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DWP submission to tribunal
In its submission to HMCTS in an ESA appeal the DWP has put:
“Should further evidence not already taken into consideration be presented to the tribunal by X or her representatives, the DM reserves the right to have the case adjourned and that HMCTS refer any such evidence to the DM for their consideration. Should the tribunal wish to continue without adjournment then a full SOR is requested.
Should the tribunal base their decision on cogent oral evidence from X or her rep. the DM requests that a full transcript of this evidence is made available as soon as possible after the tribunal has made their decision so that any future challenge can be based on the same information made available to the tribunal.”
This is the first time I have seen this on appeal papers. Is the DWP just trying it on or what?
Hi Billy
other than the fact i know few tribunals where they record and subscribe every word (none ) , is it worth asking for a judge to ’ suggest’ that ESA send a representative themself to the tribunal ( a judges direction)
Clearly they have the option to do so and presumably if they are changing their focus should do so
presumably both parties will be aware of the date of any tribunal and the entire point is that the client/rep get to make their case in person
Yes, seems quite strangely worded - can’t see how they can ‘reserve the right’ to have case adjourned as there is no absolute right - request for adjournment has to be made during course of hearing in any event.
Also, tribunal rules contain no duty to provide record of proceedings, let alone transcript, although 2008, ‘Practice Statement on Records of Proceedings in Social Security and Child Support cases in the Social Entitlement Chamber’ says that a record of proceedings must be made and that -
‘The record must be sufficient to indicate any evidence taken and submissions made and any procedural applications, and may be in such medium as the member may determine.’
Agree with JF Selby that might be worth asking for a direction from tribunal….
How odd- I wonder if this is going to become one of those stock phrases in DWP subs. I can’t think of any recent caselaw that would have sparked it off though… do keep us posted on developments.
DWP have a right to send a PO to any and every Tribunal. If they do not that is their choice as it is an appellant’s. If a appellant or their representative or PO supplies detailed new grounds or substantive evidence (if accepted) then Tribunals would adjourn on the grounds of natural justice for comments from the respondant. Simlarly if a PO brought arguments on the day to question any existing award Tribunal should and would adjourn for the apellant to consider. So stock phrases in submissions do not mean much. It would depend on the individual circumstances and if a rep attends they can argue against any such adjournment particularly where months have elapsed with no response from the relevant department.
[ Edited: 15 Oct 2015 at 09:45 am by ikbikb ]A tribunal is not obliged, for the sake of fairness or anything else, to postpone or adjourn a hearing in order for the SoS to consider new evidence if that evidence raises no new point previously not considered by him. And tribunals are under no legal duty to provide SOR’s in response to a blanket request ahead of hearings. This is a rather lame attempt to try and assert some form of authority over tribunals and it will be suitably rebuffed.
Just wonder what’s sparked it off. It’ll be interesting to see if it’s a ‘rogue’ DM or if the phrase starts to appear in subs regularly (indicating some sort of dictat from above). Time will tell I suppose
On a positive note, I doubt few tribunal judges will have much truck with this. Can’t remember the last time I came across a panel who were positively inclined towards postponement because a PO wasn’t there. Representations have been made at a very high level for more PO attendance and they were robustly rebuffed. The compromise was slightly longer explanations in ESA cases precisely to avoid SOR requests.
As other posters have said, there’s no right to either an adjournment or an SOR/ROP. Indeed I would think the advance demand for the latter would pretty much guarantee the tribunal goes ahead. I suspect the appeal author has a very robustly worded decision to look forward to.
A couple of things I would add. A tribunal is a complete rehearing. If an appellant raises a completely new point in oral evidence no obligation arises to put that to a DM so even that wouldn’t raise an opportunity to adjourn. If there is additional documentary evidence then of course I’d send it to DWP in advance to give them an opportunity to revise their decision or at least revise their submission. Generally speaking they do neither. On the occasion in recent memory they did the latter the judge laughed as the submission said as near as dammit “the claimant has a financial interest in the outcome of the appeal so the tribunal must bear in mind that they would say that wouldn’t they”!
Someone possibly needs to explain to DWP though that they couldn’t base any future challenge on “cogent oral evidence”. They’re going to need an error or law or some grounds for set aside. Still, bless them for trying :)
[ Edited: 19 Oct 2015 at 09:59 am by Mike Hughes ]
The point on “cogent oral evidence” doesn’t particularly surprise me. My experience - and probably yours as well - is that DWP disregards a great deal of what a claimant says about their affairs, including their health, whereas a tribunal places a great deal of weight on it. DWP seems to usually approach decision seeking to establish the facts beyond reasonable doubt, whereas a tribunal - rightly - establishes them on the balance of probability. I concur that DWP has the right to send a PO if it wishes and if not, HMCTS has no responsibility, moral or legal, to produce a transcript of what was said.
Tribunals usually insist on representatives making representations in person, which is not entirely unreasonable, so making speculative requests in advance through a written submission is cheeky to say the least.
Billy, do report back with the Tribunal’s response to this point, if, indeed, it addresses it at all.
[ Edited: 16 Oct 2015 at 01:57 pm by Edmund Shepherd ]Is this just another example of how DWP decision makers and appeal writers are become further removed from any understanding of the legislation, caselaw and procedures?
The frequency with which this type of ‘comment’, personal opinion mascarading as fact / evidence and pure drivel appears in submissions concerning the range of DWP benefits appears to be increasing (and don’t start me on HMRC).
I assume appeal writers still use some form of submission templates which they adapt for the particular case (or reproduce without inserting any detail relevant to the specific case!). Some years ago I was shown the DLA ‘submission wizard’ from which DLA/AA appeal writers generated subs. although assume the IT has moved on since.
Hmm, I can think of many uses for a “submission wizard”.
And yes, it is indeed another such example. The disconnect between legislation and guidance for ESA and PIP speaks for itself. The latter now seems to be written to achieve political ends rather than in reference to what the law actually says. As is said in the failed PIP consultation appeal, “mind bogglingly opaque”. Ditto DWP press releases and stats. Staggeringly and wholly politicised. Objectivity out of the window.
Of course, they are now so deluded they think http://www.rightsnet.org.uk/forums/viewthread/8742.
Is this just another example of how DWP decision makers and appeal writers are become further removed from any understanding of the legislation, caselaw and procedures?
That was my take on it. A good example of the culture where appeal writers do not go to appeals nor receive any feedback from Tribunals about the (ahem) “documents” they produce.
My understanding was that FT judges do feedback to region and region lobby their president to make representations. Certainly FT judges locally have made it clear to us that it does happen as far as they’re concerned. Unfortunately what we’ve seen in the past few years is that IDS and by extension DWP see the judiciary as part of the problem not the solution and so such criticism is viewed as wrong and somewhat churlish. The attitude seems to be that if you don’t like our documents we are finally doing something right (rather than subjective, illegal nonsense).
Tribunals usually insist on representatives making representations in person, which is not entirely unreasonable, so making speculative requests in advance through a written submission is cheeky to say the least.
It this generally the case? In my (limited) experience, they seem to prefer to have your arguments on a side of A4 beforehand, rather than have you launch into them on the day?
I have a case where the appellant is unlikely to attend the hearing, but I have said I will be willing to attend to answer any questions about my (somewhat convoluted) submisisons, which were sent in long beforehand. The tribunal have written to say I need to indicate in writing 14 days beforehand what I intend to say, and have even threatened to strike out the appeal if we don’t co-operate.
[ Edited: 16 Oct 2015 at 04:56 pm by Jon (CANY) ]My understanding was that FT judges do feedback to region and region lobby their president to make representations. Certainly FT judges locally have made it clear to us that it does happen as far as they’re concerned. Unfortunately what we’ve seen in the past few years is that IDS and by extension DWP see the judiciary as part of the problem not the solution and so such criticism is viewed as wrong and somewhat churlish. The attitude seems to be that if you don’t like our documents we are finally doing something right (rather than subjective, illegal nonsense).
Spot on Mike.
Tribunals usually insist on representatives making representations in person, which is not entirely unreasonable, so making speculative requests in advance through a written submission is cheeky to say the least.
It this generally the case? In my (limited) experience, they seem to prefer to have your arguments on a side of A4 beforehand, rather than have you launch into them on the day?
I have a case where the appellant is unlikely to attend the hearing, but I have said I will be willing to attend to answer any questions about my (somewhat convoluted) submisisons, which were sent in long beforehand. The tribunal have written to say I need to indicate in writing 14 days beforehand what I intend to say, and have even threatened to strike out the appeal if we don’t co-operate.
That really depends on the length and complexity of the submission. I have certainly never had a tribunal threaten to strike out an appeal. I was thinking along the lines of requests for directions, postponements, adjournments and so on. I find that postponements are regularly refused, but an adjournment in person on identical grounds is always granted.
I did attend a hearing where all arguments were provided in in writing beforehand, but once we started, the Judge asked for me to give it orally as well.
As I attend the majority of appeals I’m involved in, it doesn’t actually come up that much.