Senior President of Tribunals’ Annual Report 2020 Senior President of Tribunals’ Annual Report 2020 Contents Contents Introduction 4 Tribunals’ Structure Chart 10 Annex A - Upper Tribunal 11 Administrative Appeals Chamber - President: Dame Judith Farbey 11 Tax and Chancery Chamber - President: Sir Antony Zacaroli 15 Immigration and Asylum Chamber - President: Sir Peter Lane 16 Lands Chamber - President: Sir Timothy Fancourt 18 Annex B - First-tier Tribunal 23 Social Entitlement Chamber - Acting President: Judge Mary Clarke 23 Health Education and Social Care Chamber - President: His Honour Judge Phillip Sycamore 31 War Pensions and Armed Forces Compensation Chamber - Acting President: Upper Tribunal Judge Kate Markus QC 34 Tax Chamber - President: Judge Greg Sinfield 37 General Regulatory Chamber - President: Judge Alison McKenna 43 Immigration and Asylum Chamber - President: Judge Michael Clements 45 Property Chamber - President: Judge Siobhan McGrath 49 Annex C - Employment 56 Employment Appeal Tribunal - President: Sir Akhlaq Choudhury 56 Employment Tribunals in Scotland - President: Judge Shona Simon 61 Employment Tribunals (England & Wales) - President: Judge Brian Doyle 65 Annex D - Cross Border Issues 71 Northern Ireland - Dr Kenneth Mullan 71 Scotland - Sir Brian Langstaff 74 Wales - Judge Libby Arfon-Jones 75 Annex E - Important Cases 76 3 Senior President of Tribunals’ Annual Report 2020 SPT’s Report Introduction By the Senior President of Tribunals, The Rt Hon Sir Ernest Ryder This is the sixth report that I have delivered to the Lord Chancellor as Senior President of Tribunals (SPT) and it is my last. The SPT is a fixed term office and my tenure as the head of jurisdiction of the reserved tribunals’ jurisdictions in the UK will shortly come to an end. It has been the most enjoyable leadership role I have had, not least because the judges and panel members in the Tribunals are a strong college of judicial office holders dedicated to the needs of their users and experts in their own disciplines. Their understanding of the needs of others combined with the integrity and professional public service ethic that underpins an independent judiciary has developed into a unique style of judgecraft. We are flexible, informal, innovative, informed (that is, responsive to specialist empirical materials and commentary) and, above all, effective. We pride ourselves on the quality of our collaboration with policy and operational colleagues in the Ministry of Justice (MoJ), other Government Departments and Her Majesty’s Courts and Tribunals Service (HMCTS) to achieve the best quality outcomes that we can while at the same time remaining fearlessly independent of the agencies whose decisions come to us on appeal. Our performance, sometimes in difficult circumstances like the present emergency, has been some of the best ever recorded. We remained open for business. Our diversity continues to improve to be more representative of the communities we serve and we are proud of that. Trust, respect and confidence in the rule of law is derived from these attributes and is a tangible response to the civic responsibilities that my judges perform. I could not have asked for more from my colleagues and I leave them in the sure knowledge that the quality of the leadership they display will pay dividends in the justice system in years to come. The United Kingdom Tribunals occupy a curious hinterland alongside the long established courts judiciaries in each geographic jurisdiction of the UK. We have excellent relationships with each of them but we are their much younger cousins and sometimes struggle to make our managed approach to justice as specialist decision makers understood. Given the quality of what we do and its relevance to our users, who are often unrepresented, it has been my aim over the last five years to enhance an understanding of tribunals’ justice by bringing the judiciaries closer together. I am very grateful to the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland and the Lord Chief Justice of England and Wales for the opportunities to do that and for their cooperation and understanding over the years. I am also very grateful to Ministers in the UK and devolved Governments and their administrations for their support. Five years ago, I began with a plan to achieve three important understandings of what we do: ‘one judiciary, one system and better outcomes’. As judges we share the same approach to constitutional, statutory and ethical principles of our colleagues in the courts while undertaking a unique additional role as substitute decision makers where we set aside the decisions of the agencies under appeal 4 Senior President of Tribunals’ Annual Report 2020 SPT’s Report and re-make them on the merits. That is not second-class justice, far from it, and our mantra has been ‘a judge is a judge and our panel members are judicial office holders’. They are entitled to the same status as their colleagues and I am pleased to report that the independent reviews that will make recommendations about that are now in place. I am very grateful to Sir Keith Lindblom, my Vice-President, each of the chamber and tribunal presidents under the leadership of HHJ Phillip Sycamore, my deputy Vice-President, the non-legal members under the careful guidance of Gillian Fleming, and the judicial association representatives on the Forum of Tribunal Associations, ably led by Judge Lorna Collopy, for their hard work and attention to detail in this process. During the last five years we have striven to identify what it is that makes each tribunal’s process work well. Our ‘judicial ways of working’ project has previously been reported upon. It was conducted as a major exercise in engagement and communication and it identified that there is no ‘one size fits all’. Just one example will suffice. In the General Regulatory Chamber of the First- tier Tribunal there are 80 different jurisdictions, primarily on appeal from regulators or about the environment, with 16 very different appeal routes and methods of adjudication inconsistently described in various statutes and statutory instruments. We have been astute to work together as a leadership team with advice from specialist experts in administrative law in the Administrative Justice Council (AJC) and the independent Tribunals Procedure Committee to find what works and match our technology to that process. Research projects of this kind in partnership with the academy pay real dividends and I hope they will be continued. Likewise, the work of the Tribunals Procedure Committee under the chairmanship of Sir Peter Roth has been an invaluable, independent and knowledgeable source of procedural expertise. The objective has been to find better systems and that has involved detailed work with colleagues to ensure we all benefit from the reform projects and opportunities that are in hand. We have pursued the concept of a ‘managed service’ within which we measure what we do and strive to get the best outcomes for our users. Aside from academic collaboration which has flourished through the AJC and for which I am very grateful, we have enhanced our collaboration with HMCTS and MoJ to ensure that our individual jurisdiction boards and support teams analyse work forecasts, user needs and supply and demand levers to try and obtain swift access to justice. This is never easy and rarely completely successful but the introduction of high quality forecasting tools, recruitment and deployment models and flexible assignment opportunities has assisted us to cope with the significant peaks and troughs in workflows that we experience, not always with much notice. Further, the managed approach allows leadership judges to control how much of what type of work is allocated to each different judicial office holder. Sometimes it is important to identify the chemical engineer, doctor or valuer whose expertise is needed for a case and at other times, the salaried or fee paid specialists in education, tax, immigration or mental health need to have a balanced selection of cases. In any event, workload management is fundamental to judicial morale and is a large part of what my leadership judges do. The morale and quality of decisions made by our judicial office holders are intrinsically linked to the quality of the leadership that they have and we expend a great deal of effort on making our leadership college as good as it can be. Leadership training is now mandatory in the tribunals, it is foreshadowed in induction training and we offer it to those who think they might be interested in the future. Although it is not a feature of the SPT’s role, I have had the additional benefit of being the course director for leadership and management development in the Judicial College throughout my time in office. I have also been given the opportunity to share good practice with the Judicial Institute in Scotland and the European Judicial Training Network. I shall be sorry to relinquish that role. The specialist educational advisors and the tutors from both courts and tribunals judiciaries have been innovative and inclusive. They have re-written and present an excellent series of courses and I give them my thanks and best wishes for the future. 5 Senior President of Tribunals’ Annual Report 2020 SPT’s Report The modernisation of courts and tribunals, colloquially known as the reform programme, has dominated our daily lives since the agreements in 2014 and 2015 between Mr Michael Gove MP, then Lord Chancellor and Secretary of State for Justice, Lord Thomas of Cwmgiedd, then Lord Chief Justice of England and Wales and myself. It is worth remembering that those agreements were designed to avoid what would otherwise have been a process of managed decline. In order to obtain the benefit of funding, we needed to implement innovation and change.