Written Statement of Reasons

Hi

We are currently in the process of appealing a FTT decision regarding one of our clients.

We had been asked to be their representative a few days before the appeal (cl was advised to contact a Welfare Rights Advisor). As we normally do, I asked for the hearing to be postponed so that we could fully prepare for appeal as well as allowing us to be registered with HMCTS. The Judge did not grant the postponement and the cl attended the appeal alone and was overwhelmed and unable to give full answers.

Although, the cl partially won the appeal it was decided that we needed to appeal and so I requested a SOR. Reading through the SOR, there is no mention of why our postponement wasn’t granted. Should the Judge have given reasons for not granting the postponement?

Thanks

Adam

The short answer is No. The tribunal does not have to include the reason for refusing a postponement. That is because the right to reasons is a right to have the reasons for the decision ie (in your case) why the tribunal only allowed the appeal in part. The authority for this is R(IB)6/03, a Court of Appeal decision. This doesn’t mean you can’t seek permission to appeal to the UT. But you have to show an error of law, which would I think have to mean either a unfair hearing or that the tribunal overlooked some legal aspect of the case which, had you been there, would have been pointed out.

Usually we refer to postponement as something which happens to cancel a hearing before it starts and adjournment to cancel a hearing which is already going on. This is significant at least in that a decision on postponement will be made at a different time and often by a judge, registrar or caseworker who is not part of the Tribunal hearing the case. There would be a separate decision (often just on a pro forma). In theory the decision on postponement is itself an appealable decision and you could separately request reasons for it or appeal it (as it is not an excluded decision under s11 TCEA). The SOR would not usually include reasons for the refusal of the distinct postponement request, particularly given that the decision may have been made by somebody else.

This rarely comes into play though because normally in this sort of case if you are refused postponement, you would apply for adjournment (or prepare your client to do that). It is possible that there are circumstances where the fact that a postponement request was refused requires the Tribunal to consider adjourning.

It is a requirement of the relevant practice direction that the record of proceedings must record “any procedural applications” made during the hearing and it is has been held in a number of cases that the failure to give reasons or giving deficient reasons for refusing adjournment can amount to an error of law. The most obviously on point is AA v SSWP (ESA) [2013] UKUT 263 (AAC) where the Judge said:

The tribunal could have concluded that the interests of justice did not require the claimant to be professionally represented, but their failure to consider whether to adjourn to allow the appellant to be represented in the circumstances of the particular case also amounted in my judgement to an error of law.

I would say that your client needs to be aware that if the decision is set aside, that means that the DWP decision goes back into effect. He does not get to ‘bank’ the favourable resolution of his appeal. It could be that a new Tribunal reaches a less favourable decision and that will stand - so it is something which requires careful thought.

This is not intended to be provocative. In the past where a refusal to postpone has prevented me from attending as a representative or prepare properly, I advise the client to request an adjournment at the hearing because his/her representative cannot be present, and a postponement has been refused. That usually works and if does not, the reason for refusing an adjournment should be in the Statement of Reasons.

We did discuss this with the cl but he suffers from quite severe mental health issues and didn’t feel confident or able to ask for an adjournment during the Tribunal.

Given the circumstances, are you able to argue that the tribunal was in error of law in not considering an adjournment to allow a vulnerable client to be represented., bearing in mind that it was (presumably) aware that there had been an adjournment request?

And/or be a bit cheeky and ask for set aside because the rep was not present, assuming HMCTS aware there was a rep…  (I agree with the poster above though about making sure the client is aware of the risks - I’m sure you have).

Who advised the client to get a rep? Is that a potential part of the argument?

And - Elliott above. Yes.