Judge refusing to postpone ESA appeal or arrange domiciliary hearing

It sounds like something of a shambles. Ultimately, it looks like if an unfavourable decision is made, you have a good chance of having it set aside.

I’d get the matter urgently put before the District Judge stating the events to date and enclosing all evidence, if not already done. If you have, nothing occurs to me beyond attending the hearing in the absence of the appellant and giving all of this to the judge on the day, asking for an adjournment.

Its something of a gamble but if nothing else works you could go to the hearing on the day, explain what had happened and ask the tribunal to adjourn pending arrangements for a DH.

Other than that you could cite;

The overriding objective of a tribunal to be fair and just (Rule 2 - Tribunal Rules)

That every party to the proceedings has the right to attend the hearing (Rule 28)

That a decision can be set aside if a party or a party’s rep was not present at the hearing (Rule 37 (1) (c))

What has already been suggested - in fact, what I am going to suggest absolutely requires that you make another concerted effort to request a direction for the oral hearing to be postponed and a domiciliary arranged in its place (bear in mind that there is nothing in the FtT rules to prevent you making repeated applications prior to the hearing taking place).

But if that fails…..

I’d have thought it very likely that the second, corrected GP’s letter might provide pretty compelling grounds for a finding that reg. 35 applies to your client (this is assuming that there’s some sort of explanation offered by the GP as to why she’s unable to leave her home, rather than just a bald statement that she cannot). If she is unable to leave her home, I’d have thought that compelling her to do so (which is what work related activity would inevitably entail) would very likely result in a substantial risk to her health.

You could attend the hearing yourself and make that argument - but with the fall back position that if the tribunal is not prepared to allow the appeal on that basis without hearing your client’s oral evidence, that it adjourn for a domiciliary hearing to allow her to give that evidence. There is usually a considerable element of risk in attending a hearing as rep in the appellant’s absence and asking the tribunal to either allow the appeal on the basis of the documentary evidence or to adjourn for further medical evidence/or for further opportunity for the appellant to attend - but in this case (and so long as you do make another attempt at oobtaining a postponement) I can’t see this being a problem.

Note that regarding being unable to leave one’s home is note always taken as being sufficient evidence of inability to undertake WRA. I have heard a tribunal doctor ask “can you use a phone?” in connection with the application of reg 35.

I did try to indicate that I wasn’t suggesting it was inevitable, only that (depending on the strength of the GP’s letter) it may be worth a punt.

An ability to make aphone call might mean that a claimant could take part in a telephone WFI - but this is very different from work-related activity. Following the decision in CE/3453/2013 this is something that both the DWP and FtTs are going to have to be conscious of. And given that decision also confirms that in circumstances where reg. 35 is in issue, the DWP and then the FtT is going to have to identify actual work-related activity available to the claimant in the area that they live and in which they could engage without any substantial risk to their own or someone else’s health, I would imagine that in very many cases where you have already managed to convince a tribunal that the appellant’s condition(s) do objectively prevent them leaving their home, that getting them to make the further finding that reg. 35 applies may be pushing at an open door…..

You might want a shuftie at CIB 2688 2012 which dealt with similar circumstances.

Whether the EQA is engaged is an interesting question as Judicial functions are exempt and the decision whether to direct a domiciliary is for a Judge.

Thanks for all your considered replies.

My client had been having WFIs over the phone for over a year but then the adviser at JC+ said she would need to attend the jobcentre as they could not continue to do the WFIs over the phone indefinitely. I had to get medical evidence then and threaten them with a claim under the Equalities Act to get them to back down but what they did was send round a home visiting officer to do an assessment and since then the phone WFIs have continued. I have attached a copy of the letter from the GP which she sent to the tribunal. I thought it was clear enough.

On the issue of arranging domiciliary hearing, try the following Commissioners decisions:
CIB 2751 2002 and CS 3202 2002

Thanks for all your advice.

Just to let you know. The appeal went ahead last week and neither i nor the client attended but the tribunal accepted the appeal and placed my client in the support group. We are mightily relieved but i think our arguments were strong enough to be successful despite the client being unable to attend the hearing.