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Paper Based Appeals
Hi
I’ve got 2 clients who wish to do a Paper based appeal rather than a face-to-face/telephone one - I did try to reassure them re. being their in person but to no avail.
I’ve no experience in Paper based appeals so hopefully someone can answer a couple of questions.
1). Do we still get sent an appeal bundle?
2). Do we get notified of when they’ll be making their decision? I normally write a submission so will I need to do almost straight away?
3). Do we need to give reasons for a Paper based hearing and can they turn our request down?
Thanks
Adam
1) Yes
2) No
3) Sort of. The Tribunal must hold a hearing if any party requests one. Beyond this the Tribunal may decide that the case is inappropriate for resolution without a hearing and decide to hold a hearing despite one not being requested. See rule 27.
I have to say that in a typical case, I would refuse to take the case if the client was insisting on going ahead without a hearing against advice. The statistic I always remember (although I don’t know if it is still accurate) is that there is about an 80% success rate in appeals where you have a hearing and 20% if not. You can’t expect to do a competent job as a representative if the client is going to undermine their case at the very first step.
I think the stats are more realistically around 80% with a rep for an oral hearing and around 5 to 8% for paper hearings. Latter was an internal HMCTS stat not published because it obviously raises some serious questions.
To build further on Elliot’s answer.
1 - you need to get any sub in ASAP as paper hearings are appended to days of telephone/video/f2f hearings and can be pulled out the drawer by a clerk at any point for a tribunal to look at. So, a panel with 8 cases who sees their list collapse and only does 4 in the morning will have some afternoons where they’re off the hook and others where a clerk says “hey, I have some paper cases for you to look at here.”. That obviously happened a lot more frequently when all almost all hearings were f2f but I gather there have been instances of clerks emailing or using Teams to get papers over quick so time is of the essence as these things are often done and dusted before you’ve even started to think about a sub.
2 - see 1 above.
3 - recentish case law obliges a panel to look at whether justice is best served by a paper hearing even when requested by the appellant. Many are adjourned in order to be directed as an oral hearing.
I don’t take quite the same line as Elliot but if someone tells me they want a paper hearing I work hard to explain that there is pretty much no point in appealing in the first place if that’s the option you’re going to choose. I don’t get into reassurance as such. I work on explaining all the differences between court and tribunal; what will happen on the day; who hears the case and why; the range of possible outcomes and the fact that their anxiety will likely play in their favour rather than harm their case if they attend and are represented. I think it’s also important to remind people that whilst anxiety and stress might appear to be permanent states of mind for some people, and tribunals can induce or exacerbate both, ultimately that is far less stressful than losing. In 30+ years I have never yet had a client who decided to persist with a paper hearing once I have worked my way through my spiel. A bold claim but I see it as a natural extension of laying out options; giving rights based advice etc. Possibly the only backfire was the appellant who punched the Presenting Officer…
Good luck.
[ Edited: 1 Jun 2021 at 11:21 am by Mike Hughes ]Thank you both!
With one client, they have outright refused to do a F2F/telephone appeal - going so far as to say if the Tribunal make them attend one, they will withdraw the appeal!
Even my usual “I’ll be essentially doing everything for you” line didn’t work with this one. I am in two minds whether to go ahead with the appeal or not.
Thanks again.
Adam
My experience of tribunals doesn’t come anywhere near that of Elliott or Mike but I must say I don’t entirely agree. It is certainly the case that a claimant has a substantially better chance of winning if they attend the hearing but if I were faced with a client who adamantly refused to attend, and I didn’t manage to be as convincing as Mike, I would do the best I could in terms of putting in as much information as I could in a written submission, making the strongest arguments available.
I am reinforced in the thought that such an effort wouldn’t be futile by the attached piece of research which suggests that it is the extra information typically gathered at an oral hearing which makes the difference, not the form of hearing itself.
I don’t think anyone is arguing against written subs here but since that report was written we have a lot more data on success rates and, if one were to take the service where I work, then broadly an 70 to 85% increase in case loads during the pandemic.
The question to be asked is whether it is worth my time to put together a comprehensive sub of say 2 to 15 pages (at the very most) when the fact remains that the success rate is 5 to 8% even with that work being done. The appellant is effectively asking for WR help but then ensuring that said help is ineffective. We will often no doubt be critiqued across a variety of fora and social media for that perceived failure despite having delivered a sub in the way we would for every other client who needed a sub.
So yeah, given the opportunity I would put in a sub. but the idea that for a paper hearing that is somehow not futile is not borne out by the stats.
So, if there is a winnable case; a shortage of staff time and resources; an over load of case work, the reality is that tough choices have to be made as Elliot describes, albeit perhaps for different reasons. Clients who refuse to attend appeal tribunals are often the same people who do manage to make it to their GP, the hospital and the JCP when required. They may not enjoy the experience and indeed it will often be no doubt soul destroyingly stressful but it remains the case that such stress is temporary and, as judges often point out, if you consider your health to be important enough to see your GP or attend a HCP assessment once in a blue moon is that somehow more important than a tribunal which may determine your income for the next decade and beyond?
On the other hand some DWP decisions are so manifestly wrong based on the existing evidence that a paper based appeal has a good chance of success. I do few appeals but some of these have been paper based and on each occasion got the desired outcome. However now that DWP do seem to be making more of an effort to look at cases, if not at MR stage, then at appeal stage I hope DWP are more likely to correct such cases themselves before the tribunal has to consider them.
Indeed, the reality is that with some cases you really ought to be in the 5 to 8% who win. I’m sure some people can pull that off all the time too but obviously it remains the case that the success rate is so low that sooner or later even that catches up with you with some random decision out of the blue. It is of course entirely dependent upon the nature of the decision under appeal.
In some senses this discussion is an argument for the rep going to the hearing. These days I do very few appeals but in a previous life I repped at what seemed like hundreds. Cl’s were always reassured that I was there and it does give the opportunity to listen to what has been said and ask questions to bring out something the Tribunal may want to consider.
I know that it is not common practice for reps to attend but perhaps now that lockdown is lifting it could be looked at again for some cases (such as those above?)
I know that it is not common practice for reps to attend but perhaps now that lockdown is lifting it could be looked at again for some cases (such as those above?)
Not sure what you mean by this? Do you mean within CitA, where it no longer seems the practice to attend? More generally it is definitely the practice to attend.
Of course this now gets more interesting as video hearings get added into the mix.
I know that it is not common practice for reps to attend but perhaps now that lockdown is lifting it could be looked at again for some cases (such as those above?)
Not sure what you mean by this? Do you mean within CitA, where it no longer seems the practice to attend? More generally it is definitely the practice to attend.
Of course this now gets more interesting as video hearings get added into the mix.
Yes, we/myself always attend appeals with clients - though I officially joined our charity during the pandemic so have yet to experience face-to-face ones!
I do have a video one later this month - any specific advice Mike that I need to be aware of if you have done some in the past?
Thanks
Adam
Afraid not on this occasion Adam. I picked up a video hearing on behalf of an absent colleague for next week, which would have been my first using their Cloud Video Platform, but it was postponed for reasons as yet to be explained. Others are likely to be in a better position than myself to comment.
Have done video appeals via Skype previously. It was hard work in many respects. One of the interesting aspects of it was that you get pulled into territory which wouldn’t arise were the appeal face to face. So, for example, in a F2F hearing, I may spend some time watching the panel intently but much of my focus is on my appellant and taking notes on issues which I wish to return to at the end if needed. In a video hearing it’s a little too easy to avail yourself of the opportunity to stare at faces; try to read the panel etc. It’s an educational distraction (nowhere to hide if your medical professional is once again nodding off for example) but it is, in my view, nevertheless a distraction. I found things went better when I ignored the video; put my head down and focused on the audio and my notes as I would in an oral hearing. Others may disagree. Your mileage may vary as they say.
Not sure what you mean by this? Do you mean within CitA, where it no longer seems the practice to attend? More generally it is definitely the practice to attend.
Nope, CitA advisers do not attend and are not encouraged to be recorded as reps on the appeal form. No funding/resources. Some of us are missing it badly :(
Jo, as an ex CitA employee I am aware of the score on that front. All changed when legal aid contracts were signed some 3 decades ago and of course representation in person was excluded. More about the funding which was accepted rather than a lack as such. Never recovered albeit that a small number of bureau do in fact still have people funded to represent. I’m sure it’s sold nowadays as “we don’t have the funding” but that was always the case with CitA. Nevertheless up until the taking of legal aid monies representation was provided by both volunteers and paid staff on a daily basis.
Whole other discussion to be had about those who suggest to appellants that they are being represented but fail to mention that this amounts to a written submission but nothing in person.
Sorry, way OT I know.
I think practice on attendance probably varies from one CAB (or LCA, as we are now supposed to say) to another, depending on the balance of resources and demands. Personally I always get my name on the SSCS1 and if there’s guidance saying I shouldn’t I’d rather not know about it! Pre-lockdown I rarely went to a hearing but I’ve “attended” a few telephone hearings, because it’s a lot easier and less time-consuming.
Same as practice across the advice sector in other words. “It varies”.