Applying for a FTT set aside: what is procedural irregularity

Hello comrades,

This question has been asked before: What is a ‘procedural irregularity’ for the purposes of setting aside a FTT decision under rule 37 TP(FTT) Rules?

In this case - the client didn’t attend an oral hearing.  She chose not to. The decision came back that the appeal had been refused, no reasoning given.  When we received the reasoning, the stated facts were in stark contrast to the facts as she stated in her grounds for appeal and no legal references were given at all.

Can I apply for a set aside because I am finding it hard to be sure on what basis there has been an error of law since none was quoted in the FTT statement of reasons.

If I apply for a set aside under r.37 - I am going to struggle on the grounds that she didn’t attend because she chose not to although I can I make the argument that she didn’t have representation in the first instance and having now got advice would like to attend a hearing to clarify the complexity of her case.  Also I don’t understand exactly what procedural irregularity is (merely administrative?) and whether it applies in this case.

Or should I be looking at other grounds?

Help please!

Thanks in advance.

EKS

Tribunal always needs to apply its mind to the issue of whether the appeal can be determined fairly and justly without oral evidence from the appellant, even where the appellant has opted for a paper hearing - and there will be some cases where it may be possible to argue error where this issue has not been referred to at all in the statement of reasons.

But assuming an informed decision on the part of the appellant to opt for a paper hearing, you’ll be up against it.

In any event, it’s not really possible to advise without knowing more - we don’t even know the benefit or issue involve as yet.

The FtT won’t be in error simply because it rejected the appellant’s account in favour of the DWP’s - and if the appellant’s account was only that (i.e. effectively assertion without any documentary evidence to support that assertion) the FtT might well be able explain its reasons for rejecting that account in no more than a few words…...

on the other hand, if in fact the appellant’s account didn’t contradict whatever was in the DWP’s papers, the FTT would have to explain why they had facts in total contradiction to that…...

Eh? Maybe I’m missing something but if the appellant’s account was the same as the DWP’s why the appeal?

Regardless, we need more info. :)

Procedural irregularities are many and varied but generally not connected to the assessment of evidence and finding of facts.

A few examples:

- walking into the tribunal room and finding a Presenting Officer already there.
- a document missing that had been sent in and acknowledged.
- a medical examination by the medical professional (excluding IIDB).

I’m not sure I disagree with the idea you’ll be up against it because the appellant chose not to attend. There’s caselaw out there about the idea that a paper hearing must first address whether they can proceed in the absence of the appellant and address that, regardless of the wishes of the appellant. Too many tribunals go down the line of not even thinking about that but, more importantly, not recording their thoughts. Equally some generic statement about preferring the evidence of the HCP because blah blah is easily challengeable as an error of law.

You have to make a case why she really needed to attend though. That’s harder but hardly impossible.

In itself the tribunal finding facts other than what the appellant stated them to be is… what tribunals ought to do. They weigh the evidence and decide afresh their own findings of fact. If they concur with the appellant then the latter wins. If they don’t then they lose. No administrative error there. Far better to look at whether the decision contains an error of law to enable a UT appeal or whether a fresh claim may assist.

Many thanks all - will let you know how it goes.

When you say no law is contained in the decision, what do you mean? If its an ESA appeal, for eg, then even if reference isn’t made to the schedule in the regulations, any discussion about them is inherently referring to the law as that’s where they’re defined iyswim?

R(A) 1/72 is still a good start point in guiding your thinking on looking to identify an error in law.

Hello all,

I promised an update.

It was an income support claim for a carer with a disabled child who undertook some self-employment work as a one off (that is the argument anyway).

Paul – thanks for the case law and hope all good at Age UK. When I said no law was referenced, I mean that in the set of reasons for the decision, the FT judge did not reference any law she was relying on in order to come to her decision.

I requested that HMCTS consider either a set aside on the basis of the need for an oral hearing (based on the Tribunal procedure rules and case law) and possibly insufficient reasons (again based on Tribunal procedure rules and case law) but I also asked that the alternative they consider there was an error of law in the decision and set out my reasons for that (based on my interpretation of the law and case law).

Delighted to report that the decision has been set aside - the judge said:

‘I have decided to review and set aside the decision because there is an error of law on the face of the decision.  The tribunal failed to provide sufficient reasons for its decisions and failed to give any explanation for its decision to proceed in the absence of the parties.’

It has been remitted for a new hearing where the claimant must attend as her ‘oral evidence may assist the tribunal.’
Many thank again everyone for your input.  Couldn’t have done it without.

Wonderful, well done Emma.

Age UK is generally good too thanks.

Hi all - raising this theme again:

Client had her PIP appeal dismissed - awaiting SOR/ROP

In mean time she did feed back certain comments the judge made   to her whilst taking oral evidence including

” I can only use of one of my arms and yet I can carry out all personal care tasks myself -why can’t you”  ( her problems with personal care had been fully detailed in a written submission)

would a judge’s comments about what he can do (despite disability) constitute unfairness?

stevemac - 03 October 2016 12:14 PM

Hi all - raising this theme again:

Client had her PIP appeal dismissed - awaiting SOR/ROP

In mean time she did feed back certain comments the judge made   to her whilst taking oral evidence including

” I can only use of one of my arms and yet I can carry out all personal care tasks myself -why can’t you”  ( her problems with personal care had been fully detailed in a written submission)

would a judge’s comments about what he can do (despite disability) constitute unfairness?

 

i should have thought so.  doesn’t at all sit right with me.  and frankly, some personal care tasks a woman has to undertake are somewhat different from those of a man (for instance, trying to do one’s bra up/undo it when only one arm is working due to a shoulder problem, in my case.  was very tedious and had to get partner to help)

On the face of it, it’s problematic - but context is everything.

- FtTs, whether we like it or not, are properly entitled to want to take evidence directly from an appellant about their needs even where we have set those needs out in a written submission. Reps do occasionally misunderstand what a client says about their needs and so a tribunal is entitled to check directly with the appellant. More often (not saying it happened in this case, obviously) there’s a problem with a rep simply rehearsing what the client says, even where this cannot possibly be accurate - e.g. the ‘only be able to walk 30 metres in 10 minutes’ scenario we’ve all encountered.

Unless the appellant has very obvious/clear communication problems of a kind that cannot be overcome with communication assistance (in which case I’d question why the appellant is at an oral hearing) there’s absolutely nothing wrong with the FtT checking/verifying/probing the statements contained within a submission.

- the ‘I can do it with one arm, so you should be able to do it with two’ thing is best avoided, but again, it depends upon context - it doesn’t sound that this was quite what was said in this case. I will sometimes refer to my own occasional (once or twice a year, lasting two to three days at most) difficulties with washing and dressing as a result of rotator cuff/tendonitis problems as a way of impressing on clients the need for a degree of precision regarding the frequency/regularity and duration of variable conditions. I doubt I’d do that when sitting as a judge in a FtT - but this sounds more like an (admittedly unadvisable) attempt to get the appellant to better explain their needs than a ‘if I can do it, you should be able to too’ rejection of their evidence….

Think you’re just going to have to wait to see what the SoR and RoP throws up….

Thanks both- will await SOR/ROP