Tribunal news

Thanks - super useful. Trying to get an article done for askCPAG that actually addresses some of the issues of how to manage acting in appeals cases at the present time. Good to know what is happening on the ground.

And now I have just lodged an email SSCS1. Watch this space.

And got this back!

“ Thank you for your email, you will need to register the appeal online using https://www.gov.uk/appeal-benefit-decision/submit-appeal or you can send the appeal to HMCTS, SSCS Appeals Centre, PO Box 1203, BRADFORD. BD1 9WP.

We do not accept appeal applications via email unfortunately,  if the appellant is unable to do this their representative can complete an application on their behalf.”

We seem to be lucky insofar as HMCTS in Glasgow has accepted our appeal applications by email for a long time, so we’re continuing to do so.

The slow creep of gov.uk seems to make things more slow and convoluted than this. I wonder if there’s actually anything in the regs/directions to automatically treat email applications as ineffective when the gov.uk service is live? Otherwise I don’t see how they could argue an appeal hasn’t been received.

I’ve been having no joy requesting postponements. I don’t (yet) have a reliable phone that I can use. I also don’t have access to any of my paperwork as my workplace was closed at short notice due to it being on a hospital site, so I can’t prepare for any hearing just now. To boot, our post is handled by the hospital mail room, so collection isn’t reasonable and may already be impossible for all I know.

Unfortunately the responses I’m getting back so far are “tough luck” - apparently if it’s “reasonably practicable” for them, that’s all they’re interested in. I’m not convinced how this squares with the legal right to representation.

I’ve asked the clerks if they can issue me copy bundles to my home address, to be strictly withheld from appellant and respondent, and postpone pending receipt of this. Hopefully by then I’ll have a work phone and will be able to receive incoming calls without as much of a problem.

All the same, the whole business-as-normal attitude while actually making it up as they go feels quite worrying. The judiciary have switched very quickly from busying themselves with the service of ‘justice’, to workflow management and prioritising techniques to avoid inconvenient backlogs when we’re back to some level of normality. Everyone else is going to be backlogged and placed in extremely difficult and even precarious situations, so I don’t know what makes the social entitlement chamber any different.

More to the point, however, is the severe disadvantage that a huge number of people now have vs. those appealing before/later, as the Tribunal will naturally not be able make all the observations by phone as they would in person. To put it bluntly, you won’t necessarily hear the tears streaming down an appellant’s face.

That’s really useful Greg. If they can accept appeals by email at one site then they’ve well and truly shot themselves in the foot. I’ll be using that on the complaint I’ve already lodged. I’m unaware of anything in the regs to prevent such routes being prevented.

I have to say I’m not sure they need to send anything to your home address. In my case they’ve agreed that upon a case by case basis I can have scanned pdfs of the bundle. However, it has to be case by case rather than “all your cases”. Right now I can live with that.

The whole issue of representation is one that’s going to very much bounce back on them. The new regs ignore representation and whilst we’re not a party to the proceedings there are going to be massive legal implications for them under EA 10 and the right to a fair trial etc. The issue of vulnerable claimants being brow-beaten into agreeing a telephone hearing without their rep. is also a very serious one. When I get the chance I’m going to throw at least one case at GM Law Centre. Luckily it was adjourned in my absence but only cos my client was well-briefed.

That’s good they’re sorting PDFs for you. I’ve been asking for PDFs for nearly a month, but so far I’ve only been sent one notice of postponement refusal. Heaven knows what cases are being listed or responded to where I don’t even have the reference number yet!

Greg B - 14 April 2020 12:44 PM

That’s good they’re sorting PDFs for you. I’ve been asking for PDFs for nearly a month, but so far I’ve only been sent one notice of postponement refusal. Heaven knows what cases are being listed or responded to where I don’t even have the reference number yet!

I’ve not actually received a pdf as yet so I’ll reserve judgement but I have the commitment in black and white and it’s doubly in their interests as part of my SSCS1s always makes it clear my clients and I will be coming to any oral hearing tablet in hand after I’ve scanned and uploaded the bundle as pdfs as my small caseload is now exclusively sight loss/impairment.

My understanding of the issue is that at present they simply don’t have enough scanners so they can’t do it wholesale for panel members or anyone else. Has to be case by case.

I am quite bothered by the idea cropping up that representatives are not being involved in these hearings although I have not yet seen any evidence of this in my own work.

It’s worth pointing out that under Rule 28 ” each party to proceedings is entitled to attend a hearing.” and under Rule 11(5) “anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party”.

The entitlement to attend a hearing therefore applies equally to a representative as it does to a party proper, as does the requirement under Rule 29 that a party be given notice of a hearing.

None of the practice directions derogate from these rules and they are not matters which the Tribunal can vary under its case management powers.

Whilst I can accept that there might be an argument that a representative needs to take some reasonable steps to ensure they are able to participate in a telephone hearing. if these hearings are taking place without putting the rep on notice at all, then this is seriously problematic.

I’m not about to disagree with any of that Elliot. HMCTS in the North West have had serious issues with poor communication and zero engagement for many years. This is just going to bring it to a head.

We have just had our first telephone hearing (last Thursday).  The process went quite smoothly, just wondered what others may have experienced.

We have a couple of phone hearings this Friday and are repping on one of them.  We received letters as reps saying there would be a phone hearing but no details on how to attend.  Had to call HMCTS to be told we need to email and say we want to attend with details of rep and phone number.  They will be called once the hearing has started and ‘invited’ to attend.

The client did receive a useful sheet with information on what the process was but not us!
I’ll let you know how it went

Thanks Maggie, it will be interesting to hear how it goes.  I agree, there was no info sent out, in our case not even to the client.

Mike Hughes - 07 April 2020 09:34 PM

And got this back!

“ Thank you for your email, you will need to register the appeal online using https://www.gov.uk/appeal-benefit-decision/submit-appeal or you can send the appeal to HMCTS, SSCS Appeals Centre, PO Box 1203, BRADFORD. BD1 9WP.

We do not accept appeal applications via email unfortunately,  if the appellant is unable to do this their representative can complete an application on their behalf.”

Hi Mike- I am assuming this is not an appeal in respect of one of the benefits you can appeal online.

I would be tempted with a case like this to ask them to put your email and their reply before a judge along with an application for directions as to whether the appeal is validly made (as well as the complaint) (assuming you have not ended up having to risk health etc by travelling unnecessarily to office and copy and post the thing….).

The FTT dragging behind the rest of HMCTS on not accepting emailed appeals etc it seems to me.

Additionally,  can I check if you sent it to your usual HMCTS office or Bradford? I’ve heard reports of success in filing appeals by email using .(JavaScript must be enabled to view this email address)

Martin

Hi Martin,

Nope, this was for PIP. Original appeal lapsed after appellant accepted an offer without the consequences being explained. Further appeal lodged in November but allegedly never arrived/registered so I’ve been trying to resurrect it.

Claimant is registered SSI and doesn’t have an email address. Needs 48pt font so would struggle with email anyway. I’ve consent but no access to envelopes, stamps etc.

I’ve emailed it to NW region (Liverpool) but also .(JavaScript must be enabled to view this email address). Neither acknowledgement nor response from region but the latter acknowledge and respond. Despite them then mysteriously finding the November appeal and registering it I have nevertheless asked for the complaint to continue. Thus a direction wouldn’t currently be required.

However, I’ve not see the Bradford email address before so next time out I’ll be using that and will report back.

Thanks,

Mike

An actual response from HMCTS this morning.

“Paper versions of documents are sent because a lot of Appellants do not have access to internet to view these, and this makes it easier for the Appellants

A lot of agencies that are helping appellants with the paperwork are changing their postal address temporarily to home address this is something that you could possible look at to get the information being sent out.”

This was in response not to a suggestion to send electronic documents to appellants but to representatives. Something which they had clearly previously said was possible and had noted on this exact same case.

I do love the tone of HMCTS communications. They are probably the single most long-standing dysfunctional element of the DoJ and yet still they think it’s okay to tell everyone else how to do their jobs.

We all up for giving out our home addresses to HMCTS then?

Could you just redirect mail addressed to you at work to your home address?

BC Welfare Rights - 16 April 2020 10:42 AM

Could you just redirect mail addressed to you at work to your home address?

There is literally no-one there to do that. Our Civic Centre is closed bar essential services.

HMCTS has a long and inglorious history on data breaches. They vary from their traditional bundle swap where 2 appellants get each others bundles through to storing SDP bundles in the toilets; including evidence deemed inappropriate for the appellant to see and so on. To trust them directly with home addresses would frankly be irresponsible. It’s entirely forseeable that the address would appear in a bundle and thus be available to appellants and others.

This puts aside for a moment that HMCTS often have multiple addresses for reps and no idea how they got to that point. Anything slightly misaddressed wouldn’t be forwarded in my experience and we’d be back to square one.

Even if we could, I remain unconvinced that forwarding is a solution. It addresses a symptom rather than the cause. They can do electronic correspondence. They could have done so a long time ago. They simply refuse to engage or progress.

I meant through Royal Mail - https://www.royalmail.com/business/manage-mail/redirection-diversion - but point taken.
Indeed, one section of the PIP appeals team has taken to addressing me in bundle cover letters as ‘Healthy Durrant’. Not sure how Royal Mail redirection would cope with that.

On the issue of the involvement of reps, we’ve had a mixed bag. I had a couple of clients who were notified by post 2 days before the hearing that their case would go ahead as a telephone hearing, no word to the rep or suggestion of any way to get the rep involved.

At the time, I had been very suddenly informed that I couldn’t go into work, or access my files, so my clients had no way of contacting me. However, when I returned to work, there was no correspondence to me about the intention to go ahead with telephone hearing. So I was effectively completely out of the loop, even if I had been contactable.

Both appeals went ahead with a very brief phone hearing, and fortunately were allowed - they had very strong written evidence and it sounded like the phone call may have just been a formality. All well and good, because they went in the clients’ favour, but I would have hoped that if there had been a more substantive telephone hearing, the client would have been offered a postponement so they could get the rep involved.

I emailed our contact at HMCTS Liverpool to enquire about this, and he advised that we would need to proactively tell HMCTS about any hearings we have coming up, so they could involve us as the rep in the phone hearing. Since then, I know a colleague has been contacted by the clerk (on the morning of a day when she had multiple hearings scheduled) and had been involved in the hearings via telephone. So it seems they are now getting clerks to check (at least in some cases) whether there is a rep listed on the file. Although she was told that she could be called at any time during that day, about any of the cases (rather than at the time scheduled for the hearing), so making sure she had the relevant bundle fresh in her mind at the time may have been difficult!

I don’t know where we would stand if a client objected to a telephone hearing. It’s a tricky one, because there is a duty on the Tribunal to deal with cases promptly and without delay where possible (justice delayed is justice denied etc.), so I appreciate that it would be at odds with this approach to just let HMCTS grind to a halt entirely because we can’t have oral hearings. Conversely, I’m sure we’ve all had cases where we feel the client seeing the Tribunal face-to-face is important - so the Tribunal can see how poor their gait is when they walk, or how anxious or distressed they are in social situations, for example. I think in cases where the client wants to meet with a Tribunal face-to-face, ploughing ahead with a telephone hearing may be challengeable. What do people think?

“we would need to proactively tell HMCTS about any hearings we have coming up,”. !!!

I would never have accepted that. I think I was probably proactive enough lodging the appeal with my name; work address and a request for an oral hearing and not with less than 14 days notice. I was probably equally proactive in detailing a list of reasonable adjustments for me and the appellant as well as writing the submission with my name and job role on it. The clerks are effectively pushing a line which is not legally sustainable and I can’t see how any such case would not automatically be a set aside.

I’ve already had an appellant challenge my exclusion successfully and, where appropriate, will continue to do so.

I agree Mike, it’s absolutely their job to look on the file and say ‘is there a rep and if so, how can we ensure their participation in the proceedings?’ But it seems that they are at least starting to do that, based on my colleague’s experience.

The CASA - 02 April 2020 05:35 PM

I am concerned because one of my clients has been contacted by HMCTS regarding a telephone hearing. The letter does not make any allowance for including me in the proceedings. Has anybody else experienced this problem and if so did you contact HMCTS to resolve the issue.?

my client informed me about the hearing still going ahead and they would call the client regarding questions. I have not been informed of this and have not been contacted. However, the client did not answer the phone and it is to be relisted for telephone consultation. I have still not been included but looking at the post re only capacity for 5 people, they would be unable to include me.

I’m not sure the 5 people capacity thing holds. Even if it did it’s not a reason to proceed without a named representative.

I’ve got a complaint in at present on the point.

I missed this when it was issued on 14/4/20 but it is quite useful. It explains what HMCTS sees as priority cases and how they will be dealt with https://www.judiciary.uk/wp-content/uploads/2020/04/14-Apr-20-Social-Entitlement-Chamber-First-Tier-Tribunal-Help-for-Users.pdf

I have done 2 telephone appeals (in Scotland). One before lockdown due to a safety issue, and one on Monday. It was an ESA hearing with myself ,client, judge , doctor and clerk. No problems at all and decision given in 2 days.

No issues with PIP appeal with the extra Disability Lay member.

Do we know if HMCTS are still limited to five people for their telephone hearings so it’s not possible for a Rep to be involved for PIP? I’ve just been notified that one of my PIP appeals has been listed for around three weeks from now and will be a telephone hearing.

CHAC Adviser - 27 April 2020 11:33 AM

Do we know if HMCTS are still limited to five people for their telephone hearings so it’s not possible for a Rep to be involved for PIP? I’ve just been notified that one of my PIP appeals has been listed for around three weeks from now and will be a telephone hearing.

Interestingly I had an email from HMCTS claiming it was only ever 4 initially when I know that to be untrue. My understanding now is that the capacity remains hugely variable rather than there being 1 answer for the whole of the UK. I gather some areas are even doing video via Skype whilst others can barely do appeals minus a rep.

I’d pursue them by email well in advance of your hearing.

Thanks Mike and I absolutely intend to try and get answer out of them! It doesn’t help my confidence that my client told me that the conversation from their point of view the conversation was “I think I could do it but I’d need to check with my representative” which HMCTS appear to have interpreted as “the appellant is happy for a telephone hearing”...

CHAC Adviser - 27 April 2020 12:14 PM

Thanks Mike and I absolutely intend to try and get answer out of them! It doesn’t help my confidence that my client told me that the conversation from their point of view the conversation was “I think I could do it but I’d need to check with my representative” which HMCTS appear to have interpreted as “the appellant is happy for a telephone hearing”...

Response to my complaining thusfar has been awful.

Effectively, you gave us your work mobile number so you must have known it was a telephone hearing even if we did then exclude you.

Oh, and, no way are clerks encouraging people to go ahead without reps!!! REALLY!

Er, no. I gave you my work mobile number as a professional courtesy given that I’m working from home and I gave it you in an email when I was asking about an oral hearing and how that might be proceeding given that it was still listed as oral.

The response was the quite brilliantly comedic one liner of “It’s still going ahead”.

Yes, but as what?

It’s like knitting with fog.

Well the attached is straight from the horses mouth and she seemed convinced that representatives would be able to take part in a telephone haring. I also received a notification in the post today of the hearing (addressed to me) confirming that it would be via telephone, when it would be going ahead and to let them know if they had on file for me was incorrect.

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