Hi guys, just looking for thoughts on the following situation-

Client came to see me following an unsuccesful paper heaing of his ESA appeal. This was the first time we had seen client. Client was unhappy the appeal had gone ahead in his absence as he reported he had asked to attend the hearing, so I advised we would need to obtain a copy of the enquiry form first to establish exactly what had been requested.

I have finally received a copy (requested 4th March!) and Question 2, asking whether client wants to attend or not, had been left uncompleted, so client has not chosen yes or no. So TAS have just gone ahead with the paper hearing which I can understand really. But is there any way client could get the appeal "back in"? He clearly didn't indicate he wanted to attend the hearing, but thought I'd ask the question before I contact client again.

And ps I have been reading the thread about the Brum TAS ASU and it completely echos all my recent experiences. Have had all sorts of trouble trying to obtain this enquiry form and had actually given up until it appeared out of the blue today. Also recently spent a week trying to reschedule an ESA appeal for a client with learning difficulties who only came to see us a few days before appeal date. Whole thing was a nightmare, I sent numerous fax copies of the request letter (too late to post it) which I was told were never received, and that was when I was actually able to get to speak to somebody on the helpline. Ended up waiting on the helpline for 25mins to try and get someone to answer after my last attempt to sned the fax and check it was received. In the end I had to advise the client to attend the appeal alone, as we hadn't been able to reschedule and it was better that than it going ahead in his absence. Anyway, client lost and I have now requested a new hearing but again have heard nothing. Really frustrating as staff at the Brum TAS were always really efficient and helpful. Grrr...

hi

i think it might be worth asking for the decision of the tribunal to be set aside under rule 37 of the tribunal rules - you would have to show that it was in the interests of justice and that, in this case, there had been a procedural irregularity. if you think the client would have done better at an oral hearing you could argue it was in the interests of justice and the procedural irregularity would be that it wasn't clear what type of hearing he wanted and so the tribunals service should have enquired further, especially since the overriding objective of the tribunal rules, set out in rule 2, is to deal with cases 'fairly and justly'.

not exactly the same but similar - see CDLA/2818/2009 where judge says the tribunal wrong to refuse to set decision aside made in paper hearing where claimant had actually said didn't want oral hearing (circs included that cl had mental health probs).

cheers ros

Have just checked out the decision - thanks v.much Ros.

Thu 10-Jun-10 03:54 PM by ros.white

edited to shorten link -

And there’s also this:

CH/2873/2009