Complaining about a judge’s failure to supply a SoR

My client was successful at his PIP appeal tribunal in May 2014 and awarded the enhanced rate of both components. DWP had originally awarded zero points and took great offence at the decision on the day which had included criticism of their/ATOS’s failure to understand my client’s condition and its life threatening nature.
DWP immediately sought a SoR and have absolutely refused to issue any level of payment in the interim.
We are still waiting on the SoR and everyone just states “oh, you can’t tell a judge to hurry up.” Meanwhile my client is getter sicker and has no additional funds to meet his quite complex disability needs.
Has anyone complained about a judge? I am thinking of raising a complaint with the Tribunal President but I am not very clear what the outcome might be.
Will the judge be instructed to produce the SoR?
Can the judge simply refuse to do so?
Does that then create reasons to set aside the decision and are we back at first tier again?

Has anyone had a similar situation?

One option is a complaint about what is essentially [...] poor customer service. I would use the ordinary complaints procedure and copy in any Important People, making it very clear that your client’s health is seriously suffering and the DWP are ostensibly using this as a delaying tactic to avoid complying with the decision. The Tribunal has an overriding duty to deal with cases fairly and justly (rule 2 of the Tribunal Procedure Rules 2008), which includes avoiding delay. The time limits for producing an SoR are also very clearly enumerated in rule 34:

(5) If a party makes an application in accordance with paragraphs (3) [application for SoR] and (4) the Tribunal must, subject to rule 14(2) (withholding information likely to cause harm), send a written statement of reasons to each party within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period.

The judge cannot refuse to produce an SoR and I don’t think anyone sensible could suggest that the judge has complied with rule 34(5).

The other option is, I suppose, judicial review of the FtT if your client is legally aidable, basically seeking a mandatory order to produce an SoR. A failure to provide an SoR is a breach of the Rules and a breach of the rules of natural justice.

You could, in theory, apply to have the decision set aside under rule 37(1) and (2)(d) - some procedural irregularity - but that would mean a re-hearing, which you don’t necessarily want unless you are confident your client can handle it and will win again. There is also a one month deadline that you would have to ask be extended.

I would also complain to the DWP whatever you decide to do. If they actually want to appeal the decision, they should be the ones hurrying the judge. If they are not serious, then they should put PIP into payment and backdate. I don’t have a precedent for this but that’s what feels right. Come to think of it, I wonder whether this is grounds for JR as they are, in effect, refusing to comply with the decision. I would imagine that your client’s health is not only suffering because of his underlying health condition, but by the stress of this and not having enough money - which makes the DWP’s inaction to put PIP into payment and learn from their mistake all the more insidious.

Rope their MP in; the decision to suspend payment of a component pending further appeal is discretionary so the award could be paid if you shout loud enough.

The Judical Complaint rules are unlikely to help you as they’re based more around conduct unbecoming the post IIRC.

Asking the judge to provide the SOR is attacking the wrong end for me. The tribunal decision is now the only one in existence. It needs to be enacted pending anything else they may wish to do about that decision. Increasingly DWP choose to disregard basic legal principles though and do as their puppet masters request. They do have the discretion to do this but the thing with discretion is that it can’t be fettered. I’d be willing to wager money on them never being able to cite a case where they had the same discretion but chose to exercise it in favour of the appellant.

At bare minimum I would look to lodge a formal complaint in all such cases and follow up with legal threat e.g. JR. I have also found embarrassment a useful tool. Lodge an appeal against the DWP decision. It’s validity matters not. You’d be surprised how fast such things produce much backtracking when offices are measured against a reduction in the number of such things.

As an aside, I am mightily amused by any discussions on what a judge can and cannot do with regard to SORs.

I once won an £80 o/p appeal which patently shouldn’t have been near an appeal tribunal but Bolton DWP were a parallel universe of subjectivity and so off we went. Of course such a huge amount deserves a PO and so there he was arguing black was upand white was down. Suffice to say the case was won on my written sub. alone but several pointed observations were made by the chair with regard to the futility of allowing such a case to appeal when DWP simply needed to occasionally read and understand what was in front of them etc. etc. You can imagine the tone. With hilarious predictability the PO refuses to move as the rest of us are standing to leave and politely asks for an SOR.

The chair, absolutely wrongly, said “No!!”. The PO persisted and foolishly (albeit entertainingly, I had brought observers for training purposes) then advised the chair that he could not do this. “Bravo” thought I.

The chair leaned forward in his chair and addressed the PO. “This case is blatant maladministration and a waste of public funds to boot. There will never be a recoverable overpayment. Were I to produce the statement you request it would say that in detail and I would expect Mr. Hughes would pursue the matter to rein in such cavalier disregard for the law and the caselaw. NOW, which part of “No” did you not understand. Get out!”.

I would pay good money to see that of a tribunal judge. Preferably, not directed at me.

Ouch!! I would have so loved to have been a fly on the wall for that one…though, as Edmund says, glad I wasn’t on the other end of it…

Priceless.

Edited to say: going back to the OP, I had a similar situation with a successful DLA appeal a year or two ago and I did eventually pressurise the DWP into paying the client pending the SOR. I had to provide much evidence to demonstrate the financial and psychological fall-out she was experiencing and also involve her MP but we did get there in the end.

Thanks for your replies everyone.

The DWP refused hardship payments on the grounds that they did not accept he should have scored any points; had they believed he was entitled to at least 8 points then they stated they would have released payment at the standard rate pending the SoR.

I am going to make a complaint to the DWP. I will demand to know what steps they have taken to progress this matter and I will ask for confirmation from them that this case has been considered by a senior officer in light of the comments made by the tribunal about how they have understood the condition previously. I will also write to his MP who was written to before by a support worker but there appears to have been no reply.

I was interested in the suggestion that we throw in an appeal irrespective of any prospect of success - how do we get past the need for a MR to even get past the tribunal admin process?

Wonder what their approach to nil points reg 29/35 cases would be???

EPC - 21 November 2014 05:14 PM

My client was successful at his PIP appeal tribunal in May 2014 and awarded the enhanced rate of both components. DWP had originally awarded zero points and took great offence at the decision on the day which had included criticism of their/ATOS’s failure to understand my client’s condition and its life threatening nature.
DWP immediately sought a SoR and have absolutely refused to issue any level of payment in the interim.
We are still waiting on the SoR and everyone just states “oh, you can’t tell a judge to hurry up.” Meanwhile my client is getter sicker and has no additional funds to meet his quite complex disability needs.
Has anyone complained about a judge? I am thinking of raising a complaint with the Tribunal President but I am not very clear what the outcome might be.
Will the judge be instructed to produce the SoR?
Can the judge simply refuse to do so?
Does that then create reasons to set aside the decision and are we back at first tier again?

Has anyone had a similar situation?

Who has said that you can’t tell a judge to hurry up?  I chased up a statement of reasons (it hadn’t been going on this long) and the person I spoke to at the tribunal service said that they had emailed him asking him when he was going to do it.

I would try a phone call to the tribunal service first, before thinking about making a complaint.  Paperwork could have got lost in the post or the judge could have been sick.

iut044 - 18 December 2014 04:22 PM

I would try a phone call to the tribunal service first, before thinking about making a complaint.  Paperwork could have got lost in the post or the judge could have been sick.

We have had numerous contact with TS and they have done what they can. They put matter before said judge and his reply was “yes I know it is urgent but I can’t say when it will be done.”

DWP meanwhile have responded to my complaint with their usual lack of detail and mostly ignoring the 3 main points I concluded with in my complaint.

Further phone calls today have merely resulted in escalation to Director General level. They seem completely ignorant about the Rules and Procedures and maintain they can only keep ringing the TS…

We are trying to get the MP involved but they can’t trace 2 letters already sent so starting from scratch with them.