Forum Home → Discussion → Work capability issues and ESA → Thread
Right to advocacy and setting aside ESA tribunal decisions
My client is fighting to have his ESA reinstated. The case has reached first tier tribunal but his case has been adjourned because he did not provide a pivotal medical letter proving that he was unwell at the time of the original hearing.
My client is wanting to know whether he
a. has a statutory or regulatory right to advocacy at the tribunal?
b. can have the decision set aside negating the need to attend a tribunal in the first place on the grounds that his human rights (to be represented) have been infringed? He says he suffers from anxiety and poor mental health
This client is highly articulate and intelligent and the case has run for a long time because he throws in a lot of curve balls like b. above!
Any help would be gratefully received.
Susie
?
anyone can have a rep at tribunal. why would he think he can’t have a rep?
He hasn’t got a right to a representative but he does have a right to appoint one. His human rights would not be infringed if a Tribunal proceeded without a rep.
His right is to a fair hearing and equality of arms; a Tribunal should ensure that, however in an inquisitorial setting where the Sec State is unlikely to be represented either that doesn’t stretch as far as representation.
That, plus where a rep can’t give an appellant’s evidence for them the rep’s role is usually quite limited.
My client is fighting to have his ESA reinstated. The case has reached first tier tribunal but his case has been adjourned because he did not provide a pivotal medical letter proving that he was unwell at the time of the original hearing.
My client is wanting to know whether he
a. has a statutory or regulatory right to advocacy at the tribunal?
b. can have the decision set aside negating the need to attend a tribunal in the first place on the grounds that his human rights (to be represented) have been infringed? He says he suffers from anxiety and poor mental healthThis client is highly articulate and intelligent and the case has run for a long time because he throws in a lot of curve balls like b. above!
Any help would be gratefully received.
Susie
What Claire and Dan have said.
But I’d be interested to know exactly what has gone on in the case so far because I cannot understand why any decision would need to be set aside if the hearing was adjourned. The two things are mutually exclusive…..
Is it that he didn’t attend the first hearing because he was unwell? And is now being asked to provide some evidence of that in order to get a decision that dismissed the appeal set-aside?
If the hearing was actually adjourned because he didn’t attend, then it has been adjourned, end of story - and a new hearing (which he and any rep can attend) will be arranged. It cannot have been adjourned on condition that he provides evidence he was too unwell to attend the hearing. What happens if he doesn’t or can’t provide the evidence? The tribunal then goes on to dismiss the appeal without his participation? In any event, the tribunal rules simply don’t permit this.
And if he is as ‘highly articulate and intelligent’ as you say and aware of his right to appoint a representative and has some understanding of the HRA, why not appoint a rep in the first place?
Sorry, just a little confused as to what the actual position is here with the appeal….
The relevant rules are set out in the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
Rule 2(1)(2) of the TP (FtT) (SEC) Rules should be applied:
Overriding objective and parties’ obligation to co-operate with the Tribunal
2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
I think 2(c) party’s ability to ‘participate’ appears to be most appropriate in this case.
That, plus where a rep can’t give an appellant’s evidence for them the rep’s role is usually quite limited.
But for fullness… sometimes we have a lot to contribute; I am minded to a PIP appeal I did this afternoon where I did nearly as much work as the Tribunal to turn their opinion round after the appellant completely talked down the extent of his limitations.
[ Edited: 9 Jun 2017 at 02:22 pm by Dan_Manville ]This is a mess, what was the first hearing, an appeal or a medical assessment ? if he phones the tribunal service or looks at the web site it is very helpful on how hearings proceed and the right to have a rep. you may be getting side tracked by this and losing sight of whether he has an arguable case for esa at all !
An advocate’s role includes arguing your case when you need them to, and making sure the correct procedures. That’s more or less what a representative does, but does your client want some one to answer the questions for them or attend in their absence on their behalf? or simply do more?
Tribunal issued Practise Direction Child Vulnerable Adult and Sensitive Witness (Tribunal Practise and Procedure LAG page 100 101) spoke on such issues which includes use of phone evidence, video link or appointing someone with appropriate skills to facilitate evidence giving.’ Key being definition of vulnerable.