Reps to a Tribunal - No case - respondent failure to provide information
I have a FTT hearing coming up and there has been a few adjournments for the respondent to provide specific information. And so far the information that has been requested has not been provided. I would like to argue that my preparation has been hamstrung by the fact that info, reasonable required and requested some time ago, with reminders, have not been provided. And so, that this would impact on the overriding objective of the Rules to enable the Tribunal to deal with cases fairly and justly.
Wondering if there are any relevant case laws that may be relevant to persuading the tribunal to give us the benefit of the doubt.
It would probably help to understand the context of the appeal and the nature of the requests for information. The response can differ massively depending on the type of appeal and significance of the requested material.
In the event of serious failure to comply with directions, the DWP can be barred from participation in the appeal and can ultimately have the case summarily determined against it under rules 8(3) and (8).
I have had judge-only cases where the DWP has failed to produce necessary material over a period of say 6 months and we have persuaded the judge to exercise these powers. I think it would be less likely in a WCA or PIP type case where paperwork is less likely to be important than the client’s evidence at the hearing, but if non-compliance with directions is proving a bar to the case being dealt with fairly, it is ultimately one of the few powers that the tribunal has to deal with it.
I would much rather make this sort of argument in a written application for directions than at a hearing. Once you are at the hearing, there is very much a temptation just to get on with it and adjourn if the lack of information becomes a problem.
I concur with all that Elliot has said. I would also add that generally speaking an approach which potentially amounts to “I’ve not been able to present my best case because you’ve not helped me do that and been very mean and unfair” veers dangerously close to adversarial rather than inquisitorial. The stronger approach will almost always be to focus on the facts of the case as known. If evidence/facts could have been produced which have not then focus on the absence and not the poor conduct.
Some time ago we found ourselves in a similar situation, so we requested Directions barring the SoS from further participation in proceedings, on the ground that they had failed to co-operate with the Tribunal. The documents in question arrived soon afterwards.