Who exactly can be a representative?

My partner has recently had her application for ESA rejected and has appealed the decision. In the GL24 leaflet and form it suggests that an appellant can appoint someone to represent them, including at the tribunal. However, it is not made clear whether the represenative has to be a professional.

I did a bit of a web search and came across the Social Security and Child Support (Decisions and Appeals) Regulations 1999. Section 49(8) states

A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled.

As I understand it, this means that, if we deemed it appropriate, I could represent my partner at a tribunal and I would have as much right as she would to respond to questions put to her.

Just wanted to check that the Social Security and Child Support (Decisions and Appeals) Regulations 1999 is the relevant legislation and that I've understood it correctly. If so, there is rather more scope for lay persons to act as representatives than I'd imagined!

Just looked into this further and think I wasn't correct about the relevant piece of legislation.

The relevant piece of legislation appears to be The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. The section dealing with representatives is Section 11 . Section 11(5) states

Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.

So it looks like representatives do have the same rights as appellants at tribunals.

Hi Richie,

You are correct, anyone can represent a claimant at an appeal, they do not have to be a qualified WRO or lawyer, although obviously someone well versed in appeals procedure and lots of successful appeals under their belt would be ideal.

It's a well known fact that poor representation at an oral hearing can do more harm than good for an appellant. Not suggesting in any way that you'll be a poor representative !

The regulations you quote are correct , but your assumption of the role of a representative is mistaken. (see extract from Chapter 53 of 'The Benchbook' below) A copy of The Benchbook can be found in DLA Resources It is slightly out of date, but still applicable.

6. It is the appellant who must give evidence as to the facts in issue, not the representative; the representative is there solely to assist the appellant to put his case by directing the tribunal to any relevant facts or law that he wishes them to consider but he should not be allowed to deflect the tribunal from what will normally be their main task, ie assessing the credibility of the appellant. This task cannot properly be carried out unless the tribunal hear from and question the appellant directly.

7. If the representative starts to go into detail, e.g. on a disability living allowance or incapacity case, as to what the appellant can or cannot do, he should be stopped and told, politely but firmly, that the tribunal expect to hear evidence from the appellant himself rather than from the representative and that it will no doubt expedite matters if the tribunal ask questions directly of the appellant. The representative should also be told that he will have the opportunity of asking questions himself, after the tribunal have finished doing so, to ensure that no relevant matter has been overlooked.

8. Any statements of fact made by the representative are not evidence and can be disregarded unless they relate to matters within his own knowledge. There is nothing to prevent a representative giving evidence if he wishes as long as the evidence relates to matters within his own knowledge; the mere fact that he is a representative does not prevent him also being a witness. The tribunal must then evaluate that evidence in exactly the same way as it does all the other evidence; the fact that the evidence comes from a representative does not mean that it can either be discounted or given any special status. The representative can of course be questioned by the other party and/or the tribunal to test or clarify the evidence he has given, and the record of proceedings should clearly distinguish between evidence and submissions.

9. Representatives may be lawyers, CAB or Welfare Rights advisers or simply friends or relatives of the appellant. Legal aid is not available for representation before tribunals although preliminary advice and assistance can be given under the Community Legal Advice scheme; under this scheme funding for medical or other expert evidence can be obtained in appropriate cases. It is now possible for solicitors and lay representatives to act for appellants on a conditional fee basis.

The Benchbook is the 'bible' for all tribunal members and is written by a Senior District Tribunal Judge. All courts from tribunals, magistrates court to the Court of Appeal are issued with benchbooks.

Hope this clarifies the situation.

Good luck with the appeal.

Jim (quick visit only, due to illness)

Jim

Many thanks for this. Entirely take your point that poor representation can be worse than none. And not certain that me acting as representative would necessarily be the way be go. But at least good to know what ones options are.

And thanks for quote from and link to the Benchbook. Looks really useful and I look forward to persuing.

Thanks again.

Richard

Hi Rich,

Jim sneaked onto the laptop whilst I was at the corner shop, he's supposed to be on bed rest as he's just out of hospital recently !

The Social Security and Child Support (Decisions and Appeals) Regulations 1999 is still the main definitive legislation on Decisions & Appeals. The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 were issued as a Statutory Instrument to modify parts of the 1999 Act, mainly to give more authority to Tribunal Judges (formerly called District or Regional Chairman)

Section 11 doesn't change the role of a representative, it only changes procedural matters as you will find out if you try to speak for your partner if the tribunal addresses questions to her. With Jim's assistance I'm training with a local advice agency to become a tribunal advocacy officer. I sat in on a couple of tribunals recently and the Judge came down like a ton of bricks on a CAB rep who constantly tried to state his client's needs rather than the appellant when questioned.

Regretfully, our ( B & W) copy of 'The Benchbook' was written in 2006 and is the 8th edition. Since then there have been two updates the latest edition 10 was recent, and still contains the chapter on representatives, but it's now Chapter 60. The Benchbook used to be in the public domain, but for reasons unknown it was withdrawn and despite a Freedom of Information Act request from Jim, it was refused, but Jim has access to the most recent and this remains at 60 (6)

6. It is the appellant who must give evidence as to the facts in issue, not the representative; the representative is there solely to assist the appellant to put his case by directing the tribunal to any relevant facts or law that he wishes them to consider but he should not be allowed to deflect the tribunal from what will normally be their main task, i.e. assessing the credibility of the appellant. This task cannot properly be carried out unless the tribunal hear from and question the appellant directly.

This might be of interest also Your Appeal - What Happens Next

Hope this is of help.

Good luck.

Pat

PS. CD if you see this post, I'd be grateful if you could confirm what I've stated.

Pat

Many thanks indeed for such an interesting and detailed response. The more I read, the more I'm convinced that representatation should be left to someone more experienced than I. But all this info is nevertheless really useful.

With best wishes

Richard