Bear with me but this is the same case I posted about the only DWP evidence being police transcript but thought I'd do a separate post as it's a different query.

Briefly client found capable of work whilst claiming IB as alleged working. Our grounds are based on the de minimis principle.

We have a linked IB and HB/CTB hearing on Friday. The original was adjourned by Chair. His decision notice contained numerous directions in the main relating to further evidence being required from SoS.

I'd already written in a month ago to ask this adjourned hearing be postponed because my client was having heart surgery yesterday. I rang today and they say they've not received it and asked me to fax in the request again.

However the DWP have not complied with any of the Chair's directions yet and even if it were done by Friday which I can't see, it gives us no time to prepare any further challenge.

So...I'm wondering about tactics. Do I ask fax a copy of my postponment application or do I let it take it's course on Friday and let the Chair decide the DWP has not complied and hold in client's favour?

Is it important for your case for the client to appear?

He wanted to put his case in person but I think he'd accept that it would be best for it to be heard Friday without him being there if this is the best way forward.

Tricky. If it were court of course you would apply for an order preventing the DWP from filing the further evidence, but we are in tribunal land here and the tribunal has a wide discretion on evidential matters.

If you think you will win without the DWP evidnce then leave it be and see what happens on Friday. I doubt the tribunal will be best pleased if the DWP have failed to comply and you stand a good chance. If they turn up at the last minute with the requested evidence complain bitterly about being ambushed and not having time to prepare, explain cleint's position and you should IMHO get an adjounment. It's a judgement call though!

bitten nails time....

Beware of the possibility that the D.W.P. may say that the (old?) evidence may have been destroyed, and that the Tribunal may decide to proceed. You can not advise the Appellant specifically that he/she should not to attend, (as there are several Commissioners decisions strongly against this, as it is the Tribunal's decision as to whether or not to proceed or adjourn, no matter how strong the case is for a pp. or adj.).

There is no 'old' evidence that can have been destroyed as they didn't actually have anything apart from the iuc transcript so that's not an issue.

I can't advise him one way or another as he's still in hospital.

What ought to happen on an adjournment is that if directions are given, a time limit for compliance should be set. If a direction has not been complied with by that deadline, then there should be a direction for the file to be referred to a District Chair for further directions before relisting. If the DC has directed that it be relisted without the additional evidence in this case (or at least an explanation for its absence), the DC is likely to have taken the view that the DWP has only itself to blame if that evidence would have won the case for them.

Don't suppose you've come back before the same Chair? They might be especially peeved if the DWP has ignored the directions.

No Ariadne, that's what I was hoping. The first one was heard by the DC but they tell me it's a different one this time.

get a letter from the hospital confirming he is in hospital and the operation he has had, in case it becomes an issue that he isn't there....

It went in a month ago but they say they didn't get it. In fact two were sent in on different dates in relation to 2 separate appeals (now linked). Very strange the amount of our correspondence which goes missing after being posted to various DWP agencies and the TS. I'm sure it can't be the same postie.