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Two appeals at the same time
My client has two appeals running, one for DLA and one for ESA,and I have just had notice that they are going to be heard at the same time on the same day at the same venue, presumably by one panel. I queried this with TTS who have rung back and said that this is all in order. I can forsee problems with (amongst other things) the different compositions of the two panels and possible problems with confusion over differing criteria for the two benefits.
Has anyone run into this before?
seen it before yes.
Same here (PCA/DLA- yet to come across it for ESA/DLA). I can see the potential drawbacks, but have been know to request such appeals are linked and heard together in the past, especially if client is likely to find it easier (either physically or psychologically, or both) to attend only one hearing. In one case, on the day the tribunal couldn’t hear the PCA appeal as well as the DLA appeal (one of the panel members had been replaced at the last moment and wasn’t qualified to sit on the PCA appeal) which was a real shame, because the panel were very sympathetic to the client (and I think would have allowed both appeals with no bother). As it was, we had to attend a different hearing for the PCA appeal and the panel wasn’t nearly as accommodating (appeal failed)- so it can work both ways.
Quite common here too. Even had DLA/IDB appeals heard together. Once did an DLA/IDB/ICB appeal in one sitting. I, personally, don’t have a problem with it.
Thanks everyone, for some reason I’ve never run into this one before.
Quite common here aswell and it has advantages for attendance of rep and appellant. Also noticed linked overpayment cases are increasingly heard together including one involving HB none commerciality for landlord and related tennant.
Notwithstanding the convenience of holding two appeals together there is a real issue concerning both parties’ right to a fair hearing when the composition of the tribunals is not the same for both benefits.
In a DLA/ESA situation the possibilty arises of tribunal members “contaminating” each others opinions. Either the two common tribunal members will influence the third member on their view of eg, the appellant’s credibility, derived from hearing the ESA case first. Or the third member will have a chance to influence the two common members’ view on credibility in the subsequent ESA case if the DLA case is heard first.
Such an issue does not arise in an ESA/ICB situation.
Or in overpayment cases, where it is really desirable if the same facts are involved - say LHTAW for both income support and HB/CTB. I have certainly known an IB/ESA case to be intercalated (nice word you don’t often get to use) into a DLA/AA day, often where there has been a setaside, or maybe some adjournments and theya re running out of people to hear the case.
Notwithstanding the convenience of holding two appeals together there is a real issue concerning both parties’ right to a fair hearing when the composition of the tribunals is not the same for both benefits.
In a DLA/ESA situation the possibilty arises of tribunal members “contaminating” each others opinions. Either the two common tribunal members will influence the third member on their view of eg, the appellant’s credibility, derived from hearing the ESA case first. Or the third member will have a chance to influence the two common members’ view on credibility in the subsequent ESA case if the DLA case is heard first.
Such an issue does not arise in an ESA/ICB situation.
These were exactly the concerns I had. In the Composition of Tribunals Order 2008 it seems to say that there is a maximum limit of three people to sit on a panel and that a doctor and a judge should her IB/ESA appeals and that a doctor, judge and Disability Qualified member should hear DLA and AA cases but it seems only to set these as minimums so it might even be possible for the DQPM to sit in on the ESA appeal, (both hearings have been listed to start at the same time) I have concerns regarding the ‘contamination issue’ - although the issues are distinct from each other (ESA and DLA) surely the appellant has right to not have the (for example) DLA case heard by a panel who has just turned him down for ESA?
Re contamination of a later appeal hearing by other hearings heard before. That could presume we may think the tribunal may not be fair and independent. That is very dangerous and unsustainable. If the tribunal make findings of fact as an independent expert body why is that not relevant. On walking ability for example finding of fact that the appellant could walk to the local shop 100 yards away by the tribunal is relevant to both appeals but as long as this is put to the relevant legal criteria of DLA and ESA why should this cause problems. If the tribunal do not then that decision can be overturned on a point of law. Equally a tribunal could find relevant information out that could lead to the client winning both appeals. Many Clients with mental health problems have enormous difficulty dealing with tribunals. Why would we want to put them through such an ordeal twice. It also makes it easier for representatives to attend if appropiate and therefore help clients.
CE/1032/2010 may be of interest, even though the circumstances are plainly different.
http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=3041
Judge Williams has now given a decision on the sort of problems that are encountered by trying to hear a DLA and ESA appeal together… basically I think following this decision the practice should stop.
Case is: PJ v Secretary of State for Work and Pensions (ESA) [2011] UKUT 224 (AAC)
This is really common in Liverpool but I think it gives rise to problems. One is that sometimes the chair does not clearly distinguish which benefit is being considered and so we don’t know what criteria are being addressed in any specific question. Another is that the lay person is there for both appeals, and stays behind in the room when both decisions are made - what is their locus as far as ESA/IB appeals go? Ruth
As a result of the decision mentioned by Martin Williams at #12, and our growing concern about how these combined appeals are being conducted, which are similar to the other posts in this thread. I wrote to our District Judge about this matter. I have now had a reply from the North East Regional Judge. He states he ‘was gratified to find that the longstanding practice and procedure which we have adopted in this region for linking such appeals has not been called into question’ by the Upper Tribunal decision. So there is no intention to change their approach. However the letter also mentions that the Upper Tribunal decision was the subject of some discussion within the region, and that he has recently issued a guidance note to all Tribunal members about this. So it maybe some Judges were of a different opinion.
I can see this leading to further appeals to the Upper Tribunal. I am suggesting to the reps in our service that when faced with combined appeals they write to the Tribunal Service stating how they want the hearings conducted, such as heard on different days by different panels, or ESA before DLA with the carer member out of the room until the DLA hearing starts.
Any other suggestions would be welcome.