Re: Request Under the 2000 Freedom of Information Act

/ Ms Ali Perlman-Miller
Customer Service Manager & KILO, Scotland Region
Ministry of Justice
Tribunals Service
Wellington House
134-136 Wellington Street
Glasgow
G2 2XL
T 0141 354 8476
F 0141 354 8463
E
Our Ref: FOI/09/60715
Your Ref:
Mr A Butcher
3 September 2009
Dear Mr Butcher

Re: Request under the 2000 Freedom of Information Act

Thank you for your e-mail of 8 Augustin which you sought information held by the Tribunals Service (Ministry of Justice) under the Freedom of Information Act 2000 (FOIA).

Your request has been passed to me because I have responsibility for answering requests which relate to the Tribunals Service (Social Security and Child Support (SSCS) Appeals) and which have been handled under the Freedom of Information Act 2000 (FOIA).

I have looked carefully at your letter and, although not all the questions you ask are subject to the FOIA regime, I propose to respond to all the questions you ask within this reply, for ease of reference and to provide an integrated response.

1) Is there any complaints procedure which can be made against aJudge? If there is, please could you provide details and literatureof how to go about this?

This question is being answered outside the regime of the FOIA.

Complaints against a judge within the Social Security and Child Support Appeals Tribunal should be directed in writing to The Regional Tribunal Judge with the responsibility for the office dealing with the appeal.

The Regional Tribunal Judge for North West region is:

Mr N Warren

Regional Tribunal Judge

Appeals Tribunal

36 Dale Street

Liverpool

L2 5UZ

The Regional Tribunal Judge has a remit to deal with complaints against judges and members of the tribunal panel.

Your complaint will be dealt with in accordance with the Judicial Discipline Regulations (Prescribed Procedures) (Amendments) 2008, the Judicial Discipline Regulations (Prescribed Procedures) 2006 (SI 2006/676), the Judicial Complaints (Tribunals) Rules 2008 and the Judicial Complaints (Tribunals) (No2) Rules 2008.

The Judicial Discipline Regulations (Prescribed Procedures) (Amendments) 2008 can be accessed at the following web address:

The Judicial Discipline Regulations (Prescribed Procedures) 2006 (SI 2006/676) can be accessed at the following web address:

The Judicial Complaints (Tribunals Rules 2008 can be accessed at the following web address:

The Judicial Complaints (Tribunals) (No2) Rules 2008 can be accessed at the following web address:

The Regional Tribunal Judge or President will investigate the complaint and, if they believe that there may be a case for formal disciplinary action, they will refer the case to the Office for Judicial Complaints (OJC). The Lord Chancellor and the Lord Chief Justice will then consider the evidence and decide what action, if any, should be taken.

You can access the website for the Office for Judicial Complaints (OJC) at the following web address:

The OJC can also be contacted in writing or by telephone at the following address:

The Office for Judicial Complaints

4th Floor, Clive House

Petty France

London SW1H 9EX

Tel: 020 7189 2937

Fax: 020 7189 2936

Your complaint should be made as soon as possible and in any event, no later than 12 months after the incident that you wish to complain about.

If your case or your appeal is ongoing, your complaint will not be able to be considered until the case is closed; but you should still submit your complaint as soon as you can. I must also advise that the OJC cannot deal with any complaints about a judge's decision or about how he or she has handled a case.

2) Please provide details of all CSA\CMECrelated Tribunal Appeals that the judge has been a part of for theyears 2005,2006,2007,2008 and the current 2009 figure. a) For eachof the years include, the number of CSA\CMEC related cases thejudge has been a part of. b) Figures for the amount of appeals heallowed in the appellants favour and the figures for the amountwhich he did not find in the appellants favour.

Please can I clarify that the figures I request in point 2 relate specifically to the Judge Mr JC Dwyer whose identity you can confirm by the date and location given in the original request.

In addition, if possible a general statistic of each of the Judges of CSA\CMEC related tribunals at the Manchester tribunal’s branch would be appreciated. If giving Judge names are an issue please provide aliases for each of the Judges.

I am sorry to inform you that, from my preliminary assessment of thisquestion, the information that you have requested is, unfortunately, not available or held in a readily accessible format by the Ministry of Justice.

Section 12(2) of the FOIA exempts a public authority from the duty to confirm or deny if they hold the information being requested if they estimate that to confirm or deny would exceed the appropriate limit, and section 12 of the FOIA also makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days in determining whether the Department holds the information, and in locating, retrieving and extracting the information.

As your request is so widely framed, I estimate that it will take us in excess of 3.5 working days to determine appropriate material within the scope of your request, and to locate, retrieve and extract that information.

The MoJ does not have access to data relating to individual judges aswe are unable to identify the relevant data within our records because of limitations in the scope of data recorded on and extractable from our Generic Appeal Processing System (GAPS2) database.

Any analysis of these database records would involve the creation of new statistical routines, as there is no current statistical report that would produce these statistics. The databases used by the Tribunals Service do not record this type of information as there is no business need to collate such data, and the Freedom of information Act 2000 (FOIA) does not require public authorities to create data in response to a request.

Additionally, while the information you have requested may be held within individual Tribunal files, any information contained within these types of records is exempt under the terms of Section 32 (Court Records) of the FOIA, as it constitutes information contained in certain litigation documents and court, tribunal and inquiry records. In order to establish if the Department holds the information you are seeking, a manual examination of each and every Tribunal file within our Manchester (SSCS North East and North West Areas) where CSA / CMEC (Child Support) is recorded as the appeal type would be required. This is an absolute exemption and there is no requirement to consider the public interest in disclosure. This exemption applies regardless of the content of the information.

I am sorry that on this occasion it has not been possible to suggest ways in which you could narrow the scope of this part of your request in order to bring it within the cost limit.

I should, however, advise you that, in any event, even with the use of judicial aliases, it may not be possible to disclose the information requested if it constitutes the personal data of additional third parties under the terms of Section 40 of the FOIA. Other statutory bars on disclosure may also apply to this information, which may prevent us from disclosing the information you are seeking.

I would further advise that the SSCS Appeals Tribunal is part of the Tribunals Service, an executive agency of the Ministry of Justice (MoJ), and the tribunal consists of the following two distinct elements or bodies within a single organisation:

an independent appeal tribunal function (constituted as a tribunal non-departmental public body) with responsibility for the judicial functioning of appeal tribunals. This function is headed by the President of the Appeal Tribunals, and

an executive agency with responsibility for the administration of appeals. This function is headed by the Chief Executive of the Tribunals Service.

The judicial strand of the Tribunals Service is independent of government and therefore of the Ministry of Justice, and the judiciary is not a public authority for the purposes of the Freedom of Information Act, therefore the right to information under Part 1 of that Act does not apply.

Although it is likely that similar statutory bars or exemptions on disclosure may apply, you maywish to direct your Freedom of Information (FOI) request to the Child Maintenance and Enforcement Commission (C-MEC), by writing to them at the following address:

Freedom of Information Focal Point

Child Maintenance and Enforcement Commission

PO Box 61791

London

SW1P 9NT.

Alternatively, you can send them an email, using their contact form, a copy of which can be located at the following web address:

3) Details or literature which Judges and other tribunal stafffollow when considering whether to allow a late appeal to the uppertribunal. What are acceptable reasons applying to the UpperTribunal after the one month period; i.e. after the statement ofreasons has arrived?

I can confirm that the Ministry of Justice does not hold the information you have requested in relation to this question. This is because the overriding principle of our legal system is that judges are independent of government and therefore of the Ministry of Justice. The Tribunals Service is part of the Ministry of Justice and responsible for providing administrative support to tribunals. Guidance on the interpretation and application of the law is a matter not for the Ministry of Justice but for the judiciary. The judiciary is not a public authority for the purposes of the Freedom of Information Act and the right to information under Part 1 of that Act does not apply.

Any existing guidance or literature in circulation for judicial use, apart from published legislation, is internal judicial guidance and is not available in the public domain.

The Tribunals, Courts and Enforcement (TCE) Act 2007, whichreceived Royal Assent in July 2007, creates, as its overarching purpose, a new, simplified statutory framework for tribunals, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions and new appeal rights. The Tribunal Procedure Committee was set up under the Act to make procedural rules for the new Tribunals, and each Chamber has its own set of rules, which will be supported by Practice Directions and Statements, however since the introduction and transfer of the Social Security and Child Support (SSCS) Appeals Tribunal to the new rules on 3rd November 2008, no guidance has been issued by the current Chamber on any matter.

Sir Robert Carnwath, (a Court of Appeal Judge), has been appointed as the first Senior President of Tribunals. The Senior President’s responsibilities under the TCE Act include responsibility for representing the views of the tribunal judiciary to Ministers, Parliament and for such areas as training and guidance.

The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which came into force on 3rd November 2008, is available within the public domain. Part 4 of these Rules -Correcting, setting aside, reviewing and appealing Tribunal decisions, provides the following information about applications for permission to appeal:

Application for permission to appeal

38.—(1) This rule does not apply to asylum support cases or criminal injuries compensationcases.

(2) A person seeking permission to appeal must make a written application to the Tribunal forpermission to appeal.

(3) An application under paragraph (2) must be sent or delivered to the Tribunal so that it isreceived no later than 1 month after the latest of the dates that the Tribunal sends to the personmaking the application—

(a) written reasons for the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(4) The date in paragraph (3)(c) applies only if the application for the decision to be set asidewas made within the time stipulated in rule 37 (setting aside a decision which disposes ofproceedings) or any extension of that time granted by the Tribunal.

(5) If the person seeking permission to appeal sends or delivers the application to the Tribunallater than the time required by paragraph (3) or by any extension of time under rule 5(3)(a) (powerto extend time)—

(a) the application must include a request for an extension of time and the reason why theapplication was not provided in time; and

(b) unless the Tribunal extends time for the application under rule 5(3)(a) (power to extendtime) the Tribunal must not admit the application.

(6) An application under paragraph (2) must—

(a) identify the decision of the Tribunal to which it relates;

(b) identify the alleged error or errors of law in the decision; and

(7) If a person makes an application under paragraph (2) when the Tribunal has not given awritten statement of reasons for its decision—

(a) if no application for a written statement of reasons has been made to the Tribunal, theapplication for permission must be treated as such an application;

(b) unless the Tribunal decides to give permission and directs that this sub-paragraph doesnot apply, the application is not to be treated as an application for permission to appeal;and

(c) if an application for a written statement of reasons has been, or is, refused because of adelay in making the application, the Tribunal must only admit the application forpermission if the Tribunal considers that it is in the interests of justice to do so.

Tribunal’s consideration of application for permission to appeal

39.—(1) On receiving an application for permission to appeal the Tribunal must first consider,taking into account the overriding objective in rule 2, whether to review the decision inaccordance with rule 40 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to takeno action in relation to the decision, or part of it, the Tribunal must consider whether to givepermission to appeal in relation to the decision or that part of it.

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

(4) If the Tribunal refuses permission to appeal it must send with the record of its decision—

(a) a statement of its reasons for such refusal; and

(b) notification of the right to make an application to the Upper Tribunal for permission toappeal and the time within which, and the method by which, such application must bemade.

(5) The Tribunal may give permission to appeal on limited grounds, but must comply withparagraph (4) in relation to any grounds on which it has refused permission.

Review of a decision

40.—(1) This rule does not apply to asylum support cases or criminal injuries compensationcases.

(2) The Tribunal may only undertake a review of a decision—

(a) pursuant to rule 39(1) (review on an application for permission to appeal); and

(b) if it is satisfied that there was an error of law in the decision.

(3) The Tribunal must notify the parties in writing of the outcome of any review, and of anyright of appeal in relation to the outcome.

(4) If the Tribunal takes any action in relation to a decision following a review without firstgiving every party an opportunity to make representations, the notice under paragraph (3) muststate that any party that did not have an opportunity to make representations may apply for suchaction to be set aside and for the decision to be reviewed again.

Power to treat an application as a different type of application

41. The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, orfor permission to appeal against a decision, as an application for any other one of those things.

[Please note that the tribunal are the final arbiters of fact, so their findings of fact cannot be challenged unless they are perverse, e.g. there was no evidence to support them. It is only possible to appeal on a point of law and the test of whether leave should be given is whether there is an arguable point of law. There is no exhaustive list of what constitutes a point of law, but the following have been suggested by Commissioner Rowland (in CIS/3299/1997):

the recording of a false proposition of law;
reaching a decision which is supported by no evidence;
finding facts or coming to a decision such that no person acting judicially and being properly instructed as to the relevant law could have come to (i.e. the decision is perverse);
taking into account irrelevant matters;
refusing or failing to take into account relevant matters;
failing or neglecting to ask material questions in pursuit of the duty to act inquisitorially;
breaching the rules of natural justice;
committing a material breach of procedural rules, e.g. as to keeping a record of the evidence and providing a satisfactory explanation for the decision.]

Should you wish, you can access this unreported Commissioners decision at the following web address:

There is no right of appeal against a refusal to give leave, but if the judge refuses leave the applicant can apply directly to the Upper Tribunal, normally within one month, although time can be extended.

4) What is the procedure or law concerning therespondent of an appeal submitting evidence on the day of the tribunal? Is this allowed and is it acceptable to not provide theappellant a copy of the evidence or sufficient time to read it?

The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which came into force on 3rd November 2008, is available within the public domain. Part 2 of these Rules -General powers and provisions, provides the following information about evidence and submissions:

Evidence and submissions

15.—(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Tribunal may give directions as to—

(a) issues on which it requires evidence or submissions;

(b) the nature of the evidence or submissions it requires;