Please help me with this one! Claimant had dla mid care but no mobility. appealed and adjourned for fresh tribunal - tribunal agreed it was daft that dla unit had asked CPN for mobility evidence even tho we'd stated it was a medical issue and asked them to contact GP. so it was adjourned pending EMP visit. i could not attend, and EMP wrote rubbish about care needs in appalling handwriting. second tribunal took EMP above anything else- claimant didnt help her case much either, and tribunal didnt beleive anything she said.. result = low mobility but lost all care. i want to appeal to commissioners but struggling to find cast iron error in law argument. there was v little care evidence in papers because the arguments were all about mobility- i should have got more care evidence once i saw the emp report but foolishly thought we could argue against it at the appeal. i know failing to take a/c of other medical evidence is error in law but could i argue that they should have referred to medical evidence in previous appeal papers/ claim forms? even though they didnt form part of this appeal? and if the claimant argues that she was poorly represented will that help? thanks.

i doubt it would help to argue poor representation in this case. you may have an argument for setting aside - if care needs were not an issue raised previously, tribunal should have warned that the question would arise, and especially with a mentally ill client whose rep could not attend, ought to have adjourned to give an opportunity to prepare.

jj

thanks, unfortunately they did ask if we wanted to withdraw and get further evidence, but claimant wanted to go ahead, and i wasnt assertive enough to insist, another reason i feel we ought to argue poor representation, i really let her down.

i'm not sure whether a poor representation argument would help your client get to the commissioners. i recently admitted (unusual) administrative failures on the part of our organisation to the tribunal in relation a late request for a full statement ( i won't bore you with the details) and it has been refused. my client may be able to claim against the law centre, but i'm unsure whether the full extent of her loss can be determined without an outcome of an appeal to the commissioner. i'm not aware of any case law which is particularly helpful in terms of failures by the Appellant's representative- i'd be grateful if anyone can point me towards any. there are some natural justice issues in my case, and i'm not sure where i stand in terms of pursuing the matter - its the kind of appeal where the statement of reasons is indispensable. any advice on this would be welcomed.

in your case, involving on-going entitlement to DLA, by all means be up-front with your client, but i suspect that beating yourself up will be of limited help in terms of successful argument and you would do better to focus on the injustice of the decision to your client, for your error in law. obtaining medical evidence and requesting review/supersession may limit the damage.

jj

Have a look in the SSlawPA notes bit of the site, there is a talk by Commissioner Jacobs which summarises the legal position regarding reps duties / responsibilities.

JJ - you don't need full statement to progress to the commissioners, although the commissioners office can be a bit baffled if you turn up to them without one. I did one myself, but I cannot remember what argument i used to get leave - if you are interested I can try to find out.

The insurance situation is a bit difficult.

You have to decide if this is a matter you can continue to deal with. If so, does it have to be reported to your insurers at the moment? If it does, they will make your life hell! If you admit liability to anybody, they will try to argue that you are not insured for this matter - this can cause very real problems, especially for JJ - I am not so sure about Glenys as i don't know what kind of organisation she works for.

And Glenys, remember, we all have bad experiences, and with hindsight we could all run perfect cases every time.

Glenys, do you have a full statement yet? I'm presuming that the tribunal took place fairly recently. If you don't have the decision yet then get it.

In my experience very few decisions are completely watertight and in the circumstances you describe it is entirely likely that you will find an error in their decision. Tribunal's have fairly onerous responsibilities in terms of explaining their decision and demonstrating that they have considered everything which they should have.

If you don't have much experience of taking cases to the commissioners see if you can find someone who does and get them to take a look at it.

yes I do have a written statements of reasons (took them about two months to finally come up with it!) and i'm in the process of picking holes in it now. But most of the "holes" are to do with not quite reporting what she said correctly, which is of course a matter of who you beleive. But although I know I failed in not presenting the other medical evidence properly at the tribunal i'm still going to argue an error of law in their over-reliance on the EMP as well, and ive got some case law to support. I think from reading all the helpful responses I've had, what I need to do is get my request for appeal to the commissioners off asap, and start acquiring more medical evidence. What I'm not 100% clear about (though i have read it up-honest!) is whether I should actually ask for setting aside rather than appeal to Commissioners, or leave it open? Also, I know she ought to put in a fresh claim but not sure if that should be straight away or 6 months after the last decision (or last application?) sorry about all these pleas for help, my brain is turning to mush.

Glenys,

A quick answer to your query.

I would suggest requesting a supersession of the current award - it will not be a new claim if your client has current entitlement. This should be lodged from date of request and you can sit on it for a while when deciding what to do (the DBU will give you some time to get the supersession forms in). There is no '6 month rule' for DLA.

When you do submit your leave to appeal to the Appeals Service then the chairperson can set it aside if s/he thinks it appropriate. You do not need to specify - see Section 13 of Social Security Act 1998.

If leave to appeal is not given then you will have to reapply direct to the Cmr.

From what you have said it appears the Tribunal made a worse decision for the claimant than the one against which she appealed.

In doing that the Tribunal are exercising a discretionary power under Sec 12(8)(a) SSA 1998. Check the statement to see that they have made is absolutely clear that they were aware of this and give reasons for the exercise of their discretion. If they don't then perhaps try this:


1 The Tribunal of Commissioners in CDLA/4751/2002 considered 4 cases which raised the issue of whether a decision that is more adverse to the claimant than the one appealed against could be made by a Tribunal. The Tribunal of Commissioners decide that a Tribunal does have such a power. However, the Tribunal of Commissioners also insist that a Tribunal that follows such a course of action (ie consider an issue not raised by the appeal) was exercising a discretion and that the statement of reasons for its decision must indicate that they were aware of this and show that the discretion had been exercised in a judicial manner.

2.Thus in CDLA/4939/2002 (one of the cases considered in the linked decision) the Commissioners find the decision of the Tribunal (which removed an existing award of middle rate care) in error because:

“Moreover, the tribunal’s decision was in our judgment further erroneous in law in that there is no indication in the statement of reasons that the tribunal appreciated that it had a discretion whether to consider an issue not raised by either of the parties to the appeal (i.e. whether the 1993 decision should be superseded adversely to the Claimant).” (para 163 of CIB/4751/2002)

194. An appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal. In particular, on an appeal against a refusal of a claimant’s application for supersession of an award of disability living allowance (or against a supersession which was not as favourable as the claimant wished), an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal. However, unless the Secretary of State has in his submissions to the appeal tribunal raised the issue as to whether a less favourable decision should be made, the tribunal must consciously consider whether to exercise its discretion under Section 12(8)(a) of the 1998 Act to take into account issues not raised by the appeal. This is a discretion to be exercised judicially, taking into account all relevant circumstances. If a statement of reasons is given, then reasons for the exercise of the discretion should be set out. In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice (Paragraphs 88-97 above).
(emphasis added)

Martin- this is brilliant, thanks. but i'm not entirely sure what is exactly meant by "reasons for the exercise of the discretion should be set out". The statement does go through all the various things they say she can and can't do for herself without help (although they mis-reported what she said-wish i'd had a tape recorder!- and said things like "she was unable to answer this question" and "mrs C could not explain why she could not put the towel on the bed herself" when i'm fairly certain she did explain- they just either didnt understand or didnt beleive her. but they did not actually STATE that they were exercising their discretion- does that matter/ and does setting out what (they think )she can and can't do amount to setting out the reasons? cheers.

Look at the Statement and see if it is clear from that that the Tribunal:
1. Appreciated they had a choice over whether to look at care component.
2. Give some reason for making the choice to look at it.

If the tribunal indicates they thought they had to look at care (ie that they had no choice) or does not indicate things either way, then they are in error.

Martin- sorry to bother you again but i thought if i tell you what they said you might be able to tell me if you think they did what they oughta: "The appeal was against the refusal of the mobility component. Mrs C was told at the outset of the hearing that the Tribunal would be reconsidering the entire decision. Mrs C and her representative were told that they could withdraw the appeal or if they wished to obtain further evidence to support her original award of middle rate care they could apply to adjourn. They decided to proceed." sounds to me they havent done as you said, but you may disagree. thanks again and i promise to go away after this one!

If that is all the Tribunal had to say about their decision to look at the care component, then I would submit in the leave application that:

1. Arguably that wording reveals that the Tribunal were not aware that they were exercising a discretionary power by looking again at the care component when this was not an issue raised by the appeal. Therefore, arguably they misdirected themselves as to the law.

2. Certainly, they have not explained why it was that they decided to look at the care compoent. Therefore, there decision is in error for giving incomplete reasons.

3. They offered an opportunity to withdraw/have an adjournment to get further evidence and this is sufficient to comply with Article 6, BUT does not go to show they were aware of the discretionary nature of what they were doing or provide an explanation for why they exercised that discretion in the way in which they did.

Refer to the excerpts I quoted from CIB/4751/2002 to establish that all of this means they are in error.

Tactically, I would be inclined to put all of this as the first error of law in your grounds, do still put in the other bits as discussed.

Good luck with it.

absolutely brilliant, i wish i had your brains. thanks. will report back on results.

My brains are a trifle pickled this morning following pub yesterday, so I wouldn't wish that if I were you- I only know about this as I have just done a leave app on the same point.

Martin.

Glenys- just on a further point.

Have reread the thread and notice your reference to obtaining further medical evidence.

Whilst getting further medical evidence might be a good thing if the case ever gets to another tribunal, it will not help in getting you to that position.

The Commissioners have to consider whether the Tribunal came to the right decision and gave the correct reasons given only the evidence that was before it.

The only way the absence of evidence might be an error is if either the tribunal did not have sufficient evidence to support the findings which they made or if they really should have called for further evidence themselves whatever the claimant wanted to do (unlikely given the waiver of this opportunity by the claimant). However, in those cases new evidence will still not help.

An alternative approach for this claimant (if the care component is weak) is to get the thing set-aside by the Commissioners and then withdraw the appeal- this way the claimant keeps the care component they had but gives up the fight on mobility.

that makes sense. thanks again

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

just to correct something in my last post -

the care component did not become an issue until some point AFTER the EMP's report was produced, and the point at which the tribunal decided to exercise its discretion to raise it - presumably, at some point between recieving a copy of the report and BEFORE the hearing was scheduled.

jj

thanks everyone for your help. i sent the (scarily long) request for appeal to commissioners off on friday. i did refer to the "plea bargaining" case as offered in last but one, but said there were "elements of this" and that although it was not such an extreme case it was clear that this sort of pressure was frowned on. i didnt think it fair to make too much of an issue of it as we were not co-erced in quite such a blatant way. anyway if any of you contributors to this discussion want to read my letter i can email it but i won't clog up the system with it! cheers!X

" Issue not raised by the appeal". I think caution needs to be exercised here. Did the SoS make an additional submission on the care component after the EMP report was obtained, or make any reference to it, i.e. " the tribunal are asked to consider whether any element of the care component is satisfied". Or something along those lines.

If so then it is an issue raised by the appeal and it should usually be enough (although more for the sake of completeness than anything else) for a tribunal to go on to say in its reasons something like "with regards to the care component we were asked by the SoS to consider it. In light of the evidence given by the EMP we considered it appropriate to do so".

CDLA/1000/01 makes it clear that "raised by the appeal" refers to the substance of the appeal and not merely to the wording of the appeal letter.

So although I agree with Martin on the issue of discretion, this would not apply if it was apparent that the care component was an issue raised by the appeal.

Regards
Paul

think i'm safe here as the first time looking at the care componenet was raised was at the appeal itself. SoS did not ask tribunal to look at it.