Remy Dhami v Secretary of State for Work and Pensions

In the inquisitorial jurisdiction of the First-tier Tribunal’s Social Entitlement Chamber, a tribunal may ask direct and probing questions about matters relevant to benefit entitlement, subject to fairness and the statutory requirement that the issue arise on the appeal. Fairness is generally assessed in the context of the hearing as a whole. Relevant questions, even when personal or distressing, do not by themselves establish unfairness or bias.

Remy Dhami appealed a decision of the First-tier Tribunal (Social Entitlement Chamber) made on 5 January 2024 concerning her claim for personal independence payment. The First-tier Tribunal had refused her appeal against the Secretary of State’s decision of 2 February 2023. Permission to appeal was granted on the ground that the hearing may have been unfair because the tribunal judge’s questioning had descended into the arena and amounted to cross-examination. The Upper Tribunal considered the full audio recording and whether the questioning made the hearing unfair or otherwise amounted to an error of law.

The appeal is dismissed. The First-tier Tribunal’s decision was not made in error of law.

1. Fairness is generally assessed by considering the proceedings as a whole. Unfairness in one part may taint the proceedings before or after it where the unfairness is so serious that it would be unfair to consider that part in isolation. This was not such a case. The questioning by the medically qualified and disability qualified panel members in the first 48 minutes was appropriate, sensitive and relevant (para 9–10).

2. The Social Entitlement Chamber exercises an inquisitorial function. Subject to fairness and the requirement under section 12(8)(a) of the Social Security Act 1998 that the issue arise on the appeal, the tribunal may ask an appellant about matters relevant to benefit entitlement. The adversarial idea that a tribunal must not enter the arena is inapt in this context; asking questions may be a feature of an inquisitorial tribunal’s role (para 13).

3. The judge’s questions were relevant and were not oppressive, inappropriate or unfair. In particular, the tribunal was entitled to probe evidence that Miss Dhami sometimes ate nothing for up to six days, given the absence of evidence of significant weight change and the relevance of nutrition to the PIP daily living activities. The questions clarified her evidence. The judge’s asking questions before inviting the presenting officer to do so did not make the hearing unfair (paras 11–12).

4. Direct and probing questions may be necessary for an inquisitorial tribunal to understand an appellant’s case. Their use does not by itself make proceedings unfair or show bias. The judge endorsed the guidance in R (Clancy) v SSD [2006] EWHC 3333 (Admin), GJ v Secretary of State for Work and Pensions (PIP) [2022] UKUT 349 (AAC) and BK v Secretary of State for Work and Pensions (DLA) [2009] UKUT 258 (AAC). Questions about intimate or embarrassing matters may cause distress, but the tribunal must explore matters relevant to entitlement and should seek to minimise distress through tact (paras 14–16).

5. The tribunal judge’s introduction and explanation of the hearing sufficiently addressed the Senior President of Tribunals’ Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses. There was no basis for finding that the direction had been breached or overlooked (para 17).

1. Upper Tribunal (Administrative Appeals Chamber): Appeal dismissed; the First-tier Tribunal’s decision was held not to have been made in error of law. [2026] UKUT 371 (AAC) .
2. First-tier Tribunal (Social Entitlement Chamber): Decision on Miss Dhami’s appeal concerning the Secretary of State’s decision of 2 February 2023, made on 5 January 2024; upheld on appeal by the Upper Tribunal.