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      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Welfare Rights Representative question

Guest CaptJim
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Guest CaptJim

A friend has asked for my help presenting an appeal for ESA Support Group to the Upper Tribunal, after loosing his appeal to the First-Tier Tribunal. His case appears strange because it appears that his representation by a Welfare Rights Officer (a local council employee) crucially damaged his case.


Weeks before the hearing my friend submitted his own 5 page presentation of why he felt that descriptors 4,5,6 and 8 as well as Regulation 35(2) applied and his submission was included in the page numbered bundle sent out to all parties weeks before the hearing. Barely two weeks before the hearing, believing that it would help his case, he found a Welfare Rights Advisor who offered to represent him at the Tribunal. They met once and spoke on the phone a few times.


On the day of the hearing that representative arrived minutes before the hearing began and asked my friend to sign a single page submission for descriptors 8 and 9 and some mention of Regulation 35(2). There was no time to read the submission properly and he was not given a copy. He did not want to argue descriptor 9 as he did not think that it applied to him, but it was too late to debate the matter and he signed the submission.


The decision of the Tribunal and the Statement of Reasons did not say why, but consideration was limited to descriptors 8 and 9 only. The Tribunal said that they placed a strong reliance on the oral evidence, without saying why and they also said they did not believe that oral evidence, without saying why. They only asked about descriptors 8 and 9 and did not discuss Regulation 35(2) at all. They also found that it did not apply. The hearing was recorded and a copy issued with the Statement of Reasons.


My friend applied for permission to appeal to the Upper Tribunal, but it was refused by a judge (a QC) who said that "descriptors 4,5 and 6 were not in issue after advice from an experienced Welfare Rights Representative" and he referenced SS Act 1998 12(8)(a). The implication is that the late submission contained some sort of cancellation of my friend's own earlier detailed submission, but the Tribunal office will not supply a copy of that late submission.


Despite repeated requests the Tribunal office staff have repeatedly stated that they have already sent everything that is in the bundle. Clearly the late submission was not included in the bundle sent out weeks before the hearing, but they refuse to accept that. They have now issued a letter, quoting the Judge again, stating that the submission is the page number in the bundle after the last page itemised in the bundle list, and still refuse to send a copy.


So I have two questions:


1) How can the Tribunal office be persuaded or forced to send a copy of the submission document?


2) Is it normal for a submission by a representative at a Tribunal to totally supersede any earlier submissions by the appellant on their own behalf and would it require specific wording to that effect?


There are 12 days to go before the deadline for the appeal to the UT so my friend has prepared most of his arguments on several points of law, but any further thoughts or experience would be appreciated.

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Firstly, the issue of the rep's submission - you need to get a copy of this from the rep themselves. Is the rep from an insured organisation? If they are then your friend needs to start a complaints process with them. The major fault here appears to be with the rep. Compensation can be sought from the organisation if it can be shown that there has been monetary loss due to poor representation.


The later submission will probably have been assumed by the judge to be your amended case following consulting a professional rep, which is a reasonable assumption.


The difficulty in an UT appeal is that you need to show an error of law in the FT decision. Inadequate representation isn't an error of law and a Tribunal can only be expected to make a decision based on the evidence presented. Your friend needs to show that the Tribunal failed to consider evidence that was in front of it, either in the appeal pack or in the oral evidence. Does your friend have a record of proceedings? This will either be the Judge's notes on the day, or a few centres will record the proceedings digitally and transcribe them. The record of proceedings will show answers given, and the range of material covered. Another thing to consider is whether there is adequate explanation on the SoR as to why oral evidence was disregarded.


Hope that helps - I'm happy to answer further questions, though it's a number of years since I rep'd any UT appeals.

We hang the petty thieves and appoint the great ones to public office ~ Aesop

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Guest CaptJim

Thanks for your comments and thoughts. I have advised my friend that one of his options might include a complaint or claim against the representative, but until a copy of the submission is obtained we cannot be certain of how to proceed as the exact wording it contains may be important as to whether the Judge in the FTT had the right to assume that the late submission replaced earlier submissions. As I mentioned the rep. is so far refusing to answer phone messages to send a copy, although I have now recommended requesting one in writing and sending it recorded, with a hint that a complaint will be made if it isn't received quickly.


In your experience is it standard practice for a Judge of the FTT to 'assume' that a late submission by a representative supersedes earlier evidence?

If so why are appellants never warned about the need to tread carefully? To my mind that seems like a dangerous thing to be automatically assumed, without explicit agreement of the appellant.


In the meantime I have recommended an appeal to the UT on the basis that no reason was given in the SoR for prefering the oral evidence and also no reason was given for only considering the descriptors 8 and 9. The comment pointing to the representative's submission came from the Judge refusing permission to appeal and was not in the Decision Notice or the SoR. I have also recommended my friend appeal regarding the handling of Regulation 35(2) as the DWP offered no evidence at all and the SoR highlights that, but then goes on to make an "assumption" to make up for the lack of evidence from the SoS. That assumption was that WRA would be limited to only Work Focused Interviews, a very limited activity, for which there was no basis at all in the evidence. The SoR gave no reason for not considering the evidence from my friend's submission for regulation 35(2) applying or for why they disregarded the medical evidence from a consultant and GP which was broadly supportive of his evidence.


I am not very experienced at Tribunals, but I have taken an interest for several years and read a fair number of UT judgements that are relevant, so I am hopeful of my friend's chances. I was particularly interested in trying to establish how common it was for a representatives to supersede previous evidence with their submissions, as it is not something that I have every read or heard of happening before. I can understand that there might be particular legal reasons and argument for needing to do that in some cases, but had assumed that a statement signed by the appellant to that effect would be necessary to give up their right to have earlier evidence considered, but on that point my experience is very limited.

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To be honest, as a rep I've rarely had a situation where the client has already sent a submission - assistance was usually sought of our organisation because the client was unable to present their own case.


The few times that a submission had been written, all bar a couple had not been sent, so there was no conflict. The couple of times it had been sent, I would have gone over the client's submission carefully, discussing the descriptors the client felt they wanted to put forward and coming to an agreement on how to proceed. If any descriptors were discarded which had been argued in a prior submission, I would have put in a short note explaining that in consultation with the client these had been considered not applicable, and no longer request they are considered by the Tribunal. This would be a professional way to handle the situation, and I can only assume that most professional reps would proceed in this manner.


Yes, I would think that it would be natural to assume that the later submission provided by a professional would be agreed by the client as the one to go forward with. Judges may query the point if there are two submissions that differ, but time constraints and volume of appeals mean that if a submission is provided, especially by a rep, then the judge will use this as a guide on what descriptors are being appealed - I say as a guide, because in the course of oral evidence it may become obvious that another descriptor(s) would apply, in which case the Tribunal will also consider these. I did attend a training course once where there was a discussion about whether providing a submission limits the focus of the panel, with some reps preferring not to use them for this reason - I always used them, but then I always prepared thoroughly with several client meetings including a meeting to go over the final submission with the client before it was sent to the the Tribunal Service.


You can argue that the Judge should have at least queried the other submission, but my thought would be that it would be considered acceptable for the judge to believe the final submission was agreed upon - as prior to representation, even without a submission, it is very common for appellants to claim applicable descriptors in the ESA50 or appeal letter (and nowadays the mandatory reconsideration) that get dropped for consideration under the advice of a rep. However there is no harm in arguing it.


Regarding the rep, don't write to them direct, write to the manager of service or the rep's supervisor (or both). Phone the service and make sure the person you're contacting is not on leave in the next few weeks, so your letter doesn't sit unanswered waiting for someone's return. Mark the letter urgent and give timescales for a response and explain what your next step will be if you don't get a response. Even better request an urgent meeting with a senior/manager to discuss the issue prior to an UT appeal. Explain that if the UT appeal is unsuccessful you may have no choice but to pursue a claim against the service for misrepresentation. A reputable service should respond promptly, and dependant on experience of staff may even offer assistance with the UT.


And for the record, not giving the client a copy of the submission by the day of the hearing is unacceptable.

We hang the petty thieves and appoint the great ones to public office ~ Aesop

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Guest CaptJim

Thank you for your very detailed and helpful further thoughts and experience based insights. It is very encouraging that my understanding of the right and proper way for an appellant to be represented is very close to your description of how you would handle a case.


I omitted to mention that part my friend's appeal to the UT will be based on the fact that at the beginning of the hearing the FTT judge clearly reassured the him that although the hearing would be limited to certain questions that they would like answered the Tribunal members had both read and would consider all the evidence that was in the bundle that had been sent out, which includes the 5 pages my friend submitted, as well as the two medical support letters, all of which the SoR indicates were completely ignored. As you say it is worth asking the UT to look at that, regardless of the other Judge refusing permission to appeal because of his opinion of the evidence and the implications he reads into it.


Your points about how to take the matter forward with the rep., or rather their manager, is a very good one. I will pass that on to my friend, who I believe would prefer that approach, as three phone messages ignored is not encouraging that they are going to take the matter seriously even if sent a letter. The rep. is employed by a organisation that may actually be part of a local council, if not in very close co-operation and partly funded by a local council and so I would expect that they would be insured and probably have a clear complaints process too.


Once again thank you for taking the time and trouble to help, experience is invaluable in many things!

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Guest CaptJim

@estellyn - thanks again for your advice yesterday as it has already been very helpful.


My friend had no information on complaint process for Welfare Rights team, not even certain who employed them, just two phone numbers that went to answerphone. However, a quick internet search and two phone calls and I was actually speaking to the manager of the rep. They agreed to make sure a copy of the submission was sent to my friend today and apologised for not doing so before! They also assured me that their submission is always additional to anything the client has already done, except in exceptional circumstances. It therefore appears that the FTT had no legal basis for treating the late submission as the only submission to be considered and there was no basis for the refusal of permission to appeal on that issue.


A few pieces of better information make a big difference and your comments yesterday pointed me in the right direction, to the manager of the rep. Many thanks!

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