Not sure if I'm going overboard with this query, but interested to know what others think.
Appellant goes to tribunal and is warned (before it opens) that his low + low indefinate DLA award is at risk. Ignores warning and Judge opens the hearing. Not sure what happened next, but tribunal is adjourned and directions issued.
The principle direction is that client seeks advice from a CAB or similar agency as tribunal is considering changing the award. The other direction is that same members will sit again when tribunal recommences. Client turns up at our office (never seen before) and seeks said advice. We note that there is no direction about getting more medical evidnce etc.
We look at bundle and find there is an EMP report that (in our opinion) leans towards high mobility (significant impairment), but then goes on to state client can walk 200mtrs. From experience we know that 200mtrs equates in reality to 0 -50mtrs for this particular EMP and that taking other factors into account we would normally be aiming for high mobility. However, there does indeed seem to be evidence to support low mobility (the current award). The care side is more iffy, but might scrape in at low. In other words, if we had not been influenced by the directions that is how we would have formulated the appeal.
My problem with all this is:
1. I don't know what the tribunal has already observed with regard to the appellant's mobility so at the recommencement (given the explicit statement in the directions) there is already a mindset on their part. So, no matter what our advice would normally be, what we are 'meant to do "is tell appellant to withdraw (with permission of the judge).
2. Surely, having warned the appellant at the outset, the tribunal should simply have gone ahead and done their worst. They had the medical report after all.
3. The tribunal's action changes the dynamics of the advice relationship , i.e. it will be 'our fault' if the client's DLA is withdrawn if we don't reinforce the tribunal's message.
I guess that the directions are down to the new tribunal "overarching justice" rules, but this seems rather odd procedurally.
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