Tribunal Judge tells rep to “SHUT UP”

“non-contentious” - presumably you wouldn’t have been there if this was true!

“rare and uncommon” - as if rare were not bad enough :)

Sorry, couldn’t resist. Anyway…

Having just had one of the most bizarre experiences in a tribunal I’ve had for some years last week I have great sympathy and, yes, in light of your description and the comments from the clerk I would absolutely complain. I won’t detail mine as yet but, regardless of outcome, it will also be the subject of a complaint. However, as I’ve not had a conversation with the client yet I shan’t post here.

However, we walk a fine line with these things. As part of my prep. of clients I absolutely drill into them (and always have) that no matter how appallingly the thing is proceeding they never interrupt any other party to the proceedings. It is an absolute rule I impose and I make it clear that I don’t see the need for any exceptions, ever!

I provide a sheet of A4 that I make notes on and share with them so they can scribble on it if needs be and I make sure they understand that even when a PO or tribunal member makes a comment clearly requiring challenge we take the higher ground and wait for our moment to come back. It will always come and, if it doesn’t, we have an error of law anyway.

I totally understand the instinct to want an immediate right of reply in a hearing but I think it’s a misguided impulse. Tribunals barely tolerate, for example, POs who interrupt and most simply can’t help it with even the most experienced ones seemingly not that well trained in how to conduct themselves. I learnt from watching POs die a thousand deaths in front of some of the more withering judges that silence in the face of an onslaught of misguided questioning is always the best way.

This does, of course, mean I have sat through 30 minutes plus of tribunals that could have saved all that time if I had been allowed to deal with the key issues at the outset. Over time I have taken the view “c’est la vie”. That a tribunal undervalues the work of a rep. comes with the territory occasionally. It speaks more about them than it does about me.

All that said I have found complaints that are detailed; considered and objective are highly effective. I once made a complaint about a judge that both they and the doctor denied. The disability member rather undid that by confirming every single aspect of our complaint. It’s gratifying how people come through when you least expect it.

probably like many reps I have on one occasion been told to shut up by a Chair [or Judge as they now are] I expect he was right to put me in my place, in any event the appeal was allowed, but when required I have had to stop a medical member of the panel in his tracks for leading the evidence , again he did not like it and the Judge told me he was in order, I stuck to my guns however and insisted calmy but firmly that the medical member should not ask leading questions ,and in the end the client got the right decision. 
we have to work with these people on a long term basis so its best to have some give and take and after doing the job for a while you get a feel for which way the wind is blowing in the hearing.

It sounds radical but in a similar case to yours I would probably decide to aplologise to the panel for any “unintended offence casued by my over enthusiasm”  before they break to make their decision. You will no doubt be facing that Judge again in the future and for the sake of your clients it is best to have a tolerable working relationship however galling it may be.

I love the leading questions thing. We get hammered for it but no-one pulls them and certainly not whilst we’re in the room. However, even then, when utterly exasperated by blatantly leading questions, I have kept my mouth shut and waited my turn. I see no gain in doing otherwise.

“Working with” is an interesting concept in this context. I pedantically prefer the view that I don’t need to “work with” a tribunal at all. I often need to challenge aspects of what they do, at the appropriate moment, head on. However, what I do have one eye on is the need to retain credibility in the eyes of the whole tribunal. I will inevitably come across each of them again at some point in the future so arguing that black is white or feeling obliged to apologise, whilst at the same time arguing my behaviour was justified in some way, is of no benefit to future appellants I will represent.

I’ve had a medical member lean across and start reading a leaflet left on a glass cabinet housing the regs. next to the tribunals table right in the middle of a hearing. It happened twice with different members (nature of the room at the time being used for multiple purposes). On the first occasion I leaned forward; snatched it out of the medical members hand and pushed it towards the Chair (as was). The point was well made but I noted that I never subsequently won another appeal whilst that medical member was sitting unless I could get the loss to the Commissioners and back again.

Same situation occurred about 9 months later with a different medical member. This time I did nothing. Waited until it was my turn to speak and opened by asking the medical member how his childcare arrangements were relevant to a DLA appeal!!! The whole tribunal effectively stood to attention as I carried on by explaining that I didn’t think the childcare leaflet he was reading as my appellant was talking was relevant at all but his paying attention might be. DLA awarded as requested!

In a similar vein I once had a medical member fall asleep in the middle of the hearing (no reflection on me I assure you). They had a reputation amongst colleagues for appearing to do so but I’d not had it happen to me before. I opted for a good old slam of the fist on the table out of the blue whilst not feeling the need to add anything. When it came to my turn to speak I put my head down to consult my bullet pointed notes and started with “I appreciate this is legally complex but I’ll do my best to keep you awake…” :). Again, won.

No complaint against my conduct in either case, and, the right result. Word got around and at the next TUG a certain FT judge was staring right at me as he was saying how reps. needed to find a way of making points whilst respecting the correct way to conduct an appeal.

There is no clear cut answer as to whether one should ‘assist’ the tribunal as the hearing proceedes or whether to come in at the end as has been suggested. I think most of us have been in situations where we have been looked at by chairs with pleading eyes to give some context to some of the evidence being given as soon as possible and have done so….. usually leading to a much needed understanding of the all round picture.

What is clear cut is that tribunal members have no right to be rude to representatives or clients nor we to them. It is easy enough just to say in the correct tone ... ‘please do you mind coming in at the end about this ‘.

You have every right to complain and if you don’t then this judge will probably just continue to act in this manner to others. I personally have taken a complaint that was ultimately upheld all the way to the Lord Chancellor .... hopefully you will not have need to do so.

On occassion I have asked that the Record of Proceedings be noted to show that a request to address a matter had been made by the representative but not agreed to .... but only when absolutely necessary.

I hope the complaint is dealt with professionally and not brushed under the carpet. I think some Judges need to consider how they would feel if they were talked to in a similar manner.

Why was the question regarding referral to a specialist objectionable?  I would have asked it.

The question to the mother was, ” Why didn’t your GP refer your son to a specialist?” Earlier the mother had said that she was fed up telling her GP about the child’s behaviour asking for help. The question asked the appellant for facts which only the GP could provide. The only accurate answer the young mum could give was, “because the GP is incompetent”. I am sure that would have gone down well with the tribunal.

Bottom line is the question asked my client to say what went on in the GP’s head. Furthermore I am not sure how this line of questioning helped the tribunal!

I agree with Sunil. There will always be a moment when a tribunal wants you to help out. However, a pro active rep. who steps in ahead of that always takes a risk. It’s a judgement call. 

In this case I’m not sure why the mother couldn’t simply say “Well you’d have to ask the doctor that” or why any subsequent intervention had to be immediate. I would have only intervened immediately if the question had been repeated and/or repeatedly rephrased to the point of becoming an interrogation. At that point it’s harming the appellants ability to answer other questions so is clearly detrimental. 

I always make sure in advance that I am clear with any health issue that isn’t currently with a specialist as to why that is, but, the judgement on when to address that is a personal thing. For me, even if the client gets grilled on it, I would only come in immediately if the judge was looking for me to do so. Anything else is inviting…. well clearly not what you got… but some kind of comment to step back. 

In North Wales there was a clerk, who was excellent in many way, who would sit in tribunals with his thumbs moving up and down during the hearing to indicate the score rate of the points you were making as a rep. Made that judgement call as to intervention a lot easier :)

Have to say that in this case the judge was clearly having a very, very bad day and a complaint is likely to have a positive outcome with or without the support of a clerk.

a raised eybrow is often more effective than a raised voice !!!!!!

The obvious intervention is “that calls for speculation on Ms…..’s part.  It takes about 5 seconds to say and can be said before anyone else has chance to respond.  Whether it is said there and then or at the end makes no practical difference, the point is made.  Either way, if by that point you sense that the tribunal has begun to turn hostile there is probably very little you can do to save the situation anyway.

SocSec - 13 August 2013 08:17 AM

a raised eybrow is often more effective than a raised voice !!!!!!

Indeed, that rather assumes you have eyebrows which work independently though :)

In 25 years i have never been told to shut up.  I was once told to pour cold custard on my self….

Andyp4 - 07 November 2013 10:52 AM

Tony on the subject of Judges and your mention of welfs training have a look at this attachment from Martha Street who did a presentation at a NAWRA wotsit in Bristol.

Errrrrrrrrrrr have got another handout by Philip Boyd, but not on my work computer (can you post a copy Sister Chaos please, cos i bet you’ve got a copy to hand), who did a presentation in Taunton.

Both the presentations and handouts were really really helpful, to put it mildly, can’t help but think the likes of CPAG and LASA are missing a trick not following NAWRA’s example, and Somerset Advice Network’s examples of inviting Judges to do workshops.

Actually talking of NAWRA and Somerset Advice Network both those workshops and handouts alone are worth joining both orgs in themselves.

I am sure I have been at workshops with tribunal judges and upper tribunal judges at the cpag in Scotland annual conference.

“Interesting to hear other reps experiences of such issues and viewpoints on good representation”.

There is a discussion on submissions at the link below.  The bulk of good representation is preparation.  First, know your case.  You need to know exactly what the arguments are and what the evidence says.  Second, prepare your client.  Ask very detailed questions of the kind that the tribunal will ask so you know what he is going to say on the day.  Also make sure that he knows what will happen at the hearing and how he is to respond and present.  However, don’t coach or put words in his mouth.  At the hearing he must tell the truth without exaggeration or effect.  But, he does not have to volunteer information which might not help his case unless asked.  Third, establish your client’s credibility.  This is the most important weapon in your armoury.  If he blows this at the hearing then there is usually no way back.  Satisfy yourself as to what kind of witness in his own cause he is going to be.

Fourth, don’t overstate your case.  Go with the evidence, written and oral (it goes without saying that you should get as much supportive evidence as you can).  If you try to fly kites you’ll more often than not get blown away.  Finally, pay attention at the hearing.  Know when to speak and when to keep quiet.  Put the outline of the case at the beginning.  If you don’t need to speak further then that is because the tribunal has done its job and your client hasn’t fluffed his lines.  And, if you do need to ask your client a question then never ask a question that you don’t already know the answer to.  However, you can’t prepare for every contingency.  We’ve all had client who’ve ambushed us at the hearing.  You live and learn.

http://www.rightsnet.org.uk/forums/viewthread/3204/

Andyp4 - 07 November 2013 10:52 AM

Tony on the subject of Judges and your mention of welfs training have a look at this attachment from Martha Street who did a presentation at a NAWRA wotsit in Bristol.

Errrrrrrrrrrr have got another handout by Philip Boyd, but not on my work computer (can you post a copy Sister Chaos please, cos i bet you’ve got a copy to hand), who did a presentation in Taunton.

Both the presentations and handouts were really really helpful, to put it mildly, can’t help but think the likes of CPAG and LASA are missing a trick not following NAWRA’s example, and Somerset Advice Network’s examples of inviting Judges to do workshops.

Actually talking of NAWRA and Somerset Advice Network both those workshops and handouts alone are worth joining both orgs in themselves.

Oh dear…

On reading the Judge Boyd link, my subs look very amateurish in comparison with some of the examples, especially the overpayment one.

Some very interesting and helpful tips though.