Tribunal erred in law by following the rep’s submission?
Client had ESA lcwra via reg 35. He lost it after a new medical and in due course went to appeal. The rep did not mention Reg 35 and instead relied on a schedule 3 descriptor. The tribunal found that that descriptor did not apply and did not consider reg 35 because an experienced rep had not raised it.
I think the tribunal had adequate reason not to apply the descriptor but the reg 35 continued to apply. I am in the process of requesting permission to appeal and have argued that as reg 35 was the decision appealed against, the tribunal erred in law by not considering it - burden of proof and all that. My worry is that the only case law I can find says that the tribunal is entitled to rely on the rep. That case had I think a different burden of proof so can be distinguished - I hope.
Does anyone know of any more helpful case law here - hoping for something more to the point about it’s inquisitorial duty.
(Original rep from another organisation and I suspect new to appeals, no matter what the tribunal said. It was a pretty basic error but who among us has not ....?)
The case I think you’re referring to is CSDLA/336/2000. You might want to look at R(M) 1/96. It is also well worth bearing in mind that the rep’ in the DLA case was a very experienced one and well known to Tribunals in Glasgow and was not new to appeals to the Commissioners either.
How apparent is it that reg 35 continued to apply?
If it is obvious from the submission or from the contents of the hearing that your client was in the same condition as when reg 35 applied in the past it sounds unreasonable that the tribunal wouldn’t have considered it.
Say the previous award was made for suicide risk due to depression for instance, and the rep went for Activity 13/14 due to depression.
I’ve had a tribunal where I specifically asked the panel to ask questions not covered in my submission (my client had given some very conflicting info before the hearing). They didn’t - However, I think they could justify it on the basis that the client’s description of her conditions at the hearing didn’t indicate entitlement in any event (the case probably shouldn’t have made it to appeal).
Similarly, if in your case there is no mention at all of the relevant condition - is there any reason the panel should have thought it relevant? For that matter - could a schedule 3 have been applied in the past instead of reg 35? There is no requirement for the panel to assume the old award was correct.
I’d find it strange that even an inexperienced rep didn’t deal with reg 35, but then again it can be fairly obscure - sometimes just one sentence here and there in a 120 page appeal pack on the basis of the award.
If you were based in Edinburgh it wouldn’t surprise me if it was one of mine you were looking at…