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Representative’s duty to request postponement of appeal in writing?
I took on a last minute request to accompany a client to an appeal in the capacity of representative. The appeal hearing was adjourned because the judge wanted to get additional medical evidence due to concerns about risk to client’s mental health of continuing with the hearing. We were given a new date, which I could not attend. My client contacted HMCTS to request a postponement to allow me to attend with him. The person he spoke to told him a new date would be sent out in a letter.
However, the request was refused in a letter dated one day before the hearing in a letter which arrived on the day of the hearing refusing a postponement on grounds that the postponement request should have come from myself, not from the client, that I was under ‘a legal duty to inform the tribunal I was not going to attend and give a reason why’. I cannot find anything in the tribunal procedure regulations which supports this. Am I missing something? Thanks
It’s good form to do things yourself if you’re aware that you have been appointed as representative, particularly if it’s in a professional capacity.
https://www.gov.uk/government/publications/social-entitlement-chamber-tribunal-procedure-rules
edit: CPAG advice
http://www.cpag.org.uk/content/guide-appeal-representatives
[ Edited: 20 Dec 2018 at 02:05 pm by John Birks ]
However, the request was refused in a letter dated one day before the hearing in a letter which arrived on the day of the hearing refusing a postponement on grounds that the postponement request should have come from myself, not from the client, that I was under ‘a legal duty to inform the tribunal I was not going to attend and give a reason why’. I cannot find anything in the tribunal procedure regulations which supports this. Am I missing something?
Rule 6 of the Tribunal Procedure Rules governs how a party should make requests for direction and specifically Rule 6(2) and (3) states:
(2) An application for a direction may be made-
(a) by sending or delivering a written application to the Tribunal; or
(b) orally during the course of the hearing.(3) An application for a direction must include the reason for making that application.
http://www.legislation.gov.uk/uksi/2008/2685/article/6
So I would say they are correct to say that such a request would need to be in writing and reasons must be given with that request but I am not aware of anything that says that you as Rep have to make the request yourself rather than it being your client (and I suppose one could argue that that goes against the overriding objective of the Tribunal in particular relating to flexibility in procedure).
That being said for something like a postponement request I’d always handle that myself rather than allow a client to do it. I even handle the requests when it’s the client who cannot attend rather than me.
It sounds like the client has had an overly helpful person on the phone when they rang HMCTS and they’ve tried to do something that isn’t actually within their power. Whenever I’ve rang they’ve always been quick to point out that they cannot deal with direction requests and they must be made in writing or on the day.
However, the request was refused in a letter dated one day before the hearing in a letter which arrived on the day of the hearing refusing a postponement on grounds that the postponement request should have come from myself, not from the client, that I was under ‘a legal duty to inform the tribunal I was not going to attend and give a reason why’. I cannot find anything in the tribunal procedure regulations which supports this. Am I missing something?
Rule 6 of the Tribunal Procedure Rules governs how a party should make requests for direction and specifically Rule 6(2) and (3) states:
(2) An application for a direction may be made-
(a) by sending or delivering a written application to the Tribunal; or
(b) orally during the course of the hearing.(3) An application for a direction must include the reason for making that application.
http://www.legislation.gov.uk/uksi/2008/2685/article/6
So I would say they are correct to say that such a request would need to be in writing and reasons must be given with that request but I am not aware of anything that says that you as Rep have to make the request yourself rather than it being your client (and I suppose one could argue that that goes against the overriding objective of the Tribunal in particular relating to flexibility in procedure).
That being said for something like a postponement request I’d always handle that myself rather than allow a client to do it. I even handle the requests when it’s the client who cannot attend rather than me.
It sounds like the client has had an overly helpful person on the phone when they rang HMCTS and they’ve tried to do something that isn’t actually within their power. Whenever I’ve rang they’ve always been quick to point out that they cannot deal with direction requests and they must be made in writing or on the day.
So mess the tribunal around and burn up costs by skipping the Postponement and Adjournment and then rely on an application for Directions?
That’ll make you popular.
So mess the tribunal around and burn up costs by skipping the Postponement and Adjournment and then rely on an application for Directions?
That’ll make you popular.
I am presumably confusing myself (sorry!), but if it’s not under Rule 6 which rule is applicable to making a request for a postponement? Or is there not one and its just custom and practice?
My own practice, if a postponement is required, is to write as early as possible with the request and reasons for it which is an approach that has always worked. So I don’t see how that could constitute messing anyone around?
It is Rule 6: I usually find that a notice confirming postponement has a heading including the word “Direction”.
There is nothing to stop the Tribunal from giving a direction on its own initiative, even if the application didn’t comply with Rule 6; and the Tribunal can waive any rule, including Rule 6(2) and (3). If the hearing went ahead and ended badly, this might provide you with a ground for appeal: having been made aware of the rep’s non-availability, the Tribunal should have considered whether to direct a postponement on its own initiative despite not having a Rule 6 compliant application before it. Or should have considered waiving the requirement for a written application.
It’s basic responsibility then rules 11, 29, 2, 6, 5 then 6.
On the known info the rep was nominated under 11(7) - the rep assumes the same powers as the appellant.
A hearing was notified - 29
The rep failed in the DUTY to co-operate with the tribunal as they MUST 2(4) by leaving the request (6) to abort the hearing to the appellant (5) to (presumably) simply say ‘the rep cannot attend on that day.’
Was availability notified to the tribunal? Was anyone else able to go?
Then at the hearing a direction (6) is requested to abandon the proceedings.
If you’re going to act as a professional rep it does you absolutely no harm to act professionally.
It isn’t just about the case you have on that day but the ones that follow after.
What he said.