Hi,

I just wanted to check something i was reading in the new rules (statutory instruments no2685), no 24 point 7 states any submission or further docs must be provided within one month of receiving the secretary of states submission.

does this mean that tribunals wont accept submissions and/or further medical evidence on the day of the appeal?

Ta Saima

The time limit can be extended. It is for the tribunal on the day but I can see tribunals being increasingly resistant to evidence coming in after the 1 month limit especially if it isn't accompanied by a really good reason for lateness.

Philip Boyd.

I attended an appeal Tribunal yesterday and was drawn over the coals for submitting further information/evidence. I thought that given the new procedures came into force on Nov 3rd that it would apply as and from that date regarding new appeals. How can we satisfy this criteria when the the DM response is already over 3 months old before these new procedure came into force? I can see this becoming an issue and possibly erroding the appellants right to a fair hearing. How can new evidence be dismissed in such a manner or do we now deliver our further submissions orally. I so I can see Tribunals running well over their allotted time.

Rule 24(6) refers to appellants and respondents. In the interpretation (rule 1) appellants, resondents or, for that matter, "party to the appeal" does not incorporate representatives under those appellations. So I don't think rule 24 applies to representatives at all.

It is not unusual for some chairs to show displeasure when reps produce evidence on the day, particularly if there is a lot of it. It all depends upon the circumstances.

It must still not be forgotten that the formal rules of evidence that apply to courts still (in spite of the new rules) do not apply to tribunals. A tribunal has an implied power to exclude evidence if it considers that evidence to have no probative value whatsoever but would need to supply good reasons for doing so.

A claimant must be treated fairly both at common law and under article 6 of the Human Rights Act. A tribunal that excluded evidence that had probative value may well find itself in error, particularly if it did not adjourn to consider that evidence.

It needs to be remembered that reps are often instructed late in a case or doctors (and others) often take time to reply, given their own workloads. I've always found tribunals here in Liverpool very reasonable on this issue as long as reps have a reasonable explanation.

Does anyone please know when the new version of the Tribunal Bench Book (covering the new legislation) is going to published, if only so we can get some idea of the guidance given to Tribunals on this issue.

Kev's point "I can see this becoming an issue and possibly erroding the appellants right to a fair hearing", puts it very succinctly, for what is a contentious issue to put it mildly, not least because the rule assumes it is actually that simple as a general thingy to submit sub/information/further evidence within the one month time frame.

I really hope that Tribunal members reading this forum, consider this rule from all parties angles and errrrrr um please discuss this issue internally within the districts,regions and nationally (looking at the pros and cons), because it is hard to see, how it does any of the parties connected with appeals any favours.

Phillip, as a complete separate aside, i take your point in another forum about reps giving tribunals shed loads of papers at the last second, causing grief and frustration for the panel members, especially when it can be avoided.

However, (as an abstract musing) i can't help feeling the powers that be have not thought out this issue fully, and considered the possible ramifications (as an abstract aspiration someone somewhere please amend this rule in the interests of justice).

"Submissions within one month" . Have I missed something here - how is this going to play out in practice?

The draft statutory instrument required decision makers to submit their paperwork within 42 days, now amended in the final version to "as soon as is practicable" but on the appellant side it is one month!

Given that social security appeals are rarely straightforward and frequently depend on filling in factual information gaps, is there an assumption that agencies will prepare subs (and collect additional information) within the one month limits? If so, it will be interesting to see how this works in practice.

In our Service the goal is to put all the effort (evidence) into the original claim process, but the majority of clients contacting us with appeal support requests are "cold" clients: we know nothing about the background to their claims when they walk in the door, let alone have copies of their original paperwork.

Will this not lead to extention of time limits becoming the default position...i.e. a prelininary submission setting out the gaps and a time frame to complete the final submission?

Kev, posted as I was writing my message, but to build on his point, surely there must be an expectation that there should be a changeover period to align existing work with the new rules. I also note that the Tribunals Service has not updated its public information leaflets on its own website (there are still references to the Appeals Service in the literature).

I was hoping tribunals would give us time for the changeover but it doesnt appear to be this way. I was at appeals on tuesday and there was no problem with me submitting evidence on the day but ive got a feeling it will depend on who you get which isnt really fair.

I dont understand why decisionmakers get as much time as they want when we are restricted to the month - its going to make life so difficult for reps!

Personally I am carrying on as before for the time being. If there is too much on the day I adjourn otherwise I read what I'm given and remind the producer about the new rules.

Tribunals get information in 4 ways:
1. In the main bundle 10-14 days before hearing;
2. In dribs and drabs in the post up to the day after the hearing;
3. At the start of the session (things that have come in by letter/fax within the last day or two & are too late to post);
4. At the hearing.

Questions for your TUG are what happens if
1. you post stuff after the 1 month limit but before the bundle is sent out
2. you post stuff after the 1 month limit so it arrives say a week before the hearing
Will it still be sent to members?

As to producing it on the day, you are in the tribunal's hands.
They will consider:
1. The state of the list and fairness to others
2. The other side who may well be taken by surprise by this material particularly if it raises a new point and this applies to both sides.
3. Why it is late
4 Is it proper in exercising its inquisitorial role to exclude probative evidence.

You might find yourself with more inconvenience and adjournments.

Yes - time limits have never been fair. The government has always built itself in an advantage. No change there then.

Philip Boyd

Look at Regulation 2 and the overriding objective. Interesting?

I take from Reg 2 that although there is a unified admin approach, that eassentialy Chairs, (now Judges) will use their discretion in their own domans to best effect. And to borrow a well worn phrase from tribunal statements, I'm greatly fortfied by Philip's comments.

The rules previously had a time limit for decision makers also but it was removed after protests from DWP.

At the "consultation" event I attended (I use the quote marks as in my book consultation implies taking some notice of what the consultee says) protests were raised about this and the attitude was that tribunal chairs would routinely allow submissions and evidence after the month and "it would not be a problem". My view was that if it is going to be routinely ignored, a rule is not serving a purpose and shouldn't be there in the first place, and if it's not going to be routinely ignored there should be some sort of equality between the appellant and respondent. But to be honest I felt that everything we said on this and any other aspect of the rule changes was ignored.

If it is causing problems in practice (which I think is totally predictable) I think it needs to be pointed out loudly and clearly to the Tribunals Service, because that is the opposite of what they promised at our "consultation" meeting.

The rules take effect from 3/11 and apply to all appeals, no matter when started. That is my understanding.

Yours, thinking of taking up some other occupation,
Sue

I can see the HRA Art 6 challenges coming!!!

It cannot be compliant with any notion of equality of arms that an appellant or his rep is disadvantaged in presenting a case...and yet the new rules blatantly allow a situation where (as PBoyd points out) Appeallantsand/or reps are meant to submit their grounds in detail before they may have seen the decision makers submissions and/or supporting evidence at all.

Of course, such a scenario would give rise to good grounds for lateness in submitting said evidence, but really!!!

This has not been thought through or properly consulted.

It is not only the last/minute/cold clients whaich will cause us problems...even within the timelimits and the discretionary safety net of grounds for late disclosure, we will be pushing it in numerous instances.

Eg. appeal listed...one month goes by...you have submitted a padded-out version of the original appeal letter (difficult to imagine how you could prepare anything else without sight of the papers)....day 41 and you receive the papers from SoS....need to discuss its content with your client...a week/who knows when to next appointment...we agree that supporting evidence pointing in particular areas is required...we write...we wait...we wait...a GP/Consultant/SW/OT letter arrives (or all/any of them arrive over a (?) period of time)...we then have to consider same...maybe speak to our client again...then sharpen our argument in submission and disclose the evidence...whaddyaknow the tribunal was last week!!!!!

Can't be right. Can't be lawful.

Does anybody at all agree with my earlier post that rule 24 does not apply to reps or have I completely misunderstood? Starting to feel rather alone now (nothing new there then).

sorry to have missed your point...I have always (possibly wrongly) taken appellants to include those representing them

This is going to be a bit of a problem where I work as we have a six week waiting list!

suewelsh and PeteD have perfectly summed up the situation. The whole issue urgently needs clarification.

Speaking for my region, I have always found the TS office in Cardiff to be extremely flexible and efficient, even when we have pushed the time limits for submissions (usually caused by problems with evidence gathering and work overload) and I have a lot of sympathy for their staff who must get fed up with trying to stay on top late running paperwork (I would like to say I'm guilt free, but I'm not).

I don't have a problem with time limits at all, but limits must be realistic and must start from the position of who the system is intended to serve, i.e, claimants/appellants and to a lesser or greater degree, the public purse. To this end it is essential that sufficient time is built into the system to achieve accurate decision making and fairness.

Appellants would suffer if timescales were too elastic. What if a rep took 12 months to submit to the first tier because of poor internal agency practices? The only party to suffer would be the client (although the TS would need to buy some extra filing cabinets). But the client suffers greater damage if timescales are too tight and things are rushed through. As with everything there is a balance. Most of our work is around DLA and I would opt for a max limit of 3 months.

We do not have a LSC contract as we see DLA as a key component of community care and therefore not something to be governed by a taxi meter approach to funding. Each claim/case is given our very best shot because the public has paid through taxation and deserve nothing less.

I would like to think that the rule change is a good old fashioned cock up, but in the context of legal funding cutbacks and other agendas, I do wonder...

How could any rep know in advance that there would be a problem (other than what has always happened) with submitting late evidence from 3 November? The rules did not even exist a couple of weeks before that date and thus were not in force at any time before the third.

There was thus at the date when the rep "ought" to have submitted evidence no rule that he should. Instead, there was as there always has been the problem that late evidence, especially if voluminous and maybe not all of immediately obvious relevance will result in dealy which could have been avoided.

I don't know how many people know what typical listings look like. Round here and in London, a tribunal will deal with:

Judge alone: 10 oral and 2 paper cases;
Incap: 8 oral and 2 paper cases;
DLA: 6 oral and 2 paper cases.

Cases of special difficulty or where an interpreter is booked can be significantly longer. But the Tribunal is unlikely to have the time to wade through 50 pages of extra evidence submitted late, unless by some fluke at least one appellant calls in sick or fails to turn up. Especially if it's a mental health case...you know it makes sense!

Hi Pete

In my view, unless specifically laid down, the terms "appellant” or “claimant" does not subsume the word "representative" into those definitions. See (particularly) s12(2) SSA 1998 and reg 33(1)(a) of the D&A Regs. This is not the same, however, as saying that, where authorized (and in the absence of statutory exclusions), the rep does not have the same powers as appellants to act in certain situations.

Regards
Paul

Hi
We have been having a discussion in the team in Barnsley on the status of a written submission. Is it evidence?

Legally, there is no requirement to produce a written submission and claimants / friends/ reps can attend a tribunal and just give an oral submission should they so choose. The notes taken by the Chair then become evidence for higher appeals. As a gesture of goodwill, I always try to submit a written submission before the hearing but have had to attend plenty of times taking one with me..

Personally, I tell the Chair, (Judge), that the written submission is just a copy of my overall submission to save them having to take so many notes. In the past this has always been welcome.

As you say, if the Judge starts to make a song and dance about a written submission on the day we can always withdraw it and just read it out loud as a verbal submission and watch them make notes! In fact, this just hinders everyone.

Hopefully, things will settle down and common sense will prevail.


On a different note and a first for us:

Has anyone else had trouble getting tribunal documents? Today we were told that both sets of documents will be sent to the client because of "data protection" and it is up to the client to give us a copy!

Any comments?

An update.

Reg 33(1) of the D&A Regs has been replaced by rule 23 of The Tribunal Procedure Rules which clearly defines "appellant" and "representative" as separate entities.

Not sure I agree to the interpretation you give Paul (though it is clearly arguable).

The wording of 24(6) states appellants and other respondents...and though I have to agree that a rep is not in the category of "Other Respondent"...I do however think that the rep is authorised to act within tribunal and appeal procedures on behalf of the appellant, as "agent"...I therefore think 24 (6) and therefore 24 (7) applies to the rep as agent of the Appellant.

More specifically, looking at SI 2685 again, it seems that the one month limit for appellant (rep?) reply is a month from the submission or response which the SoS is meant to send once the matter has been agreed to go to appeal...not sure how this will actually work, or in what context a "notice" of appeal sits.

Once a client (or rep) lodges an appeal, the SoS will make his submission (we assume) as normal attaching a TAS 1 (within a reasonable time)....then the timely/proper return of the TAS1 (by the appellant/rep)progresses the matter to a listed tribunal (and not the SoS submission itself)...it sems to me that rule 24 only bites at this point (??)...rule 24(1,2,3 - 6) seems to indicate that the SoS then "must" send a response to the Tribunal stating whether he agrees with the appeal or opposes it, and he has the option to request disposal of the matter without need for hearing if possible....etc...I read that it is at this point under Rule 24 that the one month limit comes into effect for appellants(/reps?).

If the "notice" of an appeal commences earlier than the listing of a hearing, then I don't know what the rule relates to, as the SoS at present (I think) does not notify the Tribunal Service of every appeal request he receives following a decision...the "notice" referred to in Rule 24 can only be a notice of Hearing (?)...and the submission/time limits can only bite at the point that the SoS responds to the Tribunal Service's notice that a hearing process is commenced/listed....this is only when the TAS 1 is properly returned....the SoS (am I right?) will have to send a response to the Tribunals Service (Rule 24(1-6)) as soon as is practicable upon being notified of a hearing being listed and he will have to share that response with all parties...then the one month for the appellant respondent kicks in.

This is not the usual order of events at present where a DM "can" ask for disposal without hearing once listed (more likely to superseed/reconsider) but rule 24(1) says he now "must" send a response to the Tribunal.

Am I barking up the wrong tree or just barking????

The SoS will not longer be issuing the TAS 1. The procedure is as follows;
- The appellant sends his appeal to the office where the decision was made.
- The SoS prepares his response to the appeal (what used to be called a submission) and sends it to the Tribunal and to the appellant.
- The Tribunal sends out an enquiry form, listing and venue information, and a guide to filling in the enquiry form, which is then sent back to the Tribunal within 14 days (or risk strikeout but subject to reinstatement).
- The appellant responds to the SoS's response, ideally within one month of getting them (but of course at that stage he doesn't know who to send them to until he gets info from the Tribunal, so in practice it isn't going to happen) and sends them to the Tribunal with any other evidence he currently has.
- The SoS may respond to the appellant's response and so on ad infinitum (what used to be called answers, replies, rejoinders and surrejoinders... oh what fun).
- Eventually at some time the hearing is listed and hopefully the appellant does not turn up with 59 pages of 10 year old medical "evidence" which has no earthly relevance.

By the way, in response to the question "is a submission evidence?" No. Evidence is what goes to prove a fact in issue. It is legal argument and urging of conclusions to be drawn from the facts. And ideally not more than 2 pages long!

We have just received a letter from the Regional Chair which includes the following passage "I see from conversations on Rightsnet that there is some concern and, at times, confusion amongst claimants' representatives about how they will work. I think it would be helpful if we held three meetings in the region to look at the new rules and, I hope, give some guidance about what is expected".

Two things spring to mind. First, this will be extremely useful and reps from this neck of the woods will be able to feed something back in a couple of weeks time. Second, it just goes to show just how widely read and influential Rightsnet is.

It just goes to show how indispensable Rightsnet is.

It would be very useful if the TS could produce a Q&A crib sheet from those meetings that could be published on Rightsnet, thus ending our confusion, and restoring our equilibrium - or at least a bit of it.

Three cheers for Rightsnet...again

I have posted further information from the meeting at the link below

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=7518&mesg_id=7518&page=

As all this is new, the overriding objective in rule 2 must be taken into account in all cases.

If the time limit is missed, then tribunals are instructed not to exclude evidence unless there is a really good reason for doing so.

The time limit was put in for our advantage because if we can show we are able to comply with the time limits in most cases then pressure can be applied to amend the rules to force similar time limits on the secretary of state or other respondants.