to provide general information and training and discussion about tribunal processes and related issues. So the speakers and chair will not be able to provide any legal advice or comment on individual cases or personal circumstances during the session. So.
We kindly ask you to be supportive and respectful
Avoid sharing your personal details regarding any cases or tribunal matters. I will also drop a link in the chat. It is
Let me just
set to everyone. I'll do that in a bit actually, just so that I don't take up time. But I will drop a little link to PLP's website where you can reach out in case you have any other inquiries.
And yeah, I know we started a little bit late. So without further ado, I'm going to hand the mic to Vic, who will do the introduction. Thank you, Vic.
Afternoon, everyone. Welcome to this first webinar in our advocacy and public law in the Tribunal series. I'm Vik Pogavon Stramman, and I'm the legal director at Public Law Project, and I'm your chair for the first half of this afternoon's session
Before I move on to introduce our incredibly experienced panel of speakers, I've been asked to introduce these sessions by talking briefly about where tribunals fit
Within the public law system of remedies and why this is important
So briefly, what do we mean when we talk about public law remedies? Well, when we're talking about public law, we're talking about a set of rules which govern the relationship between individuals or private organizations, such as businesses or charities
with public bodies, so government departments, local authorities, regulators, etc.
And when we talk about public law remedies, we're talking about the method by which an individual or private organisation can influence change or challenge a particular decision
policy or a mission by a public body.
We would include within that asking the body to review its decision, complaint schemes operated by public bodies themselves, ombudsman schemes, statutory appeals and tribunals, and also judicial review.
The focus of this block of training is on statutory appeals and our tribunal system
But specifically on that part of the tribunal system, which deals with decisions made by public bodies, including by local authorities in respect of their obligations to children and young people in respect of their special educational needs, by the DWP in respect of welfare benefits decisions
by the Home Office in respective decisions in relation to asylum and immigration. And more generally in relation to the way in which public bodies handle freedom of information and the role of the information tribunals
We're not focusing, for example, on the employment tribunal, which deals with the private law relationship of an employer and an employee or any other tribunals that deal with those private relationships.
Just to put this in a bit of wider context, it's worth understanding that without these specialist tribunals and statutory rights of appeal against certain decisions made by public bodies
Individuals would have to bring claims for judicial review in the High Court
In judicial review, generally speaking, the court is looking at the process by which the public body arrived at the decision. So, for example, did it have legal power to make that decision? Did it take account of all of the information it had before it
And didn't take account of anything irrelevant. Did it follow a fair process? Did the particular policy that it was applying or using meet the general requirements in relation to the law in that area? And was the decision or the policy
compatible with human rights and equalities law.
The court in that context won't conduct a full merits review, so it doesn't re-decide the issue based on the evidence.
That's as a result of the concept of the separation of powers and the court's deference to the executive.
What would typically happen is that if the claim is successful, the court may quash the decision the public body has taken or declare the policy unlawful and order the decision to be retaken or the policy to be remade following the correct procedure and process
So the court is deferring to the public body then to go away and do whatever it needs to do properly.
That's important to understand as background because statutory appeals operate differently. For example, in an asylum appeal, the first tier tribunal will conduct a full merits review of whether or not someone is entitled to refugee status
In an appeal about a child's education, health and care plan, the tribunal will determine what educational provision is needed to meet that child's needs.
That's a significant advantage for those areas where a statutory appeal is available. You're not just arguing about whether the decision-making process was fair, rational, and lawful, but also whether it was right or wrong based on the evidence
And you're also arguing it before a tribunal with specialist knowledge of the subject matter.
And at the end, you end up with a binding decision which must be implemented, subject to any onwards appeal, not just an order for the public body to go away and retake the decision following the correct procedure.
To give you an example of the difference, if you look at the special educational needs tribunal or the context there of where a local authority is drawn up an education, health and care plan and the parent doesn't believe that that plan is satisfactory to meet their child's needs
They have a right of appeal, and the tribunal will hear the evidence, including expert evidence, and make decisions about what plan is actually needed to make that child's needs and whether it needs to be amended or not. If you look at the adult social care
context, by contrast
It's different. You don't have a specialist tribunal dealing with adult social care. So as an adult, if you've had an adult social care assessment and a care plan drawn up and you believe that the care plan doesn't meet your needs, then your remedy is either a complain
process, which ultimately is non-binding, or to go by way of judicial review to challenge the process by which the plan was drawn up. But it's very difficult to challenge the substance of that plan.
So it's this more detailed merits review of the decisions of public bodies that we're going to be focusing on in these sessions. There is a lot more that could be said about the differences between statutory appeals and tribunals and judicial review in the High Court, but it's time to hand over to our first speakers for this introduction
to tribunal representation
So our first speakers are Emma Baldwin and Brandi Amis Towler from the Free Representation Unit. Emma Baldwin is Principal Legal Officer for the Free Representation Unit, where she heads the Social Security Casework team.
Through as a charity providing legal advice, case preparation and advocacy in employment and social security hearings. Over the years, Emma has trained and supervised thousands of law students and junior lawyers, often conducting their first cases.
With the help of experienced counsel, Faru has also appeared in leading cases before the Upper Tribunal, as well as the higher and European courts
Since 2013, Emma has also served as a part-time judge at the Social Entitlement Chamber of the First Tier Tribunal.
Brandy is an assistant legal officer at the Free Representation Unit where she represents claimants in the first tier and upper tribunal in Social Security appeals.
Prior to embarking on a legal career, she spent 12 years as a behavior therapist advocating for and supporting children with special educational needs and their families. Driven by her experience securing support for her child with complex needs and a growing interest in finding workable solutions for clients
She changed career in 2020. Called to the bar in 2024, she has developed substantial advocacy experience in welfare benefits appeals. For the past 18 months, she has drawn on her legal and send experience to provide training and supervision to aspiring barristers taking on their first cases
have fruit
So over to you, Emma and Brandi.
Thank you.
So Emma and I are going to talk to you about tribunal representation and
what representation looks like in the tribunal
Today's session is just intended to be a brief introduction to representation in the Social Security Tribunal
Our aim is to provide an overview of how disputes arise and the practical role of a representative.
The tribunal is trying to reach the correct decision according to the law and the evidence and a representative's role is to assist in that process.
Next
We're going to cover five broad areas. Firstly, how benefit disputes arise and how cases reach the tribunal. Secondly, case management and preparation
Thirdly, navigating tribunal bundles and identifying relevant evidence. Fourthly, procedure and advocacy in the tribunal itself
And finally, a brief discussion about artificial intelligence and some of the ethical issues that arise from its use.
Next
Social Security law has five distinct features
And it's a good starting point for understanding the claims that the tribunals are reviewing.
Social Security law
Firstly aims to provide a basic standard of living and support for people during periods when they cannot adequately support themselves
The aim is for it to be protective
Secondly
Elizabeth Acclaim and rule-based system, a person must make a claim and entitlement depends entirely on whether they satisfy the statutory criteria.
Thirdly, Social Security law involves
A complex legal statutory
And legal and statutory framework. It's governed by legislation that is underpinned by regulations
and a substantial body of case law. Appeals may arise because the legal test has not been correctly applied to the client's claim by the decision maker.
Fourthly, it's a decision-based system. Cases come before the tribunal to be reviewed after a specific decision has been made by the DWP, HMRC, or a local authority.
tribunals are limited to considering only that decision. It cannot consider any other issues that arise with a benefit
or issues that have risen outside of the date of decision. And finally, Social Security hearings are intended to be inquisitorial and enabling rather than adversarial
In practical terms, that means that as a representative, you won't be speaking entirely on behalf of your client while they take a passive role
The client will be actively engaged in the hearing with the tribunal taking the lead on asking the questions. And what the tribunal is interested in doing is ascertaining what the correct decision should be
The tribunal understands the law, the client understands their personal conditions and the tribunal aims to elicit facts through their questioning.
Next
The tribunal sees the final stage of a process that may have started 18 months to two years prior. And by the time an appeal reaches a hearing, there may be a substantial history of applications, medical assessments, correspondence, and decision making.
Understanding the background of the claim and the supporting evidence is crucial to a representative's role in assisting the tribunal in making a decision.
It is reviewing the particular decision that arose from a particular set of fact on a specific date. Next
So these are the
This is the process by which a claim gets to the tribunal. So a client may start by making a claim, collecting medical evidence and engaging with a work capability assessment
The decision maker, so for example the DWP may make a decision on a claim
where a client disagrees with that decision, they will ask for a mandatory reconsideration. That's where the DWP or the deciding body will have another look at the claim and the evidence
And then if the client still disagrees with that decision, they can appeal to the first tier tribunal
And the final step is a hearing before the Versaire Tribunal. And it can be a long wait. There's usually about an 18 month to two year wait at the moment between making an appeal and your claim being heard by the tribunal
Next slide
So there are six core principles with respect to decision making on a claim
And as I previously mentioned, the decision makers are usually
The DWP, HMRC, or a local authority
And the decisions are made on behalf of the Secretary of State
The way that decisions are made is based on entitlement and that requires the decision maker to apply the correct legal test to the facts
Citizens have to be formal decisions, so they will be communicated in writing to the client. Most decisions are appealable
When people appeal, it's usually because there's a dispute around the facts.
Sometimes there can be issues and discussions about the law. If your case involves a legal challenge, that will have to be reflected in your submissions to the tribunal
With respect to the date, the tribunal's jurisdiction, as well as being limited in subject matter
is limited in time, so the question the tribunal has to ask is, was this decision correct at the time, bearing in mind the date of the decision
The date the decision will be effective from
That might be the date of claim, which could be weeks or months earlier, or it might be the effective date of any revision or supercession, which will depend on the nature of the revision or supersession
Next slide.
And just to say a bit more about the relevant date
This is one of the most important factors in a benefit appeal
And one that can cause some issues. The tribunal is normally concerned with the claimant's circumstances at the relevant date
That's because the tribunal's role is to stand in the shoes of the DWP or any other decision maker and look at the facts and evidence that would have been available to the decision maker at the date of decision
What that means is that if your relevant date is the 1st of January 2025, the tribunal is limited to looking at the facts and the circumstances and the evidence that was available on the 1st of January 2025.
It cannot consider anything that happened beyond that date.
By the time a client has got to a hearing, as I mentioned, it can take a couple of years. So sometimes they might have experienced a deterioration in their condition. However, the tribunal can't consider that deterioration as part of the appeal, only what their condition was at the date of decision. So
You will probably spend a lot of time asking your client what was happening around the date of the decision rather than what their condition is now.
If you're a client has new evidence to file, it can be highly persuasive, but only if the tribunal
If it helps the tribunal to understand the claimant's circumstances at that earlier time. So, for example, if a claimant has symptoms of dementia around the relevant date
And then a diagnosis for dementia
Comes after the relevant date, that diagnosis is evidence that sheds light on the claimant's conditions at the time of the decision.
As a representative, you will ask yourself what decisions being challenged? What is the relevant period, and what does this evidence do to assist the tribunal
And then this is about the role of the tribunal, an important role for the
before the hearing is to spot the issues in the case
discuss with the client and give evidence or give advice on how best to proceed.
And take instructions from the client on that advice, because you can only act on instructions
And if that's gone well, ideally, you will have narrowed the issues, so you will have focused your client's case, and the tribunal's time into considering those bits of evidence that will make a difference to the outcome.
What the tribunal will be doing is having a full rehearing of the facts and the law
The tribunal aims to identify the issues, assess the evidence, and make findings of fact around the client's conditions. They then apply those facts to the statutory criteria to determine whether the client meets the conditions for an award of benefit.
As I previously mentioned, the tribunal leads
The questioning by taking evidence from the client and testing the evidence
As a representative during a hearing, your focus is on assisting the tribunal to reach the right conclusions, and your role is to assist the tribunal by identifying the key issues
assisting the claimant orally to gather and present the relevant evidence and ensuring that the claimant can participate effectively.
And just drawing your attention to
The advocacy point, the good tribunal advocacy will be advocacy that narrows and clarifies the dispute.
Next slide, please.
So, the next session is on case management in the tribunal
Next slide
Social Security bundles follow a particular structure
So when you get your bundle, you'll need to look through it and make sure it has all the relevant documents in it. It will start with some brief facts about the case that could be your client's date of birth or the date of claim, the date of decision
And then you will see the Secretary of State or HMRC submissions on the case
And those are the submissions to the tribunal
Next, you will find the index
And this index is how you can check that all the evidence is in the bundle that you've received all the right pages, that the documents that are listed near index are in the bundle.
And after the End Act, you will find the claimant's application for appeal, followed by the claim form and any supporting evidence.
You should always know what the documents are located, what evidence has been attained. What evidence is still outstanding and what actions have been taken with respect to the case.
Next slide, please.
Evidence is key to these cases
Identifying the relevant evidence involves
Identifying which evidence relates to the legal test
Whether it is within the relevant period and does it help resolve a disputed issue? Often
When you get the bundle, cases will have involved documents that will have been filed between the time
Where the appeal was raised, and the… and you received the bundle. So, you may have documents in the bundle that are outside
the relevant period, and so part of your job will be going through the bundle and identifying what is within that period
Effective advocacy will focus the tribunal's attention on evidence that contextualises and crystallizes the client's case.
Next slide.
Her advocacy and the tribunal
Next slide
Written submissions are there to assist the tribunal
And as it says, you want to keep these brief. The tribunal already has a lot of evidence in front of them, so it is not
about repeating every piece of evidence or
Expanding on your client's case in a way that
has already been set out in the bundle
When you're drafting good written submissions, they will identify the issues
narrow the issues if possible and clearly state what outcome your client is seeking
Additionally, if you're conceding issues, you need to make that clear
So
That goes along with narrowing the issues
And dealing with and foreshadowing any problems that may be arising in your client's case. For example.
If your client's evidence has changed, you need to explain why
It's not unusual for a client to provide slightly different evidence in the claim form as well as the
healthcare assessment or different from the claim form and the appeal
there might be a good reason. There might have been a deterioration, but you just need to say why that evidence is different.
If you can see why the DWCP decided against you, you should say, and if there's medical treatment that has been provided but wasn't consistent with the disability being described
Then you can also set that out.
Brevity is usually a virtue and it's important to make the submissions concise, simple and clear for the tribunal so they can see what you want.
Next slide
While tribunal advocacy is led by the panel
That doesn't mean the representative is passive. Your role is to listen and take a note
Identify gaps in evidence, ask your client questions to reduce evidence and clarify any misunderstandings.
And ensure that important points are not overlooked
Where it says Tribunal Advocacy is collaborative and inquisitorial rather than adversarial, what that means is that
clients aren't necessarily cross-examined in the way that a lot of people think of in a civil court
What the tribunal is aiming to do is gather evidence to see
What points to award, if it's a PIP claim or whether the client meets the conditions for an award for a benefit
And not necessarily trying to trip someone up.
It will be necessary to exercise your judgment. So sometimes you may only need to make a short submission on other occasions, you may need to intervene more actively.
For example, if you have real concerns about a line of questioning or an interaction between the client and the panel
indicate to the judge that you would just like to comment or ask. For example, you might ask, I noticed that the doctor has asked for leading questions in a row
I wonder if we can ask something that our question that's more open, my client is getting upset. I wonder if we can have a few moments
But you should be mindful not to intervene lightly
You will have, like, these things
It's best to let these things run course
But if you have serious concerns, do you raise them with the judge?
The more tribunals you appear in, the more experience you have
the better able you will be to know when to intervene.
Next slide
So tribunal panels have different compositions
And the composition of the panel will depend entirely on the type of hearing being heard
Understanding who is sitting on the panel can help you understand how evidence may be evaluated.
Sometimes judges sent alone, other times there's a panel
For PIP claims, there will always be, there will nearly always be a three judge panel which will involve a doctor, a judge and a disability qualified member
a disability qualified member is someone who might have a disability or have experience of disability
In fitness to work cases, so that's ESA or Universal Credit
There's typically a judge and a medical member
And another benefit to might be a judge sitting alone, or a judge sitting with another specialist member, for example.
an accountant, if it's a child support appeal
Each member brings different expertise and perspectives to the evidence. And the point of this is that the tribunal draws on specialist expertise to help the panel make a decision
And that's one of the ways of the tribunals enabling role
It enables them to assist appellants who don't have legal representation.
Next slide.
So these are some of the procedural rules and case management rules for the tribunal. These rules can be found in the first tribunal procedure, first tier tribunal social entitlement Chambers Rules 2008
And in Volume 3 of the Social Security Legislation books
I've listed some of the more important roles here
And there are far more rules than this, but I'm going to talk to you a bit more about rules 2 and 5, which are the rules you're most likely to encounter
Rule 2 sets out the ground rules for
That are governing the tribunal
Important things to note about Rule 2 are proportionality
Obviously, the tribunal wants to deal with matters fairly and justly, but what they have to consider
is that the case has to be dealt with in a way that is proportionate to the issues that are arising and the overall cost of litigation
And that refers to
Rule 2A, where it says
dealing with the case badly and justly includes dealing with a case in ways which are important to the… proportionate to the importance of the case, and the complexities of the issue, the anticipated costs and the resources of the parties.
TB refers to formality and says that
Tribunals should avoid unnecessary formality and seek flexibility in proceedings
And what that means is that
Avoiding unnecessary formality
would be
Not that the tribunals don't necessarily follow the rules that govern civil court proceedings
Where there are quite intricate rules about the type of evidence that might be adduced, for example
And the tribunal, the procedure is more flexible, but it is still a formal set of proceedings. For example, if you have an online hearing
You can't have children in the hearing. The court expects there to be no one else in the room. It is still a formal courtroom.
the tribunal should ensure as far as practicables that the parties can participate, and they will make efforts to put the client at ease and make more make reasonable adjustments to enable their participation and avoid delay.
And avoid
As far as practical and can be dealt with proportionately. For example, if somebody needs regular breaks. And lastly, I'll talk to you about avoiding delay. Avoiding delay as far as compatible with
The other rules, and it's something to keep in mind when you're making an application for postponement and adjournment.
Also, Rule 2 stipulates that the parties to the proceedings, including the DWP and the appellant, must help the tribunal to achieve the aims
Of the
Proceedings in the way I've just described and they have to cooperate with the tribunal generally. Rule 5 sets out the case management proceeding procedure
Well, most cases are this is only going to arise if you're seeking an adjournment or postponement. Obviously, we all avoid that if you can, but if you do ask for one of those two things, it's important to make the application as soon as you know you will need
It and the more notice, the better. An adjournment, you should explain clearly why the adjournment
is needed and what has led up to it. For example, if your client has an illness
And then also explain how long you expect your client to be ill, particularly if it's an issue about attendance
Case management, which is governed by Rule 5
There are other cases in the tribunal that can be quite legally complex or factually involved, and there may well be a case management hearing for those proceedings
you might be making an application for directions
And if you're making an application for directions, you want to set out to the tribunal while you're making a particular application for a direction, why you haven't been able to obtain evidence, for example.
If you're asking the tribunal to ask someone to do something
And you need to set out why you need that direction, but remember rule two about avoiding delay.
And the tribunal will listen to applications, but bearing in mind
You're doing when you're making an application of this nature, you're cutting across one of the primary objections objectives, which is to avoid delay so that you don't need to set out
So you do need to set out what you want and why you want it.
Next slide
Just two minutes
Okay, I'm last going to talk to you about AI in the tribunal. Next slide.
There are some ethical considerations around maintaining confidentiality. If you are a representative in the tribunal, you have a responsibility for any inaccuracies.
And
I'm going to also talk to you about AI generated evidence. Next slide.
So AI systems can generate convincing
But entirely incorrect legal positions
We've all heard about the high profile cases where there have been hallucinations
Hallucinations. And those can arrive when
AI misdescribes what the legal tests are, and it's well-publicized problem. As a rep, it's your responsibility to ensure your submissions are correct
Another potential problem is that the way AMA contaminate your client's case. It might come up with generic answers
If your client asks how to for suggestions on how to fill in a claim form and what's important about your client's answers, if they have used that tool is to double check that
What they're saying is true and hasn't just been suggested because there's a potential it may… what's been suggested may contaminate the evidence and obscure your client's true voice.
Lastly, as a representative, you can assist next slide
You can assist the tribunal
Where, if it does appear, AI has been used to manufacture evidence
For example, a letter to the GP. You can assist the tribunal by
setting
If you've obtained the evidence, how you've obtained the evidence
the procedure you went through for gathering the evidence, what the evidence was, and that you sent that evidence to the tribunal
And this is to avoid
undermining the veracity of the evidence.
And
That concludes my talk.
Thank you so much, Brandi, really appreciate that. We will try and fit in an opportunity for questions at the end of the next session, but because some questions may get answered in the next session, we're going to move on
to the next session. So the next session is called Life Jackets and Hard Hats, and I'm going to introduce our next two speakers. So we have Shirley Hayes from the National Deaf Children's Society. Shirley is a Send Appeals and Disability Benefits Specialist at the National Deaf Children's Society. She previously worked in third sector advice agencies supporting a range of client groups
Shirley has acted as appellant representative in both social security and send first tier tribunal appeals. She currently supports deaf claimants across the UK and challenging disability benefit decisions at mandatory reconsideration or redetermination stage.
Curly LLP works in partnership with the National Deaf Children's Society to provide pro bono representation to Deaf claimants in the first tier Social Security Tribunal in England and Wales
Shirley graduated in law from BPP University in 2016, an associate member of the Chartered Institute of Legal Executives at Paralegal Grade
And our second speaker is Alex Radcliffe from Cooley LLP
She's the pro bono Manager at Cooley. She practiced as a commercial litigator for 15 years prior to taking on her pro bono role in 2017. One of the first projects she implemented was the Disability Benefit Appeals work with the National Deaf Children's Society. The project has thrived and Alex, together with a large cohort
of Cooley volunteers regularly represents clients at the first tier Social Security Tribunal in their DLA and PIP appeals. So over to you, Shirley and Alex.
You're both on mute.
At the moment
It's possible that Shelly may be having technical issues. Oh, there she is.
Perfect.
Sorry, everyone, hello.
No worries.
Is that okay?
Yes, I can see your slides perfectly
That's great. Life jackets and hard hats, appellant and representative experiences in the first tier tribunal. This presentation is a snapshot of my experience as a representative in both SEND and Social Security
Disability benefits appeals to the first tier tribunal, and the experience of appellants as expressed in their own words
I'll cover
Sorry
I'll cover the appellant, what's at stake
As explained in their own words, the tribunal rules and why they matter
DWP and LA practices
The resilient representative, and I'll summarize with some sources and recommendations, particularly with non-loyal representatives in mind.
You have been a life jacket when I felt like I am drowning
You've answered every question, even though I questioned absolutely everything and explained every step. You stood up for what was right alone, I would have gone insane
The words for parents who appealed against the contents of their child's education and healthcare plan in the HCP, including against the school placement named by the local authority. The appeal was successful
The parents' preferred school was named, and the appeal was settled before hearing.
Without your help and the help of others, I know she wouldn't be where she is now
It is hard work for all of us, and as this situation showed, sometimes it feels like I don't have the strength to keep fighting for what is right and what should be normal for her and all.
This from a parent of a 16-year-old who appealed against the LA named post 16 college placement, so a Section I appeal, and the appeal was settled before the hearing.
Our appreciation for Alex and her team is beyond words. They didn't just help us win a case. They helped us reclaim our voice.
This from a parent of an 8-year-old deaf child. Previous DLA award was lost at review and the appeal was allowed by the first tier tribunal
And here a parent uses social media to express their feelings about the SEND system
We see a photo of a young child standing beside a plastic toy kitchen in the living room of a modest home
The pale image and decor suggest the photo was taken around 13 years ago
The caption reads, me messing about frying my fate chips in 1994 when I should be starting my child's EHC process and the battle for support
No, there are 8,772 likes on this post, and 498 reshares. So this parent's humor appears to have resonated with many
The tribunal rules Rule 2 is common to both the SEND tribunal rules and the Social Security Tribunal rules.
The overriding objective is to enable the tribunal to deal with cases barely unjustly
I highlight 3 paragraphs
Dealing with a case fairly and justly includes avoiding formality and seeking flexibility in the proceedings
Avoiding delay, so far as compatible with proper consideration of the issues, and the parties must help the tribunal further the overriding objective and cooperate with the tribunal generally
There can be barriers to furthering the overriding objective. For example, systemic issues. Appellants can wait a very long time for a hearing date, often more than a year.
There are some DWP practices, for example, claimants are sent a letter informing them that their mandatory reconsideration request has been unsuccessful
MR is the stage before appeal when a claimant requests that the DWP reconsider the decision. The letter informs the claimant that a mandatory reconsideration notice will follow
The MR notice is usually required or is required to lodge an appeal but often does not arrive until several weeks later or not at all. 40 year appellant's ability to meet the one month deadline
To launch in a peer. Now, it is possible to lodge an appeal without the MR notice, but many claimants won't know that
In sent appeal cases, the practices of local authorities can vary
Some will instruct legal firms to act on their behalf. Some will have appeals teams where more than one representative has been allocated to a case
And some representatives are more experienced than others
Which can delay decisions
Within
Authorities
Dispute resolution before hearing ought to be at the heart of tribunal appeals, but communication between the parties can be attractive. So whether I describe a successful send appeal as agreement reached between the parties
As the ally conceded, rather depends on how I feel about my communication with the LNA
I've had positive and not so positive experiences
The resilient representative
If a parent sometimes require a life jacket, representatives may sometimes need a hard hat
The conduct of the tribunal is set by the judge and judges may have different expectations of a representative.
Common to both sets of rules are representative in the first tier tribunal does not need to be legally trained.
I've never been before Judge Jacobs in the Upper Tribunal or been asked to promote his book, but I do so anyway, as well as the PLP publication, The Basics of Tribunal representation.
In this book, the author writes about the changing nature of tribunals over the years, including the proliferation and increased professionalism of non-lawyer representatives who seek greater involvement in hearings
The increased case management and legalism amongst the judiciary and the demand for greater involvement by representatives have yet to be reconciled in theory and practice with the traditional enabling and inquisitorial
approaches of some tribunals
In Social Security Disability Tribunals, the panel will usually want to hear from the claimant themselves. This is to be expected since much of the applicable law is about how a claimant's disability affects their daily life.
Memorably, I recall an in-person disability benefit tribunal, where I tried to intervene on behalf of my client, and the judge waved their hand at me and said, you just take your notes
More recently, in the centre Ibunal, I experienced two separate judges who did not favor the idea of me putting my hand up
during a virtual hearing. The first judge reacted in a way that if I hadn't been wearing my hard hat, could have made me feel embarrassed. The second judge was more measured. You don't need to raise your hand when it says, I will come to you
In summary, for all of us involved in the tribunal system, it's worth remembering that actions or inactions matter
And so do words.
Here's some sources for presentation, and I recommend, especially for non-lawyer advisors, the excellent work of these organisations. I should have included rightsnet.org as well, which I recommend for advisors and representatives of welfare benefit claimants.
We're the National Deaf Children's Society. Thank you. I'll hand over to Alex, our pro bono partners to speak about representation in the first tier Social Security Tribunal
Thanks so much, Shirley. Over to you, Alex.
Thank you so much. So as the one non-specialist member of the panel, what's going to follow is just some practical tips that I and my pool of volunteers have sort of garnered
Along the way, specifically focused on representation, the first tier tribunal in respect of DLA and PIP appeals
And looking at the period just prior to the hearing and the hearing itself
So
Just some practicalities in advance
Of the hearing
One question that clients can
to you for advice on if you're instructed efficiently early in the process at the appeal notice stage is whether or not
They should select a hearing in person or via video conference
For some clients can leave or employment obligations will mean that only a video conference will be possible. But in all other cases, I would say PIP and DLA
appeals would recommend an in-person hearing. That's for three reasons. The first is that it is easier to support your client if you're with them in the room. The second is that I, this may be my
And unlucky experience that I often encounter technical issues with video conferences
And thirdly, and probably most important, and it goes back to what Brandi said about learning when to intervene during the process, is that is very difficult in a video conference. You can't read the tribunal, you can't see what points are landing, you can't see if they're confused
It's very difficult for you to sort of catch their eye as it were, to
to give them direction or point to a document. So for those reasons, if possible, I would recommend in-person. It won't make any difference in terms of the listing. Certainly in DLA and peer appeals
The second, and this point has for good reason, been covered by all three speakers. There are huge delays in the listing. If you ring up, as some of our clients have, the hotline, the suggestion is that PIP appeals to be waiting five months after filing the appeal notice
And the DLA, seven months. Those are both minimums, but we have
in the past few years, been nowhere near that quick, regularly seeing double or even triple those, those time estimates
And clients really need to be prepared for that and manage their expectations about that.
Then there are also some practical issues arising
very easy to remember to update the tribunal as to dates to avoid at the outset when you're just putting the appeal notice in, or filing your submissions. It's easy to forget as time goes by, and as night follows day.
You will find that your hearing is lifted on a day that either you or your client can't attend. That will get you into the territory of having to request an adjournment, then get you into the territory that Brandon was talking about, about delay.
So do keep that in mind. A basic but practical point. Also, addressed by Brandi is that certainly in our experience dealing with children, their disabilities can change
deteriorate and the impact of their disabilities on them, the amount of support and additional
needs they have can change quite dramatically over a period of two years
As Brandi emphasised, the relevant date for the tribunal, so the evidence that the tribunal is going to be concerned with, the facts are going to be concerned with is the date of the relevant data for the division
So if there had been a significant deterioration, so that your client is going to be eligible for a higher rate, you need to get in a new claim in respect of that change as soon as possible
that you should advise your client that that will create a long stock for the possible date of the award that you will subsequently get at Tribunal
And finally, preparing for the hearing, clients will often say, what can I do to prepare?
And my advice
is very little, actually. I think it's important for clients to be authentic. You don't want an over-prepared client. One, it can add to the anxiety, which is naturally felt in advance of the hearing
But you don't want parroted answers or any suggestion, that they are giving anything other than, a truthful and authentic response to their questions. You certainly don't want another advocate
It is important, however, to talk them through the procedure on the day exactly what they can expect, so nothing comes as a surprise
Just basics in terms of the hearing, the people involved, what you can expect, as Brandi mentioned in DLA and PI
made up of three members, the tribunal judge always in the middle, medical member disqualified, disqualified, disability qualified member on either side. They're assisted by a clerk. Good just to interact with the clerk in advance to make sure that the tribunal has received
all the documents that you have submitted and have had an opportunity to read those. Sometimes documents do go astray, so it's worth checking rather than having to deal with that once the hearing is underway
You will be sitting on the left as you face the tribunal with your client next to you. If you're doing Dla cases, you're that will be the parent. The child does not need to attend in PIP
You can have the child and the parent sitting next to them, but a point for the parents to note is they must not interrupt the questioning between the tribunal and the child. They mustn't answer for their child, however tempting it may be
For them to do so, it is one way to really irritate a tribunal.
Now, there may or may not be a presenting officer from the Dwp. I have seen an increase, but I don't believe that that experience has been shared by all panellists
To me, there is no rhyme and reason in terms of when they do attend, other than if there's an order for them to attend. And they're not to be feared. In my experience
They have almost to a person not had a good grip of the details of the case. They may ask
They may be asked a question or two by the tribunal in terms of the decision-making process, and they may ask the appellant a question or two. But in my experience, they haven't had a material impact
on the proceedings
In terms of the procedure at the hearing, opening statement, I put a question mark by it, brevity is key, is a virtue, is Brandi said, the tribunal will have very recently read your submissions
And they don't need you to simply repeat that. I generally just check that the tribunal has received the submissions, they've had an opportunity to read them, if they have any questions for me and leave it at that. However, I have had colleagues where they have been asked to give an opening statement
So just have one in your back pocket in case that happens.
Questioning
Again, in my experience, it has been well thought out by tribunals. Division has been agreed, or apparently agreed in advance of the hearing. But do keep track of
the issues that need to be covered and ensure that you're happy that everything that needs to be covered has been covered. There may be circumstances where the tribunal is happy with what has already been submitted in terms of the documentary evidence and submissions and any evidence
You've provided with your submissions, in which case they won't ask any questions, but it is important that you
Check that that is the case if an issue hasn't been covered. Also keep you should know your bundle inside out. If there is a document that's particularly pertinent to a line of questioning, that is a good point in which to suggest
that to the tribunal that it… that you have a document that may assist. Some tribunals will say, yes, take us to that. Others may not. But that's an example of when it's good to be able to catch the eye of
the tribunal. And again, in terms of relevant case law and guidance. If you feel that a line of questioning betrays a potential overlooking of some relevant case law and guidance, make a note of that, because you will want to come back to that
the end. I put re-examination in quotes because it's not a formal re-examination. But at the end of the questioning
Is there any area that you feel that the client hasn't given as clear evidence as you know that they can give? Is there something that you feel that they may miss
have misunderstood in terms of the question being asked. If so, you can go back to that. Again, if you… if there's a particular issue that you want to draw out, go back to your clients. I tend to avoid it, because by that stage, once the questioning is finished, the clients tend to be exhausted and just
want the process to be over, and may not give proper thought to the question that you're asking, so you get an answer that you're not expecting and isn't particularly helpful. So my advice on that would be keep it to a minimum, and only when necessary.
Closing statement, I think this is worthwhile, but again, keep it brief. The main themes, the main issues and the evidence that supports them on which you rely.
this is the time to if there is any guidance or case law that you think that the tribunal may have overlooked, this is the time to bring it out, so that that's fresh in their mind when they make the decision.
And then finally, the decision can either be made that day, in which case the tribunal will ask you to leave the room, they will deliberate, and you'll be called back in to tell you what that decision is
If the decision isn't made on the day or isn't given to you on the day, my experience is this is the one area where there is no delay. We have never had to wait long, a matter of days until that decision is received in the post
And whilst we have highlighted some difficulties with the system, I think just to end on a note of positivity, in our experience over the last eight, nine years, the quality of the decision making
has been excellent. So I will I will leave you with that
Thank you so much, Alex and Shirley, and to our earlier two speakers for those really helpful insights and that guidance. We do have a couple of minutes
For questions. So I'll draw out some questions that have been posted in the Q&A and do feel free to kind of volunteer to answer them. So the first one is about the level of formality
When you're addressing and making submissions to the tribunal and sort of what level of formality and language is appropriate
Yes, please, go ahead.
Shall I take that? Would that be helpful? I mean, I think don't worry overly, don't worry overly about form. It's all about content
And I think what's important is, you know, telling the tribunal what it is that you're seeking
So, you know
What result you want if it's a PIP appeal, for example, that you're seeking, you know, standard rate daily living, because you think your client should score 10 points
And, you know, cooking and washing and the activities that are in issue
So I think it's just about
focusing on what you're saying, and just being clear about what you want, and, you know, if there is an issue in relation to the, you know, you have to challenge the basis of the decision
you know, the reasons for the decision against you, that will nearly always come out in the positive evidence that you're putting forward to show why you meet the test anyway, but it can be useful if it's clear to you why a decision has gone against you
to perhaps, you know.
say why you would disagree with that. But it's more about setting out your stall and putting your case.
Thank you. Any of the other panellists want to add anything to that?
I will as a non-specialist, it was something that concerned me. I'm not familiar with the different terms. I was worried I was going to call judge something in sort of your own or and needn't do. There is a degree of informality. This is a process where they see lots of people acting on their own behalf without legal representation
I think just wanting to be a desire to be helpful to move the case forward to direct the tribunal to the relevant points, as Emma has said, and just general courtesy will get you a long way
You don't need to worry about getting a word wrong here or there.
Thank you, that's really helpful responses. I'll now take two questions together that to do with case law. So the first one is about whether or not you need to include case law references in submissions or whether you can assume that the panel are all aware of the law
And then the second question relating to case law is about whether to submit copies of any case law that you have referenced in your submissions, even if the case law is available online.
Will I take that one to start with, then we'll see if anyone wants to chip in. I mean, first of all, I'd say please don't sprinkle case references through your submissions like confetti. You're probably only going to want
In most cases, if you expressly reference a case at all, it would be 1 or 2, okay? Anything that you can find in the Disability Rights Handbook, in the CPAG Handbook, or in the Social Security Legislation series, you know, the meshes and Bon
All of that should be known to the panel, and they have access to those books and they will have read that guidance themselves. And anything that's in there is kind of well established.
So
Mostly, you probably wouldn't need to cite or make express reference
to case law
What you're trying to do, I think, with the facts that you're pleading is showing the panel that you understand the law by the facts that you're putting in front of them. It's almost like the law is a glass and your facts are the water. And so your facts, you know kind of show the panel that you understand the legal
issues. Obviously, references to the statutory provisions, you might want to structure your submissions in that way so that you've written out the statutory provision.
If there is a legal point in your case and you feel that you do want to talk about case law, like I said, unless it's an unusual case, that there shouldn't be that much of it. Yes.
cite the case reference and make sure it is an accurate reference that the judge can go away and look up
You probably don't need to append a copy of the decision. Sometimes you might, particularly if it's an old one that was hard to find, for example, so that's a question of judgment, but if it's available online, usually just a reference will be
sufficient
But when you are citing case law, you do need to do that appropriately. So if you're going to talk about a case, number one, you need to read that case. Don't just read the guidance and what somebody else has told you that it said, because that can often be wrong. So you've got to read a case. Those can be anything from
to 60 pages long, okay? So
There's going to be limit as to how many you can read. And then so you're sure that it is relevant to what you want to talk about. And if you're going to quote a case, I always think
The best way to do that, what I consider good practice, is you've got your citation. Do a brief factual summary, because often legal commentary is relevant to the specific facts that arose in that case. So a brief kind of thumbnail sketch of a factual summary as to what that case was about
A little summary about the legal point that you think arises from that case, and then a few lines explaining why that's relevant in the factual or legal scenario that you find yourself. So it's not just a question of referencing
the name of a case, if you're going to use a case, then you have to use it. So set out, you know what it was about, what it said, and why that's relevant
For you. I don't know if you want to add to that, anyone.
Because it's an important topic, I think.
Well, I've learned something. I think, Emma, that
I'm pleased I haven't come before you, because I think you'd probably be slightly irritated by the amount of referencing I do, and I will now curtail that practice, so thank you very much from that insight from your perspective.
I mean, it's useful kind of scaffolding for your thought process if the cases have helped you to understand the legal tests
But it's just about how you share that knowledge and understanding, I think, in order to make the most impact on the tribunal
I would comment on that a bit though, Emma, because you know you said about if it's old case law
Quite a lot of case law relating to death payments is, in fact, all case law and case law that we rely on from the 90s in relation to deaf children. So, I mean, Alex does our work, our representation work
I have done previously for deaf children. So we find that the selective and careful use of case law
Because we do it when we're in my role now write letters of advice
to claimants in which they can submit as evidence at mandatory reconsideration stage. And we do
carefully quote case law relevant to the facts of that case. That's the important bit that you've said there, isn't it that it's important that you don't just throw it in and see if it sticks, but that actually you can say why you want
Yeah.
The case will to be applied to your client's case. And also whether because some case law relevant to children generally that may not be relevant to deaf children is still relevant
If you want the panel to consider that or follow the reasoning
So
Careful use of it. I'm personally in favor of
Absolutely, Shelly. I wouldn't disagree with any of that. And the only point I made about older case law is as to that, I think that went to the question as to whether you should send a copy of the case in
Yeah.
And I think with some of the older case law, it can be not available online. So then you might want to attach a copy of that judgment. More stuff from kind of
this century tends to be most, you know, from about 2008, it tends to be online. Anything pre-2008, there's limited resources.
And rights now have a very good case law
archive talk through
They do
Which is why I feel a bit guilty that didn't put them on my slide at the end. Mention them again
Thank you so much. So we'd you a short break now for 10 minutes returning promptly at 3:20. So I just really wanted to thank again Brandi and Emma and Shirley and Alex for those excellent talks
And
As I say, short break and back at 3.20. I don't know, Nicole, whether there's anything else you wanted to flag up at this point.
No, no, I think just to thank all the speakers for the very structured and very informative session. And I can see the speakers for the next session already joined very early, so thank you. And yeah, please be back at 3:20.
And we will start the next session at that time.
And thank you, Vic, for chairing.
Thank you. It's a really interesting session.
Okay.
I see Vic
Hi Farida!
Hi, Nicole, how's it going?
Good, good. I think the session was very, very informative. I know nothing about Tribunal, so it was a kind of learning session for myself as well
Seems very lively, the end, anyway, which is good so lots of stuff
Lots of questions. I think people will definitely be looking forward to
Your parts
Good. Excellent. Well, it all seems to be working fine. I joined because I was worried I was going to have some tech meltdown. I have got there are some internet issues going, intermittent internet issues, but what I've done, I've got my hotspot going so if my broadband goes out
I should be able to hop quickly onto my hotspot, but hopefully nothing's going to go wrong. It hasn't gone out all day, but I have a message from Virgin Media saying it's not going to be fixed till 6, so…
Oh, that's great. I feel like you're here now, so
Hey, I'm here now, yes.
Yeah, yeah, that's fine.
Oh, good. Just to mention the audience are still here with us. They might be on break, but some of them might still be on the chat. Great. Hi, Millie. Hi, Jo.
Hello
How's it going?
Good
We've had a lot of people in the session
That's brilliant.
Yeah, see your numbers. It's great.
Just to mention, Farida and Jo, I have both of your slides, so I will be sharing them.
Great. If you want to go grab a cup of coffee or a tea
You can come back in advise
We still have… yeah, we still have 5 minutes. I will go to that, actually. See you in a bit.
Hi, Brian! No, the session is not over. We were just having a break, and we are actually coming back in one minute at 320. So I think quite a lot of people are still here, so I'm just going to kind of reiterate, if you have any question, please do drop them in the Q&A box
So that's a little box at the bottom of your screen with a little question mark on it. The reason why we ask that is if you drop your question in the chat, it might be kind of pushed up and we might miss your question. So if you can make sure to drop your question in the Q&A box, that would be
Great. And I can see the speakers for our next session already all here. So I'm just going to
bring this up again, you have been amazing, not mentioning any specific cases, but for those who are just joining the session, we ask you kindly not to ask any question regarding personal cases, because the panel cannot give you any legal advice
This is a general training on the knowledge of tribunals. So without further ado, I'm going to hand the mic to Millie, who's the chair of the session.
Really, here you go
Great. Thank you so much, Nicole. Hi everyone, it's really good to speak with you today. My name is Millie Hawes and I will be chairing our panel of expert session for the next half an hour. Just in terms of a very quick background to who I am and what I do. So I actually have two roles. So I am head of our pro bono and community program at a law firm called Field Fisher
But more importantly today, I'm also a disability qualified tribunal member, so I sit specifically within the social entitlement Chamber in the Social Security and Child Support section. So I'll be chairing today's discussion, and we're going to be discussing different perspectives on what successful advocacy looks like, and also talking through some of the enablers and barriers
to the use of tribunals. As Nicole said, we are inviting questions for this session, so if you do have questions for our panellists, please do put them in the Q&A. But first, we're going to start with some introductions from our experts. So I'm going to hand over first to Judge Noel Arnold
to introduce himself, his role and any opening thoughts.
Thanks, Millie. I hope everyone can hear me okay and good afternoon.
So, my name's Noel Arnold, I am a district tribunal judge, which is a salary judge, and I sit in the social entitlement Chamber of the Festier Tribunal, but specifically the Social Security and Child Support Jurisdiction, which
the same jurisdiction that Millie just mentioned that she sits in
So a lot of what you have been discussing or hearing so far can resonates with me because I sit in the Social Security Tribunal, which we sometimes we call it Social Security for short, although it's Social Security and Child Support. I've held that office or
salary judge for over 6 years now, and I hear all types of appeals
across the different jurisdictions that we deal with. So, in terms, of my reflections on the kind of questions and considerations that you have been discussing so far, in terms of successful advocacy and representation in, in my particular tribunal
I had various thoughts that I thought I'd try to offer you. Nili, if I'm running to overtime, please tell me, but I'll just quickly rattle through these. Mainly in our jurisdiction, and if I kind of omit child support, because that's such a category on its own, but we have different
categories of appeals that they've been given numbers, so 03 is PIP and DLA and attendance allowance
O4 is usually about limited capability for work, and that could be, within the Universal Credit benefit, or it could be ESA
which is now really a legacy benefit
And then finally, O1 is kind of a
category, which is really everything else. So usually, I think as you've already heard, those appeals are heard by a judge alone. In my experience, mainly we have representatives, if we do have representatives, if we're lucky enough to have a representative, they're
a representative for either PIP, DLA
or limited capability for work appeal. So I'm going to kind of focus some of my thoughts or reflections on those categories. O1, which is this kind of other umbrella category, usually the appeals there are very much about regulations and whether
an appellant met the relevant regulation or the relevant tests
And so when we do have a representative, normally their submissions are quite focused on the law, whereas the appeals that we've been discussing so far, at least in relation to Social Security, are very, very, very fact-specific because they're about usually they're about someone's disability or health condition
And the extent to which that health condition impacts on their life, as you heard. So, so it just just thinking about those two then what I would say and I might be repeating some of what other people had said, one is that
Please don't teach us the law. We are all trained. The judges, the disability qualified tribunal member, and the medical qualified tribunal member have all had training on the law, so you can, to a certain extent, expect that we know the statutory
framework, please don't rehearse all of that in a submission. The other thing about the case law, and I know you've discussed this a lot, is that generally what I would say is, as a rule of thumb, is that, again, expect that your panel of
of judge and specialist members know the relevant case law, where there is a particular case that, or a particular aspect of your client's appeal which you think is unique, then obviously you may want to refer to the case law
The other thing I would say, particularly with pepper pills, is that please really, really focus your submission on what the client may realistically achieve in terms of the applicable descriptors. I tend not to talk about points, because
I always say I don't care about the points, I care about selecting the correct descriptor that meets the compliance
or the appellants often
or functional limitation. The consequences that by selecting X or Y descriptors, you add up the points, and that may result in an award or not an award. In a sense, I'm not bothered about the points. I just want to select the right descriptor. So focus, please, your submissions on
on what is the relevant descriptor. And don't just rehearse what your client tells you. Try to look at where there might be other evidence in the bundle that assists you to show or demonstrate that that is the appropriate descriptor, and tell us the page number
That is really helpful to us. But just rehearsing that your client says she can't do X or Y is probably a little unhelpful, because we will be asking those questions in the live hearing anyway.
I would just very quickly also say, don't tell us a lot about your client's health conditions. A lot of that information is already in the bundle, and invariably, the DWP are not disputing that your client has X or Y health condition
What they are disputing is the extent to which that functional that sorry, the extent to which the condition affects their functional ability with the PIP activities. So there's no point rehearsing lots of information about the health condition when it started
what the diagnosis was, who diagnosed it. So again, if I can remind you, really focus on the particular activities that your client is struggling with, the activities of PIP, and which descriptor you say is the appropriate descriptor. Again, please refer to any other evidence, documentary evidence, GP notes, etc, which may help us
Also, please, and I know it was said before, but again, to repeat the point, because it's important, focus on the required period. So, work out when is the required period for your appeal, and focus everything on that, because we… we cannot take into account
things that are before that required period or after that required period. So we're looking at… usually it's a period of one year. That period depends on when your client made the claim, and sometimes there are other complications about the required period, but generally, it's one year, and it starts three months before your client made the original claim for PIP. So, work out what the required period is and focus everything on that
In terms of the hearing, just a couple of points I would say. We as a panel get together about half an hour before the first hearing starts, and we have previewed, we have discussed and previewed the appeal, so we do have an idea about how we want to conduct the hearing, what we want to focus on. So you can take for granted that we've thought about all of that before
you know, invite you in and start. Also, please help us by bearing in mind that we have very limited time, so we normally have a standard, standard PIP appeal, if you can say anything, is standard, is one hour
And that really goes very fast. By the time we've done our introductions, we have… we have so limited time. So please help us by bearing that in mind that there's so much to get through. And that's another reason why I say try to focus on specific activities
And not just throw everything in. Often, I have seen representations from pro bono representatives, you know, who are lawyers at very, very great law firms. I can see their credentials are brilliant, but when they come to a PIP hearing, they're asking for, you know, 36 points
which it never really happens, in my experience, you know, most appellants don't end up getting 36 points, but it's just because they've asked for higher-scoring descriptor of every single one of the 12 activities
there may be a case where that is necessary, but I would suggest that usually that's rare. So bear in mind the time. Opening and closing submissions, I think probably just be guided by the tribunal. I've never asked a representative to give an opening submission, particularly because they've given
to us in the written submission, so I'm not going to ask a representative to rehearse all of that. We've read it, we will be guided by it, and we can press on with the oral evidence. And then finally, it is actually very informal. Certainly in my tribunal, and it's
We try to be as friendly as possible. Yes, we're doing a really important justice process, so there is a degree of formality, and there's boundaries that I certainly am not very happy about people crossing, but generally, I would say it's informal, it's fairly friendly, and we are enabling. So
you know, invariably, we don't have a representative, and we still have to get on with that hearing, so we… it's just us and the appellant, and we enable that appellant to give their best evidence to enable us to make a decision. So, yeah, bear in mind that there's nothing really, I would say, to be intimidated by
I'll stop now. Thank you, Millie.
Thank you, Noel. Some excellent top tips to get us started. Right, I'm going to hand over now to Judge Farada Eden to give her perspective.
Excellent. Hello, everyone. I'm Fareed Eden. I've been a tribunal judge since 2014, so I started off fee-paid, and I sat in the Mental Health Tribunal, and I've also sat in Immigration and Special Educational Needs
So I became a salary judge in 2019 and mostly I do disability discrimination in schools cases and special educational needs cases, which are cases about education, health and care plans. As a recorder in the family court as well
for a bit of light relief. And before that, in my previous life, I was a government lawyer, so I advised central government departments. We got a slide deck perfect excellent. So I thought I'd put a bit of structure around what I was saying so that you've got that later
So we can move to the next slide.
So I'd start, I think most of you would be most likely to be involved in send hearings, which are about education, health and care plans. So I wanted to tell you a bit more about what they're like. They're issues-based. So what we tend to do is get an issue, hear evidence from it, and we jump from one witness to another in a way that can be quite disconcerting for advocates who are used to a strict order of witnesses and evidence taken on
Oh, so you just need to be prepared to be quite nimble, and also, if you were presenting a case, to think which of my witnesses can present best on this point, and be prepared to come back and dip in and out of your witnesses. And we are absolutely an inquisitorial
Jurisdiction panel will be very interventionist. The judges get to know quite a lot about education and disability, and obviously we're sitting with one or two specialist members, ex-head teachers, Ofsted inspectors, educational psychologists, so they really know their stuff
And they're going to be interested and ask a lot of questions
A really important point, we're forward looking, so we're looking at what's happening now. So there might have been a lot of failings by the local authority in the past, there might have been a different presentation for this child in the past, but what we're looking at is what does the evidence as at this point, tell us about this child now
It is a collaborative and a child-focused process. We expect you not to be obviously all going to do the best for your client, but it's not about winning or losing. It's about getting the right outcome for this child who's in front of the tribunal
And in light of that, obviously you can test the evidence, but we don't expect full-on cross examination. There's a degree of courtesy and a degree of collaborativeness which precludes that. So you'll be asking questions, but they're put in a way which is helpful to the tribunal and to everyone there
I know there are some people from local authorities, just to remind the local authorities have a duty of candy. We need all your cards on the table because local authorities are public authorities and there's upper tribunal authority saying you need to tell us everything that's happening, whether it's helpful to your case or not
Next slide.
I wanted to say a little bit about the context. So that graph is our appeals since 2018-19 when I started sitting in SEN, there were about 4,000 appeals a year. I thought, well, I'm not sure I'm going to get 30 sitting days
As of last year, we got 25,000 appeals, and that is still increasing. You can see from the graph that it's going up. We have a busy period in the run-up to the end of the academic year, so
Local authorities need to name secondary placements by mid-February, and then there's two months to appeal, and we want to decide those appeals before the new term, so the children can start their secondary schools. So that means about now, there's a huge amount of work happening in the tribunal
So next slide
So in light of that, if you come to us, we really need you to make the most of the date. So you've got a tribunal hearing, it needs to be effective. You need to get through it in the time allocated. So, as I said, forward-looking
I do understand that parents who come to the tribunal have probably had a really difficult time, and there's quite often been a lot of things that have gone wrong, but we need to focus on what's happening now. So, what's happening now? What are the issues?
Cut out all the side issues, focus on what this appeal is about. Is it about whether an EHC plan is necessary? Is it about what's in the plan? And that will always be about those three things, special educational needs, special educational provision
and educational placement. So those are the only things that you need to talk about. People tend to bring in a lot of other law and failings, and that's not anything we can deal with. Lots of people have already said issue, and we know the law, we do, we do these all the time, we're an expert tribunal
Please think about whether you need to make the application to bar the local authority. It's probably going to take half an hour. Think about your late evidence. Do we really need it? We really need you to help us to get through this case on the day and the time that's allocated
And I'll just briefly say working documents, because I expect most of you wouldn't know what those are. Working documents are basically a draft of the education, health and care plan, and everyone puts their changes on it, and then we decide which changes we're going to agree
That can become a bit of a nightmare. You don't need to haggle over individual words, you don't need to copy and paste your entire expert report. So let's, again, focus on the issues and don't turn that working document into a battleground. Next slide
And I briefly wanted to talk about the disability discrimination jurisdiction. That's a much smaller jurisdiction, probably going to be about 450 appeals or claims this year.
These are claims under the Equality Act and they're against schools by parents or pupils. They are legally complex and you should think very carefully just because you can do a send appeal, that doesn't mean you should do a disability discrimination claim. Think very carefully about whether this is something you're able and have the expertise to do
You do need, this is the exception, we do need you to talk about the law in these cases. They are more adversarial. They're party, party litigation, but they're still those informal facilitative tribunal proceedings. And I put a quote there from the upper tribunal explaining that even though these are adversarial proceedings, more like court proceedings
We still are furthering the overriding objective, which is in our rules about being just and fair, and we're still making sure everyone can put their case forward, and that's going to involve supporting unrepresented parents
The other thing, if you are used to doing these cases in the county court or the employment tribunal, we do them a lot quicker, which is right because we don't want to take a head teacher or a Senko out of school for five days, but we do do in one day what might be done elsewhere in five or ten days
So you need to move quickly and be guided by the tribunal. We don't want to lose the time that we have through unnecessary questioning. So really focused and lighter touch.
So that was all I had to say on my top tips
Thank you, Farida, and sorry my light has just gone out, so I'm now in darkness. Apologies for that. Just as a quick follow-up, Farida, we did have a question sent to us in advance as to whether the Sen Tribunal, in your experience, have become more adversarial. Do you have any comments on that?
So, I thought about that in advance, and I thought, actually, no. So, I think probably because we have here people who are involved in tribunals advocacy, they see a small proportion of the cases that we see, so most of our cases don't involve any lawyers at all
We've got an unrepresented parent and a tribunal, local authority tribunals officer. There are a minority of cases where there are lawyers, and that's either because you have a well-resourced parent or you have a placement which is going to cost hundreds and thousands of pounds a year, and the local authority feels the need to
defend that in the best way possible. So those are the cases which tend to be adversarial. What I have found is things have probably got worse tempered, and that is because of the sort of wider background, which I think everyone knows about. We have a white paper about send provision at the moment that the resources are very stretched and I think parents are coming to us
After a very long and frustrating battle, and that is making them more angry, I suppose, with local authorities, less able to compromise, and I think the tribunal's officers who we see are completely overloaded, that they have more work than they can
handle. So I'd say not more adversarial, worse tempered.
Very well put, thank you. Dr. Joe Hines, over to you for your introduction and opening thoughts.
Thanks very much, Millie, and afternoon, folks. Zachio Hines, I'm a researcher at the University of Glasgow, and I'm working on a project examining how accessible and user-focused tribunals are. So we've been observing over 100 tribunal hearings across Scotland and England
in a social security, housing and health and education chambers, and also interviewing lots of tribunal panel members and representatives and appellants. The aim being to kind of understand all practicing all successful tribunals have been in implementing work for vision that might be more focused on users than perhaps courts sometimes are
See what the good practices and make recommendations, but where the focus on users could be strengthened
And next slide please Nicole background
Super, so as a staff attend, I thought I'd give you, sort of, headline findings at this point in my research. I'm very conscious that my segment is really less… of less practical value to you all than I'll whip through quite quickly. But we're still in the process of collecting data, so this is just a snapshot, but
We'll finalize the findings by the end of the year, and we're still hoping to speak to lots of my representatives at Pellence and tribunal panel members. So, I'll send my email address around to either PLP team after today if anyone has time to speak with us about their trivial experiences, that
Much appreciated. But the interim findings at the moment fall into three key areas, so communication and tone, the level of formality, and the mode of hearing. I'll take those each in turn briefly.
Next slide, please, Nicole Grant. So first off, communication and tone. So creating and enabling atmosphere was the most important part of us, and we saw lots of good practice of us in our observations of tribunal hearings from panel members
So, it's included things like referencing at the beginning of a hearing, where submissions have been read and engaged with. So, as I think both Rida and Nolan mentioned earlier, but things don't need to be repeated because the panel has… is up to speed with the case
Signposting progress throughout the hearing, so signalling what's next, what will come later, how much longer the hearing is expected to last, and just orientating users, particularly at the beginning and the end of hearings.
And then framing questions with explanations about their purpose, particularly for potentially more intrusive or more confrontational questions, so people can understand, where panel members are coming from in their line of inquiry.
And then lastly, I miss just heightened devotions, particularly around like stress and anxiety, who are generally really well dealt with by panel members, for example, offering breaks, tissues, phrasing questions sensitively, and only asking questions are strictly necessary to make a decision
But telephone and video hearings, and in more adversarial hearings in certain chambers, it was a bit more difficult for panel members to spot signs of distress and to be able to make those adjustments.
Next slide, please, Nicole. So secondly, on a formality and I'm a nature appearance. So for tribunal Chambers, we've been observing a really varying quite widely in terms of
the nature of the hearings and the level of formality that they've adopted, some being largely adversarial and others much more acquisitorial. And so far, it's not been entirely obvious that either hearing type is always more user-friendly, so with adversarial formats, it's obviously sometimes quite difficult for the user to participate meaningfully, especially if they're represented
But then, more inquisitorial and peering formats could at times come across as more of a grilling and more about extracting information.
And generally the level of formality has varied, so perhaps there's been less explicitly legalistic language than we perhaps expected, but more technical language, so acronyms, for example, and more subtle expectations of formality
In some chambers, particularly around rules of evidence.
Next slide, please, Nicole.
So very briefly, lastly, I'm a hearing mode. So we've observed hearings across the full spectrum, telephone, video, and in-person hearings, as well as hybrid, so are often in person and other participants are online
So telephone hearings seem to present the most challenges, but this depended on the type of case and how many participants there were. And it's also the technology that most people are more familiar with, and not being to see may be preferable for some users
So we're trying to untangle the kind of the user preference and the possible impact on outcomes from our interviews as well as your observations
But when hearing person, often they were held in court buildings, particularly magistrates courts, which can add to a sense of formality or that people were on trial having to use the same waiting rooms, for example, as people use in the magistrates courts
different hearing rooms, panel members often had to work quite hard to create a set of tribunal style user-focused hearing in what is explicitly a court space
So there are some of our thoughts so far, but I'm really looking forward to hearing about the panel and Miss experiences here today and any thoughts they have on what we've been seeing so far as part of this work, and anyone in the audience, too, if anyone has any experiences or comments to share in the Q&A or follow up after the session.
That sucks.
Thank you very much, Jo. And that leads very nicely into a conversation that I wanted to have around hearings in a post-COVID world. I think I've certainly noticed quite a difference. Obviously, we have a lot of hearings now that are either telephone hearings or video hearings and actually the panel's experience of how that differs and how effective hearings can be when they're done remotely. Noel and Fareed, if I go to you, or no, you've got your hand up, so I'll go to you first.
In terms of your experience of yet dealing with remote hearings and how to do that effectively when often people are faced with technology challenges, for example.
Thanks, Millie. I put my hand up quickly only because I do have a fairly strong view on it, which is this, is if as a representative, you have any
sway
persuading your client, as to what mode of hearing to opt for
I would suggest that you try to persuade them to attend a face-to-face hearing for a few reasons and actually I think some of these have been touched on already. One, the technical problems that
Unfortunately, often occur with remote hearings are eliminated if you come face to face. Secondly, I think that the panel
We'll be able to more easily form an impression of your client and how they are if they come to a face-to-face hearing, of course that can be done during a remote hearing, but it's a little harder to do. It's always more challenging
And also, I think that you're much, and I think Alex may have said this, that you're in a much better position to support your client through the hearing if you're there physically in the room with them, and they have that
reassurance from you. So I would… my starting point is please try to get them to come to a face-to-face hearing, if possible. If not, then the order of preference, in my view, is video next, and the worst
possible mode of hearing is telephone. If we have to do it by telephone because that's what someone has opted for
And it is there. The form, the appeal notice does ask appellants to express their mode of hearing, choice, and so if they ask for telephone, the tribunal has to give them a telephone hearing, at least at the outset
And so we have to just get on with it by telephone, but it is
not ideal.
For the obvious reasons, really, you know, if we can see someone that that's so much better. So definitely I would say worst option is telephone. Slightly better is video, but by far the best in terms of, and I realize that
when I say it's the best, I'm talking about from my perspective, it's the best. From your client's perspective, actually, attending a face-to-face hearing might be incredibly difficult and challenging, and just not workable. And I appreciate that, but
And so there will be times where it really has to be remote, but where possible, if they can… I don't know, prepare themselves or psych themselves up, or put things in place that might assist
it would be preferable if they come face-to-face, and of course they can bring someone with them. So, you know, in addition to the representative, they can bring a family member or friend for moral support
I think
Probably that's it.
From Italy
I would, yeah, I would agree with that, Noel. And I think it's worth also mentioning that HMCTS is doing a lot of work at the moment to make sure that accessibility is front and center of the venues as well. I know certainly not where we sit, they've done a lot of work to make it more accessible. They've got changing places, bathrooms now, which is amazing. They're looking at
putting more automated doors into really ensuring that physical accessibility is front and center of these venues. But also, I think actually having that in-person interaction with the appellant can be really helpful, because I don't know about you, but I often find that the appellants often use these
hearings as almost therapy sessions, and you do get much more out of them when you can build that in-person rapport, so I generally find it a much more effective hearing as well. Fareed, is there anything you wanted to add from your perspective?
So in Hesk, nearly all our hearings are online by default, so we don't have our own hearing centers and we can manage our list if we didn't list to video. And I think certainly in special educational needs and disability cases that works for our users. So if you're the parent of a disabled child, it's a bit of a no-brainer really, isn't it? It's going to be much easier for you to participate from home by video
Similarly, school professionals and NHS professionals, much easier for them in terms of managing their other workload and coming and giving evidence. So it works for them, and we need the video hearings in order to get through our caseload as a tribunal
Personally, I much prefer doing the face-to-face ones and when I do my 30 days year in the family course, I quite like having the opportunity. So in SEND, we would normally only offer a face-to-face hearing if somebody had a need, neurodiversity or some other sorts of needs. We do
BSL hearings all the time by video. We have a couple of deaf panel members, and we have BSL interpreters who we can use, so normally it's that somebody's asked for one and they need it. So I do prefer face-to-face because of the eye contact, the nuance. I would say if you are advocating online, which you will be in HESC
appeals for the most part. You just need to be really mindful of looking for cues, because I, as a judge, can't make eye contact with you. You probably can't see if I'm typing or not, because you haven't got the full view, so you can't really see if I've drifted away and you've gone off onto some
tangent that isn't that relevant. So really, look for cues, definitely don't interrupt. The judge needs to be a lot more structured in online hearings to make it work, and obviously it's a lot more tiring, so I think just be really mindful of how you're behaving and the accessibility for everyone else if you're online.
Great, thank you. I'm very conscious of time, so I'm going to jump straight into our next topic, which came out through several questions in advance around the use of AI. Now, I think the topic of AI is obviously twofold. On the one side, it's how tribunals and judges and
Expert members are using AI in preparation for hearings, but also how appellants are using it when they themselves are preparing for their hearings. So, Fareed, if I come to you first in terms of how tribunal judges are using AI, whether you think it's effective
How you mitigate the risks associated with AI. Do you have any comments on that?
Yeah, but just a couple of points I wanted to make really quickly, which is as tribunal judges, we are only allowed to use the version of Microsoft Copilot that comes with our judicial software and you need to be really mindful with sensitive information about children
That you're not using some of the free AI models, which then feed back the information to the AI provider. So anything you use, if you're going to put in sensitive personal information, you need to be really careful about the model that you're using. So just to start with that
As judges, there's definitely from the senior judiciary, a big steer towards using it, so the senior president of tribunal came to talk to our salaried conference, and he was talking about his use of it, and says he treats it like a judicial assistant. And similarly, I think the master of the roles has just given a speech April 26th about the use of AI, which is worth a look about. And he certainly saw that as a way of which we would manage the workload. So that's the direction of travel
I know some of my colleagues use a lot more than me. The best use, I think, is to sift through information. So you always need to read the underlying documents and that the guidance is really clear on that, but I've found, say you have an enormous bundle
You can ask AI to go through that and make a summary of the issues or a discussion prompt for the panel. I find it really misses things, so it's good on pleadings, but you give it a school attendance record, it has no idea what that's supposed to show. It's also really rubbish at law if you give it conflicting cases and say
What are the principles? It doesn't have any concept of that. So very limited as it is at the now. My main use for it is just a second check with large volumes of information. I know colleagues do use it a lot more than me for assessing whether a case is ready to be heard. Some colleagues use it as a start for writing. I would never use it that way. For me, writing up reasons is part of
thinking process, and I very much want to take control, because I am the decision maker.
Great. And Jo, I don't know if AI came up in any of your research in terms of the way that appellants are using it perhaps as an enabler. I mean, I've certainly noticed it that people are using AI more and more, and there are pros and cons to that. Did it come out at all in some of the research you've been undertaking?
There has to some degree, and particularly with interviewees in the same jurisdiction, as you say, more and more submissions, particularly made by person using AI about sometimes taking the time taken to sort of sift through the reams of AI generated content is difficult
And certainly sort of directly related to legal aid visits, as you said, pros and cons in terms of it can be empowering and certainly can help people play a role in public legal education and raising legal consciousness. But at the same time
doesn't quite address the legal age as a problem and can, I think from interviews at least people have been saying, can
So ramp up people's expectations of what might be possible in a tribunal hearing, or what the grounds of the submissions that they're making.
And the importance of a rep in terms of managing those expectations sometimes can be helpful. So pros and cons here
Absolutely. Noel, is there anything you wanted to add either on the greater use of AI in terms of is that a reflection of current unmet advice needs or more broadly, how you found dealing with hearings when appellants do submit AI written submissions?
So, yeah, I kind of agree with everything that's been said so far. My only… the only other thing that I would say is that I have a lot of sympathy with appellants who are unrepresented, in what can feel like quite overwhelming and intimidating proceedings, even though
how best not to be intimidating, and I think we do a good job of that, but that doesn't stop someone from feeling a certain way, because they've yet to come and experience that actually it's not this really scary thing that they've built up in their mind. And so, in that context, I, you know, someone who's unrepresented
will reach out and use all resources that are available to them to try to help themselves. And now we have AI. It stands to reason that appendix will use AI to try to
prepare for their appeal. The difficulty that I have with it is that you can often tell very quickly when a written document or submission has been prepared by a litigant in person using AI
in a disability benefit appeal. And again, sometimes we get these extremely long 20, 25 page submissions, rehearsing a whole lot of stuff that we already know, and there isn't at all specific
to that particular appellant's appeal, their health conditions, and how they're affected by their health conditions and the functional limitations. So, sometimes it's… I find it quite frustrating and it would almost be better if we didn't have the AI submission just come to the tribunal, talk to us, let us ask questions
You tell us what you want to say, and we'll make a decision. And I think that sometimes I just wish we didn't have the AI 40 pages, which we have to read because it's in the bundle. We can't ignore it. We have to give it some consideration, but often that has just made our life a little bit more
Yeah.
harder, and I don't know realistically whether it served the appellant at all, actually. So, but yeah, there's obviously mixed experiences. That's one perspective
And it's early days. Everyone's still getting the hang of AI and there's so many legal AI tools that are coming out now. So I think we could have a much broader conversation that would take at least an hour as we keep trialing and testing new methods. So we have a minute left. We do have a question in the Q&A that I is directed at Farida and Noel, if you can give me a 30-second response to this
It's how do you balance reasonable adjustments requests and the equal treatment benchbook provision requests at a time when resources are stretched and emotions can be high. And then the second question asks, can you say a bit more about how litigants in person can be helpful when making submissions?
Should I go first
Go for it.
Okay, on reasonable adjustments, we're a disability tribunal and we do absolutely everything we can to accommodate them. If we can do it and keep to the time and be fair, we will do it. I would say if you want to ask for reasonable adjustments, equal treatment bench book is a great start. There are some things we can't do, we can't guarantee a particular courtroom.
can sometimes, if you need it, have a longer hearing. There are lots of things like questions in advance, so I think on the whole, we do okay on that. Maybe some of our users would disagree, and obviously we have a lot of specialists, people like speech and language therapists, occupational therapists on our tribunal who can help with that
In terms of making submissions, I really agree with what Noel said about AI. Sometimes you've lost somebody's voice if they've gone into AI. So it'd be really good. Quite often we will tell you, tell us about this, and then just answer the question, tell us your experience
And why you're here at the tribunal, and that is going to be the most helpful to us. I always say to litigants in person, if the local authority has gone first, they've said lots of law. You don't need to do that, just tell us what you want us to know when we go away and take our decision
Thank you. I'm very conscious we've gone to 401, so I'm going to pause the conversation there and thank everyone so much for their contributions. I think it's been a really insightful conversation and definitely some core themes coming out of this around what makes successful advocacy. So thank you all for your time. And Nicole, thank you very much. Back to you
Thank you so much, Mili, and thank you so much to all the speakers for a very, very insightful, and we had so many great tips. I just want to mention the session is recorded and will be shared with you today or by tomorrow morning, the latest, so you will receive a recording of this, and if you are joining the session tomorrow, you should receive the joining links. And if you're attending the session
Next week, the journey links will be sent to you tomorrow and on Friday. So thanks again to all the speakers. I hope you enjoy the session yourself
And hope everybody has a nice evening.
Thank you!
Thanks very much.
See you, see you, Emma!