My sister had a tribunal hearing today re her claim for ESA - on mental incapacity rather than physical problems..

She did not have a rep with her - as her CAB worker could not attend for one reason or another... So I went with her for moral support..

I understood that as a friend, I was able to whisper to her but could not address the tribunal members.. I have never attended a tribunal either, as its not in my job role... Anyhooo.. I was told off by one of the tribunal members for trying to speak to my sister during the hearing.. Is this right..??

In my opinion, due to me not being able to discuss with her put her at a disadvantage as she couldnt remember last week let alone June / July of last year...

tvm.. D..

Tribunals must be careful here. Professional representatives have certain rights before tribunals including the right to speak. Where an appellant does not have a professional representative but has a ‘friend’ (whether that person is called a McKenzie friend or not is immaterial) then that person may advise the appellant during the hearing as long as in doing so is not seen to be acting as a representative or is ‘coaching’ the appellant. ‘Friends’ are only allowed to address the tribunal upon the invitation of the tribunal.

However, common law rules of fairness as well as the right to a fair hearing under the HRA mean that tribunals must have compelling reasons not to allow the ‘friend’ to address the tribunal and it must give the person guidance as to his role at the hearing and any limitations that go with it. Tribunals must act judiciously and must be seen to be acting so.

Hi and thanks for your answer...

Just to give a bit more detail.. at the tribunal were 3 member.. one sat at the back taking notes or something.. there was a chap who told us he was the legal bod and a woman who was the medical expert...

he asked my sister questions first.. and I whispered to my sister several times about things that she would have missed.. The legal bod never questioned me talking (quietly) to my sister..

Then the medical expert started asking questions, one of which my sister answered but not fully.. I went to whisper to my sister and was told not to speak to her or prompt her in any way...

In retrospect I should have taken notes and perhaps answered them at a later time at the end when they asked did I want to say anything (but not knowing the procedure and all that)...

So my personal view is that my sister did not get a fair hearing... being there for mental incapacity, she was bound to forget things relating to 8 months ago...

Im absolutely outraged about it, she was told she could take the matter further - but only under a point of law..???

Is it worth taking this further, on the sketchy outline Ive given, do you think she may have grounds, and how would she go about it..?

The DWP had given her 0 points on the test, the tribunal increased them to 12 - which I understand is 3 points short of what is required..

She has spoken to her rep (who couldnt attend) who said she should go on sign on JSA.. And that she cannot apply for ESA again on the same grounds as the previous claim...

D.. x

2 things spring to my mind immediately.

1. Ask for a statement of reasons from the Tribunal Service and then seek the advice from an expert (Post it on this site and you will get the opinion of the best advisers in the country).

2. How long ago did your sister fail the medical? If more than 6 months have passed, then make a new claim for ESA. If less, (which I doubt)then claim JSA until the 6 month mark is reached.

Hi and thanks.. can you re-apply after the 6m period on the same grounds.. as sister being told she cant...