Death of appellant - removed as rep?

Just had a phone call from a clerk at HMCTS. Apparently following the death of my client I have been removed as rep - she could say nothing more than ‘this is their procedure’. It’s already done, apparently and there will be no directions notice sent out. DWP will be invited to appoint someone to take over the appeal - and they may choose to appoint me as rep.

Now I know they have (perhaps unconsciously) reg. 30(1) of the Claims and Payments Regs in the back of their minds - this allows, on the death of a person who has made a claim, the SoS to appoint a person to proceed with the claim, supersession, revision or appeal. But two things;

1. It is a may provision, not a shall.

2. Rule 11 (4) of the Tribunal Procedure Rules provides that “Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.”

so I see no need for this.

It’s particularly frustrating because,

- 1st hearing in August adjourned for further medical evidence

- client suddenly became unwell (it’s a PIP appeal around mental health problems - his physical illness and death came out of the blue) and admitted to hospital.

- HMCTS notified immediately of hospital admission - request that hearing not be re-listed until discharge ignored.

- client died end of November. Although we (me and client’s wife) are ready to go, hearing in December postponed. I am told on phone day before hearing this because HMCTS informed that wife had gone abroad. Told them this wrong - she had gone away to bury husband in country of origin but this was for less than a week and she’d already been back for a week.

- I make follow up directions request for an expedited hearing. Reason I wanted this was that wife (my new client) was now faced with drop in income, becoming a lone parent but having to claim JSA (though 4 school age kids, youngest had just turned 5) and being hit by benefit cap (husband had been in support group for ESA). Request ignored.

So no communication at all until today.

I am also told that HMCTS will give SoS 6 weeks to respond/appoint someone - if this does not happen, case will “go back upstairs to DJ - they may decide appeal should proceed or should be struck out”.

Where do they get this from?

This appears to be the normal procedure.  Your new client, the widow, has to apply to the SofS to carry on with the appeal.  Once that has been agreed you have to send HMCTS a mandate from your new client for you to act as rep.  It’s also helpful to tell them that you already have the bundle, otherwise you’ll get another copy. 

Your late client’s appeal ended with his death.  The SofS may appoint someone to take on the appeal but if there is no appointment that is the end of the matter.

I understand that, but I’m asking why?

Reg. 30 (1) is drafted in terms that indicate only a discretionary power is conferred, not a mandatory one. And in any event, how does that sit with rule 11(4) - there’s nothing in that rule (which empowers a representative to do anything permitted or required by a party to proceedings) or any of the other Tribunal Procedure rules to indicate that the representative’s role ends with the death of the appellant. In fact, the rule is drafted in terms that could be taken to imply the opposite…..

I think there is some stuff on this in Tribunal Practice and Procedure - I’ll have a look tommorow.

The gist though is this:
*Someone who is dead does not have capacity to begin or continue litigation. (see e.g. Kimathi v FCO [2016] EWHC 3005 (QB))
*Therefore when your client died, they ceased to be a party to proceedings
*Your appointment as rep ended because it was predicated on your client being a party (per rule 11(1)) which they are no longer
*(Alternatively, your appointment didn’t end,but became practically worthless because your client ceasing to be a party means they are no longer entitled to documents and no longer entitled or required to do anything)
*The natural course of things is for the appeal to be struck out because it is no longer valid - being pursued by someone who is not entitled to pursue it. Unlike the civil courts (per Part 19.8 of the CPR), tribunals have no power to appoint somebody to begin or continue an appeal on behalf of somebody who is dead
*However, reg 30 operates as your safety valve because the SoS does have that power and may use it to save the appeal.

Its frustrating because you might think it ought to be a simple administrative thing - but legally everything has changed.

The usual practice in social security law is that the appeal is abated.  In legal terms abatement can either mean extinguishment or suspension.  Regulation 30, in practice lends to suspension rather than extinguishment and, to be fair to tribunals and the DWP, this is the course usually pursued and the DWP has usually been perfectly willing to find someone to continue the proceedings.

it’s no different in ordinary litigation. if a party dies, the case gets stayed until someone is appointed to represent that party.  usually that will be the personal representative (which may or may not be the widow/widower).  that’s because only “live” persons can bring/pursue cases.  exactly the same in tribunals.  your new client needs the DWP to appoint her as representative to carry on the appeal (assuming, of course, that it isn’t academic as a result of the death, presumably it won’t be).  it’s not the rep that’s been removed, strictly, its that the party has died and therefore there is no one to carry on the case

Dunno - eye off the ball on my part here. I ought to have known this stuff. Though in fairness, while I’ve been at this game just over 20 years, this is the first client I’ve had die whilst working with them - and can’t recall any discussions with colleagues where the issue has been what happens when a client dies with the appeal undecided.

But cheers everyone - stopped me making a further fool of myself with the tribunal.

Part of this is sheer frustration at what’s happening with HMC&TS; at present - the inability to even acknowledge communication outlined in the OP is far from unusual. And increasingly arbitrary stuff is happening.

Had a phone call last week on the morning of a hearing to tell me it was postponed - because the judge had decided an interpreter was required. Clerk who called spoke such heavily accented English I had to get him to repeat everything three times (the client speaks far better English). Asked on what basis judge had decided this? Something in GP records about using an interpreter (this from 3 years ago). Explained I had consciously not asked for interpreter on SSCS1 because none needed - I had no problem taking instructions from client. Was there assumption going on that East European name = poor English? Clerk calls back and tells me decision already made. Now even if I my assessment of the level of the client’s English was wrong, why wasn’t I given the benefit of the doubt? I’ve met the client - the tribunal hasn’t. And if postponed only on the day, there’s no saving to HMC&TS; - everyone still has to be paid. In fact, if the cost of a wasted hearing was a factor, surely the hearing should have gone ahead - because just possibly I might have been right about the client’s ability to participate in the proceedings. The fact that we were listed for the last hearing of the day couldn’t possibly have been a factor, could it?

past caring - 26 January 2017 11:01 AM

Had a phone call last week on the morning of a hearing to tell me it was postponed - because the judge had decided an interpreter was required. Clerk who called spoke such heavily accented English I had to get him to repeat everything three times (the client speaks far better English). Asked on what basis judge had decided this? Something in GP records about using an interpreter (this from 3 years ago). Explained I had consciously not asked for interpreter on SSCS1 because none needed - I had no problem taking instructions from client. Was there assumption going on that East European name = poor English? Clerk calls back and tells me decision already made. Now even if I my assessment of the level of the client’s English was wrong, why wasn’t I given the benefit of the doubt? I’ve met the client - the tribunal hasn’t. And if postponed only on the day, there’s no saving to HMC&TS; - everyone still has to be paid. In fact, if the cost of a wasted hearing was a factor, surely the hearing should have gone ahead - because just possibly I might have been right about the client’s ability to participate in the proceedings. The fact that we were listed for the last hearing of the day couldn’t possibly have been a factor, could it?

Is this at Fox Court? I’ve had a couple of very similar situations with clients whose English is very much their second language but is still perfectly adequate. One in particular was accompanied by her bilingual teenage son who reported that the issue was not his mother’s understanding of English but the style of questioning from the medical member, which the son was struggling to understand himself.

Ironically the only time I’ve requested a set aside around language issues it was because of problems with an interpreter not interpreting accurately.

SamW - 26 January 2017 11:24 AM

Is this at Fox Court? I’ve had a couple of very similar situations with clients whose English is very much their second language but is still perfectly adequate.

You’ve got it in one.

Different part of the world but I’ve had a few of these over the years. Where it becomes apparent an interpreter is not needed but the name or something similarly stupid might suggest otherwise I have tended towards a belt and braces approach and have spelt out on the appeal and the enquiry form (if I ever get to see it) that the client does not need an interpreter and why not, rather than just ticked the box.

I suspect the approach of tribunals is driven by a painful awareness of

- clerks conspicuous failure to book interpreters or the correct interpreters from time to time.

- a steadily increasing number of reports of cases where interpretation was an issue but the tribunal went ahead anyway and then got pulled by UT.

- the risk of an EA 10 claim from someone who may be in multiple protected groups. Remember, potentially unlimited damages. Tends to induce paranoia and focus the mind.

- yes, Friday afternoon. That too. Well known judge in GM used to find a way to adjourn or decide any case in danger of going past 2:45pm on a Friday because they met their partner in what used to be Kendals for afternoon tea! Got some great results out of that once I knew the game :) 

I once had the opposite problem, I couldnt get the authorities to let me act as a representative, as they were convinced my client was dead. In fact they did have a death certificate provided by his family, as evidence…..

I had a valuation tribunal case with similar circumstances recently the vt just asked if the widow wanted to carry on the case and got me to confirm it to them and that was it, obviously the vt is a bit less fastidious about such issues