Harmful Information

A colleague has a client who was disallowed ESA and her appeal is shortly to be heard.  It was stated by her GP, who is supportive, to be suffering from stress.  She has a speech therapist who has completed a report which states within it that our client’s husband was / is abusive and that is why she needed speech therapy support.

Problem is the client is due to attend the tribunal with her husband and is fearful of having her husbands abusive behaviour revealed in front of him.

It appears to me it would better for her to attend without the husband, or could there be any mileage in us disclosing the information under the category of being harmful to client?  So would be circulated to all parties except the client. However it appears that non-disclosure of harmful information usually is undertaken to protect the client from the knowledge within it.

Would be interested on views of how to tackle this sensitive situation and whether the possibility of non disclosure of this speech therapist report from the appellants appeal bundle could be a possible option worth pursuing.

GR
A4U

Difficult one isn’t it? If client’s husband is abusing her, I can well imagine she will feel very constrained as to what she can, or cannot, say to the tribunal when describing her disability if her husband is going to be present, regardless of the issue of whether or not to submit the letter from the speech therapist. My feeling is that if at all possible, she should be encouraged to attend without her husband. Failing that, I would submit the speech therapist report (subject to her agreement) as harmful evidence and if there is likely to be difficulty in her providing the tribual with a true picture of her difficulties if her husband is present I would prepare a brief sub addressing this and asking the tribunal to take it into account when considering her oral evidence.

What about a directions application to the tribunal? Rule 30 (5)(b) would allow the tribunal to exclude the husband - and this could (potentially) simply be announced to him on the day if you had a judge who was prepared to be creative. Application would need to be made in advance though.

past caring - 17 December 2012 04:17 PM

What about a directions application to the tribunal? Rule 30 (5)(b) would allow the tribunal to exclude the husband - and this could (potentially) simply be announced to him on the day if you had a judge who was prepared to be creative. Application would need to be made in advance though.

I don’t think you need to exclude the husband, a Judge can order that information that is potentially harmful to the appellant can be left out of the appellant’s copy of the appeal papers and although it will be included in the Rep,DWP and Tribunal’s bundles the specific information cannot be disclosed to the appellant. In this case the appellant actually knows about it but it would be arguable that to have the information on display would be potentially harmful.

Pete, what happens if questions need to be asked about the issue?

I recently had a case where a page of evidence about a very poor prognosis was restricted. The Judge did not have any need to refer to it during the hearing as it was a ‘medical opinion’ and the appellant would not really need to comment on it.  I am sure it had a significant effect on the outcome of the hearing though.

I could see that the current case might be similar, the abusive partner seems to be the cause of the speech problems and if the speech therapist’s medical evidence confirms that to be the case then the appellant doesn’t need to be asked about it. The issue for ESA may only be how badly the appellant is affected.

Our client which we raised the question about on 17th December had her appeal recently.  We sent the information to the Tribunal Service with the harmful sentence delated.  Then on the day of the Tribunal the full document was given to the Tribunal, telling them that it would be harmful to the client if her partner saw it.  The Tribunal accepted this, made no reference to it other than details cogent to the case had been supplied to them on the decision notice.  The partner attended the tribunal and knew nothing about details of the evidence supplied.

Client won appeal and was placed in Work Activity Group as falling within regulation 29 (risk to health).

Thanks for all the feedback.

GR