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PIP Appeal

Bcfu
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Hi

Hoping someone can answer a few of my questions as I’ve never been in this position before.

Had a disaster of an (attempted) appeal today. Tribunal Clerk called me and I didn’t answer in time which led to a whole host of problems.

First question - Whats the protocol/procedure for when a representative cannot/doesn’t attend? Should it be adjourned immediately before going into anything i.e. the evidence? According to my client the Judge spent 10 mins “shouting” at my client for not providing enough evidence and providing evidence in the wrong format!!! (Just by the way, I’ve done many appeals and not one person has complained about my evidence being too small to read haha).

Second question - Can I get the audio/transcript for this appeal even though it was adjourned after 15 mins? Client raised some serious issues regarding being “told that they would take my benefit off me altogether” so I need to hear/read what was exactly said.

Third question - If not already mentioned in the adjournment notice, can I/my clients request to be seen by a completely new tribunal panel - client and myself wish to make a complaint about the handling of this appeal so don’t really want to be with the same people.

Thanks

Adam

Mike Hughes
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I would press the brake pedal hard at this point. You have your clients version of events and an adjourned tribunal. The only thing you personally know is that the tribunal was adjourned. Apologies that my numbering doesn’t match yours.

1 - there is no protocol around non-attendance. As with anything, a tribunal have to make a judgement based on what they know. I have had cases where, at no notice at all, I was unable to attend and the tribunal proceeded in my absence. The heavy lifting had been done in the sub so it was one of those cases where if we’d lost I’m off to set aside or UT but if we win all is good. Your case was adjourned. No obvious harm has been done.

2 - it’s near impossible for a tribunal to adjourn immediately in the absence of a party. There has to be a discussion of some sort. The real question is whether they started to take evidence about the matter at hand.

3 - what a client perceives as shouting may have been nothing of the sort. I think we would need more info on what not enough evidence and wrong format actually mean. If your client can’t detail that then it’s likely they were too focused on attitude rather than content and may not have been on their finest behaviour. The context here is that this may have been a panel sitting with a digital bundle, with which there are many known issues, and you weren’t in the (virtual) room so you simply don’t know. It would be both premature and possibly ill-conceived to complain about something about which you have no direct knowledge. If the client wants to do so then that’s up to them but it doesn’t read as a wise thing to do at this point from your perspective as there is a risk of reputational damage to you as a rep if you are perceived as someone who complains at the earliest opportunity about something which a client asserted but of which you have no direct knowledge. Your need to represent this client always needs to be balanced to some extent with your credibility as a rep of others in future.

4 - no you will not be able to obtain a transcript. You need to wait for the written summary of the adjournment which will clarify what needs to be clarified and may include directions as to what should happen next. The right of a tribunal to issue a warning is a well known thing and, if that is what took place, I would expect to see something in the adjournment notice. However, if it’s not then officially none has been given and it becomes irrelevant.

5 - the adjournment notice will detail whether the panel has excluded themselves, The practicalities of getting the same three together for the same case are not straightforward in these times so they often will just make it easier by excluding themselves. On the other hand, if they don’t, I don’t see a problem. As it stands you have no idea whether this panel has any issues whatsoever about which you should be concerned. Far better to await your notice and proceed as normal.

[ Edited: 3 Dec 2021 at 12:54 pm by Mike Hughes ]
Bcfu
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Hi Mike

Thanks for replying.

I should have made it clear that I wasn’t doing anything until I had received the adjournment notice as I’m well aware that the client may have taken things the wrong way (as we all do).

Thanks Adam

Mike Hughes
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Bcfu - 03 December 2021 12:55 PM

Hi Mike

Thanks for replying.

I should have made it clear that I wasn’t doing anything until I had received the adjournment notice as I’m well aware that the client may have taken things the wrong way (as we all do).

Thanks Adam

Fair enough.

I once sat through a tribunal where the panel were absolutely exemplary and then back in the waiting area watched my very upset client tell his wife that they’d shouted at him.

Bcfu
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Mike Hughes - 03 December 2021 01:09 PM
Bcfu - 03 December 2021 12:55 PM

Hi Mike

Thanks for replying.

I should have made it clear that I wasn’t doing anything until I had received the adjournment notice as I’m well aware that the client may have taken things the wrong way (as we all do).

Thanks Adam

Fair enough.

I once sat through a tribunal where the panel were absolutely exemplary and then back in the waiting area watched my very upset client tell his wife that they’d shouted at him.

Yes, I’ve had that as well!

That’s why I was wondering if I could get the audio or transcript of the tribunal as you can normally tell by the tone of their voice. Looking forward to see what’s in the adjournment notice and then I’ll take it from there

 

Elliot Kent
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I agree with pretty much everything Mike has already said and don’t have a great deal to add. This sounds like a fairly standard interaction and you will need to give your client appropriate advice on the risk to his existing award.

You can however request the record of proceedings for a hearing as under the relevant practice statement. There is nothing to say that this only applies to the hearing at which the case was ultimately decided. In practical terms, you would get the recording rather than a transcript.

https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Practice+Directions/Tribunals/RecordofproceedingsinSocialSecurityandChildSupportcasesintheSocialEntitlementChamber.pdf

Bcfu
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Hi Elliot

Thanks for replying. We have discussed the risks about her existing award but will be mentioning it again.

I only want the audio to be honest, as you get a better understanding about what actually went on and any next steps I need to take.

Thanks Adam

Mike Hughes
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Elliot Kent - 03 December 2021 01:23 PM

You can however request the record of proceedings for a hearing as under the relevant practice statement. There is nothing to say that this only applies to the hearing at which the case was ultimately decided. In practical terms, you would get the recording rather than a transcript.

https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Practice+Directions/Tribunals/RecordofproceedingsinSocialSecurityandChildSupportcasesintheSocialEntitlementChamber.pdf

Whilst you can indeed do this I think that in practice you may well find a couple of real world issues:

1 - if your tribunal took no evidence then the matter itself is often treated as no hearing and the recording wiped.

Judges like to label all adjournments as being at the request of the rep. as they know their RTJ would be breathing down their neck if their adjournment rate was too high. They can’t do that in your case so it will likely be labelled internally as postponed even though you get an adjournment notice. Now some offices are quicker than others to wipe so there may be a possibility, but, my expectation would be that the RTJ would intervene and just say no on the basis of it not being a proportionate use of time when clerk numbers are through the floor etc. If there is to be a complaint then the mere act of that will trigger a conversation with the clerk and panel members. If any one of those say there was an issue, then you will know about it soon enough. If none of them do then by all means then go for the recording but I think the RTJ will likely say no or it will have been wiped. Others may say differently but my general experience has been that when such a complaint is made other parties will mostly step forward and support it if there is something to support. If they don’t then most likely a recording isn’t going to reveal the opposite. Ultimately, the whole thing is a judgement call. 

2 - the effort involved to extract a recording likely isn’t worth the effort. Let’s say the judge did “shout” at your client. Yes, there may be a complaint in that but where exactly is that going? The judge will have it noted against them but your client has to contemplate that they may end up with a panel less disposed to their case than the first one. It has to be remembered that any warning is just a warning. If you have a winnable well presented case then a warning is likely simple ignorance of the evidence and arguments you are about to present. It doesn’t mean a tribunal are predisposed against the appellant. In every case my client has had a warning I have got over my initial shock; proceeded and won fairly straightforwardly.

There was one case where I had already warned the appellant that proceeding explicitly brought into play existing points which were awarded prior to my intervention and which I could not justify. They were very much up for their appeal right up until they got a warning from elsewhere and that, I think, was correct.