Evidence at the new tribunals

 

Simon Osborne looks at the rules for the new First-tier Tribunals (FTT) for social security, and what they mean for presentation and use of evidence.

The new FTTs were introduced on 3 November 2008 (see Bulletin 206, p. 8). Alongside this, new rules were introduced governing practice and procedure. Those new rules are The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI 2008 No.2685(L.13). This article focuses on issues regarding evidence in hearings before the new tribunal that apply to social security appeals.

The new rules do mean some changes to the way the new tribunals can deal with evidence. But they do not change some fundamental principles, which continue to apply to the new tribunals in much the same way as they did to the old tribunals.

It should be remembered that the new rules set out provisions regarding practice and procedure, and do not attempt to alter the fundamental nature of tribunals as such. That includes the approach taken to evidence.

Firstly, tribunals have an inquisitorial rather than an adversarial jurisdiction. That was confirmed by the House of Lords in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372. Included in the decision are remarks by Baroness Hale of Richmond that tribunals are 'a co-operative process of investigation in which both the claimant and the department play their part.' A tribunal should conduct an inquiry (R(IS) 7/04), although that does not necessarily mean that a party does not have to supply evidence as part of that inquiry (CTC/2090/2004), or that adverse inferences may not be drawn from a failure to provide evidence (R(H)3/05), although much will depend upon the facts of the particular case.

Secondly, tribunals are not bound by the formal law of evidence, with the result that in general there are no formal rules about admissibility of one or other class or type of evidence: see for example the recent confirmations of this in CDLA/1471/2004 and CDLA/2466/2004 (Bulletin 202, p. 14). For example, surveillance evidence obtained by the Department is not inadmissible even if from illegal surveillance (CIS/1481/2006; Bulletin 206, p. 15)). As was also recently reiterated in CIS/4022/2007 (Bulletin 206, p. 18), it is also the case that there is no formal requirement that a claimant's own evidence is corroborated; however, equally, a tribunal is not obliged simply to accept that a claimant's evidence is credible and corroborative evidence may legitimately be regarded as reinforcing the claimant's evidence. A tribunal can and should weigh evidence and may attach little or no weight to it, even though not ruling it inadmissible. Weighing of evidence is a fundamental job of the tribunal, including for example weighing the relative strength of medical evidence submitted by the parties (Bulletins 183, p. 4, and 202, p. 8).

Thirdly, tribunals have an obligation to conduct hearings fairly. That has been long applied to social security tribunals, firstly under the concept of the 'rules of natural justice', then more recently under the 'right to a fair trial' provision in Article 6 of the European Convention of Human Rights (as applied to the UK by the Human Rights Act 1998).

Parts of the new regulations do provide some new rules on evidence before the new tribunals. In particular, rule 15 makes extensive provision, including allowing a tribunal to:

Under rule 16, a tribunal may summons any person to attend as a witness, or order any person to answer any questions or produce any documents in that person's possession or control, although no-one can be required to do anything that they could not be compelled to do in a court. Under rule 14, a tribunal is able to withhold disclosure of evidence to a person, where serious harm to that person is likely to result or the 'interests of justice' otherwise require. (See also the Conclusion of this article regarding rule 24.)

At the time of writing, the only Practice Direction (i.e., as issued by the Senior President of Tribunals) relating to evidence in the social security appeals in the new FTTs was that relating to 'child, vulnerable adult and sensitive witnesses'. Under the direction, such people will only be required to attend as a witness and give evidence where the tribunal determines that it is necessary 'to enable the fair hearing of the case', and where their welfare will not be prejudiced by doing so. In any case, where the person's welfare will be prejudiced by them giving evidence, the tribunal must decline to issue a witness summons or permit them to give evidence.

The new rules do not attempt overtly to remove the inquisitorial nature of the tribunal, to apply the formal law of evidence to tribunals or to remove the need for tribunals to act fairly. Neither do they do anything to disturb case law on matters like weighing evidence, requiring corroboration, etc.

But is there an inherent contradiction with some older principles? Undoubtedly, the new rules represent a more specific and in some senses stricter formal code than has existed before. Tribunals do have a power actually to exclude evidence, and (at the very least) there is the potential for tension between that and the need to act inquisitorially. Certainly, an individual tribunal that interprets the new rules so as to rigidly require evidence to be provided in a certain way and at a certain time, without allowing for difficulties that might entail for the claimant/representative, is likely to be acting in a non-inquisitorial or in an unfair way. More widely, tribunals do have a much more specific authority than before; but it should be remembered that even under the old rules procedures at oral hearings were to be, 'such as the chairman . . . shall determine', and so fairness rules always have applied within the context of the chair having considerable authority.

But the new rules themselves require strict adherence to fairness. Rule 2 provides that, 'the overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.' 'Fairly and justly': those words must be regarded as touchstones of the new rules, and should be cited by anyone who thinks a new tribunal is using its powers regarding evidence and submissions in an unfairly rigid way. Very arguably, a tribunal that insists on evidence being provided in a form or at a time that the claimant/representative cannot reasonably satisfy is in breach of rule 2 - as well of course of the fundamental principles of the rules of natural justice and a fair trial.

Rule 2 goes on to say that dealing with a case fairly and justly includes (among other things), 'avoiding unnecessary formality and seeking flexibility in the proceedings', and that the Tribunal 'must seek to give effect to the overriding objective' when exercising any power under the new rules or interpreting any rule or practice direction. The primacy of rule 2 (including, for example, over rule 15) is clear.

The new rules do provide for more tightly regulated proceedings, including regarding the use of evidence, than has existed before. Clearly, there is the scope for tension between those powers and the requirements, not altered by these rules, for tribunals to act inquisitorially and fairly. Future case law may well set out the nature and lawfulness of such tension.

But the rules also provide as the 'overriding objective' for the new tribunals the need to act fairly and justly. Any requirements the new tribunals make of claimants or representatives (or indeed of the adjudicating bodies) must meet that objective, including with regard to evidence. Tribunals may now be able to exclude evidence in a particular case (e.g., because of failure to comply with a direction) but, at the very least, that should not be the same as excluding an entire class of evidence. Case law from the old tribunals regarding matters like weighing of medical evidence, whether a claimant's evidence needs to be corroborated, should still apply. At this early stage, it would seem that basic tactics for the presentation and use of evidence at tribunals should not need to change greatly. One important exception may be the requirement at rule 24(6) to submit submissions and documents within a month of receipt of the decision maker's submission - where that cannot be met, representatives should explain why and if necessary refer to rule 2.

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