Time limit to reinstate struck out appeal?

Is there an absolute time limit preventing a request to HMCTS to reinstate an appeal which has been struck out - in this case over 13 months ago due to the appellant not responding to enquiry forms?

The appellant is adamant he did not receive notice of the appeal or any subsequent correspondence and was not aware his ESA appeal has been struck out.

He reports that DWP have previously acknowledged, in connection with another issue, a delay in responding to his notice of a change of address around the time in question . Additionally, claimant continues to be paid assessment phase ESA pending the outcome of the appeal as DWP also do not appear to be aware the ESA appeal has been struck out. What a pickle! I’d gone round hoping to improve things with a PIP claim but in so doing uncovered a problem with ESA. Claimant not doing too good and this is the last thing he needed to hear so am particularly anxious to find a solution.

The appeal will have been struck out under rule 8(1) or (3) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

The appellant can ask for reinstatement of an appeal struck out under rule 8 (1) or (3) - rule 8 (5).

Such an application must be made within one month of the issue of the notice of strike out - rule 8 (6).

Not promising so far…....however;

The tribunal has the power to extend this time limit under rule 5 (3)(a) of the rules. The overriding objective of the rules is to enable the tribunal to deal with cases fairly and justly - rule 2(1) - and the tribunal must seek to give effect to that objective when it exercises any power under the rules - rule 2 (3). So, yes, you can still apply for reinstatement.

So, I would do the following;

1 - make the application for reinstatement asap.

2 - explain the client did not receive either the enquiry form or any notice informing him the appeal might be struck out if he did not state whether he wished the appeal to proceed or the strike out notice itself. And this resulted from the DWP providing an out of date address to HMC&TS; (you will have to hope that all notices were in fact sent to the out of daste address and not the current one).

3 - state that the client continues to receive ESA at the assessment rate as the DWP itself was unaware of (or failed to act on) the strike out. This is very important. Because it will help explain why the client has not acted sooner (although the tribunal has the power to extend time for the reinstatement application, the longer the delay, the better the justification needs to be) - i.e. had his ESA stopped at the time as it should have done, this would have prompted him to contact HMC&TS; and apply for reinstatement at the time/within time.

4 - refer to the relevant Procedural Rules as cited above in your application. You will need to explain why it is fair and just for the late application for reinstatement to be granted.

I would also attempt to obtain confirmation from the DWP that it did not inform HMC&TS; of his change of address and that it gave the wrong address in the papers it submitted to HMC&TS;. Also that it was unaware of or did not act on the strike out so that the ESA claim remains in payment. Supply any evidence that is forthcoming in support of your application once you get it from the DWP. But do not delay making that application whilst you wait on the evidence. Get it in asap and follow up with anything helpful you get from the Department.

Edited to add;

For the sake of clarity - the 13 month absolute time limit is for making appeals. It is not relevant in a case like this where the appeal was made within time. Rule 5 (3)(a) expressly provides that the tribunal may extend or shorten the time for complying with any rule or direction. As the appeal was struck out under one of the rules (8 (1) or (3), it is therefore rule 5 (3)(a) that is relevant here.

thanks PC. I was worried rule 5 (3)(a) might be constrained by an absolute time limit. Will give it a shot then.

I had an identical case a couple of years ago. HMCTS reinstated the appeal with no bother at all (and I don’t think the DWP ever cottoned on to the fact that it had initially been struck out) so hopefully they will be as ‘generous’ with your client as they were with ours (the appeal ultimately succeeded btw).

If it was responding to the enquiry form then HMCTS should really have destroyed the file by now; 6 months is the trigger to shred it.

If you can supply a copy of the submission it will increase your chances of the reinstatement.