Wondered what people think about the following scenario:

1. Claimant appeals against a decision awarding the HRMC of DLA for an indefinite period- claimant is seeking to get the care component also.

2. I note, looking through the papers that the GP factual (the only medical evidence in the bundle at that time)is not sufficient to support the HRMC award (it is not that it is unhelpful - just that it does not give a distance without severe discomfort etc).

3. I advise client of risks etc. In the month in which I have to prepare the case I need to write to GP- the care case is to be put on the basis of mental health problems (which have nothing to do with the mobility award). I decide not to ask the GP anything further about mobility (in case it is unhelpful- in which case I would be left possibly with a letter that supports the case for care component but also gives a tribunal a shove in the direction of looking at the mobility award). I duly receive a letter from GP which is extremely supportive of high rate care on basis of need for supervision due to risk of suicide.

4. Off we trot to the Tribunal. They inform us they wish to look at mobility as well as care. I therefore request an adjournment on the basis that this was not an issue raised by the appeal and I have not prepared the case to defend the mobility component- natural justice demands this etc etc. There is insufficient medical evidence on the point in the papers etc etc.

5. The Tribunal refuse to adjourn and indicate that they believe there has been an opportunity to prepare the mobility case as I have been helping the client for last month and could have obtained further supportive evidence. I explain that I did not do this for the strategic reasons given above but they are unmoved. We elect to continue with appeal rather than withdraw (I am pretty confident about the care case).

6. Tribunal decision removes the high rate mobility and replaces it with a high rate care for a two year period.

Anyway, my thoughts on all this are as follows:

1. If the claimant had not been represented then presumably the tribunal would have adjourned (it was only because I was involved that they felt there had been an opportunity to prepare the mobility case which I had failed to do).

2. It would seem that the Tribunal decision (if it became a standard way to proceed) means that reps have to prepare to defend unappealed components all the time rather than relying on the - "Well if you want to do that then you should adjourn to allow us to sort it out" option.

3. If we do have to prepare to deal with issues not raised by the appeal at an appeal hearing just in case then I think it difficult- Should I write to the Doctor for medical evidence on an unappealed component that will potentially be unhelpful at the same time that I try to get evidence for the issue that is in dispute?

Anyone elses comments would be appreciated- I am toying with the idea of a statement request anyway as the risk to the client will not be that much (given the short award of HRC tribunal made- only 1 year left to run).

This got me thinking of 'The Benchbook' which was/is a guide for tribunal chairs. I understood it was something we were not supposed to have had access to. The version I did get a copy of is from 1999 and on adjournments states that:

'...it is particularly important that an appellant is put on notice and given an adjounment if any question arises of reviewing a component of disability living allowance not previously in issue in the appeal...'

Is this something which is still used and can we now get a copy under the new freedom of info law?

This is an important issue esp in DLA cases and I have just requested leave to appeal on a case where a similar point arose and the appellant lost an low award. Interestingly, the f/t chair who refused leave to appeal to Cmr states that 'In appealing the appellant puts himself in a position where effectively he has no award - thus he does not enter a hearing with the lowest rate of the care component, hence the warning is not strictly appropriate'.

Surely there are not many chairs who would remove an 'existing' award without any warning at all? What are other peoples experiences?

CDLA 2929 1995 lends support

" I agree with the current adjudication officer that the tribunal's decision is fundamentally flawed because there was no warning given that the tribunal would consider taking away the award of the mobility component. If that was their intention they should have offiered the claimant an adjournment to allow the case in respect of the mobility component to be prepared"

Jon, as an aside your F/T Chair is incorrect. Reg 40(1)(a)DMA regs. permits withdrawal of an appeal at an oral hearing. So the appellant who enters with an award and who withdraws will lose that award?
Wrong!

Mick

You know if you'd asked about HRM the GP would've ruined the whole thing, but now having been supportive you rue the day you didn't ask.

Is it worth going to the GP now and getting clarification of the HRM points on the original report, pointing out what has happened, which you can then use to support a supersession request and/or appeal.

It's easy from a distance to criticise the tribunal but you weren't unaware that HRM _could_ be in issue here, you HAD warned the client, and you HAD considered it when writing to the GP. But that doesn't mean you've done anything 'wrong', any more than maybe the tribunal.

I imagine this is one of those marginal chairs have just been told they need to cut down on adjournments cases. I imagine the chairman feels pretty uncomfortable about it now. I don't think you can really learn anything from these cases - your instincts were right that it was potentially a problem, you were right to be guarded when approaching the GP, you requested an adjournment when it did come up as an issue, you're now considering an appeal and mitigating the fallout on the clinet (who, if they hadn't had you, might have had an adjournment but failed to get evidence supporting HRM and therefore lost the lot) who, let's face it, has got a benefit worth far more in money and more in passporting terms (no more PCAs!) than they would ever have probably got without you. Reasonably, you could do the whole thing again in exactly the same way.

The statement may well be very useful in supporting the HRC renewal anyway.

Unless I'm missing something, you do seem to be saying that there was no evidence specifically concerning mobility but the tribunal in effect expected your client to justify the award from scratch. The tribunal however is surely obliged to give reasons based on findings of fact (based on evidence) why they overturned an indefinite award. If there is no evidence it seems a straighforward error of law that the decision was not supported by the evidence.

Thanks for all the replies.

In reply to Derek:

The evidence the Tribunal had to remove the HRM was the evidence of the claimant at the appeal.

In reply to Andrew:

I know I was aware that it was a potential issue. Ironically my advice to the client was that the Tribunal would HAVE TO adjourn if they wanted to look at mobility!

More generally:

CIB/4751/2002 does indicate that the Tribunal must ensure the parties have had adequate notice of the fact that they will look at the whole award (ie at issues not raised by the appeal):

"In exercising the discretion , the appeal tribunal must of course have in mind, in particular, two factors. First, it must bear in mind the need to comply with Article 6 of the Convention and the rules of natural justice. This will involve, at the very least, ensuring that the claimant has had sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case."(my emphasis)

(I'd just like to make it abundantly clear that I in no way support the decision Martin is left with. All of my contributions to this post are based on a somewhat perverse idea of wanting to understand what it is that makes tribunals make decision like this, and helping to understand how to deal with it on a practical basis. I do that out of purely selfish reasons having been in the situation Martin finds himself too many times.)

It struck me when I first read this post that the reply to Derek would have been "The evidence on the GP report, meaningless as it was". I've had a great deal of difficulty recently with the newly worded GP reports sent out by the DWP which ask in such woolly terms : "Please give details, IF KNOWN, of the disabling condition(s) on day to day life; ... (c) Ability to get around including pain, gait, balance, breathlessness and visual loss.", such that if the GP replies don't know that is taken to mean NO PROBLEMS AT ALL.

I think if the client pipes up "I can run a mile" then you're bound to be knackered (and doesn't it just happen sometimes??) and there's nothing you can do about it. (Although I'm sure your client didn't say that, but what did they say if there was evidence, Martin?)

So maybe you're right to suggest that you could have dug your heels in, but if there was anything on the GP report which indicated potential problems then surely you were in a very risky position. The tribunal can use silence as evidence can't they?

It's always interested me that DLA 434 forms allow you to the same as refuse to answer questions on mobility.

I think there is a fairly recent decision that says a GP "Don't know" means just that and can't ground an inference of "No problems".

The GP report was not unhelpful on mobility- it just didn't go into enough detail to ground an award of HRM on its own.

That'll be CDLA/4580/2003, which at the very least was reported in the Welfare Rights Bulletin 181, if not available elsewhere on this internet.

Mon 17-Jan-05 04:22 PM by ken

Here is a link to CDLA/4580/2003 which is available via the social security commissioners website @ www.osscsc.gov.uk.

Just a thought but you started this thread off by saying you got a worse decision than you started with. The only aspect I can see this being true is in the length of the award. Other than that high care is worth more than high mob and you also have poss of SDP or someone claiming carers allowance.

As was said above you saw a risk to the mobility, made a judgement about relative chances of success of care which turned out to be right. Unless I've missed something I can't see how you can be criticised, as long as the client was kept fully aware of all the risks and made their own decision about whether to go ahead.

Now you've got the joyous task of deciding whether to appeal further, bearing in mind that a new Tribunal could possibly not award the high care...

The beautiful thing about short awards is that they are relatively low risk to further appeal

Thus in this case:

1. One year of the award has already passed... the DWP will cough this anyway rather than putting it on hold pending the leave app.

2. One year of the award remains: quickest this will get around to a new Tribunal (assuming decision set-aside by District Chair and I wait the maximum time with each of my one month time limits) is about 6 months.... if it went to OSSC then it could take the remaining year.
Whichever way we only risk 6 months of HRCC.

I've just got a decision from Commissioner Parker which confirms that the 'safeguards' outlined in CIB/4751/2002 applies to DLA claims.

This case was in fact a renewal claim wher the tribunal kept the award at the same level but reduced the period. The appellant was not present and the tribunal failed to warn me as the rep that an adverse decision was being considered.

Comm Parker states

"The tribunal had full jurisdiction once an appeal was before it, if the facts and law demanded it, to leave the appellant in a worse situation than before he came to the tribunal. However, before it did so, it was imperative that the process of doing so was fair and transparent. The tribunal erred in law in failing to afford the appellant a proper opportunity to face and if possible prevent the tribunal considering in an unfavourable way an issue of entitlement not raised by the Secretary of State."

The case is CSDLA/840/2004 and I'll fax a copy to anyone who wants it.

Hi David,

If you can e-mail a copy of CSDLA/840/2004 to us @ mailto:rightsnet@lasa.org.uk, or fax us a copy to 0207 247 9924, we would be happy to publish it to rightsnet.

Thanks very much to David, CSDLA/820/2004 is now available on rightsnet.