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Duty Rep Scheme at Tribunal Venues
I think part of the problem is that very few people appreciate the gulf between being signed off sick and qualifying for ESA - even the JC+ advisors don’t understand.
and that’s the main problem, isn’t it? if you’re signed off sick, you’re sick, and are unfit for work; there should not BE a gulf between that simple fact and qualifying for ESA
I have been concerned for some time at the number of people who turn up in tribunal waiting rooms scared witless and unrepresented. I suggested at our last tribunal liaison meeting that a list of reps be drawn up for each region and sent out with the enquiry form. This then gives the appellant time to make contact, with sufficient time for evidence to be obtained etc. The answer was that TS lack the resources to do this. Perhaps we could sort this out between us, and provide it for them?
I too am funded by LSC, the contract does allow for representation but only in certain circumstances (complicated appeals, vulnerable clients etc). We have successfully been paid by LSC for this work - so far.
P.S - The LSC’s definition of Mackenzie’s friend is not the same as the usual interpretation
Please tell us your secveret on how you got the LSC to agree to that. Representation is explicitelly excluded under the unified contract for WB as claimable work. You can attend in your own time and many do or you can be a Makenzie Freind but this exludes any form of represntation and is so ambigious and potentialy troublesome at audit that many do not claim attendances as MA either.
The representation is carried out as a McKenzie adviser.
Excerpt taken from - CLS Support Contracting Email Bulletin no. 95
“6.1 A McKenzie adviser provides legal support and assistance to a “litigant-in-person” at a court or tribunal hearing.
6.2 It is possible to claim contract time for acting as a McKenzie adviser at hearings (including tribunal hearings) that would otherwise be out of scope. However, the circumstances in which this will be justified are exceptional, and you should not routinely claim time for attending hearings as a McKenzie adviser.
6.3 To justify a time claim for attending a hearing as a McKenzie adviser, you must be reasonably satisfied that the client needs the assistance of a legal adviser at the hearing, due to
• the unusual complexity of the case; and/or
• the client’s material disability or insufficient knowledge of English.
6.4 By “unusual complexity of the case” the LSC means a case that is significantly more complex than the average case of that type.
6.5 The client’s circumstances (relevant disability or lack of English) will not, on their own, justify claiming time for acting as a McKenzie adviser. The client must need legal help from an experienced legal adviser, rather than the kind of help and support that could be provided by, for example, family, friends, a social worker, interpreter or support worker.
6.6 Because the role of a McKenzie adviser is to provide legal assistance to the client rather than actually representing them, your client must also be present at the hearing. You cannot claim time for attending a hearing as a McKenzie adviser if the client is not there too.
6.7 The contract rules on claiming time as a McKenzie adviser are set out at paragraph 4.11 of the NfP Contract Specification. If you intend to make such time claims, you should make sure you are familiar with these rules. You should record on your file your justification for making the time claim, referring to the relevant rules.”
I suppose the crucial thing to detail in the case notes is why the issue requires representation, the reason it is not a straightforward appeal (remembering that the auditor is not a welfare benefit specialist) etc.
The representation is carried out as a McKenzie adviser.
...
6.6 Because the role of a McKenzie adviser is to provide legal assistance to the client rather than actually representing them, your client must also be present at the hearing.
.....I suppose the crucial thing to detail in the case notes is why the issue requires representation
You keep saying representation but the rule you quote specifically says assistance not representation, is this a terminological issue?
if you go as a mackenzie friend, the tribunal will treat you as a rep anyway .... i know, i have!
and frankly, so expect a family member/interpreter/social worker to be any help in trawling the minefield that is social security law..
ah well, we all agree on that one!
Yes, there is a difference between courts and tribunals as in the courts non-lawyers (apart from the plantiff/respondent/accused) do not have rights of audience and may therefore assist but not represent, whereas in social security tribunals the distinction disappears.
In reply to post 17 - I wonder if enquiry form stage is too late as some agencies will not take on appeals if the first contact is beyond the case being referred to the Tribunal Service.
Does anyone have experience of a duty solicitor scheme in court? How does this relate to a duty rep scheme at a tribunal venue. Do you see similarities and are there similar advantages and disadvantages?
Coming to the discussion late…..
This was something we tried “under the wire” a few years ago.
Where we had appeals listed at one particular venue ( we cover 5) that didnt last the whole session we would turn up early or hang around and pick up other cases. Obviously it was easier with some types of cases than others - IB/IS and DLA for example.
The Chairs as they were then were broadly supportive. There were a number of adjournments but we got feeling that these were more meaningful to the tribunal.
It died off due to work load - and better listing by TTS.
Most of our experinced appeal workers will still pick up stray cases where possible but there are dangers involved.
I think this is a very interesting debate. Most of the cases we see are DLA/ESA related and I agree with Tony that people should be supported in gaining an understanding of exactly how the system works and what they are meant to be aiming for.
Because of the huge numbers of DLA appeals in the last couple of years (and with no local LSC services at the time) we decided to develop a self-help appeal guide last year which we are now deploying. This is complementary to advice (in person or phone and identification of case law (if relevant) at time of contact. Historically, we had a pretty good success rate for DLA appeals with written submissions, but what we found in recent times was that many clients took no responsibility in helping us help them. On one memorable occasion I phoned a client to give him some extra pre-tribunal advice (having worked on his submission for several hours) only to find out from TTS that he had actually withdrawn several weeks earlier. We now reserve our written submissions for people who are literally unable to write, or have cognitive or sensory problems, or legally complex cases. We also put a lot of effort into giving clients DLA pre-claim advice (getting evidence etc.), but again only a minority make an effort. Where people contact us post-tribunal we are always happy to look at SoR and advise them accordingly. The strange thing is that we get hardly any queries about the guides - they all have feedback sheets attached, although we have had one or two compliments.
As with most other agencies, extra funding for us is usually a non-starter and being part of a statutory body means we cannot draw down lottery or similar grants, so we have to make do and mend. However, I think there is a limit to the self-help yourself approach when it comes to complex cases, such as tricky HB appeals and especially overpayment cases. So, in summary I believe routine appeals can benefit from self-help/education, whilst others require specialist support. In lean times we may be seeing more of the self-help approach I guess.
Sure it’s frustrating when clients let you down but objectively let’s not forget: a) Most claimants feel pretty powerless and stigmatised about their situation - particularly given the repeated negativity about “welfare dependency” by politicians of all parties and the media and the increased remoteness of benefits administration. b) The preponderance of low to moderate depression among claimants generally (as borne out by research among unemployed people) c) The evidence from reviews of advice services that a significant number have literacy problems (one of the shortcomings of a leaflet).
I think there’s also a cultural issue. When doing WR in Liverpool in the 80s, it was noticeable how much more assertive many clients were about their rights compared to those down south