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withholding evidence?
Hi
I am wondering what views people hold regarding withholding medical evidence from tribunals, when it does not support the clients appeal?, I have colleagues with differing views on the matter and would be interested to get a wider range of opinions.
When it comes to evidence of an objective nature (e.g. a spirometry test that does not support clients claimed level of restriction due to breathlessness) my view is to submit it, so as not to run any risk of knowingly misleading the tribunal, then unhelpful evidence can always be addressed and put into context in a submission, in order to try and mitigate the potential harm to the case. If the client objected to the submission of this evidence I would probably withdraw from the case.
But when it comes to so called ‘letters of support’ I might leaving them out if they are vague and poorly informed, if the client does not agree with the content. But if the writer demonstrates a high level of knowledge, and particularly when they are also medically qualified, I would probably insist on submitting them.
are there any legal experts who can comment on matters such as fraud implications?, the duty to the tribunal?, etc
In the Tribunal Procedure Rules there seems to be no equivalent to the Standard Disclosure used in the county court, whereby a claimant is required to disclose not only the documents on which he relies, but also the documents which adversely affect his own case. (Interestingly, disclosure directions in the Employment Tribunal generally require this level of disclosure too).
If there is evidence of fraud, then solicitors may have duties to disclose under the Proceeds of Crime Act 2002 that over-ride confidentiality. That will not apply to CABs etc, and in any case I don’t think you’re referring to that sort of clear-cut evidence.
My approach is basically as per the advicenow leaflet for someone running their own DLA appeal:
Read the evidence through – does it support your case? If it doesn’t, you don’t have to send it to the panel (but if they ask if you had any evidence you didn’t send them, you have to tell the truth).
Couple of links on the role of reps, which broadly suggest to me that presenting the client’s case strongly or in a good light should not be inconsistent with the objective of assisting the tribunal:
http://www.rightsnet.org.uk/pdfs/SSLPA_Jacobs_July_2004.pdf
http://somersetadvice.net/uploads/documents/Welfare Rights Conference/JUDGE BOYD - Online Resouce Pack.pdf
(copy/paste the entire line)
If there is evidence of fraud, then solicitors may have duties to disclose under the Proceeds of Crime Act 2002 that over-ride confidentiality. That will not apply to CABs etc, and in any case I don’t think you’re referring to that sort of clear-cut evidence.
i so disagree. the money laundering and proceeds of crime acts apply to everyone…
i also disagree about your view on disclosure and thin kyou’ll find a Tribunal Judge VERY unsympathetic if a cavalier view on disclosure were taken. the Tribunals are all now under the same umbrella, and IMHO the same rules will apply even if not spelt out.
I do take seriously the part of the info I suggested in parantheses, i.e. being prepared to state what steps were taken to gather evidence, and to explain why anything was not presented. And I try to keep in mind the Kerr principle of each party doing their part to assist the tribunal.
I would not represent in a case where we hold evidence that clearly contradicts the client’s case, and the client do not want it put forward. I can’t think of a situation where I would hold back any letter that we requested from a GP, for example, whether or not it squarely supports an award. However, I don’t think it’s “cavalier” to do as suggested above, and “make judgements about the value of evidence for decision making and whether others may also derive value from the information”. A letter from a GP written a year previous to the assessment may or may not be relevant, it depends on the circs.
Put another way, I think it’s fair enough to decide that something “does not support your case”, if the reason for that is the evidence is not accurate or relevant enough. On the other hand, if something “does not support your case” because it is perhaps too accurate or perceptive, then I would advise you do not actually have a case to support.
But maybe a better guiding principle to use would be the one given to the SoS in CE/829/2012:
38. Does this then oblige the Secretary of State to provide to the First-tier Tribunal in the appeal response all documents he holds in his possession about an appellant? No. It is only the documents that are relevant to the decision under appeal that this obligation attaches to.
[... ] it seems to me that the Secretary of State and his decision makers ought in all appeal responses to at least refer the First-tier Tribunal to all the documentary evidence in the Secretary of State decision maker’s possession that he considers may be relevant ..
Regarding Proceeds of Crime, I was harking back to this thread: http://www.rightsnet.org.uk/forums/viewthread/1893/
Have I missed or misinterpreted something?
There is a world of difference between evidence that does not support your client’s case and evidence which flatly contradicts it. I would not usually disclose evidence which raises more questions than it answers but I would want my client to answer those questions to my satisfaction. On the other hand evidence which flatly contradicted my client’s case to which he couldn’t provide satisfactory answers would probably lead me to withdraw.
Good representation and advocacy is gained through hard work, experience and mistakes. It is important to put the best case for your client while not misleading a tribunal. Being aware of rules of evidence, procedural requirements and obligations to the tribunal is crucial. Weaving your way honourably through this maze is a product of instinct born of experience. Good reps do it well. We don’t always get it right but we get it right often enough.
Hardening of attitude in the North West on this. Unlikely to reverse. Clear view from District Judges that you
- disclose what you wrote when requesting evidence.
- disclose what you received.
Tbh I don’t have a problem with that. I’d like to think I have 25 years experience of weeding out that which is poor quality/irrelevant evidence rather than just evidence which contradicts what I say but things change and I’ve no problem with going along with that.
Always worth bearing in mind that, whether we admit it or not, advisers of variable experience have been known to write poor; leading or misleading letters and withold them from tribunals for good reason. There is a tendency to tar us all with that brush from certain judges/tribunal members but we’re always going to be judged by the lowest common denominator approach and the prejudice of certain tribunal members.
Best way to fight that IMO is to establish credibility as a rep. I suspect I’m much more trusted overall by a range of judges because I’m the rep. who discloses everything and is prepared to address the issue of the weight which ought to be given to a particularly poor letter rather than just pretend it didn’t exist. Arguing that black is white is not on my agenda. Far better to address WHY there are a range of opinions rather than pretend there aren’t.
Also, it’s worth saying that tribunals have moved with enthusiasm toward requesting GP records. These do rather reveal that a letter was written; a response was sent and yet nothing is in the appeal papers. That’s not a big win on the credibility front.