I have recently had a spate of negative decisions based on the tribulals discretion to make inferences from the evidence (these inferences are invariably negative).

I am getting really disheartened with the tribunal process. Whilst I feel most decisions are unfair the tribunal guard their decisions fairly well by making them legally sound. I recently had an unsuccessful commissioners decision - reason: "tribunal has right to make negative inferences if they correctly consider evidence and facts of case"???

I always write a fairly detailed but concise submission at all my appeal tribunal representations. Throughout the hearing the panel always rely on my concise summary of the facts as opposed to the departments waffle of up to 40-60 pages. I feel I am making the panels job much easier for them and I am getting no appreciation whatsoever for my hard work.

I know of representatives who do not prepare written submissions. I am considering not submitting a summary of facts (of course I will submit additional evidence if relevant) in protest at the negative way I feel the tribunal is operating. I am not sure if this is a good idea or not? I want to make the panel work harder. Of course I will prepare for all my cases just as before but I feel I shouldnt make the panels job easier by summarising the facts which they always prefer not to believe.

I am usually very successful at appeals. I honestly believe the chairpersons at my hearings do not do their jobs well. Last year they were too soft, allowing decisions that I would never have expected. This year they are completely opposite disallowing most decisions and being quite harsh.

Any advice is welcome and appreciated.

Thanks Kevin

I personally think you will actually make it harder for you to challenge refusals at the Commissioners if you don't send in written submissions. For example, say the Tribunal refuses your case and its reasoning fails to mention one of the arguments you put forward verbally.If it was contained in a written submission you will be able to argue that the Tribunal had failed to give adequate reasons for its decision, whereas if the was no record of your verbal argument this would be extremely difficult. basicaly, I don't like to rely on the Tribunal Chairman writing down everything I say.

Also, beware of making the Tribunal 'work harder. If they perceive this to be the case you will only worsen your chances of success as their human nature kicks in. I suspect you're just having a bad phase which we all feel that we go through from time to time.

Hi Kevin

All roads lead to Rome, as it where. Long ago I learned that in a lot of disabilty/incapacity cases detailed submissions were merely duplicating the evidence my client gave at tribunal and thus the time spent writing them could have been spent on other work. There was also more scope for the client to say something at the hearing which did not tally with something in the submission, usually because I had misunderstood something but also because the client had told me something different.

When I started not doing written submissions I noticed that the success rate at the hearing did not really change. Of course as I got more experienced I acquired the knowledge and confidence to raise points verbally and to present (sometimes) complex arguments verbally and ensure all points and evidence were before the tribunal. I think that this made me a better rep, as you have to think on your feet more often. After a while client's success rate actually increased.

I will still do written submissions in complex legal cases or cases were the medical issues are complex or, to some extent, obscure, for instance alcoholism issues or complex mental health issues in DLA, where the tribunal's mind needs to be focused on a contentious or fine point.

A colleague of mine with a wealth of knowledge and experience always likes to do written submissions as then there is a written record in the papers should the appeal be lost and the record of proceedings is, shall we say, somewhat lacking in accuracy.

In Liverpool, I believe we are quite fortunate as reps. Generally, most of the tribunals are fairly knowledgeable, partly because many good reps down the years have forced them to be, and our team generally, have good relationships with them. Like anything in life, however, there are always exceptions and things can always change, so we take nothing for granted.

I agree with you about the lottery nature of decisions though. My colleagues and I have taken cases were we thought were about as sound as you can get, only to lose, then taken very weak cases only to win. Go figure!

I, personally, do not have any problems with the overwhelming majority of tribunals I do and I am usually repping in most weeks. Of course, there have been occasions when I have not been happy but then life isn't perfect and it is rare that I come out of a hearing absolutely furious, although I have done recently in a case, which as it is still under adjudication, it would not be judicious of me to go into more detail . I also manage to get the majority of decisions that go against my clients set aside by a district chair or a commissioner and usually win at the re-hearing, so that maks the process easier to live with.

I guess that there is no right or wrong way to present a case. We are all different and like to work in ways that we are comfortable with and suit our different temperaments. Me, I can be a bit of a gobby bugger, as my colleagues know, so I dont mind a bit of cut and thrust in a tribunal but I always try to keep it measured and reasoned.

I am sorry that you are disheartened with the tribunal process in your area. This can easily happen if, when you are usually successful you hit a losing streak. That happens to us all so I would try not to worry unless it starts to become a trend. I hope that this will not happen. Maybe, as you say, the chairs are not doing their jobs properly and, if so it is a reflection on them and thus a traing issue, and is no reflection on your skills as a rep.

Keep the faith
Paul

There is a balance here - sometimes reps seeking some comfort and reassurance in written submissions, it ensures all of the relevant facts/law is covered etc and the fall back position is that it increases possibilities of successful appeal to commissioners. Problem with written submissions is that; sometimes appellants contradict what is in them; not too sure how many tribunals read them in advance; tribunals, especially DLA appeals, are more interested in hearing appellants own evidence; lot of work can go into submissions and yet at end of day most important matter is that your client - the appellant covers all of the relevant issues in oral evidence; role of rep is to guide tribunal through evidence supporting the appeal, addressing issues which are not favourable - I’m not too sure of the value of written submissions, particularly in ‘straightforward’ DLA appeals – each appeal needs will be different and the over reliance on written submissions by some reps ignores the importance of other representation skills.

Keep your chin up, Kevin. We all go through a bad trot sometimes. Like the other respondents above, I think a written submission is somewtimes helpful and sometimes not. Personally, I like to put one in if I am expecting a tough time ahead and I might want to quote some case law. It's easier to write it down so they can look at the arguments in advance rather than wasting time at the hearing explaining what I am banging on about.

I find that whether or not a submission s helpful depends on the Chair. Some welcome a submission and some treat them with disdain. My colleagues in derbyshire will know who I am thinking of!

Incidentally, is anyone alse as bored as I am with being expected to read the mind of an EMP or GP I don't know from Adam? I am fed up with me and my clients being asked "How do you account for what is written on page 113?" etc. In Stockport the other day when I replied to the above question by saying I couldn't possibly account for what was in the EMP's mind when he wrote one particular sentence in his (otherwise supportive) report the Chairman shot back at me "So you choose not to answer my question, Mr Connolly!"

Thanks for all your comments folks, they were very helpful. As you said Paul we all have different temperaments and ways of doing things. I tend to be a bit of a perfectionist and this is usually to my own detriment. If I think a case is worthy of succeeding, if I put the work in and it fails I usually take it pretty badly. I know I shouldnt take it personally though.

I was a little shocked regarding the recent decision I recieved on a commissioners case. he basically said that whilst he neither agreed or disagreed with tribunals negative inferences he couldnt interfere with decision because they looked at facts and evidence properly. The main issue in that case was frequency of illness. Tribunal accepted during exacerbation high mobility would apply but disalloed based on frequency of needs.

I argued tribunal misdirected based on frequency of needs - commissioner didnt accept my argument.

Anyway in the less complex cases I am going to try oral presentations only. I'll let you all know how I get on.

Thanx alot

Kevin

I would largely mirror Paul's comments.

I usually do written submissions, but I tend to keep to any difficult issues or simply correct, or highlight, any dodgy or incorrect information that may be present in the papers. I rarely go into client's illnesses or disabilities as they can do that for themselves. Where I do need to help clients with these aspects, I tend to act as a prompt at the hearing.

However, I usually look to see if there's any way of getting decisions revised before the appeal. I think this is a much under-used tactic and, where you have a good relationship with the local appeals officers, it can be very successful. In DLA/AA cases, sensitive use of the customer services department can also yield results in some cases.

I reckon you should just keep plodding on, and be prepared to change your approach according the individual needs of each case. You don't say that members have changed thier approach towards you, so maybe it is just a temporary lull in your success rates....