Tribunals giving a warning that they will look at the whole award

Hi,

PIP tribunal today: appellant is already in receipt of standard daily care; aiming for enhanced. Lasted all of 10 minutes before it was adjourned.

At the start, the judge gave a warning that the panel reserved the right to look at the whole award and that it may be reduced or removed altogether. The judge said the appellant must decide whether to proceed on that basis, or withdraw. The hearing was adjourned as the appellant wasn’t present.

OK, I know tribunals can do that, but ... in your experience, do they routinely do this, or do they only give that warning when they have reasons to believe that an appellant falls short of the criteria for their existing award?

Thanks

I have seen this twice (when observing)where there appeared to be doubt about the existing award. I know they can look at any time so may always warn but it was said with particular emphasis and the judge checked that the clients understood the implications of proceeding and adjourned to give them the opportunity to consult with an advisor.

I took this to mean ‘proceed at your peril”.

Yep, I’d agree that certainly doesn’t happen routinely and, in my experience, has only happened when tribunal has serious doubts about existing award….

There is a line of authority that says tribunals should not wander into territory that is not in dispute between the parties unless there is some evidence before it that it could not, in good conscience, ignore.  So, when minded to do so prior to the hearing, it is an error of law not to put the appellant on notice at the outset.  It is not done routinely and in my experience, relatively rare.

I’ve had it a few times but not many. Have heard of it on many occasions though. I think you can read it one of two ways:

1) Whole tribunal have identified an issue. May have been as late as the appellant walking through the door. As said above, proceed at your peril.

2) One of the tribunal has an issue. The others disagree and are doing you a favour by offering the warning in that it suggests to the dissenting member that they’re being taken seriously and it gives you the chance to get the heck out and rethink.

I had a good example of the problems this can cause recently. Case in which DLA CC at issue only. I had questions about the original award of HR MC but no doubts at all on CC.

We walk into a warning to the clt. that they could lose everything. Does she want to withdraw? Interestingly, triggered by clt. going to toilets at the Civil Justice Centre and being observed walking to/from both by the PO who exited their room to watch. Prior to hearing the DQTM enters the PO room and stays there for 3 minutes. Door open but I’ve no idea what was said. Then, we walk straight into a warning; a brief explanation that it was connected to concerns around MC that tribunal felt put MC at issue and CC too. PO chips in with walking observation! My challenge on the obvious grounds falls on stony ground.

Clt. absolutely refuses to proceed as they don’t want to lose what they have. I have my doubts about the original award of MC on virtual inability. However, that extends no further than believing it would have continued in any event on SMI grounds. I understand the impulse but want the opportunity to put to the tribunal that MC on SMI grounds needs to be considered and before we get to that stage they need to think very carefully about whether they even have grounds for review.

Returning to the tribunal room the judge denies a warning has been given (!). They merely wanted to put on record that if we proceeded it could be an issue. I ask for absolute clarity and get a clear statement that no warning has been given. This is of course of no use to my client who understandably simply wants out.

Judge says we can proceed but MC could be at stake. Declines to say that it will be! Suggests we could withdraw but then ask for reinstatement!!! Client withdraws.

Where this ends up is that after some weeks I do persuade the client and TS to reinstate for a hearing in front of a differently constituted tribunal. However, as we approach a new hearing date the client has lost all confidence in the process and my views on the outcome. Withdraws again!!!

Mike Hughes - 14 July 2015 12:19 PM

Judge says we can proceed but MC could be at stake. Declines to say that it will be!

Wouldn’t that be the absolute definition of prejudice, a decision given either way prior to taking oral evidence?

Commonest examples I have seen ( a few ) were where client had Mobility and say Low care and wanted more care and there wasnt a lot of evidence .

If the mobility was in question then a warning was issued and i have always said to the client they can proceed but the entire award Can be looked at and also said if the award is lost we can assist with the results, many clients prefer to keep what they have

sometimes its possible to prepare ahead but to be fair I have had clients where I can see less basis for an award that some clients who havent been able to get one.

In 20 years I saw one client who I had no idea why they had mobility and care

Re comment about awards always at risk comments we also try to back up any current awards with ongoing evidence as particularly with the transfers to PIP these cases are becoming much commoner and sometimes even the client doesnt recall how long they had the award ( or what it was)

Keeping records seems to be the key and many clients dont ,if the cases go to tribunal then having that historical information is usually why clients are successful.

My ‘horror’ story would be the client who wanted to appeal low care component to high care with virtually no evidence of any but also had Mobility high rate ( again very little basis)

the client came to us after the 1st tribunal with a notice to get advice on the grounds she wanted to claim care and also to look to establish the proof of the mobility with a 2nd appeal date to be requested

client couldnt and the 2nd date wasnt requested , they ( the tribunal) could have pulled both so I thought she was lucky

John Birks - 14 July 2015 02:08 PM

Mike Hughes - 14 July 2015 12:19 PM

Judge says we can proceed but MC could be at stake. Declines to say that it will be!

Wouldn’t that be the absolute definition of prejudice, a decision given either way prior to taking oral evidence?

 

Maybe, but it felt like a losing battle and, given the profound impact it had already had on the client, I didn’t see much mileage in anything on the day other than getting out and getting the client to the point where they wanted to ask for it to be resurrected.

My personal guess was that one member, the DQTM, had been advised by the PO of what they had seen and was never going to budge from being influenced by that. I suspect the judge, and maybe even the medical professional, were genuinely trying to extricate both me and themselves from this and so didn’t want to give a formal warning but did want to warn us off.

It backfired badly but I’m okay with the logic of it as that specific DQTM has been around for a long time; asks what might be described politely as leading questions and is very readable as being ant-claimant. They don’t take kindly to being challenged either.

Thanks for all of your responses, guys.

Client now wants to withdraw.

As I mentioned in my opening post, the appellant wasn’t present at the hearing - so no observations could have been made, but the warning was given as soon as the hearing began. No further elaboration was forthcoming as to why they felt it necessary to give the warning, i.e. which activities they felt she shouldn’t have been awarded points for.

However, after the warning was given, and the offer of adjournment made (which was accepted post haste), the judge still went on to ask the PO whether he had any comment to make. He mentioned that the appellant had been in receipt of Carer’s Allowance at the time of claim (although isn’t anymore). So I’m thinking that, prior to the hearing, the PO may have had a word with one of the members and disclosed this fact, leading to the warning. I can’t think of any logical reason why there would be a doubt otherwise, because the evidence for an award is very compelling.

FWIW the care provided was purely supervision (and not physical attention) which doesn’t clash with her daily living difficulties. Of course, the PO didn’t mention that fact.

Is it possible to contact HMCTS to ask the judge for the reasons why it was felt necessary to issue a warning, so we can figure out the best way forward (on the grounds of the interests of justice/fair hearing? need to know their concerns before they can be addressed…)

Thanks

Edit to add: The PO was already in the hearing room with the panel prior to the hearing, before coming out a few minutes later to go to his own room. I wonder what he was doing there prior to the hearing, and what was said. Surely he shouldn’t have been allowed to make contact with the panel in the room prior to the hearing?

I suspect the judge would deny actually giving a warning. As someone noted, that might suggest he had predetermined the possible outcome.

I know of a few cases where the fact of the claimant claiming CA was brought up by the PO despite the type of care given differing from the type needed.

I used to see this all the time in another, more conservative place; it was routine practice to give them the kitchen warning as the clerks called it.

It has worked to my advantage once when I wandered into a hearing where the appellant was in receipt of what looked like a rock solid high rate mob; even the Tribunal must have thought so as no kitchen warning was given however during the course of the hearing the appellant’s evidence clearly indicated that high mob wasn’t an appropriate award.

Suffice to say the Judge wasn’t too chuffed when I pulled the trump card and we walked with the existing award in place. My conscience wasn’t too troubled as it was in the days of mahoosive waits for hearings and the appellant had deteriorated a fair way by the time we got to the hearing

In my experience these are not issued unless the Tribunal have reason from the evidence to question the grounds of the existing award. I was reminded recently these are no longer called ‘warnings’ but ‘advice’ although some adjournment notices seem to ignore this PC change. If the appellant is not present when such a warning is issued then it is good practise to use the adjournment to seek fresh informed instruction and meet with the client. This also emphasises the need for clients to understand the advantage of attending hearings to give evidence and I would need a lot of convincing to rep in a case where a client with a existing award did not want to continue with a case as a oral hearing.  This is usually assessed at the initial interview and with recognition given to clients difficulties. Reps attending with clients to the hearing is one solution. The bottom line has to be that when a case is closed the client is not in a worse position than when we first met. This makes the rep rightly cautious and clients carry on with or without our help and can succeed, but hindsight is the best advisor.

I agree- I expect we’ve all had a few of those disasters from which you learn (and which you never forget), though I’ve occasionally encountered the ‘gipsy warning’ from tribunals when I really wasn’t expecting it.

Of course, no matter how experienced the advisor, you can never completely eliminate those awful ‘may the ground open up and swallow me now please’ moments in tribunal hearings. Clients do sometimes have a way of suddenly, unexpectedly, producing a shovel and digging a very large hole….

As the OP has now experienced, the problem with these warnings, advisories or whatever is that they often have a disproportionate impact on the appellant who will rarely be persuaded to continue.

In the face of such a threat then that may appear entirely proportionate but I mean this in the sense that several posters here start from the assumption that, when such a statement is made by a judge, it is coming from the whole tribunal. I believe that assumption, as per my previous post, may often be incorrect. Often it’s the judges means of getting you out of there because one member has taken a view from which they will not be moved. Some judges simply won’t accept being party to a majority decision and some members take the same view. The best way out of that impasse is often to imply a component may be at issue or under threat without actually spelling out that it’s only under said threat from one member of the panel.

The fact the tribunal judge in my last case of this type made a point of stating that the appellant could withdraw the appeal on the day but later change their mind and ask for it be reinstated was not, to my mind, just someone ticking the boxes and being thorough. It was someone saying “get out of here now and you won’t find yourself having to go to UT/set aside. Resurrect it later and it’ll go before three different people!”.

I have had, in the past 2 years, 3 cases in which this type of statement was made. In 2 of those 3 cases I had a long-standing DQTM who is overtly anti-claimant and fairly aggressive to reps. (or just me). In those 2 cases we were also advised we could reinstate. I felt very lucky that I had 2 very determined and clear-headed appellants and they agreed to withdraw and then resurrect. Sure enough both cases were won in front of 2 different tribunals. One of those cases was a DLA conversion case where there was a suggestion of a threat to past DLA as well as implied nil PIP. Final decision awarded enhanced rate of both; didn’t even question the DLA, and, was based on no new evidence whatsoever. What went before them went before the original tribunals.

My point is that reps. cannot assume the whole tribunal is issuing an advisory and pray for calm appellants who are prepared to carry on as often the threat is illusory.

Jos - 14 July 2015 04:17 PM

However, after the warning was given, and the offer of adjournment made (which I accepted post haste), the judge still went on to ask the PO whether he had any comment to make. He mentioned that the appellant had been in receipt of Carer’s Allowance at the time of claim (although isn’t anymore). So I’m thinking that, prior to the hearing (and my arrival), the PO may have had a word with one of the members and disclosed this fact, leading to the warning. I can’t say for sure, but I can’t think of any logical reason why there would be a doubt otherwise, because the evidence for an award is very compelling.

...............

Is it possible to contact HMCTS to ask the judge for the reasons why it was felt necessary to issue a warning, so we can figure out the best way forward (on the grounds of the interests of justice/fair hearing? we need to know their concerns before we can address them…)

Thanks

Edit to add: When I arrived at the venue, the PO was already in the hearing room with the panel. He came out a few minutes later, went into his own room, and then we went in together when the clerk called us in. Looked rather sheepish when he realised I’d seen him. I can’t help but wonder what he was doing there prior to the hearing, and what was said… Surely he shouldn’t have been allowed to make contact with the panel in the room without my presence?

I think it’s maybe useful to take a step back here.

There is no absolute right, as such, to an adjournment and/or warning so that the appellant is given the opportunity to withdraw if the tribunal is considering reducing the exisiting award. What there is, is a right to a fair hearing - and this means that where the FtT believes that there may be grounds/evidence that point to the reduction of the award being appropriate, the appellant has to be given opportunity to address those grounds and evidence. And it is this that will result in an adjournment (i.e. so the appellant and rep are able to properly address issues that they were not expecting to have to address). There are any number of Commissioner and UT decisions on this point.

So the warning issued to your client is entirely useless - and serves no practical purpose - unless the tribunal explains the specific areas of concern that led it to give the warning.

I would write and ask for reasons for the warning/adjournment and citing a couple of UT decisions on the point that the tribunal must explain its reasons for considering why a reduced award might be appropriate.

I’d also mention the stuff about the PO being present in the room when you arrived and the fact the PO was invited to comment and mentioned the CA award* after the hearing was adjourned and raise my concerns about this.

(* - in my experience, there are some pretty decent POs out there. They’re often pretty clued up and have no personal stake in the decision and so will concede appeals where it’s ovious they should. It could just be that PO in your case was giving you a subtle heads-up because of the tribunal’s failure to explain itself)

[quote author=“past caring” date=“1436951915

I would write and ask for reasons for the warning/adjournment and citing a couple of UT decisions on the point that the tribunal must explain its reasons for considering why a reduced award might be appropriate.

Bearing in mind that we’re only entitled to full written reasons for a decision that disposes of proceedings it’s worth adding that you’re more enquiring of the reasons that the Tribunal felt they needed to issue the warning (rather than going into full “leave to appeal” mode) with some caselaw to back up that they shuld have indicated why they were concerned.