I'm sure it's somewhere but I can't find it... but then again it's Monday morning. We're still awaiting medical evidence but even so the chair has refused to postpone. Rather than have to go through application to set aside etc after the event, can anyone point me in the right direction please?
Thanks
Sue

Hi sue. If you have look at reg 51 of the D&A regs 1999, you may find your answer. It seems that if you get no reply from TAS in response to your request or it is refused your client has to be ready ( or some one on h/his behalf) to argue the case - CDLA/3680/97- in case subsequent adjournment is not forthcoming. Read the full analysis in the general notes.

thanks for that Essie

hi, i need some assistance here. I have a similar situation. However, the request was not refused or accepted.

I went to an appeal with my cl a few months ago which was adjourned for some further information. This information was being chased by the DWP in relation to NI contributions. Anyway, my cl attended the appeal in june. However, the DWP officer did not attend with this evidence. The chairman continued with the appeal. The DWP have applied for setting aside! The reason for this is that apparently the DWP 2weeks before the appeal contacted the appeals service by fax and informed them that they had informed the inland revenue that the information was needed by july 2005. However, the inland revenue replied stating that they did not know if the info would be available for that date.

The DWP then contacted the appeals service 2 days before the hearing and said they still did not have this information from the inland revenue and that they had no option but to request an adjournment.

The appeals service did not contact this DWP officer to let them know what had been decided. In fact the appeals service did not even put these faxes in front of the appeal tribunal. So the tribunal did not know about this request. The DWP obviously, did not attend the hearing due to this document not being available.

Does anyone have any strong arguments that i could put forward to argue so that the DWP cannot get the setting aside request granted. I think that the DWP should have atleast contacted the appeals service or atleast attended the tribunal hearing anyway.

thanks.....i need to put in my comments by 18th august 2005


thankyou

I think unfortunately the DWP have a pretty good case for set aside as the application for adjournment was not placed before the tribunal.

However you could try arguing that the DWP is a large organisation which is invited to every hearing, it knew that there was a potential problem with the evidence in this case and chose not send a representative. If their decision to fail to send a PO means that their case wasn't fully heard then that's their own fault.

However I'd take a punt on the decision being to have the decision set aside.

David

Unfortunately I also think that its likely any set aside request will be successful.

In a recent decision, CDLA/4389/2004, Commissioner Bano held that a failure to notify of a refusal to postpone and/or place before the sappeal hearing the postponment request does render the tribunal's decision erroneous in law.

There is a summary of CDLA/4389/2004 in the briefcase area of rightsnet together with a link to the full decision available on the ossscsc.gov.uk website.

A bit of a tangent from the main post, but relevant in light of David's reference to a "large organisation".

There was a QBD case - R v Social Security Com ex p BIBI (2000) - which is probably more useful than is widely realised.

In summary, it isn't reasonable to expect that "any" rep should attend just because the organisation in question was of a particular size or status (see paras 17 & 18). In the Bibi case, the clmt's normal rep was unavailable, but the Tribunal (wrongly) suggested that someone else could have repped instead.

I see no reason why the DWP, LAs, Inland Revenue shouldn't be able to argue likewise as it is usually the case that a single officer who has prepared and is dealing with a particular appeal.

Regards

Salma

I take it that the adjourned hearing was in your clients favour? Has a statement of reasons been issued?

I'm not convined that there is a lot that you can do. How important was this NI information to the case? Presumably the first panel decided that it was necessary or they wouldn't have made the 1st adjounment..or were there other reasons for that adjournment as well?

If the information was considered relavent and the chair decides that a proper decision could not have been made without it then I think they have a good chance at getting the set aside. Fiar trial and all that! On the other hand you may be able to argue that it was possible to make a decision without the awaited info and notwithstanding the fact that TAS failed to put the last minute request in front of the tribunal, that the onus was on the DWP to ensure that they sent a presenting officer as they must have been aware that the issue of a further adjournment would be decided on the day.

Without formal rules of evidence in tribunals, other questions to ask might be:
Did the chair get a good breakfast?
Did his wife kiss him goodbye in the morning?
How was his last round of golf?
What colour underpants will he be wearing when he looks at the DWPs request?
How long is a piece of string?

There may be some hope. The DWP requested a postponement, did not receive a response to their request, simply assumed that it would be successful so didn't bother to turn up. Obviously their grounds for requesting the postponemnt sound pretty good, but that's not the point. If they didn't receive a response they should have chased TAS, and if they still couldn't get an answer they should have come along on the day to ask for an adjournment. What would you have done if you had asked for a postponement- with excellent grounds- and time was ticking away and you hadn't received a response? Would you have just sat back, done nothing, and advised your client not to show up at the tribunal? I don't think so.

In fact, in our area the district chair recently sent out a memorandum to all reps stating that if you ask for a postponement and you don't hear anything DO NOT assume that it has been granted and not show up with your client. So if I was in the PO's shoes and was asking for a set aside I would not be holding out much hope.

However the problem here of course is the matter of the tribunal not being passed the postponement request, so they did not have the option of considering an adjournment on the day (which they may well have granted).

Still I would probably be slightly more optimistic than previous posters, and think it's definately worth making a case, the chair may take a dim view of the DWP simply assuming that a postponement/ adjournment would be granted, and not bothering to follow it up at all.

Good luck.