UT Advice Rule 40(3)(b)

Hi, as I am a relative novice when it comes to UT I am looking for some help and guidance if possible.

After being refused permission to Appeal to UT by FTT, I appealed directly and this was accepted by UT.

I have now been sent a UT Judge’s direction referring to rule 40(3)(b) which from reading I believe is to shorten procedures, by sending the case back to a FTT asap, without reasons being given.

I am unsure if this is common and I’m not sure this is really what I want - I would have preferred the UT Judge(s) to remake the decision based on the evidence already held, but obviously don’t want to make matters worse for my client.

If I do not accept the shortened procedure then is the timescale for the UT to deal with it likely to be inordinately long.

Appreciate any guidance.

Thanks Greg

Even if 40(3)(b) is used very brief reasons will be given - they just won’t be voluminous.

Full reasons probably won’t delay things hugely - probably only 3-4 weeks if the case is straightforward.

The issue of the UT substituting its own decision is quite different - it will only do this if a) the FtT found sufficient facts to enable the UT to substitute its own decision and b) the facts as found by the FtT aren’t in dispute - i.e. the only way the FtT went wrong was in applying the law to the facts it found. These cases do happen but they are relatively rare - most cases involve the FtT not making sufficient findings of fact, or its findings of fact not being supported by the evidence (in which case those findings fall away and new findings of fact need to be made).

The UT will not (and cannot) substitute its own decision for that of the FtT if more fact finding is needed. It will set the decision aside and remit back to a new FtT. Full reasons or no reasons will not alter that.

Thanks Past Caring,
It’s a PIP Appeal and we had no issue with FTT’s fact finding. The dispute was solely around the fact they had stated that ‘they could see no reason why the appellant could not use adapted cutlery to assist with cutting up food’, again we agreed with this, however they then did not award any points for Activity2. I had wrongly assumed this would be a straightforward 2 points for 2b(i), and hoped the UT would correct this.

Thanks again
Greg

It sounds as though the Upper Tribunal thinks there’s been a mistake by the tribunal but doesn’t feel that the facts are clear enough to remake the decision so thinks the best way to deal with the appeal is to send it back as soon as possible - if that is the case, I suppose waiting for full reasons won’t assist….

The UT will not (and cannot) substitute its own decision for that of the FtT if more fact finding is needed. It will set the decision aside and remit back to a new FtT. Full reasons or no reasons will not alter that.

I am not sure that is right.  If you look at some of Charles Turnbull’s decisions on exempt accommodation in HB for example you will see that he often hears new evidence and finds new facts.

The UT looks at a case in two stages: based on what the FtT saw and heard, did it go wrong in law?  New evidence will rarely if ever shed any light on that threshold question.

If the FtT did go wrong in law then all options are on the table including the UT in effect acting like an FtT and rehearing the case on the facts: see section 12(2)(b)(ii) and (4)(b) of the TCE Act 2007.  As I say, Charles Turnbull is quite keen on that approach.  I have actually taken part in a UT hearing in which he did exactly that: if you have a long evening, or a short table leg, have a look at CH/3189/2009 in which the final decision relied partly on new oral evidence about the facts presented to the UT.

Usually, however, the UT does not see this as a useful way to spend its time and so it sends the case back to FtT for further fact finding if that is what is required.

Actually, to save you a couple of hours of your life that you’ll never get back, you only need to read as far as para 3 in CH/3189/2009 where Judge Turnbull summarises how he has gone about it:

“In the circumstances which I refer to in more detail below it was accepted at the hearing that, if I were to set aside the Tribunal’s decisions, I should, rather than remitting the matter to a fresh First-tier Tribunal, make the necessary further findings of fact and re-make the Tribunal’s decisions. I heard what was in effect a substantial amount of further oral evidence from the Claimant, in answer to questions put to him by me ...”

You’re right, of course, but those cases are relatively rare. I have one myself at the moment where we’ve had an oral fact finding hearing, followed by a full oral hearing, followed by a case management hearing in the Judge’s chambers - but that’s exceptional. I wasn’t intending to cover every possible eventuality, just what appeared to be the scenario in this particular case.