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Absence of record of proceedings/evidence from previous hearing - error of law?
A quick one (I hope).
Client unrepresented at ESA appeal hearing - attends, tribunal adjourns for further medical evidence due to ‘significant conflict between appellant’s oral evidence as to her mental health problems and HCP report’.
Fails to attend 2nd hearing. Appeal dismissed.
Applies for leave to appeal, effectively trying to re-argue appeal. Leave, unsurprisingly, refused.
Has now come to us a month or so outside time limit for UT application, but I think I can get by that.
Have got viable arguments that cl should have applied for set-aside, rather than leave as did not receive notice of 2nd hearing and (stronger) that FtT did not properly apply its mind to issue of whether it was just to proceed in the appellant’s absence (SoR pays only lip service to this) particularly given her MHPs and the fact that she did attend first hearing, so clearly did wish to play a full part in the proceedings.
However, it’s also the case that SoR makes no reference to the oral evidence that cl gave at first FtT (and which must have been recorded in original FtT’s record of proceedings). Members of first FtT did not exclude themselves from further involvement, but in the event neither sat on 2nd FtT. Now, as the adjournment notice states specifically that there was a ‘significant conflict between the appellant’s oral evidence and HCP report’ it follows (at least to my mind) that she must have given a significant amount of oral evidence in the first hearing.
Argument would be that as there is no reference to this evidence in SoR, that either 2nd FtT;
- was in error of law in not considering or weighing that evidence, or
- that evidence was not before 2nd FtT and that this is a procedural error sufficient to constitute an error of law (i.e. not a fair hearing) because it negated her opportunity to present her case.
What do people reckon?
[ Edited: 13 Aug 2015 at 12:49 pm by past caring ]A quick one (I hope).
Argument would be that as there is no reference to this evidence in SoR, that either 2nd FtT;
- was in error of law in not considering or weighing that evidence, or
- that evidence was not before 2nd FtT and that this is a procedural error sufficient to constitute an error of law (i.e. not a fair hearing) because it negated her opportunity to present her case.What do people reckon?
that sounds right; the 2nd tribunal should have known about the claimant’s evidence given to the first tribunal and should have taken it into account. the SoS should of course have mentioned the reason for the 2nd tribunal and the 2nd tribunal should have been able to know the reason from it’s papers .....
and that will be so irrespective of your other argument about going ahead without the claimant, particularly given her MH issues and previous participation