Hi all, I wonder if someone out there has any thoughts on this one?
I went to a tribunal this morning to represent a man with autism and behavioural problems to get HRMC. Obviously we didn't take him but his mother attended to represent him and the tribunal were notified of this in advance. Trouble is, she is not the appointee as the claimant himself can be persuaded to sign documents when needed and all matters are then dealt with by the family and carers. The tribunal refused to hear the case because the claimant wasn't there to give his permission for his mum to speak for him. The fact that he had signed the appeal forms for me to represent him actually undermined our argument that he lacked "insight and sagacity". The chair asked for either appointee action to be taken or a letter from the consultant psychiatrist confirming the client's lack of mental capacity.
We have lots of learning disabled people in the same boat - we won't be taking them to the tribunal either and I doubt we will take on appointeeship for them all. Any thoughts on the chair's comments?

Kwackerblue

Before considering the issue of representation and client attendance - I'm puzzled over the basis of your appeal. Unless I've misread your post, you are claiming High Rate Mobility for a person who has autism and behavioral problems. HRMC has to follow a PHYSICAL inability to walk whereas your client seems to have severe mental health issues. Have I read this wrong?

The case is being pursued under SSC&BA Reg 73(3)- mental impairment & behavioural problems.

I presume the chair adjourned and made directions regarding the appointee issue.

I think I would be inclined to write back and draw the chair'a attention to reg 49(4) of the SS&CS(D&A)1999 which says the chair may proceed with the hearing if a party is absent and satisfied by reasons presented. I'm sure you can, and probably have already given good reasons. Whilst the chair has undoubtedly got wide discretion over the conduct of the hearing including summoning witnesses, the existence of reg 4 suggests a chair would at least have to consider it and explain why if it is rejected.

As for insisting on an appointee. Clearly it could be much more convenient to have one but there is no specific power I can see for a chair to insist on one. The discretion over conduct is usually limited to issues needed in order to make a decision. Cannot see that an appointee is essential to adjudicating in a hearing. Reg 8 clearly says a party can be accompanied and represented by any person. I would therefore be inclined to quote reg 8 and call the chair's bluff on the matter.

Whilst not specialising in mental health cases I have taken several to hearings without the appellant and never had any trouble. The chair's have been quite happy to proceed on the evidence available and I think you should invite the chair to do the same. In the end the chair has to dispose of the appeal somehow and if the evidence has not been fairly heard due to procedural objections a commissioner's appeal seems a likely outcome.

Would it not just be easier to get the mother made appointee so she can sign documents etc re the DWP? I understand this is a fairly straightforward thing to do. Also, i do not understand kwackerblues comment that 'i doubt we will take on appointeeship' - it would normally be a member of the disabed persons family.

I can see what the chairperson was getting at. If someone is signing documents then it suggests he may have the capability to attend an appeal hearing. If he does not have the capabilty then there should be evidence of this.

As far as the chair is concerned the appellant may have the capabilty but may not have been given the option of attending the appeal by his relatives. If he does have capability then it should be clear to the tribunal that he has informed his rep that he does not want to attend the appeal hearing (usually the reps evidence on this will be enough).

Also, Kwackerblue, i think your welfare rights service was the rep. Surely his mother went along as a witness? i do not think that you could both be 'reps'.

No its not just signing a few documents for the DWP.

Actually an appointee should not think its an easy thing. If you are an appointee for benefits you take on legal responsibilities. Overpayments can be recovered personally from you. You are committing to do all the benefit administration for an indefinate period.

An appointee should only take this on if they really want to make the commitment. It should not be a casual thing. Nor in my view should it be done simply for the convenience of a tribunal chair.

The DWP's "Agents, Appointees, Attorneys and Receivers Guide" has just been made available on their website.

http://www.dwp.gov.uk/advisers/docs/aaarg/index.asp

Could the chair be doing you a favour? Having an appointee would be consistent with having a severe impairment of intelligence. Managing his own finances might not be.

Fri 23-Sep-05 10:04 AM by ken

Thanks to steve for highlighting that the DWP's 'Agents, Appointees, Attorneys and Receivers Guide' is now available online.

We've now updated the toolkit area of rightsnet to include a link to it.

I'd like to echo Derek_S' caution about appointees.

Although my area is HB/CTB, I think the principles are the same. The irony of a clmt having an appointee (or someone with Power of Attorney etc) is that their rights are effectively diminished. Two very obvious examples for HB/CTB are backdating and overpayments caused by official error. If a clmt is unable to deal with their affairs, it can be argued that they have good cause for backdating (or, in the o/p scenario, could not reasonably have been expected to realise etc). If "responsible" their own affairs, the clmt will succeed more often than not in the respective arguments. BUT, if there is an appointee etc, then it will be the actions of the appointee that count - not the clmt.

Far more often than not, I would strongly advise that appointee status etc should be avoided wherever possible.

NB: For info - appointee status for HB/CTB is separate to appointee status for other DWP benefits.

Regards

Thanks for all your posts so far, not sure where I will head with this one. Just to answer a few replies - the comment about not being appointee for them all: We are a County Council, many of our Community Living clients have no family in touch. We are the appointees for those who cannot sign (and have had a deal ot trouble setting up bank accounts without incurring business charges) but many others will sign and so are assisted with their financial matters afterwards by their carers.
I too think the chair was trying to help. My whole argument for the case is lack of insight (although intelligent in I.Q. terms) so to say the client agrees to my representation doesn't sit! I am worried that this may be applied to all learning disabled clients in these circumstances, particularly with the Mental Capacities Bill.
The client's mother is prepared to go for appointeeship and I don't want to rock the boat so this may be the only solution in this case.

I think a tribunal who refused to hear the mother because of no explicit consent in front of them and then dismissed the appeal would be on very sticky ground. Such evidence, ANY evidence, can be admissible. Whether it is _useful_ is the point of the tribunal to discover. But to turn it down and not hear the evidence at all would be awful, see eg CDLA/1138/03 and particularly CDLA/2014/2004 paras 10-13.

(I know that in this case they adjourned but you never know when you'll get this again.)

Its either me being thick - or Friday afternoon (probably both) but I cannot quite understand why there should be an inconsistency between capability to give consent and someones level of disability. Particularly in this context where the crux of the matter is what help is reasonably required. I would have thought the fact that someone may need an appointee is entirely consistent with severe disability. I would hope your medical evidence is convincing enough anyway. So whilst it would be convenient and neat to have appointeeship I cannot understand why it should assume any importance in the decision.

I’d complain to the regional chair. A person does not have to attend if it is likely to cause them distress. We often run into this problem because of mental illness: I’ve had people who have run away just outside the doors due to the stress of it all. This doesn’t mean they are incapable of making decisions about their own rights/welfare etc, it just shows how they react to difficult situations. Some people may need longer to understand things, it doesn’t mean they should have an appointee, that’s a huge leap. I’d be a tad concerned about this kind of attitude from people in the position of assessing disability needs. I never seem to have a problem convincing the panel of why a person isn’t present when the client is likely to give them a thump. They do take a little more convincing sometimes when it’s solely the welfare of the client I’m concerned with.

We had this problem once, the chair refused to listen to anything the representative had to say, they basically said it would not be objective, meaning the absent client was simply not given a voice. They went for the opinion of the DWP doctor, who had met the client for all of 15 minutes. We had the decision set aside on the grounds that it was unfair and the regional chair set up a new appeal pretty quickly. Since then, we’ve not had a problem about attending hearings without the person. Get something concrete in writing and take it to every hearing.

I was under the impression that if you are authorised as the representative all of the rights of the appellant pass to you and that this is in the D + A regs. I think the chair has the power to intervene if they consider the rep not to be doing their job properly (although I think this is intended for fairly extreme cases only). The upshot of this is that I can't see how the Tribunal can lawfully refuse to go ahead in the circumstances you describe. As is mentioned above, the mother is a witness only and you as rep have the power to call witnesses.

I don't know if the chair has any common law power to hold that the appellant is not capable of authorising you to rep but if s/he did, I would again have thought that there would have to be a very good reason for making such a decision.