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Return of the Presenting Officer
Our local Benefit Centre has started to send presenting officers to ESA appeals, and they have advised us that this is a Pilot for national roll out.
Blimey!
Haven’t seen a PO at an ESA appeal since the old queen died.
Where will they find the staff? Bet it doesn’t last.
Wasn’t this a recommendation in one of Harrington’s reviews of the WCA or I am dreaming that?
We are certainly seeing more POs I’d say. However, they appear to have come back with a bit of a personality change.
One of our reps stated that after their successful appeal, the PO had a word with him outside the tribunal along the lines of “you had us banged to rights there” - perhaps the atmosphere from the other courts had filtered through to him (this tribunal was being held in the local magistrates court).
I was there today and explained to the client what procedures happen in a tribunal including what a PO does, specifically using the general term of him “being a friend of the tribunal”, emphasing the non-adversarial approach taken.
Another appellant was clearly listening in before she got called for her tribunal. She came out 20 min later and tapped me on the shoulder telling me:
“I heard what you were saying about the Presenting Officer. In my tribunal he explained to me that he was a representative of the DWP but I told him “No you aren’t, you are a friend of the tribunal”. I was then told by the judge that that used to be the case but the law had changed recently, so they are representatives of the DWP now”. She won though so went away happy.
My client and I then went in for our tribunal. So did the PO. The judge explained that she had invited the PO in, who was not due to come in to ours (he was for the other 3 tribunals, just not ours?!?!). But she had invited him in as…....wait for it…...“a friend of the tribunal”.
Probably serves me right for being a bit too general with my terms…....
The law hasn’t changed. PO’s are still ‘friends of the tribunal’. For anyone who’s unsure see para 1300 of the attached guidance. The concept ‘friend of the tribunal’ (amicus curae) originated in Roman law, migrated into common law systems and now plays a role in most modern systems of law. The judge was either just plain wrong or being disingenuous.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/254402/cap-ch01.pdf
I had a run-in with a stroppy PO on a DLA hearing recently who introduced new evidence mid-way through the hearing. When I told her outside after the hearing that this was sharp practice and not consistent with being an amicus she all but exploded and shouted that they were now adverse to appellants.
This of course is tripe. The law hasn’t changed, but I think there are messages coming down from on high for them to be more challenging.
The PO’s manner irritated the full time judge so was actually counter-productive for DWP and we won anyway.
I dunno…..there’s alway been good ‘uns and wrong ‘uns.
In my time I have seen POs who are entirely reasonable, who will have picked up the case file only a day or two before the hearing and who will invite the tribunal to allow the appeal from the outset.
I have had others who have tried to interupt me and argue whilst I’ve been trying to address a point at the express invitation of the tribunal. We had one particularly horrible sow in SE London who used to behave as if any award of benefit by the tribunal was coming directly out of her pocket.
My favourite though, was the local authority PO who, when I argued for a particular interpretation of one of the HB regs, accused me of trying to re-write the law and mislead the tribunal - in front of a judge whose commentary on that same reg in the CPAG HB Legislation was where I had cribbed the argument from.
My favourite though, was the local authority PO who, when I argued for a particular interpretation of one of the HB regs, accused me of trying to re-write the law and mislead the tribunal - in front of a judge whose commentary on that same reg in the CPAG HB Legislation was where I had cribbed the argument from.
I remember with pleasure sitting on the first ever Child Support tribunals, as a special batch, with (now) Judge Jacobs and Prof. Gillian Douglas who, with him, wrote ‘Child Support: The Legislation’. We had a valleys solicitor who started off, “This law is very new, let me explain it to you”.
Ah yes, those were indeed the days Gareth - my first Child Support appeal had great fun as the chairman insisted that I either take the oath, or afirm if I wanted to represent my client. Used all of my (extensive watching of Rumpole on that one.
No that many PO’s turning out up to yet but have had trouble with one or two of the newer ones (former Decision Makers?) Quoting guidance as ‘law’.
Should say the ‘you will swear - in’, stand off was not down to Mr J or W.
[ Edited: 5 Feb 2014 at 01:09 pm by Grunkle ]I must say that things have moved on a lot since the 1980’s and 1990’s. Since then I’ve had good relationships with PO’s and often found them quite helpful. One PO, here, seems particularly fair minded and quite keen to see justice done. I sat with him once (on a mental health case) and at the end when asked to speak, he, decently, pointed out that, under the table, my client was shaking like a leaf.
I have also had several amusing exchanges with PO’s in the past. Once, in evidence one cited an unreported CD. I was anticipating that and in reply cited a reported one. On another occasion I had relied on a court of appeal decision which was on all fours with my client’s case. The PO, trying to make a fist of it, attempted to argue it down. The chair (as then was) just looked at her helplessly before telling her that she was simply wasting her time as he was bound by it. Very satisfying.
There are occasions when you can’t help feeling sorry for them though. Like when they are given the papers to several cases only on the morning of the hearing. How many of us would welcome that. Another occasion was a DLA supersession case. The DWP had filmed my client and interviewed him under caution. The evidence showed my client walking approximately 100 yards from a van to a market stall. I asked the PO during the hearing how many times they had observed him doing this. When she replied “once” I couldn’t help but feel for her. I’d have wanted to have a serious word with anyone who’d put me in that position.
[ Edited: 5 Feb 2014 at 01:39 pm by nevip ]I haven’t seen a presenting officer from the DWP since 2003, and the last two were “living together as husband and wife” appeals where the DWP suspected the claimants of fraud. I never rated the DWP presenting officers highly, but think they must have had a limited brief as most simply read out the submission they’d already put in the appeal papers without adding more or contradicting any of the arguments I made.
I have seen two presenting officers from housing benefit departments. In Liverpool (where I worked up to 2008) the HB department’s approach to appeals is to print out the appellant’s entire HB claim record as the appeal papers, with no submision or clear explanation of the reasons for the decision. The presenting officer has never been able to clarify the local authority’s case at the appeal hearing. This tends to baffle the tribunal judge and make the hearing longer than it needs to be. It also results in the local authority losing HB appeals more often than not.
The other HB presenting officer is the one from my current local authority, we have met recently because I have had a series of bedroom tax appeals. Her approach is much the opposite, though I suspect she too has been given a limited brief as her appeal submissions are all quite similar. But I find it more helpful than otherwise to be able to identify a presenting officer and be able to communicate with them directly about a case, rather than them being anonymous and unreachable.
I stand by my view that PO’s are “friends of the tribunal”. Interestingly though a PO told me last week that they are not. So, what guidance is being handed down by senior managers regarding this and what does the DWP solicitors’ office have to say? Does the DWP expect PO’s to start being aggressive defenders of the decision under appeal? If so, this is not good for the interests of justice unless tribunal judges jump on any such practice from a great height.
I stand by my view that PO’s are “friends of the tribunal”.
And the role of a rep is…?
To assist citizens to enforce their legal rights.