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Face to face hearings - and MH assistance dogs?
Client has come to us very late in the day, so I shall be making a request for postponement of her remote hearing - the complex nature of her mental health problems and existing commitments to other clients means there is absolutely no chance I’m going to be able to complete taking instructions in time for the hearing.
It’s almost always a good idea for appellants to go for a face to face hearing - and that is particularly so here. I’ve not yet got her absolute agreement to that but following my advice, she’s now leaning that way. So I’m tempted to get the postponement agreed and then, assuming the client agrees at that stage, then request directions for a face to face hearing and for the client to be given permission to attend with her assistance dog. It’s a proper assistance dog - but to help with her mental health problems. There’s zero prospect of her attending in person without the dog.
I’m well aware of the practice direction for vulnerable witnesses and that may assist - but has anyone attempted to get HMCTS to agree a face-to-face hearing with an assistance dog? Did you succeed? Anyone with any knowledge of instances in which HMCTS have agreed it?
I had one like this a few years ago where a client had an assistance dog trained to sniff out body changes due to oncoming seizures. The issue of the presence of her dog at the face to face hearing never came up at all and everything went off without incident.
Cheers Paul - and though I’d like to think so, I’m not confident this will be quite as straightforward, in part because of the differing nature of the health problems and differing facts. In my case;
- client had been thinking about getting a dog anyway - this to help motivate her to leave her home but also for reassurance.
- her psychologist then suggested she try adopting a dog suitable for training as an assistance dog. Client did so and has trained/is training dog with assistance of a recognised charity. Have letter confirming.
- psychologist wrote in support of client’s application for an “Access Card” that would enable the dog to accompany her to theatre/cinema etc. I have that (very good) letter and the card was issued.
I’m just not sure it would be safe to bowl up on the day with the dog without having flagged this up in advance?
Couldn’t this be classed as a reasonable adjustment? Send notice that under EA2010, your client wants to attend F2F hearing with her dog for comfort and reassurance? They’d be on sticky ground refusing such a request (and like Paul says, why should it be a problem anyway?)
@Paul 2 - yes, absolutely.
I’m really just after any first-hand experiences of how similar applications might have been dealt with - and I suppose, as a bit of back-story…..client initially wanted to go ahead with the hearing as scheduled, even when I explained that there was absolutely no way I could be in a position to rep in time. Having now built up some level of trust, she’s going to try to come to our next appt. face-to-face (with the dog) - but I’ve booked it as a Zoom in case she’s too overwhelmed on the day. She’s also seriously thinking about my advice that we go for a face to face hearing - but I suspect really will not thank me if she agrees to my making an application for that and we end up in a battle about the dog….
Slightly off topic - but as far as I’ve read on this forum (and with my own limited experience) - remote hearings have been more effective(fair even?) than we might have expected.
By your limited description so far, assuming this is for a health-related benefit, I can see her satisfying MH descriptors, backed with significant medical and anecdotal evidence.
I’m not saying remote hearings cannot be fair. I simply believe that face-to-face is more effective.
As has been attested to on here endlessly, the best evidence as to a person’s disabilities and their effects is that person’s own evidence. But that evidence isn’t just what they say - it’s body language, facial expression and so on. None of which comes over particularly well via video link.
More precisely, in this case I am dealing with someone who has yet to sum up the courage (for want of a better word) to see me in person - our two appointments have been by Zoom. When she becomes distressed, which is not unusual, she turns the camera off, or gets up and walks away from her laptop. I am not confident of the extent to which an FtT will be happy with that as a way of managing things - and in any event, I’d rather the tribunal actually witnessed the extent of her upset because it’s fantastic evidence. This is not me going behind her back (she knows my views and why I hold them) and I’m not going to browbeat her into taking my preferred course of action - we’ll do what she is comfortable with/decides.
There’s also an issue of my wanting to argue points for communicating verbally, understanding signs, symbols and words and engaging with others in the face of a great deal of evidence which is, on its face, counter-intuitive; the HCP report is demolished articulately and at length, the MR and appeal grounds are well worded though written by the client’s friend (this isn’t even hinted at in the papers) - though the qualifying criteria are missed entirely. She also teaches music (remotely) and sometimes performs in public. So I have an uphill battle from the moment the panel get hold of the papers. My 25 years experience of doing this tells me that I have a much better chance of doing that if I’m sat in front of a tribunal with my client….
I don’t know that I would be too concerned provided its a well behaved dog. I am sure there will be the odd judge or member of HMCTS staff who would take issue with it, but I think on the whole they would be understanding. I don’t see on what basis there would be any obligation to seek advance judicial approval for bringing the dog. Are there ‘no dogs’ signs in your venue or notes in the notice of hearing to the effect that dogs are not allowed?
I think however that a canny judge would prefer to allow the dog to stay on the grounds of pragmatism, rather than vulnerability, therefore avoiding hamstringing the tribunal by appearing to have pre-judged questions of whether the dog is or is not required from the point of view of the PIP descriptors.
There is an example of this sort of approach in the Employment Tribunal decision in Bailey v Stonewall & others where the ET was prepared to permit a witness to have their support dog, their mother and a support worker sit with them whilst giving evidence without medical evidence to that effect basically in view of the fact that it wouldn’t prejudice anyone and it was better just to get on with the case (see para 16 here https://assets.publishing.service.gov.uk/media/62e1307c8fa8f5649a40110a/Ms_A_Bailey__vs_Stonewall_Equality_Limited_Reserved.pdf).
Cheers Elliot - and everyone else.
I think then, what I’m going to do is this; assuming client agrees to a face-to-face hearing I’m going to have to apply for directions for that, as it’s currently down for remote. At the same time and as a matter of courtesy, I will just state that the client will attend with her assistance dog and I’ll assume that is fine unless I hear otherwise. But I’ll also indicate that if HMCTS want evidence about that, we’ll provide it.
On one level I see no issue at all, although like others, I am not entirely convinced that face to face is a good fit here. It’s based on an assumption that tribunals read facial expressions and body language and I’ve seen little evidence over the years that that is necessarily the case. It’s based on an assumption that the tribunal members have no issues of their own. Perfectly possible that any member of a panel could have health issues which result in the exact opposite happening. Equally, one of the joys of remote tribunals for me was the absolute removal of the judgemental nonsense of panel members weighing up what an appellant looked like; how they moved; how they spoke and drawing unspoken (and sometimes spoken) inferences as to what sort of appellant they were dealing with.
However, for me, the basis on which advance notice would be sought is very obvious. What do we think might happen if a tribunal member, clerk or presenting officer also has an assistance dog? What do we think might happen if one of the same group has an allergy?
Sorry to come in bit late in the day.
It’s a few years ago but I had a client attend an oral hearing at the Magistrates Court with a MH assistance dog, and it wasn’t even an “official” assistance dog. The Judge raised no objections.
However, for me, the basis on which advance notice would be sought is very obvious. What do we think might happen if a tribunal member, clerk or presenting officer also has an assistance dog? What do we think might happen if one of the same group has an allergy?
As someone who is allergic to dogs, and also doesn’t really like them anyway, this is why I would raise it with the Tribunal before the hearing
There is a difference between a need to seek advance permission, which is what I had suggested isn’t necessary, and giving a heads up as a matter of courtesy.
Agreed. Permission isn’t needed but from a practical perspective a heads up well in advance always will be.
Turning up with an assistance dog without any advance notice in the expectation a brief conversation with a clerk will smooth the waters is an invite to have your tribunal postponed wholly unnecessarily.