× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Procedure when appealing to the UT

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Good morning

I have a case where the Tribunal made an adverse finding of credibility about a client and consequently refused her appeal, disbelieving much of the evidence she gave. The adverse finding was based on the Tribunal disbelieving evidence the client gave about a report which she had received from her solicitor (the specific details aren’t relevant; the question is about procedure here). The truthfulness of this evidence could have been easily tested by a simple enquiry to the Solicitor, but the client was not given the opportunity to make such an enquiry to substantiate her claims. She was not warned prior to the hearing that the report from her solicitor would be seen to call into question her credibility.

I therefore obtained a statement of reasons and applied for leave to appeal on the grounds that the Tribunal should have adjourned to give the client the opportunity to obtain evidence from her solicitor to substantiate the evidence she gave at the hearing. The application for leave to appeal has been passed to the same Judge who sat on the original FtT, and he has now issued a direction that she obtain the evidence from her Solicitor within 28 days.

To me, this is an inappropriate way of dealing with the application for leave to appeal. The Judge doesn’t in my view have the power or authority to do things that the Tribunal should have done but didn’t do at the hearing. The question is simply did the original Tribunal err in law? If it clearly did, the decision can be reviewed and set aside. If it arguably did, leave to appeal to the UT should be granted. If it didn’t, leave to appeal should be refused.

The point at this stage is not even whether the evidence from the solicitor did or didn’t substantiate the client’s claims; that will be a job for a new Tribunal (and we are of course in the process of getting the solicitor’s evidence anyway). The question is whether the original Tribunal erred in law by not giving the client the chance to obtain this evidence, so I think the Judge’s actions in response to our leave to appeal aren’t an appropriate response.

What do people think?

Jol    

John Birks
forum member

Welfare Rights and Debt Advice - Stockport Council

Send message

Total Posts: 1064

Joined: 16 June 2010

Looks like a Review of a decision under 40.—(1) of THE TRIBUNAL PROCEDURE (FIRST-TIER TRIBUNAL)
(SOCIAL ENTITLEMENT CHAMBER) RULES 2008

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488476/consolidated-sec-rules.pdf

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

In my view, if it’s a review and the Judge concludes there’s been an error of law, then the outcome of the review should be to set aside the decision, not to start asking for further evidence. The error of law was the Tribunal’s handling of the appeal; the actual substance of the evidence that could have been obtained from the solicitor is at this stage irrelevant to the question of whether there was an error.

John Birks
forum member

Welfare Rights and Debt Advice - Stockport Council

Send message

Total Posts: 1064

Joined: 16 June 2010

I’ve not come across this situation but I think you’re probably at the ‘undertaking’ stage rather than a ‘taking action’ stage but I may be wrong.

The point you raise about an adjournments - is it that you asked and were refused or that you didn’t ask but the tribunal should have considered this themselves?

At this stage it looks like you’re attempting to appeal the facts found. Whether the tribunal were entitled to reach their conclusion all depends on the evidence put before the tribunal.

If there was evidence that you either believed or knew to be available and could have been made available but was not there before the tribunal and they were unaware or not made aware, this would leave you in a difficult position as a rep. imho.

AlexJ
forum member

Trafford Welfare Rights

Send message

Total Posts: 178

Joined: 4 July 2016

Thanks for the responses. My initial post was focussing on the unusual procedural approach taken by the Judge, the merits or otherwise of the actual leave to appeal arguments wasn’t really what I was asking about which is why I didn’t go into the specifics and details of the case - I’ve considered and discussed this side of the case at length with colleagues. My concern was that the Judge is issuing a direction for further evidence,  but in reviewing the decision he should focus solely on what did and didnt happen at the hearing, and whether an error of law occurred at the hearing, Further evidence obtained after the hearing is irrelevant in that process. In the same way a UT Judge wouldn’t dream of using a med report submitted after a FTT hearing as evidence in deciding whether the FTT erred in law at the hearing itself. The Judge would ask ‘did the tribunal err based on the evidence before it at the hearing?’ I hope that makes sense!

Cheers

Jol

past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 1116

Joined: 25 February 2014

Whilst I agree that the focus should be on the procedure during the hearing, rather than the content of any evidence that might have been presented, this is only true up to a point…..

Generally, it is for the party who is advancing a case to provide the evidence in support of it (Kerr builds on this principle rather than changes it). This is particularly so where the case advanced is one which is an improbable one….

Let us say the main plank of my argument in a notional capital appeal is that I received advice from a solicitor that if I bought a second, buy-to-let property, this would not count as capital for benefits purposes, so that deprivation could not have been deliberate when I subsequently signed over that property to my son (i.e. I may have deprived myself of capital but this could not have been deliberate in circumstances where I had good reason to believe the capital didn’t count to start with). There is a presumption that legal advice I received from a qualified solicitor would be correct. So the case I am advancing is improbable. It is for me to provide evidence to support my case - i.e. that I was so advised by my solicitor.

If I have also had the benefit of professional and competent welfare rights advice in preparing this appeal* then I do not think a tribunal is obliged to adjourn in order to give me further opportunity to provide evidence of the wrong legal advice I received. And the tribunal may be entitled to make adverse findings on my credibility.

(* I would not advance such a case for a client without either documentary evidence that they did receive said advice or good circumstantial evidence - e.g. the solicitor has been disciplined/struck off for repeated incidents of negligent/wrong advice - you’ve got to get to grips with the issue somehow and not just hope to slip one past the tribunal)

Coming back to the case in hand, we don’t know that the nature of the advice was of this kind, of course, but if it was…....

- the client is going to need the evidence to have a decent chance with any new tribunal, so why not try to get it?

- yes, the judge should decide the issue simply on what happened in the proceedings but a) if the case was of the type in the example I gave, the tribunal might well have been entitled to make the credibility findings it did and b) if you do obtain the evidence from the solicitor it looks like the set-aside is in the bag.

- in any event, if your leave request is refused (pretty much standard where we are - I always expect to have to apply to the UT for leave) you’ve still got the same arguments to run to the UT anyway.

In short, what’s to be lost by trying to get the evidence?

ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1221

Joined: 13 April 2016

AlexJ - 14 December 2016 09:51 AM

Good morning

. The adverse finding was based on the Tribunal disbelieving evidence the client gave about a report which she had received from her solicitor (the specific details aren’t relevant; the question is about procedure here).

Jol

well, the detail might be relevant.

what sort of report?

is it that she was making a PI claim and the solicitor had obtained a medical report in course of said claim? and said report being relevant to the point at issue?

and what did they not believe? the report itself?  the fact that it had been obtained by the solicitor?

was the report in evidence?