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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

simultaneous listing of husband and wife’s disability appeals

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Ngaryan
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Has anyone come across a situation where the DWP has asked for 2 PIP appeals for 2 different people to be heard together?

We have tried to put objections into the tribunal and asked for the appeals to be listed separately and before differently constituted panels.

This has been refused on the grounds of: rule 2 and in the interest of consistency it is appropriate for both appeal to be heard by the same tribunal.

Anyone else come across this and suggest ways of how we can get these appeals heard separately?

HB Anorak
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We need more details.  In general terms I can think of a few reasons why it could be a good idea to hear both appeals together in a case like this:

- if either member of the couple is also claiming Carers Allowance the Tribunal will get a better idea of how their personal care needs and caring abilities are compatible with each other
- each could be a witness in the other’s appeal, so might as well bring it all together for convenience

What is your objection: how do you think that either of them will be disadvantaged by having a joint hearing?

Peter Turville
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Have the appeals been listed for the same (joined) hearing. Or two separate hearing but listed on the same day before the same panel (presumably one after the other)?

We have successfully requested HMCTS list a couple’s individual (PIP) cases to be heard on the same day due to their individual mobility & communication needs.

It would be difficult to see any merit in an objection to two separate hearings on the same day but every merit in an objection if they have been listed to be heard together.

Mike Hughes
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HB Anorak - 24 April 2019 11:23 AM

We need more details.  In general terms I can think of a few reasons why it could be a good idea to hear both appeals together in a case like this:

- if either member of the couple is also claiming Carers Allowance the Tribunal will get a better idea of how their personal care needs and caring abilities are compatible with each other
- each could be a witness in the other’s appeal, so might as well bring it all together for convenience

What is your objection: how do you think that either of them will be disadvantaged by having a joint hearing?

A slippery slope?

This is a new approach to couples’s cases and it strikes me there are multiple complexities which would prevent the cases being heard together.

1- both parties would need to consent to the other party having sight of their appeal bundle. Any discussion taken place at all as to whether one bundle contains evidence which may be sensitive/upsetting/unknown to the other party?

2 - the issue of the extent to which enquiries into caring responsibilities might impinge has been covered elsewhere here. I don’t see that this could be a reason for bringing both cases together. It only arises if brought into contention. The existence of a couple where both are disabled and both are carers does not automatically take you to the conclusion that the extent of the care must automatically be at issue.

3 - each party could only be a witness if they choose or are required to do so. If neither apply then what exactly would the basis be?

That’s just my initial top of the head thoughts. One might also want to raise the fundamental issue of fairness as described in the rules. What is fairer for the claimants? Is one more able to attend than the other? Is stress best managed by separate hearings on separate occasions etc?

I can see the sort of logic for listing together but it strikes me as a scenario heading straight to UT with the ultimate outcome being that this is rife with problems from the off.

 

ClairemHodgson
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i should have thought it’s going to be fact specific, what you might want to do on any individual case, depending on the disabilities, the evidence of them, the capabilities and evidence of them, individual client’s engagement, all the issues that you would be looking at anyway.

Clearly in some cases it would be useful for both to be heard on the same day (i can’t see at the same time being a good idea, too much room for confusion all round!) since you’d have both there to support each other etc and in many cases it would then become clear that mutual support was being provided.

no doubt the DWP will want to be able to show that the caring doesn’t fit with the disability - that’s clearly a matter of evidence as to who does what in respect of a mutually supportive relationship where the disabilities are different.

and of course, one assumes the same rep is for both people in said relationship - so you at least can know the cases yourself and address any issues before they come up.

BUT t if someone gives evidence in one hearing saying a, b, c, and then in a different hearing says x, y, z (i.e, the opposite), the DWP would rightly find a way of pointing out that discrepancy and you would thereby open up a major can of worms (labelled, probably, fraud)..  since abc being the opposite of xyz, someone hasn’t told the truth .... the more obviously so if both on same day before same tribunal members.  granted the subject isn’t mentioned in the tribunal rules, and granted no one swears to the truth of anything - but nontheless, a possiblity.

Elliot Kent
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I had similar first thoughts to the above - i.e. “this is a bad idea”. It would be one thing if the parties agreed to it, but trying to awkwardly mush together two factually dissimilar PIP cases in the face of opposition from the appellants seems like a recipe for disaster.

But of course, we can get beyond first thoughts by looking at the actual law.

Specifically, if the direction is for simultaneous (rather than sequential) hearing of the cases then - whether the Judge has appreciated it or not - they appear to be exercising their power under Rule 5(3)(b) which provides for directions to:

consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case (whether in accordance with rule 18 (lead cases) or otherwise);

Where you have overpayment cases heard together or cases brought by a single claimant, the “common issues” are fairly obvious. Cases which might be brought by different appellants are less likely to raise “common issues” whether the appellants are related or not. An example of a case where “common issues” require two cases to be heard together might be where two claimants are seperately found to be LTAHW - and the two cases therefore stand or fall together.

But the question here is - what are the “common issues”? Whether two people who happen to be married are each individually sufficiently disabled to qualify for an award of PIP does not obviously require the Tribunal to engage with any significant issues which are common to them each. Perhaps you can come up with an example where two claims become so intertwined that they start to merge into each other (e.g. if each partner has claimed that the other makes all the meals because they are too disabled to do so themselves) but it strikes as being a somewhat unlikely situation.

SamanthaM
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Hi all,

First I wanted to apologise that we didn’t respond to this message in a more timely manner. Ngaryan managed to lock herself out and took me a while (I’m the caseworker for the husband) to sort out a login.

Some more background - both cases relate to overpayment appeals following a fraud investigation by the DWP. The direction is that the hearings will be held simultaneously not consecutively as a joint hearing. The direction was given at the request of the DWP, and following an objection we submitted on behalf of the husband. The ruling was made on the ground of Rule 2.

Both are appealing an overpayment decision that was made on the grounds that they misrepresented a material fact and both have lost their PIP as a result. We have maintained a wall between the two cases as we were concerned about conflict of interest, however the evidence that I have from the DWP does in part (but not significantly) contain evidence relating to both parties.

It is difficult to see how assessing the two cases at the same time is in the interest of justice, the clients do have different difficulties, claimed at different times and have been asked for overpayments relating to different time periods. Incidentally neither one claims to be a carer for the other, and that at least is not relevant to the issues in my case.


Sam

[ Edited: 29 May 2019 at 04:39 pm by SamanthaM ]
Elliot Kent
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I think that the case management decision makes significantly more sense in the context of an overpayment decision following a joint investigation into both members of the couple. I think most of us had assumed that these were “standard” PIP appeals from the original post. Whether it is really justified on the facts of the particular case, I don’t think we could know.

It is possible, although very rare, to appeal interlocutory decisions to the UT. It might be worth considering. Clearly the decision is going to have a very significant impact on the way that the proceedings play out and, if so instructed, it might be better to try to nip that in the bud now.

Peter Turville
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What is it that the DWP argue the two individual claimants have misrepresented? Is it their individual functional limitations? Short of making inaccurate statements as the partner on each others PIP2 etc. I am struggling (of the top of my head) to think of an issue that they could individually misrepresent on their own claim that might affect their partner’s claim. Are DWP arguing in effect that the claimants colluded to exaggerate their individual limitations?

In my experience when DWP argue a claimant has misrepresented the level of their functional limitations following a fraud investigation, IUC etc. their evidence base is often very limited. There is of course a big difference between an honest representation of limitations as the claimant sees it which does not accord with the facts / criteria and a (deliberate) exaggeration that amount to misrepresentation.

As stated above the tribunal will be required to make and very carefully record facts and reasoning about the individual cases when making its separate decisions on the two appeals.

SamanthaM
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Yes, at least in my case they argue the claimant has exaggerated the impact that his condition has on his mobility and daily living. As you say the evidence they are relying on (again I can only talk about my case) is overly damning apart from one particular incident. There is no particular evidence of collusion between the two of them that I have seen.

My concern that is the DWP are largely requesting the two cases to be heard simultaneously because it is helpful for them to give the impression that there is deliberate collusion - even though the evidence in itself is not that compelling against them. I don’t see any other reason why this would be requested.

Peter Turville
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SamanthaM - 30 May 2019 10:37 AM

Yes, at least in my case they argue the claimant has exaggerated the impact that his condition has on his mobility and daily living. As you say the evidence they are relying on (again I can only talk about my case) is overly damning apart from one particular incident. There is no particular evidence of collusion between the two of them that I have seen.

My concern that is the DWP are largely requesting the two cases to be heard simultaneously because it is helpful for them to give the impression that there is deliberate collusion - even though the evidence in itself is not that compelling against them. I don’t see any other reason why this would be requested.

The judge on the day may have their own view about how to proceed in the circumstances and may in practice hear them as if they are two separate hearings (even to the extent of excluding the other partner from the hearing other than to call them as a witness if required).

Given the differences between the partners cases and that they have separate reps you may want to consider an appeal against the interlocutary decision as Elliot suggests above. Or go ahead and appeal the tribunal decisions if issues about how the joined hearing proceeds, findings of fact etc become ‘entangled’ etc. in the decisions on the individual cases.

I suppose it is a tactical question based on your knowledge of your clients case, the local tribunal judges etc. Have you discussed this with the rep for the other partner (I understand why you have adopted the chinese wall approach to date). The judge on the day may allow you to make representations about how the hearing should proceed.

Elliot Kent
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Peter Turville - 30 May 2019 11:02 AM

I suppose it is a tactical question based on your knowledge of your clients case, the local tribunal judges etc. Have you discussed this with the rep for the other partner (I understand why you have adopted the chinese wall approach to date). The judge on the day may allow you to make representations about how the hearing should proceed.

I agree that this is an option but I wouldn’t like to leave this to the Judge on the day. There will presumably need to be advance disclosure of the papers for each appellant and you will need to think about the approach you are taking to the other claimant - if there is a risk of conflict then you need to think about this. The idea of needing to cross-examine the other claimant is perhaps a fringe possibility. Its also probably going to need listing for at least a full session and probably a full day. It colours the way that both cases proceed.

[ Edited: 30 May 2019 at 01:15 pm by Elliot Kent ]
past caring
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I would give serious consideration to challenging the direction - as far as the UT if need be.

DWP fraud investigations have a starting point that the claimant is guilty - we just don’t know what of yet. And if the investigation does not lead to a prosecution or an overpayment decision, that isn’t because the claimant was blameless - it’s just we couldn’t prove that they were at it.

I cannot think of a single reason why hearing the appeals simultaneously would be in the interests of justice or do anything other than result in an unfair hearing. It will, of course, save time - and that might suit both the DWP and HMCTS, but even if that could be shoe-horned in to rule 2(1)(e) of the Tribunal Rules (avoiding delay) that doesn’t trump the right to a fair hearing.

Clearly, what the DWP is hoping for is that one of the two will come across as lacking credibility or as being evasive - and thus scupper not only their own case, but that of the partner.

If neither is the other’s carer and neither has given evidence in support of the other’s claim I cannot see any arguable basis for a simultaneous hearing.

Out of interest, are these solely overpayment appeals or are there linked entitlement appeals too?

SamanthaM
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Out of interest, are these solely overpayment appeals or are there linked entitlement appeals too? [/quote]

There are linked entitlement appeals as well.

past caring
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Even more reason for the cases to be heard separately then.

ClairemHodgson
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past caring - 31 May 2019 10:04 AM

Even more reason for the cases to be heard separately then.

indeed

i can’t see how one person’s entitlement to PIP can affect another person’s entitlement ....

my overall feel is that the whole thing will end up in a dreadful muddle and you can practically guarantee that the FTT will end up making legal errors alll over the shop.  which is all very well, but no one wants to end up going round in circles between FTT & UT for the resultant length of time that will be needed.