Tribunal postponement refused

Hello, I wondered whether you could give me some advice please.
I recently requested a postponement in writing to the Tribunal service as my appeal is to be heard on the same day as my appointment with my specialist.
I need this appointment as I have waited 10 months to see him a and hopefully have supported evidence for the appeal.
I put this information in the letter to the Tribunal sevice but the Judge has refused my request and advised that the appeal will be held in my absence.
What more can I do? It is pointless having an appeal if I cannot physically attend?

This what the Benchbook dated August 2006 states about postponements. Sadly the latest version written in 2010 is no longer in the public domain but I'm not aware of any changes made on how to deal with postponements. What benefit are you appealing ?

43. POSTPONEMENT

1. See DA Reg 51. This will be dealt with by either a clerk or the chairman alone,
prior to the commencement of the hearing. Usually it will arise because of a request
by one of the parties, e.g. unable to attend because suddenly taken ill, or it may arise
because the chairman himself sees something in the papers which leads him to
believe that the hearing should be delayed, e.g. submission incomplete, further
evidence required etc.

2. Although DA Reg 51(1) refers to the need for a postponement request to be in
writing there is no reason why a clerk or chairman cannot postpone of his own motion
under Reg 51(3) in response to a telephone request, if for instance an application is
made very shortly before the hearing on what appear to be genuine grounds.
In practice:

3. If one of the cases in the list has already been postponed before the hearing date
the tribunal obviously has no jurisdiction to hear it; however the chairman, under the
wide powers given to him by DA Reg 38(2) can give such directions, e.g. as to
obtaining further evidence, as he considers may be useful to the later tribunal.
(If the tribunal hears the case by mistake, ie without being aware that it has
previously been postponed, the decision is null and void as the tribunal had no
jurisdiction to make it but even so it is probably safer for that decision to be set aside
before the appeal is reheard, as otherwise there could be two inconsistent tribunal
decisions in existence at the same time.)

4. Under DA Reg 51(2) if there has been a previous request for postponement which
has been refused the tribunal must be provided with a copy of the application and of
the notice of refusal. If the appellant does not attend the tribunal should re-consider
the application and decide whether to proceed with the hearing or not. The clerk
should therefore always be asked before the hearing starts to check whether or not
any postponement request has been made, or the file should be checked if available
at the venue.

5. For the issues to consider in the case of a request to postpone through
unavailability of a representative see paragraph 2 above.

The reference to 'Chairman' above is out of date and the legal member of a tribunal is now known as a Tribunal Judge, District Tribunal Judge or Regional Tribunal Judge, the latter being the most senior Judge for your region.

Unfortunately, there is no appeal against a refusal to postpone, but I think your request has been dealt with unreasonably. You could try writing to the Regional Tribunal Judge at the address on your letter explaining things fully and sending a copy of the date of your hospital appointment.

If you can tell me which Regional Office is dealing with your appeal, I should be able to give you the name of the Regional Judge as I sat on DLA Tribunals for 10 years until I retired.
Writing to them personally by name means they will personally receive the letter.

It may be possible to argue that not postponing your appeal is denying you the opportunity
to present further medical evidence which may help your appeal, However, this is beyond our remit and you would need to seek 'face to face' advice from a Benefits Adviser with expertise in this field.

Another option would be to contact your MP, they can often influence decisions in cases like this.

Hope this helps.

Jim

Dear Jim,
Thank you very much for your reply, it was very helpful.
I am appealing to be considered for the support group instead of Wrag.
The Tribunal is to be heard at Port Talbot CJC.
I cannot understand why they are being so unreasonable. I have the appointment letter from the hospital and I thought that it was acceptable to request another suitable date. I cannot physically be in two places at once.
I need this appointment,most importantly for my health and also to support my claim.
Many thanks for all your help.

This is from the current regulations:

The Social Security and Child Support (Decisions and Appeals) Regulations 1999

Postponement and adjournment

51.—(1) Where a person to whom notice of an oral hearing is given wishes to request a postponement of that hearing he shall do so in writing to the clerk to the appeal tribunal stating his reasons for the request, and the clerk to the appeal tribunal may grant or refuse the request as he thinks fit or may pass the request to a legally qualified panel member who may grant or refuse the request as he thinks fit.

(2) Where the clerk to the appeal tribunal or the panel member, as the case may be, refuses a request to postpone the hearing he shall—

(a) notify in writing the person making the request of the refusal; and

(b )place before the appeal tribunal at the hearing both the request for the postponement and notification of its refusal.

(3) A panel member or the clerk to the appeal tribunal may of his own motion at any time before the beginning of the hearing postpone the hearing.

4) An oral hearing may be adjourned by the appeal tribunal at any time on the application of any party to the proceedings or of its own motion.

(5) Where a hearing has been adjourned and it is not practicable, or would cause undue delay, for it to be resumed before a tribunal consisting of the same member or members, the appeal or referral shall be heard by a differently constituted tribunal and the proceedings shall be by way of a complete rehearing.

Hi Lizzie,

I wrote a fairly long answer following your reply to me, but when I tried to post it I was 'locked out' of the forum and my post was lost.

I'm an Apple Mac user, and Steve Donnison the site owner has advised me that other Mac users are having similar problems. Hopefully, this will be rectified when the forum software is upgraded in a few weeks time.

I had a hospital appointment myself today and was there for nearly three hours so am totally 'wacked out' so will have to be brief.

The Regional Office your appeal is dealt with is

WALES AND SOUTH WESTERN REGION

Eastgate House
Newport Road
Cardiff CF24 0YP

Regional District Judge: Mr James Wood
Telephone (Secretary): 02920 662191

If you decide not to attend your hearing and choose to see your hospital Consultant instead,
then in my opinion, if the Tribunal went ahead and heard your appeal in your absence, called a 'paper hearing', when you specifically wished to attend in person for an 'oral hearing', this may be a breach of Article 6 of The Human Rights Act 1998, 'Right to a fair hearing' which again in my opinion you are being denied because of what I would consider a perfectly reasonable request for a postponement. See my previous post on Postponements and adjournments.

However, I hasten to add that my experience of appeals is for DLA Tribunals, not for ESA, although all Tribunals hearing social security appeals are bound by the same legislation and regulations.

I reiterate you need to seek 'face to face' advice from a Benefits Adviser/WRO since it's impossible for us to deal with issues like yours in an open forum.

Whatever you decide, good luck.

Jim
retired Welfare Rights Lawyer and former DLA Tribunal Disability Specialist

Dear Jim,
Just wanted to say a big thank you for your advice which I will follow up.
I know that you are not well yourself and so the time you give us is invaluable.
Thanks for listening.
Lizzie