DLA additional evidence

PRESIDENT's PROTOCOL No 2 COMPLAINTS AGAINST THE CONDUCT OF PANEL MEMBERS

1. Tribunals do their best to strike the right balance between informality and authority. Informality is necessary to put the parties at their ease and to enable them to present their case in the best possible light. Authority is necessary to ensure that the hearing is conducted efficiently and with dignity and that when the parties leave the tribunal room they respect and understand the decision even if they do not agree with it.

2. No two tribunals operate in precisely the same way and there will be a considerable and acceptable variation in the way in which individual tribunals achieve that balance. Provided a tribunal operates within those limits it would not be right and would infringe judicial independence to censure it.

3. Tribunals often have to decide issues of credibility; to do that they may need to ask probing questions. Sometimes they must inquire into personal and intimate matters. However sensitively those matters are carried out some discomfort and embarrassment is always possible.

4. Regrettably, tribunals occasionally stray outside acceptable limits. There is never an excuse for rude, discourteous, aggressive or insensitive behaviour. Nor should a tribunal ever act in a way which is biased or prejudiced or gives the impression of bias or prejudice. When the conduct of a tribunal or the personal behaviour of a member falls below the standards we set ourselves we need to know about it.

5. Because we take seriously complaints about the conduct of tribunal members we need to have the complaint in writing. However, we will make special arrangements for anyone who cannot write down a complaint, for example because of language difficulties or disability. All complaints must include specific details of the grounds for complaint. For example, telling us that the tribunal was prejudiced or rude is almost impossible to investigate unless we are told in what way the tribunal was prejudiced or rude. It is also easier to investigate a complaint if we are told about it as soon as possible after the hearing. Otherwise it becomes difficult for those who may be able to throw light on the complaint to remember what occurred.

6. Complaints should be addressed to the Regional Judge of the region where the appeal was heard - if they are addressed to someone else they will be redirected to the Regional Judge. It is his job to investigate the complaint. If a complaint is made about the conduct of a Regional Judge it should be addressed to the President; if about the conduct of the President then to the Lord Chancellor.

7. Some complaints are not about the conduct of the tribunal at all. Instead they relate to the decision that was made, or the questions that were asked or not asked or the documents that were taken into consideration or not taken into consideration, or the weight attached by the tribunal to particular parts of the evidence. Those are matters that can only be considered by way of appeal to the Upper Tribunal. If complaints fall into this category we will respond to them in the above terms.

8. Some complaints are in reality applications to set aside for procedural error or applications seeking leave to appeal to the Upper Tribunal. In those cases we shall treat the complaint as an application to set aside or seek leave as appropriate and act accordingly.

9. If the complaint relates to the conduct of the tribunal or the personal behaviour of a member then the Regional Judge (or Customer Services Manager acting with the Regional Judge's consent) will acknowledge it within 5 working days of receipt. We will assume that submission of a complaint implies consent to disclose it to the person being complained about and to others within the organisation who may be able to throw light on what occurred. However, before beginning an investigation, the Regional Chairman will need to know whether the complainant intends to appeal the Tribunal decision and will seek that information when acknowledging the complaint.

10. It is not possible for the Regional Judge to investigate cases where the complainant states that the subject matter is confidential and should not be disclosed to the individual against whom the complaint is made. If there is to be an appeal the Regional Judge will start his enquiry straightaway but, unless the appeal raises issues quite different from the subject matter of the complaint, will not issue a final reply until the appeal is finally concluded.

11. Subject to the above matters the Regional Judge will send the letter of complaint to the tribunal member(s) and, where it is thought that he or she may usefully comment, to the District Judge from whose District the complaint comes seeking their comments on the complaint. The Regional Judge will also consider other relevant information. At the conclusion of the investigation he will respond in writing to the complaint: if he concludes that there is substance in the complaint, either in whole or in part, he will say so; if he concludes that the complaint has no substance he will also say so. Sometimes the Regional Judge will be left with the word of the complainant and the denials of the tribunal member(s) with no material upon which he can properly reach a conclusion. He will say whether or not he is in that position. If the Regional Judge concludes that there is substance in the complaint he will decide what action should be taken to obviate a repetition of the conduct. The member(s) against whom the complaint was made will be copied into the Regional Judge's conclusions as will the District Judge. But whatever the outcome, all the papers relating to the complaint will be held on file. It will remain material which may well be relevant should there be a subsequent complaint of a similar nature.

12. If, at any time during the investigation, the Regional Judge considers that the complaint has substance and might amount to serious misconduct or incompetence, or might amount to racist or discriminatory conduct, or that the complaint judged against other material on the file gives cause for serious concern, then the complaint and file will immediately be referred to the President who in turn will, if appropriate, refer the complaint and the file to the Lord Chancellor.

Extract from 'The Benchbook', a full copy of which can be found in the DLA Resources in the 'members only' ares

Thanks again Derek and Jim.

I am even more bamboozled now as my mum told me her rep said he used to be a member on the DLA panel himself and decided to leave because he had had enough of it.

I have a feeling she is going to opt for a paper hearing even though it means less chance of winning her appeal. Her mental health especially is fragile and she says her mind will go blank when the panel question her and she is also worried she may have the runs (colostomy & irritable bowel).

Thank you for your replies, much appreciated.

Hi Margaret

If the Rep has had enough of being a DLA panel member, perhaps that explains why he doesn't want to stay for long at the tribunal.

I can well understand why your mother may feel too stressed or worried about an oral hearing. If she does choose a paper hearing, it might be a good idea to submit further evidence to the tribunal in a letter, perhaps explaining why she can't have an oral hearing, together with any supporting information you can get from her doctor.

Best of luck

Derek

If there is plenty of time left before the appeal I'd look for another rep, but that's a personal view. Thank you Jim for the extract from the handbook, when I attended a forlorn appeal a few yrs ago, wish i knew about para 4. when the medical member of the panel said there's no such thing as blackouts or lapses of memory..!!!! whilst waiting outside the room I could hear him laughing his head off..!!!

wish I;d known about this site then, you guys do a great job