Producing Evidence for Tribunal

I attended a Tribunal today and was informed by the Judge that they have been instructed to report to TAS any appeal hearing where evidence including a Rep’s written submission is submitted less than 8 days prior to the hearing. 

While I appreciate that you should submit evidence as early as you can, I have often not received medical evidence until days before the hearing and after much chasing up to get it, and have had no problem with it being accepted close to the hearing in the past.  In fact today the evidence was accepted and the client awarded points under the WCA as outlined in the evidence but the Judge made a real point that it was going to be reported to TAS…Is anyone else aware of this?

Not heard anything in this area, but there is a TUG meeting tomorrow, so may be able to update you then if it is across the board.

I’m always in trouble, for giving late evidence, but as you say this is often due to having chase up Medical reports e.t.c.

This can be all the more difficult when relying on the ‘good will’ of the medical proffession, when you don’t have a disbursement to pay for reports.

I wonder if TAS are keeping track of late information that they send out??

At a recent meeting with the full-time Judge in this area I raised the same point.

Rule 24 (7) states that “Any submission or further documents under paragraph (6) must be provided to the Tribunal within one month after the date on which the decision maker sent the response to the party providing the reply, and the Tribunal must send a copy to each other party”

At numerous Tribunal hearings this paragraph has been quoted to representatives when material is presented outside the one month limit or on the day of the hearing with the warning that the Judge has the right to refuse to accept it.

The commentary to this rule on page 1347/8 of the Social Security Legislation – Volume 3 – Administration, Adjudication and the European Dimension with commentary provided by Mark Rowland – Judge of the Upper Tribunal and Robin White – Deputy Judge of the Upper Tribunal states that;  “……………A one month time limit is now provided, but that may be regarded as a minimum period that must be given to the parties before a case is determined and it will seldom be proportionate to refuse to accept a late submission or evidence unless another party would be unduly affected by the delay, particularly where there is to be an oral hearing at which submissions and new evidence can be expected whether or not written notice has been given”

A little confusing

I have noticed that more of an issue is being made about evidence coming in within a week of the hearing and agree that it is often hard to obtain medical evidence until the very last minute due to lack of communication by clients/medical professionals. It is obviously good practice to ask for this information as early as possible but badgering the medical professional into providing it is time-consuming and results in unnecessary increased costs on the file. Are there any duties owed to their patients that can be cited and used to speed the process up.

I think that on the whole judges are willing to hear as much as possible before coming to a decision but can envisage strict guidance being issued in this area in the near future that limits their discretion to do so. With the increasing number of appeals, thanks ATOS!, and the squeeze on resources it becomes ever more likely that tactics such as this, which are going to lead to less success on our side and can be easily framed as achieving CPR aims, are going to be employed.

This issue has been raised again in a letter from the Regional Tribunal Judge to my service reminding us of our obligation under rule 24(7).  It appears that between September 11 and April 12 we submitted evidence late on seven occassions ( As a service we attended about 150 appeals in this time) He is asking Tribunal Judges in the area to report specific instances of late submission of evidence with the “treat” that: -

“Tribunals will be obliged to consider strictly enforcing the Rules, which might mean that evidence submitted by you is excluded from the proceedings in accordance to Rule 15”.

Most of the time the reason for late submission of evidence is, as mentioned in an earlier thread, due to getting it at the last minute.  I thought that getting evidence in late on only 7 occassions wasn’t too bad considering all the facts and the numbers we deal with.  Obviously not!

Has any other service received a similar rebuke?

I think that some tribunal judges are getting rather carried away with themselves operating under their new nomenclature and are coming remarkably close to taking leave of their senses.  Some sense of proportion is clearly being abandoned.

First, it must be remembered that the rules are there to cover all eventualities from the most simple of cases to the most complex: from evidence running from a one page letter of some sort to a weighty consultant’s report obtained for a medical negligence case.  Rule 2(1)(a) and (b) requires dealing with cases in ways that are proportionate to their complexity and avoiding unnecessary formality and being flexible.

Second, as has been said, and as we all know, representatives don’t have total control of events.  Sometimes clients don’t come to us until they have a date for the hearing, or respondents to requests for evidence take forever to reply, or letters to and fro get lost along the way.  Certainly, where reams of evidence are handed in on the day then judges should adjourn the hearing and not, as a knee jerk reaction, simply exclude the evidence.  In my experience chairs/judges here have always taken a fair and pragmatic approach to these things.

And finally, the overriding rules under rule 2 must be borne in mind, under which the overriding objective is to deal with cases justly and fairly.  Any judge who excluded any evidence which had real probative value just because it fell foul of a narrow reading of rule 24(7) would almost certainly, in my view, have the tribunal’s outcome decision (if the appellant lost) thrown out as a breach of rule 2 and as a breach of the right to a fair hearing under article 6 of the HRA.

It must depend in part on how much evidence. No tribunal is going to be willing to read thirty pages of medical evidence on the day. One page, if you couldn’t provide it earlier, is different. That way lie adjournments, and judges are in fear and terror of unnecessary adjournments becasue they get told off for doing them.
There is also the practical problem that there are many tribunal venues that are only part-time and do not have permanent office staff. To save time and trouble papers for several hearings are often taken by the clerks out of the office well before the date of the hearing, especially if they themselves are going to be away from the office continuously for several days. This means that anything you send in late may never catch up with the rest of the files, and if the fax at the venue isn’t working, or if it is 30 pages - well, there you are.
There is also the argument that the respondent to the appeal has the right to see all the evidence in advance so that they can respond to it and even (theoretically) decide whether to attend. I know that there is case-law to the effect that being surprised by evidence given at tribunal is a risk the SoS takes if he decides not to be represented there: but the fact remains that the rules about fairness to the parties in the overriding objectives do apply to both parties, and both parties are expected to cooperate to deal with the case.
So I would say: keep your late evidence to a minimum: if you are having difficulty getting hold of specific evidence, tell the tribunal in good time; and above all remember that a good 60% of medical evidence produced at tribunals is completely irrelevant to the decision under appeal, or at least as to whether the appellant meets the legal criteria. Never ever ever send in the appellant’s entire medical records since the time they had their tonsils out at age seven!
In the civil and criminal courts it is oral evidence that carries the most weight, and that is likely to be just as true in Tribunals. The main exception is in cases turning on a point of law (not fact) where a particular document is crucial to proving or disproving some crucial point, not your bog-standard ESA and DLA appeals.

Thanks Ariadne, all very good and wise advice but it basically covers what we do now.  I tend to agree with Nevip that we are in danger of losing out on the intention of rule 2 and the “overiding objective”.  Yes we do get evidence in late sometimes - even on the day of the hearing itself when a client attends with a letter from the GP in their hand.  This is never intentional or planned;  Its just life.

Interesting point you make about adjournments and Judges being a little reluctant to go down this route because they may be told off but not something I can take into account when representing a client.  Neither is the fact that the DWP cry foul when they have every oportunity to attend the hearing.  As Judge Rowland says that at an oral hearing “new evidence can be expected whether or not a written notice has been given”

I guess we will have to try harder but I doubt we will ever get to the stage where evidence is never submitted late.