Postponement request issue - appellant elected for oral hearing and judge decide it can be heard on paper?
I have a client who has a rare condition that affects him in a unique way, and if he doesn’t take care to perform day to day activities slowly and rest frequently, he is put at risk of a bleed in his brain that has a 4% chance of permanent disability or death - despite explaining this in detail at each stage of his PIP claim and MR, it has not been understood by DWP and he has been awarded 0 points.
He has elected to have an oral hearing because (like with his ESA appeal) he really feels that he must attend in order to give oral evidence and I agree with him. Despite telling the Tribunal service that he could not attend on a certain date, they have booked his hearing for that date anyway.
I have asked that they honour his request for not that day and also I was under the impression that the tribunal is under a duty to hold an oral hearing unless both parties and the tribunal agree that the matter may be decided without an oral hearing, under rule 32(1) of the Tribunal Procedure (First Tier Tribunal (General regulatory Chamber) Rules 2009.
Despite putting this request in writing the judge has decided that the hearing should go ahead on the papers and ‘if any further evince is requested they can adjourn the hearing.’ Is this correct?
a client of mine was rung up by HMCTS on the day of the hearing and told not to come because the judge had decided in his favour on the papers
There’s a difference between a “paper hearing” (strictly, a decision without a hearing) and a hearing in the absence of the parties. A decision cannot be made without a hearing unless everyone agrees, however the Tribunal in your case isn’t planning on making a decision without a hearing - its planning on holding a hearing at an inconvenient time. It can hold a hearing in the absence of a party if it is satisfied the party was notified of the hearing and considers that it is in the interests of justice to proceed.
Given that, by the sounds of it, your client has made the Tribunal aware at an early stage of a specific date that he cannot attend and the Tribunal has gone and listed on that date anyway, you seem to have a strong argument for a postponement, an adjournment or a set aside if they decide against your client. I am wondering if the directions Judge thinks that there’s a good chance that the Tribunal will simply allow the appeal without needing to speak to him - as with Sally’s client.
I would just be looking to set out in written reps the reasons why an adjournment might be needed, let the hearing go ahead and if they do decide against your client, you can ask for a set aside