Fully enabled

The creation of the Tribunals Service, the adoption of the Tribunals, Courts and Enforcement Act 2007, and the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 have established, a new era for tribunals and impact on the advocacy process.

Of course, appellants should be able to present their own case effectively to a tribunal that has special expertise but there is a tension between the greater formality brought about by the changes and being 'user friendly.' The increased formality seems a little at odds with the view in the Leggatt Report that the process was enabling not inquisitorial.

This article is centred on advocacy before tribunals in the Social Entitlement Chamber '“ social security, housing benefit, disability and child support appeals '“ but common features apply to a range of tribunals with an enabling function.

Understanding the basics

• The appeal has to be properly made and in time. The relevant agency submits defective appeals to the tribunal for interlocutory consideration '“ when asked for a response to such a submission, be prompt and to the point.
• Depending on the subject matter, the tribunal may consist of tribunal judge sitting alone or with a medical member, or with a medical member and disability member (and occasionally a financial member). Unanimity is preferred but majority decisions are possible.
• The tribunal is not there to advise either party on their case or on their medical treatment.
• All decisions are made on the evidence. You must put the evidence on which you rely before the tribunal; do not assume that the tribunal will 'already have it' '“ the tribunal has the bundle of papers sent to the appellant and no more.
• There are (at least) two parties and the decision-making agency may send a Presenting Officer, though this is a less than frequent occurrence. The appeal is made by the appellant and the agency is the respondent.
• If you are not going to attend a tribunal then tell the appellant and the tribunal, and if attending be punctual.

Preliminary considerations

The appeal is made to the decision-making agency which will reconsider in the light of any new information. The refusal of advocates to pass on any new information to the agency is counterproductive since it deprives an appellant of an avenue of redress and the information will need be disclosed in any event; any material produced to the Tribunal Service will be sent to the respondent.

In Kerr v Department of Social Development [2004] UKHL 23 the House of Lords considered the process of decision-making and concluded that there was now 'a cooperative process of investigation in which both claimant and the department play their part.' The relevant department must ask the correct questions and claimants must provide answers within their knowledge. If the information is within the department's knowledge then it should supply it. 'If that sensible approach is taken it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden as proof.'

Adverse inferences may be drawn where a party has not cooperated. Thus, it is important to begin by asking whether the party you represent has done all that it could to obtain and provide the relevant information and to explain any omission. Cooperation may be a difficult idea for advocates who are by nature 'adversarial' but it needs to be borne in mind that cooperation is a specific requirement of the new rules.

Choice of hearing

In this jurisdiction a hearing may be in person before a tribunal ('an oral hearing') or a determination on the papers alone ('previously a paper hearing'). If one of the parties chooses an oral hearing then there will be one. Paper determinations present a particular challenge to representatives since the arguments need to be cogent and fully addressed with no chance to fill in any gaps. Unsurprisingly, statistics show that appellants at such hearings are far less likely to be successful than those at oral hearings.

The interlocutory procedures

Formalised system. The procedural rules provide for the first time a formalised system to deal with procedural issues before the case comes to tribunal. An advocate must know these rules in order properly to represent a client since they present opportunities for clarifying or resolving issues, obtaining information or advocating a particular course of action before final hearing.

Strike Out. Attention to the timescale in directions is critical, even if it means asking for more time. An appeal may be struck out automatically or upon consideration by a judge where there has been a suitable warning; reinstatement is not a certainty. Striking out is permitted for failure to comply with a direction e.g. to produce a document. Again, a suitable warning is required.

No reasonable prospect of success. An appeal may be disposed of at the interlocutory stage where there is no reasonable prospect of success, e.g. where a statutory time limit has been applied to the fullest permissible extent. The strike out procedure does require an opportunity for the appellant to respond.

Designated action. For the first time a respondent may be compelled to take designated action, such as producing further documents or explanations. In the event of a failure to comply a respondent may be barred from taking further part in the appeal.

Directions. The interlocutory procedures are useful for seeking directions on how a complex case is to proceed. Directions may given at a case management hearing and it is possible to direct that preliminary points be decided e.g. where a party wishes to make submissions on whether the civil or criminal issue is heard first (common in overpayment cases where there is a concurrent criminal prosecution '“ see Mote v Secretary of State for Work and Pensions [2007] EWCA Civ 1324).

Postponements and adjournments

A postponement is granted in advance of the hearing, an adjournment occurs on the day of the hearing. Directions may be given on each occasion. Other parties may be affected by a postponement or adjournment and you will be expected to produce evidence of the need for it, not least because they are expensive and wasteful of a time slot. Consider the possibility that the hearing could be effective e.g. in a disability case there will be a doctor on the panel and the need for medical evidence could be considered. Because an interlocutory judge may not have the file before them, a late postponement request may be remitted for a decision to the tribunal itself. The unavailability of a representative is not necessarily a ground for a postponement: an organisation may be expected to provide an alternative representative. Withdrawal An appeal may be withdrawn in writing at any time before a hearing and it is possible to withdraw orally at the hearing with the permission of the tribunal. Such permission is not automatic and may be refused if, for example, the tribunal considers the withdrawal to be tactical or that it would leave the appellant with an unmerited award. An appellant who has withdrawn may seek reinstatement within one month of withdrawal.

The oral hearing

• Oral hearings are the end point of a lengthy administrative process and hearings cannot rapidly be rescheduled. Tribunals may take the view that a judicial hearing ought to be given a high measure of priority. The failure of a party to attend a hearing will usually result in the hearing going ahead in the party's absence. The message is clear '“ attend or you are putting the success of your case at risk.
• n oral hearing has two aspects which need considering: the procedural and the substantive. Over-emphasis on the substantive issues may be to the detriment of key procedural matters. For example, it may be crucial in a benefit overpayment case to ask whether or not the procedural step of superseding the entitlement decision has been missed by the relevant agency.
• In respect of the substantive case decide beforehand the outcome sought: the appellant's representative may have a range of options and there should be a realistic assessment as to the outcome sustainable on the evidence. Marshal the evidence: consider what is already in the papers and whatever additional evidence is necessary. This will depend on the nature of the appeal. The enabling function of the tribunal does not extend to making your case for you. Deal effectively with the evidence that is against your case. Do not simply reiterate the case as contained in the papers: the tribunal already knows what is in the papers - what it requires is an argument about why one approach should be preferred to the other and why a particular piece of evidence should be given more or less weight. Explain any gaps and identify strengths.
• The tribunal is not governed by strict rules of evidence and procedure is largely in the hands of the judge. In particular, when an advocate gets to put forward their case is a matter for the judge. This does not affect what an advocate wants to say. Much of the case may have emerged in the questions from the tribunal but the advocate must deal with matters that have not been covered and put forward an argument on why their case is to be preferred.
• If you need to ask questions of your client then avoid leading questions - the weight that can be given to the answer is considerably devalued. It usually helps to know what evidence your client is likely to give so it helps if you have spoken with them beforehand!
• You will ordinarily be given the decision on the day and if unsuccessful consider whether or not to appeal. This is not the place to deal with appeals to the Upper Tribunal or the set aside of tribunal decisions but remember that it is first necessary to obtain a Statement of Reasons for the tribunal's decision and that the tribunal needs to have erred in law before the matter can be taken further.

Conclusions

The changes in the legal and procedural framework present opportunities to the advocate. There has been increased formality but with it there is the potential to resolve cases more expeditiously. The changes have not altered the 'enabling' nature of tribunals or the potential pitfalls for the advocate. The key to good representation is contained in the overriding objective expressed in r.2 of the procedure rules: the duty of the tribunal (and the parties) is to deal with a case fairly and justly and this means taking into consideration proportionality, the requirement to enable the participation of all parties, avoiding unnecessary formality and delay. This duty will focus the mind on all the issues raised above whether before or during a hearing.