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refusal by Tribunal to accept evidence
Hi all looking for some advice had hearing to day for client ,she has several MH issues and previously on PIP following a hearing in 2018 was awarded SDL only (no rep at the hearing) review form done and everything taken away ( client has got considerably worse since the decision) . as part of the appeal the client had submitted a report from the family court which was in her possession and she wanted this to be used as evidence , the family proceedings had come to an end and the report was a psychiatrist report prepared for the court about my client. it was a very supportive document in regards to her EUPD the cleint was fully aware of its content and had been given the document by her solicitor who was assisting with the family case.
the Judge today said that she would not accept this evidence and it should be deleted from the case until consent from the family court had been given . the client said that as she had this document she understood that that was the case from her solicitor apparently her solicitor had issued the same document with clients consent to other parties.
the case was adjourned today and direction made that admin were to remove this evidence and we seek the consent from the family court should the cleint wish to rely upon this. the client was extremely upset as the document was about her . this was then discussed with our team about evidence and consent and w have all at some point supplied this type of evidence in the way or presentencing mental health reports , accident report and CHAS evidence. this has always been with the consent of the cleint. we have also received Tribunal papers which will already have this type of document provided when clients or their support team have submitted such documents at the application stage as support. I spoke to her power of attorney who said as far as they were concerned as it was in her possession and she had consented then it would be consent by default. my question is if the Judge was correct to refuse this document , if so what systems are in place to prevent this type of document being included with forms at the application stage . we always gain consent of the cleint and they are fully aware what has been submitted . should we as advisers bee seeking consent from the criminal courts and family courts if we need to submit as evidence or are we ok as long as the client consents . if we need to seek consent then this will take months to secure. any advice would be greatly appreciated.
See paragraphs 74 - 78 https://assets.publishing.service.gov.uk/media/5fc65fa28fa8f5474d282a64/CH_2383_2018-00.pdf
The general note in Sweet & Maxwell vol III 2021/22 pages 1234 - 1235 on rule 15(2)(b) advises ‘this power, like all other powers under the rules, must be exercised so as to give effect to the overriding objective in rule 2’.
The judge is absolutely correct. Documents in cases under the Children Act and in some other circumstances such as in the Court of Protection are not to be disclosed on pain of contempt of court. See s.12 Administration of Justice Act 1960.
There was a case where an immigration paralegal narrowly avoided prison over disclosing these sorts of documents into tribunal proceedings in the immigration tribunal - https://www.bailii.org/ew/cases/EWCA/Civ/2019/1559.html
Some of the other documents you are talking about - pre-sentencing reports etc. - do not have the same protection because they are not heard in private and/or are not included in the list at s.12 AJA. But the family court documents specifically are not for your client to disclose without the court’s permission.
The need to be careful with documents relating to child protection has been made before - see JC v SSWP (PIP) [2016] UKUT 533 (AAC) - which also endorses the judge’s approach of having the offending documents removed from the bundle.
Thank you for this very helpful , how do the Tribunal get around this issue when the client has submitted the evidence at the initial claim then appealed we have seen documents that have already been included from the offset . They have already been passed on.
I’ll let Elliot deal with the above question albeit I think several of us will know the answer.
However, I think the wider context here is worthy of consideration for the future. I’ve had a few clients over the years hand me documents like this and I have generally handed them straight back and cautioned the client to seek immediate legal advice on their right to disclose. In one instance the client clearly had no right to hold the document and that brought their legal advice into question even when all concerned were of a mind that “it’s fine”. It really wasn’t. Equally I have had a client take said document back from me; use it to make their own notes on the impact of their condition and hand the latter to me with there then being no issue at all about incorporating that into a PIP 2 as needed. Effectively it was a very comprehensive aide memoire and its source was the client not the report.
Bottom line for me is that few pieces of medical evidence, regardless of source, are magic bullets. They can help a client to clarify their thoughts for you but their usefulness should arguably end there.
Thank you all so much with this the client is under the impression that her solicitor had already sorted this issue especially as they had already forwarded it to other third parties . As the client wishes it to be used we will gain the permission of the family court . from now on will take the approach do not take unless supported with a permission valuable advice. thank you .
Thank you for this very helpful , how do the Tribunal get around this issue when the client has submitted the evidence at the initial claim then appealed we have seen documents that have already been included from the offset . They have already been passed on.
There is a difference between what happens and what perhaps ought to happen.
Material like this should not be sent by your client to the DWP in the first place. If it is received by the DWP, it should not be conveyed onwards and, when the tribunal receives it, directions for its removal from the bundle should be made.
That doesn’t happen in practice because various parties are not alive to the significance of the issue.
All that you can really do is to meet your own responsibilities. You are responsible for the material you submit to the tribunal and, to a lesser extent, you are responsible for being familiar with the contents of the bundle and drawing the tribunals attention to any issues of this nature which arise from its contents (rule 2).
thank you again .
How far does the Administration of justice Act go?
I come across these documents every now and then as part of GP records. I’ve never had to rely on them as evidence so have just ignored them to avoid any potential issues.
I know the court can prohibit the sharing of most/all documents relating to a case, but does that relate to, say, documents that have no intrinsic connection? Such as a psychiatrists report that was or wasn’t written under direction from the court, and makes no mention of any of the court proceedings (or issues of the case). I.e. another identical report could be conceived after the proceedings, and having no relation to it.
(realising this sounds a bit like a fishing expedition as I write it)
Not to dodge the difficult question but s.12 AJA applies in England, Wales and Northern Ireland. It doesn’t apply to Scotland. I imagine that there will be equivalent provisions in Scotland but I am in no way qualified to advise on that!