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VRB Case Note No. 4: VRB’s decision to proceed with hearing following application for adjournment

The issue

The procedural issue for determination was whether or not to continue with the hearing, after the veteran did not comply with Board’s Adjournment Practice Direction. The substantive issue was the appropriate diagnosis of the veteran’s psychiatric condition.

The Applicant's position

The first hearing of veteran’s application for review was adjourned at the veteran’s request under section 151 of the VEA, for the purpose of obtaining a further report from his treating psychiatrist.

At the second hearing the veteran’s advocate agreed that the supplementary report from the veteran’s treating psychiatrist was completely inadequate. The matter was further adjourned under s152 of the VEA to make a request for the veteran to be examined by an independent psychiatrist and a report prepared as to the opinion of the psychiatrist as to the diagnosis of any condition suffered by the veteran.

Following receipt of the independent psychiatric report, the application was listed for a third hearing. Via email, the veteran contacted the Board and advised he could not attend on that date. The Board relisted the application for another hearing date.

Four days before the hearing the veteran wrote to the Board advising he wanted the hearing vacated as he wished to refute the independent psychiatric report. He advised he would be requesting a further independent investigation by a psychiatrist be arranged through DVA. The veteran also advised he had dispensed with the services of his advocate, who had represented the veteran in the two previous hearings.

Two days before the hearing the Board advised the veteran by email that he should attend the hearing and make his application for an adjournment. The veteran responded the same day, indicating he was not available on the hearing date, and he did not understand why the application needs to be made in person. He indicated that if the Board needs to hear why he totally objects to their chosen psychiatrist “assessing” his credibility with his demeaning and inaccurate report, he was happy to put it in writing.

He stated he was aware it was his right to elect for another assessment if there are two conflicting reports and he needed to agree who will be conducting the next interview; and would advise his next intended action after consultation with a new representative. On the same day the Board responded to the veteran, indicating the Board will consider the matter at the appointed time, and the veteran should consider carefully the consequences of failing to attend which include the Board dealing with the matter in his absence. The Board noted the veteran is entitled to arrange for a further psychiatric report from a psychiatrist of his own choosing but at his expense. The Board indicated it will not consider ordering another report at public expense on the basis that the veteran does not like the views expressed in the current report.

No response was received and veteran failed to appear at the appointed time for the hearing.

The Board's consideration

The Board first determined as to whether to proceed to consider the matter in the absence of the veteran or his representative, or whether in the interests of fairness the matter should be further adjourned.

Section 133A of the VEA sets out the objective of the Board as ‘providing a mechanism of review that is fair, just, economical, informal and quick’. Each of the words set out in s133A stands on its own. No individual word has more or less importance than the others. The words must be read together to obtain the desired objective, balancing the sometimes competing requirements of each against the other.

In considering any course of action the Board was guided by the Board’s Adjournment Practice Direction which is published on the Board’s website. Relevant extracts of that Direction are set out below:

The Board has a responsibility to manage cases so that they are bought to a conclusion at the earliest reasonable opportunity…the following policy will apply

1. Matters are listed for hearing on the basis that the hearing will proceed on the date fixed.
2. An application for an adjournment must be made in writing with reasons.
3. The matter will be referred to the Presiding Member for consideration.
4. An application for an adjournment made less than 10 working days prior to the hearing date will not be granted unless there are particular and compelling reasons… In such cases the hearing will commence as scheduled and the panel will determine after considering all the circumstances and the material before it whether it will proceed with the hearing or adjourn the matter.

In considering whether or not to continue with the hearing the Board noted the following matters:

On the basis of the material set out above, the Board was reasonably satisfied that the veteran had deliberately chosen not to attend the hearing. His reasons clearly include his dissatisfaction with the independent psychiatric report. Given the matter is now over two years old, has been the subject of two previous adjourned hearings, and the Board’s objective of providing a mechanism of review that is quick, and that the Board is of the view that it has sufficient material before it to come to a considered decision, the Board determined to finalise the matter in the absence of the veteran.

In coming to this conclusion, the Board was also mindful of certain beneficial provisions of the VEA. These include a right to a full de novo hearing of a decision of the Board by the Administrative Appeals Tribunal and the fact that a veteran may make multiple applications in respect of the same condition. The Board was of the view that any prejudice to the veteran occasioned by proceeding in his absence was more than counter balanced by the need to bring these proceedings to a conclusion.

The Board went on the deal with the substantive issue concerning the appropriate diagnosis of the veteran’s psychiatric condition, and ultimately affirmed the decision under review.

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