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Tribunals practice direction on child and vulnerable adult witnesses to be revised

The Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses is to be revised, the Senior President of Tribunals has announced.

In a statement, Sir Jeremy Sullivan said: “In light of the recent judgment of the Upper Tribunal (Administrative Appeals Chamber) JP v Secretary of State for Work and Pensions (DLA) [2014] UKUT 0275 (AAC) dated 11 June 2014, it is necessary for me to revise the Practice Direction for the First-tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive witnesses.

“The Practice Direction will be brought into line with developments in the law in this field. The revised Practice Direction will be published in due course.”

The appeal in JP raised the issue of whether the claimant, who was 12 years old at the date of the hearing and had hereditary multiple extosis, should have been allowed to give evidence to the tribunal or at least to attend the hearing over an entitlement to a disability living allowance.

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Giving his ruling in JP, Judge Jacobs set out the background to the case. He said: “On giving evidence, the First-tier Tribunal referred to the Senior President’s Practice Direction on child witnesses. It decided that the claimant was a child and noted that the Direction provided that a child should only be required to give evidence if, in summary, (a) the evidence was necessary and (b) her welfare would not be prejudiced.

“As to (a), the tribunal considered that the oral evidence from the claimant’s mother together with the documentary evidence would be sufficient. As to (b), the tribunal noted that the claimant’s mother did not have a view one way or another on whether her daughter should give evidence and the claimant would be under pressure from knowing that her answers could determine the appeal.”

Judge Jacobs continued: “On being present in the tribunal room, the tribunal decided that ‘it would not be appropriate for [the claimant] to listen to four adults discussing her problems, three of whom were strangers’, that her presence might inhibit her mother or the tribunal discussing issues, and the claimant ‘was of an age where it might be difficult for her to have to listen to herself being discussed and not being able to say anything herself.’”

The judge concluded that the FTT’s approach was wrong in law for a range of reasons. These included the tribunal (a) making no attempt to find out the claimant’s views on giving evidence and on the factors it took into account and (b) taking no account of evidence from a consultant’s letter.

The tribunal’s analysis lacked balance, Judge Jacobs added. "It records why it made the decision it did, but does not show what factors it took into account on the other side of the argument. At the very least, the tribunal should have considered that the claim for a disability living allowance was based on pain and breathless. The person best able to explain how these affected her was the claimant herself. Even if she had not given evidence but had been present while her mother had given evidence, she could have ensured that her mother was able to give an accurate account of her experience of his disability.”

Judge Jacobs concluded that the approach to children, whether as witnesses or as persons present in the hearing room, had to be updated “in order to be consistent with the international obligations on the rights of children, the right to a fair hearing and the right to family life”.

He added: “This approach is reflected in decisions of the Court of Appeal and Supreme Court in family cases. Doing so, requires some modification to the guidance given by the Tribunal of Commissioners in R(DLA) 3/06 and some care in applying the Senior President’s Practice Direction.”

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