Suggestions

I have had a client walk in this morning who attended a tribunal on 21/7/14, but rep from local CAB did not turn up - called them and was informed they ‘got their dates mixed up’ . Cl is Foreign National after a lengthy look at paperwork can see that they have degenerative illness which causes occasional blindness. Former employer supplied letter stating she was ‘let go’ due to her ‘episodes’ of blindness, Doctor confirms this as does specialists - Kent & London.

Have not seen statement of reasons nor record of proceedings but have asked for them today, even though they informed me they had sent them out to Cl on 21/7/14. Nine days is a bit of a long time.

What I fail to understand is

1 Why local CAB failed to turn up to represent even though they had the correct date and paperwork from tribunal

2 How the tribunal could say someone was fit for work, even though they have prolonged periods of blindness - Consultants states a ‘few hours each day’

Of course I will look at the paperwork and see if there are grounds for appeal to the UT, but any other suggestions would be most welcome.

I’d be amazed if the client had been provided with the statement and RofP by the 30th when their tribunal was held on the 21st…..it usually takes a month for the request for them to be sent by the judge for typing.

As for the rep not turning up to the hearing….if your client wishes you to you need to write and complain to the agency involved and ask for their reasons…they appear to have already said they got the days mixed up which does seem a poor excuse and one warranting a complaint at least.

You could always request a set aside on the grounds that the rep didn’t turn up and, therefore in the interests of natural justice the decision could be set aside to allow the client to be represented….

Spoke to Sutton and they informed ‘it was sent out on the 21/7/14’  but yes I understand Nicky and as for the set aside, something I hadn’t initially thought of. Thanks.

On a natural justice set aside always good to make an argument why the appeal could have won.

I wonder whether those episodes of blindness might be “involuntary episode[s] of altered consciousness resulting in significantly disrupted… awareness”. It would turn on “awareness”

Worth a punt if it were me!

Would be interesting to see the Tribunal’s consideration of Reg 29. I would imagine daily episodes of intermittent blindness, especially if occurring in the workplace would constitute a pretty substantial risk to the health of the client or of other people.

I’m not sure that set aside grounds on the basis of a representative not turning up are particularly strong from a case law perspective.

CIB/2011/2001, CIB/2012/2001 and CIB/2013/2001 held “6. The claimant’s first ground of appeal is that the tribunal sat without him or his representative being present and before he had submitted all his evidence. I do not accept that the tribunal erred in this respect. The claimant had been refused a hearing at his home but there was no evidence as to why he could not have arranged transport to the hearing venue and there was no explanation for his representative’s non-attendance. Had the claimant attended, or been represented at, the hearing, he could have produced his further evidence then and, in any event, the claimant has not satisfied me that he had compelling further evidence that was not before the tribunal.”

CSIB/848/97 held “9. The claimant had an additional ground of appeal which was to the effect that the tribunal erred in law by virtue of a failure on their part to invite the claimant to seek an adjournment so that she could be represented. In the response to the adjudication officer’s submission the claimant’s representative went on to say:-

I do not consider that there is any substance in this ground of appeal. It is for claimants to determine for themselves whether to seek representation. There is no obligation on a tribunal, giving rise to an error in law if they fail, to offer unrepresented claimants the opportunity of an adjournment to obtain representation.

If the client did request an adjournment at the hearing which was refused however, you might be able to argue that CIB/1009/2004 applies. This concerned a case where the claimant had asked at the hearing for their appeal to be adjourned because their representative was too ill to attend. This request was refused. The Chairman’s view was that the absence of one member of the local welfare rights service should not prevent the hearing from taking place.

The Judge concluded “27. I am satisfied that the tribunal’s decision not to adjourn the case was flawed and that the claimant was not treated fairly. In consequence, the decision of the tribunal on the appeal from the Secretary of State was made in breach of the rules of natural justice and was therefore erroneous in point of law.”

(With thanks to Mark Perlic for his ESA caselaw book)

Have Spoken Cl and they were not offered an adjournment, spoke to Sutton as well who confirm this as well.

Thank you all for your input, much appreciated.