Appellant requests LA staff member as witness at Tribunal

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  • #45018
    barbara884
    Participant

    Has anyone had this happen before??

    Our appellant would like to call a member of the councils' reception staff as a witness at his tribunal.

    It would appear that the purpose will be to dispute statements contained in the appeal submission as to the provision of information and evidence.

     

    Does anyone know whether a witness can be compelled to attend a Benefit tribunal? We have a bit of an issue in releasing the staff member due to lack of cover and would prefer to provide a signed statement to the appellant if at all possible.

     

    Does anyone have any thoughts??

    #126913
    Anonymous
    Guest

    Yes, a witness can ultimately be compelled to attend if the FtT decides the escalate the matter – they can refer non-cooperation with directions to the UT under Rule 7(3), which can in turn impose sanctions that would be available to the High Court under s25 of the TCE Act 2007. So in theory, a witness’s refusal to attend an FtT hearing could end up with them being sent to prison for contempt.

    Obviously in practice that won’t happen, it’s not a murder trial. Much more likely is that the FtT would simply hold it against the party who is failing to cooperate. If the Council relies on a witness’s recollection of events in its written submission but refuses to stand that witness up for cross examination, the Judge might infer that the council has something to hide and lean towards the claimant’s version of events. Another very possible outcome is that the Tribunal will strike out the Council’s further participation in the appeal as a sanction for its failure to cooperate, and again that will give the claimant the upper hand when it comes to evidence at the hearing.

    My advice would be: if you care enough about this decision to defend it at Tribunal, send your witness along. Otherwise, back down and revise.

    #126915
    barbara884
    Participant

    Thanks Peter.

    I think that’s where myself and my colleagues had talked ourselves!

    #126916
    jamcon
    Participant

    I agree with what Peter has said above. Just to add that I don’t believe a claimant can demand a witness turn up. There is some old case law, R(SB) 1/81 which confirms this. Although the rules have changed considerably since then, it still appears to be down to the discretion of the Judge whether a witness has to be called or not – Rule 16 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

    #127021
    d-stainsby
    Participant

    The Commissioner held the following ar paras 5-6 of R(SB)1/81

    “5. The present application is founded on a misunderstanding. The claimant has referred to the form LT 204, in which it is stated that a claimant is entitled to bring to the hearing of his appeal to the Tribunal “witnesses to support your case”. But the present clatmant did not wish the visiting officer to attend the Tribunal’s proceedings so that she might support his case. He wished to have her there to cross-examine her. His own description of his reasons for requiring her presence is: “I asked for the right to show the incompetence and stupidity of the visiting officer by having her present at that tribunal . . . “.

    6. A claimant does not have the right to demand the presence of an official whose report or other activity has been unfavorable to him. There may be cases in which such presence may be necessary or desirable, but it is for the chairman of the tribunal to determine whether or not that is so and whether or not to adjourn a hearing to enable a person to attend.”

    You cant read Commissioners and Upper Tribunal decision as if they were statute and I suspect that the claimant’s intemperate language in asserting that”I asked for the right to show the incompetence and stupidity of the visiting officer by having her present at that tribunal ” had influenced the Commissioner to refuse the application.

    An application that had more merit may well have succeeded and might now have more chance under the new rules.

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