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I have an appeal where an ESA50 has gone missing, how likely are the tribunal to ask me if I have a copy?
Hi
I have an ESA appeal coming up, there is no ESA50 in the appeal response. The appeal response states “client x completed a questionnaire (form ESA50) which was available to the Health Care Professional; however the questionnaire was not available to me” . A decision was made following an ESA medical and the client’s ESA was removed.
However, I helped the client complete an ESA50 and sent it off. I kept a copy of this document. Unfortunately ..................... disclosing the ESA50 would not be supportive to the client’s case. I know that I do not have to disclose prior to the hearing but I will have to disclose it if the tribunal asks. How likely are the tribunal to ask if I have a copy?
Thanks
[ Edited: 5 Jun 2014 at 03:40 pm by iut044 ]Depends if they think it is crucial to the overall case.
The more overwhelming your case the less likely - the weaker the case the more likely.
It is always likely the Judge could adjourn and make directions for its inclusion.
I had a Judge adjourn an appeal on Friday afternoon simply because 1 page of an ESA85 didn’t get included in the SoS bundle. The Judge, was of the view, it was of utmost importance all paperwork was included (with it being Friday afternoon of course).
Depends if they think it is crucial to the overall case.
The more overwhelming your case the less likely - the weaker the case the more likely.
It is always likely the Judge could adjourn and make directions for its inclusion.
I had a Judge adjourn an appeal on Friday afternoon simply because 1 page of an ESA85 didn’t get included in the SoS bundle. The Judge, was of the view, it was of utmost importance all paperwork was included (with it being Friday afternoon of course).
The case is a very borderline case. Would I be better off withdrawing as a representative and let the client attend alone, on the basis that the tribunal would think that the client would be less likely to make a copy than an advice organisation?
If you withhold evidence that is or could be relevant to the case and to the Tribunal’s ability to correctly come to the right decision as rep you are going into very troubled waters. Tribunal Procedure (First Tier Tribunal) (SEC) Rules 2008 Reg 2 (4) clearly outline this for the parties who must help theTribunal to furtrher the overriding objective and co-operate with the Tribunal generally. If the case has few chances of success when all the evidence is assessed representative should consider whether it is worth continuing to work with the case, and advise accordingly.
How much trouble you would be in will depend whether they have read this thread. On a couple of occasions a particular District Judge has discussed my posts on here…
Interestingly in the “Thank you cards” thread that’s running currently DWP’s Freedom of Information team comment something akin to “you plotted on Rightsnet to make loads of requests to get round the costs limit but regulation such and such means we can aggregate them”
You completed the ESA50 so you should know whether 15 points were possible or not. If not and you’ve got no evidence then withdraw. If 15 points were possible then disclose the ESA50 and be prepared to argue the case.
I’m 100% with Nevip on this one.
Agreed. You can’t have a ‘my client right or wrong’ approach.
If you withhold evidence that is or could be relevant to the case and to the Tribunal’s ability to correctly come to the right decision as rep you are going into very troubled waters. Tribunal Procedure (First Tier Tribunal) (SEC) Rules 2008 Reg 2 (4) clearly outline this for the parties who must help theTribunal to furtrher the overriding objective and co-operate with the Tribunal generally. If the case has few chances of success when all the evidence is assessed representative should consider whether it is worth continuing to work with the case, and advise accordingly.
Would I be breaking the law by withholding the ESA50? Could I be prosecuted?
You completed the ESA50 so you should know whether 15 points were possible or not. If not and you’ve got no evidence then withdraw. If 15 points were possible then disclose the ESA50 and be prepared to argue the case.
My client has got a realistic chance of winning on the basis on both what they put down on the ESA50 and what they are telling me now. However, some of what they have told me now is contradictory to the ESA50. Therefore if I disclose the ESA50, the client’s credibility will be reduced.
But what about YOUR credibility as a representative of future clients?
Hi..
..I helped the client complete an ESA50 and sent it off.
My client has got a realistic chance of winning on the basis on both what they put down on the ESA50 and what they are telling me now. However, some of what they have told me now is contradictory to the ESA50.
It’s the extent of the “some of” that’s relevant.
Have you challenged him on the discrepancy in his evidence? Could it be that you misunderstood him when completing the ESA50? Not saying you’ve done this, but it’s easy to use standard phrases as a substitute for proper enquiry, the latter taking a lot longer with some clients especially if, for whatever reason, often fear, their default position is exaggeration.
And that last point shouldn’t be overlooked. Client’s lie for a whole host of reasons. A good tribunal will not use incredibility as an excuse for not conducting a proper enquiry. A bad one will use the first sign of it to stop listening.
And, ultimately, can we ever say with certainty that someone doesn’t qualify when the margins are so wide? Most people appearing before tribunals have been, in life, more sinned against than sinned – they might even buy lucky dips instead of broccoli - and they have to plead for money before those, many of whom have known nothing but privilege.
I’ve spent eight hours trying to work out the tariff for the offence of being complicit in the hiding of an ESA50 under the All Scroungers are Criminals Act 2014, and turns out it’s only two days in solitary. So relax.
I’m 100% with Nevip on this one.
So am I. the sort of thing I could find myself before the SDT (disciplinary tribunal) for.
entitled to rely on client’s instructions, but not if you know client presenting a false case.
if client doesn’t qualify, he doesn’t qualify. you do yourself no service going forward (bearing in mind that you may well be before same tribunal again) if you put yourself in this untenable position.
There’s frequently contradiction between what a person says in oral evidence and what’s in the written evidence. Ain’t a problem provided they can explain it away. That’s the real issue here. Often it’s simply a case that the person hasn’t read what the rep’s written before signing the form. That might be fatal in other areas of law but thankfully not in this area.
These things are a combination of instinct, judgement and experience. When I first started repping I used to lead with the questions that were based directly on the legislation, and then not much more. How naïve I was. But, I got lucky and won my first few tribunals. When the penny began to drop I started putting clients through a mock tribunal without them noticing (nicely of course). That’s when I really started to learn. Part of the assessment, of course, is judging credibility. That’s a skill that takes time to learn. What you also learn is that a lack of credibility doesn’t necessarily mean that the client is lying. There are various factors at play such as nerves, confusion, lack of focus, etc.
However, another skill you develop is to be able to distinguish what is what. You learn to distinguish between a truthful but bad witness and someone who is not being entirely truthful or downright lying. Of course, we get it wrong sometimes. We can all be taken in. In the final analysis it’s a matter of the adviser’s judgement based on experience. What you must not do is prejudge the matter as each case is different and I have often formed a view at some stage in the interview only to change it later on in the interview, either way. Open mindedness is everything but, that said, trust your instincts. Credibility is crucial. Once that is lost, whether in a good tribunal or a bad one, then it’s usually all over.
And, in answer to your post 8, you would not be breaking the law and could not be prosecuted. However, failure to obey a tribunal’s direction can leave you in contempt and you can be punished for that.
Rule 24(4)(b) of the TP (FtT) (SEC) Rules means that all evidence available to the DM should be available to the FtT and disclosed to the claimant or representative except medical evidence that is harmful to the claimant’s health.