Tribunals Must Consider Needs Of Vulnerable Witnesses

The Upper Tribunal has made an important decision ([2022] UKUT 24 (AAC)) which underlines that ‘children and vulnerable witnesses’ have a right to special consideration when appearing before a Tribunal. This decision was taken for a benefits tribunal but also applies to other Tribunals such as mental health and SEND.

 

Background

People have the right to appeal to a First-Tier Tribunal against DWP decisions on their benefits. This will usually mean that you, the claimant or appellant, has to give evidence to the Tribunal. You can do this in a variety of ways such as face-to-face, telephone or by video.

The law says that; however, the hearing is held, the Tribunal must take account of the needs of ‘children or vulnerable adults. A vulnerable adult is legally defined as a disabled person aged 18 or over, whatever the nature of the disability.

In this case of [2022] UKUT 24 (AAC), the Tribunal decided to go ahead with a telephone hearing when the appellant was not there. The appellant appealed against this decision, arguing that the Tribunal had not taken proper account of her severe mental health problems that made her a vulnerable adult.


 

What The Upper Tribunal Decided

The Upper Tribunal agreed with the appellant and said that the First-Tier tribunal was wrong to decide to go ahead with the hearing without the appellant present. They directed that another hearing be held before another Tribunal. More importantly, the Upper Tribunal also laid downfour clear rules about vulnerable people appearing before Tribunals. It is these 4 new rules which may help you if you go to a Tribunal hearing.

 The four rules are:

Firstly, Tribunals should think about whether vulnerable people have to appear before them. The new rule is that vulnerable people should only be called to give evidence if the Tribunal is sure that their evidence is necessary for a fair hearing to go ahead.

Secondly, before asking vulnerable people to appear before them, tribunals must take into account all available evidence and – importantly – any representations made by the appellant or vulnerable person. This means that, if you or another vulnerable person does not want to appear before the Tribunal, the Tribunal must take proper account of your request.

Thirdly, The Tribunal must consider how to make it easier and fairer for vulnerable people to give evidence before the Tribunal. This could include holding the Tribunal in a different way (see point 4 below).  

Fourthly, vulnerable people should be given the chance to give evidence by special means such as by telephone or video link, by having someone with them, or by having their identity protected.  


 

What Does This Mean For You?

If you are a child or ‘vulnerable person’, this ruling means that the Tribunal must take your needs fully into account when asking you to give evidence. In particular, you must be asked for your views about giving evidence and the Tribunal has to take proper account of your requests.

BuDS advises you to think about whether you are a vulnerable person well before your hearing date. If you are, and you have any concerns about giving evidence, or would like to give evidence in a particular way, you should write to HMCTS before the hearing asking that your views be taken into account. The same applies if you are asking someone else to give evidence for you, such as your partner or family member, and that person is vulnerable.

If you submit such a request, HMCTS should ask a judge to look at your request, think about what needs to be done, and make directions (a court order) about your hearing. You should get a copy of these directions before your hearing so that you know what is going to happen. If you don’t hear back from HMCTS, chase them. Remember, you have a legal right to ask for your hearing to be put off to a later date (postponed) if HMCTS or the judge doesn’t deal with your request.

It is possible that HMCTS or the judge might decide to leave the decision on your request to the full Tribunal panel. If so, you should ask for the panel to deal with your request as a ‘preliminary matter’ before your hearing starts. If the panel does not deal with your request, you have a legal right to ask them to deal with it before going ahead with the hearing.

If you are promised special support during the hearing because you (or another witness) are a vulnerable adult and that support isn’t provided, or goes wrong, you have a legal right to ask for the hearing to be adjourned until the support is available or working properly.

This ruling from the Upper Tribunal is a turning point about the amount of consideration Tribunals ought to devote to children and vulnerable adults when they appear before them. This decision re-confirmed the importance of the Senior President’s Practice Direction which requires Tribunals to accommodate the needs of vulnerable witnesses. Importantly, the decision underlined that you have the right to voice your concerns about your ability to give evidence before the Tribunal.


 

Finally 

This is free information from the BuDS Disability Information Service. Our expert researchers make sure we only give you accurate, reliable and tested information. This post was edited by Meiyang J.

Please feel free to share this post on social media but don’t pass it off as your own work or we may take legal action against you.  

To read the original court judgement (which is written for lawyers), use this link: https://assets.publishing.service.gov.uk/media/620682f2d3bf7f4f0399cf72/CPIP_0729_2021-00.pdf