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

Absolutely - I’d hoped that was clear from my post, but perhaps not.

This is more akin to a directions request, although it’s not even that, properly speaking.

R(IB) 2/04 and AP-H v SSWP [2010] UKUT 183 (AAC) are the main decisions on this - more recent decisions on the way the principles should be applied are JF v SSWP [2015] UKUT 267 (AAC) and BTC v SSWP [2015] UKUT 155 (AAC).

Really all that needs to be said is that the tribunal adjourned because it thought the existing award was in doubt but did not properly explain why it thought this. Appellant has have arrears of concern explained in order to address them.

For those who don’t know, it is an absolute abuse of process for a PO to discuss a case with any tribunal member prior to the hearing.  However in Jos’s case you can’t be sure that that was what the PO was doing in there.  He could have been discussing a previous case.  I remember once a PO being called in to the room prior to my client’s hearing.  When we went in the chair (as he then was) went to great pains to explain to my client that the reason he was called in was to explain the DWP’s shenanigans over the previous case (and he actually said to me “I trust you have no concerns”).  This particular chair was one who I greatly respect and like so I had no concerns whatsoever.  If it happens to anyone then you should put the point to the chair/judge there and then for clarification.

Until the rule changes in 2008 an appellant could withdraw his case at any time including during the hearing.  Since then that right dies the moment the hearing begins.  After that you need the tribunal’s permission.  The point about asking the tribunal to provide detail about its concerns is well made but my (hopefully informed) instinct is that most of the chairs/judges I know here in Liverpool would not be unsympathetic to a withdrawal request unless the evidence against the appellant was clear or overwhelming.

Past caring’s remark of there being no absolute right to a warning needs qualifying.  I agree that the starting point is the right to a fair hearing but while there is no statutory right to a warning there is such a common law right.  See R(IB) 2/04 and CDLA/884/2008 (attached).

nevip - 15 July 2015 12:46 PM

Past caring’s remark of there being no absolute right to a warning needs qualifying.  I agree that the starting point is the right to a fair hearing but while there is no statutory right to a warning there is such a common law right.

Nevip - what I actually said was;

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.

What I was driving at was the point you made (more clearly) about needing a tribunal’s permission to withdraw once the hearing has started. So a FtT would be entirely within its rights if it raised questions about entitlement to the current award, was sufficiently clear as to its concerns as to enable the appellant to know what s/he needed to address and gave an adjournment to allow opportunity for that - but did not permit withdrawal. 

So maybe clarification, rather than qaulifying. ;)

past caring - 15 July 2015 01:12 PM

nevip - 15 July 2015 12:46 PM

Past caring’s remark of there being no absolute right to a warning needs qualifying.  I agree that the starting point is the right to a fair hearing but while there is no statutory right to a warning there is such a common law right.

Nevip - what I actually said was;

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.

What I was driving at was the point you made (more clearly) about needing a tribunal’s permission to withdraw once the hearing has started. So a FtT would be entirely within its rights if it raised questions about entitlement to the current award, was sufficiently clear as to its concerns as to enable the appellant to know what s/he needed to address and gave an adjournment to allow opportunity for that - but did not permit withdrawal. 

So maybe clarification, rather than qaulifying. ;)

Sorry, I wasn’t trying to contradict you but was trying to point out the origin of the right.

Many thanks, everyone. Composed an e-mail asking for an explanation for the warning (adjournment notice definitely states a warning was given, so the judge can’t deny it). Citing the case law mentioned (thanks for that!) and Rule 2’s overriding objective, which includes a provision for ensuring, so far as practicable, that the parties are able to participate fully in the proceedings - if an appellant doesn’t know what the doubts are, they can’t really participate fully in addressing them.

Appellant is still minded to withdraw but has agreed to wait to see the response from this letter first. Will let you know how it goes.

TBH aside from the DQTM/PO business I see no scandal.

The issuing of a warning where there is an existing award has to be expected - IME the tribunal will either issue a warning or explain they are satisfied with one component and are considering only the other..

Even the UT do it.

para 19: CE 0534 2015

“I remind the claimant that, although she may not feel able to attend, she could ask someone to attend who can speak of her difficulties from their own knowledge. Finally, I warn the claimant that the rehearing will consider all issues afresh, including whether she has limited capability for work. In particular, it will not be bound to accept that the claimant satisfies regulation 29, as the tribunal did last year.”

I always warn of the risk to a current award - there is never a case of no risk - there can be rogue or unexpected evidence. This may come in the form of a report of mistaken identity, mix up or just some fact you as a rep were unaware of even from the appellant’s oral evidence “oh building a garage you say?”

Risk is there to be balanced and managed. Naive to think otherwise.

John Birks - 15 July 2015 02:17 PM

TBH aside from the DQTM/PO business I see no scandal.

I

Risk is there to be balanced and managed. Naive to think otherwise.

That is the point, from the outset there can be risks but these have to be managed to avoid an automatic aversion to seek review. In essence any risk is to be considered along with other factors and this should be continually reviewed, advised and instruction sought.

As a side note to this thread I wonder (in considering PIP) whether anyone has had a warning when an appellant has 2 or 4 points?

Should a Tribunal warn an appellant if they are minded to remove these points even though there is not an award in place already?

Yes I had a PIP appeal where there was no award and they were very clear that the partial points awarded - which was either 6 or 7 for daily living - were not ‘in the bag’. Obviously there was no risk as nothing to lose and we ended up with enhanced, enhanced but to the best of my recollection we did lose some of the points previously awarded tho gained in other areas. Can’t look the case up as I’m not in that job anymore I’m afraid.

Kevin Booton - 17 July 2015 03:13 PM

As a side note to this thread I wonder (in considering PIP) whether anyone has had a warning when an appellant has 2 or 4 points?

Should a Tribunal warn an appellant if they are minded to remove these points even though there is not an award in place already?

Not a warning as such…..from ESA (and the old ICB PCA appeals) local judges would often seek agreement that points already awarded were to still be awarded and then they could concentrate on only looking at the other areas of dispute - the classic being the one extra mental health point that was needed to get from 5 to 6 MH points to add to the 6 physical points already awarded to make…...15!! to pass the PCA.

I can see why in PIP appeals judges would also seek agreement on some points - so they can concentrate on the others under dispute.

But not had a warning yet that I may lose the points that are inadequate for an award anyway - I cant see why they would issue a warning then?

In my appeal it was to make clear to my client and me that we couldn’t assume those points were safe and therefore we still had to argue our case for them if we felt they applied

Rather than starting a new thread I’ll comment here.

Considering the amendment to the Procedure Rules to allow DWP to try to reinstate an otherwise withdrawn appeal I sense that these warnings might become a thing of the past.

Scary times!

Rightsnet story on changes to tribunal rules here - http://www.rightsnet.org.uk/welfare-rights/news/item/changes-to-tribunal-rules1

also discussed here - http://www.rightsnet.org.uk/forums/viewthread/8493/