Refusal to set aside a decision when client could not attend hearing due to hospitalisation….

I’m wondering what are the next steps when a tribunal has refused to set aside a decision…..

I have been instructed by a client earlier this year in relation to a housing benefit overpayment issue which I am taking on, on a pro bono basis.

This case has been the subject of numerous adjournments due to a variety of issues. We have only assisted them in relation to an adjournment request when there have been good reasons for doing so.

At the last hearing which was adjourned, the Judge made directions for them to provide a submission, however, we were unable to comply with this and duly informed them of the same as our client had been hospitalised.

He then allowed this request but directed that they must attend the next hearing and that any future adjournment request would be unlikely to be granted.

We wrote to the Tribunal to advise that our client was still in hospital and that we had no way of taking instructions. We informed the Tribunal of the same and that our client was actually still admitted in hospital with no discharge date. However, the Tribunal refused the adjournment request and went ahead on the day of the hearing and dismissed our client’s appeal.

We then assisted our client in a request to set aside the decision based on the grounds that she was physically unable to attend the hearing due to being hospitalised and that it was also in the interest of justice to do so. We have since had the request refused on the grounds that she has had ample opportunity to provide a response.

I am aware that the appropriate ground would be a JR - but our client is not in a position to fund the necessary fees…..

I have looked at CPAG and can see that there is an opportunity to appeal to UT but looking at UT rules, I cannot see any grounds to do this…

I have now received documents that would support clients appeal.

I’d be grateful for any views on this if at all possible…..

Hi

A starting point would be the applicability of Tribunal Rules 2008 and finding any Rules that may apply - A number of subrules from Rule 2 (overriding objective) would seem to have application in this instance.

You don’t need to look at a JR yet, see p.1335 WBH 2014/15 which gives details of lodging application for leave to appeal directly with Upper Tribunal.

The fact that your client appears to have good grounds for not attending the appeal (and by extension perhaps, you also for not complying with the Judge’s directions to produce a submission), can be dealt with under the natural justice rules detailed on p.1331 (5th bullet, 3rd point) in that it failed to postpone or adjourn a hearing.

Basically, you’re arguing that rule 37(2)(c) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 apply in that the tribunal should set aside the decision because a party, or the party’s representative, was not present at a hearing related to the proceedings.

Hi Paul, thanks for the guidance, would I need to seek permission from FTT in the first instance before application to UT?? Or can I apply directly?

I would have thought that I would need permission first??

Thanks - am grateful for the comments

Nianne - 27 August 2014 10:35 AM

Hi Paul, thanks for the guidance, would I need to seek permission from FTT in the first instance before application to UT?? Or can I apply directly?

I would have thought that I would need permission first??

Thanks - am grateful for the comments

if you haven’t already asked the FTT for permission to appeal, then you need to do so, if you have and been turned down, then you ask the UT for permission.

in either case, ensure your submissions are written to send with the application.

Yes, what Claire said, sorry, I’d assumed an application for set aside following an SoR had been done. Have a look at p.1333 for the procedure if you’re outside the one month for applying for the SoR, you can still lodge your application with the FtT for leave to appeal regardless.

Paul_Treloar_CPAG - 27 August 2014 10:57 AM

Yes, what Claire said, sorry, I’d assumed an application for set aside following an SoR had been done. Have a look at p.1333 for the procedure if you’re outside the one month for applying for the SoR, you can still lodge your application with the FtT for leave to appeal regardless.

Hi Thanks Claire and Paul.

I put in the request for a set aside and in the alternative if the Tribunal was unable to set aside the decision, then for the SOR to be produced. I will prepare the application for permission to appeal to UT.

Many thanks.

Nianne - 27 August 2014 10:59 AM

Hi Thanks Claire and Paul.

I put in the request for a set aside and in the alternative if the Tribunal was unable to set aside the decision, then for the SOR to be produced. I will prepare the application for permission to appeal to UT.

Many thanks.

Good luck, surprised that if you’ve provided evidence to show your client was hospitalised that they haven’t set aside already, as I’ve certainly found a willingness to agree this in cases I’ve dealt with in the past where client had genuine good cause for not attending a hearing.

However, I have heard (and had similar experience) more recently that postponement/adjournment requests are being turned down on a routine basis (sample reason “client needs to think about where his priorities lie” when he was going to be 700 miles away visiting sick mother at same time as prospective hearing), and I wonder whether this is related to the vast reduction in appeals so that HMCTS are becoming more hardline in their approach?

Nianne - 27 August 2014 09:39 AM

I have now received documents that would support clients appeal.

see rule 37(2) TP(FtT)(SEC) rules. Might be worth a set aside of the set aside decision.

The overriding objective is to expedite proceedings fairly and justly. It seems to me that a hearing without the appellant to give evidence in chief does not comply. It must be in the interests of justice that the appellant attends in a vast majority of cases.
Overriding objective and parties’ obligation to co-operate with the Tribunal
2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly
and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.

See 2c above and

Entitlement to attend a hearing
28. Subject to rule 30(5) (exclusion of a person from a hearing), each party to proceedings is
entitled to attend a hearing.

31. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the
Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.

The step you now need to take is to apply for a statement of reasons for the refusal to set aside and for the decision of the substantive hearing.

Your request for permission to appeal to the UT for both decisions should, in my opinion include the error of law of non compliance with the overriding objective and rule 28.

Rule 31 is clearly applicable to a failure to attend the hearing opposed to an inability to attend a future one.

The first direction was “unlikely to postpone” not “will not postpone”. The refusal to set aside the decision was unreasonable; did not comply with the overriding objective and Tribunal rules 2(c) 28 &31; and was not in the interests of justice. You need to hammer home the facts why the decisions were unfair, unjust and not in the interests of justice. For example, hospitalisation was not in the control of the appellant. It was on the advice of her consultant unless of course she went against this advice and discharged herself. This would endanger her existing poor health and may even threaten her life.

Be quite forensic with your applications. Request set asides for both decisions, failing which grants of permission to appeal to the upper tribunal. I suspect that on review both decisions will be set aside.

I normally don’t have difficulty having postponements and adjournments agreed. It’s best to avoid them because it’s rather inconvenient for HMCTS to reschedule all the time. Sickness and adviser absence appear to be good reasons. If it happens again, you’re in God’s hands, by which I mean whichever judge is passed your request.

I am astounded that this case was not straight forward.

Edmund Shepherd - 29 August 2014 09:31 AM

I normally don’t have difficulty having postponements and adjournments agreed. It’s best to avoid them because it’s rather inconvenient for HMCTS to reschedule all the time. Sickness and adviser absence appear to be good reasons. If it happens again, you’re in God’s hands, by which I mean whichever judge is passed your request.

I am astounded that this case was not straight forward.

Sickness of the appellant as a good reason for postponement I would agree with, but absence of a rep is certainly not anywhere as clear cut, see this recent post on case law about this.

@ Paul

I’m inclined to agree with you. It depends on the circumstances.

For example, I work Monday to Friday. Where a tribunal is scheduled for a Saturday, I can’t attend.

I think there is a significant difference between immediately requesting a postponement on the grounds of the rep’s inability to attend as soon as the notification of the hearing date is received and getting a decision set-aside on the same grounds, or even asking for an adjournment on the day. The latter involves a considerable amount more inconvenience for the tribunals service.

It comes down to whether the hearing is fair or not despite the absence of the representative. In LCW mental health cases, I can envisage it as being more relevant to have someone familiar present who has background knowledge. In a straight forward case of “did you tell DWP of this change or not?” for someone without any health problems, less may turn on the rep’s presence.

So, I agree that it’s not as clear cut. Thanks for the link.