I *think* most posters know that the majority of my work is for LAs. However, every now and again, I advise and even rep for clmts. In that context, I decided to share this and offer a little empathy with claimants and/or reps who encounter "unhelpful" Tribunals.

Today, representing a clmt at Tribunal (HB overpayment), I think it can safely be said that I encountered the Tribunal from hell. The Tribunal summarily dismissed the appeal as "vexatious" (eh?). The dismissal prevented me from putting forward ANY of the arguments that I had prepared - no opportunity was given for further points / arguments to be submitted before the dismissal. I was also accused (& I think that is in context) of refusing to answer "reasonable questions". Which is all well and good, except they related to matters the Tribunal itself had already ruled were not before it..... ho hum....

The conduct was such, that (following the dismissal) I specifically asked the Chair to note that I was EXTREMELY unhappy with the manner in which the Tribunal had conducted itself. Strangely, I don't expect to see this on the record of proceedings. The Chair's response? Something along the lines of "Then perhaps we should swap sides of the desk?" (somewhat cuttingly). A great deal of self-control was henceforth exercised in resisting the temptation to suggest it would have been difficult to have done a worse job.....

The "exchanges" moved me sufficiently to suggest to the Chair that we were ALL meant to apply the law as it stood - not as we might like it to be as individuals. That went down REALLY well. Like smallpox in a closed environment.

The statement of reasons and record of proceedings SHOULD make for interesting reading. I wonder if they will reflect what actually took place?

I can honestly say that had I been representing the LA (they didn't show), I would have proactively supported any complaint / move for statement etc by the clmt (and/or rep).

Now, I have to allow the anger to suitably dissipate before working out whether or not, in my view, the Tribunal reached the correct bottom-line decision in spite of itself.


NB: For those interested, the overpayment was a "duplicate" payment made to the L/L - the clmt knew nothing of it. The LA correctly notified both parties and my view was the clmt had grounds on which to appeal. The Chair's main reasoning (apparently) for dismissing the appeal, was that the clmt was not in any way disadvantaged by the recovery of that o/p from the L/L. Er, um? So what? But, the SOR will reveal all (I think not.....).

Just a thought...

Should the situation arise again, then you can request a copy of the record of proceedings immediately and (assuming the venue has a photocopier) you should get it within minutes of the decision being made. Its always better to read these things with the hearing fresh in your memory.

Of course you hope it never happens again...


David

I did actually have the presence of mind to instantly request a statement of reasons (not the record of proceedings).

The Chair's instant response was:

"You can't ask me for that, you'll have to write to the Tribunals Service".

I don't expect that a request for the record of proceedings would have fared any better.

One other thing. I also have suspicions that the Tribunal's decision notice had already been written, signed and dated - I made a note of the time I spotted this, along with the number of handwritten lines (just in case I was mistaken and it was another document). If the decision notice has the same number of lines and the format appears to be consistent with what I saw...... uh huh....

"The dismissal prevented me from putting forward ANY of the arguments that I had prepared - no opportunity was given for further points / arguments to be submitted before the dismissal."

I'm assuming these arguments were covered in your written sub?

The "submission" was by way of a letter at the appeal stage - this included full grounds and legal argument (taking into account the LA's statement of reasons). The arguments intended for the hearing were to be in response to the LA's later submission which had conveniently skated around some of the points made in the appeal (as, in my view, did the Tribunal).

Given that no new evidence (including facts) was to be relied on, my view was that it was entirely appropriate to save any further legal argument until the hearing itself. I have considered whether or not such an approach is mistaken. I don't think it is. With the clear exception of the introduction of new evidence, it cannot (normally) be right that every written response must elicit a further written response. If that was correct, oral hearings would be irrelevant. It is also my experience in 99% of other hearings that the Chair issues a clear and unambiguous invitation for ALL parties to add anything further. This did not happen today. The Chair's conduct of the Tribunal made it impossible to do so.

If my client had been present (s/he was unable to attend due to ill-health), s/he would undoubtedly have been reduced to tears. Since my first post, I have spoken with the PO of a LA that has had appeals heard by the same Chair. Interestingly, the PO stated "....you definitely drew the short straw there...." (referring to the Chair). Completely unprompted, the same PO also stated there had indeed been other occasions where claimants had been left in tears at hearings conducted by the Chair in question.

A less than glorious day for justice.

Not saying your approach was "mistaken", Kevin. If the hearing had been conducted in the way it ought to have been conducted, it's a reasonable approach. I was just hoping that your chair might have found themselves a bit stuffed when coming to write a statement in that they'd have to at least address your intended arguments.

Having had a couple of reps that I know lose at hearing - and have subsequent leave applications refused - due to a chair's outright denial that a particular argument had been put, I've decided that's not ever going to happen to me.

Yes, it's a fair point (re the Tribunal being "stuffed").

Now that I've had a surprisingly good night's sleep, my mind is a bit clearer this morning. A statement of reasons will be requested, but I suspect the Chair will go out of his/her way to make sure that the one relevant aspect will be bomb proof - this being whether or not the L/L could reasonably have been expected to realise it was being overpaid at the time of receiving the payment. If the Tribunal find on that basis, it will be very difficult to find grounds to SUCCESSFULLY appeal.

Anyway, thanks for the responses.

You will complain about the conduct of the chair won't you?

Firstly, the formal Decision Notice has arrived - erm, complete with statement of reasons (the Chair having rather bluntly made it clear it would only be provided if formally requested - go figure...).

Unfortunately, as anticipated, the one issue of importance is bullet proof. Sure, I could suggest an appeal on other grounds (plenty of those), but I strongly suspect a Cmmr would simply substitute a decision to the same effect.

As for a complaint, I am giving careful thought to this. My client (who is aware of this thread) has enough on her plate without getting involved in a complaint of this nature. I *may* drop TTS a letter, but without it being a formal complaint. It may also be of interest that other contributors to Rightsnet forums have also tangled somewhat unceremoniously with the Chair - I thank one of them for privately advising me of this.

Once again, thanks to those who have posted.

A tribunal convened to hear an oral hearing that makes its decision in advance of the hearing and refuses to hear (let alone consider) argument on any point of substance raised by the appeal where that argument may effect a different decision than the one actually made, will almost certainly fall into error. In reality, many decisions are made in advance but, tribunals don’t communicate that and argument is allowed to be put.

This only happened to me once. It was an industrial injuries appeal. As soon as we sat down the chair made it clear that my client’s loss of faculty was due to a pre-existing cause and that any arguments I cared to put were doomed from the outset. In and out in about 10 minutes. Decision set aside in even less time.