Our client, who has mental health problems, had a DLA appeal oral hearing scheduled for an afternoon. In the morning of the day of the hearing we received a telephone call from the clerk to the tribunal stating that, having read all the documents, the tribunal was minded to award DLA LRMC and LRCC. If our client “accepted” the offer there was no need for him to attend for a hearing.
As it happened, I was unable to contact the client, and we both turned up for an oral hearing. The Chair repeated the “offer” and asked whether our client was happy with such an award. When he indicated that he was, a written decision to that effect was issued.
This has never happened to me before. I understand that this type of behaviour is common practice in other venues, and that clerks are extremely unhappy about it. It not only places the clerk in the position of go-between, but also increases their workload.
What would have happened if our client had declined the offer? Presumably a full hearing, but the tribunal had already made its mind up in advance what it believed the award should be. Is it fair to claimants with MH problems to require them to make that sort of decision without the opportunity to consider it properly? Is this practice even lawful?

Hi Ruth,

This happens to us very occasionally in Edinburgh although I've never been made a telephone offer - just at the beginning of the tribunal or after a couple of clarification questions.

Do you give clients your opinion pre-tribunal of what award (based on the evidence) you expect them to get?

We try to give them some idea and would usually only recommend that a client accepts an offer which is at or higher than we were expecting. If we had a good case for a higher award (or the client's oral evidence was going to make a positive difference to the award)we would ask to continue with the oral hearing.

In these cases we're usually offered what we were expecting and accept.

Mairi

It isn't infrequent here. Quite often happens with PCA appeals especially where the evidence is strong.

The wierdest one I've had is when I as rep was invited in alone before hearing began and asked to clarify what DLA rates were being asked for. It was HRM & MRC. They asked me twice and then asked me to wait outside.

Within a couple of minutes, I was invited in (again without the client) to be given the decision notice of HRM & MRC. The penny then dropped that if I had asked for HRC we would have got it (despite the client not claiming any significant night needs).

Result was that client was disgruntled at having their time wasted and me wondering if I'd missed anything - yet probably the easiest win I'd ever had.

Tribunals often take a provisional view and will have an award in mind when you walk in the room. The chair will say something like “we’ve decided that we can make an award of middle rate care for daytime needs based on what we’ve seen in the papers but if your claiming night time needs then we will have to ask questions”.
You can then get a brief adjournment for your client to consider his position. There is nothing unlawful about this or for a telephone offer to be made.

You concerns are warranted though. Where an appellant is repped then presumably the rep knows what is an appropriate award but the rep must consult the client and not do a secret deal with a tribunal for the sake of expediency. Furthermore it would be entirely inappropriate to make this kind of offer in advance of the hearing to an unrepped appellant with mental health problems as a full hearing may elicit evidence not contained in the papers that might warrant a higher award than the one contemplated.

Agree with nevip and would add that I find such "offers" made more frequently by the the more experienced/"fairest" panels - often, I think, it is because tribunals recognise the process of giving evidence is stressful, particularly so for those with mental health problems. Of course, there are dangers in that approach.....

The most bizarre (and utterly unlawful) experience I ever had with such an offer was where I turned up to rep client A and had discovered from the clerk that I was due to appear before the same chair the following day to rep client B. I intended to request an adjournment the following day as I had only just received client B's copious medical records, the previous hearing having been adjourned for these to be provided but TAS, for some unkown reason, having sent them initially to an entirely different advice agency.

This was when I first started out and I wasn't as familiar with procedural regs as I am now...."Ah," I think, "I'll explain tomorrow's situation to the chair, request an adjournment now and save myself and the client the journey." This I did - chair asks me to give the tribunal five minutes (during which time the file is pulled) and I'm invited back in for them to offer HRM and HRC. Now, I know that no higher award could have been made and so client would have had to accept - but the chair also assured me that there would be no problem "pursuading" the two wing members who were actually listed to sit on the tribunal the following day! Possibly - but quite how they proposed to get this one past a PO if they showed up, I can't imagine!

"but the chair also assured me that there would be no problem "pursuading" the two wing members who were actually listed to sit on the tribunal the following day"!

What was he planning, horses heads in their beds?