage of establishing entitlement. In
Jeleniewicz v Secretary of State for Work and Pensions,
100[2008] EWCA Civ 1163 at [30]; reported as R(IS) 3/09. the Court of Appeal held:
First, as to the process adopted by the Commissioner on the hearing of the appeal, there was no error of law. As Baroness Hale observed in Kerr at paragraph 62 the claimant is the person who, generally speaking, can and must supply the information needed to determine whether the conditions of entitlement have been met. A similar point was made by Lord Hope in his speech (paragraph 16) when he said that facts which may be reasonably within the claimant’s knowledge are for the claimant to supply at each stage of the inquiry. In my judgment, this is as true in determining whether the conditions of entitlement have ceased to be satisfied as it is when determining whether the conditions have been satisfied.
Between the parties and the tribunal
1.93A duty of co-operation derives from the public status of a party and the nature of the proceedings. In
R v Lancashire County Council ex p Huddleston,
101[1986] 2 All ER 941. the Court of Appeal was concerned with judicial review of a local authority’s decision on a student grant. Sir John Donaldson MR described those proceedings as being:
… a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hands.
102[1986] 2 All ER 941 at 945.Although this case concerned judicial review, the reasoning applies equally to an appeal. The Privy Council considered the
Huddleston case in
Marshall v Deputy Governor of Bermuda.
103[2010] UKPC 9. It analysed the so-called duty of candour, but noted its limits. Lord Phillips explained:
Each of the cases in which Lord Donaldson made these statements involved a decision taken by a public authority that related to and adversely affected an individual. Care must be taken when applying Lord Donaldson’s statements to judicial review proceedings in relation to acts of public authorities that do not involve any exercise of discretion. Furthermore those statements apply to the situation where it is not possible for the court to assess the merits of an issue that has been raised unless the public authority against whom the claim is brought furnishes the court with information which it alone is in a position to provide. They should not be relied upon to transfer to the respondent the onus of proving matters which a claimant is under a duty and in a position to prove.
104[2010] UKPC 9 at [29].1.94Co-operation may also derive from the nature of the rule or principle that the tribunal has to apply. If a tribunal is required to take account of all the circumstances of a case relevant to an issue, the parties are under a duty to provide the tribunal with the information that is required. In
Jenkins v Livesey,
105[1985] AC 424. the House of Lords was concerned with the ancillary relief provisions of the Matrimonial Causes Act 1973. The relevant provisions required the court to have regard to all the circumstances of the case in making financial orders consequent upon a divorce. Lord Brandon explained that:
… in proceedings in which parties invoke the exercise of the court’s powers under sections 23 and 24, they must provide the court with the information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up-to-date, the court is not equipped to exercise, and therefore lawfully and properly exercise, its discretion in the manner ordained by section 25(1).
106[1985] AC 424 at 436–437.1.95The case management approach to proceedings may also require the parties to co-operate procedurally.
107See chapter 7 below.Pressures for change
1.96The nature of tribunals and their procedure is not constant. It has changed over time. From the 1980s, tribunals became more independent and their members were better trained. From the 1990s, the increase in the number of salaried judges allowed for more, and more effective, case management. From around 2000, there was, anecdotally, a more legalistic approach in some tribunals. This increasingly professional approach collided with greater professionalism among non-lawyer representatives. They proliferated and sought a greater role in the hearing, although they have not always accepted the correlative responsibility.
1.97The increased case management and legalism among the judiciary and the demand for greater involvement by representatives have yet to be reconciled, in theory and practice, with the traditional enabling and inquisitorial approaches of some tribunals. Under TCEA, these pressures for change will have to be released under the constraints imposed by the duties of expert decision-making and accessibility that are imposed on the Senior President and, thereby, ultimately on tribunals.