I’m fuming…...adjournment refused, appeal disallowed - advice anyone??

Hello all

Your thoughts on this one are appreciated…..

Client’s appeal date arrives, we have no paperwork from DWP (despite two requests), no notification of appeal date from Tribunal Service - date updated by client!

Client unable to attend - GP letter supports request for postponement.

Original postponement request (before hearing) refused as a previous hearing decision was set aside as client unable to attend then (complex medical history)

We are awaiting Social care reports, GP reports, Consultant reports etc and notified Judge of this. Judge goes ahead and holds hearing refusing to adjourn either for client absence or for further evidence deeming ATOS report and one medical letter as sufficient evdience. He allows rep to look at appeal file during the hearing and submit their argument as they scan through the papers…..

Hearing took less than ten minutes and the case was disallowed….no surprises there then!!

Set Aside request will be made but can anyone advise of particularly helpful case law we can throw in?

I appreciate the Tribunal’s viewpoint but we never argue for adjournment/postponements lightly and in our humble opinion, it is not fair to our client. They are very affected by health issues, it is no fault of theirs that situation outlined above occurred.

Your thoughts?

Perhaps others can help with set-aside arguments.

Don’t forget to request the statement of reasons at the same time as the set-aside request- refusal of intime set-aside does not extend the time for requesting the reasons.

Good luck,

Martin

In recent upper tribunal decision, CDLA/1636/2011, Judge Williams emphasised need for tribunal to consider whether it would be ‘in the interests of justice’ to set decision aside under Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

It might be an idea to refer to that decision and set out the reasons why it would be ‘in the interests of justice’ for your client to be able to put forward medical evidence, attend etc.

Here’s a link to briefcase summary of CDLA/1636/2011 -

http://www.rightsnet.org.uk/briefcase/summary/whether-tribunal-dealt-fairly-with-claimants-late-arrival-for-hearing/

cheers ros

Art 6 -right to fair trial?
I would go for a set aside/appeal and try and get this relisted for a new hearing.

The following might be useful to consider
1. If represented, client is technically present- however was there an error of law by not making sufficient examination as to whether it would be in the interests of justice to proceed w/out client? (was there such examination at all?)
2. Equality of arms- requirement for the claimant to be aware of the evidence against him and to be able to comment on it - here no disclosure made- was this just to rep or did the client actually have the papers? (Although I note 2 attempts to obtain papers.) If the only client had the papers then it is more important that he is able to attend- this may affect the need for greater consideration to proceed in his absence per 1. above.- However a 10 minute scan of the papers is not in my opinion sufficient. - full disclosure should have been made. Lack of notification of the date is also important. I would ask for record of Trib Servs correspondence/calls- when was the date announced and notified to client? Was your name as rep. listed- if so why nothing notified to you.
3. I suppose it is arguable that obtaining of client medical records might take too long- so potentially grounds to continue with Tribunal hearing now- but then the Tribunal would need to consider the effect of not having them,  how soon they could be obtained, was it reasonable to adjourn? Again if this did not form any part of the Tribunal reasoning this could amount to an error of law. (Again without rep. having sight of the DWP papers it’s difficult to ask for client medical reports to deal specifically with issues raised- hence a proper need for adjournment.)
4. Substantive nature of the DWP reports- argue any flaws in these, as to why these shouldn’t be relied upon.

I wonder if you should make a separate formal complaint about the cursory nature of the case, as well as seeking to set aside. If the case had taken 2 hours but was merely wrongly decided you would naturally appeal, here the procedure is so flawed it might merit a complaint as well.
Tribunals always seem to ask ‘did you complain?’ eg about poorly conducted medicals etc. When saying ‘no’ the client seems to be put in a less favourable situation, suggesting that their grumble is not really as well-founded as it could be.

Hope this helps.

Lid26

I was told a few weeks ago by a judge that although reps ‘bandy about’ the term ‘in the interests of natural justice’, there isn’t anything unjust in a client not having their appeal papers because the panel decided there wasn’t. Hmph. Good luck.