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O no, they can’t do that!
Not so much a question, more an expression of frustration.
July 2013 decision from a first tier appeal placing client in a Work Related Activity Group. This has become a real problem for client as serious issues of Mental Health make any work related activity impossible to carry out. Met client for first time at an appointment in March 2014 and decide to take two courses of action in an attempt to have client placed into a Support Group:
1. Seek superesession of current decision with letter to DWP,
2. Seek Statement of Full Written Reasons for Tribunal’s decision of July 2013
Option 2 a bit of a long shot as very late; but worth a try as no absolute limit for application, although doing within a month overcomes any additional barriers to success.
Today a letter from HM Courts & Tribunal Service:
“Thank you for your recent letter which is atttached.
The appeal was heard and decided in July 2013 and all deadlines for appealing the decision have now passed. The file is destroyed after 6 months as we can take no further action after that length of time.
I am sorry we cannot help you with this matter.”
Yours sincerely,
Admittedly the one month time limits have passed some considerable time ago, but it is not unknown for requests to be made for late action, whether that be leave to appeal or late applications for Statement.
Ah well, late leave to appeal without Statement of Reasons I suppose.
An old colleague of mine raised a complaint to HMCTS regarding the destruction of files in light of no upper time limit for requests for statements.
It was about the same time they ran out of rack space at Birmingham ASC for live files and started losing loads for the second or third time… The PA room (Putting Away room) for dead files was colloquially known as “the black hole” for want of staff to do the filing around that time too; if you didn’t get your statement request in on time you could forget it and hope your argument was strong enough they’d set the decision under scrutiny aside. I was once told “it’s not lost, we just can’t find it, it’s definitely here somewhere though”; I pursued that up to the Parliamentary Ombudsman I was that p****d off with them.
You can guess what happened to my colleague’s complaint… stony ground and all that!
Yes, I’ve heard the same thing apparently for HMCTS in this neck of the woods destroying case-papers with undue haste. Surprised that it doesn’t fall foul of some kind of data protection law.
That’s exactly what I was thinking. I’m no expert on DP law but surely docs of that sort must be retained for more than 6 months.
We retain client docs for 6 years.
I have fallen foul of the policy as well. In this particular case I was working for the Council on an HB appeal - we thought it raised an important point of law about the child care earnings disregard overlapping with salary sacrifice, but the Council had not applied for an SOR until they contacted me nine months later. Now when it is the decision maker applying out of time you are obviously going to get very little sympathy and rightly so, but I thought well OK lets give it a shot.
The first answer from the FtT was no SOR possible because the papers have been destroyed. So the logical next step is to apply for permission to appeal without a statement, for which the Procedure Rules provide. We said the the Council could provide a full set of papers - all that would be missing would be the ROP and since this turned purely on a point of statutory construction the UT didn’t really need an ROP.
We got a reply from a Judge which it seemed to me wifully missed the point: he interpreted our application as an application for permission to appeal against the interlocutory decision not to provide an SOR, and rejected it on the basis that he could see no error of law in the refusal to provide an SOR.
OK, we didn’t really deserve to get permission to appeal because nine months’ delay was all the Council’s fault, but I mention this in case you encounter similar obfuscation/failure to understand the issue. Might even be worth including a statement in the application along the lines of “for the avoidance of doubt, I seek permission to appeal against the substantive decision of the First-tier Tribunal on the ESA claim - I am not challenging any interlocutory decision, such as the refusal to proviode an SOR in itself. I am relying on Rule 38(7)(b) and (c) which allows the Tribunal to grant permission to appeal against the substantive decision where no SOR has been provided”
While this thread is in mind, I remember at a meeting many years ago posing the question to the then regional chairperson as to whether there was any truth in the rumour that the shredding machine at TAS was placed at the front and just below the fax machine. I’m afraid that he didn’t see the funny side.
I don’t know if this is the same time as you’re referring to, Dan, but maybe around 2005/6 I was told by an official at Birmingham that files were taking themselves off to hide behind filing and cabinets, etc.
No the ASC came about at roughly the same time the TCEA came into being so after 2007.
They used to be pretty good at file handling while they were still at Auchinlek House… oh the days of person centred processing, how I yearn for them back. People were routinely assigned to do the PA. It was less of an issue then; substantially smaller caseload, enough shelves to put them on, max 3 months to get a statement and a regular trawl for old files to shred them.
It was only once they moved up the road to the ASC that it all went pear shaped.
That’s exactly what I was thinking. I’m no expert on DP law but surely docs of that sort must be retained for more than 6 months.
We retain client docs for 6 years.
There’s a quite wide ranging exception for legal proceedings in the DPA, S35(2) IIRC. I think the onus to store files is mitigation against litigation (see what I did there)
The Limitation Act lays down 6 years for a lot of causes and I suspect that is at the foot of the usual file retention policies.
You can’t sue a court for a Judicial decision so no point their keeping a file beyond when a decision could lawfully be challenged.
And I think we’ll agree that appeal problems have arisen mostly through JC+/DWP/Gov’t tampering, messing, scheming, fibbing and general unfit for purposeness.
I’ve already posted one link to Churchill the dog today so for fear of repeating myself I will say simply this…
Oh yes!
Edit…
But then I got to thinking that now they’ve tampered, messed, schemed and fibbed to such a degree they’re scared of completely breaking the appeals system so are trying to stop people using it by entirely foul and unlawful means.
Where’s mi pitchfork?
[ Edited: 4 Apr 2014 at 01:54 pm by Dan_Manville ]Intrigued by this. There are DPA issues re: retention of relevant information but they can be balanced against lack of space etc. That doesn’t mean a DPA complaint couldn’t be made. I think we should make more of them.
However, I’m not sure this comes down to what TS retain. I suspect it comes down to what the judge retains and whether the relevant judge ever gets to hear of the application. In some areas applications for statements can be allowed phenomenally late so what’s the difference in those areas? Is it just that TS haven’t run out of space or is it more about the commitment to discover what decision by whom?
My guess is that it’s more the latter. You would routinely name the decision; venue; date of hearing etc. I suspect if you were to add in the name of the judge and ask for confirmation that the request has been put to them and then complain when you get no such response that matters might take a different turn.
Doubt if there is a breech of the DP rules the fifth principle is;
Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
Most of the guidance from the DPO goes on about not keeping data for longer than you need. Can’t find anything that say you must retain it for a period except that you must not delete data just to avoid disclosing it to a DP request.
Doubt if there is a breech of the DP rules the fifth principle is;
Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
Most of the guidance from the DPO goes on about not keeping data for longer than you need. Can’t find anything that say you must retain it for a period except that you must not delete data just to avoid disclosing it to a DP request.
Come on chaps, give us a chance! Thank goodness my colleague new what DP, DPO etc meant because I didn’t.
Thank you.
Patrick