Re A  MHLO 14 (FTT)
Direction for all-female panel In this (non-binding) interlocutory decision, a decision to refuse the patient's request for an all-female panel was set aside. The main factor was the overriding objective, in particular ensuring, so far as practicable, that the parties are able to participate fully: the patient's mental state meant that she could only attend the hearing or pre-hearing medical examination if the panel were all female. The judge referred to obiter guidance on single-sex panels in a social entitlement case, which referred to "appeals involving sensitive and uniquely female medical conditions" (the other category was "cases raising cultural issues about the giving of evidence"), and noted that the arguments in this case were even more clear cut.
This is only an interlocutory decision (given on Form STJ2, "Interlocutory Decision Before Hearing") and is not in any way binding; however, it is an interesting illustration of the tribunal's approach to such a case. All information about the patient's case has been removed from the following extract from the decision, which was kindly provided for publication by the patient's solicitor with the patient's consent.
Extract from decision
Details of Application to Tribunal
1. An application dated 29 January 2020 by the patient’s legal representative for reconsideration of an interlocutory decision to refuse to direct that an all-female panel should hear this case.
Decision and directions
1. The interlocutory decision dated 28 January 2020 shall be set aside.
2. This case shall be heard by an all-female panel.
1. [A] was referred to the tribunal on 3 October 2019. Her case has been postponed several times and is currently listed for hearing on 12 February at ...
2. On 21 January 2020 her legal representatives included the following request on their HQ1 form: “Female only panel due to complex trauma history - will not be able to participate in her hearing at all if males are present”. A male medical member was nevertheless booked, so the legal representatives made an application for him to be replaced by a woman. The tribunal administration emailed on 23 January 2020, stating “the patient cannot select the members of the panel. Whilst it may be that if there was, by chance, a female medical member who could sit then it might be appropriate to facilitate that if it would enable the patient’s full participation in the case but if not then the matter will just have to proceed as is”.
3. On 27 January 2020, a further CMR1 was filed seeking directions that (inter alia) an all-female panel should be appointed. Their argument was put on this basis: “The Tribunal has an overriding objective under Rule 2 Tribunal Procedure Rule 2008 to deal with cases fairly and justly. This includes seeking flexibility in the proceedings and ensuring, so far as practicable that parties are able to participate fully in the proceedings. [A's] request for an all-female panel is not out of preference; it is clear from the reports that ... If a male panel member were to sit on [A's] case, we are instructed that she would not be able to attend her hearing. It would also be impossible for her to participate in the pre-hearing examination. Allowing the hearing to procced before a panel that consists of a male member would clearly be contrary to Rule 2 Tribunal Procedure Rules 2008 and, furthermore, it would appear to be contrary to Equality Act 2010”.
4. The salaried judge refused that application as follows: “The request for an all female panel has already been refused and I agree with the previous decision. Nothing new has been put forward by the representative to justify any departure from the earlier refusal”.
5. The tribunal administration had nonetheless by then replaced the medical member with a woman, so at present an all-female panel is due to hear the case.
6. On 30 January the legal representatives filed an appeal against that interlocutory decision on a form P10, on the basis that the issue of principle should be dealt with, as it might arise again, and that due to the complexity of [A's] case, there was a fair chance that the hearing on 12 February would be adjourned, which might result in male panel members being booked for a future hearing.
7. While I agree that the point of principle is an important one, given the proximity of the hearing I am dealing with this by setting aside the previous direction under the case management powers of Rule 5(2) of the Tribunal Procedure Rules 2008 and making fresh directions. It seems to me that this achieves the outcome sought.
8. I have considered the submissions made on behalf and have read the medical, nursing and independent psychiatric reports. I am satisfied that there are particular features of this case which make it appropriate to appoint an all-female panel.
9. The Senior President’s Practice Statement on the composition of tribunals in the Health, Education and Social Care Chamber 2009, amended in 2014, states only that in mental health cases there must be one judge, one registered medical practitioner and one other member with substantial experience of health or social care matters. There is no requirement in relation to the gender mix of panels.
10. I am unaware of any decided cases specifically on this issue. I have however been guided by the very recent decision of the Upper Tribunal in relation to a social entitlement case, CB v SSWP (ESA)M. The issue of a request for an all-female panel arose in that case, and although the appeal succeeded on another basis, Upper Tribunal Judge Wikeley did consider the arguments. His judgment states:
21. Although the point need not be resolved definitively in the context of the present appeal, I agree with Judge Poynter provisional conclusion it “cannot be ruled out that there may be exceptional cases in which fairness requires that every member of the tribunal is of the same sex” – and indeed that the clerk and any presenting officer be female as well.
22. I feel compelled to say that several of the reasons advanced in the present appeal for resisting the Appellant’s request for an all-female panel were not desperately persuasive. I agree with Judge Poynter that the District Tribunal Judge’s concern that such a panel “may adversely affect male appellants” who had their appeals listed before the same all-female panel was unconvincing. Likewise, Ms Kiley’s concern that panel members should have equal opportunities to sit, regardless of gender, seems misplaced. As the Appellant rightly observes, there are plenty of opportunities for judges and members of any gender to sit on ESA and PIP appeals. Moreover, the fact that many appellants feel embarrassed to discuss personal matters in front of strangers is neither here nor there if in given circumstances a female claimant may be seriously distressed by doing so in front of an all-male panel. However, other more practical considerations may possibly carry more weight (e.g. the issue of the availability of judges and members and the question of delay, which will always be context specific).
23. In practice, cases in which an all-female panel (and possibly an all-female hearing room environment) may be sought, or where such composition should be considered by the tribunal of its own initiative, are likely to fall into two categories of case – first, appeals involving sensitive and uniquely female medical conditions and, secondly, cases raising cultural issues about the giving of evidence (on which see the guidance of another Chamber of the Upper Tribunal in AAN (Veil) AfghanistanB). The common thread is that such questions must be judged by applying the overriding objective as set out in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The weight to be attached to the factors identified there (and other relevant factors not captured in the statutory formulation) will vary from case to case.
24. In carrying out that exercise, it is not helpful for those involved in the judicial process to characterise a request for an all-female panel in terms of it being an attempt by the claimant to “choose their own tribunal”. Rather, the question is whether such a solution is fair and just and ensures “so far as is practicable, that the parties are able to participate fully in the proceedings” (rule 2(2)(c)), bearing in mind also the other considerations in rule 2.
11. The reports in this case record that ...
12. The overriding objective in the tribunal rules to deal with cases fairly and justly includes seeking flexibility and ensuring so far as practicable that the parties are able to participate fully. [A would] not be able to attend the hearing unless the panel is all-female.
13. A further consideration is that [A] has requested a prehearing examination by the tribunal medical member. On the two occasions to date that male medical members have been appointed, she has made it clear to her legal representatives that she has felt unable to see them.
14. Her situation is in some ways analogous to that that of a woman claimant whose case involves “sensitive and uniquely female medical conditions”, as referred to in CB above. Indeed in my view, the arguments in [A's] case for an all-female panel are more clear-cut. The reality is that she will be unable to effectively participate in the hearing or the prehearing examination unless the panel is all female.
15. There are large numbers of both male and female panel members and it is not an unduly onerous burden on the tribunal administration to organise this. It is not a case of her “choosing” her tribunal and my decision is not on the basis that male tribunal members could not do justice to her case. It is simply on the basis that using this degree of flexibility in this particular case will to allow to participate.