I would appreciate the opinions of representatives across all Tribunal formats particularly those whose Agencies have CLS involvement.
As Supervisor with resposibility for training reps I have always taken the approach that to argue law, outside of very specific cases, is often not well received but a straight forward and reasonable case, based on the facts and a thorough preparation of the appellant, is a successful tactic in the aid and assistance of an appellant.
My question is therefore as to whether the role of representative in a welfare rights sense is become reliant on a legal argument or commonsense and reasonable aid.
MIKE B.

I am struggling to understand your question.

We are operate in an arena governed by statute and precedent.
Is there a gap between "legal argument or commonsense and reasonable aid"?

To rely only on "a straight forward and reasonable case" is leaving out the largest tool that a representative and advocate has and is in my reprehensible and dangerous.

I'm afraid I have to agree with Phil for at least two reasons; firstly it is often the case that reasonableness and commonsense are all too often ingredients lacking in the decisions that we are challenging: there appears to be a new generation of decision makers who just do not appear to have any knowledge of even the more outstanding appeal court and House of lords cases which went to shape the regulations we argue about - Fairy & Mallinson to name but a couple. I've even had AA refused for a client that was blind, DLA refused for a nine year old who could go into anaphalatic shock at any time: I've lost count of the number of times decision makers and tribunals have cherry picked parts of a medical report, (ignoring other conclusions in the same report) to support an irrational decision, in total contradiction of precedent law.

I have also learnt, unfortunately from bitter experience, that even tribunals sometimes appear to have their own definition of what is commonsense and reasonable - I've lost count of the number of times I've been told about how it's public money, and cannot be awarded lightly etc - (perhaps not in those words).

When you take on an Appeal, it should be with the believe that a client has a good case, and is deserving of an award. Therefore we should be using all the means at our disposal to achieve that end: the Regs themselves, Comm decisions, Appeal courts and H of Lords decisions if necessary as well as an arguement based upon commonsense and reasonableness.

It's probably now the case that there is more precedent law than statute, particularly in the areas of AA & DLA. OK, the research can be time comsuming and sometimes tedious, as can producing the submissions, but to do less than the best for the client is, as Phil quite clearly puts it, reprehensible.

Our clients are on fixed benefit incomes, and many will remain so for the foreseeable future - it is our job to ensure that we maximise that income to the best of our ability and by whatever means we can within the law - it's not just about money though, it's also about quality of life. Unless you've been unemployed and tried to live on the basic benefit, you cannot begin to imagine how isolated you become from the rest of the world, and how quickly your self esteem evaporates.

That's why this job is almost unigue in that it's one of those that you either love or hate - there's no middle road where you can do just enough to get by.

Apologies for the length of posting, but like Phil I was somewhat taken aback by the question..................

I appreciate the strength of response however I feel my topic was worded clumsily.It was not my intention to dismiss the use of all tools available nor to be considered acting in a reprehensible way.
I was trying to gauge the extent to which other agencies feel that a reasonable approach, using all the facts, has been replaced by a purely legalistic one and whether this is now felt to be of more importance than the aid and assistance provided to the client.
This is intended as a reply to all and I hope that it will be seen as such. As an agency we have always actively discouraged judgmentalism so I cannot agree with one comment I noted which was to the effect that clients should be supported when it is the belief that they have a good chance and are deserving of an award, surely all clients deserve support.As an agency we have developed,over many years,an excellent reputation with both TAS and client alike as we place emphasis upon reasonable argument and the feeling that the clients opportunity to present as an individual human being, with individual problems that cannot be judged by slide rule,and to have a clear understanding of the process and their place in it is of paramount importance. This not about raising our chins an inch, but it is all about raising the clients self esteem and belief.MIKE B.

Isn't it about making sure that the rule of law and due process is maintained?

Which is why we all have such fascinating, irritating, frustrating and rewarding jobs!- because what we consider to be rule of law and due process seems to be at odds with DM's etc - they, like a lot of other people, too often lose sight of the fact that we are dealing with real people with real problems..........

You only have to look at the statistics for appeals - on average throughout the country 60% of all DLA decisions are overturned at represented Tribunals: the quality of decision making is a major concern to the DWP as well as us.

As soon as one abandons securing the best for the client on the basis of the most helpful interpretation of the law and instead relying on "commonsense", you abandon your rights perspective. We may as well all pack our bags and leave it to the DWP and other welfare bureaucracies whose functionaries can find all sorts of common sense ways to justify their actions.

If applied by decision making bodies, so called common sense leads to all manner of injustices and unaceptable informal practices which is why we have a legal system in the first place.

I'm also reminded of the title of a critical report by Shelter a few years ago about the poor standards of HB Review Boards in rural Devon which was a quote from the Chairman of a Board who said, "We don't do things that way here".

What is common sense to one person may well be illogical to another. If commonsense and logic were simple and indisputable, numerous philosphers would not have written reams about it. The concept is also culturally biased.

The only time a "commonsense" approach may be helpful (and acceptable to judicial bodies), is if you can use it to get an everyday interpretation of legislation which is favourable to your client and where the wording of the legislation is unambiguous - the literal rule of legal interpretation.

We have a solicitors' rota at our bureau and it always tickles me if an adviser refersa client to a soliciotr and portentously declares "It's about a legal problem". I wonder if the work the rest of us do is illegal then??

There is a doctor at a local hospital who decides whether they think any given claimant 'deserves' to receive DLA and will write a report sent to them on the basis of their decision.

I always used to think that there were two broad types of welfare rights adviser - people who went and got the facts to fit the law they knew and people who went and got the law to fit the facts they already had. I then realised (I think I was in the former camp by the way) that of course a decent adviser is one who strives to do both things depending on the nature of the problems presented, the client presenting them, and the resources and time available. It now appears that there must be a fourth type of wra - one who just acts in a commonsense and reasonable way.

I have actually seen that latter type of adviser in action. If they deign to they will write in a letter saying it would be jolly nice for Mr Smith to get DLA. Then if Mr Smith - by way usually of a tribunal acting inquisitorially and looking at things properly (ie a once in a blue moon job) - happens to get an award they put their chins a good inch higher and move onto their next Good Deed, not advising their client at all about the despair and despondency involved with pumping the correct level of arrears out of the DWP, let alone the implications on DP, SDP, CA, CP, TC and all the rest of it.

If you don't know section 72 of the SSCBA I really don't know how you can advise people on DLA.

Whilst I appreciate your response I would hasten to point out that this was not a question of DLA alone and your presumption, albeit a little comic, to set yourself the task of defining the types of WRAs was a little harsh in the concept of the question.

Surely any broad brush approach is likely to fail. All appeals concern law to some extent, however it may be as little as considering the basic qualifying conditions eg for DLA. The rest of your argument may seem like little more than 'common sense' rather than stacks of Commissioners decisions. However, an overpayment argument may be entirely made up of 'legal' arguments.

Advocacy at Tribunals requires a variety of skills and one skill is to decide which one of them to use.

PS, I certainly recognise the issue of people being referred by advisers for 'legal' advice...

One further point that I feel should be amde and is one that I get levelled at me and colleagues who adopt a rigorous "technical" (legal) approach is that tribunals don't like it, and MikeB makes that point as well.
Well if they don't then the answer is to make them like it by appealling their decisions to the Commissioner on those points and let them know that you will do it.

I think that the original poster has the answer!

I originally mentioned DLA as an example because that is the one that occupies most of our time, and the one that has produced so much case law over the years.
Whilst it is the client's appeal, and quite rightly he/she has the opportunity to put their case, nevertheless they are up against a presenting Officer who will know and use the law to their advantage. This places the client in an impossible position of not being able to argue his case on a level playing field. the number of unrepresented appeals that are won (20%) are witness to this.

They are also up against tribunals from time to time who regard the "EMP" as a specially trained infallible professional, whose report is often accepted in preference to any other evidence. If you have an EMP who also sits on a tribunal, then this view will be reinforced. I would have thought that commonsense is exposing the more illogical aspects of the DWP case and using case law and regulations to do it if necessary.

I note that this thread has touched something of a nerve: that wasn't the intention I'm sure, but the discussion has shown the depth of feelings that Tribunals can generate, and the genuine enthusiasm that WR reps have for the job.......

With thanks for the further responses.
My original question,though poorly put I admit, was simply how other agencies balance the complex needs of the client and their feelings of injustice, having in many cases been made to feel like liars and frauds, and the obvious need to explore all avenues available as reps with regard to law and statute.
It is very true that these are invaluable tools , but as a previous reply states a thorough knowledge of the criteria that can generate an entitlement to a benefit can be what is needed without further recourse, and commonsense can be a tool when used to establish the errors within both DWP submissions and, of course, the EMP report, that sadly is often viewed and weighted as another colleague suggested, so both therefore need to be systematically picked apart to identify the inconsistencies. This ,of course, is the reason for a well considered submission which will hopefully ensure the balance needed for natural justice between the DWP presenting Officers argument and the Appellants case.
Of course there are cases that must be based on law and precedent and these must be pursued with vigour and accuracy at hearing and beyond, but do my colleagues also find that a great majority of cases are based on simple errors or wrongful interpretation that can be addressed in a straight forward manner that I appear to wrongly call the application of common sense.

Reminds me of my old law tutor who said; " If you want fairness or justice dont get involved with law, as the law about controling public order and the public purse not individual fairness"
Was he right or wrong? Personally I think he was spot on.

Or the search for truth being a blind man in a dark room looking for a black hat which isn't there.

I'm actually very sympathetic to Mike B; he's being very pragmatic because I think that the majority of chairs just want us to present common sense arguments and to leave any flash stuff to them (if appropriate, and they'll decide when it is, and it very rarely will be).

I think this thread has to be read in conjunction with the one on conduct of the panel in tribunals and the one on the new format DLA form. The move as I see it with my paranoid glasses on is towards the chair ruling the roost and very much standing in the shoes of the DM who sees things in terms of the DMG and the DMPG if he or she can be bothered to look at the latter, and any medical questions immediately referred to SEMA and what they say goes.

It seems that caselaw and even the statute (ever tried to draw a tribunal's eye to 'as husband and wife' in LTAHAW cases, rather than the signposts of R(SB) 17/81?) don't really count any more.

I thought the reference to the blind man in the dark room was looking for a black cat ......

Anyway, what an interesting discussion. I am not sure that there are really two approaches to tribunal representation - legal or commonsense. It seems to me that there is only one valid approach, and it involves both. Any advocate needs to be clear on a number of things in the appeal:

- what are the issues of law the tribunal needs to decide?
- where is the burden of proof?
- what facts does the appelant need to prove to satisfy the legal tests?
- what evidence is there to convince a tribunal about it?

Clearly it will vary enormously between appeals as to how much time needs to devoted to which part. In a good many appeals there is little or no dispute about the legal tests - in which case packing your submission with loads of detailed case law references is both a waste of time, and irritating to a tribunal. Where the facts are in dispute then clearly you need to be putting effort into assisting the client to bring out their evidence, obtaining and presenting supporting evidence, and addressing unhelpful evidence head-on. In my experience (as both rep and chair) tribunals are quite prepared to disregard an EMP, if the weight of the evidence is on the other side. It is often a matter of how you argue that.

Equally it is vital to present legal argument - properly referenced to regs and caselaw - when that is necessary to the issues in the appeal. Some reps do tend to adopt a scattergun approach, fill the submission with loads of references, apparently in the hope that one of them (or just the sheer weight of cases) will win their argument. Detailed legal argument is vital, providing it is relevant to the issues in the appeal. (I do find it a bit irritating when reps always quote their favorite commissioner's decision - which was one of their own cases - whether it seems immediately relevant or not!)

Some reps, whether they have presented a detailed submission or not, then come along and say practically nothing. I appreciate that simply holding the client's hand may be valuable, but so is a bit of advocacy to emphasise the stronger parts of the client's case, deal with the weaker parts, and explain to the tribunal why they should make the decision you want them to make.

I think I am starting to ramble, and sound like 'disgusted of the Appeals Service', but to finish, it is not a choice between law and commonsense. We are operating in an area of law more densely packed with regulations and caselaw than probably any other. Obviously you have to start with the law, but some commonsense in how you present the case and the evidence is quite useful too.

Simon Ennals

Sorry Simon, cats and hats have completely different meanings under s.137 of the SSCBA...

I do think you are on the verge of sounding like 'disgusted of the Appeals Service'. I don't know what hat (or indeed, cat) you wear as a rep before a tribunal, but I assume that the illustrious and well respected name of your company will be there, and in my opnion that will make a material difference to the way you are treated.

As I said in my last post in this thread I think you need to read the thread on conduct of tribunals with this thread to get a better flavour of what is under discussion here.

(Particularly in DLA cases) As an unqualified rep it can be very daunting to quote even the most germane caselaw at an oral hearing. To sit in front of a legally qualified person and quote the law when you are unqualified yourself is not as easy to do in practice as it may look on paper. And the reasons it's harder with DLA are many - the inherently more caselaw-based than statute based nature of the benefit, the short time slots, the length of time the panel spend questioning the claimant, the number of them. And ultimately s.12(8)(a) of the SSA surely counts - if it's there in writing the tribunal have to consider it.

If you argue in writing that HRM and MRC apply and the tribunal only ask very detailed questions on those subjects and raise all of the points you intended to raise, and moreover spend over an hour doing it when you came in half an hour late, what is the point of detailed further advocacy when you already feel that they want you out of the door? I might in that instance spend twenty seconds summarising the relevant points at the end, and if the tribunal had not asked questions on the relevant subject I would spend much more time, but I would have that time because they wouldn't have used it all up asking questions.

I'm sure we actually totally agree on everything Simon, but if as a chair you are annoyed by a rep who doesn't say what they want and why they want it, can you not see how galling it is as a rep to have sent a clear concise submission in weeks beforehand only to be asked when you go in "Well Mr Fisher what are you arguing for?"? It only makes you feel that the chair hasn't read what you've written at all.

And those poor cowed unqualified reps who come before you and say nothing may well be saying nothing because when they've appeared before other probably much less sympathetic and patient chairs and have raised points or tried to debate or endeavoured to make sure that the voice of their client is properly heard, they have been treated with withering contempt, and their written testimony ignored as well. With all due respect, you will never have been treated like that by an unsympathetic chair, because of your position.

I'm not meaning to sound like 'disgusted peasant from the sticks', and I'm sure we do agree.

Having read Simon's post, I actually agreed with it, though Andrew now makes a good point.

At TAS, I represent LA's, (benefit claimants mostly in the county courts). As presenting officer, I find it very frustrating when a Chair and the claimant's 'legal' representative (Barrister, or Solicitor) discuss points of law, in their Latin Phrases. One of the first of those legal points was made against an argument I was putting forward at one of my first TAS’s a few years ago, and the reply to my argument was; "that point is de minimis". What what what??? I thought. The Chair and the Solicitor concerned, launched into various other legal argument, (using Latin Phrases, naturally), with both Chair and Solicitor laughing and joking with each other as if they were on a Sunday fox hunt. I sat there like a lemon…

I made a point of researching de minimis, oh and also the main thrust of the Woolf reforms, making access to civil justice easier to understand… (!!!) but I should not have had to do that, what about the benefit claimant? My experience of Tribunals is that they are ‘easily impressed’ by legal qualification, (and more so, Barristers’ over Solicitors), sometimes bordering on the legal definition of bias. Undoubtedly, having ‘rights of audience’ carries with it more than just having access to text books, and lawtel/butterworths etc.

I think we are not really disagreeing, and I agree that some tribunals may not be that rep or claimant friendly sometimes. Incidently, I did spend from 1978 to 1995 representing as an 'unqualified' rep before reaching the dizzy heights of soliciting, so I am not as totally insulated in an ivory tower as you might think! I have been treated with, I suspect, just as much 'withering contempt' in my time as you, although hopefully neither of us has so much in recent years......

Simon