glenys and martin - this has been wonderfully instructive - thanks very much. there is something still bothering me about this, so at some risk of adding confusion rather than helping, i have to ask whether CSDLA/606/03 might help in this case?
the reason i ask is that glenys started off asking about what she saw as her own failures on this case. it sounded as if you were taken by surprise by the tribunal's opening approach, and blame yourself for not being better prepared from the point when you received the EMP's report. i'm sure most of us have been in the same boat at one time or another, and resolve to try harder to anticipate all potential problems, but trying to second guess tribunals requires omniscience and prescience none of us have.
the care component had not been an issue raised in the appeal by either party, so i'm not sure martin is totally correct in saying that the tribunal put you on notice when it adjourned for medical reports. at that point, no-one knew that the EMP report would be so unhelpful in relation to the care component, and although the _potential_ for it to become an issue existed at the point the direction for the report was given, it did not do so until the report was produced. i'm not convinced therefore that the adjournment should be considered notice that the care component had become an issue. doesn't 'notice' mean something _explicitly_ stated.
it seems to me that the notice was given at the start of the hearing. (sorry i misunderstood earlier, and thought were did not attend the hearing - you meant the EMP's visit.)
the tribunal offered the choice of withdrawing the appeal ( keeping the care component and dropping the mobility claim), adjourning for medical evidence to support the care component (which could imply that the tribunal had made its decision _before_ the hearing, one which as martin has made clear, entailed the tribunal using its discretion to consider issues not previously raised) or proceeding at a risk of losing everything.
as the client's representative, given the outcome, you realize you made an error in not adjourning for more evidence. but to what extent might it have been a forced error, as a result of actions of the _tribunal_, which failed the Appellant? you were put on the spot and, with your mentally ill client, made a pressured decision, which you regret. but isn't the real question 'did the tribunal act correctly?'
i'm not suggesting the tribunal's actions were as bad as the case in the above decision, but you were there, and are the most able person to judge the way in which the tribunal handled things, and whether CSDLA/606/03 is appropriate in your case. it looks to me, at some distance removed, as if many of Commissioner Parker's damning criticisms of what equates to 'plea bargaining', could apply in your case. had the tribunal made up it's mind before hearing from you and your client? what were they doing allowing a withdrawal, if they believed she might not been entitled to the care component at all? the tribunal's role is inquisitorial, not adversarial. the tribunal's duty is a different one to the one you owe to your client, and i feel the tribunal's failures are more relevant than any by you, to the outcome for your client, and you ought to be able to obtain a re-hearing.
i hope this helps.
jj
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