The government is making legal changes to allow tribunal staff to carry out some of the functions which are currently the role of judges. In addition, the President of the Tribunals Service will have the power to decide on the composition of tribunals, including the number of people sitting on them.

The Courts and Tribunals (Judiciary and Functions of Staff) Bill had its first reading last week. It has two main effects.

It will “increase the routine judicial work undertaken by ‘case officers’to enable judges to concentrate on more complex matters.”.

In other words, clerks will be able to undertake functions currently exercised by judges. That could, for example, relate to issues such as whether to postpone a hearing or require the DWP to provide specific evidence about a case.

It will also “enable greater cross-deployment of staff between jurisdictions according to need.” So a clerk from say employment appeals could be transferred across to social security appeals where they would, without necessarily a great deal of knowledge, be able to undertake judicial functions, as above.

Whilst this will undoubtedly lead to savings and efficiencies, there are real dangers that staff from one jurisdiction will not be fully aware of how other jurisdictions work. Employment tribunals, for example, tend to put a great deal more pressure on the parties to settle prior to the hearing and are much more likely to issue onerous directions to either party to the appeal.

The First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (Amendment) Order 2018 also came into force this month.

New regulations allow the Senior President of Tribunals to decide how many people are required to sit on appeal panels without the need to have regard to how such panels were constituted in the past.

At present, PIP appeals always require a three person tribunal, but it would be possible for the Senior President to decide that in some circumstances only two, or even one person is required.

The government have said that they will not go ahead with their original proposal to introduce a single member panel as the default position in the unified tribunals. But that does not prevent them introducing one or two person tribunals where they consider that the matter is not sufficiently complex to require more members.

You can download the Courts and Tribunals (Judiciary and Functions of Staff) Bill from this link.

You can download the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (Amendment) Order 2018 from this link.


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