Non-legal members in UK Tribunals Pete Burgess, Susan Corby, Paul Latreille 1

Transcription

1 Non-legal members in UK Tribunals Pete Burgess, Susan Corby, Paul Latreille 1 Introduction The research question for this section of the study, funded by the Economic and Social Research Council (RES ) was to compare the composition of the ET and the EAT with tribunals elsewhere in the UK, looking at the following: a. how disputes/references are made; b. how lay members are selected; c. whether the lay member is an adviser or a decision maker; d. whether the legally qualified person is an adviser or a decision maker; e. the composition of the appellate system and whether lay members are advisers or decision makers. This research question was to be addressed essentially through desk research, only supplemented where necessary by communication (by telephone/ ). In the event, although desk research was the main methodological tool, for the three case studies desk research was supplemented by face-to-face interviews with legally qualified judges and a non-legal member (NLM). The plan of this paper is as follows: after an overview of the UK tribunal system and NLMs, there is a matrix covering a selection of First-tier and Upper Tribunals, focusing on the appointment and role of NLMs. The Employment Tribunals (ETs)/Employment Appeal Tribunal (EAT) are included for comparison, although these currently constitute a separate pillar in terms of judges and lay members. They also differ in another important respect. Whereas ETs and the EAT adjudicate on party v party disputes, virtually all the other tribunals are only concerned with appeals against administrative decisions. We also include a separate matrix for panels established by local authorities and schools for managing school admissions and exclusions, where members are required to be diverse and locally representative. Next we provide three case studies: The Immigration Asylum Tribunal, the Social Security and Child Support Tribunal and the Valuation Tribunal (England), and finally we draw some conclusions. An overview The vast bulk of tribunal procedures in the UK are constituted and operate through the Courts and Tribunal Service. The section below outlines the main principles and 1 Pete Burgess is Research Fellow and Susan Corby is Professor of Employment Relations; both are at the University of Greenwich. Paul Latreille is Professor of Economics, Swansea University. 1

2 practices that currently guide the operation of those tribunals operating under the Tribunal, Courts and Enforcement Act 2007, which implemented the provisions of the 2004 White Paper, Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243). There are seven chambers in the First Tier Tribunal: Social Entitlement; Immigration and Asylum; Health; Education and Social Care; War Pensions and Armed Forces Compensation; Tax; General Regulatory; and Land, Property and Housing (Carnwath, 2011). In most Chambers there are several tribunals. For instance in the General Regulatory Chamber there are nine tribunals (Charity; Consumer Credit; Estate Agents; Transport (Driving Standards Appeals) Information Rights; Claims Management Services; Gambling; Immigration Services; Local Government Standards. Our matrix, therefore, which only gives details about some tribunals, is not comprehensive. Furthermore, although we do not specify this, these tribunals vary in their geographical reach. Some are UK wide; some cover Great Britain; some cover only England and Wales; and some cover only England or only Scotland. Non-Legal Members (NLMS) A hallmark of tribunal decisions are that they are often made jointly by a panel of people who pool legal and other expert knowledge, and are the better for that range of skills (Leggatt, 2001, para1.2). As will be seen from the matrix, a wide range of nonlawyers with relevant experience are eligible for tribunal membership: accountants (e.g. the Tax Chamber), someone with a disability (e.g. the Social Security and Child Support Tribunal), a registered medical practitioner (e.g. Mental Health Review Tribunal), a member of the Armed Services (e.g. the War Pensions and Armed Forces Compensation Tribunal). Non-legally qualified members (NLMs) of First-Tier Tribunals within the Courts and Tribunal Service have been, or will be, appointed through the Judicial Appointments Commission; many incumbents appointed under preceding arrangements will have been transferred to the First-tier Tribunals following the reorganisation of the Tribunal Service from The Valuation Tribunal for England, dealt with in a short case study below, inherited a different appointments regime, but future appointments will take place through the Judicial Appointment Commission. Some NLMs are fee-paid and some, mostly medical specialists, are salaried. There is a selection procedure, based on a job description that, in addition to specialist requirements and expertise, also typically includes a range of generic competencies, such as an ability to understand and deal fairly and authority and communication skills (Judicial Appointments Commission). Whereas the particular skills for each Tribunal are developed by senior judges in each Chamber, the more generic competences were proposed by the JAC itself. In some cases, written tests must be completed which are marked by judges and moderated by a panel of judges and the Judicial Appointments Commission. Role play is also sometimes used, and these are developed by senior judges, and signed off by the JAC Diversity Committee. 2

3 The qualifications required are set out in the Qualifications Order (abbreviated to QO below): this refers to the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008, as amended. Tribunal Members are broadly grouped into professional health experts, surveyors and accountants (for which the requirement is an accredited qualification from a recognised body), and other forms of substantial experience (sometimes referred to as the lay members ). While some of the latter are likely to have a professional background, they are not required to have a professional qualification. Although some of those NLMs involved in cases dealing with the physical or mental needs of disabled persons, are not required to have a professional qualification, they do have to have specific experience or a specific characteristic; see below. This incorporates a peer-based form of knowledge, much of which is possibly tacit, in which the experience of the NLM closely matches that of a complainant. This raises the issue of how much lay knowledge in other tribunals, both that of expert members and lay members, is also tacit. By definition, such knowledge is difficult to codify. In Employment Tribunals where NLMs are required to have workplace experience, arguably a significant component of a non-legal perspective is tacit knowledge of social relationships at the workplace accumulated through observation and participation. This experiential element overlaps, but is not entirely coterminous with the knowledge brought by a member of the Social Security and Child Support Tribunal who has a disability. There is an overarching requirement that the Senior President must ensure that members of all tribunals are experts in the subject matter of, or the law to be applied in, cases in which they decide matters. There is scope for movement for NLMs between Tribunals within a Chamber ( cross-ticketing ), and the Senior President may appoint members of the First-tier Tribunal (or Upper Tribunal) to one or more Chambers having regard to their knowledge and experience 2 known as cross-assignment. Some NLMs from the Social Security and Child Support Tribunals, who have experience in respect of disability, have been assigned as NLMs to Employment Tribunals. The membership of individual tribunals typically refers back to the QO, which specifies in more detail the competences and qualifications required of NLMs. Depending on the issue and acting within the Practice Statements of the Senior President, Chamber Presidents may call on additional Members such as a certified accountant, as specified under 2(i) of the Qualifications Order. References Carnwath, R. (2011) Tribunals and the Courts the UK Model, Canadian Journal of Administrative Law and Practice, 24, Leggatt, A. (2001) Tribunals for Users One System, One Service. London: Department of Constitutional Affairs 2 Explanatory Memorandum to the Order 3

4 Practice Statements of the Senior President < accessed 31 August 2011 Senior President of Tribunals (2011). Senior President of Tribunals Annual Report. February

5 First-tier Tribunals 3 Tribunal Cases Composition of tribunal 4 and role in proceedings Tribunal Member is abbreviated to TM Social Security and Child Support (SSCS) Great Britain Criminal Injuries Compensation Board Great Britain Mental Health Review Tribunal England Care Standards Tribunal England & Wales Primary Health Lists England & Wales Appeals against decisions of departments or local authorities on benefit entitlements. c. 340,000 cases ( , expected to rise to 400,000+ Appeals against decisions of the Criminal Injuries Compensation Authority: 3,800 appeals in Applications from individuals detained under the Mental Health Act. Appeals against decisions to restrict or bar individuals from working with children/vulnerable adults, or to cancel/refuse registration of certain care provision. The Primary Health Lists jurisdiction hears appeals/applications on decisions made by Primary Care Trusts on list of approved practitioners Tribunal to consist of no more than three members. Composition varies by case, with considerable scope for judges to sit alone. An appeal against a disability living allowance must consist of a Judge and a NLM who is a registered medical practitioner and an NLM with a disability qualification. Cases with a specifically financial accounting element may be heard by a Tribunal with a qualified accountant. Tribunal to consist of two or three members, each of whom is either a judge or other member, with the following qualifications: medical practitioner, nurse or clinical psychologist; pharmacologist; accountant; person competent to deal with disability claims (see SSCS); person with substantial experience in education, childcare, health or social care, or of dealing with victims of violent crime. The Tribunal consists of a judge plus one other member who is a registered medical practitioner and a further member with substantial experience of health, or social care matters The Tribunal consists either of one judge and two other members, each of which must have substantial experience of educational, childcare, health or social care matters or, if the Chamber President considers it appropriate, two judges and one other member with the same experience etc. as above. Part of the First-tier-Tribunal Health, Education and Social Care Chamber. It consists of a judge plus another member who is a registered medical practitioner, dentist, optometrist or pharmacologist and a further member with substantial experience of health matters. The Judicial Appointments Commission terms the additional member lay and the medical professionals specialist members. Requirements and qualifications 5 TM 6 qualifications set out in QO 7. A disability qualification includes a person who works with disabled persons professionally or in a voluntary capacity or someone with a disability. As above, with cross-ticketing between this Tribunal and SSCS. Some members are salaried and switch from clinical careers to fulltime Tribunal membership. As listed in the QO, and specified in the post descriptions issued by the Judicial Appointments Commission. Professional accreditation and/or lay experience. The NLM panel is 50/50 professional and lay. 3 This is a selection of First-tier tribunals: it is intended to reflect a cross-section of bodies operating in some or all of the constituent countries of the UK. 4 The composition of tribunals is determined by the Senior President of Tribunals under powers conferred by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 and set out in Practice Statements. Powers to make additional determinations on the composition of Tribunals may be delegated to Chamber Presidents, with scope for them to decide on the composition in some cases to include any Tribunal Member whose experience and qualifications are necessary to decide the matter (Practice Statement, Composition of Tribunals in Social Security and Child Support Cases, 30 October 2008). 5 Training for Tribunal Members is provided through the Tribunal Service in line with the priorities set by the Senior President on the advice of the Tribunals Judicial Training Group, with an annual training budget of some 5m. See the note on training below. 6 TM Tribunal member 7 QO = qualification order 5

6 Information Rights Tribunal United Kingdom Immigration and Asylum Chamber United Kingdom Valuation Tribunal for England England Tax Chamber United Kingdom Transport Tribunal Great Britain War Pensions & Armed Forces Compensation Great Britain Employment Tribunal Separate provisions for England & Wales; Scotland; and Northern Ireland Appeals on Information Commissioner notices on breaches of the law on freedom of information, data protection, and privacy of electronic communications. Respondents usually public authorities. Appeals against decisions made by the Home Secretary and officials on immigration, asylum and nationality matters Council tax valuations Appeals against HMRC decisions Appeals against decisions by Traffic Commissioners (removal of operating licences or Instructor registration) Appeals against decisions of the Service Personnel and Veterans Agency (SPVA). Direct application by a complainant for an alleged breach of statute in the Tribunal s jurisdiction One judge and two other members, where each member has substantial experience of data protection or of freedom of information rights. All appeals are heard by one First-tier judge or a panel of two or three members, at least one of whom must be a First-tier judge (and no more than one must be a NLM). Procedural matters/leave to appeal may be dealt with by a judge alone. Chamber President, or Resident Senior Immigration Judge, may decide that an appeal should be heard by more than one member, or delegated to a First-tier judge, depending on the complexity and nature of the case. NLMs are formally appointed to the Upper Tribunal because of their role in an appellate capacity in the previous structure, but they currently sit almost exclusively in the first instance tribunals. The Valuation Tribunal for England is headed by a President (legallyqualified) and four professionally qualified Vice-Presidents. Decisions in local sittings are made solely by lay members in the strict sense: that is, individuals who do not have to have specific expertise in the matters for adjudication. See case study below. Composition of the Chamber is determined by type of case. In a basic case the decision must be made by one, two or three members, each of whom is a judge or other member, as determined by the Chamber President. The presiding member is chosen by the Chamber President. A standard or complex case is decided by a judge or a judge plus one or two members. One judge or one judge plus one or two other members with substantial experience in transport operations and its law and practice. 71 members: legally qualified members, medical members including doctors with an Armed Services background, members of the Armed Services including a number of high ranking retired officers. A full hearing is composed of a chair, who is legally-qualified, and two other members: one member is drawn from a panel of individuals that are representative of employees, and one drawn from a panel representative of employers. Decisions are by majority. Panel members are not identified in terms of their affiliation. There is scope for the judge to sit alone essentially procedural matters and certain substantive matters. 6 There are currently 36 non-legal members. For the most part, they have worked as data controllers, or represented data subjects or have broad experience of public and private sector management. NLMs appointed by the Lord Chancellor in the most recent recruitment exercise (2003): NLM members must have non-legal experience which makes him suitable for appointment. This was operationalised through a number of criteria see case study. NLMs are expected to have broad local knowledge to enable them to make well-founded judgments on property values: some have relevant qualifications, but this is not a requirement. NLMs must be qualified surveyors or accountants, or have substantial experience in tax matters or related procedures. [or] in a business, trade or not-for-profit organisation. Specialist transport members must have senior management experience in sizeable road passenger and/or freight operations. All fee-paid except the President and the principal judge Members are appointed by the Lord Chancellor: the process is managed by the Tribunal. Candidates, who are self-nominated, must pass written tests and an interview. Around half of applicants are appointed. Appointees must declare which panel they will sit on. Unions run seminars to promote applications but are not part of the nomination/selection process.

7 Name of Tribunal Administrative Appeals Chamber Tax and Chancery Chamber Upper Tribunal of the Immigration and Asylum Chamber Employment Appeals Tribunal Cases referred from First-tier Tribunals (principally War Pensions; Social Entitlement; Health, Education and Social Care; General Regulatory) Tax Chamber First-tier Tribunal Employment Tribunals Upper Tribunals 8 Composition and role of NLMs in proceedings The composition of the Upper Tribunal depends on the nature of the case, and the provisions are set out in the current Practice Statement (1 October 2010). In some cases, two NLMs may sit with a judge. NLMs are appointed to the Upper Tribunal for appeals against decisions of a Transport Commissioner (and require substantial experience in transport operations, and its law and practice : see above). The Chamber has first-instance jurisdiction under the Safeguarding of Vulnerable Groups Act, and when sitting in this capacity may include NLMs who are members of the Upper Tribunal: these require experience in the provision of health services, education, or an LEA; child protection; and negotiating the condition of services of employees. On appeals dealing with data protection and freedom of information, NLMs sit with a judge: these require substantial experience of data protection or freedom of information. Appeals may be heard by one judge or one judge plus one or two members (either a judge or other member) as determined by the Chamber President. Default position is one Upper Tribunal Judge. If the matters involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate, the matter should be decided by 2 or 3 Upper Tribunal Judges. Under 6.3 of the Practice Statement, the Upper Tribunal may consist of one or 2 Upper Tribunal judges and one other member. Such sittings are now rare, and now only hear special cases (unaccompanied minors or where all-female bench needs to be convened). The EAT sits with one judge and two lay members where the Employment Tribunal s decision was made with a similar composition. 8 Upper Tribunal NLQ members are drawn, in most cases, from the same pool as First-tier Tribunal Members, although the discretion of the Chamber President would allow for selection by experience. 7

8 Local government - education Some 64,000 school admission/exclusion appeals were heard in England 2008/9 covering all schools. Such appeals are lodged by parents against decisions of school governing bodies to admit or exclude their children. They are made to panels that include lay members and such panels are enjoined to be representative of local communities. Children also have an independent right to express a preference on sixth-form admission decisions, and there is separate machinery for this. Appeal panels on admissions operate under the Schools Admission Appeals Code. There are some 5,700 permanent exclusions each year (2009/10 data). Issues of ethnicity are extremely delicate in this area, and this has been reflected in the mandatory training for panel members. In 2009/10,510 appeals were lodged by parents against the permanent exclusion of their child. Of appeals heard, 24 per cent were determined in favour of the parent: of these decisions, 27 per cent culminated in an order to reinstate the child. The only appeal options from panels are either to the Local Government Ombudsman or a request for judicial review. Name of Tribunal Cases referred from Local Authorities (provisions applicable in England) Composition of tribunal Role in proceedings Competencies and requirements and Training and development Schools Admission Panels Decisions by schools governing bodies on admissions. Decisions by local authorities to admit a pupil permanently excluded from two or more schools. Panels are set up either by local education authorities or the governing bodies of voluntary-aided schools, foundation schools and academies. Panels have an appointed chair and a clerk, both of whom must be independent of the authority and attend the whole hearing. There are three or five members, appointed by the admission authority. There must be at least one lay member (see next column). There must be at least one non-lay person with experience in education, who is acquainted with educational conditions in the area, or who is the parent of a registered pupil at a school. The local authority must provide a presenting officer. Majority voting is possible. If the panel initially consisted of five members but one drops out, the chair has a casting vote in the event of a tie. Some members of the panel are lay, defined in the Code as people without personal experience in the management or provision of education in any school, (though it is permissible to use people who have experience as governors of other schools, or who have been involved in education in any other voluntary capacity). The Code notes: In any area, it is important to try to ensure a diverse mix of panel members (race, gender, faith if appropriate), but particularly in areas with mixed communities where membership should be representative of the ethnic profile of the area. Some individuals are excluded: local authority members; members or former members of the governing body of the school or teachers in the school; a person who might not be impartial because of their relationship with the local authority. Panel membership should be reviewed every three years; local authorities must advertise locally every three years (for example, in a local newspaper). Local authorities are responsible for training; members may not sit before receiving such training: this includes the law and the roles of panel members. There must also be an annual update for members. There is appraisal of members by observation. Schools Exclusion Panels Decisions of a school governing body to exclude a pupil permanently. Panel must be constituted by the local authority and have three or five members. It must contain the following three categories of member: the chair must be a lay member, as defined above; one member (on a three-member panel) or two (on a five-member panel) who must have been a governor of a maintained school or a member of a management committee of Pupil Referral Unit (PRU) (but not a member of teaching staff); one member who has been a head teacher of a maintained school or a teacher in a Pupil Referral Unit. Voting is as above. The governor/management committee member and teacher/head teacher members should be from the same phase of education as the excluding school. Exclusions are broadly as above, plus exclusion of staff from excluding school/pru. Where finding impartial staff in the same authority is difficult, authorities should consult neighbouring LAs. Members may not sit unless they have received the prescribed training in the previous two years before the hearing. This includes the law, role and duties of the appeal panel, including under Race Relations Act 1976, Disability Discrimination Act 1995, Equality act 2006, effects of the Human Rights Act. Refresher training should take place every two years. 8

9 resources professionals and/or judges and through interviews by a panel including a relevant judge. NLMs are self-selected, with recruitment difficulties in obtaining expert NLMs for many chambers due to the unattractiveness of fee arrangements and the need to obtain locum replacements in some cases. For non-professional expert roles, there are often far more applicants than places, requiring a selection exercise than can be extremely time-consuming. NLMs in all the tribunals were decision-makers in formal hearings: expert NLMs may also play an informal advisory role in case-management (especially when reviewing social security cases for reconsideration where the original decision was poorly evidenced). This decision-making role is changing: for example, it is no longer possible for NLMs to outvote a judge in the Immigration and Asylum Chamber (IAC). There is substantial discretion for senior judges to determine the composition of tribunals, and shifts in the incidence of the use of NLMs may reflect changes in the culture of chambers and the individual preferences of judges. The three tribunals outlined here represent three distinct trajectories. In the IAC there was a perception that NLMs were withering on the vine ; in the Valuation Tribunal for England, a transition to a different NLM model seemed imminent, with the existing model of lay members under scrutiny; and in the Social Security and Child Support chamber, there appeared to be a fairly stable model in which the formal roles of professionally-qualified and other NLMs occasionally became blurred in practice. 9

10 Immigration and Asylum Chamber Non-legal members (NLM) have played a part in decision-making for many years in the sensitive area of asylum and immigration. However, their role now is in decline, and no fresh recruitment has taken place since 31 new members were recruited in In part this fall-off in involvement has been due to incremental changes in the legal basis for decision-making in the tribunals. This also possibly reflects the strongly negative stance towards NLMs held by an influential former president of the Asylum and Immigration Tribunal in the mid-2000s that might have helped shape a culture in which the theoretical scope for the NLM involvement is no longer fully exploited: these assessments are explored further below. Role and background The First-tier Tribunal of the Immigration and Asylum Chamber is a tribunal within the Courts and Tribunal Service. It hears appeals against decisions made by the Secretary of State and officials on immigration, asylum and nationality matters. Appeal from the First-tier Tribunal is to the Upper Tribunal of the Immigration and Asylum Chamber. The adjudication system for dealing with immigration and asylum matters has passed through a number of major reorganisations in recent years, with implications for the role of NLMs. The predecessors of the IAT were, firstly, the Immigration Appellate Authority (IAA), which was established under the Immigration Act 1971, and was a two-tier structure, with local adjudicators and an appellate body, the Immigration Appeal Tribunal (IAT), that included NLMs. This arrangement was abolished under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which created a single tier tribunal, the Asylum and Immigration Tribunal (AIT). In turn, this arrangement was superseded by the unified tribunals framework created by the Tribunals, Courts and Enforcement Act 2007, with the establishment of the Immigration and Asylum Chambers in February The Practice Statement and Practice Directions issued in February 2010 determine the current composition and practice of the Chambers, and many of these were taken over from previous guidance. Appointments The most recent round of recruitment of NLMs was in 2003, before the reorganisations of the service during the latter half of the 2000s. This exercise was directly run by the Lord Chancellor s Department, and the final selection of members was undertaken by the Lord Chancellor on the recommendation of officials. As appears the case with other British tribunals, there were a large number of self-nominations for the available places, with some 400 applications for the proposed vacancies. (There was some ambiguity about the desired level of recruitment). A large number of generic competences as well as particular requirements were specified, including knowledge and experience of foreign affairs, 10

11 ethnic relations and human rights issues especially relating to refugees. Initially a large number of applicants were short-listed and interviewed, which involved three interviewing panels. The short-listed applicants were set an unseen test, which involved analysing a case study of a potential appeal, followed by a short presentation. This was used to rank the applicants in terms of meeting the requirements. The final decision was made by the Lord Chancellor himself. It was noted that the criteria finally used in the selection were shaped by public interest considerations rather than the ability to engage with factually complex cases. 9 The requirements for appointment as a NLM to the IAT were incorporated into the qualification requirements for Tribunals and Inquiries in 2009 (2009/1592), which amended the initial SI (2008/2692). This specifies substantial experience in immigration services or the law and procedure in relation to immigration. This would appear to be a more limited specification than the knowledge requirements used in Given the fact that no immediate recruitment is planned, it is not possible to say how this would be turned into post requirements by the JAC or senior judiciary in the Tribunal. The current number of NLMs is now around 40, down from the 60 or so reached after the 2003 recruitment exercise. At present no new recruitment exercise is planned, adding to the sense subscribed to within the organisation that NLMs are withering on the vine in the IAC. Training and appraisal NLMs receive one day s training a year, consisting of a law update and judgecraft: turnout is usually high, at around 85 per cent of eligible members. There is also a system of appraisal that is now mandatory for all NLMs: at the time of writing 13 out of 40 NLMs had been appraised. This is based on an assessment of an NLM conducted by an Immigration Judge with whom they are sitting over the course of a day s business. The appraisal process is essentially directed at establishing the level and competence of the NLM s participation in the hearings. The aim has been to have a light touch regime. Tribunal composition and NLM role in decision-making Under the earlier IAA, the first-tier in the system consisted of adjudicators, operating at local level. All but a handful were legally-qualified. NLMs sat on the IAT panels that heard appeal panels from their decisions, and as such the initial role of NLMs was on the appellate body. As a consequence, NLMs are technically members of the Upper Tribunal, although, as noted below, their activity at this level is now a rarity. Subsequently, the service was consolidated into a single-tier. Adjudicators became judges, the majority of whom are fee-paid, aside from those Resident Senior Immigration Judges (RSIJ) who manage the hearing centres. Within the two-tier structure for Tribunals, into which the Chamber was transferred in February 2010, the composition of the Tribunal is a matter for the Senior 9 Senior President s address to AIT non-legal members,

12 President of Tribunals, with powers delegated to the Chamber President. The current Practice Statement regulating the composition was issued on 10 February In practice, the composition of sittings within this framework is a matter for the RSIJ, depending on the nature of the case (see below). As noted above, the role of NLMs in tribunal proceedings has changed several times in recent years. Up until mid-2006 it was possible for a hearing to take place with one judge and two NLMs, with a majority vote deciding the outcome. This was changed in 2006/7 when limits were imposed on the type of cases that NLMs could sit on and the present composition requirement was introduced. A hearing dealing with a case at which an NLM may sit must now consist of either one First-tier judge or, if decided by the RSIJ, by a panel of two or three, at least one of whom must be a First-tier judge and no more than one may be an NLM. Initially, this allowed for the possibility of a tie between the judge and NLM, which required convening a three-member tribunal, with associated scheduling problems and additional expense. This situation was resolved in 2008, when the judge was given the casting vote should the two be unable to agree. There is no formal scope for the expression of a dissenting view or, currently, for there to be any indication that the decision was a majority one. NLMs role is overwhelmingly confined to First-tier Tribunal hearings, and within that to deportation cases. In the past, NLMs were involved in hearing Country Guidance cases: these are cases that are used to establish a factual basis about country conditions that are then applied to other similar cases, and the determinations can be drawn on in subsequent comparable hearings. 10 NLMs were divided into country groups, possibly based on their previous country experience, and were allocated to such cases based on their membership of the relevant country group. However, these arrangements are no longer in place and, in practice, NLMs do not sit on country guidance cases which are only heard in the Upper Tribunal. In rare instances, members may sit on Upper Tribunal cases involving unaccompanied minors or where an all-female Tribunal is required. In terms of proceedings, NLMs are occasionally sent the relevant core bundle before the hearing upon request. If, as is usual, there is no such request, the bundle is available for them early on the day of the hearing. 11 There will also be a discussion between the judge and NLM before a day s business to establish the issues likely to crop up in the listed cases and to decide on the final running order. Hearings are meant to be adversarial and an excessive intervention from the bench could provide grounds for appeal. However, there is an inquisitorial element should key issues central to reaching a determination not be addressed and there is also 10 Under 12.1 of the Practice Directions for the Immigration and Asylum Chamber (10 February 2010) a reported determination of the Tribunal bearing the letters CG shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal. 11 Except in the case of hearings at the Special Immigration Appeals Commission, which hears appeals against deportation on national security grounds. This includes security cleared NLMs who have to consult papers under secure reading room conditions. 12

13 guidance for the conduct of proceedings that allow some intervention by the judge to ensure fairness if there are unrepresented appellants or where such appellants do not understand English, such as ensuring scope for translation/interpretation. In practice, virtually all decisions are reserved, but there is a requirement to issue them within ten working days. As a consequence, there is no oral decision given to an appellant. Extempore decisions were piloted some years ago, but were not considered successful and it was felt desirable to take more time to consider the evidence. Judgments are drafted solely by the judge, but in consultation with the NLM, usually via , before issuing the decision. Assessment It was not possible to ascertain a full current range of opinion from Immigration Judges and NLMs as to the contribution of NLMs and their mutual perceptions, as only one individual from each group was interviewed. It was put to the researcher that there was a wide range of views on the part of Immigration Judges, and that NLMs were certainly held to be of assistance in fact-finding, and in particular in exploring the credibility of evidence and witnesses. However, this was predicated on the whole-hearted involvement of NLMs, such as thorough reading of case papers and availability for subsequent consultation on the draft judgment. It was held that on, admittedly rare, occasions some NLMs court craft needed to be improved, where an intervention or observation by an NLM had not been directed through the judge. There are on-the-record expressions of scepticism about the role of NLMs expressed by the Council of Immigration Judges (CIJ), which, at the time the evidence was submitted, claimed to represent around half of Immigration Judges. In evidence to the 2003 Inquiry into Immigration and Asylum Appeals, the Council noted: The origin of lay members lies in the need for the IAT to have experience in life overseas. This is no longer as significant as it was and an analogy with the Employment Appeal Tribunal is no longer appropriate as lay members there can bring experience of the workplace to hearings. 12 However, it should be emphasised that this observation is now some years old, and is not necessarily the current view of the CIJ. It is cited as it might have shaped the views underlying the changes in the system in the mid-2000s, which saw a diminution in the role of NLMs. Sir Henry Hodge, former president of the AIT, was widely held to be extremely sceptical about the role of NLMs in the tribunal, and this also may have shaped practice in the chamber and its antecedents, according to an interviewee. In contrast, the representative body for NLMs (the Association of Members of the Immigration and Asylum Tribunals, AMIAT) has stressed the expert nature of their members ( experts by experience ), in terms of the criteria against which they were appointed (experience of foreign affairs etc.) and the expert contribution they can make to judging issues of fact. AMIAT also aspires to make use of the discretion available to the Chamber President to maintain their current activity and widen October II < accessed 8 October

14 their involvement; for example, it has argued that NLMs could participate in the Upper Tribunal on deportation appeals. They also stress the need for proceedings to be as visibly fair as they can possibly be, especially given the sensitivity and seriousness of outcomes, and advance the argument that NLMs contribute to this. Using the concepts referred to elsewhere in this study, they are held to contribute to the regime legitimacy of the IAC. Although the controversies that surrounded the issue in seem to have been temporarily set to one side as the new organisational arrangements for the service have been established and consolidated, the future status of NLMs in the IAT appears to be unresolved, against a background of their numerical decline and their participation in a diminishing range of cases. 13 According to the Senior President s address to Asylum and Immigration Tribunal (AIT) non-legal members 3 April 2009, in 2008, Sir Henry Hodge, then President of the AIT advanced the view that there was no obvious role for NLMs, a position strongly contested by the Members Association in terms of the expertise NLMs brought to hearings as cited in the Senior President s address. 14

15 Social Security and Child Support Tribunal Role and background The Social Security and Child Support (SSCS) Tribunal is a first-tier tribunal within the Social Entitlement Chamber (SEC): other tribunals within the SEC are the Asylum Support Tribunal and the Criminal Injuries Compensation Appeals Panel. All three operate in Great Britain, with the Asylum Support Tribunal also operating in Northern Ireland. Each of the tribunals has a different composition, which can also vary depending on the nature of the case. The composition of tribunals is set out in Practice Statements issued by the Senior President of Tribunals, drawing on the statutory framework for qualifications of members of First-tier and Upper Tribunals in the Statutory Instrument (2008 No. 2692, the SI below). The Chamber President has discretion in a number of instances over the composition of a tribunal for any case, or set of related cases; in practice, this discretion is delegated to Regional Judges. There are no non-legal members in the Upper Tribunal of the General Administrative Chamber, the appeals body for cases from the SEC. However, in contrast to virtually all other First-tier Tribunals, the SEC has non-legal members (NLMs) appointed in part on the basis of their shared experience with some categories of claimant (referred to appellants in this context); see below. The SSCS deals with disputes about a wide range of social benefits including Income Support and Jobseeker's Allowance, Incapacity Benefit, Employment Support Allowance and Disability Living Allowance, Attendance Allowance and Retirement Pensions. It also deals with disputes about Child Support, Tax Credits, and Statutory Sick Pay (SSP)/ Statutory Maternity Pay (SMP). Claims ( appeals ) are made by individuals against the decisions of government departments or local authorities on entitlements. Initially, appeals are lodged with the department or agency that made the decision, with the aim of allowing a reconsideration of the initial decision. This has been encouraged in recent years by the Tribunals Service to reduce the number of cases going to Tribunal with some success. Nevertheless, there were c. 340,000 appeals to the SEC in , and this total is expected to rise to over 400,000 in the near future as a result of legislative changes (Senior President of Tribunals, 2011: 42). In order to deal with the increase, the SSCS has aimed to recruit a further 260 medically-qualified members and 84 fee-paid judges to boost judicial capacity by some 30 per cent, to allow an additional 80,000 appeals to be cleared each year. Appointment and training of NLMs The role of NLMs has steadily diminished over recent decades, with a displacement both by legally-qualified judges and qualified professionals in terms of the composition of appeals bodies. 15

16 NLMs are currently appointed through the Judicial Appointments Commission (JAC), with criteria specified by senior Judges. The more general competences for NLM positions were developed by the JAC without intervention by the Chamber s Judges, although these were reviewed and one competence deemed inappropriate was removed at their request. The selection process takes place through a sift of applications. Testing for non-medically qualified members is made using a role play exercise developed by senior Judges in the Chamber and approved by the JAC Diversity Committee. This is then subsequently tried-out using a dry run with mock candidates. Cross-ticketing between Tribunals within the SEC is possible, and should this happen NLMs have a fresh induction and training. There is also some crossassignment between Chambers: a number of tax accountants recently moved from the Tax Chamber to the SEC. Considerable resources are invested in induction and training, with regular training events on judgecraft, interviewing and changes provided, from April 2011, through the Judicial College. 14 Under current arrangements, NLMs are broadly of two types: Registered medical practitioners and other formally qualified individuals, such as registered nurses and dentists, clinical or educational psychologists, and qualified accountants (as specified under 2: 2 (a-i) of the SI). These are mostly fee-paid members, but there are some salaried registered medical practitioners. This, in part, reflects the difficulties in recruiting fee-paid doctors due to the fact that the fees are do not cover the cost of hiring a locum and do not match current GP salaries. Individuals who are neither required to be legally qualified nor to have formal qualifications but who have either a) professional or voluntary experience in working with disabled persons or b) are themselves disabled. Their principal contribution is an experiential one, through sharing the world of appellants, rather than technical expertise. 15 This can also assist in ascertaining facts that an individual lacking this experience might not be able to adduce. However, of all those appellant groups appearing before the SSCS, people with disabilities are the only category with a separate provision for Tribunal membership. 16 Composition, conduct and decision-making An SSCS Tribunal consists of no more than three members: in some cases, it consists only of two members, with a Judge and registered medical practitioner, 14 Modules and courses are notified through the Tribunals Judicial Training And Education Prospectus < 9.pdf> 15 This attribute might also explain some of the reported hesitancy expressed by NLMs with a disability to being subject to peer appraisal from non-disabled people. 16 There is a parallel but not identical provision for the Criminal Injury Compensation Appeals Panel in the SEC, where there is provision for a three-member panel including an NLM with substantial experience of dealing with victims of violent crime. 16

17 and there is also considerable scope for judges to sit alone: see below. The presiding member of a Tribunal is always a Judge. For appeals related to disability living allowance or attendance allowance, the Tribunal must consist of a Tribunal Judge, a Member who is a registered medical practitioner and a Member with a disability qualification ; see above. For a range of appeals dealing with personal and work capability assessment, recovery of benefits and severe disablement allowance the Tribunal may consist of two members, the Judge and a registered medical practitioner. In any other case, the Tribunal consists of a Judge sitting alone. However, the Chamber President may require appeals to be heard by a larger Tribunal, depending on the subject matter. For example, cases with a specifically financial element may be heard by a Tribunal with a qualified accountant sitting with the Judge. If the case involves complex medical issues, a registered medical practitioner may also sit in addition to the Judge. An additional Judge or Member may also be added for the purposes of providing further experience for the Judge or Member or to assist the Chamber President in monitoring standards of decisionmaking. 17 If the case only raises issues of law, then a Tribunal Judge may hear it alone, or a Judge with a Tribunal Member whose experience and qualifications are necessary to decide the matter. Where a Tribunal sits with a Judge and a NLM, the Judge has the casting vote in the event of a tie. Where the Tribunal has three members, each member has an equal vote and in theory the Judge can be outvoted by the NLMs, although this rarely happens. In the past, a dissenting opinion had to be indicated in the event of a majority vote; this requirement was abolished in Following the hearing the Tribunal members withdraw. A decision is given in the same day, wherever possible. This usually takes the form of a short written decision notice, which states whether the appeal has been upheld and the relevant statute. The Judge will read this to the appellant, with all the members present. A full written judgment will be supplied if requested; (this takes place in around 1 in 8 cases). The full judgment will be written by the Judge alone, and NLM members do not usually help with this unless the case is particularly complex. It is signed by the Judge alone. Both the dynamics and practice of Tribunals are influenced by the attendance of NLMs, and do not always reflect the understanding of their role implied by their formal differences. For example, in some cases dealing with Employment Support Allowance and Disability Living Allowance, the medical aspects of the case might be basic and often uncontroversial; the appeal will turn on assessing the effective capacity of an individual who disagrees with an official s assessment. In these instances, medically-qualified NLMs can be seen as exercising the role of an educated layperson and their role (for instance in a two-person Tribunal) in 17 Practice Statement, Composition of Tribunals in Social Security and Child Support Cases, 7(c), 30 October

18 practice is to support the Judge in ascertaining facts about an appellant s living environment and their practical capabilities. According to one judge in the chamber, NLMs with a disability qualification are seen as being particularly able to question appellants with diminished capacity on grounds of disability and as being less inhibited in their questioning. As such, their role is not as a champion of the appellant within the Tribunal, although the capacity to ascertain facts that might exist within the parallel experience of a disabled member might be seen as fulfilling an enabling role. 18 Often officers from local authorities or departments do not attend the Tribunal hearing. This can influence the dynamics of the process, as appellants reportedly then seem to regard the Tribunal as their opponent, rather than as an impartial adjudicator. Indeed, the practice of not putting forward presenting officers has been criticised by the Chamber President on several grounds. The dynamics of hearings could also be affected by NLMs conduct, especially in respect of investigative and questioning techniques, despite extensive scope for training in judgecraft. Medically-qualified NLMs reportedly find it difficult on occasions to refrain from offering advice to appellants. In contrast, nonprofessionally qualified lay members are, on occasions, seen as more prone to add observations to an appellant s response. On occasions, there have been tensions between medically-qualified and other NLMs, as noted in other studies of mixed tribunals that are characterised by perceived status differences between members (Ivkovic, 1997). Assessment of departmental decision-making There is a statutory duty to report on the standards of decision-making of the departments from which decisions are appealed, now exercised by the President of the Social Entitlement Chamber (Tribunals Service, 2010). This is carried out by a survey of Tribunal Judges and medically-qualified Members, where appropriate. Although not core to this overview, the survey indicates the relevance of the contributions of Tribunal Members with specific experience and expertise and the perceptions of their role in relation to appellants and government departments. Three of the key points raised in the report suggest that NLMs contributed to a critical re-examination of departmental decisions in various ways. For example: concerns about the quality of medical evidence provided by departments which were the subject of tribunal criticism (ibid.: 4). In particular some medical reports underestimate the severity of disability (ibid.: 5). decisions being overturned because of additional evidence generated at the Tribunal hearing; people with mental health problems may face additional difficulties in making claims and pursuing appeals (ibid.: 5). 18 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 (Leggatt Report, Item 7.4). 18

19 Conclusion The key ( invaluable ) contribution of non-professionally qualified NLMs could be seen to lie in the experiential element that they bring to understanding the practical effects of an appellant s medical condition and therefore ascertaining facts central to their entitlement. Medically-qualified NLMs represent a form of second-opinion to the reports used by departments. In addition, the President s report on standards of decision-making could also be seen to support this conclusion in that it noted that appeals were often upheld because of criticisms of departmental medical reports and the discovery of fresh evidence at a hearing, through an enabling approach. References Ivkovic, S.K. (1997). Lay Participation in Decision Making: a Croatian Perspective on Mixed Tribunals, The Howard Journal, Vol. 36/4, Senior President of Tribunals (2011). Senior President of Tribunals Annual Report. February Tribunals Service (2010). Report by the President of the Social Entitlement Chamber of the First-tier Tribunal on the standards of decision-making by the Secretary of State and Child Maintenance and Enforcement Commission,

20 The Valuation Tribunal for England Role and background The Valuation Tribunal deals with appeals made by ratepayers or council tax payers about council tax banding and liability and non-domestic (business) rates. A ratepayer or council tax payer has a right to appeal against a valuation decision of the Valuation Office Agency (VOA), an executive agency of HM Revenue and Customs, 19 or a decision of a local authority. The Valuation Tribunal is an independent body, financed out of public expenditure. It consists of two statutory bodies: the Valuation Tribunal for England (VTE), which is supported by an administrative section, and the Valuation Tribunal Service (VTS) (Valuation Tribunal Service, 2011). Access to the service is free-of-charge for appellants. However, the Tribunal cannot award costs. Appellants may represent themselves or have representation. Claims and evidence may be submitted in writing. There is a large volume of appeals, in part due to the fact that rating appeals are forwarded from the VOA automatically. Some 340,000 appeals were received for the year , of which just under two-thirds were resolved before a hearing ws held. Of those not resolved, many are decided without a hearing. In all, 2,500 appellants (or their representatives) attended a hearing, with some 400 panel members available for sittings. As also noted below, this has meant that panel members sit rarely. The history of the Tribunal extends back to the early seventeenth century, when a rating system to finance Poor Law provisions was established with scope for those paying the tax to appeal about the rate to Quarter Sessions. In the mid-nineteenth century, Local Assessment Committees were established by statute to hear appeals against decisions about the rateable values of properties. After several changes of name and the reallocation of responsibilities for the assessment and collection of rates to local authorities, from 1992 they were known as Valuation Tribunals. Up until 2007, there were 56 such bodies, each with an elected president. A process of rationalisation and centralisation has taken place in recent years, and since 2009 there has been a single Valuation Tribunal for England (VTE), with local sittings. This step also saw the replacement of elected presidents of the local tribunals by a single President, currently Professor Graham Zellick CBE QC, appointed by the Lord Chancellor. 19 The VOA compiles lists of the rateable values of non-domestic properties in England and Wales, and of council tax bandings for domestic properties. It also determines local housing allowances for calculating housing benefit, and registers fair rents. 20