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M2: Tribunal composition and personnel

Composition of FTT

 

“(1) The number of members of the tribunal who are to decide any matter that falls to be decided by the First-tier Tribunal must be determined by the Senior President of Tribunals in accordance with paragraph (2). 
(2) The Senior President of Tribunals must have regard to–

(a) where the matter which falls to be decided by the tribunal fell to a tribunal in a list in Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 before its functions were transferred by order under section 30(1) of that Act, any provision made by or under any enactment for determining the number of members of that tribunal; and

(b) the need for members of tribunals to have particular expertise, skills or knowledge.” (SI 2008/2835, article 2).
 

Members' Intelligence and acumen not to be underestimated

“For similar reasons I cannot accept the judge’s view that evidence of this kind is too complex to be presented to a non-legal member, with the implication that such a member would not be able to understand it or its relevance. I am bound to say I am somewhat perplexed by the remark; it seems to me to underestimate the intelligence and acumen of the non-legal members of the First-tier Tribunal, most of whom have experience of hearing and analysing the most complicated of evidence." (HMRC v. Atlantic Electronics Ltd [2012] UKUT 423 (TCC), §26).
 

Composition of UT

 

“(1) The number of members of the tribunal who are to decide any matter that falls to be decided by the Upper Tribunal is one unless determined otherwise under paragraph (2).
(2) The tribunal may consist of two or three members if the Senior President of Tribunals so determines.” (SI 2008/2835, article 3).
 

Composition of FTT
Composition of UT

Single person tribunal must be judge unless otherwise determined

 

“(1) Where a matter is to be decided by a single member of a tribunal, it must be decided by a judge of the tribunal unless paragraph (2) applies.
(2) The matter may be decided by one of the other members of the tribunal if the Senior President of Tribunals so determines.” (SI 2008/2835, article 4).

 

Where the Judge dies between hearing and judgment

 

“The hearing of this appeal took place before Judge Kenneth Mure QC and Mr. Peter Sheppard FCIS FCIB CTA. Judge Mure died suddenly and unexpectedly before a decision could be released. This decision has been prepared by Mr. Sheppard, with the agreement of the parties and by authority of the president of the Tax Chamber.” (NHS Lothian Health Board v. HMRC [2017] UKFTT 522 (TC), §1, Member Sheppard).
 

Single person tribunal must be judge unless otherwise determined

Presiding Member/chariman

 

“[5] The following articles apply where a matter is to be decided by two or more members of a tribunal.
[6] The number of members who are to be judges of the tribunal and the number of members who are to be other members of the tribunal must be determined by the Senior President of Tribunals.
[7] The Senior President of Tribunals must select one of the members (the “presiding member”) to chair the tribunal.
[8] If the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided.” (SI 2008/2835, articles 5 – 8).

Convention that the senior judge is the presiding member

“The letter explains how the judges were allocated to the case. Warren J directed the tribunal staff to allocate a full time tribunal judge to the case and then, in consultation with that judge, to allocate a second part time or fee paid judge. The full time judge allocated was Judge Bishopp. The letter also explains that there is a convention operated in the tribunal that the senior judge is the presiding member. Accordingly Judge Bishopp was the presiding member and had a casting vote.” (HMRC v. SDM European Transport Ltd [2016] UKUT 201 (TCC), §3).

 

Senior President does not need to personally appoint presiding member in each case (convention is lawful)

 

“I agree that the experience of judges will vary and I agree the selection of a presiding member is an important function. However if SDM’s argument was correct then the Senior President would be prohibited by article 7 from operating a convention of the kind which is in place. If SDM is correct then in every case the Senior President would be required to actively name a presiding member for that case before the appeal is heard…In my judgment article 7 does not have the meaning contended for by SDM. A convention by which the senior judge is the presiding member is a workable and sensible way of putting article 7 into practice. As a result of the convention, one of the members is selected to chair the tribunal. The fact that there is no active naming of the presiding member by the Senior President does not matter. I can think of no reason why the Order should be interpreted as demanding that such a cumbersome process has to be undertaken in every case.” (HMRC v. SDM European Transport Ltd [2016] UKUT 201 (TCC), §§20…21).

 

Vires for presiding member casting vote rule

 

“In my judgment there is, at the lowest, a strong case that power to make the order exists in the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). The key provisions are Paragraph 15 of Schedule 4 and Section 145. Paragraph 15 relates to the composition of tribunals. It is the section which was mentioned in the letter of 30th November from Rose J. Paragraph 15(1) expressly provides that the Lord Chancellor may make provision for determining the number of members of the Upper Tribunal (or FTT) who are to decide the matter. Mr Barlow correctly pointed out that neither this sub-section nor any other part of paragraph 15 refers expressly to a casting vote. However, as HMRC pointed out, section 145 (1) confers on the Lord Chancellor a power to make “any supplementary, incidental, consequential, transitory, transitional or saving provision he considers necessary or expedient for the purposes of , in consequence of, or for giving full effect to, any provision of this Act.” HMRC submitted that this was very wide and an ample basis for the provision about a casting vote…In my judgment if a proper exercise of a power creates a situation for which some provision ought to be made then providing for it in some sensible way is a proper exercise of a power to make a supplementary provision relating to that power.” (HMRC v. SDM European Transport Ltd [2016] UKUT 201 (TCC), §§10…12).
 

Presiding Member/chariman

Casting vote (discretionary)

 

Power to exercise casting vote does not mean that it should always be exercised

 

“In my judgment, the submissions on behalf of the Appellant fail to distinguish between the power conferred on the presiding member of the Tribunal by Article 8 of the 2008 Order and the discretion whether or not to exercise that power. Indubitably, the presiding member has a casting vote. It does not follow that he may properly exercise it irrespective of the nature and extent of the disagreement between the members of the panel.” (PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 251, §36, Sir Stanley Burnton).

 

Differences as to the law justify casting vote

 

“Here, the differences between the presiding member and the lay member could scarcely have been greater. They were not differences as to the applicable law, which in general may justify the exercise of the casting vote by the judge, or even as to the evaluation of the Article 8 claim.” (PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 251, §37, Sir Stanley Burnton).

 

Fundamental differences as to the primary facts does not

 

“They included such fundamental primary factual issues as the nature and extent of the relationship between the Appellant and MP and the children to whom I have referred, and whether or not the Appellant was genuinely on the way to rehabilitation. If the lay member's views on either of those issues were well founded, there could be no question of his appeal succeeding…In my judgment, in these circumstances, the power to cast a casting vote could not properly be exercised. To cast it involved an error of law. I also consider that the justification for the exercise of the casting vote in paragraph 93 of the determination disclosed a legal error. The differences between the lay member and the Judge were not confined to the Judge's "assessment and interpretation of the law", but, as I have pointed out, went much further.” (PF (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 251, §§37…38, Sir Stanley Burnton).

 

Solution: appeal to be reheard by a different panel

 

“The first is is that, in our estimation, the proper course for the panel was to have the appeal considered by a different, reconstituted panel. As a matter of good practice, where differences of opinion between panel members are as acute and fundamental as those disclosed in the determination under scrutiny in this appeal, we consider that the panel should proceed no further. While this will have regrettable costs and delay implications, such cases are likely to be very rare.” (PF (Nigeria) v Secretary of State for the Home Department [2014] UKAITUR DA004492013, §23).

 

Exercise of casting vote when UT remaking decision

 

“I have reached the conclusion that, even if this were a case in which the presiding judge of a first-instance tribunal should refrain from its exercise, it is not appropriate for me to do so, sitting as I am on a second appeal to the Upper Tribunal and when it is at best doubtful what purpose would be served by remitting the appeal yet again. I will, therefore, exercise my casting vote so far as necessary and allow HMRC’s appeal. I also think it is appropriate, notwithstanding the disagreement within the panel, to re-make the decision: again, remitting the appeal to a different panel would not advance matters.” (HMRC v. SDM European Transport Limited [2015] UKUT 625 (TCC), §§29…30, Judges Bishopp and Cannan).
 

Casting vote (discretionary)

Dissenting opinion

 

Has no legal status but may be referred to

 

“By virtue of article 8, her dissenting opinion, as I shall call it, does not rank as a decision—the only decision which does is that of the majority—and has no formal standing of any kind. However, as the dissenting member decided to write an opinion, with reasons, and publish them, those reasons are available to be deployed before the Upper Tribunal to the extent that HMRC (or, for that matter, the Murray Group) wish to deploy them as arguments.” (Murray Group Holdings Ltd v. HMRC FTC/15/2013, §§5…6, Judge Bishopp).
 

Dissenting opinion

Staff may be approved to carry out functions of a judicial nature

 

“(1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done  by the Tribunal.
(2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified      description in specified circumstances.” (FTT Rules, r.4(1), (2))

 

Right to reconsideration by a Judge

 

“(3) Within 14 days after the date that the Tribunal sends notice of a decision made by a member of staff pursuant to an approval under paragraph (1) to a party, that party may make a written application to the Tribunal requiring that decision to be considered afresh by a  judge.” (FTT Rules, r.4(3))
 

Staff may be approved to carry out functions of a judicial nature

Staff may select the Tribunal

 

“SDM does not challenge the authority of the administrative staff to allocate an individual judge or judges to a case…On the instructions of Warren J, the case was allocated to a panel of judges of appropriate availability and seniority.” (HMRC v. SDM European Transport Ltd [2016] UKUT 201 (TCC), §§17…22).
 

Staff may select the Tribunal
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