Hi

I repersented a client in an Incapacity Benefit appeal today.

The chair warned me after making a remark that the clients daughter helped with cooking and housework. The chair said that I should be careful what I was saying as I was acting as a reperesentive not as a witness. I replied that I was not acting as a witness, I was just providing information that my client has told myslef. The chair then said this was hearsay and was inadmissable.

Was the problem that I was talking about how a third party behaved? Am I OK saying what the client has told myself generally such as what has occured at medicals.

Thanks

Based on the info given, the Tribunal was wrong. A rep has ALL of the rights of the clmt - including acting as rep and/or witness.

Take a look at CDLA/2462/2003.

Thanks for your help Kevin

It seems like I was not wrong legally. Do you think the way I acted was inapproproiate though?

This chair has told me before that I had not complied with the regulations about another totally different matter when I had merley acted in a way that the Tribunal Service does not like.

Is it worth appealing to the comissioners as I do not think that what I said would have had a significant impact on the decision even if it had been allowed.

Yes, it's hearsay; but the rules of evidence that apply in a court case do not apply in the inquisitorial jurisdiction of Tribunals. These days even hearsay is permissible as evidence in civil courts, anyway. Tribunal can accept any evidence they like, but will then accord it due weight, so it they think it's rubbish they will ignore it!

In my experience Tribunals do prefer to get the evidence direct from the appellant - they prefer the "best", ie direct, evidence. Unless you as a rep know the information from your own knowledge - eg, in this case, you had been at the house when the daughter came round and you saw what she does - it is better to let the client give his evidence. I really can't see any rason why a rep can't give evidence of something they are qualified to give. For example, actual observations of walking ability can be really useful in DLA cases.

There can be problems if it is not clear what the rep is doing - are they saying in effect "my client tells me that", in which case let the client tell the Tribunal if he can, or "I have seen with my own eyes that"? If the rep slips from acting as a rep to acting as a witness without making it quite clear which role he is in at any given time, this is not helpful to anyone, and thus it is best avoided in case this happens.

The one absolute no-no is a rep or witness acting as an interpreter, and you will definitely get smacked down for that.

Thanks for you help ariadne2

I made the comments after the client had already given her evidence. She had not answered the questions very well because she was upset.

If the client has given unclear answers during their testimony, is it not appropriate for me to clarify what they have said?

Am I OK preparing written sumbissions with what the client has told myself?

While not departing from anything Kevin and Ariadne have said, a good discussion of the role of hearsay evidence can be found at CDLA/2014/2004.

My role as Benefit Advisor with a Housing Association means that in the course of assisting clients I have the advantage of spending considerable time with them in claim process. When representing at appeals I have been told by the clerk to be quite clear about my role of rep or witness as I could not be both, and have always felt that this 'bars' me from making any supporting statements which would be as a result of the ability to draw on the observations made during my contact with client. The replies to this posting seem to indicate that I can make statements in the role of witness as long as I make it clear I have switched roles? It can be difficult in the role of rep as the tribunal expect to hear directly from appellant what problems they experience and if limited to getting some statements clarified after potential damage, one feels it is a bit of a lost cause. If it is possible to say in the position of witness, what has been actually observed, then this could help. Hope I have made this clear!

my view would be that if, as rep, you realise your client hasn't been as clear/articulate as they should have been to set out the actual position as you know it to be, you ask questions yourself (you should be asked if you want to ask any) designed to elicit the correct answers (not leading questions of course). thus you should have taken a note of what has been said so you know what has been missed/needs clarifying. but you can't be a witness yourself. your submissions should be based on the evidence, not on what your client has told you - so for example my submissions will say "my client will say in evidence that ..." whatever it is (or refer to a statement i've put in for them, if i have...) and then show how that qualifies them for whatever it is.

As mentioned previously it is vitally important for a rep. to draw a distinction between representing and giving evidence. My experience is that there are a few occasions when it is possible for the rep. to give evidence. Claimants often submit care plans as evidence. These often reflect local authority resources. If you take them at face value it would appear that they have limited care needs. I work for adult services and so am able to give evidence as to how community care assessments are carried out, what the criteria are, what needs will be met under different heads etc., and the fact that a need is not being met is indicative of priorities, rather than lack of need.

Another example...... claimants often state ' I can walk to the end of the garden/to the gate', but when asked are totally unable to identify how far that is. As I will have visited them at home I can give evidence as to the distance. I will have first hand knowledge of how far it is. Whether the Tribunal accept my evidence is another matter, but they would have to put forward convincing reasons as to why they rejected it.