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I have an appeal where an ESA50 has gone missing, how likely are the tribunal to ask me if I have a copy?
These things are a combination of instinct, judgement and experience. When I first started repping I used to lead with the questions that were based directly on the legislation, and then not much more. How naïve I was. But, I got lucky and won my first few tribunals. When the penny began to drop I started putting clients through a mock tribunal without them noticing (nicely of course). That’s when I really started to learn. Part of the assessment, of course, is judging credibility. That’s a skill that takes time to learn. What you also learn is that a lack of credibility doesn’t necessarily mean that the client is lying. There are various factors at play such as nerves, confusion, lack of focus, etc.
However, another skill you develop is to be able to distinguish what is what. You learn to distinguish between a truthful but bad witness and someone who is not being entirely truthful or downright lying. Of course, we get it wrong sometimes. We can all be taken in. In the final analysis it’s a matter of the adviser’s judgement based on experience. What you must not do is prejudge the matter as each case is different and I have often formed a view at some stage in the interview only to change it later on in the interview, either way. Open mindedness is everything but, that said, trust your instincts. Credibility is crucial. Once that is lost, whether in a good tribunal or a bad one, then it’s usually all over.And, in answer to your post 8, you would not be breaking the law and could not be prosecuted. However, failure to obey a tribunal’s direction can leave you in contempt and you can be punished for that.
Nevip is spot on in my view.
As has been said, it is far from uncommon for there to be a contradiction between the info on the ESA50, the info recorded on the ESA85 and the info clients provide to us. Often this is easily explainable and tribunals will generally accept a reasonable explanation if (as Nevip says) the client is a credible witness.
I do really believe we as Welfs (or whatever collective noun you want to use) have a duty to maintain the highest possible standards or risk behaving in the same manner as the various politicians (and, sadly, public bodies) we daily castigate on the forum. We have to be Ceaser’s Wife as it were and do all in our power not to descend to their level. Without wanting to be po-faced about it, our duty is to ensure clients are aware of their responsibilities as well as their rights and to act accordingly. From what the OP says, the client in question has a reasonable case but the right way to go about presenting that case is not to withold relevant evidence from the tribunal.
I think there are strict rules on legal professionals withholding evidence. I don’t think you’ll be prosecuted, but if the Tribunal ask you and you say you do, it may scrutinise the paperwork quite closely. Of course, if you don’t have the document with you, it will have to adjourn and the next hearing could well be a newly constituted tribunal.
As a general rule, don’t mislead the tribunal and I agree with the comments above about judging the merits of your client’s case. That said, you never quite know what someone will say until they say it and the appellant is the wild card in the pack. Tribunal hearings have a way of focussing people. Or making them fall apart all together.
You completed the ESA50 so you should know whether 15 points were possible or not. If not and you’ve got no evidence then withdraw. If 15 points were possible then disclose the ESA50 and be prepared to argue the case.
My client has got a realistic chance of winning on the basis on both what they put down on the ESA50 and what they are telling me now. However, some of what they have told me now is contradictory to the ESA50. Therefore if I disclose the ESA50, the client’s credibility will be reduced.
What, precisely, is the explanation for this discrepancy? I am not asking you to go into detail here, but to think the answer through clearly in your own mind.
It may well be that there is an entirely reasonable explanation for the discrepancy and, if you make a frank admission of this to the tribunal what you percieve to be a problem will turn out to be of no real consequence.
A strategy you may adopt is to get your client to draft a witness statement - this can cover the discrepency and the reason for it as well as highlight the positive elements of the claim.
It is in your interest to get information over which outweighs this mistake/error/oversight as well as trying to illustrate credibility and reliability.
The panel are human too and do realise that mistakes do often occur - ultimately, they are seeking factual evidence of disability and evidence of inability.
Judge Boyd in a workshop in 2012 emphasised the benefit of witness statements.
As an example, I’ve had quite a few appeal cases recently where there has been a substantial delay (up to 18 months) between the ESA50 being returned and the WCA taking place. In cases such as these there is more often than not a discrepancy between the info on the ESA50 and the info recorded on the ESA85 (or mentioned by the client when seen shortly after the negative decision was issued).
To reitterate, as long as you/the client can provide a reasonable explanation of why there is a discrepancy most tribunals in my experience are understanding (and after all, client evidence should be accepted unless it is inherrently implausible, etc).
There are other angles here as well as the overiding issue of withholding evidence. The case and therefore its evidence is not the reps but the client’s. The rep has to advise and take instruction. If the rep makes a decision NOT to declare the ESA 50 then it has to be on the instruction of the client. Hence not only do they bring their reputation into disrepute but possibly the client’s as well. If they knowingly withhold relevant evidence without instruction that is even worse. If the client then loses the appeal possibly because of questions about the cedibilty of evidence where does that leave them? If they were wrongly advised not to declare something that they then agreed to, can they not seek reddress from the organisation that advised them? Where would that leave the reputation of that organisation and the position of the rep within that organisation? And how do you know that it won’t be declared some other way such as a client in Tribunal simply saying ’ I wrote in on a form my rep had not sent in.’ Do you really want to go there? If the Tribunal think it is not relevant they will say and it should be left to them.