Hi, I would welcome any comments on the following.

I have recently attended a couple of tribunals as representitve. Over the years I have attended many tribunals but I have been very concened about what seems to me to be agressive questioning of the client of late. The questioning seems to be geared to trip the client up. Indeed I can't help thinking that they the tribunal are more an extention of the DWP. Also, on two occassions the chair has invited me to make comments, the immediatley states that I am leading my client. This is leading to a feeling of intimidation on my part. However, what really is of concern is how demoralised the clients' are feeling. Instead of a Tribunal where they can put their case and feel that they have been heard Clients are coming away brow beaten. I wonder if anyone else has concerns or advice on how to behave at tribunals for clients aand representives. I am aware that there is a new book out resnect week on tribunals and procedures.

Sat 03-Oct-09 09:15 AM by Kevin D

I have no problem with robust questioning, so long as the purpose is to establish the truth / facts.

However, last year I attended a Tribunal (as a clmt rep) and got the hearing from hell (details posted in another thread). In short, the (then) Chair stated quite brazenly that I was "wasting the Tribunal's time" and "hostile" would have been somewhat of an understatement. This wouldn't have been so bad, except this happened in the first minute - before I had even finished sitting down....

It's fair to say we had a, er, "spat". Had it not been for the health of the clmt, I would have unhesitatingly complained.

As for nowadays? If I am ever again before a Tribunal that does not conduct itself appropriately, I will not hesitate to say so and do it robustly. As I'm not a lawyer, nor a formal Legal Representative, I don't have to worry about "conduct" complaints to any the professional legal bodies (e.g. Bar, Law Society etc). That is one advantage of NOT being professionally qualified .

Hi,
Thank you for your reply. It does make me feel a little better that I am not alone in this kind of experience. However, our clients do deserve better as indeed we do. . I agree that questions should reveal a full picture of how the clients disabilities are affecting them, but, not a mine field of questions to trip up. The problem as I see it, as there is no set protocols for who should do and say what it leaves the door open for this type of bullying behavior as you too have experienced.
I am hoping that this new book is going to give some guidance.

I have only been to Hb/ctb tribunals and only as presenting officer for the La; I know that any chair I have dealt with would stop me if I was in any way hostile.

I too would make my feelings felt if things were hostile (biased?) towards/against me (La).

I hope this is not typical, I have thought that any questions/points should mostly be raised before the tribunal but realise with Disability related benefits there may be more to discuss "on the day".

Years ago i called a halt to a Tribunal and removed my client from the room as the Tribunal were so hostile - it was one of the worst things i've ever seen in my time as an adviser.

I complained and, have never had the bad luck to sit before that particular chair again. However i'm not sure how effective complaints are - the reply i got merely stated the Tribunal were carrying out their inquisatorial role. In fact it was more like the inquisition!!

In that instance the Tribunal was postponed and another listed before a different Tribunal.

I've represented clients at lots of tribunals and generally find the panel to be fair but thorough, as they need to be. Unfortunately this is not always the case - it seems to be the less regular judges who perhaps forget that they are no longer in a criminal court, and the person before them is indeed not guilty. This is why it is essential that bad decisions (which normally result from this type of attitude) are challenged. I've said it before -TS must be policed to ensure its' high standards are maintained.

Below a recent decision which comes from Eileen Franklin a member of local appeal users forum. Gladdens the heart.

The appeal is allowed

The decision of the respondent issued on ........ is set aside.

Reasons
The HCP report is so short that no reasonable Secretary of State could have relied on it for the purposes of the PCA. The medical examination lasted 19 minutes. It is simply not possible to undertake a mental health assessment that is of any value in less than 30-40 minutes. A 19 minute report is superficial and shallow. As it was not reasonable for the Secretary of State to rely on such a report there were no grounds to supersede the existing award if Incapacity Benefit.

The issue of 'leading' is an interesting one.

I've been told variously that I can lead my client and that I can't lead my client.

In one appeal, not so long ago, after we'd all sat down, the chair continued virtually to map out the client's story for him (what he'd done and when) and when I hesitated to agree to a point (that was in the client's favour but, IMO, improper, I was told "just say "yes, sir"".

The client got everthing he asked for (which was always going to happen) and whilst this was not a negative experience, it was certainly confusing.

Luckily, I tend to avoid going to tribunals so don't get these experiences very often.

Mostly, my experience of tribunals is positive, and I have no objection to tough questioning where warranted.

I am sooo lucky, never had to attend any )))
But good to know whats out there

In my view the issue of leading should not really be too problematic in social security appeal tribunals. How many times while watching TV have we heard that memorable phrase “objection your honour, leading the witness”. Not leading a witness in a criminal court is important as witnesses are being asked to remember events and details that they are a third party to and that often happened ages ago and in those circumstances memory can be hazy and can be open to suggestion, particularly by skilled counsel.

In tribunals your client is the appellant and is merely being asked to give information about themselves. Leading questions can be a way to prompt a person to remember things that they have already told you previously in circumstances where they weren’t so nervous and, consequently, so forgetful. I once sat and watched, with some amusement, a tribunal leading my client for about 5 minutes until he finally said the words it wanted to hear (in a favourable sense I hasten to add) and we came out with the award we wanted.

Having said all that though, I can understand tribunals are wary of a minority of unscrupulous reps who do put a gloss on their client’s case and coach them accordingly. However, tribunals should also remember that most reps are not trained barristers and the legally qualified member should be skilled enough to evaluate that part of the appellant’s evidence that has been obtained by leading questioning and weigh it accordingly, and, make allowances for less experienced reps. But there is no substitute for experience and as you gain experience then your questioning skills get sharpened and in those circumstances tribunals are entitled to take a tougher line.

Have to say that the idea of "leading" or "coaching" did cause me concern when I started repping at tribunals (many years ago).

However it soon became clear that crude leading or coaching would be self defeating. One of the main priorities of a Judge is to be satisfied that the appellant is credible. If anyone, including the rep, plants any false claims it usually stads out a mile and no matter how good the case is on paper - if the appellant loses credibility they are going to lose the appeal.

The reps skill is therefore to prepare the appellant to give the right answers during tribunal questioning. These "right" answers will emerge usually as client's own examples / responses during discussion of the issues. The trick is to get the client to recognise when to respond with their own examples during the much more indirect questioning at the tribunal. If this preparation is coaching then I plead guilty.

When this works well the client's honesty can really shine through at the appeal and I have had many marginal cases when I felt that this was a deciding factor in winning.

I agree completely. And no, this is not leading or improper coaching, just bloody good repping

Thanks everyone. It has kept me going in my determination that representing is a necessary part of our job. If not paid for by lsc!

Angela,

You can claim the time for LSC purposes if the issue is complex, in these cases you beome a Macenzie's adviser (naturally for LSC purposes this is different to a Mac 'friend').....

Chaos