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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Setting aside - administrative reasons

robverco
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Welfare Benefits Officer, Wandle Housing

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Hi there, some opinion please.

Just received notice that our ESA appeal was refused. I am about to send request for RoP and SoR. It was the fastest hearing I have attended. Maybe 25 minutes. They admitted they were running late. The Dr. must have looked at the clock 4 or 5 times in the last 5 minutes. The Dr seemed unsure of the legal tests a couple of times. I mentioned it in the hearing but hopeful errors have made their way into the reasoning.

In addition the following happened:

Attempted to hand deliver appeal submission to HMCTS offices but was refused by security/reception 7 days (a Friday) before hearing.

Sent submission recorded delivery to HMCTS offices signed for at 10.30 the following Monday.

Arrived at the courts (separate address) but submission had not been received.

The clerk gave a copy to the panel and within 5 or 10 minutes we were heard.

Could I submit that a document relating to the proceedings was not sent or received by the tribunal at an appropriate time (albeit our documents)? The DWP would never have seen it or been able to make comment. Or could they say the document was accepted and reviewed properly (before and during the hearing) and later, before a decision was made?

[ Edited: 4 Feb 2016 at 04:23 pm by robverco ]
Mike Spencer
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Welfare Rights, Child poverty Action Group

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That’s an interesting question - whether the document is “received by the Tribunal” when it arrives at the clerks office or when it is given to the panel.  I think probably the former.  But in the alternative you could say it falls under “some other procedural irregularity” (Rulre 37(2)(d)).

The other hurdle will be showing that it is “in the interests of justice” for the appeal to be set aside (Rule 37(1)(a)).

robverco
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Welfare Benefits Officer, Wandle Housing

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Thanks, Mike.

I will submit it is an ‘other irregularity’ in addition to trying the ‘not received’. The tribunal ‘may’ admit evidence whether or not it has been seen by a previous decision maker (Rule 15(2)(ii)) but I am not sure they took enough time (5 minutes before the hearing) to decide correctly to admit.

I wondered to submit that if the DWP’s DM had seen the submission they may have changed their decision or at least wanted to respond or comment in reply before the hearing.

We know in reality this is highly unlikely and the response would have most probably been neutral but it ‘could’ have happened. Perhaps highlighting where we pointed out the lack of consideration of a PIP mobility award (standard but 8 points in moving). Therefore in the interests of justice the DM should have had the chance to respond before the hearing?

I am thinking to submit this as a two-parter with the request for RoP and SoR.

[ Edited: 4 Feb 2016 at 12:05 pm by robverco ]
robverco
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Welfare Benefits Officer, Wandle Housing

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Would you mind checking if I am on the right track here?

SI 2008 No. 2685
Rule 15(2)(ii)
Rules 37(1)(a), 37(2)(a)(b) and 37(2)(d)

A’s submission to the Tribunal was hand delivered to Office on Friday 2016 during business hours but was turned away and not accepted by reception.

The submission was then sent recorded delivery to Office and signed for at 10.31 on Monday February 2016.

However the submission had not been received by the Court before the hearing at 10.40 on Friday February 2016.

A copy of the submission was handed to the Clerk and put before the Tribunal panel for the first time only five or ten minutes before the appeal was heard.

Although the Tribunal may admit evidence whether or not it has been seen by a previous decision maker we submit that in the interests of justice A’s submission should have been sent to the decision maker for comment before an appeal was heard.

We submit therefore that a document relating to proceedings was not received by the Tribunal at an appropriate time or in the alternative the refusal of Office to accept the submission by hand followed by Office failing to forward the register delivered submission to the Tribunal satisfies the ‘other procedural irregularity’ rules.

past caring
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I think you’re going to have a couple of problems with this…...

1. Any expectation that HMC&TS; was going to turn things around quickly enough to distribute the submissions of one party (i.e. you, the rep) to the other (DWP) whilst leaving that other party sufficient time to respond and possibly revise the decision under appeal in circumstances where the submissions of the first party were received 7 days before the hearing is entirely unrealistic.

If you wanted to ensure that the DWP had opportunity to respond you should have served the subs on it directly - and preferrably with more than 7 days’ notice.

2. It is unusual for the DWP to respond to a rep’s submissions even where there is more than adequate time - the majority of cases where it does respond are those where the appeal is a complex one and the tribunal has directed a response (possibly out of a previously adjourned hearing). It is routine for there to be no additional response to the appellant’s subs from the DWP - and routine for us to proceed as reps in such circumstances without batting an eyelid.

So I think an argument that runs along the lines of suggesting a procedural error on the basis that the DWP might have changed its decision and thus obviated the appeal had it received the appellant’s subs is doomed to failure - particularly in circumstances where even had those subs been succesfully served to HMC&TS;, this would have been only 7 days before the hearing. Were that argument to be pushed with any vigour and any success, I can see the (quite reasonable) response of tribunals to be one of starting to exclude evidence and subs where this had not been served 14 days or more before the hearing. That would be something that would affect us and our clients far more than the DWP.

3. And that’s before having to cross the hurdle of having to show that this supposed procedural error materially affected the outcome - i.e. maybe the DWP would have changed its decision - but it’s the tribunal’s decision we’re concerned with, not what the DWP might have done…

4. Further, as the tribunal’s decision was reserved, it’s very unlikely you can say with any certainty at this stage that it failed to properly consider your submissions and evidence* - it had time to do after the hearing. You’re only going to be sure on this point - and it’s the most likely route of attack that you’re going to have - once you receive the RoP and SoR.

* - of course, there will be some cases where you can say it with certainty; where the sub raises a specific argument which, if that argument had been read and understood by the tribunal, would then have required the tribunal to explore the issue with the appellant and/or rep in the hearing (i.e. the argument cannot be properly dealt with solely by considering it post hearing) - but even then, where you know in advance that’s going to be the case, it would be a rare case indeed where you’d not be better off waiting for the RoP and Sor so as to be able to show absolutely the argument had not been considered…..

[ Edited: 5 Feb 2016 at 12:10 pm by past caring ]
robverco
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Welfare Benefits Officer, Wandle Housing

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Good points. Some of which I also thought of last night.

I guess in short the RoP and SoR may provide the basis for a far stronger argument. I could then use the limited time the panel had the sub/evidence for emphasis.

In this case also it was push to get the sub ready for 7 days prior (hence the hand delivery attempt) so I agree any shorter time limit to provide subs would be a challenge. But I had not thought of sending direct to DWP (emailed LAs before) so will do (if needed) next time.

Thank you for your input.

Terry Craven
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Benefit Advice & Appeals Service, Liverpool Veterans

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If a set aside decision request is refused., can the SoR and RoP be applied for on the receipt of refusal or is it best to seek leave to appeal to the UT.

HB Anorak
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You need the SOR before applying for permission to appeal to the UT, so that would always be a preliminary requirement.

It is a good idea I think to request SOR at the same time as making an application to set aside because it is not obvious in the procedure rules that the time limits to do both are consecutive rather than current.