The Tribunals Service has issued a guide for representatives at social security appeal tribunals - Good practice guidance for those who appear before appeal tribunals. It was issued on 3rd August 2007, just over 12 months since the first draft of the guide was issued, and has undergone a substantial re-write following the consultation with representatives from the National Customer Representative Liaison Forum. The published version is a significant improvement on earlier drafts. Edward Graham outlines the main points.
The guidance is exactly that, guidance. It has no legal authority and the Tribunals Service has confirmed that it is not attempting to impose a rigid way of working on representatives. The stated intention of the guidance is to 'spread good practice as demonstrated by good representatives'. It covers five areas: evidence, postponements; adjournments; submissions and advice to clients.
The guidance stresses the importance of forwarding any additional evidence to the appeal service and to the respondent as soon as possible, pointing out that tribunals can adjourn if they feel they need more time to consider evidence that is only provided on the day. It also states that where evidence consists of a written report in reply to a representative's letter, it is good practice for the letter to be included as 'this will assist the tribunal in gauging whether the content of the report reflects the independent judgement of its author or simply relays information or opinion of others'.
This point is clearly aimed at the vexed question of medical evidence. Representatives remain under no legal obligation to forward instructing letters to doctors along with the reply. Indeed there are many instances when it will not be possible, for example where the client obtained the letter themselves, or the evidence has been obtained by another person for a different purpose - such as a personal injury medical report or community care assessment. Tribunals are under a duty to weigh all the evidence presented and have to give reasons for the weight they attach to such evidence.
The guidance notes that applications for postponement have to be in writing, and lists illness, unavailability of evidence 'or other good cause' as reasons for applications being made. It asks that where illness is the reason, that sufficient information is provided to consider any necessary alternative arrangements which may need to be made. It notes that applications can be refused and so representatives shouldn't advise a client not to attend until any postponement has been confirmed.
The guidance deals with adjournment separately to postponement, drawing a distinction between the two on the basis that adjournments are those applications made on the day of the hearing. It takes a much tougher line, stating that 'representatives should only request adjournments in exceptional circumstances. Tribunals will only grant an adjournment, or adjourn of their own motion, where they are satisfied that the interests of justice so demand'.
The law draws a clear distinction between an adjournment and a postponement, under Regulation 51 (3) and (4) Social Security (Decisions & Appeals) Regulations 1999. A postponement is clearly made prior to the beginning of a hearing, whilst an adjournment takes place once a hearing has started (and this could happen right at the start of the hearing). The guidance therefore is wrong to state that a postponement is made before the day scheduled for the hearing and an adjournment is made on the day of the hearing. This will obviously be of importance to any representatives making a request for a postponement on the day of, but prior to, the hearing.
The guidance notes that in most cases a written submission will assist the tribunal as it can identify the issues in dispute, and where practicable it should be sent to the Tribunals Service in advance. Where this is not possible it can be handed in on arrival at the hearing centre. It reiterates the established practice that copies of any unreported decision relied upon should be attached to the submission.
Advice to clients
The guidance asks representatives to ensure that their clients 'have a fair understanding of what appearing before a tribunal entails' as it notes that whilst the chair will normally explain the procedures of the tribunal, it might be difficult for the client to absorb its significance at this late stage. The guidance does acknowledge that the procedure in individual tribunals can vary greatly and that this will limit the level of detail that representatives can go into. However, it suggests that representatives make the client aware of the power of the tribunal (for example to reduce an existing award), that the inquisitorial nature of the tribunal means probing and potentially personal questions will need to be asked, and finally that the Tribunal will normally want to hear the client's evidence from them directly.
As stated earlier, the final version of the guidance is a considerable improvement on earlier drafts and much of the document is common sense. One problem is that there is clearly no unanimity amongst tribunal chairs on how hearings should be conducted. There will be some chairs who dislike written submissions, especially ones handed in on the day of the hearing. Similarly, some chairs have no problems at all with medical evidence that is not accompanied by the letter of instruction, whilst others may view such a letter of instruction as leading. A code of practice for representatives will always be, to some extent, problematic within what is intended to be an informal and inquisitorial system of adjudication without rules of evidence or procedure.
We understand that the guidance will be available on the Tribunals Service website.
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