I would like advice on the Appeal Service insisting that they are going to have a joint appeal for my client.
He has an Incapacity Appeal and a DLA appeal. I received notification that the appeals service were going to hear both appeals together, with the same chair and the same doctor.
I wrote to say i disagreed and asked to cancel the DLA appeal till a further date. The appeals service refused and when i called them they advised me that the District Chair had refused my request and it was quite within their rights to hear both.
I have never done an appeal for incapacity and DLA together. I feel that it is not in my clients interest and could be biased.
The Appeal is on Thursday and I am faxing a letter to the district Chair.
Help!!!!!

I don't see how the two appeals can be heard together, given that the tribunals will have to be differently constituted - Chair and doctor for PCA, chair and doctor and carer for DLA. The composition of the tribunals is set out in Reg 36(2) and 36(6) of the D&A Regs.

I suppose they could hear one of them and then immediately afterwards hear the other one, with the carer member leaving the room for the PCA appeal. However, if they heard the DLA first the carer members views would seem likely to influence the PCA appeal. If they heard the PCA first, then they would have to hear all the evidence again, and the chair and doctor would be likely to have formed views on the claimant before hearing the DLA appeal.

Either way there is a clear risk that the second hearing would be prejudiced in some way.

If they hear the IB one first (with carer member absent) then you are in the weird position of the Doctor and Chair having heard/seen evidence from that client that the carer member has not seen/heard. I think that unfair.

If they hear the DLA one first the problem does not arise- the carer simply leaves the room at that point. However, I would argue that the DLA papers then become documents relevant to the proceedings in the IB appeal- this means you should be given copies of the record of proceedings taken by the Tribunal in the DLA hearing before the IB hearing starts and a chance to go through them.

This is what I thought. Anyone with common sense would. Apparantly the District Chair made the decision not to postpone. I will just have to go ahead on the day and see what happens.
Trish

get a stay while you appeal the district chairs decision, or jr it ...?

Hi Latricia,

Not sure if this is too little too late as, from your posting, your client's 'joint appeals' were scheduled to be heard yesterday.

On hopeful basis that you might have acheived at least some 'breathing space', you may be able to back up the points made by keith and martin concerning only some members of the tribunal having heard evidence by citing CDLA/2429/2004.

In this decision Commissioner Jacobs considers whether a district chairman is entitled to chair an appeal tribunal with different members at a resumed hearing following an adjournment.

In doing so he cites the Tribunal of Commissioners decision in R(U)3/88 in which the commissioners held that it would be 'prudent' for none of the members of an initial tribunal to be included as part of a later tribunal. In that case -

' ... the Commissioners were concerned with the risk of residual knowledge in one of the members of a tribunal. That remains a concern today. If the members of the tribunal do not all have access to the same evidence, there is a reasonable basis for apprehension that there may not be a fair hearing … There is always a risk of subconscious impressions being carried over from one hearing to another. And that is sufficient to give rise to objective concern about the danger of residual knowledge.'

There is a summary of CDLA/2429/2004 in the briefcase area of rightsnet.

If the worst has come to the worst, and either of the appeals were lost, it might be worth considering whether any grounds for leave to appeal could include the issue of possible 'bias'.

i just thought people would like to know how I got on. The District Chair WW refused to postpone the appeal for either.The reasons being 'she could recall herself hearing a DLA appeal and an IB in the same session for the same appellant' She could only recall one such experience!She went on to say that in benefits other than DLA and IB there has been approval by the Commissioners and the same Chairman in the same session heard the appeals.{ but this wasn't DLA and IB]
It was a complete farce. The Chair advised my client that he should feel priviledged that they were going to hear both together and a lot of people would like this prefferential treatment!
They did not advise me that they were going to merge all the questions together and the it ended up that were asking questions reffering to both appeals in the same session.
I couldn't believe it. The lay person stayed throughout the proceedings therefore the whole thing was wrongly constituted. We went on to loose both appeals. I vented my anger on them to no avail.
I am going to Commissioners on this. I would like some help on points of law. I feel firstly he did not have a fair hearing and secondly the panels were wrongly constituted.

No doubt that a wrongly constituted tribunal is an error of law, see R 3/02 (IB). However only the IB appeal would appear to be wrongly constituted. Merging the questions relating to different appeals rather than dealing with the two appeals consecutively seems a messy route to go down. I'd be sure to get a copy of the record of proceedings along with the full reasons. Seems to me to be a lot of scope for the tribunal to make errors by muddling things up.