Ouch Too

Forum => Welfare Rights => Topic started by: Sunny Clouds on 02 Jul 2017 06:47PM

Title: Appeals - fresh evidence
Post by: Sunny Clouds on 02 Jul 2017 06:47PM
It has been my understanding that in relation to appealing the refusal of a benefit, e.g. ESA, PIP, AA etc., it is not necessary to have extra evidence or a change of circumstances either to request a mandatory reconsideration or to formally appeal the decision to the tribunal.  By that, I do not mean that it would not be helpful to have further evidence.

However, someone has just told me tht in relation to their PIP appeal, their solicitor has told them they can only appeal if they have fresh evidence.  I have no interest whatsoever in telling this appellant whether their solicitor may be right or wrong or, for that matter, discussing appeals further with them, but I would find it helpful if anyone could point me in the direction of any official regulations or any guidance from official or reliable sources, as against the eventuality that I may need to appeal.
Title: Re: Appeals - fresh evidence
Post by: Monic1511 on 02 Jul 2017 08:21PM
The solicitor is talking rubbish,
this is the link https://www.gov.uk/social-security-child-support-tribunal/appeal-tribunal
with the statement You must explain why you think the decision is wrong and include any evidence you have to support this.   
It does not say the evidence is required.
The dwp appeal hearing are not adversarial but are meant to be a discuss around a table where the judge, doctor, lay person, appellant, representative and if they wish the DWP representative, all get together and discuss the facts of the case.

If you wants send this person the above link but in my area Solicitors are not allowed to represent at social security tribunal because they cannot claim legal aid for it although that link does mention a lawyer but that could be because the social security appeals also include CSA appeals.

Title: Re: Appeals - fresh evidence
Post by: Sunny Clouds on 02 Jul 2017 08:40PM
It made no sense at all to me from my legal background, but I considered it possible that parliament or the government had found some way using primary or secondary legislation to introduce another unreasonable hurdle.

I don't understand the bit about solicitors not being allowed to represent at social security tribunal because they cannot claim legal aid for it.  Have they decided on a local level not to accept private retainers in cases where they cannot get legal aid on a matter or principle or do privately-paid solicitors have no right of audience before tribunals?

I'm also not clear about the bit about not being adversarial.  Surely if one party is appealing a decision by another party, and goes to court/tribunal over it, that is of its nature adversarial, with each party arguing their case and the tribunal making a legal determination?  The UK legal systems are, as a whole, common law adversarial systems rather than civil law inquisitorial systems, aren't they?
Title: Re: Appeals - fresh evidence
Post by: Monic1511 on 03 Jul 2017 09:19PM
I was told that the tribunal is not adversarial because there is no prosecution defence etc, I work in Scotland so not sure if its a difference in Scots & English law but any time a lawyer prepares a case here it gets passed to the local CAB or welfare rights team because they withdraw.


If you have a legal back ground you are ahead of me regarding the process etc, I have been representing at appeals for the past 4 years and am always out of my depth but that's because I only got some training last week and that was when I was told that the tribunal is not adversarial, it certainly doesn't feel like a "chat round a table" when the judge is being nasty to my client and the doctor is being an obstructive git just because they are a pair of snobs, or the chair/judge who will refuse an award if you mention you drive because that means you can multi task and handle a dangerous machine.  The trainer said you just indicate to the judge that you want to correct a misinterpretation by your client, ha ha, if I try to interrupt some judges I will be pulled up and told to wait till the end and I can ask my NON leading question, been pulled up several times for that.
other judges take the huff if you mention new case law and if you do mention it be very careful because the judge will say well that part of case law is contradicted by this commissioners decision are you aware of it, God help you if you said no.

Have a look at the above but I just googled "are social security appeal adversarial" and see what you think.
I have many cases where the appeal has been accepted because the claimant just said "I don't agree with the decision because the DWP tell lies"  now there are reasons to appeal there but no new evidence and with a bit of digging and a decent rep the claimant could win.  It depends on an awful lot of things.  not just the paperwork but the panel the claimant and the dwp.

anyway I think I have gone way off topic, was at appeals today and slightly frazzled still
Title: Re: Appeals - fresh evidence
Post by: KizzyKazaer on 03 Jul 2017 09:26PM
Your job can't be getting any less stressful of late, Monic - sounds like you need a  >bighugs< and some  >chocolate< (or a very stiff drink...)
Title: Re: Appeals - fresh evidence
Post by: Sunny Clouds on 04 Jul 2017 01:01AM
It occurs to me that we may be talking at cross-purposes, i.e. a technical meaning of 'adversarial' vs 'inquisatorial' systems, as opposed to a general description of what the atmosphere theoretically is (according to the powers that be) in a tribunal hearing.  Adversarial in the technical sense means that there are two parties that each present their case, be that in writing or orally or both, and the judge decides, whereas inquisatorial means that the judge investigates, takes information or evidence from whomsoever he sees fit, and reaches a decision.

Having said that, it's also a very good point that things are different as between Scotland and England, and it may very well be the case that the legal system in Scotland is more different from that in England than I realised.  I had forgotten that you were in Scotland.

Anyway, leaving aside what either of us or anyone else means by 'adversarial' or anything else vaguely legalistic, 'frazzled' does sound like a very clear description and I now stand prepared for appeals!

Title: Re: Appeals - fresh evidence
Post by: Monic1511 on 04 Jul 2017 09:33PM
Hi Sunny

This is the handbook that explains the process but its £15 but it looked a good guide, not sure if you could get it cheaper from Amazon or if the online version is cheaper.

CPAG are the main source of decent training in Scotland and the handbooks are excellent.

If this is classed as advertising please just remove the link, CPAG have free handouts and are always very helpful to advisors

I hope you find decent info to help with your appeal.

Kizzy - thanks for the chocs & hugs, sometimes they are the most essential part of the day.
Title: Re: Appeals - fresh evidence
Post by: Sunny Clouds on 04 Jul 2017 10:34PM
Monic - thanks.  As ever, lots of useful info. 

Title: Re: Appeals - fresh evidence
Post by: ATurtle on 05 Jul 2017 02:20PM
I realise that the tribunal system is supposed to be inquisitorial rather than adversarial, but having a magistrate or Justice of the Peace across the table and a member of the DWP putting their reasons why you should be treated as a lying aerosol and are fit enough to run a triathlon.  All before you get to show your "evidence".

It certainly feels pretty adversarial, the DWP in their immense wisdom, going down this route have only heaped stress upon stress on the claimants.

In my case, after the Tribunal asking for more evidence, from my GP and Consultant, which I had already given permission for, the JP asked me to sign my name on a release, a copy of my letter allowing them to get the aforementioned evidence, I had trouble picking up the pen they passed me.  They immediately stopped me, before I had put pen to paper and said that's enough proof, 9 points added!
Title: Re: Appeals - fresh evidence
Post by: Monic1511 on 05 Jul 2017 07:51PM
Hi Turtle

The DWP are not always present at some appeals, currently they attend most of the PIP appeal - officially because its a new benefit & they want to know why so many decisions are being overturn but it really depends on the Presenting Officer (PO).   Some PO's behave as if its their own money and a colleague came back to tell us that the PO tried to pull the client up for saying they ordered their shopping on line but allegedly had no PC or laptop, they used their smart phone, neither the judge or the PO knew how to operate smart phones so my colleague stepped in to explain.

We don't normally see a PO at ESA, IB, IS, JSA appeals, there was one for a CSA appeal, the council's housing appeals officer always comes which is stressful because we work for the same council and they get a bit bitchy when I stall on giving them my submission, a judge adjourned the first universal credit appeal to demand the DWP come as they hadn't bothered and he wanted their take on my submission but it wasn't a winnable appeal but the claimant is allowed their day in court.

I have to encourage people to go because you have more chance of winning if you turn up but its not an easy experience for the person or the rep.  Some of my colleagues have been doing appeals for 20 years and still get stressed.

Turtle - were your JP's in wigs and gowns? my lot are normally just in business dress and its a bit like a really stressful job interview, mind you I hate it when the chair says "are you aware of commissioners decision ESA/2017/123456 - EH no
if any of you are really bored you can find them here http://administrativeappeals.decisions.tribunals.gov.uk/decisions/decisions.htm
but I'd be wary of quoting law at a qualified lawyer considering I'm a lay person and just stumble along hoping I have the right end of the stick.

Title: Re: Appeals - fresh evidence
Post by: ATurtle on 06 Jul 2017 05:11PM
No, they weren't in wigs, but the three people on one side of the desk and a bloke in an expensive looking suit sat further down "my" side of the table was rather intimidating.  There were plenty of references to "the decision makers decision was..." which I wanted to blurt out, "but in reality, the information provided by the HCP was wrong".   

Basically,  it's intimidating, but, if the decision is wrong, you have to fight it.  Sixty percent of appellants can't be wrong!
Title: Re: Appeals - fresh evidence
Post by: Sunshine Meadows on 07 Jul 2017 06:30AM

Thank you for the CPAG link  >thumbsup<.

No my health has improved a little bit I am hoping to get back to learning more about benefits rights.  >x-fingers< that trying to read is not going to bring too many bouts of TN.

 >chocolate< I am grateful for the fact you still post here when you day job is so challenging  >hugs<
Title: Re: Appeals - fresh evidence
Post by: NeuralgicNeurotic on 07 Jul 2017 08:41AM
 >chocolate< I am grateful for the fact you still post here when you day job is so challenging  >hugs<

Seconded!  >rose< >hugs<
Title: Re: Appeals - fresh evidence
Post by: Sunny Clouds on 09 Jul 2017 09:01PM
I think I'm totally out of date on tribunal stuff.  In my father's judicial days, he used to chair the old Social Security Appeal tribunals (or were they 'panels'?)  Anyway, they were back in the dark ages of the DSS and then DHSS.  I've no idea whether they were supposed to be adversarial, but he certainly described them in a way that indicated that they were, besides which he wasn't into anything inquisitorial, he liked to play judge as between two parties, whether that was sitting on umpteen different sorts of panels, tribunals, courts or whatever, or whether it was in any other activity he engaged in.  For those that are familiar with Berne's "The Games People Play", his favourite game that he devoted his life to was "Let's you and him fight."  Never a happier man than when he had two people or groups standing or sitting in front of him arguing about something and him being able to make the decision.   

So I'm working on the basis of something from childhood.  Not exactly a good basis for understanding anything modern, is it?  After all, if I used that model for everything, I might think the benefits system still had some sort of fairness, mightn't I?   >crying<