At an appeal last week I stupidly remarked to the clerk that some of the evidence was "not worth the paper it was written on". It was a trivial remark and an unsuccessful attempt at humour.

The clerk later relayed this comment to the chair who referred to my remark in the proceedings and added it to her written notes - I stated that this should not be relied upon as I had not stated it at the hearing and it was being used out of context.

The appeal was refused (not unusual with this particular chair) and so will be appealing to the commissioners.

Is there any argument against the tribunal relying on a throw-away remark to the clerk prior to the hearing or worth making a complaint?

I now know better than to make any remarks in passing.

Mon 12-Nov-07 12:31 PM by Tony Bowman

I wouldn't be so hard on yourself - not just yet at least. It might be that when the chair issues the statement your remark was of no consequence.

If it turns out that your remark was influential then I can't see any reason why it shouldn't be considered, although I would suggest that it should carry very little weight. Perhaps it might be that if there was a close thing between preferring one report over another, your comment might have swung it. I suppose that it would have been fair of the tribunal to have clarified the remark with you, much the same way as they should put their observations of an appellant to the claimant.

Maybe those with more legal know how can add more - I'm going on common-sense and logic, but as we all know, those tend not to mean very much in this field.

A quick google search with the search terms (social security tribunals "hearsay evidence") threw up R(SB)5/82 as a decision allowing hearsay evidence, referred to in CDLA/2014/2004 in which Commissioner Bano also said (para 12) "it should carefully weigh up its (hearsay evidence) probative value before doing so, bearing in mind that the original maker of the statement is not present (in that case) at the hearing to be questioned about what he actually saw.

It sounds like you could put in an application for a set-aside, and if this is not succesful then apply for leave to appeal. The circumstances described could amount to a procedural irregularity.

I can't see that such "evidence" would be inadmissable - it would be up to the Tribunal to determine the weight to be attached.

The crux is likely to WHY the Tribunal felt able to rely on it and to what degree. If it's one of those cases where Tribunal's decision was one that was open to it (even though another Tribunal may have found differently), it will be difficult to get a Cmmr to overturn it. So, you will probably have to show that the Tribunal firstly relied on your remark and, then, it's reliance was so inconsistent with the rest of the evidence it should have been ignored.

I suppose, if you're prepared to take a personal hit, you could argue that the Tribunal was wrong to penalise the clmt for the manner in which the rep put the case - CH/1312/2002 (para 7). Trouble is, a Cmmr will need convincing that the remark resulted in an error in law.....

As an aside, some personal experiences involving legal action(s) have been interesting to the extent of my own mindset. In those legal actions where I have given evidence (handful of civil cases; one criminal), I have never once felt inclined to make an adverse comment about the evidence - not even in jest. Perhaps it was because it REALLY mattered - to me at least. And, I felt particularly strongly in respect of those cases. The point being that a "mere" rep (myself included) will rarely feel as strongly about a case involving third parties and, on occasion, will be presenting a case that is plainly weak - at best. In the latter circumstances, it's all too easy for the guard to drop - the inclination is natural.

Maybe, just maybe, the Chair felt that your own comment was a bit of a reflection of the case?

What was the evidence that you commented on?

The hearing was an adornment from a previous hearing - it was adjourned as TAS had sent the wrong bundles for the case to the tribunal - the original chair also requested a medical report from a personal injury case that my client is involved in.

I had trouble obtaining the report and only managed to get the report a couple of hours before the rehearing (the day was not going well). The clerk was aware of the trouble of getting the report and was concerned that hearing may be further adjourned if it was too long.

The main argument for the client's entitlement was his mental health and not his physical health - the PI claim is based on his physical health.

On quickly reading the report there was nothing in there that pointed for or against entitlement to DLA and given the palaver in obtaining the report this was why I made my comment to the clerk in the waiting room.

I was just concerned that a comment to a clerk in a waiting room should form part of the tribunal hearing.

This may be paranoia on my part but I have made a written complaint about the chair in the past and the reference in the hearing to my remarks to the clerk seemed somewhat personal

Should I go and work at tescos?

I'd go work at Waitrose myself - for reasons that shall remain undisclosed as they are not PC

Seriously though, the tribunal still has to give the report, and all the other evidence, due weight. So sit back and wait for the reasons. Only then will you really know... Is your client making a fresh claim?

Have you made the person you was representing aware of this?

If your remark was discussed during the hearing then any discussion forms part of the record proper. If your remark was not discussed during the hearing then it cannot form any part of the record proper as it was not part of the proceedings or evidence submitted in advance of the hearing.

However, as long as the tribunal is clear about why it rejected the documentary evidence and those reasons were germane, i.e. the evidence itself was inconsistent with other evidence or was unreliable (and proper reasons were given) then the fact of the remark being included in the record would probably not, in itself, be an error of law but a minor procedural impropriety.

If your remark was not discussed during the hearing then any reliance on it may amount to an error of law. If your remark was discussed during the hearing then any undue reliance on it may amount to an error of law. Its all in the statement of reasons really.

You may wish to raise the matter with a regional chair, if your remark was not re-raised during the hearing so that tribunals are made aware of proper procedure.

i'm at a loss to understand how a remark made NOT in the hearing could be said to be evidence (hearsay or otherwise) before the tribunal. Unless something is said ACTUALLY IN THE HEARING ITSELF I'm at a loss to understand how it could be evidence (or submission!).

but wait and see what the reasons are and whether it was in fact relevant to their reasons/raised.

having said that - if as you say your hearing was on one set of disabilities, but the paperwork was on another, surely you would have been making submissions in point in any event?

i agree with what kevin says about the crux of the issue and think it question of fair hearing. have you considered requesting a set aside?

Hi Claire,

Interesting, But I do have personal experiance that the tribunals held at Stockport, the clerks and security guards have been informing chairmen of the reps and their clients discussions, before the hearing (around 2 years ago).

That is an abuse of process and should be stamped on immediately. A complaint should be made to president of The Tribunals Service.

Understand the point you are making about abuse of proces etc - I know hindsight is a wonderful thing but to my mind I have difficulty in undestanding how someone could make comments about the the pro's or cons of evidence in front of a third party albeit a clerk- if I was the person being represented I would'nt be too happy about this (assuming I was told that this had happened.

Jon,

Have you had the statement on this? Anything of interest?

Chased up written reasons last week but they have not yet been received by TAS.

I had another appeal (DLA) with the same chair last week. About half way through my client began to cry. The chair then criticised me for not preparing my client properly for the hearing .

I let you know when I receive the reasons.

This chair sounds like a right charmer! I could think of better words but i'd be banned!!!!

Your client began to cry. Not because s/he was anxious/depressed/frustrated/embarrassed/distressed by the line or manner of questioning, etc, etc. The Chair just assumed it had to be your fault as you were an easy target. It sounds like that branch is a shambles and, like I said, a formal complaint might be a good idea.

Suffice to say that Jon is not the only one in his part of the world who does not have a reasonable relationship with the Chair in question......

I totally agree with NEVIP's post of 13.11.2007. What the rep said outside the hearing is irrelevant - only things said within the hearing are relevant. If it is indeed relied on, how do we know the clerk remembered it accurately in the retelling?

Ultimately, it surely doesn't matter very much what the rep thought about the evidence anyway. The view of the client about their actual entitlement can be evidence, and so can the view of the rep, especially if they have good knowledge of the client's circumstances and problems (as case law tells us). However, the view of the rep about the strength of third party evidence is surely far less important. So far as the quality of the evidence is concerned, the only view that really counts is that of the tribunal - that is their job.

If the decision goes against the client, I hope the chair does make reference to the hearsay comment - this would give solid grounds for challenge.

Steve

In my view, Nevip's comments were properly qualified - he didn't say that the rep's comments were irrelevant. Nevip made the point that it depended on whether the comment(s) was raised in the hearing itself.

Looking at the original post again, it isn't clear as to whether or not the comments were raised in the "proceedings" in terms of the hearing itself, or if they were merely subsequestly appeared for the first time in the record of proceedings. If the latter, I agree that there are slam-dunk grounds for appeal.

However, if the comments were referred to in the hearing itself, there is nothing to stop the comments from being admissable. There is plenty of precedent for evidence being allowed, irrespective of how it is sourced. For example, even if the DPA was to be breached, it doesn't prevent such evidence from being accepted by a Tribunal.

As suggested in my own post of 12 Nov 2007, the rep could consider taking a personal hit by conceding that his actions prejudiced his client. But, there would still have to be an error in law for an appeal to go any further.

Hi Kevin,

My comments were purely in relation to reps comments made outside the tribunal. Clearly, a reps comments are not irrelevant in general terms!

A rep may underplay or overplay the quality or relevance of evidence: my point is simply that the LQPM should ultimately come to the right decision about it. If only LQPMs were so easily influenced! Regarding your point about taking a personal hit, I am not sure how this could be done at this late stage - what do you think?

Steve

Hi Steve,

Assuming time limits have not been absolutely exceeded, there is no reason why the rep (or clmt) couldn't raise the issue of the rep's conduct within the grounds of appeal. The trick is then to be able to somehow show the Tribunal placed inappropriate weight to the comment(s). Not easy.... But, perhaps the record of prodeedings may shed some more light on it.

I was pondering on what I'd do if I had damaged a client's case in similar circumstances and, although it's easy to say on a message board, I'm pretty sure I'd hold my hands up.

One possible ground of appeal, relying on CH/1312/2002, might be to suggest that the Tribunal erred in law simply by taking my comments at face value and, in turn, allowing those comments to prejudice my client's case to such an extent it was not reasonable.

Thanks for that!

I have not read the whole thread so this idea may have already have been discussed.

You said to the clerk that some of the evidence was not worth the paper it was written on. The emphasis must be on the word “some”; did the tribunal attempt to find out from you which parts of the evidence was worth the paper it was written on if not this may be grounds for a challenge. I agree with others a lot depends on how the Chair has written up the evidence.