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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Direction to provide opinion on appellant need for an appointee. 

wbamic
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Mind in Croydon

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Joined: 19 June 2019

Last week an appeal i took part in was adjourned prior to the appellant being added to the call on the basis of some information provided by a former partner / representative who had written tot he tribunal while representative to say he felt that the client was not ‘compos mentis’ and could not answer their questions.  On this basis the Tribunal informed that they didn’t ant the hearing to go ahead until they had seen further GP records .

In the adjournment notice they have asked that I provide my opinion on if the client should have an appointee.  I’m not sure why but this had made me feel uneasy!  As representative do we have a role to advise on whether she needs an appointee. I wouldn’t feel comfortable expressing an opinion on this unless I was very sure the client would be comfortable with my opinion. I’m not sure the tribunal have right to ask us as a representing organisation to give an opinion. 

The ex partner was apparently also listed as rep and we have been told to provide a letter asking for the ex partner to be removed as representative.  I wasn’t aware of this until the day of the hearing.  Can one representative in effect remove another representative? 

 

 

Elliot Kent
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It is in principle open to the FtT to decide questions of the claimant’s capacity to bring an appeal in the first place. If the claimant lacks capacity then this raises a bunch of awkward questions which can be deftly sidestepped by installing an appointee. There is some discussion of the issues in the case RH v SSWP (DLA) [2018] UKUT 48 (AAC); [2018] AACR 33.

It’s clear enough from that case that the Tribunal’s concern should be whether the claimant’s interests are being adequately protected. I suspect that it will calm the Tribunal’s nerves if you are able to say (in terms) that whilst you are not able to offer a professional opinion on his capacity, you haven’t been given reason to doubt that he has sufficient ability to follow proceedings and give instructions and you are comfortable in continuing to act for him.

On the other question, I have always read the procedure rules as allowing a party to have a representative so that appointing a new representative implicitly revokes any prior appointment. However I am not sure that the HMCTS administration takes the same view as sometimes appellants end up with multiple reps on file.

A representative can do whatever a party can, and a party can revoke a representative’s appointment - so if there can be two representatives then I suppose that each has the power to revoke the other’s appointment. I do think it would be much neater in this sort of situation for the client themselves to sign something confirming who is their representative and who is not.

wbamic
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Mind in Croydon

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Joined: 19 June 2019

Thank you for your response Elliott .  Very helpful as always.  In this particular case it is frustrating because although the client does experience difficulty with her mental health there has not been anything other than one sentence in 50 pages of notes from her former partner that would suggest she would not have been able to participate int he hearing. 

The tribunal did make the point that as there was more than one rep on their system that they did not want the hearing to go ahead because of the risk of a set aside request being put in by the other representative.  This is possibly a lesson learnt for me as I have to admit I have not been proactive in the past at making it explicitly clear that a family member listed on the sscs1 as rep is no longer representative and my organisation has been asked to participate as representative.  In this case we had no idea until the day of the hearing that a letter had gone in prior to my organisation being referred the client asking for the ex partner to be the representative.  I’m sure it was nothing to do with it being later in the afternoon that the hearing was adjourned!