I have been assisting a client with an application for DLA. Claim was refused so client went for appeal. Her father listed himself as her representative on the enquiry form. At the hearing, the clerk had my name down as rep, as i had on one occasion written to the appeal service for her. Her father tried to get clerk to look at his copy of the enquiry form but was apparently denied this. The hearing took place, my client was unprepared for all the questions and her father was not allowed to speak. The appeal failed. We since wrote to TAS, an apology has been given for the confusion, the clerk was given my name but it was confirmed that clients father was listed as rep on the enquiry form. I wrote to ask the decision be set aside and today have been given the two justifications for this happening, one of which is that your rep was not present. However, my client's rep was present, just barred from giving oral evidence. The letter gives space for my client to add her comments so i have advised her to write what happened. TAS has already had an explanation from me and a copy of the apology. Does anyone know if the appeal should be set aside for this reason? Anyone had experience of this? All help very gratefully received.

There is no absolute right to be represtented at at a tribunal but if you have a rep you have a right for that rep to be heard. I can see no reason for refusing to hear the father as rep on the day and this smacks of a procedural error/breach of natural justice. As to the outcome...can you show that your client's case was prejudiced by this? If you can you have very strong case even if you cant it is still worth a go. Have you had a statement of reasons and the record of proceedings? If not make sure you request them within the time limit and bear in mind an appeal to the commissioners.

I think you'll end up at the Commissioners, but that you shouldn't, but it depnds on what actually happened.

Para 10 CIB 2058 2004 and para 12 of CIB 1009 2004 may help (although neither is absolutely like your case, they both quote the regs which say that a rep must be heard).

You could apply for leave to appeal, and request that the chairman who considers your application sets the decision aside under section 13(2) SSA 1998 on the grounds that the tribunal misconstrued the D&A Regs by not listening to the rep. But that depends on the evidence showing that that was the case. Not being there you don't KNOW this for yourself, and a chairman stating that a representative should not interupt the tribunal and should say what they have to say at the end is complying with reg 49(8) of the D&A Regs (in my opinion) even though such a rep might reasonably think that they had been stopped from speaking.

You need to see the Record of Proceedings and reaosns for the decision.

Thanks for your reply. I've just recieved the statement of decision from TAS and have now written to request decision be set aside. Fingers crossed.