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Representation and tribunal hearings.

mikehughescqmikehughescq Member Posts: 6,247 Disability Gamechanger
edited February 2019 in PIP, DLA and AA

I said that when I stepped back from this forum I would find a way of posting some tips which the more knowledgeable posters on here such as @CockneyRebel bd @poppy123456 could refer people to. On reflection there seemed little point in the absence of a search function. Now that functionality has been added there is clearly a point so here goes. Some of you will recognise these from previously although I have updated them slightly. Hopefully admins will now be more vigilant and refer people to the search function and close/delete those threads which ask the same questions without first using the search functionality.

REPRESENTATION AND ROLES

You can be 

- a representative - you don’t talk for the appellant because they’re there but you do get to outline what award you’re looking for and what the legal case is as well as pick up on any issues the tribunal or appellant miss or misinterpret.

- observer - sits away from the tribunal but you are watching only. You do not and cannot take part.

- witness - you give your own evidence to support the appellants own case. You don’t get to comment on anything else. You watch silently, do your bit and you’re done.

- appellant - the person making the claim being appealed. The only person allowed to present their evidence and answer questions on it unless they have an appointee. 

Most family members struggle to be observers as it’s hard to be silent. They struggle to represent as they don’t know enough of the law, case law or guidance and confuse the role with speaking for the appellant and get shot down in flames to the detriment of the case. They often make poor witnesses as they haven’t been prepared by a rep and want to rehear the whole case instead of focusing on what they know. 

The temptation to talk for any appellant needs to be resisted. You’ll always get people saying “but...

- they’re not articulate.

- they’re nervous.

and many other arguments. Bottom line - nothing makes the case for the consequences of someone’s ill health better than a poorly appellant. 

The other side of having representative is that, as you’ll read on here, people get incredibly stressed with the process; what comes when; what letters mean; what is good evidence; what will happen on the day. A good rep explains all and covers all the bases. It’s typical that people think representation is just about what happens on the day and the outcome. That’s about 10% of what gets done. A good rep should also keep you off web forums (seriously). All your questions should be answered by them. If people come on here because they need answers and they have a rep. that is concerning. 

Now, having said that, tribunals are inquisitorial so it’s perfectly possible to win a case without a rep just as it’s equally possible to lose a case with a rep. However, a badly presented case can win with a decent tribunal but won’t with a poor one People who have won without representation tend to almost always ascribe this to something they did rather than the skill of the tribunal pulling out what was relevant. Having seen tribunals over three decades, including many times as an observer, it’s almost never the case. I’ve never yet heard of anyone unrepresented winning two tribunals for themselves. 

Finally, don’t confuse an organisation with a good reputation as meaning all their reps will be good. Good organisations have bad reps. Reputationally poor organisation have good reps. How can you tell? Walk away from anyone who wants to tell you their success rate? It’s a fave tactic of organisations that charge but also of inexperienced or renegade/boastful reps. That tells you that they’re either lying or cherry picking only cases which are clear cut winners and probably would be anyway with a decent tribunal and without them. Good reps do not guarantee a win but they will take in winnable cases rather than likely winners and they’re the more likely to turn a marginal case into a winner. They’ll also know their law, case law and guidance and be able to cite it but in plain English. 

TRIBUNAL

1 - Concentrate wholly on what you were like on the date of claim.

2 - There are no “trick” questions. Tribunals are usually listed 20 to 40 minutes apart so, apart from the appeal papers, they need questions which cut across lots of functions. So the car question is brilliant because it indicates grip; mobility; dexterity; the ability to do something repeatedly; concentration and stamina. Instead of thinking negatively about such stuff think about what they’re getting at and your answers will be much better and more detailed. Similar questions include whether you’ve been on holiday recently. It feeds into mobility (getting across an airport); stamina; the ability to cope alone; the need for aids and appliances.

3 - There are no set rules or order for a hearing beyind the requirement that it must be seen to be fair. 

4 - Watch the judge’s pen. All 3 members may take notes but only the judge writes a record of proceedings. If you don’t want them to miss anything then remember that they can’t write as fast as you can speak, so watch their pen and slow down. Don’t worry about going too slow. They will tell you if you do.

5 - Never interrupt any tribunal member. It is perfectly okay to challenge them provided it’s not rude or aggressive. However, think about whether what you’re challenging them on is directly related to points. If it’s not then better to focus on points. This is especially important because loads of people second guess the demeanour of tribunal members as determining whether they are pro or against and it’s largely nonsense. An aggressive, challenging member may well just be a poor communicator and wholly on your side right up to the point you challenge them etc.

6 - Get yourself a representative and travel to the venue by whatever means makes you feel comfortable. It’s only ever an issue if you don’t explain what you did in full and if doing so contradicts your other evidence in some way for daily living and /or mobility.

7 - Same goes for clothes. You need to wear whatever makes you feel comfortable and relaxed. If you’re not relaxed then the likelihood of you presenting well are much reduced. Dressing down is not a good idea unless that all you can afford. A person who feels naked without make-up or a suit and tie will similarly be over stressed if they try to pretend they’re in their comfort zone dressing down. 

8 - Other people’s tribunal experience can be valuable but it’s just that. Their experience. If they lost then it’s the tribunal to blame. If they win they everything they did is why they won and what you must do. The truth is usually very much in between.

9 - Know your case. What points are you going for and why. What’s your evidence? “The HCP was a liar” is neither evidence nor a winning strategy. Also, know the appeal papers. What’s where. 

10 - Do not be tempted to claim you’ve worsened since the date of claim. That’s a recipe for a failed appeal and an invitation to make another claim. Even if you have got worse always concentrate on your date of claim and what you were like then.


Replies

  • sheZZasheZZa Member Posts: 236 Pioneering
    Good information thanks but where would you get a representative from? 
  • mikehughescqmikehughescq Member Posts: 6,247 Disability Gamechanger
    There will be a naysayer along in a moment to tell you how bad the situation is in there area etc. but essentially you will almost always have multiple options. 

    Start with https://advicelocal.uk/ and focus on local authority welfare rights, law centres, independent advice centres etc. All should be free. There are very few circumstances in which you should need to pay for representation.
  • sheZZasheZZa Member Posts: 236 Pioneering
    Thank you. It’s nice to be aware in the event I may need representation in the future.
  • melissahicking2019melissahicking2019 Member Posts: 125 Courageous
    i wish i had of read this before the tribunal , as myself and my  friends brother attended and his brother had the case in his pocket, But when we got to the tribunal we were asked if anybody is representing for the claimant. We said no as we expected that a representative would have to do all the talking, But we were very wrong, 

    My friend (the claimant) had to do the talking, and he didnt fight his case at all, he simply answered their questions truthfully and found it difficult to explain his mental health accurately, but thatch expected of a mentally ill person and was understood by the panel.

    However had we of known that the representative can have a speech to begin with we could of offered a more insightful challenge.

    As it stands we challenged the appeal in the paperwork we provided and the panel made it clear at the end that they have to now go through that paperwork before making a decision as there was 356 pages of evidence and statements ect.

    Obviously the panel would of focused more on the evidence which was about half of the pack of papers around 150 pages, So the other half including statements and challenge against DWP and CAPITA would of been less interesting to the panel

    So had his brother of done his speaking to begin with as a representative we could of lessened the paperwork and offered a challenge to begin with without hoping the judges read through the paperwork.

    so thank you for the info.

    We will bear this in mind if we ever appeal again.

    And knowing the system at present, Even if my friend is awarded his PIP back its likely that the next assessment by capita will send us back to appeal again anyway.

    Mel.
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