Clerk would not let me talk to panel before Tribunal started.

At a DLA appeals tribunal I just attended. In brief; I was wanting to raise a sensitive matter to the Tribunal Board about a medical condition my client had which can be hereditary. As his son was with him for support he was anxious that this should not be mentioned as they had never discussed the matter. I was given the run around by the clerk and she said there had been a recent commissioners ruling re Reps talking to the Tribunal on their own. She went and talked to the Panel and 10 mins later she called me through to another room and explained that my client and I could go through where they would ask his permission for me to talk to them alone, he would then go back to the waiting room, I would ask them not to mention the hereditary nature of his condition, and my client and his son would be called in. I has raised this discreetly to avoid drawing attention to the ‘sensitive matter’ and was not keen to have my client walk up and down the corridor unnecessarily, so I merely asked the Clerk to ask them not to mention the hereditary nature of his condition during the hearing.  Now I worry she told them not to mention the condition at all as there was little direct mention of it even though my submission was full of it.

Does anyone know if there has been a ruling regarding Reps approaching Tribunal on their own. Thanks

The following is from p114 of the Tribunal Benchbook.

“Under no circumstances should the tribunal ever ask to see the representative alone in order to discuss the case in the absence of the appellant. And if the representative asks the tribunal if he can see the tribunal in the absence of the appellant such a request should invariably be refused the only possible exception might be in the case of a child or mentally ill appellant who has an appointee in which case the appointee should be present”

This is not strictly adhered to and I, personally, think it too severe.  I think there are more exceptions than the one quoted and judges should be given a little more latitude, bearing in mind at all times, the duty of fairness to the appellant.

I’m not aware of any case law on the subject.

Thanks for guidance on this and will refer to Tribunal Handbook. I did have notes from some training I had that it was possible to speak to the panel re sensitive issues. Perhaps asking clerk to pass a note to panel may have been better option.

Hindsight is a wonderful thing, but I agree that sending a note to the Tribunal prior to the hearing would have probably/hopefully been received more positively. There was a similar procedure I remember for DLA claims, where medical evidence that the client didn’t know about, or shouldn’t be made aware of (for eg, people with terminal illness), could be flagged up to try and avoid such situations arising.

Like Nevip, I’ve found that the benchbook stance is not strictly adhered to and that Tribunals are prepared to bend the rules a bit when they feel it is appropriate. I’ve been asked to ‘have a word’ with the panel on several recent occasions (and purely to save the client unnecessary stress).

In your case, I agree that hindsight is a wonderful thing but that if a similar situation arises again it would be best to put it in writing first. The only thing that worries me about sending sensitive info via TS prior to the FTT date is that even if it is clearly marked as harmful, it’s likely to go to an admin person who won’t read it and will simply circulate it to all parties.

I’m not entirely sure that benchbook quote is consistent with rule 11 of the TP(FtT)(SEC) Rules on the rights of representatives.

In many cases (for example where the only issues are legal issues and the facts are readily apparent from the evidence) then a representative on his/her own has every right to address the tribunal and could not be excluded.

Yes, you could be right; it might look as though that part of the benchbook has been overtaken by the new tribunal rules.  However, the use of rule 30(5)(b) or (c) might be an easier route.

I agree that the practice of not seeing reps alone in such circumstances is probably contrary to rule 11(5) - reps have the same powers as an appellant.  Also Rule 2(1) (b) (informality and flexibility in proceedings) and (c) (ensuring parties can participate - ie informing the Tribunal about the sensitive information would enable the Tribunal to proceed tactfully and put appellant at ease.

I have found that asking (in writing) a Tribunal to “give a Direction under Rule 14 (2)” is sufficiently opaque for appellants to not realise what is being requested in their interests.  I’ve only used it twice - once with DLA for a young child where a paediatrician had commented about the child’s medium term life expectancy and the child did not know and the other with an appellant who was known to explode when faced with evidence about his behavioural problems.