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«Judging the Judge: Boundaries, Barriers and Benefits A project submitted to Middlesex University in partial fulfilment of the requirements for the ...»

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Stephen Pacey

Student number M00466690


Judging the Judge: Boundaries, Barriers and Benefits

A project submitted to Middlesex University in partial

fulfilment of the requirements for the degree of Doctorate of

Professional Studies by Public Works

Institute of Work Based Learning Middlesex University

August 2015

None of the works on which this submission is based have formed part of the submission

for any other degree awarded to me

The views expressed in this research project are those of the author and do not necessarily reflect the views of the supervisory team, Middlesex University, or the examiners of this work


Page Contents 1


2 Introduction 4 Chapter 1 Becoming – and remaining – a Judge 9 Chapter 2 The Welfare Benefits Landscape 19 Chapter 3 Judicial decision making, what it involves and is it successful ? 22 Chapter 4 Judicial techniques in an age of austerity 34 Chapter 5 Pleasure and Problems in Judging 40 Chapter 6 Access to Justice – a serious and continuing problem 49 and how to address it Chapter 7 “If I ruled the World…” 61 Chapter 8 “Have you thought about becoming a Judge ?” 68 Chapter 9 Conclusion 74 Appendix 79 References 84 Indicative Public Works decisions A-Q 1 Stephen Pacey Abstract for D Prof (PW) This work is based on my experience and the public works I have done as a tribunal judge. I explain the function and significance of tribunals in the justice system as a whole and their wider purpose in society. I attempt to lift the veil about becoming a judge, what influenced me, how I go about judicial decision making and its problems.

The motivation for the work arises from the fact that the perspective offered by retirement from the full time judiciary presented a good opportunity to reflect critically on my judicial work, the backdrop being the public works in the shape of my decisions as a Commissioner and Upper Tribunal Judge.

‘Judging the Judge’ encapsulates what this work is about. Evaluating, critically reflecting upon and extrapolating useful lessons from my time as a judge.

‘Boundaries’ are the limits imposed upon me as a judge – what I could properly do, how far I could go, the limitations of the law, rules of procedure, formality and the ambit of discretion, for example. ‘Barriers’ are in the form of obstructions to justice (or, at a more prosaic level, implementation of the law) such as lack of representation, the complexity, volume and rapidity of change in the law and problems arising from austerity measures. ‘Benefits’ has a dual meaning: First, the benefits of a judicial system in the rule of law, benefits to the individual and the wider society. Second, the benefits system itself, the bedrock of my work since without such state provision there would be nothing to appeal.

The novelty value of this work is that it offers an honest and unvarnished glimpse into the mind of a judge, subject only to the constraints imposed by professional circumspection. It tells what it is to be a judge, not just what the judge does. The reader will see the day to day pleasures and problems in judging, the thoughts of a 2 judge about contemporary issues, how a judge makes a decision and handles his work. In some aspects it foreshadows and illustrates some of the issues dealt with in the first ever judicial attitude survey (Thomas 2014). In a sense it shows that I have myself become a ‘public work’, being shaped and conditioned by my working environment, in every sense of that word.

I address conceptual problems about the nature and effect of justice and if it is important. As part of this I also address current societal and political problems and their impact on welfare law in general. I place the study also in the context of austerity measures and show how efficiency savings could be made.

The methodology is experientially based, from my career in various tribunals and, finally, at the highest level of tribunal justice. I provide a critical review derived from my professional experience. I draw insights and ideas from my career which have been meaningful to me and which I suggest are relevant to the wider legal and judicial profession. I offer, then, access to my professional learning.

In part I contrast formal court and informal tribunal procedures, addressing merits and drawbacks. I draw upon academic and professional sources in attempting to give a balanced overview of tribunals and reflect on these sources and how they resonate – or not – with my experience.

As appendices, and indicative of the public works I have done, I attach some of my decisions, of various kinds and with differing scenarios and results.

I conclude that tribunals have for a long time been under valued and under appreciated, not only in the machinery of justice but also in terms of their wider impact. I explain how and why this has come about and what steps ought to be taken to improve the system for tribunal users.

–  –  –

I was a Judge of the Upper Tribunal (Administrative Appeals Chamber). I decided appeals on points of law from decisions of the First – tier Social Entitlement Tribunal which, in turn, hears initial appeals from decisions by governmental decision makers on claims to a wide range of welfare benefits, such as Disability Living Allowance and Employment and Support Allowance. In the 2013 – 2014 financial year this tribunal received 401,917 cases 1, more than any other tribunal. 2 About 1-2% of theses cases go on appeal to the Upper Tribunal 3. The Upper Tribunal also has a judicial review function in some cases (see Appendix L for an example) and has a UK wide jurisdiction covering 25 appellate and first – instance jurisdictions. The social entitlement work comprises 20 non-means tested benefits (some of which depend on contributions to the relevant fund and others of which are non-contributory), and 6 means-tested benefits. There are c.5,000,000 claimants on out-of-work benefits and dependent on jobseeker’s allowance and other benefits, and millions of people receive state pensions, based on contributions, with or without means-tested pension credit.

As the Chamber President says, ‘No slice of the national expenditure exceeds that laid out on social security matters, which have a high political profile and often involve sensitive matters on which strongly held and contrasting opinions are expressed in the media and elsewhere. Also, and although many social security cases relate to relatively small sums of money, [see Appendix Q] the effect of one decision on many others, especially regarding a major benefit, can result in significant expenditure of public money.’ (Charles 2013:14) The Upper Tribunal is effectively the supervising judicial body for the First – tier Tribunal. Appeals before the Upper Tribunal are usually dealt with by a single 1 HM Courts and Tribunals Statistics 2013 – 2014 2 In the same period Employment Tribunals, for example, received 218,000 cases.

3 See note 1

–  –  –

The forecasted expenditure on state benefits for 2014-15 is £212.1 billion, 30% of all state expenditure. In many respects the Judges of the Upper Tribunal (Administrative Appeals Chamber) are gatekeepers for this.

The Upper Tribunal encompasses judges from a previously disparate group. The largest number of judges subsumed into the new appellate structure, created in 2007, were the Social Security Commissioners. I was a Commissioner from 1996 and from 2007 was a Judge of the Upper Tribunal until retirement in 2013. Before 1996 I was, for 5 years, a Tribunal Judge at the first instance level.

–  –  –

The decisions of the Upper Tribunal, and previously those of the Commissioners, are important because they bind the parties in an appeal. There is a right of appeal to the Court of Appeal (with permission from the Upper Tribunal or the Court of Appeal) but the cost, delay and legal complexity of Court of Appeal proceedings means that most appeals do not progress beyond the Upper Tribunal 5. Of greater importance to the public at large, however, is the fact that Upper Tribunal decisions have the force of precedent, so the public (claimants) and the government (departmental decision makers, for example) are also bound by the point of law decided, and must take it into account in other cases involving the same point at issue. Thus, there are different stakeholders in the appeals process.

4 Errors of law include: Making perverse or irrational findings on material matters (in practice a high hurdle to surmount), failing to give any or adequate reasons for the decision, failing to address relevant evidence, attaching weight to immaterial matters, making a material misdirection in law or a procedural error. About 60% of applications for permission made to the Upper Tribunal are refused.

5 For example in 2010 of the 1180 appeals filed in the Court of Appeal (Civil Division) only two came from the Social Security Commissioners. (Ministry of Justice statistics) 5 Not all cases involve an interpretation of a new point of law. Most involve consideration of the adequacy of the tribunal’s decision. Some decisions are published in annual reports, others are on the Upper Tribunal web site and the majority stored on the Upper Tribunal database. 6 Most decisions are made by reference to the bundle of appeal documents but regularly the Upper Tribunal conducts oral hearings and, save in cases involving sensitive evidence, those hearings are open to the public.

In some courts judgments are given ex tempore i.e. on the spot. This is rare in the Upper Tribunal, as that tribunal must provide written reasons 7, save when the parties consent. Appendix E is an example of the latter. Contrast this with P, a fully reasoned and long (but not unusually long) decision.

It is the giving of reasons that often proves problematic. In the 1860s Lord Chancellor Hatherley said he rarely delivered a written judgment because he found it ‘injurious to his health’. (Pannick1987: 6). No doubt he would have agreed with Lord Mansfield: 8’Never give your reasons, for although your judgment will almost certainly be right your reasons will almost certainly be wrong’. (Pannick 1987: 8).

I hope to achieve the personal satisfaction of meaningful work related study by this account of my experience and critical review of it and arrive at an overview of the type of work I have undertaken and what this signifies for the public at large. I critique not just ‘what is’ but ‘what is possible.’ I attach some examples of my decisions (anonymised as appropriate). These are simply to illustrate some of the issues involved and how they are dealt with, ranging from the relatively straightforward (Appendix M) to the complex (Appendix N). They are only general, indicative and not paradigm, examples.

Who might be interested in this work? I suggest a diverse audience, of different disciplines and stakeholders: First, judges (whether in my jurisdiction, similar jurisdictions or in the wider judiciary) may be interested in how I work and how I have adapted to changing scenarios. Second, those aspiring to or just considering 6 Members of the public are entitled to be sent copies of any decision (irrespective of whether they were a party to that appeal) on request. Additionally, departmental decision makers retain their own database of decisions and use this resource extensively.

7 Rule 40(3) Upper Tribunal Procedure Rules 8 Lord Chief Justice, Kings Bench, 1756-1788 6 the judiciary may benefit from an insight into what goes on. Third, tribunal users (including civil servants) may be interested to see what a judge does, how he operates and addresses problems. 9 Fourth there is the wider public, who may wish to enquire beyond tabloid headlines about the work of judges and how reality might depart significantly from perception. Fifth, law students might benefit from or be interested in an account of modern judicial work and challenges, and may like to have an insight into what goes on in a judge’s mind.

Judges from time to time write articles, make speeches or give (usually very guarded) interviews, but are by nature and training reserved when it comes to any public elucidation of who they are and their working lives. Darbyshire in her book ‘Sitting in Judgment - The Working Lives of Judges’ set out to give ‘…an unvarnished glimpse of the modern courtroom which shows a legal system under stress, lacking resources but facing an ever – increasing caseload…essential reading for anyone wishing to know about the experience of modern judging, the education, training and professional lives of judges, and the current state of the courts and judiciary in England and Wales.’ (Darbyshire 2011: Preface).As the (then) Lord Chief Justice (Igor Judge) said in the foreword, however, Dr Darbyshire confines herself to the formal courts (from the Supreme Court to

Magistrates’ Courts), and does not deal with Tribunals. 10 (Darbyshire 2011:

foreword). The citizen is much more likely to be a tribunal than a court user, although it is the latter that most people have in mind when thinking of the judiciary. Although (or perhaps because) the tribunal system is the backroom Cinderella of the machinery of justice 11 it figures largely in the lives of many and has the potential to affect all by its decisions. It is, thus, worthy of consideration.

9 ‘Users’ in this sense includes appellants and respondents and therefore encompasses government decision makers, individual appellants and representatives. In a broader sense “users’ would include the tribunal judiciary and, of no little importance, the executive, in the shape of the government, which makes proposals for and ensures the passage of the legislation.

10 Tribunals, however, have a very much higher case load than comparable courts. The First – tier Tribunals broadly correspond to the County Court. In 2011, for example, the County Court dealt with 52,660 civil cases. In that time, however, the First – tier Social Security and Child Support Tribunal alone dealt with 380,200 appeals.

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