postponement request refused

I had a client who had her case go ahead with out a rep as he was unable to attend and it was refused a set aside as the tribunal say they had all of the evidence before them on the day and the cl was at no disadvantage.

J Hogg - 16 July 2013 01:58 PM

I’ve had a request for a postponement refused. I am unable to attend on the day as the rep for the claimant. The District Judge has refused on the basis that “The tribunal are experienced in hearing unrepresented appellants”

Am I missing a change somewhere? I understood that this would be a shoe in for a set aside if they went ahead with the hearing without giving the appellant the opportunity to have a rep.

Not so much a change as an acknowledgement of a hard reality.

Tribunals for the most part see unrepresented appellants. It’s therefore hard to argue that they are unable to tackle such cases.

Other factors come into play,

Complexity - such as involving a relatively rare disability but there’s an argument that if it’s that complex it should be dealt with by a written submission.

Articulacy - are there specific and evidenced reasons why the appellant may not be able to articulate their case without someone there able to enable them to do so or to do so on their behalf?

Proximity - There’s also the perspective that the closer to the hearing date you ask then the less likely the outcome you desire. A quick glance on current stats. for the backlogs of ESA and DLA will explain why that is, putting aside that clerks rarely say yes unless they have someone else they can wedge in.

Competency - Many advisers start from the “shoe in” perspective and write short letters that don’t cover any of the many things which might lead naturally to a postponement. Reps are often unwittingly the authors of their own misfortune. I fully appreciate this is not a popular perspective :) It doesn’t make it any less true.

Caselaw - Overwhelming basis of caselaw is slanted towards justice delayed is not good justice. On the other hand there is also a perspective within the TS that argues you are represented by an organisation not an individual and should therefore sort it as an organisation. Two things to be said about that:

1) TS assume they are the only people with resource issues. They are somewhat other worldly in these matters and there are entire areas of the UK where reps. were scarce to begin with so will barely be missed as the public sector cuts continue to demolish advice services. Therefore, if you work for an organisation where a sub cannot ordinarily be provided; or there are reasons it wouldn’t be appropriate, or, a sub could ordinarily be provided but not on this occasion… then you need to have said so else they will assume.

2) There was caselaw from the employment side (don’t ask me to cite, I can barely remember yesterday!) some years back that explained in some detail that you approach an organisation for a rep. but the rep. is a person with whom you have a relationship as, if it didn’t work that way, it would be to the detriment to the presentation of your case. I often used this for my staff when they were representing vulnerable older clients or BME clients for whom a change of rep. was not practical or sensible.

It’s not even a shoe in for a postponement if you haven’t addressed these issues. It almost certainly won’t be for a set aside.

have a look at “the adviser” magazine issue 157, some good stuff on tribunal procedure, adjounments etc

Have a look at the High Court’s decision in the Bibi case.  Attached.

Also have a look at this recent UT decision on this issue - very helpful. CE 3482/12

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3838