Mon 02-Jul-07 02:41 PM by ken

Had a tribunal hearing on wednesday, dla fraud case - the client has a preliminary court hearing next week - adjourned because the chair was trying to bully us in to withdrawing. not going to because we have a good case, but I have two questions really, 1) is it best to stand up to the panel if they are being unfair or does that just backfire and they make unfavourable decisions as a result, what are peoples experiences? 2) They made my client swear on the bible before giving evidence, has anyone come across this before?

In answer to your specific questions: 1) A tribunal should judge a case on its merits and the evidence, however in a "could go either way" type case you will probablyy never really know if upsetting the tribunal chair has had an influence!. 2) never come across this but it is open for tribunals to ask for a witness to give a swear.

My main concern however is that it will always be in a client's best interests to have an appeal heard BEFORE the criminal case. Have a look at this previous discussion on the subject:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=1643&mesg_id=1643&page=

I agree with you, the court case had been adjourned so that the appeal could go ahead first. I was hoping for a decision on the day - not happy about it being adjourned but not really given any choice by the chair. According to her most advice centres would advise the client to go to court first. I don't know which advice centres she has had dealings with but none that I know of would advise that. Now going to try and get the court hearing adjourned again if I can so completely pointless adjourning the appeal hearing - except to give me another chance to find more arguments to use!

So why did the chair adjourn? If you said you were ready, and the DWP were either not there or also said they were ready, and there was no further evidence deemed necessary by the tribunal itself I can't see any reason to adjourn. In some DLA cases where the award might go down as well as up, I have known a chair to adjourn so that claimant can get advice on considering a withdrawal, but assuming this is an OP case, what has the client got to loose? Unless of course that is somehow an issue...is there any risk of the tribunal INCREASING the OP for any reason?

The dwp were there, plus witnesses. The chair listened to some brief evidence from client and then decided they would have to take case back to 2000 instead of 2003, thus doubling overpayment. but if they had continued and listened to our arguments they couldn't possibly have made made her re-pay all the money. basic argument is that client can walk but is in considerable pain whilst doing so and is also prone to regular falls. also have lots of supporting evidence but they weren't really interested. Its certainly one that I would take to commissioners if she doesn't win at tribunal.

I'm interested that you say "the chair decided". You should have been before a proper DLA 3-person tribunal, in which case a decision to adjourn is a judicial decision and must be made by the tribunal all together.

Of course if the case had been incorrectly listed before a chairman alone she shouldn't have taken any evidnece (and torn the listing section off a strip. It happens).

A tribunal is under no obligation at all to consult the parties on whether they consider it appropriate to adjourn a hearing.

Ariadne:

"A tribunal is under no obligation at all to consult the parties on whether they consider it appropriate to adjourn a hearing."

"..they couldn't possibly have made made her re-pay all the money.." Sounds like a very bold statement for a case which involves subjective issues such as the onset of severe discomfort.

"I'm interested that you say "the chair decided". You should have been before a proper DLA 3-person tribunal, in which case a decision to adjourn is a judicial decision and must be made by the tribunal all together."

This depends, surely? There will usually be two discrete matters to be determined in a DLA overpayment case - whether grounds for supersession have been established by the Department (ie an actual change of circumstances) and whether, if a change did indeed occur, it was one that the claimant was obligated to disclose. The first is a matter for a 3-person tribunal, the second for a LQPM sitting alone. Chairs do, however, often get confused about this.

Sorry to disagree but reg 36(6) of the Decision & Appeal regs states that a three member tribunal will sit in "any appeal which relates to an Attendance Allowance or a Disability Living Allowance...."

So even questions of recoverability under S.71 are three person appeals for AA/DLA.

To get back to one of the original points, the power to put a witness on oath comes from reg 43 of the D&A regs.

Finally, under reg 49(1) Chairmen have the power to determine "procedure" at oral hearings although decisions are taken by the tribunal see S.12 of the 98 act and reg 53.

I really should get out more

David

Ahh, but reg 36(6)in full is,

"An appeal tribunal shall consist of a legally qualified panel member, a medically qualified panel member and a panel member with a disability qualification in any appeal which relates to an attendance allowance or a disability living allowance under Part III of the Contributions and Benefits Act or a disability working allowance under section 129 of that Act."

Part III of the Act sets out conditions of entitlement/qualifying criteria and therefore reg 36(6) provides that, so far that these are at issue, a tribunal shall consist of three members. But even where conditions of entitlement are (and were) no longer met, the question of the recoverability of any overpayment is not a matter relating to part III of the Act. Sorry, I need to get out even more than you do.

This could actually be quite interesting (as opposed to me boring myself and others to sleep with the legislation).

In Glasgow (and I assume the rest of Scotland) the practice is that all DLA/AA appeals are heard before a three member panel. I once did a written submission arguing your point but was politely but firmly told you're wrong.

As far as I'm aware the reference in the regs to "under part III..." is for the purposes of defining DLA and AA. God knows why they need to do that but then the legislation usually reads like it was translated from High German by someone who has English as their 8th language.

If they wished to prescribe the decisions under appeal which were to be heard by a DAT then they would have put "an appeal against a decison under Sections 8,9 or 10 of the Social Security Act 1998" or something similar.

However given what you've said it could be that the procedure in Tribunal Service is different south of the border. Is it?

I'm really not that bothered about what the 'right' answer is as there are advantages to both compositions of panel but it would be useful to try and get a definitive answer.

Meanwhile I'm going home to the land of nerds

David

Mon 02-Jul-07 02:07 PM by past caring

"If they wished to prescribe the decisions under appeal which were to be heard by a DAT then they would have put "an appeal against a decison under Sections 8,9 or 10 of the Social Security Act 1998" or something similar."

Well, I think that is what the reg actually does....

"36. - (1) Subject to the following provisions of this regulation, an appeal tribunal shall consist of a legally qualified panel member."

This is the general rule, the remaining paragraphs then set out the specific exceptions.

"However given what you've said it could be that the procedure in Tribunal Service is different south of the border. Is it?"

I don't know about the procedure being different south of the border, my own experience has been that on one occasion the chair agreed with me and on another, a less experienced chair disagreed. On the latter occasion, I made it clear that we would refuse to proceed without a specific direction from a DC on the composition of the tribunal, though in the end this wasn't required - we won on the no grounds to supersede argument, so the question of any o/p didn't arise.

If this is something you're facing regularly, I'd seek clarification from one of your full-time chairs. Think about this simply on policy grounds - the role of medically and disabilty qualified panel members is to help decide questions of entitlement. There simply cannot be any o/p (let alone a recoverable o/p) until non-entitlement has been established - why should non-legally qualified members then have a continuing role in determining questions entirely outside their area of expertise?

There is a difference between DLA and IB cases on this. IB cases other than the PCA are genuinely chairman alone (though listing clerks soemtimes list them for an IB tribunal: not a problem, the doctor can just go and have a cuppa).

As I read the relevant bit of the rules, the references to the sections of the SSCBA (which set up DLA and AA as benefits), are saying "If the appeal relates to DLA or AA (the benefits set up under these bits of SSCBA)then you need LQPM, DQPM and MQPM, whatever aspect of the benefit it's about." So for example you also get it with payability questions in residential care cases.

Anyway, that's the way it's always listed in any case I've ever had anything to do with, round the South East and London.

Note the Reg 49(1)does say that the Chairman hasthe power to determine proceedure, but it also has the words"Subject to the following provisions of this Part, ...." i.e. they don,t have freedom to dictate they must operate with in the rest of Reg 49 and subsequent oral hearing Regs.
The reality is things have already happened so do complain especially if you think proceedure was breached, and hopefully solicitor can delay court hearing.

Thanks for all the responses - all very helpful - there were three panel members but the other two didn't say much. Also I made the statment about them not being able to recover all the money because at the absolute worst they would have to give her the lower care component. They couldn't avoid it without making a very dodgy decision as she has problems with her hands as well.

Had a look at Evidence Act 1995, s 21, subject to s13(2). It seems that if a Court (which a tribunal is) feels that the claimant does not know the difference between a lie and the truth (what??) then it can ask for an oath to be adminstered. This is Civil Courts apparantly!!