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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Time limited cognitive impairment, giving evidence and 2 adjournments on grounds Appellant unfit to give evidence

NCLSWRARS
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I am not sure this belongs in this section but it relates to a PIP case.

In short: Appellant has frequent seizures - upwards of 3 daily (sometimes more than 6) and stress makes them worse. On the day of the hearing, turned up and the Tribunal adjourned before hearing any evidence on finding out the appellant had a seizure in the morning, it was relisted on the grounds that her evidence cannot be trusted and further evidence was requested - under my firm protest.

Relisted for today and after 20 or so minutes the appellant has a seizure mid-tribunal. The appellant was obviously unfit following this to give evidence, although there was a carer in attendance as well - who was giving evidence and prepared to give more. Tribunal decided to adjourn, again with me leaning on them. They also wanted a report from the G.P on precisely how often the seizures happen daily and there length (the G.P hasn’t got a clue).

This is going to happen again and again and again. The process has caused more seizures from the stress generally - also pointed out to the Tribunal. I need some way to force the Tribunal to hear the case. Once I have examined the appellant and/or the carer and made submissions I’m as certain as can be that we will win, I just need the chance to have it heard.

My plan is to apply for a set-aside/amending direction to stop this merry-go-round before hearing number 3, 4, 5….

I am not going to change the hearing to paper we all know how poor the success rate is.

Power to set-aside directions is under reg 5 of the procedure rules. That leaves two questions: what is the remedy; what are the grounds?

The Remedy, options:

The next re-listing the panel must reach a decision on the evidence it has available to them

Re-list the hearing for a half-day/full day and wait out the post-ictal effects until the appellant is able to give evidence again, repeatedly if the appellant has multiple seizures.

Evidence heard over multiple days at short hearings

The Grounds:

Tribunal to make reasonable allowances/reg 2 of the procedure rules
Fair trial HRA/Common law & dealt with in a reasonable time period
Right to an oral hearing Tribunal procedure (reg 28)
Utter waste of every bodies time and the result of multiple hearings is absurd
Detrimental to the health of the appellant - stress causing more seizures.

I feel I have sufficient grounds, although discussion on that will be well received but none of the remedies appear particularly useful, are very time wasting and certainly the latter seems pretty unlikely. I am utterly at a loss as to how to deal with the case. Can any of you think of a better directions request? Another approach?

The SSCS1 form didn’t request any special measures but I don’t see that as a reason to refuse them.

Thanks,

Paul_Treloar_AgeUK
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Videolink? Telephone evidence? Domiciliary hearing request? Would any of these help perhaps?

p.1323 of CPAG 2016/17 sets out some of the possibilities. Otherwise, you’re looking to push for hearing on written evidence essentially, which is probably better than a straightforward paper hearing if they allow you to present your client’s case.

How on earth was she refused PIP if she’s experiencing fits so regularly? Aside from the well-known difficulties in enabling clients with epilepsy to secure points, one would imagine such regulatiry would throw up many issues around safety, reliability etc.

Paul_Treloar_AgeUK
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Also, following the Equality Act 2010, the onus is on the Judge and Tribunal to consider making suitable arrangements, see Equal Treatment Bench Book (2013) for some background that the Judge should already be aware of.

NCLSWRARS
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I agree, it is stupefying the claimant was refused PIP although as per usual the medical was atrocious.

I don’t think Videolink etc…will make much difference. The issue the Tribunal have is that memory etc… might impact the accuracy of oral evidence because of the effect of the seizures.

On written evidence isn’t ideal but I would certainly be willing to consider it but very few Judges as you note will allow it. I still want to examine the claimant and the carer - without that it is impossible to clear up issues around frequency and length - unless they accept my giving evidence (which they should rightly disregard as I am no more than rep).

NCLSWRARS
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Thank you for the link to the Bench book. It was extremely helpful. I’ll absorb some more of it and have a think.

past caring
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A few points;

I have some sympathy with both tribunals - adjourning the first hearing because the appellant’s ability to give accurate evidence may have been impaired because of a fit that morning is possibly understandable and also adjourning the second due to the appellant having a fit in the hearing. Whilst I appreciate that you are keen to get the case resolved, it’s entirely possible to take the view that both tribunals were coming from the standpoint of wanting to ensure that the appeal was decided fairly and justly - i.e. ensuring the appellant was able to give accurate evidence.

That is not to say that it wouldn’t now be appropriate to apply for directions that will help ensure that the appeal can be resolved at the next hearing - just saying that when you come to apply for those directions you will probably stand a better chance of getting what you’re after if the tone of your application indicates that you accept that the previous tribunals were doing their best. In effect, the application for directions is saying something along the lines of “this is what has happened previously - we accept that the tribunals were concerned to ensure the case was decided fairly and the appellant was given opportunity to present her evidence - but it is obviously a real possibility that similar problems will occur at the next hearing. What can we do to ensure that the appeal can be fairly decided (and there is not further delay) in the event these problems do recur?”

CharlieSayer - 19 July 2016 04:56 PM

I still want to examine the claimant and the carer - without that it is impossible to clear up issues around frequency and length - unless they accept my giving evidence (which they should rightly disregard as I am no more than rep).

It is entirely appropriate for you to give evidence if it is from your own experience - i.e. if you have witnessed the appellant having a seizure, you are entitled to give evidence of this (what happened, duration, effects and after effects). You have witnessed this at least once (at the second hearing) and there may be other things you have witnessed when taking instructions from the client (e.g. they might have been drowsy/confused/suffered memory problems when you interviewed them in the afternoon because they had suffered a seizure in the morning) and if this is the case you can/should say so. See CDLA/2462/2003 and PM v SSWP (IS) [2014] UKUT 474 (AAC) if need be.

There are a couple of other possibilies to the ones you’ve suggested - though you and the client will have to work out whether the first of these is practical…..

The last hearing would probably have had to be adjourned because the carer was tied up with attending to the appellant once she suffered a seizure - i.e. even the carer was no longer in a position to give evidence. Is there anyone else who provides care who could attend the hearing as a secondary carer? i.e. their role would not be to give evidence but to attend to the appellant if she does have a fit and to allow the main carer to give evidence.

If that could be arranged - and you stated clearly that you are undertaking to make that arrangement - then a request for direction (you’ll need to direct the request to a District or Regional Judge) that the next hearing must go ahead and make a decision is much more likely to be granted.

Alternatively, you can take witness statements from both the appellant and carer about the relevant factual issues and submit these in advance/along with the directions request. Make these as complete as possible and try to iron out any gaps/inconsistencies (i.e do what a tribunal would do - challenge the appellant if something appears to be a discrepancy/unlikely). State that you appreciate that the tribunal will wish to take first-hand oral evidence from the appellant and carer but experience suggests this might not be possible. Ask for a direction that at the next hearing the appeal is decided on the basis of this written evidence and whatever (possibly incomplete) oral evidence the appellant and carer are able to give.

Dan_Manville
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If it were me… if there’s evidence of the frequency of seizures during the relevant period I’d make submissions on supervision to cook, eat (if there’s a choking hazard) bathe & toilet. Chuck the recent Jacobs decision… http://www.osscsc.gov.uk/Aspx/view.aspx?id=4740 into the mix and leave my client on the couch at home.

What’s gone on at the hearings is evidence enough of the supervision requirement if it reflects what went on around the date of decision; supervision does not need to be to to prevent substantial danger, just to ensure their safety; it’s a much lower bar on my reading.

ClairemHodgson
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lots of good stuff people are suggesting.

i noted you mentioned that GP doesn’t know how many seizures client has.  presumably, however, the diagnosis is clear in client’s notes/records, and s/he is on appropriate medication, and has even been seen at hospital.  is there not something to be said for asking your client to stump up £10 to get the GP records herself and get them into evidence? 

also - is your client in support group for ESA and is there, therefore, something to be said for asking for a direction for DWP to produce those documents?

Neil
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It may be a little late in the day but I have not seen anything about a diary, but it is always good to keep a diary in cases like this as often if there is no medical attention needed why would they go to the GP, but don’t just record the seizures also record the absences if appropriate. Even at this late stage if you are arguing there is little change since the date of the Decision a diary could still be useful, in it will be consistent with the oral evidence.

Geri-G
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Does the client have a care company or is it a relative? If there are professional carers involved at all, there should be a care diary and seizure recording sheets-used them myself as evidence. Even if the client has day care of some description-they should have them.

If not, as someone mentioned, a diary should help, recording time and duration of seizure, and whether any rescue medication was required.