petrocelli wrote:Hi guys
Would anyone happen to know if an Apellant has a right to ask for a postponement of an appeal tribunal if they are unable to secure the legal representation they feel is correct?
Anything re: human rights and a fair trial??
many thanks.
There is no absolute right to request a postponement or an adjournment. Most postponements are normally made by the Clerk to the Tribunal because the main reason for requests for a postponement include not being well enough to attend an appeal on a given date, or because the date of the Tribunal hearing clashes with an important hospital appointment, or the appellant is attending hospital on that date as a day patient for scheduled minor surgery, or as an in-patient for other surgical procedures. These are administrative matters dealt with on a regular basis by Clerks to the Tribunal.
Requests for postponement for matters such as you describe will be dealt with by a Tribunal Judge. Tribunal Judges are the equivalent of a District Judge in the civil legal hierarchy, but Tribunal Judges only deal with matters appertaining to Tribunals. However, a request for a postponement made on the day of the hearing has legally to be treated as a request for an adjournment. (Fuller explanation is in the Benchbook.)
See also this thread which deals with postponements and adjournments which are not the same :
www.benefitsandwork.co.uk/forum?func=view&catid=10&id=90147 This was for a DLA appeal, but equally applies to any appeal for a Social Security Benefit.
I'm not sure if you're aware but, an appellant has no absolute right to a representative, even under Article 6 of the European Convention on Human Rights see CJSA/5101/2001 where Social Security Commissioner Williams ( now called Upper Tribunals) said
The claimant has no right to representation under British law in a social security case and the ECHR does not give him that right.
So Regulation 49 of the Decision Making & Appeal Regulations ( D & A Regs) does not compel a tribunal to adjourn to enable an appellant to obtain a representative just because he would like to have one. However under Reg 49 (8) A person who has the right to be heard at a hearing may be accompanied and may be represented by another person whether having professional qualifications or not and, for the purposes of the proceedings at the hearing, any such representative shall have all the rights and powers to which the person whom he represents is entitled. There is discussion on this issue on
RightsNet
If you go to the members area
www.benefitsandwork.co.uk/help-for-claimants/dla/#dwp] and read or download Benchbook and look at Chapter 53, this explains the role of a representative and explains Regulation 49 in detail. Our version is rather out of date because the Benchbook is no longer available in the public domain, but I can assure you that Chapter 53 still applies.
You can also check out the D & A Regulations 1999
HERE
This area of Social Security Law is extremely complex, so you need to seek 'face to face' advice from a welfare rights adviser or organisation.
