Have I missed something or what?

Imagine the scene: First tier ESA appeal that is going along swimmingly when, out of the Blue the Judge asked if I would be seeking the support of Regulation 35 for my client.  I said that I would but only if the members didn’t find a sufficiency of points so as to meet the requisite 15 or above and/or they were also unable to place my client in a Support Group.  Even further out of the blue the response to that was that if that was the case then the appeal would need to adjourned so as to seek a list of jobs that the SoS feels would be appropriate for my client.  But, I said, can’t you hear the case with view to exploring the possibility of finding the points first and then adjourning if they couldn’t.  Then even further out of the blue I was told that this wasn’t possible as the tribunal was not allowed to listen to evidence if it was to adjourn the matter.  But, I said again, this would just put another delay on a case that had already been adjourned for other reasons. 

As I was confident that my client was satisfy both Schedules 2 & 3, I advised her to go ahead with the case without needing the support of Regulation 35.  The judge then said that she would make a note in the record that I, the representative, withdrew any application that Regulation 35 be considered.  I then suggested that the note should read that this was the case because the Judge had made it clear that any potential reliance on Regulation 35 would lead to an adjournment of the case.  There then followed a lengthy, but not too unfriendly exchange of arguments between the Judge and me.  At the end of this discussion I asked if the appeal were to consider the application of Regulation 29 would that too demand an adjournment; the answer was that it would not.

To cut a long story short, the appeal went ahead and the case was allowed with the Support, or as one of my clients referred to it “the Super Group”, being applied. 

Was I wrong in saying that the matter of Regulation 35 could have been considered after evidence had been taken or was it the Judge who was right?  I’m still scratching my head about what went on.

Thank you in advance.

Patrick.

Your Judge clearly hadn’t read IM v SSWP no need to adjourn; if they can perceive any risk from any WRA the appellant should be placed in the SG

Sounds to me Dan like the Judge has seen or heard about IM but hasn’t properly understood the judgement.

Good result all the same Patrick, in getting your client into the Super Group.

I’ve had a similar discussion prior to the hearing when reg 35 was put as an alternative should the descriptors not be met.  The Judge said we will go ahead with the case then if Reg 35 was to be considered an adjournment would be made.

Patrick,

Would this be a female judge of long-standing; cheerful demeanour but an overwhelming sense that the decision was made before you entered the room?

Always worth bearing in mind that despite the recent TUG stating that the North West adjournment rate is below the national average, there are still a proportion who adjourn to create more work…

Mike