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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Reasonableness of ESA Tribunal when appellant arrives 17 mins late ! 

Morti
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Welfare rights officer - Ferguslie Park Housing Association, Paisley

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Client is an amputee from knee down and has an ESA appeal scheduled for 2pm. He makes his way by public transport (approx. 12 miles, with some difficulty by bus and train) and arrives at 2.10. He waits for the lift and registers at reception at 2.17 where he is asked to take a seat outside the appropriate room. The tribunal clerk then introduces herself and states he is too late for the tribunal to hear his evidence, and that the tribunal have already (in such a short space of time) made their decision in his absence which they will post out.

The decision arrives next day.

Appeal refused.

Decision notice states “Tribunal placed particular reliance upon the evidence of the HCP report”

Does anyone agree that this seems unreasonable of FtT not to hear his evidence under these circumstances and can anyone offer any advice regarding what reasonable steps could be taken to challenge the decision.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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Paul_Treloar_CPAG
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Advice and Rights Team, Child Poverty Action Group

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Apply for set aside under s.37(c) Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008. I had a client where a tribunal pulled exactly the same stunt, we ended up having to go through a very time-consuming UT appeal, which made some scathing comments about the FtT deciding to go ahead in similar circumstances and who remitted the appeal back to another FtT who allowed my client’s appeal.

Also a good idea to request a written statement of reasons at the same time, in case you need to seek application for leave to appeal to the Upper Tribunal subsequently.

Mike Hughes
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As above. Statement of reasons will need to have specific reference to consideration of the fairness of proceeding in the absence of the appellant. They rarely do so a set aside shouldn’t be too much of an issue. UT if pushed. General experience is, as Paul describes, UT are relentlessly scathing on this specific issue.

One question. Had all gone straightforwardly, what time ought the client to have arrived? I ask all my clients to schedule themselves to arrive 1 hour before the hearing. Allows time for the issues that inevitably arise re: transport and allows me a minimum of 30 minutes to talk through last minute issues and familiarise themselves with the environment and focus on key issues. Also allows me to engage them in irrelevant conversation to talk down their stress levels as far as possible.

Morti
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Thanks to all for your advice ....

In response to Mike’s question about what time should the client have arrived….?

He was advised to arrive no later than 15 mins before hearing was due to be heard.

Mike Hughes
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Morti - 17 December 2014 02:47 PM

Thanks to all for your advice ....

In response to Mike’s question about what time should the client have arrived….?

He was advised to arrive no later than 15 mins before hearing was due to be heard.

Oh! :(

As someone obliged to travel on public transport I’d say that would be a high risk strategy and that the chances of the client being on time were probably less than 50/50 on anything that got them there less than 30 minutes before hand. You calculate which journeys get you to your destination immediately before the time you have to be there and then get the next available journey before that. Worst case scenario is then “time for a coffee” as opposed to the scenario you now face.

Edmund Shepherd
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In my experience, tribunals are unwilling to wait more than 10 minutes for an appellant to arrive. Thankfully, there have been no problems for me so far.

Mike Hughes
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Edmund Shepherd - 17 December 2014 03:21 PM

In my experience, tribunals are unwilling to wait more than 10 minutes for an appellant to arrive. Thankfully, there have been no problems for me so far.

I think that’s an accurate summary. Does depend on whether you have contact with the client though. I had a client stranded on a train once after someone jumped in front of it. As I was able to talk to the client on a mobile the tribunal were understanding; brought the tribunal after it forwards, and, the client went in an hour late.

Dan_Manville
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The Benchbook tells Tribunals to wait 10 minutes for an appellant or 30 if there’s an interpreter booked.

It should be an easy set aside in those circumstances though

Morti
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How long, in your experience, would you typically have to wait for the “set aside” decision ? My concern is that the FtT decision will be winging its way to ESA and the clients next payment will probably not get issued over the festive period…

Dan_Manville
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Well, I asked for a set aside application in very similar circumstances to be expedited at the beginning of November last year and Birmingham ASC said “no probs we’ll stick it in front of the Judge now”. They didn’t tell me that the Judge, AKA UTJ Thomas, was on holiday so it just went into the queue instead.

The appellant in my case was mid serious relapse when he failed to attend the hearing altogether; the set aside was a foregone conclusion as I feel yours should be.

I had a merry dance getting his ESA back into payment and ended up handing a med 3 into JCP on 23rd Dec for payment on 24th… phew!

I did send a long chronology to our Regional Tribunal Judge asking whether the duty Judge, rather than the Ft Judge’s supervising Judge could deal with procedural set asides like this but heard nowt in reply so I don’t know whether they took it on board. You could ask whether, as it’s a procedural set aside, it could be considered as a priority by the duty Judge. Email the set aside application with URGENT in the subject line and cross your fingers

After all your client’s not going to get paid before Xmas otherwise is he?