Please could someone give advice on the following:

We attended a Disability Appeal Tribunal with a client. We had obtained further evidence late in the day from the client's General Practitioner, but this wasn't particularly useful. It was purely factual.

On client's instructions, at the start of the hearing, we requested an adjournment in order for an EMP to be sent out. This was rejected by the Chairman.

The appeal was heard and the client lost. We have now received a statement of reasons and a copy of the record of proceedings - No mention is made of the conversation regarding the possible adjournment, either in the reasons or the record.

We applied for leave to appeal on the grounds that the tribunal failed to give adequate reasons, as they have not commented upon an issue 'raised by the appeal' i.e. the possibility of an EMP being sent out to examine the client.

The statement of reasons is pretty scathing about the appellant's evidence - Basically they didn't believe him and found his evidence to be unreliable because of inconsistencies. There are no other grounds of appeal.

The Chairman has commented upon the application by stating that there were adequate reasons given for the decision and if he had commented upon the EMP request, it would merely have perfected an otherwise adequate decision.

Anyone know of any caselaw on this? Was it an error of law not to record the request in the record of proceedings and/or the statement of reasons?

I've got a case thats at the Comms office. In this case the hearing was listed for a day I was on annual leave. TAS refused to postpone on three seperate occasions in the case where 1.) I wasn't able to represent. 2.) Medical Service acknowledged that the EMP report was of poor quality (not my words, the words of top gear magazine ...erm the head doctor) and that the EMP visit should be redone on the request of the DWP. 3.) That further evidence would be available from a Specialist following a hospital appointment (18 month waiting list.)

I sent in a written submission.

The hearing took place in April. The client says that she asked for an adjournment twice and was refused twice. The SFR states that the chair offeres an adjournment 3 times and advised the client that she would benefit from advice and representation. He also went on that it was clear that she was to be represented at some stage but it was not clear where the representative was or whether they were still acting for the claimant.

I requested leave to appeal on the basis of me not being there and documents not being before the tribunal.

It turns out that there are five seperate documents on file explaining we are reps and requesting postponements etc and the sub.

The Commissioner directed that the chairs observations as quote "Normally a Commissioner would not give any weight to an attack on the accuracy of the statement that is so lacking in detail. However,..."

The Commissioner refers then to the letter informing the Appeals service of my inability to attend and there being no account of the alleged discussion where the chair advised the appellant to request an adjournment so that they may take advantage of representaion.

Reg 55 (1) of the Decision&Appeal Regs 1999

states that the record of proceedings should be sufficient to indicate the evidence taken.

It may be a breach of natural justice for the record not to contain at least a reference to the adjournment request. No reason is required for refusing the adjourment.

I know colleagues have been asked by the commissioners office for copies of their notes taken at the hearing to compare with those of the chair.

However, if the only grounds you've got are the refusal to adjourn for an emp report and the non-recording of the request it looks a might shaky to me.

Hope the info is of help

Slightly off centre but this was along roughly similar lines:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=156&mode=full

"On client's instructions, at the start of the hearing, we requested an adjournment in order for an EMP to be sent out. This was rejected by the Chairman.

The appeal was heard and the client lost. We have now received a statement of reasons and a copy of the record of proceedings - No mention is made of the conversation regarding the possible adjournment, either in the reasons or the record."

You obviously think there is mileage in an appeal to Comm - if you do get there, you may just get a rehearing -

Your only error of law that I can see from your info, is that the tribunal was catogorically asked for an adjournment, and whilst it had the right to refuse, the request and the refusal should be in the record - preferably with the reason for refusal - otherwise it's not a true copy of proceedings, and raises a question mark over the reminder of the record.................