I am repping a chap who has just been recalled to prison for breaching his licence and is now on remand. He went back to prison on 26/12/09
In the meantime his long-standing ESA appeal has finally been listed for April. He failed the WCA back in May 09 so the appeal is for a period of time when he was out of prison.
Is it reasonable to request an appeal be postponed as he can't attend? The problem is because he is on remand there is no clear release date for him. Can an appeal even be heard if the appellant is in prison, albeit on remand?

Wed 17-Mar-10 09:50 AM by past caring 3

I suppose there are a number of options;

1) Hearing goes ahead without appellant but with you as rep. - as long as client agrees to this, there shouldn't be any problem with the tribunal agreeing, though I'd inform TS in advance so as to ensure the hearing didn't end up being adjourned on the day. Whether this is a good option for your client will depend upon how good the medical evidence is and whether you think the tribunal need to hear your client's oral evidence to swing it.

2) Postponement - but whether TS will agree to this may depend upon whether your client has any prospects of being released in the near future.

3) Paper hearing - but I can't see how this would be a better option than 1).

4) Domiciliary hearing - nothing in the rules to say that the appellant has to be disabled for such a hearing to be agreed and where domiciliary hearings are arranged TS usually prefers these to be in premises other than the appellant's home (I've had them in the advice centre's offices before). Domiciliary hearings are agreed because of an appellant's fundamental right to a fair hearing (i.e. to attend and give evidence) so I see no reason why the hearing couldn't be held in the prison, so long as suitable arrangements can be made. What about the possibility of your client attending via video link?

I have had such circumstances in the past and the Tribunal Service agreed to postpone the appeal until the client had been discharged from prison

I have been involved in such a case where the prison was able to arrange day transfer to another institution nearby that had facilities for video link to the Tribunal venue (not all Tribunal venues have that facility either). The (very experienced) Tribunal clerk had taken the initiative to investigate it with her office following a query from the Judge before the original hearing, leading to an adjournment.

I have represented in a couple of appeals which have taken place in prison. If you think that this is the best advice you should be giving your claimant, write to the TS arguing that this is the case, and why other options will not lead to them getting a fair hearing.

we had a case where it was done by video link but only glasgow had the facilities to do it.

Thanks for all the answers, looks like I have plenty of options after all!