I know this is a common topic and I am aware of CDLA/884/2008 and para 94 of R(IB) 2/04 etc...all of which places a burden on Tribunals to exercise caution in making any decision adverse to the position at which the claimant arrives at the hearing..especially if evidence within the appeal appears to support the existing claim.

The need for a Tribunal to notify the claimant of its intention to consider the whole of an award seems a well-established practice.

However, I've just been instructed on one where client was on MRC and LRM at 1st claim and (foolishly with hindsight) appealed the decision looking for HRM/HRC.

I didn't advise him at this point (or prior) , but he seems to have had various people telling him he should appeal, despite his own claim form stating he can walk around 500m!! and no real evidence of any substantial night time needs.

Anyway...the tribunal have recently removed the award altogether....

SoS only asks Tribunal to look at the question of HRM and HRC...client's appeal letter is the only other/new evidence before the Trib...and that simply states he cannot walk for and his wife needs to remind him of his meds at night (in fact pre 10pm)....that's it.

His claim form (whilst not the most complete ever), does support a number of care needs and it is clear he needs guidance outdoors etc...SoS obviously accepted this at the initial claim awarding LRM and MRC, as I say. Curiously, the SoS did not procure any other evidence in making the original award..essentially the tribunal only have
a) claim form
b) SoS submission accepting MRC/LRM and asking to look at HRC/HRM
c) a short 3 para letter of appeal.

Whole award lost....

then he came to me.... I've an idea where I'm going with this and obviously need the Statement of Reasons, which has been requested.

The question I am looking at is what happens to the notion of fair warning/ Art6 etc in a PAPER HEARING....as that was the route which the claimant requested (there is some issue on this alone as client dyslexic and states he did not understand the significance of paper/oral choice)

Bit of a mess for him really...if only he had taken advice and all that...but I wonder whether others have similar experience with Paper Hearings and this issue??

Thanks in anticipation.

See also CDLA/2084/07 and CDLA/1480/06.

I would think you are on pretty strong grounds if it was a paper hearing and no warning given

Brian

Did the tribunal issue a direction/warning prior to hearing the case, to the effect that the evidence did not support an award and for the claimant to consider 1. providing further evidence. 2. withdrawing. I

I have had an appeal were the judge did issue such notice (although that was an oral hearing). I assume under Part 2 rule 5 (d) 15.-1(a)

Should imagine a set aside is in order, if you expand on the dyslexia aspect and lack of a fair hearing.

Tribunal judges are supposed to case manage the appeals and where they consider insufficient evidence or such then contact the appellent advising of this.

Nothing in the papers I've been given (a fair few) indicate such a notice or direction...that is why I am posting...the experience of actually receiving such a notice is obviously a positive (and, Darlocab, I note that was even done in an oral hearing situation where there was a chance in any event for the trib to forewarn on the day - even though it no longer has to invite withdrawal)...this process here seems to have driven a Coach & Horses right thru art 6...as I say, I just wondered if anyone had ever experienced the "parallel" situation of forewarning/no forewarning in a Paper Hearing...the obvious difference being that there is no date notified or any warning whatsoever of a paper hearing!!!

see this, reported today:

http://www.bailii.org/uk/cases/UKUT/AAC/2009/248.html]

clearly different context (child support) but appellant was blind, and your chap is dyslexic you say .. so shoudl give you food for thought.

interesting..........

Recently had clients award of H/M & L/C removed when appealing rate of care only. Appeal went to paper hearing (client had moved abroad), decision came back removing everything. Leave to appeal to UT resulted in the decision being set aside. The decision & direction notice stated that ‘The Tribunal can consider removing an award but it must give an appellant a warning so that appropriate advice and preparation can take place. No such warning was given. The Tribunal should have adjourned if it was going to consider removing existing award of benefit’

The decision thats most on point is probably CDLA/4184/2004 where the commissioner states:

"The claimant was appealing against a refusal to award her more than the lower rate of the mobility component of disability living allowance. She appealed asking for a higher award. The tribunal dealt with the matter at a paper hearing and took away her existing entitlement. Regardless of the individual issues and merits of claims, it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal. Accordingly, a tribunal cannot do this at a first paper hearing following the usual paper hearing procedures unless – unusually – the matter has been raised in the written submissions. There was nothing in the papers here, so the tribunal’s procedure was clearly unfair and the decision must be set aside".

apologies that I don't have a head for the references, but I'm pretty sure that UT/Comm decisions have also said that in the situation where the tribunal might remove an award, the appellant should be given another opportunity to attend the hearing.

thanks everyone...the decision from Nevip appears to cover it...am glad (but sad) to know I'm not alone in this situation...await statement of reasons with anticipation, as I can't imagine how this has been justified.