hiya...i have a client whose appeal went ahead without him or a rep being present- i had asked for a postponement which was initially refused and then granted, but client ended up rejecting the postponement and didn't turn up for the appeal himself. appeal was disallowed and now going to commissioners. client clearly has mental health issues, evidence of which is in the appeal papers and i want to argue that because of these issues, client wasn't able to make a clear, reasoned decision about postponing/ attending the appeal. can anyone point me in the direction of a commissioner's decision on something like this? only have a couple of days left to get request in...

thankyou!

Wed 19-Sep-07 01:23 PM by SLloyd

was he represented at the 2nd hearing when he didn't turn up? Was a further adjournment request made at that stage and on what basis?

there was only one hearing- he was referred to us two days before the appeal which wasn't time enough to go through the appeal bundle of 700 pages. we asked for a postponement which was initially refused. on asking tribunals service a second time, postponement was granted. client then rejected postponement saying that he believed his evidence was strong enough. we did not attend the appeal. client had already made tribunals service aware that he wasn't attending due to physical ill health. hearing went ahead and was appeal was disallowed...

Ok, he let the tribunal know he wasn't going, but did he say to go ahead or did he ask for another adjournment?

Have you got the reecord of proceedings and statement of reasons? What do they say about hte issue the tribunal continuing in his absence?

To be honest, from what you have said so far I don't hold out a lot of hope. Mental Capacity in law is the ability to understand the type of proceedings that are going on, with advice if necessary. Ptoection for those without capacity does not protect people from making unwise or badly reasoned decisions. Unless you have some pretty stong evidence that he was incapable of making the decision I doubt you will get very far.

Finally you need to think carefully at this point about whether it is a set aside reqeust or an appeal that you really want. I think it is more likely ot be a set aside.

An appeal is not going to help if the tribunal considered all the information it had before it and made a reasonsed decision to continue in his absence, and of course explained those reasons adequatley in the SOR.

I would agree unfortunately that it could be quite difficult, although without seeing the S.o.R. + S.O.E. it's hard to comment. You could, in order to buy yourself time, do one of tyhe following:-

1). Put in a request for a set-aside, as suggested above. I am not sure which procedural irregularity you could go on. There may be scope in the fact that a postponement was granted, but then the case went ahead at the Appellant's request, I don't know and you'd have to check the legislation to see about whether that is legally sound, I'm sorry but I haven't time to check it right now). Also, was any documenbt not received by any party at the relevant time?.

2). Put in a brief application for leave to appeal on some grounds on the merits of the case (if there are some arguable points of law) and then compile further grounds over the coming weeks.

Best wishes,


John Colegate.

thankyou both for the advice- i don't hold out much hope either! but, as always, shall give it a go...cheers.

Did you know that he had overidden the postponement before the hearing?

well, the first request for postponement was turned down a few days before the appeal, second request for postponement granted two days before appeal. tribunals service contacted client to tell him and he told them in no uncertain terms that the appeal was to go ahead with or without rep and that he wouldn't be attending because he knew his written evidence would be enough to make the decision in his favour. tribunals service contacted us, we then contacted to client to strongly advise him against this course of action. have med evidence to suggest that he's not capable of making rational decisions, especially under stress, which was included in the original appeal bundle (along with the 50+ letters he's written to me in the last three months)...

so to acutally answer your question...! yes, the day before the hearing, we knew that he had overridden our postponement request.

Then set aside may be difficult. However, there might be faint hope of leave to appeal. A case came my way recently after the hearing. Basically, the client had opted for a paper hearing and lost. In setting aside the decision the commissioner decided that the evidence raised a number of ambiguities, which made it appropriate for the tribunal to adjourn to offer the appellant a chance to appear personally to clarify them.

When you say you didn't attend the hearing, had you made it clear to the Tribunal Service (in writing or on the telephone) that the reason you would not be attending wsas the fact that your Office had insufficient time to prepare?. They would probably say, however, that you ought to have attended in order to apply for an adjournment, but your hands were ties as you, clearly, had instructions to proceed and not to request an adjournment!. (How could you win such an argument in that situation?!).

You could argue that the Tribunal's inquisitorial function meant that they should have determined, (notwithstanding the Appellant's wishes and your hands having been tied by his instructions), to adjourn the case in the interests of justice in order to allow you proper time to prepare the case.

What, out of interest, does the Appellant say, now that he knows he has lost;- does he now accept that your suggested course of action was right?.

Am I right in taking it that you were only instructed two days before the hearing date?. (or is this a misunderstanding?, as I note your having referred somewhere to the Appellant having written to you over the last few months or weeks).


John.

......"have med evidence to suggest that he's not capable of making rational decisions, especially under stress, which was included in the original appeal bundle (along with the 50+ letters he's written to me in the last three months)".......

Does not the Tribunal also has the power and the duty to adjourn in cases where they feel that the interests of justice would be better served by doing so.

I would think with a bundle of papers running to some 700 pages which would signify a very complicated case, and which contained clear evidence of the client's inability to come to rational decisions when under stress, a reasonable tribunal would have/should have reached the conclusion that this was no straight forward case, and adjourned to give the client an opportunity to appear in person.

yes, that's what i've argued. thanks for all suggestions and advice, shall just have to wait and see now...