By John Pring Disability News Service 23rd February 2017
A system that allows barristers who are paid by DWP to prosecute benefit fraud cases to also sit as judges on tribunals that decide social security appeals is “unquestionably wrong” and a “direct conflict of interest”, say welfare rights experts.
The concerns were raised this week after Disability News Service (DNS) was told about one judge who had prosecuted two high-profile cases of benefit fraud in 2012 and 2013, even though she had been appointed as a part-time social security tribunal judge in 2011.
It is likely that the barrister prosecuted many more cases for DWP, as most trials are not covered by the media.
There is no suggestion that the judge in this case – who was eventually appointed to a full-time judicial role and stopped working as a barrister – behaved improperly, but there are concerns that other barristers who work as part-time judges might feel pressured not to rule against DWP in tribunals in case future prosecution work dries up.
Once a judge is appointed to a full-time, salaried post they are no longer allowed to carry out paid work as barristers.
Neither DWP nor the Judicial Office, which supports the judiciary, expressed any concerns this week about part-time judges on social security appeal tribunals also prosecuting cases on behalf of DWP.
But Steve Donnison, co-founder of Benefits and Work, which provides benefits information and advice, said: “It is unquestionably wrong that judges can be allowed to sit in jurisdictions where they have a financial relationship with one of the parties to appeals.
“It undermines people’s trust in the independence of the judiciary.
“Unfortunately, the tribunals service have form in this regard.
“A lot of the medical members who sat on disability living allowance tribunals were doctors who also regularly did home visits for DWP medical services, before assessments were outsourced.
“Many people were unhappy about this and it was the subject of an appeal.
“But the upper tribunal, or social security commissioners as they then were, decided that doctors were professional people who could be trusted not to let such things influence them in their role as tribunal members.
“I suspect that judicial faith in the incorruptibility of professional people will not have diminished, if this issue is ever the subject of an appeal.”
Andrew Clark, chair of the user-led disabled people’s organisation Buckinghamshire Disability Service (BuDS), also expressed concern.
He said there was an argument that barristers should have a “professional detachment” and so should not be affected by which organisation was paying them.
He said: “Having prosecuted benefit fraud for the DWP does not necessarily mean that you are against people claiming the benefit.
“There is a substantial difference between an employee of the DWP and a barrister who works for a chambers that takes work from the DWP.”
But he said that he would be concerned about lawyers going “backwards and forwards between the two on a regular basis”.
He said: “I would feel considerably more concerned about it if they were one of the DWP’s stable of barristers that were regularly used by them.
“If [the judge] is in that position as being seen quite regularly as representing DWP it would be a completely different situation.
“If they have done two [cases prosecuting benefit fraud] there is a good chance they would have done more.
“If that is the case, there are grounds for concern. It may be unjustified concern, but I think it is in the public interest to pursue [the concern] further.”
Michelle Cardno, founder of the benefits advice organisation Fightback4Justice, said she believed DWP barristers also working as part-time tribunal judges was “a direct conflict of interest and morally wrong”.
She said she would not like to see any of these barristers sitting as an “impartial judge” on a tribunal for any of her clients because of the “certain mindset” required to be a prosecuting barrister in benefit fraud cases.
She said that such cases often rely on evidence from DWP fraud investigators, which only reaches court because of the persistence of the DWP barrister, “even when statements are unsigned”.
She said: “I feel the whole way they pursue a suspected fraud claimant is relentless and designed in court to wear disabled people down, and to switch to an impartial role on a panel after being part of that mechanism would be legally unethical in my opinion and not in the best interests of natural justice.”
A DWP spokeswoman said: “The judiciary is independent of the government. Both barristers and judges are bound by their professions to uphold that independence.”
She said the Government Legal Department, and not DWP, was responsible for approaching a barrister’s chambers to ask them to prosecute a case, and added: “The chambers will then instruct a barrister to act in proceedings, making an assessment on an individual’s skills and any potential conflicts of interest.”
But asked if DWP was aware of cases in which barristers prosecuting benefit fraud cases on its behalf had also worked as part-time judges on social security tribunals, she refused to comment.
A Judicial Office spokesman said they “do not recognise this as a conflict of interest, unless specific allegations are made”.
He said: “Judicial conduct guidelines require all judges to remain impartial.
“If a judge considers there to be a conflict of interest it is a matter for them to decide on whether to recuse themselves or to raise the matter with the parties involved.”
He added: “Given the specialised nature of the tribunal and that most cases are brought by the DWP it would be undesirable to exclude lawyers who had represented them from sitting as judges.
“Equally it would be undesirable to exclude all those lawyers who had represented claimants challenging DWP decisions.
“It is only by representing parties in the tribunal that lawyers gain the experience and knowledge they need to become judges.”
When asked whether the Judicial Office was concerned about lawyers working as both a barrister and a part-time judge, flipping from one to the other, he said: “In practice they wouldn’t be acting as a lawyer at the same time as sitting as a judge. They would do one or the other.
“They would be expected to represent either party to the best of their abilities when acting as a lawyer and remain impartial when sitting as a judge.”