How many days before Appeal do you have to send Submission/Evidence?

The rules protect you regardless of how cumbersome or unwieldy your submission is. Brief subs that can be read in 5 minutes ar usually OK. I was laid into by a PO on one occasion when I submitted a sizable submission including quite a bit of case-law at short notice, as he hadn’t time to read it. I said sorry and the judge adjourned the hearing.

the one thing I will say on this is that the overriding objective of any Tribunal is effectively to ensure that they make effort to get to the correct decision or ‘do justice’. They can, and do exercise some (reasonable) flexibility when interpreting rules. I’ve had my ear bent for late submissions, and in the alternative I was once thanked for an ‘insightful’ submission I submitted by email over a bank holiday weekend for a Tuesday afternoon hearing. Evidence I send in as and when I have it in order to give the opposition time to look at it, and to give them the opportunity to pull out, or not, as the case may be.

There’s a certain amount of hypocrisy involved in this and what is acceptable will vary on a case by case basis. Over 29 years my rule of thumb is that I can get away with a single additional document on the day if it is pivotal; doesn’t run to more than 3 pages (as an absolute top limit); is from a single source and I produce copies for the clerk; PO and all the tribunal members and, more importantly, I have a reasonable explanation as to why it is so late. If any of that is missing then you’re looking at an adjournment plus a possible slap on the wrists.

So, for example, if I were to produce a submission on the day of that length then I would need a damn good explanation as to why it was so late and why it had to be in writing. If I submitted two pieces of medical evidence (a 2 page and a 1 page) then both would have to be absolutely critical in both of them to justify the lateness of 2 pieces of evidence.

I refer to hypocrisy on 3 fronts really:

1) The interests of justice are often best served at 10:00am hearings where judges are funnily enough much more willing to buy into late admissions than at 3:30pm! Funny that.

2) I have had numerous informal conversations with judges, DQTMs and even some of the medical professionals over the years and a judge standing up in front of anyone or putting in writing that they receive their little grey packets 14 days before and occasionally later is laughable. I can only comment on the North West but as recently as yesterday I was talking to a DQTM and they were describing a scenario in which some papers arrived in advance; almost never in chronological order; some don’t arrive at all; some arrive incomplete and some (and not just late evidence) arrive on the day of the hearings and after they’ve left the house.

The pretence at administrative competence is hugely entertaining but simply not true. Knowing this alone should be an encouragement to think very carefully about the approach to last minute stuff. I have been painfully aware that it was obvious on more than one occasion that when I handed in my “late” evidence at the CJC in Manchester it was often the first piece of paperwork the tribunal had received. The tell tale sign is that a set of papers are “borrowed” from a clerk or even a PO and then blank notes sheets are spread randomly far and wide across the table to disguise the fact the tribunal are working on one set of papers.

3) I always encourage staff I train to think really carefully about whether a written submission is needed. For sure some complex issues need it but as a rule of thumb it’s rare to find an appeal that can’t be boiled down to about 3 key points.

Now I’m sure we’ve all been to TUGs or meetings where our regional judges (and this is NOT a NW reference as I have worked in other areas and seen this) have emphasised how much they value a representative as it aids what they do and how a well done submission is often the first thing they will read. I personally think this is a somewhat (albeit probably innocently) naïve perspective that fails to recognise what goes on in the field.

Many judges and members despise reps. and believe they are inherently liars. Few read written submissions or ascribe them any value at all. Indeed increasingly it’s not obvious they’ve been read or digested at all.

I am increasingly bored with 2 specific scenarios:

a) the appeal where the judge minimises rep input at the outset and any attempt to direct the tribunal and help them avoid a whole pile of irrelevant questions is dismissed with the “You’ll get your chance at the end”. Frankly it’s an embarrassment to the Tribunals Service and any concept of justice. The look of irritation when the whole tenor of the appeal changes in the last 5 minutes because I finally don’t get told to shut up and wait my turn leads to endless poor decision making.

b) the appeal where a written submission is not only ignored on the day, even when I repeatedly reference it during the hearing, but also fails to make it into consideration in the statement of reasons. This is a growing trend and, no matter what judges at regional level may think is going on, there is a trend towards contempt of reps. and their subs. which helps no-one.

Over the past couple of years I have had to take multiple cases to UT where the tribunal have made findings of fact over indisputable factual matters (not, for example how far someone could mobilise) dealt with in a written sub where the tribunal have cited as fact the exact opposite of the sub. Embarrassing doesn’t begin to cover it. UT judges always comment on it but find another reason to over-turn the FTT so as to not wholly embarrass their colleagues in much the same way they’ll always avoid a breach of natural justice issue, no matter how valid, if you give them something else to bite on.

Apologies for the lengthy rant. Needed saying IMHO.

Haha… more great responses. Thanks again to everyone!

Agree with much of Mike’s post, but take issue with much of it too.

I think there’s a great deal of regional variation (not a good thing, the quality of justice shouldn’t vary depending on where an appellant lives) in these things;

1. My experience is that that tribunals rarely make a big issue of a sub and evidence being presented a couple of days before the hearing, the day before or even on the day. Obviously, I try to get it done as soon as practicable, but pressure of work and the arrival of last-minute evidence* often means we’re pushed to the wire. I think two factors have contributed to this;

- the increasingly quick turn around between MR (it’s not unusual now to find them being done within a week - and 5-6 weeks appears to be the longest we’re having to wait) and appeal (DWP subs are arriving within a month of the appeal being lodged) and hearing date.

- the fact that significant numbers of FtT judges were recruited in anticipation of a greater number of appeals and the backlog in the DWP processing appeals means that they often don’t have huge numbers of listings, with the result that a hearing date follows on in fairly short order from the appeal being lodged.

Not so long back (and before MR when you could weigh in with an appeal straight away) it was not unusual in Central London to have to wait 6-9 months for a listing. The whole process (including MR) is now frequently taking no longer than 3 months. And I think most tribunals appreciate that this in itself has put added pressure on representative organisations, so there’s a greater degree of tolerance.

2. I have had the occasional slap on the wrist for a late sub - almost always from the more newly recruited judges - the same ones who make a point of insisting that you don’t interrupt (even to clarify a misaprehension about the case or to rephrase [and I mean rephrase, not lead] a question the appellant has patently misunderstood). I apologise for lateness, but otherwise take it in my stride - worst case scenario is an adjournment.

3. Whilst I take Mike’s point re written subs often being superfluous, I always do one - for reasons he’s identified elsewhere in his post. If my sub deals with an issue which is relevant and this is then ignored or entirely misunderstood in a statement of reasons, I’m home and dry at the UT (more frequently I’ll get a set-aside when applying to the FtT for leave). But without that written sub, I’ve no way of establishing the tribunal’s failure to deal with the issue….

4. Our senior judges are very good. And over a long period of appearing in front of them, I like to think there’s mutual respect - if I need to give evidence of my own experience with a client, I know it will be believed and they know I would never abuse this. It does not work the same way with the newer judges, but what I find is that the poor judges either improve or don’t last. Regardless of any attempts to save tribunals’ blushes in UT or FtT set-aside decisions, these do get fed back and judges who are constantly overturned either never earn their ticket to sit alone or are eventually shipped out…

5. Though I’ve had the occasional experience that’s demonstrated otherwise, subs (even very late ones) are read and properly digested - in and outs (i.e. ‘we’ve read your submission and agree with it Mr xxxxx. Mr yyyyy - we’re allowing your appeal. We assume that this is ok with you Mr xxxxx? If that’s so, we’d just like you to wait outside for 5 minutes whilst we type up the decision) are quite common - 3 out of the last 5, I think.

I would say my experience reflects that of Past Caring rather than Mikes. I do think the judges in our area respect and value the work of the reps and especially written submissions that state very clearly what award you think is appropriate for your client and why (ideally backed up by evidence but I agree this is increasingly difficult given the short timescales for MR and then appeals). I have never been reprimanded for a late submission altho have do always explain why this is the case. I would never trust a close to deadline submission/evidence getting to a tribunal venue in time and would always double send to TS and the venue direct.
One significant issue at present is that we have rarely had a chance to see all relevant paperwork until a few weeks before a hearing. Also we are increasingly picking up appeals at a very late stage - esp for PIP where people have done their own claims and MR and only panicked and come for help when they are at tribunal stage and even when they have got a date. Getting evidence can then be very difficult unless someone has a very supportive (and often very angry)  GP or other professional working with them.
Having said this I actually like doing urgent appeals work when it is necessary and there is clearly a case to answer (as long as I can fit it in).

I wonder, is there any particular way of dealing with the problem of having too much evidence?

I’ve had some appeals where I’ve obtained full record prints from the DWP. This has proved to be helpful in coming up with evidence from the DWP’s own records which, for whatever reason, has been overlooked by the decision-makers. However, it does mean I have scores or hundreds of pages of computer print-outs, some of it in A3 format on a continuous running spool which is a pain to photocopy. And also CD recordings of phone calls. I have been sending in what I believe are the relevant documents (and yes, I’m trying to be conscientious about not leaving out things that may not support my client’s case).

In one hearing, when it became evident I was the only person present to have had access to the full print out, and the PO refused to comment on the pages I had presented “out of context”, we have adjourned for a few months, so that the DWP can produce it for themselves and the panel.

Is it better practice to just routinely send in everything I’ve got, while highlighting what I think is pertinent?  That seems to risk drowning them in irrelevant paperwork.

I absolutely accept that, as “past caring” says, there are, sadly, huge regional variations. As a rep. in other areas the experience as you describe it was totally my experience but certainly in Greater Manchester it is a routine and increasing issue.

I too find myself doing written subs not merely because the case has any particular complexity but simply because one can no longer trust tribunals to be familiar with the papers and it’s an open door to UT. The sad bit is not only that I and others feel this way but that regionally such applications are neither set aside nor given leave to appeal by Liverpool. Even in the case I alluded to previously, where my sub had a plain simple factual assertion completely misquoted by the judge, leave to appeal was refused locally. So, I’m either incompetent in my detailed identification of errors of law (and I’m always open to the possibility) or applications to UT are also not being read properly.

Given what I said earlier about TS admin and the distribution of papers it may well be the case that, at the time such applications are considered, retrieval of the relevant papers proves beyond them in terms of timeliness. That’s the only explanation I can offer in terms of why such things are routinely refused.

Can indeed see where Past Caring and Mike are coming from - I should have said in my first post it is usually as well to turn up with additional copies of any submission if you intend to put it in on the day.

Some of the newer ‘Judges’ and members are prone to open up with taking direct evidence from the client with the ‘dismissive you’ll get your chance in at the end’. This can lead to a nightmare just as easily as resulting in the client keeping to the point, and answering the question they were asked.

I must say though I do try to get written submissions in front of the tribunal asap in part because it helps order the arguments and evidence, but also to make sure all the relevant points are there so that if the appeal is not successful leaves more scope to look to set-a-side or upper tribs if the points are not all covered.

Think its got to be horses for courses and you adapt your tactics and presentation to the Tribunals you work with. And the failings and foibles can come from both sides of the table/bench I had one fellow rep who was known for the fact that every one of his clients seeking unforeseen agg of a chest disease/condition were ‘no longer able to avail themselves of social events due to the smoky atmosphere in cinemas and pubs/club way after the smoking ban came in.

Jon (CHDCAB) - 20 May 2015 08:09 PM

I wonder, is there any particular way of dealing with the problem of having too much evidence?

I’ve had some appeals where I’ve obtained full record prints from the DWP. This has proved to be helpful in coming up with evidence from the DWP’s own records which, for whatever reason, has been overlooked by the decision-makers. However, it does mean I have scores or hundreds of pages of computer print-outs, some of it in A3 format on a continuous running spool which is a pain to photocopy. And also CD recordings of phone calls. I have been sending in what I believe are the relevant documents (and yes, I’m trying to be conscientious about not leaving out things that may not support my client’s case).

In one hearing, when it became evident I was the only person present to have had access to the full print out, and the PO refused to comment on the pages I had presented “out of context”, we have adjourned for a few months, so that the DWP can produce it for themselves and the panel.

Is it better practice to just routinely send in everything I’ve got, while highlighting what I think is pertinent?  That seems to risk drowning them in irrelevant paperwork.

I don’t think we ever answered this.

I think that sadly the answer is that it all goes in. Many years ago it was acceptable to make an argument that a piece of evidence should be excluded. In recent years I think it’s fair to say that the view is that all evidence should be seen,  even when potentially obtained illegally, and then it’s open to a tribunal to give it the relevant weight.

When I say obtained illegally I’m not talking about theft. Rather I mean where, for example, DWP have commissioned a medical report because an alleged doubt existed where none in fact did. There are a host of other scenarios to which that phrase could apply also.

I’ve never been 100% comfortable with the recent approach as tribunals ability to weigh is variable to say the least as we know in terms of the ridiculous number of decision that “prefer the evidence of the Examining Medical Practitioner because…”. However, it does appear to be what we’re stuck with.

Interesting to see other people posting similar thoughts around being asked to shut up and wait to the end to the detriment to the whole process.

Ditto the leading questions stuff. It’s ever so slightly depressing to sit in a tribunal and watch three people completely fail to notice that the appellant has not understood their question but has attempted to give an answer that either relates to what they think they heard or to a completely different question. Attempting to rephrase the question is obviously sensitive territory but I personally resent being told I am asking a leading question by a judge who has just sat through 40 minutes of a medical professional actually asking leading questions.

One day (I dream about this) a judge will thank me for rephrasing a question in a version of English that is neither Estuary or Oxbridge or Stockbroker belt. One day maybe the medical professional too!!!

I am quite robust in my response when that kind of thing happens - had one case late last year where the judge threatened to exclude me from the hearing after I attempted to intevene to explain that a particular question asked by the medical member was premised on a complete misreading of the appellant’s statement in their DLA claim form as to their walking ability - i.e. I didn’t shut up the first time I was told I would have my chance at the end.

When we did arrive at my opportunity, I went through it again step by step - apologised for the interruption, reminded the medical member of exactly what he’d asked, drew attention to exactly what was said in the claim form, pointed out that my client’s response had been entirely consistent with what was said in the form, that the 5 minutes spent by the medical member (who, to be fair, is pretty decent and was rolling his eyes at the judge’s behaviour) when trying to get the appellant to admit to the inconsistency was time wasted that could have been avoided had the tribunal allowed me to play the role that I was there for - i.e. to assist it. And made sure that this went into the record of proceedings.

The worry is, of course, that a less confident/experienced rep wouldn’t necessarily have felt able to do this - I know it took me perhaps 2-3 years of regular repping before I felt confident in dealing with that kind of nonsense.

Mike Hughes - 29 June 2015 10:53 AM

Jon (CHDCAB) - 20 May 2015 08:09 PM

Is it better practice to just routinely send in everything I’ve got, while highlighting what I think is pertinent?  That seems to risk drowning them in irrelevant paperwork.

I don’t think we ever answered this.

I think that sadly the answer is that it all goes in.
...

Thanks. This is what I thought to be the ‘correct’ answer. When it comes to record prints, if I have to produce one in future I may try asking for a direction that the DWP produce the full print for all parties, rather than do it myself, I hope that’s not being cheeky.

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Back to the original question: I’ve had a couple of cases just recently where the tribunal’s response to the appeal bundle being produced is to set a 21 day time limit for any “further” submissions or evidence. Seems a bit tight.