Forum Home → Discussion → Disability benefits → Thread
PIP Appeal- help!!
Hello
I have attended many tribunals where the client has not been present due to their disability e.g. behavioural issues, high anxiety. Yesterday I attended a tribunal where I had already written advising that the client would not be present but myself as her representative and the Service Manager from her accommodation. The Service Manager has know the client many years and sees her virtually on a daily basis. The judge adjourned the appeal and has set directions that she wants the client to attend with her Support Worker.
The client has Asperger’s, autism and a history of self harm. When anxious the intent is to self harm. The Client and the Support Worker attended a F2F assessment at the client’s home as part of the PIP application and the assessment has formed part of the appeal papers.
Can I get advice on whether the Judge has any right to direct that the client and the Support Worker attends? I pointed out the client may refuse to attend anyway and I cannot force her or her Support Worker to attend.
Can I get advice on whether the Judge has any right to direct that the client and the Support Worker attends?
I think the answer to this is yes.
A Judge can issue those directions.
Does the appellant have to attend?
There are rules on Witness summonses.
THE TRIBUNAL PROCEDURE (FIRST-TIER TRIBUNAL) (SOCIAL ENTITLEMENT CHAMBER) RULES 2008 S.I. 2008 No. 2685 (L. 13)
Summoning or citation of witnesses and orders to answer questions or produce documents
16.—(1) On the application of a party or on its own initiative, the Tribunal may—
(a) by summons (or, in Scotland, citation) require any person to attend as a witness at a
hearing at the time and place specified in the summons or citation; or
(b) order any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.
(2) A summons or citation under paragraph (1)(a) must—
(a) give the person required to attend 14 days’ notice of the hearing or such shorter period as
the Tribunal may direct; and
(b) where the person is not a party, make provision for the person’s necessary expenses of
attendance to be paid, and state who is to pay them.
(3) No person may be compelled to give any evidence or produce any document that the person
could not be compelled to give or produce on a trial of an action in a court of law in the part of the
United Kingdom where the proceedings are due to be determined.
(4) A summons, citation or order under this rule must—
(a) state that the person on whom the requirement is imposed may apply to the Tribunal to
vary or set aside the summons, citation or order, if they have not had an opportunity to
object to it; and
(b) state the consequences of failure to comply with the summons, citation or order.
Never seen it in practice though there is a decision that doesn’t relate closely to your situation.
CF/3390/2015 - CB v HMRC and AE (CHB) [2016] UKUT 0506 (AAC)
https://assets.publishing.service.gov.uk/media/58340846e5274a702500001c/CF_3390_2015-00.pdf
[ Edited: 3 Feb 2017 at 08:48 am by John Birks ]
Whilst that’s right, the OP might wish to take a look at the First-tier and Upper Tribunal Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses;
https://www.judiciary.gov.uk/publications/pd-child-vulnerable-adult-sens-witnesses/
Amoingst other things it says;
2. A child, vulnerable adult or sensitive witness will only be required to attend as a witness and give evidence at a hearing where the Tribunal determines that the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so.
- (my emphasis)
4. In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.
7. It may be appropriate for the Tribunal to direct that the evidence should be given by telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a child, vulnerable adult or sensitive witness.
The judge’s direction isn’t the final word - have they consciously considered whether the appellant’s welfare would be prejudiced in their directions? You can apply for further directions yourself - asking either for a domiciliary hearing or that the appellant be allowed to give evidence by one of the methods in the Practice Direction. Apply to a District Judge if need be.
I have now had the directions through, its says the attendance of the claimant would assist the Tribunal to reach a decision. They were not satisfied that attendance at an oral hearing, fully supported by her keyworker, would constitute a substantive risk to the claimant’s mental health. It also says that the people present at the hearing, that was myself and the Residential Service Manager, who sees the claimant and has known her for many years….apparently he had no or insufficient knowledge of the claimant to assist the Tribunal…...that statement is not true. My blood is boiling!
So ok where do I go from here? Write back with substantive medical evidence to demonstrate that attending such a hearing would be detrimental to the claimant and that the likely hood would be that she would try to self-harm? Where do I stand in asking for a different tribunal panel? Also just as much as the claimant’s keyworker has been asked to attend, can I ask for the HP who undertook the assessment to attend?
I welcome any advice on what I can do.
See my post above;
I have now had the directions through, its says the attendance of the claimant would assist the Tribunal to reach a decision.
This is standard - and in the vast majority of cases, it’s true. Even where an appellant’s mental health problems make it difficult for them to participate in the proceedings, even where the appellant is distressed and tearful, that in itself is evidence - and often very good evidence that helps the appeal to be allowed.
It also says that the people present at the hearing, that was myself and the Residential Service Manager, who sees the claimant and has known her for many years….apparently he had no or insufficient knowledge of the claimant to assist the Tribunal…...that statement is not true. My blood is boiling!
I can understand why you might find this annoying, but I think you’re going to have to suck this one up. If it were her psychiatrist of many years, her CPN of many years then maybe it might just be worth arguing - but the Residential Service Manager may not (need not) be medically qualified. I would leave this one.
So ok where do I go from here? Write back with substantive medical evidence to demonstrate that attending such a hearing would be detrimental to the claimant and that the likely hood would be that she would try to self-harm?
You could pursue the point.
If you wish to I would strongly advise against trying to draw an inference that attendance would be detrimental and that the client would try to self-harm from the exisiting medical evidence. I think that what you would need to do is to put the specific issues of the potential detrimental effects and the potential for self-harm directly to those medical professionals treating your client.
e.g. “Dear Dr S. The tribunal has directed that Ms X attend the hearing of her appeal. Although we have raised the her having to attend and give evidence being potentially prejudicial to her health and welfare, the tribunal did not accept this. However, as we are seriously concerned on the effect this might have on Ms X we have decided to revisit this issue - could you please offer your views on whether Ms X having to attend a tribunal hearing and having to be questioned closely on the her mental health conditions and their effects would be likely to have any detrimental effect on her health or welfare. If you do believe there to be such a risk, it would be helpful if you could give some idea of the degree of risk - i.e. how likely would it be to happen and how serious would the effects likely be?”
If you get the evidence you’re after - and it will need to be pretty clear on the point - then write back for further directions - i.e. either that the client does not need to attend or can give evidence remotely. The request will need to be made to the tribunal to start with. if you don’t get the response you’re after, escalate to a District Judge. The tribunal will hardly be able to say that it knows better than those treating the appellant if they confirm that attendance would pose a real risk to her welfare.
Where do I stand in asking for a different tribunal panel?
How have the tribunal clearly demonstrated it is biased or incapable of dealing with the appeal fairly and justly? Unless you have entirely clear evidence of this you only risk annoying the tribunal (possibly to the disadvantage of your client) by doing this. And your request will be refused without such evidence.
Also just as much as the claimant’s keyworker has been asked to attend, can I ask for the HP who undertook the assessment to attend?
You can ask for such a direction but you’re unlikely to get it and I doubt what it will achieve. Most tribunals know that the DWP assessment reports are rubbish - they simply want something else by way of decent medical evidence from those involved with treating the appellant to hang their hat on.
Many thanks for pointing me in the right direction.
Had typed 5 paras but Past Caring beat me to it. With one exception I wholly agree. It’s a difficult area this and your evidence really does need to be clear. There is a difficult distinction to be drawn between attendance doing real harm and being something the appellant or those people acting on their behalf would rather they avoid.
Where I think there may be some scope is with regards to the Residential Services Manager. I don’t think whether they are medically qualified is relevant. What matters is the extent to which they have detailed personal knowledge. In the absence of evidence to the contrary a tribunal could not unreasonably conclude that you wouldn’t ordinarily expect an RSM to have anything other than a general overview of a person who is presumably one of many in their charge. Therefore, it’s about explaining that (presumably), in this instance, they have much more to offer.
Having said that, my next question would be around what specifically do they offer which cannot be gained/gleaned from the evidence of others? If they’re not filling a specific gap in the evidence then I would say there’s nothing to raise.
Agree with the above Mike - I was a little pushed for time.
What I was trying to get at is that I can possibly understand where the tribunal were coming from in the specific circumstances - i.e. why they might feel in the absence of the appellant herself that only having the rep and the RSM before them might mean they wouldn’t have sufficient evidence to do the appeal justice. I was also envisaging a scenario where the rep and RSM had more or less rocked up without the appellant and had tried to convince the tribunal on the day that the hearing should go ahead in the appellant’s absence.
Agree that the RSM not being medically qualified isn’t that important (after all, some of the best evidence can come from carers who are neither medically or professionally qualified) but was really just trying to say that the tribunal would almost certainly not have reacted in the same way had tazier turned up with the appellant’s psychiatrist in tow, rather than the RSM.
As you say, there’s no reason why the RSM can’t give relevant evidence - and again as you say, it would be advisable to set out in submissions why it is in this particular case that the RSM is able to give especially pertinent evidence.
That said, given the tribunal has directed the appellant’s keyworker to attend, I might be tempted to leave it at that unless I felt that vital evidence could only be given by the RSM or that the key worker’s evidence might not be that convincing…..