Reacting to an Adjournment Notice

We all have heard the assertion that if client can drive manual car (it is never automatic, is it? Seems automatics can be driven by paraplegic coma patients and it would not raise DM’s eyebrow), then they are perfectly OK. I have seen such comments from DWP before- but never from a Judge.

Judge has adjourned my client’s PIP hearing, because he was concerned that client may lose what he already has, in terms of PIP points. Very proper and correct.
But then the Judge commented as follows in the adjournment notice: “there is evidence that you have the cognitive ability to drive a manual car which indicates the intellectual ability to carry out complex budgeting”.

There were other, quite unfair comments, for example because my client disclosed that sometimes he takes his kids for medical appointments, this apparently indicates ability to motivate himself.

I think my client has a very strong case for Enh DL, having scored 11 points for DL.

However, I have never seen before an adjournment notice with quite extensive comments undermining client’s case.

Can I ask for this Judge to be excluded from future involvement? How can I address it elegantly? Do I need to comment on the “manual car” red herring?

Where a case has been substantively considered by one panel but ends up being adjourned, the members of that panel should always be excluded from the reconstituted tribunal unless the new panel has exactly the same membership (which is rarely realistic). This is because of the possibility of the panel members bringing with them some perspective on the case which is not their own and is not in the evidence. See SW v SSWP [2019] UKUT 415 (AAC) etc.

Its certainly the case that the ability to drive does not necessarily entail an ability to perform the daily living activities to the required standard, but I don’t think it is unfair for the tribunal (unclear why we are assuming that the comments belong to the judge alone) to draw attention to these points in the context of identifying specific reasons why his award may be at risk - this is what the case law requires it to do. The ability to drive is potentially probative of the ability to perform some of the daily living tasks and it is not something that can just be written off as a complete irrelevance.

In this case the directions notice gives a very specific basis on which the appellant’s driving ability is considered to be relevant - i.e. because it speaks to his level of cognitive functioning which is relevant specifically in the context of activity 10 - which is very different from the DWP style “you can drive ergo not disabled”. I think it would be prudent for you to respond to the point that the tribunal has made - i.e. to explain why the client’s ability to manage the cognitive tasks involved in driving is not inconsistent with his case on budgeting. The reason that the tribunal has set its thinking out like this is to give your client the chance to answer it. It may be that there is a simple and compelling answer which puts any doubts to rest - perhaps it is not the cognitive ability which is the issue but motivation say.

Further to what Elliot has said, it might not, however, be unreasonable to ask a tribunal to clarify its directions and concerns in some cases. Where there is an adjournment because a tribunal does take the view that the current award might be at risk, it isn’t enough to simply adjourn - natural justice does require the appellant knows the case they have to answer, they need to know the precise basis for the tribunal’s concerns.

The tribunal has given a hint here; because the ability to drive a manual car might be relevant to the activity of making complex budgeting decisions. I think that is probably enough where an appellant has a representative - the tribunal could have been more specific but the relevance is going to be things like;

- simple maths - ensuring you remain inside the speed limit
- more complex budgeting - being able to manage your finances in the short term (have I got enough money to put petrol in the car?) and longer term (am I able to put money aside to ensure I am able to pay for the car’s MOT, road tax and my insurance?)

If a person is able to manage those things without assistance, surely that does involve making complex budgeting decisions?

Thank you both. I understand it better now. I was a bit taken aback by the intense, if not harsh, scrutiny. I do understand the need to interrogate various issues properly but I must say I am relived that this panel won’t be involved in future.