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Duty Rep Scheme at Tribunal Venues
Has anyone had experience of a duty representation system running in tribunal venues ? Here in Suffolk we are considering the potential value of such a scheme and would be very keen to hear your experiences whether as a rep or as staff/tribunal members working at the venues. We are concermed about the number of people we are meeting at the venues who have had absolytely no advice or representation right up to the hearing and feel that this is something that will only increase with the changes to IB/ESA and potentially DLA as well.
Even if you haven’t experienced such a scheme is it something yu have discussed in your area and decided for or against persuing.
Any feedback would be much appreciated - preferably before mid-January - either via this thread or by e mail to .(JavaScript must be enabled to view this email address)
Thanks
I can only agree with the comment about people going to hearings without help or advice and often with little or no idea of the actual issues involved. This seems to be especially true with ESA appeals, the doubtful quality of some of the medicals enrages some claimants and can blind them to the real issue, not whether the medical was rubbish but what they should have scored points for and whether there is any independent evidence to back up their assertions.
We have had a number of instances where, faced with an appellant who clearly has no idea of the issues, the judge has adjourned to enable them to seek proper help and advice. I personally consider this an enlightened attitude, I feel that is very much in the interests of justice that an appellant who clearly has no idea what is going on is given time to seek help.
As regards a duty rep I am not sure how well that would work, it takes time to get the appellant ‘up to speed’ and to gather evidence and I suspect that a lot of the duty reps time would be spent asking for adjournments.
Yes that is one of our concerns and given the length of time that claimants have to wait for the first appeal to be listed and then the adjournments to be listed as well it could take an inordinate length of time - years in some cases!
In principle, it’s a wonderful idea. Unfortunately, I think the two major flaws have already been identified - knowledge (generally) and familiarity (individual cases).
However, this took my thoughts further. Why is a rep so important? It obviously is given that approximately twice as many appeals are successful for appellants who are represented compared to non-represented appellants. The fact there is such a difference suggests there are further issues that go well beyond the initial question of the need for representation.
As the law stands, the DWP and LAs are supposed to reach decisions inquisitorially. We all know that some DMs (and Appeals Officers)appear incapable of grasping this concept and, worse, deliberately pay lip service to it on occasions - at least in my experience. However, Tribunals are also supposed to take the same inquisitorial approach. Given that the presence of a rep makes such a difference, does the level of success by represented appellants tacitly suggest that Tribunals are not, in reality, dealing with appeals as thorougly as they should be (as a generalisation)? Presumably, if Tribunals were PROPERLY looking at the cases afresh and wholly inquisitorially (as they are supposed to), the difference in results for “repped” appeals and non-repped appeals would be much closer. In other words, are there too many cases where reps are effectively doing the Tribunals’ job for them? Are Tribunals being too passive?
I noted in an earlier thread the case where a Tribunal Judge simply adopted the response of the DWP as a statement of reasons. I don’t recall ever hearing of a case where a TJ adopted the representations of an appellant as the statement of reasons. True, it’s merely anecdotal, but it does make you wonder.
In principle, it’s a wonderful idea. Unfortunately, I think the two major flaws have already been identified - knowledge (generally) and familiarity (individual cases).
However, this took my thoughts further. Why is a rep so important? It obviously is given that approximately twice as many appeals are successful for appellants who are represented compared to non-represented appellants. The fact there is such a difference suggests there are further issues that go well beyond the initial question of the need for representation.
As the law stands, the DWP and LAs are supposed to reach decisions inquisitorially. We all know that some DMs (and Appeals Officers)appear incapable of grasping this concept and, worse, deliberately pay lip service to it on occasions - at least in my experience. However, Tribunals are also supposed to take the same inquisitorial approach. Given that the presence of a rep makes such a difference, does the level of success by represented appellants tacitly suggest that Tribunals are not, in reality, dealing with appeals as thorougly as they should be (as a generalisation)? Presumably, if Tribunals were PROPERLY looking at the cases afresh and wholly inquisitorially (as they are supposed to), the difference in results for “repped” appeals and non-repped appeals would be much closer. In other words, are there too many cases where reps are effectively doing the Tribunals’ job for them? Are Tribunals being too passive?
I noted in an earlier thread the case where a Tribunal Judge simply adopted the response of the DWP as a statement of reasons. I don’t recall ever hearing of a case where a TJ adopted the representations of an appellant as the statement of reasons. True, it’s merely anecdotal, but it does make you wonder.
I think this underlines my point about Tribunals granting adjournments, I imagine that it would be very difficult indeed to carry out any inquisitorial function if the appellant has never understood the issues and as a consequence produced irrelevant evidence like hospital appointment letters. This does not negate the point about Tribunals not exercising their duties as perhaps they should but perhaps those duties would be best served by an adjournment rather than subjecting a confused and already anxious appellant to a long inquiry into the facts of the case
Re: Kevin’s thought about the higher success rate for represented clients.
I suppose some of this could be that some of those unrepresented people proceed with cases which they’ve no hope of winning because they don’t appreciate the rules of entitlement and advisers tend to try to dissuade people from proceeding if they take advice and don’t have a hope.
By no means all I imagine tho….
Mairi
One possible way forward may be for a a few WR advisers nationally to write a clear, rights-based leaflet explaining the appeals process and to persuade the Tribunals Service to issue it. I vaguely recall seeing something produced in the past by a local authority WR service. It could also be available as a PDF on the various advice websites.
Given the dire shortage of advisers who represent before Tribunals in most areas and the surge in ESA appeals, such a leaflet might also suffice as a DIY guide to handling your own appeal - sure, representation is best but the reality is that most folk are unrepresented.
I’m willing to edit and coordinate the production of such a leaflet if there are some volunteers to write it. It will need to be no more than two sides of printed A4. I can also fund design and production costs - freelances like me who operate through a limited company are having our corporation tax rate cut in April, so I’ve decided to spend this unwarranted and unfair tax cut on initiatives to highlight cuts in legal aid and welfare.
I really like Neil’s suggestion, and would even be prepared to join a team to produce the information. However, I don’t think that the TS would be prepared to distribute it because they already have their own booklets on “How to appeal”. Unfortunately the standard version is 32 pages, but it’s also available as an Easy-read and in Welsh. You’ll find them at http://www.appeals-service.gov.uk/formsguidance/formsguidanceappeal.htm and paper copies are available on request.
which then brings up the point (circularly, i think) that people who don’t understand the issue in their case don’t understand enough to know that they might need help with it….
and the more so as the system encourages people to believe that they can deal with this themselves, when we all know it is the most complicated area of law going…
I like Neil’s suggestion and I would be happy to contribute. I take the point made about the existing information given out by TTS (and in form GL24) and also the possibility that a leaflet like this might ,in some sense, give appellants unrealistic ideas. I think it would be fair to say that for many appeals the issues are actually quite straightforward and, given that not every appellant can be represented, that a leaflet like this would be helpful.
There is also a second layer of people that become caught up in the appeals process- support workers, social workers , cpn’s , doctors and so on and almost none of these people know much about the appeal process and they don’t get the TTS guidance unless the appellant shows it to them.
Several appellants have said that they have approached their GP for supporting letters and the GP has refused saying that if the DWP want information they will write to them and it is quite common for letters from all sorts of health and social care professionals to just say something nondescript like ’ this person is unfit for work and I support the appeal’ without saying why.
If some guidance could be given to this group of professionals as well as appellants then the evidence that the unrepresented appellant gets is more likely to be pertinent than is sometimes the case now - obviously we cannot force doctors et al to read it or use it but it seems worth a try. Perhaps there could be a shortened version that an appellant could (download ?) to take to the GP when asking for a supporting letter which would have space to include the date of decision, the reasons why that date is so important and an outline of the issues- I’m sure most welfs already use use a standard letter saying something like that.
I have also come across some groups of healthcare professionals who seem to have been told by their legal departments that they must not under any circumstances provide any opinion for an appeal and a leaflet might include some guidance from the NHS regarding this - I’m afraid I don’t have any contacts in the NHS that I could speak to but there must be a central policy unit somewhere.
I had in mind that the opening paragraph of any leaflet would emphasise the need for welfare rights advice and ideally representation asap.
However, sadly the reality is that in far too many areas, such services either don’t exist, don’t rep at Tribunals, are overloaded or some are just not up to it (bold statement, that. :)
Speaking as an LSC funded caseworker:- we very rarely rep at Tribunals as LSC do not fund this part of the job, claiming it is unnecessary!
Personally I find this frustrating, as it feels as if we are only partly doing our job. Additionally, the one thing the vast majority of my clients actually want is to be represented at hearings, as most are aware of their lack of knowledge of the legal issues involved and of the procedure to be followed.
When (rarely) we do rep, we do so unpaid, for exceptionally vulnerable clients, and only when the hearing date does not clash with duties for which we do receive funding.
I have heard of cases where a Legal aid rep has got funding as a mackenzie friend to go to hearings - sounds like sailing pretty close to the wind though.
It does happen, but as a Mackenzie Friend our input is limited, and LSC would require us to justify our attendance!
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
Thanks for your comments so far - glad to see no-one actually responded on Xmas day ! We are working on many of the ideas raised already - leaflets/resource packs aimed at all levels including GP’s/Cons/other support workers etc. and clients. We are acutely aware that we are all overloaded with work already and just wont be able to offer ongoing representation to all who seek it. This is one angle we are working on but the idea of a possible duty representation system came out of these discussions (one of the district judges has wanted this for a long time and it has always been resisted on the grounds mainly that it would just lead to adjournment requests with no-one available to take the cases on anyway). We already have a court advice system in respect of housing issues as described above in this area.
The idea of something to distribute via the Tribunal Service is interesting but I wonder if it would just lead again to lots of people seeking representation which we would not have the man/woman power to respond to. Ideally we would like to get to people much earlier than this eg.. at initial application stage - poss proactive resource packs/leaflets for professionals and for clients (possibly given out with the ESA1). 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 dont understand.