Made application for leave to appeal - turned down by a chair - went direct to Comm's - granted leave - Comissioner overturned tribunal decision and sent back for re hearing - chair that heard the appeal was the one that refused permission in the first instance - lost second appeal.

Is it correct that a chair who originally refused permission to appeal to a Commissioner should hear the appeal when it comes back ?

Definately not. You should apply to have the second decision set aside straight away. It is definately not in the interest s of justice that this happened to your client. I would also throw in a human rights argument (Art 6) right to a fair trial, just to scare them.
Don't forget that in English law, justice must not only be done, but seen to be done.

I am not so sure althought it is an interesting point.

I can't see a breach of Art 6. The chair has only considered an application for leave and can't therefore be said to have formed an opinion on the whole case. Maybe the chair feels that the appellant should have been succesful on the facts of the case but the the decision was legally correct.

There is R ( on application of Wall ) v The Appeals Service & Benefits Agency, <2003> EWCA , in which the court held that doing some work on a case doesn't mean that a chair will become partial.

This is the difference between justice being done and being seen to be done.

A rehearing should be before a differently constituted tribunal than originally heard the appeal. Whilst not a member of the original tribunal, a chair deciding leave will have had to review the case papers and written reasons.

It is possible that the case papers before the new tribunal may be different (must be in the case of any direction by the commissioner) than the original.

It is difficult to see how a chair who saw the original papers could be as unbiased as a chair who had not seen the original papers. So whether or not there is evidence of bias, there wil always remain the chance that it occured whether conciously or unconciously.

Thank you Ladies & gentlemen for your input - I'm going to try for the set aside and see what develops - particularly as the client went in with low care - looking for middle rate - and came away with nothing - you may recall a case I posted about an 9 yr old young lady - (who was 6 at time of original decision) who is totally allergic to dairy products? danger of anaphalatic shock etc - carries epipen everywhere - quite real supervision needs in my view - apparently not in the eyes of the Tribunal..........