Notice of hearingAustralia, The [1927] AC 145
8.50Notice is essential if there is to be a fair hearing.
Notice of an oral hearing
8.51Each party must have reasonable notice of the time and place of the hearing and of any change to the time or place.
1See: UTR r36(1); GRC Rules r34(1); (other than mental health cases) HESC Rules r25(1); IAC Rules r26; Lands Rules r47(1); PC Rules r32(1); SEC Rules r29(1); Tax Rules r31(1); WPAFC Rules r27(1). The requirement to give notice of any change would be implied: R v County of London Quarter Sessions Appeals Committee ex p Rossi [1956] 1 QB 682.8.52The basic approach is that reasonable notice means at least 14 days, although this may be shortened if the parties consent or the case is urgent or exceptional.
2See: UTR r36(2)(b); GRC Rules r34(2); HESC Rules rr25(2)(c) (other than mental health cases) and 37(4)(b) (mental health cases); Lands Rules r47(2); PC Rules r32(2); SEC Rules r29(2)(b); Tax Rules r31(2); WPAFC Rules r27(2). There is no equivalent power in IAC Rules. However, shorter notice than 14 days is fixed for the following cases:
8.53Under HESC Rules:
•at least three working days are required for suspension cases (r25(2)(a));
•at least seven days are required for orders under section 166(5) of the Education Act 2002 (r25(2)(b));
•at least three working days are required for proceedings under section 66(1)(a) of the Mental Health Act 1983 (r37(4)(a)).
8.54Under SEC Rules, between one and five days are required for asylum support cases under (r29(2)(a));
8.55Under UTR, at least two working days are required for judicial review proceedings under (r36(2)(a)).
8.56In addition in some mental health cases, HESC Rules prescribe the period when the hearing must start:
•proceedings under section 66(1)(a) of the Mental Health Act 1983 must start within seven days of the application notice being received by the tribunal (r37(1));
•proceedings under section 75(1) of the Mental Health Act 1983 must start between five and eight weeks of the reference being received by the tribunal (r37(2)).
Notice of a paper hearing
8.57If the hearing is to be on the papers alone without any party present, the parties do not need to know the precise time and place of the hearing. However, they may wish to submit further evidence or to make written submissions. In order to do this, they need to know the deadline for providing these if they are to be put to the tribunal. This is essential if the proceedings are to be fair.
Assessors
8.58An assessor is a person appointed to provide independent assistance to the tribunal.
8.59The role of assessor has a long history in the courts. There are general powers for the High Court
3Senior Courts Act 1981 s70. and the County Court
4County Courts Act 1984 s63. to sit with assessors. Specific provision is also made for assessors to be used in race relations cases.
5Race Relations Act 1976 s67(4). The court decisions on the use of assessors mainly involve shipping and workmen’s compensation
6Workmen’s Compensation Act 1925 Sch 1 para 5, now repealed. cases. Tribunals exercising a social security jurisdiction were authorised
7For example: Social Security Administration Act 1992 s56, now repealed. or required
8Social Security (Incapacity for Work) (General) Regulations 1995 reg 21, now revoked. to sit with assessors. The Commissioners considered their use in reported decisions.
8.60The legislation may provide for the role of the assessor.
9For example: National Insurance (Industrial Injuries) (Determination of Claims and Questions) Regulations 1948 reg 16(2) provided that ‘An assessor sitting with a local tribunal as aforesaid shall not take any part in the determination or decision of that tribunal except in an advisory capacity’. Otherwise, the principles laid down by the courts and the Commissioners are generally applicable to all cases involving assessors, subject to an assessment of their continuing validity in the context of the relevant procedural legislation, and of their compliance with modern standards of natural justice and article 6.
Under TCEA
8.61TCEA s28 gives the First-tier Tribunal and the Upper Tribunal power to direct that an assessor shall assist the tribunal.
10This provision is in accordance with the former Council on Tribunals’ recommendation that there should be express statutory authority for the use of an assessor – Guide to Drafting Tribunal Rules (2003), p182. The tribunal may exercise this power if ‘a matter before it requires special expertise not otherwise available to it’. The person or persons appointed must appear to have the relevant knowledge or experience. The Lord Chancellor may establish panels of persons suitable to be assessors, but the tribunal need not select from them.
The presence of the assessor
8.62The assessor must have access to the evidence on which assistance is required. In
R v Deputy Industrial Injuries Commissioner ex p Jones11[1962] 2 QB 677. the Division-al Court explained how this worked. In the case of a hearing on the papers, the assessor must be shown the relevant documents and advise accordingly.
12[1962] 2 QB 677 at 686–687. In the case of an oral hearing, the assessor must be present either throughout the hearing or for those parts of the hearing to which the assessor’s assistance will be relevant. It is not sufficient for the assessor to read notes of the oral evidence.
13[1962] 2 QB 677 at 687.The functions of the assessor
8.63The primary function of the assessor is to help the tribunal to understand the evidence. This was explained in the House of Lords by the Lord Chancellor, Viscount Simon, in
Richardson v Redpath Brown and Co Ltd:
14[1944] AC 62.He is an expert available to the arbitrator to consult if the arbitrator requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the arbitrator questions which the arbitrator himself might put to an expert witness with a view to testing the witness’s view or to making plain his meaning. The arbitrator may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or to the extent of the difference between apparently contradictory conclusions in the expert field.
15[1944] AC 62 at 70.8.64The assessor may also help by suggesting relevant issues of fact that should be investigated by the tribunal.
8.65The assessor helps the tribunal to understand the evidence, but does not give evidence.
16R v Deputy Industrial Injuries Commissioner ex p Jones [1962] 2 QB 677 at 689. Nor may the assessor carry out a physical examination of the claimant in order to gather evidence for the tribunal.
17Richardson v Redpath Brown and Co Ltd [1944] AC 62 at 69–70.8.66The tribunal has power to regulate its procedure at a hearing. The assessor must operate within the procedure adopted. But the tribunal must adopt a procedure that allows all those present, including the assessor, to fulfil the functions of their respective roles.
8.67The matters on which the assessor gives advice may be suggested by any source. The members of the tribunal may have points which they wish to raise with the assessor. Any party to the proceedings, or any representative, may suggest points on which the tribunal would benefit from the assessor’s advice. These should be put to the assessor if they are consistent with the role of informing and advising on an issue relevant to the case.
8.68The assessor’s role is not a merely passive one of providing information on request. If there is a matter on which advice seems appropriate, the assessor should draw this to the tribunal’s attention. The procedure at the hearing must allow this to be done.
8.69The assessor may also suggest questions which might be put to a witness. These may relate to otherwise unexplored but relevant issues. Or they may test the witness’s evidence or make its meaning plain.
18At 70.8.70In
R(I) 14/51, the Commissioner said that questions suggested by an assessor should be put through the chairman.
19At [7(1)(i)]. His comments show that he was concerned that a technical exchange between an assessor and an expert witness might be incomprehensible to the tribunal and have the effect of prolonging the proceedings without enlightening the tribunal. Subject to this danger, the matter is one for the tribunal to determine as part of the regulation of its procedure at the hearing. The practice of asking the assessor to direct questions through the presiding judge has two advantages: it ensures that only relevant questions are asked and it maintains and emphasises the particular status and role of the assessor. It can, however, become tedious, cumbersome, time-consuming and inconvenient, all of which a tribunal would probably wish to avoid.
8.71It is preferable that the assessor should not be asked directly to give an opinion on the issue that the tribunal has to decide, although in the circumstances of a particular case it may not be possible to frame a question in any other way.
20R(I) 14/51 at [7(1)]. Ideally the questions should be framed in more general terms so as to elicit information which will help the tribunal to determine that issue. This approach avoids any suggestion or suspicion that the assessor is making the decision rather than the tribunal.
8.72It is good practice for the presiding judge to record the assessor’s contributions.
Disclosure of advice
8.73This issue was considered by the Court of Appeal in
Ahmed v Governing Body of the University of Oxford21[2003] 1 WLR 995. in the context of assessors assisting a judge in a racial discrimination case. Waller LJ set out the view of the Court:
The next question is to what extent the judge should disclose during the case and before final submissions the advice that he is getting from the assessors? Mr Allen submitted that as a matter of natural justice the parties were entitled to know the advice that the judge was getting so that they could deal with it. He referred us to
Mahlikilil Dhalamini v R [1942] AC 583;
Bharat v R [1959] AC 533;
Nwabueze v General Medical Council [2000] 1 WLR 1760;
Roylance v General Medical Council [2000] 1 AC 311 and
R v Deputy Industrial Injuries Commissioner ex p Jones [1962] 2 QB 677. Advice can of course cover a range of matters, and in our view as a general prop-osition Mr Allen’s formulation is too wide. We suggest that the principles one gets from those authorities are these. (1) If a fact finding Tribunal or assessors involved in the findings of fact are to be directed on the law, that direction should normally be given in open court and the direction should be accurate; for the importance of open court see the
Mahlikilil case; for the importance of the direction being accurate see
Bharat v R. (2) If the advice is in the nature of expert evidence to which the parties should be entitled to respond, disclosure will normally be required; see the
Mahlikilil case. (3) Where a corporate judicial decision has to be made the detail of the discussion and the manner in which the conclusion was reached should normally remain confidential; see
Roylance’s case.
22[2003] 1 WLR 995 at [33].8.74The proper approach is determined by the requirements of natural justice and of article 6
23Owners of the Ship Bow Spring v Owners of the Ship Manzanillo II [2005] 1 WLR 144 at [57]–[61]. in the context of the role played by the assessor in the type of proceedings involved.
8.75In
Watson v General Medical Council,
24[2006] ICR 113. Stanley Burnton J considered the roles of an assessor and a legal adviser to the Council. An assessor advised on factual issues on which there was no appeal, while a legal adviser advised on questions of law on which an appeal lay to the High Court. He held that advice given by an assessor should be given openly to the parties so that they could comment on it before the tribunal made its decision. Likewise in the social security context, the courts and the Commissioners held that any advice received by the tribunal must be made known to the parties to the tribunal who are present and they should have an opportunity to comment on it.
25R v Deputy Industrial Injuries Commissioner ex p Jones [1962] 2 QB 677 at 685–686; R(I) 14/51 at [7(1)(ii)].Status of the assessor
8.76An assessor is not a member of the tribunal and so has no judicial powers or duties and no automatic right to remain with the tribunal while it arrives at its decision.
26R(I) 14/51 at [7]. Equally, an assessor is not a party to the proceedings and is not subject to any provisions which apply to those parties. Nor is an assessor a witness.
27R(I) 14/51 at [7] and R(I) 23/57 at [13]. It follows that there is no
right to question an assessor.
28R(I) 14/51 at [7] and R(I) 23/57 at [13].Independence of assessor
8.77The assessor must be in a position to give completely impartial and unbiased advice to a tribunal. This will not be possible if the assessor has some professional or personal relationship with any of the parties.
The tribunal’s responsibility for decision-making
8.78It follows from the advisory function of the assessor that the decision is for the tribunal. The tribunal must make the decision itself and must not abdicate to the assessor its responsibility for making that decision or for deciding any issue that arises for decision. If necessary, it must refuse to follow the assessor’s advice. This was spelt out by Lord Sumner in the House of Lords in
The Australia:
29[1927] AC 145.Authority for the proposition that assessors only give advice and that judges need not take it, but must in any case settle the decision and bear the responsibility, is both copious and old. It is for them to believe or to disbelieve the witnesses, and to find the facts, which they give to their assessors and which must be accepted by them. If they entertain an opinion contrary to the advice given, they are entitled and even bound, though at the risk of seeming presumptuous, to give effect to their own view …
30[1927] AC 145 at 152.This passage needs adjustment to reflect the fact that the role of assessors in some contexts is to help the tribunal make the findings of fact in the first place.
8.79If a tribunal does disregard the advice of the assessor, the tribunal’s reasons should record that this was done and explain why.