Not sure if I'm going overboard with this query, but interested to know what others think.

Appellant goes to tribunal and is warned (before it opens) that his low + low indefinate DLA award is at risk. Ignores warning and Judge opens the hearing. Not sure what happened next, but tribunal is adjourned and directions issued.

The principle direction is that client seeks advice from a CAB or similar agency as tribunal is considering changing the award. The other direction is that same members will sit again when tribunal recommences. Client turns up at our office (never seen before) and seeks said advice. We note that there is no direction about getting more medical evidnce etc.

We look at bundle and find there is an EMP report that (in our opinion) leans towards high mobility (significant impairment), but then goes on to state client can walk 200mtrs. From experience we know that 200mtrs equates in reality to 0 -50mtrs for this particular EMP and that taking other factors into account we would normally be aiming for high mobility. However, there does indeed seem to be evidence to support low mobility (the current award). The care side is more iffy, but might scrape in at low. In other words, if we had not been influenced by the directions that is how we would have formulated the appeal.

My problem with all this is:

1. I don't know what the tribunal has already observed with regard to the appellant's mobility so at the recommencement (given the explicit statement in the directions) there is already a mindset on their part. So, no matter what our advice would normally be, what we are 'meant to do "is tell appellant to withdraw (with permission of the judge).

2. Surely, having warned the appellant at the outset, the tribunal should simply have gone ahead and done their worst. They had the medical report after all.

3. The tribunal's action changes the dynamics of the advice relationship , i.e. it will be 'our fault' if the client's DLA is withdrawn if we don't reinforce the tribunal's message.

I guess that the directions are down to the new tribunal "overarching justice" rules, but this seems rather odd procedurally.

all you can do is advise client to the best of your ability on the information he gives you and the evidence available, whilst warning client of the likely outcome given the current position, and advising of appeal rights thereafter.
and the fact that they haven't given direction for more medical evidence, doesn't mean you can't write in and say you're getting it - it was, after all, they who told him to get advice

I assume that the appeal was the result of DWP not agreeing to a request by the client to supersede his dla award to get a higher rate.

If so, is there any force in asking for a direction to the original judge to detail the grounds upon which the tribunal was considering that there were grounds to make an adverse decision on the client's application for superesession? There are other recent threads on here about the case law which warns tribunals of the dangers of taking such a line.

In my view, within the over riding objectives of fairness, equality of arms and whatever, I think the client is entitled to know the basis of the tribunal's initial view, so that s/he, and especially you, can address it. As it stands, it seems as though a tribunal has simply warned an appellant of a potentially adverse decision without being prepared to give any reasons, and that makes your job harder because you are having to guess at what they were thinking of - do they think there was evidence of a reduction in care/mobility needs, and if so, what was the evidence of that that change (rather than opinion) ?

Brian

Have a look at CDLA/884/2008
http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template1=briefcase/detail.htm&briefcase.ID_option=1&briefcase.ID=91212562432

I think the tribunal should be applauded for taking this approach. They have given the appellant fair warning (the contents of the two CD's in the above link noted) and adjourned to enable to the appellant to seek professional advice and assistance.

I would not be at all worried about knowing or not the perceptions they had or the observations they made.

Now that the client has the advice suggested then any impropriety by the reconvened tribunal will be duly challenged and appropriate action taken. I can only suggest that you proceed as you would in any other DLA appeal which would include avice regarding any risks faced by the client regarding the existing award.

I think more tribunals should take this approach.

I would write and request information on the evidence used to cast doubt on the current award so that you are better informed before proceeding.

Was a presenting officer present at the adjourned tribunal? If so what was their interpretation of the new evidence and is the Department continuing to support the current award?

Procedurally the tribunal gave a suitable and fair warning in relation to the case law. However you feel there is a good case for HRm here, but what are the chances of the tribunal overcoming their potential prejudged doubt of the current award? And then following this making the “leap” to award HRm?

I had a very similar case where the LQM also adjourned and sent the client for advice. On paper substantial impairment of hands and client seeking MRc. However tribunal doubted LRc award as GP records showed client may have broken his hand attempting to assault someone.

A broken hand would not be expected to be disabled for the entire forwards/backwards test so the tribunal in your case was apparently being more than fair in sending your client away.

I would advocate against seeing tribunal's taking this action as potential prejudice. If they are actually so, or if the claimant percieves them as so, then there are procedures and remedies for that. But if we give tribunals reason to negatively doubt decisions to adjourn by assuming prejudice then I believe we'll do ourselves and our client's an injustice in the long term - mainly becuase it will be the tribunals themselves who will feel victims of injustice ("damned if one does; damned if one doesn't")

I would not even contemplate prejudice unless it was evident.

Just to clarify this was someone with a long-term disability in his hands/wrists that the EMP described as substantial who happened to suffer from a broken hand more recently.

Where the Department has been made aware of the "suspect" evidence and continues to support the current award it may not show prejudice but it does give the appellant the impression that the tribunal is leaning against them before they have heard their oral evidence.

In other completely different circumstances perceived fairness of the appellant is considered eg. if a tribunal for example fails to consider a previous award.

Well, having had all the options set out client has decided to withdraw.

Will await to see if DWP attempt to supersede the existing decision on the basis of the EMP report - they will have been copied in on the directions too. If that happens, it will be new appeal on basis of no grounds to supersede I guess!