Refusal to postpone hearing - I am absolutely fuming !!

Did your client indicate the school summer holiday dates as unavailable dates? If not, it makes it a little more difficult (though please don’t think I don’t sympathise. I’ve found that persuading TS to postpone hearing these days is well nigh impossible however good the reasons and, of course, your client may have been waiting forever for a hearing date and who can reasonably supply unavailable dates a year hence?)

I should resubmit the request and ask for an urgent decision on it. If they still won’t play ball and the hearing goes ahead in her (and your) absence I would say you’d have good grounds for getting the decision set aside if appropriate.

Postponements are often tricky, aren’t they? If you notified HMCTS of unavailable dates before the hearing is scheduled, this tends to be sufficient. I had one that I hadn’t notified but was on a Saturday (which I don’t work), and was postponed straight forwardly.

If refused, do your best to attend but if not possible, go for the set-aside.

Thanks for your empathy ... my blood pressure has settled for the time being. Probably until I open the next brown A5 letter that drops on my desk.

I have indeed asked for that decision to be looked at again urgently. The client indicated her availability for the 3 months in the initail form that came through but yes that time period has certainly come & gone.

Fingers crossed for some common sense in this world.

you might find this decision useful when asking them to look at a postponement again -

http://www.rightsnet.org.uk/briefcase/summary/misleading-information-in-appeal-leaflet

I would recommend that reps when making such requests cite relevant sections of the Tribunal rules which support the application for postponement. 

I may be preaching to the converted on rightsnet but it may be useful info for some here. 

M

Possible issue at the moment is there is a danger of losing venues to other jurisdictions when listings are so low so obviously there is pressure to go ahead when a listing is put in place. If we lost central Manchester for example, would your appellant and rep. be travelling further? There will also be a shortage of members during the Summer period so if people are pulled in for specific days and then find a whole session pulled then there’s a cost to that.

I struggle with cases like this tbh. On the one hand you would absolutely see the perspective of the appellant and their parent. Why put someone through stress when it could be avoided? A blanket refusal to postpone is rarely helpful and I do think there’s currently scope for TS to easily follow up such requests with letters or phone calls before making such decisions. They are comfortably resourced to do so at present. Maybe not forever but certainly at present. One call to clarify the details and provide understanding on both sides could make a world of difference.

On the other hand there’s nothing in law that allows the appellant to avoid all stress at all times and it’s the claimant the tribunal will want to see not the parent. Such cases, once in front of a tribunal, tend to be fairly straight forward when the tribunal see the behaviour and less so when they do not and have to rely on a parent/carer who, whether we like it or not, may struggle to separate the emotional from the factual. Is the parent really saying they go absolutely nowhere unfamiliar with the appellent for fear of the consequences or are they saying that this is a situation they felt they could have some control over by turning up solo and now they no longer feel that and are angry because they know what’s coming?

I recently had a case where someone said they couldn’t travel for a WCA as it would be too stressful and disturbing. Their fear of the impact of the WCA and the stress and disturbance of the journey led them to “couldn’t”. In reality, the truth was that they didn’t want to because they knew the impact it would have on them. I sympathised as someone who has just worked 6 months with a trapped nerve and has no choice but to use public transport. I dread every bus journey; every pot hole; speed bump etc. However, there is a difference between “couldn’t” and “didn’t want to”. There may be absolutely medically sound reasons for the latter but they’re not the same and we need to be clear on this when requesting postponements.

No behavioural disturbance will be pleasant for the appellant or their parent but are they avoiding every other circumstance where such things might arise? It’s a tough call and by no means as straightforward as it looks in terms of good v evil.

The other side of this particular coin is that I once worked with a colleague who was distressed to note that their appellant, who had made great play of what a stressful experience their tribunal day out would be for them, had rolled up to the venue happy as larry and not at all showing the symptoms which would have otherwise made an award obvious. The solution was to leave them in the waiting room alone whilst a long loo break was taken and then tell them that reps. had to sit apart from appellants in the waiting area. Stress levels “normalised”. Tribunal won. It’s not a recommended approach but… 

Mike Hughes - 05 August 2014 10:10 AM

“...it’s the claimant the tribunal will want to see not the parent.”

Mmm, not sure about that in a case like this.

See the attached ‘Practice Direction for First Tier and Upper Tribunal child, vulnerable adults and sensitive witnesses’.

Paragraph 4 from the Direction: “In determining whether the welfare of the child, vulnerable adult or sensitive witness would be prejudiced [by giving evidence] it may be appropriate for the Tribunal to invite submissions from interested persons, such as a child’s parents.”

Not sure of the age of Sunil’s client but she attends a special needs school and according to Sunil “her condition means that it is very difficult for her to cope with changes in environment or people.”

Although the direction deals with children actually giving evidence, it could be strongly argued here that even attending the hearing just to listen to others giving evidence about her would be detrimental too, given her obvious vulnerability. Para 4 of the Direction clearly applies here in my view.

A judge deciding whether to postpone or adjourn will probably be asking themselves if the parent could arrange childcare during the morning or afternoon of the hearing so that the parent could attend.

Like others, I would suggest making a further postponement request highlighting this Direction, and confirming that no alternative childcare is possible (assuming that’s the case).

Chucking in some quotes from R(DLA)/3/06 as well (a really useful decision for child cases generally) won’t hurt:

“54. The concerns about a child giving evidence before a tribunal are at least two-fold. First, there is a legitimate concern about the welfare of the child. Giving evidence is a stressful event for anyone, but particularly a child. To compound this, a DLA appeal is concerned with the extent of a claimant’s care and mobility needs, so that the evidence will inevitably deal with the demands made by the child on those by whom care and supervision is provided…”

“55.    A second (although related) concern is that the evidence of a child taken orally in a tribunal may not be reliable, if only because of the stress of the event. In particular, the behaviour of the child in the abnormal environment of the tribunal setting is unlikely to provide a reliable indication of the child’s behaviour on other occasions, and the value of the child’s evidence is likely to be further diminished if the tribunal members do not have experience or training in facilitating children’s evidence.”

Reading Sunil’s first post again and realised this might not be about a child case at all. The parent could be the claimant/appellant. The first sentence is a bit ambiguous to be honest. Apols if I’ve got the wrong end of the stick here.

Good post, and I’m not about to disagree with regard to the practice directive. Important to remember though that it offers guidance and few definitions.

My experience is that it’s more breached than observed, not least because TS don’t make enquiries about child care and thus parents do turn up with the child in hand as they’ve little choice.

Once there, few tribunals turn down the opportunity to see issues first hand. I’ve found tribunals don’t necessarily feel the need to ask a child to give evidence. I’ve seen it done (and actually done brilliantly to be fair) but observation is often more than sufficient and the norm. It’s also often (but not always, obviously) the case that the child will lack any understanding that they’re the subject of the conversation and so little distress is caused beyond the aforementioned disturbance to routine with whatever consequences that has.

Renewing the application in the terms you describe is certainly an option but, again, you’re having to make the case that a tribunal is somehow more of an issue behaviour wise and less important than medical appointments with unfamiliar professionals in new places. If the child had a medical issue which involved a non-emergency but nevertheless non-routine appointment is the parent saying the child could not attend and they should just talk to the parents? How is a tribunal different? Income and health are surely of equal import?

Please understand this is not an argument I would automatically put forward. I prefer to take each case on its merits. I have argued in some cases that a childs attendance was inappropriate. I have more often argued the contrary. What I am saying here is that in order to secure a postponement a case needs to be made that

- the directive has been disregarded (yet there’s no evidence the child will be asked to give evidence).
- attendance at the tribunal is less important but more damaging than other non-routine appointments (a high bar to jump IMO).
- a direction will need to be issued for a clerk to arrange a date and time all parties agree to avoid further delay.
- the need to postpone outweighs the need to keep sessions/venues running etc. as per my previous post.
- no other rep. from the same organisation is available and why not.

Taken together I would personally go ahead in this instance. Not always, but on the facts as known. Others would disagree. Such is life. Would be interested to know the outcome. I suspect no postponement will happen.

Mack67 - 06 August 2014 01:23 PM

Reading Sunil’s first post again and realised this might not be about a child case at all. The parent could be the claimant/appellant. The first sentence is a bit ambiguous to be honest. Apols if I’ve got the wrong end of the stick here.

Thanks for all the advice.

Mack & Mike ... it is an appeal in regards to an 11 year olds entitlement to the high rate of the mobility element of DLA. I am sorry that my original post was unclear.

It would be totally inappropriate for the child to attend as she would struggle to cope. There is even evidence on the appeal papers from the school that the young lady can not cope with unfamiliar staff being in the classroom at school.

A further request has gone in and I am awaiting the outcome.

Don’t apologise Sunil. It’s a delicate balancing act posting about existing clients.

I suppose it comes down to what “cope” means in this context.

Would be interested to know the outcome.

Me too. Do keep us updated Sunil.

I can remember a case where we did take the child to the hearing (partly due to a lack of avaiable childcare and partly to demonstrate what the child’s behaviour was like). The Judge was quite grumpy about it (especially when the child in question emptied the water jug on the floor).

1964 - 07 August 2014 08:31 AM

Me too. Do keep us updated Sunil.

I can remember a case where we did take the child to the hearing (partly due to a lack of avaiable childcare and partly to demonstrate what the child’s behaviour was like). The Judge was quite grumpy about it (especially when the child in question emptied the water jug on the floor).

Did you win? I will be profoundly disappointed and discredited if you now say no.

Many years ago I used to represent in North Wales and Chester. Some may remember the Ffordd Las Community Centre in Rhyl. Two large rooms; some toilets and a small shared waiting area. Room number 1 was the kids club every Wednesday I think. Room number 2 was tribunals. As venues go it could only be beaten by the public toilets in Abergele, which had been converted to a CAB :)

Both rooms had the North Wales coastal railway lines outside the window. Room 2 was also regularly interrupted by the contents of room 1 chasing each other into our room and around the table hotly pursued by various parents and child minders. The clerk regularly had to manage navigating appellants in and out through various toys. Tribunals continued regardless. Handbrake turns

There is disruption and “disruption” :)

There was one great day where a bunch of three year olds peeped in and then decided to quietly enter in single file and sit, with cuddly toys in hand, at the back of the room to listen to my SDP case. The presenting officer wanted them removed. The chair reminded him it was a public hearing and that they were a damn sight better behaved than many POs!

This could explain why I’m more sympathetic to the idea of kids in tribunals than many :)

This was also the venue at which, memorably, the chairs glass eye fell out and quietly rolled across the table toward me in the middle of a hearing coming to rest facing me. I carried on and quietly turned it around to look back at the tribunal before rolling it back towards the clerk when the opportunity arose.

Mike Hughes - 07 August 2014 09:47 AM

1964 - 07 August 2014 08:31 AM

Me too. Do keep us updated Sunil.

I can remember a case where we did take the child to the hearing (partly due to a lack of avaiable childcare and partly to demonstrate what the child’s behaviour was like). The Judge was quite grumpy about it (especially when the child in question emptied the water jug on the floor).

Did you win? I will be profoundly disappointed and discredited if you now say no.

Many years ago I used to represent in North Wales and Chester. Some may remember the Ffordd Las Community Centre in Rhyl. Two large rooms; some toilets and a small shared waiting area. Room number 1 was the kids club every Wednesday I think. Room number 2 was tribunals. As venues go it could only be beaten by the public toilets in Abergele, which had been converted to a CAB :)

Both rooms had the North Wales coastal railway lines outside the window. Room 2 was also regularly interrupted by the contents of room 1 chasing each other into our room and around the table hotly pursued by various parents and child minders. The clerk regularly had to manage navigating appellants in and out through various toys. Tribunals continued regardless. Handbrake turns

There is disruption and “disruption” :)

There was one great day where a bunch of three year olds peeped in and then decided to quietly enter in single file and sit, with cuddly toys in hand, at the back of the room to listen to my SDP case. The presenting officer wanted them removed. The chair reminded him it was a public hearing and that they were a damn sight better behaved than many POs!

This could explain why I’m more sympathetic to the idea of kids in tribunals than many :)

This was also the venue at which, memorably, the chairs glass eye fell out and quietly rolled across the table toward me in the middle of a hearing coming to rest facing me. I carried on and quietly turned it around to look back at the tribunal before rolling it back towards the clerk when the opportunity arose.

 

Wonderful! I love the glass eye story and the bunch of three year olds story is priceless…

And yes, we did win. I think the water jug incident was the icing on the cake as it were. Plus the tribunal was probably anxious to get shot of us before said child succeeded in completely trashing the venue.

Just to share the good news that the hearing has been postponed to another date!!

Many thanks for your support & advice. Have a good weekend all.