Majority or unanimityTimes 30 June
14.186The relevant Act or the rules of procedure may expressly provide for decision-making to be unanimous or by a majority. If the latter, they may also expressly provide whether the member who chairs the tribunal has a casting vote.
14.187In the absence of express provisions, the issue is governed by the decision of the Court of Appeal in
Picea Holdings Ltd v London Rent Assessment Panel.
1[1971] 2 QB 216. Lord Parker CJ set out the correct approach:
•if the issue is purely of private interest, the decision must be unanimous;
•if the issue is of public interest, the decision may be taken by a majority;
•however, even if the issue is one of public interest, majority decision-making must be consistent with the governing legislation as a whole.
14.188There are two first instance decisions that held that decision-making in respect of a war pension had to be unanimous, whether that result was to the claimant’s advantage
2Brain v Minister of Pensions [1947] KB 625. or disadvantage.
3Minister of Pensions v Horsey [1949] 2 KB 526. The Court of Appeal in
Picea Holdings Ltd v London Rent Assessment Panel4[1971] 2 QB 216. did not overrule those decisions, but it did not accept that they laid down a general principle.
5[1971] 2 QB 216 at 224–225. They apply only in England and Wales. The position in Scotland was first left open;
6Brown v Minister of Pensions [1946] SC 471. then it was decided that majority decisions were permissible.
7Secretary of State for Social Security v KM [1998] ScotCS 67. The Pensions Appeal Tribunal in Northern Ireland followed the Scottish approach.
Under TCEA
14.189Regulation 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 provides:
If the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided.
This confers a power, but the power should only be exercised if it is appropriate to do so in view of the nature and extent of the disagreement.
8PF (Nigeria) v Secretary of State for the Home Department [2015] 1 WLR 5235 at [36]-[38].Good practice
14.190Even if the rules of procedure allow the decision to be made by a majority, every effort should be made to reach a unanimous decision. One approach is to delay making a decision for the minority to consider the written reasons of the majority.
9Anglia Home Improvements Ltd v Kelly (2004) Times 30 June. If the difference of opinion is between the presiding judge and the lay members and it relates to whether the burden of proof is discharged, the members should generally concede that there must be a reasonable doubt on the issue. In
Brown v Minister of Pensions,
10[1946] SC 471. the Scottish court was concerned with the burden of proof in war pension cases, which was more favourable than usual to the claimant. The court said:
… when the question is the sufficiency of the evidence to discharge such an onus, and when an express injunction has been laid upon the tribunal to give the claimant the benefit of any reasonable doubt, only the most powerful considerations can justify the medical and service members in outvoting the legal chairman. Such a decision necessarily imports that in the view of the majority the chairman’s dissent is not reasonable. We should have thought that the bare fact that the chairman was in favour of a certificate of entitlement and held his views sufficiently strongly to enter an express dissent would itself have convinced the tribunal as a whole that there must be a reasonable doubt to which it was their simplest duty to concede effect.
11[1946] SC 471 at 476, cited with approval in Secretary of State for Social Security v KM [1998] ScotCS 67.