That’s not fair! Procedure in tribunals

​​Introduction​

It is not uncommon for claimants or their advisers to complain that their benefit appeal was dealt with unfairly. The courts recognise that ‘committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings’​1 is an error of law which should result in a First-tier Tribunal decision being overturned in an appeal against it. What counts, ultimately, is whether unfairness has occurred rather than merely how the claimant feels (even if that might sometimes be a good starting point).

Legal sources

The legal sources of the requirement for tribunals to act fairly are varied.

• The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘Tribunal Rules’) contain many provisions, the purpose of which is to ensure fairness.
• Rule 2 provides that whenever a tribunal applies a particular rule, or interprets a rule, it must have regard to the purpose of the rules being to enable the tribunal to deal with a case fairly and justly. The content of what that means is partially described in rule 2(2) as including the matters set out there. But that is not all that is required by fairness (the rule only says that fairness ‘includes’ the matters listed there rather than that this is a complete description).
• Procedural fairness is often described as required by ‘natural justice’ – this is part of the common law. In terms of statutory law, section 6 of the Human Rights Act 1998 makes it unlawful for a tribunal to breach a claimant’s human rights. One such right is the right to a fair hearing before an independent and impartial tribunal when civil rights (which includes entitlement to benefits) are being determined.
• The natural justice principles most relevant to procedural fairness can be described as being that a person must have the opportunity to present their case and that the tribunal should be unbiased.

Opportunity to present the case

Many of the procedural protections found within the Procedure Rules, are rules which exist to seek to ensure a claimant does have an opportunity to present their case – for example, and most obviously, the right to attend a hearing. But analysing what is required for an opportunity to present a case reveals this is more complex than just being able to go to a hearing.

• All that is required is that the appellant has an opportunity to put forward their case – not that they actually manage to. Thus a claimant who, for example, chooses not to attend their appeal hearing, will not easily be able to show a procedural unfairness when the tribunal goes on to dismiss the appeal in their absence (although the tribunal must still demonstrate they have considered whether they can fairly decide the appeal in those circumstances – rule 31).
• Being able to put forward the case in a meaningful way, means having been told about the case made by the decision maker (‘knowing the case against you’). Knowing why the other side says the claimant cannot have a benefit is obviously important in allowing them to be able to make arguments about why they are wrong. Various things can go wrong:
  • The decision maker may not have actually explained the decision, or told the claimant which law they have relied upon (TM v SSWP (PIP) [2019] UKUT 204 (AAC)).
  • The decision maker may not have included all the papers which are relevant to the decision (rule 24(4)(b) of the Tribunal Rules).
  • A tribunal could takes a different point against a claimant than one made by the decision maker without alerting the claimant to this or allowing them time to prepare to deal with the new point: for example, if the tribunal remakes the decision more unfavourably to the claimant than suggested by the DWP (DO v SSWP (PIP) [2021] UKUT 161 (AAC)), or if the tribunal decides the case against the claimant on a different basis than the one suggested by the DWP.
• An opportunity to present the case also means having sufficient time to prepare to do so. This can be an issue when a party is surprised by a new argument or evidence which is only presented at the hearing.
• There must be an opportunity for the appellant to be heard. That can include being able to attend the hearing. It also includes the nature of what happens at the hearing – the appellant or representative must be afforded the space to make the points they wish to make.

The involvement of a representative in a hearing can modify whether something counts as an unfairness or not. For example, consider a case where the DWP presenting officer hands in some evidence to the tribunal on the day of the hearing which ends up being what the case turns on. An unrepresented claimant might be able to complain they were taken by surprise and denied an opportunity to present their case. However, a claimant represented by an experienced representative who had not asked for an adjournment when the new evidence was submitted may be in a different position.

Bias

That a tribunal is biased is a common allegation of appellants but one which advisers should treat with caution. Firstly, as explained in ‘Brisk and business-like’? How the tribunal asks questions’ (Welfare Rights Bulletin 299), just because a tribunal asks challenging questions does not show a breach of fairness rules.

Bias is considered in two ways: direct bias and indirect or apparent bias. The former will be vanishingly rare – a tribunal member must have a direct interest in the outcome of the case (for example, if the judge was the claimant’s landlord in a housing benefit appeal). The test for apparent bias is set out in Porter v Magill [2001] UKHL 67, reported as [2002] 2 AC 357: ‘whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.

Perhaps the most common version of apparent bias will occur where the tribunal gives the appearance that it has already made up its mind about an issue in an appeal – ie, appears to have pre-judged the issue. These are not always the most straightforward cases to spot. The question is often whether a tribunal has revealed it has already decided an issue or whether actually the tribunal has simply expressed a doubt about part of a case and invited submissions on that issue to help clarify it – ie, the opposite of having a closed mind.

Another all too common scenario is where a tribunal approach to the evidence exhibits some sort of systematic preference for evidence from a healthcare profession (see, for example, JC v SSWP (ESA) [2013] UKUT 219 (AAC)) as opposed to a claimant’s GP.

Sadly, other particular examples also exist: in the recent PZ v SSWP (PIP) [2025] UKUT 220 (AAC), the judge’s questions about a claimant’s reasons for coming to the UK in a personal independence payment case, and refusal to explain the relevance of those questions when asked by a representative, were held to show apparent bias ‘due to the possibility that [the judge] might hold views about immigration that might influence his decision making on this immigrant’s benefit claim’.

Judge Gray’s decision in WS v SSWP [2015] UKUT 350 (AAC) makes the point that where bias is suspected, then not having objected, before a case is dealt with by a tribunal will be problematic and further that it takes an allegation of some particularity for a tribunal judge or member to recuse themselves – that case should be required reading before a representative makes such an objection.