Urgent advice needed re domicilary hearing

Hi all,

My client has severe Chronic Fatigue Syndrome, that has been getting steadily worse since I have known her.  Many moons ago we requested a domicilary hearing for her DLA appeal, but this was refused depite being supported by her GP.  When I discussed this with her at the time of the refusal she felt that she would try to get to the venue in a taxi, however now the hearing date has come around she feels she simply cannot manage it as the effort of getting dressed and leaving the house (even if she has a car door-to-door) is likely to prove too much for her.  The hearing is tomorrow. 

I can of course request an adjournment but I see little point in this if it simply means she gets another date that she cannot attend for exactly the same reason.  Can they reconsider the request for the domicillary hearing at this stage if I ask for it to be adjourned for them to do so?  Or am I better just to give her reasons for non- attendance and use them as the basis for a set aside request if it doesn’t go her way?

I see no reason why you can’t do both. Requesting the adjournment to arrange domicilary hearing may also assist should the request be refused, hearing goes ahead without client and decision goes against you.

I think it’s going to depend on your assessment of the strength of the case and how necessary your client’s oral evidence is likely to be to the outcome. I had a similar case recently (ESA rather than DLA) where again, the client (who had very severe agoraphobia) was intending to psyche herself up to get to the venue but at the 11th hour realised she just couldn’t manage it (this was following one successful postponment request). In that case the sub had already been circulated and the supporting evidence was very strong so I faxed a letter to TS explaining the difficulty and asking the tribunal to go ahead in her absence. I suggested that if they felt her oral evidence was essential they adjourn and arrange a domicilary hearing (the appeal went ahead and was successful).

If you think her oral evidence will be essential than yes- request an adjournment on this basis (and if they refuse and the appeal is unsuccessful request the SOR in tandem with a set-aside request).

hi -

i can’t see that there’s anything to stop the tribunal adjourning so as to re-consider the domiciliary hearing request.

i think i’d ask for an adjournment on that basis, particularly since request is backed by claimant’s GP, saying it’s in line with tribunal rule 2 ‘overriding objective’ to deal with cases ‘fairly and justly’.

if, at worst, tribunal goes ahead and finds against your client, refusal to adjourn could be grounds to request set aside.

attached link to briefcase summary of CDLA/1962/2009 where claimant wanted to attend but couldn’t (as confirmed by GP) and tribunal found to be in error in not adjourning to consider domiciliary hearing -

http://www.rightsnet.org.uk/briefcase/summary/Duty-to-deal-with-claimants-justified-fear-about-attending-a-tribunal/

oops, other people posted whilst i was replying - so some of what i’ve said overlaps, cheers ros

Because CFS can be subject to fluctuation if you attend tomorrow and say that she is currently unwell the tribunal, even knowing of the previous request for a domiciliary, will, in my view, be likely to adjourn to give her one more opportunity to attend.  A judge would be crazy to proceed in her absence, on these facts, and then allow the tribunal to reach a negative decision as he would be leaving the door wide open for a set aside.  Of course, the judge might decide to hear the case in her absence and then decide not to adjourn if, in its deliberations, the tribunal were minded to make an award.

If the hearing is adjourned, you can renew the application for a domiciliary giving you time to get stronger evidence.  The judge tomorrow would, for caution’s sake, be unlikely to deal with another application for a domiciliary if he was minded to grant the adjournment, knowing that the adjournment would give you time to renew the application.  There is nothing stopping you requesting a domiciliary tomorrow though.  Judges, however, have a tradition of not deciding things they don’t have to and is likely to give a direction that you put the request in writing giving further (and maybe fuller reasons, depending on those given in the original application) or producing further medical advice (unless the existing G.P. letter was powerful enough for the judge to feel he could grant the domiciliary).  On the facts of this case, if I were a judge that’s what I’d be minded to do.

Thanks all.  The evidence is not watertight so I am going to ask them to consider a dom hearing if they don’t feel they can make an award based on the papers - and go for set aside if they insist on deciding today.

Adjourned to allow a further request for a domiciliary hearing.  Thanks for the advice, all.