FtT refusal to adjourn

Hi all,

Client requested advice and representation re an ESA Appeal. First contact was on 7th Jan 2013 and a hearing was already listed for 07/02/2013.

Client also has a DLA Appeal outstanding. The DLA appeal concerns a decision to supersede previous award on the basis of the ESA HCP report. 1st supersession decision was actually a revision of original award on the grounds the award was made in ignorance of, or mistake as to the facts and was made effective from date of award. On appeal, DM revised decision in relation to the effective date only, removing the award but effective from the date of the decision, now on the grounds of change of circumstances (claimed improvement).

The DLA appeal was heard by Tribunal on 3/01/13. This was adjourned with directions for copies of medical records, EMP report, to allow client to obtain legal representation, to give leave for client to appeal both decisions and to direct SoS to provide supplimentary submission addressing both decisions and grounds for them.

In both cases, client originally had assistance of local CAB who provided a written submission outling client’s evidence but no medical evidence was secured or provided to support client’s case.

As can be seen, much weight has so far been given to the ESA HCP report so I feel it is imperative to give robust advice and representation at this appeal. To further complicate matters, it appears the bundle of docs have a substantial amount of papers missing.

I wrote requesting postponement stating: 1) Client only just instructed us and we need more time to adequately prepare/secure evidence; 2) DLA appeal hearing adjourned for medical records and therefore is ESA also adjourned, much more evidence can be provided to client’s ESA appeal to rebut HCP opinion/findings (also stated why this is more imperative in this case re: HCP used for DLA supersession) and 3) We do not hold full set of documents. Therefore, in the interests of justice to postpone.

Received half page hand-written rant from Judge stating application refused, still four weeks before hearing, ample time for an experienced adviser to properly prepare, representative could easily secure copy of papers from CAB and if rep cannot attend, Tribunal used to dealing with unrepresented clients. Medical records are appeallant’s responsibility to provide and it is a great expense to the public purse to take a case out of listing once date given. 

Any suggestions?!

Oh for Heaven’s Sake…

I should write back, requesting (as politely as possible) a reconsideration of the decision not to postpone, reitterating the main issues. If no joy I should attend the hearing armed with copies of the relevant letters and request adjournment (which I bet you anything would be agreed). That’ll cost everyone far more than a sensible decision to postpone now.

Incidentally, if previous hearing was adjourned for copies of medical records/EMP report, it would certainly not be the claimant’s responsibilty to obtain them.

:-) Yes, I know! I wonder what to make of the rather dismissive nature of some of his comments regarding the need for representation in any event?

It appears we can’t win, if a case is listed for a hearing within 2 weeks we have previously been told it is too late to take it out of the list because the file has been sent to the venue, now we are told 4 weeks is ample time…Mmm, remind me how long DWP keep hold of the appeal before forwarding to the FtT?!

Too right on all counts.

I should stress that the previous hearing was ajourned in part to allow client to obtain proper representation (so the first tribunal clearly felt it was necessary). The ‘ample time for an experienced advisor to properly prepare’ gets up my nose too. Yeh, right. Overflowing diary, overflowing waiting room, funding cuts resulting in less and less available advisors (we’re down to 2) and a local CAB who almost certainly won’t have a full copy of the bundle either.

It’s very tempting to rant back but I think you’ll have to keep it as measured and objective as possible. Through gritted teeth of course!

Just to update on this issue. I renewed my application to postpone which was roundly refused again!

The hearing was today and I simply could not attend but I did fax the Tribunal venue with submissions and make an application to adjourn. The Judge refused and went ahead in my absence. The decision was not notified to the client today and this is awaited.

I just don’t understand. I do not frivolously request postponements and have often represented with very little time to prepare where the client has mental health issues and has only just sought advice but only where there is a copy of all documents and the client has some medical support available.

What a waste of everyone’s time because if the Tribunal do not find in my client’s favour I have ample evidence to request a set aside under Rule 34. What is the point of all that when the duty Judge at Birmingham could simply have postponed in the first place? (Takes deep breathe)

Think it’s time for home!

I quite agree with you, and would be interested to hear what the outcome is. As you say, ample grounds for a set-aside if decision is negative, but a waste of time and effort (and another period of stress and uncertainty for the poor client).

Do keep us posted.