JH v Secretary of State for Work and Pensions & Anor

A tribunal must be constituted and conduct its proceedings so as to preserve the safeguards of a fair hearing. Where a member who heard evidence at an earlier hearing sits with differently constituted colleagues at a resumed hearing, the risk of unshared residual knowledge, impressions, or becoming a witness about earlier evidence is sufficient to invalidate the proceedings. It is unnecessary to investigate whether the risk actually affected the outcome.

Legislation and tribunal practice arrangements must be read subject to natural justice and the Convention right to a fair hearing. Administrative convenience and listing difficulties cannot override those safeguards.

The appellant challenged a First-tier Tribunal decision in a child support appeal. An earlier hearing had been conducted by a judge and the financially qualified panel member who also sat at the resumed hearing, but with a different judge. The tribunal said it would begin afresh, save that it might use the earlier hearing if inconsistencies arose.

Permission to appeal referred to authorities concerning overlapping tribunal panels. The central issue was whether the overlapping membership created an error of law despite the tribunal’s attempt to avoid reliance on the earlier evidence.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and (b)(i), and remitted for a rehearing before a differently constituted panel.

2. The overlapping membership created an unacceptable risk to fair fact-finding. A member who had heard evidence at the earlier hearing might retain knowledge of what had been said, rather than merely what had been recorded. That knowledge was not shared by the newly constituted tribunal.

3. The tribunal’s stated safeguard did not cure the defect. To identify inconsistencies, the financially qualified member might have to rely on personal recollection of the earlier hearing. If recollection were disputed, that member could effectively become both judge and witness. Earlier impressions of the evidence might also influence the resumed hearing without conscious awareness.

4. The possibility of those risks was sufficient. Natural justice does not require an investigation of whether residual knowledge existed or whether it affected the outcome. The procedural safeguards of a fair hearing prevail over convenience in listing complex child support cases.

5. Legislation and any practice statement governing tribunal composition must be read consistently with natural justice and the Convention right to a fair hearing, pursuant to section 3 of the Human Rights Act 1998.

6. The rehearing must consider all relevant factual and legal issues afresh. It is not confined to the earlier evidence or submissions and is not bound by the set-aside tribunal’s conclusions.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision of 20 May 2015, and remitted the case for rehearing before a differently constituted panel.
• First-tier Tribunal: Determined the child support appeal at Enfield under references SC921/14/01420 and 01513. Its decision was set aside for procedural unfairness arising from overlapping tribunal membership.