HMCTS adding details of a past appeal to the papers?

Hi,

Something I’ve never seen before - is this “normal” or some kind of mix up?!

Chain of events:

- Client applies for DLA and is awarded LRC, LRM.
- Lodges oral appeal for DLA, wanting HRC, HRM.
- Applies for ESA at the same time, which is refused; lodges appeal to be determined on the papers.
- A few months later, DLA tribunal awards client HRC but not HRM.
- DWP accepts the decision and puts DLA in payment straight away - no SoR or RoP requested by either party.
- ESA appeal refused on the papers. Client comes to us and we get the decision set aside by the District Tribunal Judge without any UT involvement - now awaiting oral re-hearing.

So far so good. Client came to us after the ESA appeal was refused on the papers. The bundle sent to my client consists of a standard 28 page response from DWP, with each page neatly numbered from 1-28 inclusive. HMCTS are notified that we will represent, and send us a copy of the bundle. But upon inspecting this new bundle, there are a few extra pages… which are the decision notice and record of proceedings of the earlier DLA appeal. What was previously neatly numbered as page 26 has been scribbled out and replaced with ‘25A’, and the decision notice from the DLA appeal is now page 26, with the RoP listed as pages ‘26B’ to ‘26F’ (there is no ‘26A’). The final page of DWP’s response is still at page 27. Oddly enough, the original page 26 (now 25A) was the first page of a telephone call log, with the second page on page 27. So the decision notice and RoP appear in the middle of the call log!

This is definitely not present in the original bundle of papers the client received, where ‘25A’ was still numbered 26. DWP didn’t request a SoR for the DLA appeal, so quite how the RoP has ended up in the bundle of papers, I don’t know. Does HMCTS routinely provide the RoP to DWP even when they don’t request a SoR? Is it possible that HMCTS erroneously added the decision notice and RoP of the earlier appeal, rather than the decision notice and SoR of the earlier refusal of the current appeal (which are not present)?

The DLA RoP is unfavourable regarding mobility, and our main ground of appeal in the ESA claim is for the mobility descriptor. So I could understand DWP wanting to make a point of it, but as I said, it was not in the original bundle sent to my client, and if DWP had made a supplementary submission to HMCTS, you’d expect HMCTS to have sent a copy to the client (who insists they didn’t) and it would’ve surely been inserted at the end of the first submission, rather than renumbering the existing pages to shoehorn it in…?!

If it was added by mistake (i.e. a mix up where the decision notice and SoR of the first hearing of this appeal should have been included rather than the decision notice and RoP of the earlier DLA appeal), are there any grounds to have it removed from the papers? If HMCTS hadn’t sent us a fresh copy of the bundle, we would have never known the RoP was present - perhaps DWP don’t know either, if it was added in error.

Thanks for any input.

Think I mentioned this in another thread yesterday. I think it’s deliberate. My client has had 3 DLA FTT hearings before getting CC @ LR for an inexplicable finite period. The UT hearing on that was yesterday. Adjourned for 7 days for a further sub. About to start a separate thread on that.

In the meantime, PIP was claimed. Awarded points for DL and M but falls short. MR gets more points on DL but still falls short. Appeals. Awaiting date but I have the appeal papers and, sure enough, in the appeal papers is a copy of the last statement of reasons (awarding CC @ LR) and a copy of the initial refusal of leave to appeal from Liverpool. The submission specifically asserts that the appellant sent these in. They didn’t and I certainly didn’t. So, looks like it was deliberately sought and they’ve chosen to mislead as to why and from whom. I’ve drafted a written submission which hasn’t gone in yet. It tackles the issue head on; points out that leave to appeal was granted. If I can delay it for a few weeks it may also be able to say that CC was awarded up to the determination of the PIP claim and maybe MC.

Would be interested to establish whether such inclusions are a policy decision.

Hasn’t this been the case for quite a few years? I wouldn’t wish to count the number of times that negative decision notices have been included in the appeal bundle. They very rarely happen to mention that in most cases they had been overturned either at reconsideration or FTT. I have also experienced further ‘negative’ decisions being inserted into a ‘revised’ bundle prior to a FTT hearing.
I believe that it is policy for the DWP to ‘paint’ as negative picture as possible. This I also feel feeds its way into how MAXIMUS/ATOS/CAPITA operate.

In my case at least one of the documents could not have come from DWP. They would not to the best of my knowledge receive a copy of the Tribunal Services local refusal of leave to appeal.

Mike Hughes - 05 October 2015 09:44 AM

In my case at least one of the documents could not have come from DWP. They would not to the best of my knowledge receive a copy of the Tribunal Services local refusal of leave to appeal.

Although given what does appear in a bundle or get sent out by HMCTS ‘by mistake’ from time to time these days it probably depends on whether the HMCTS clerk knows what (not) to send to each party or reprographic staff know what in the file should or should not be copied into the bundle. Never happened in the ‘good old days’ of the Tribunal Service.

Behave.

It has always happened with the Tribunals Service. Right now I’d say we’re in a lull before the next bout of horror.

Over the years I have had appeal papers containing

- confirmation of terminal illness for the wrong partner in a couple.
- a stringly worded letter from the Regional Judge to a specific part-time judge with regard to their tardiness on decision making. Addressed to their home address obviously.
- draft minutes from a TUG meeting complete with personal comments about the participants.
- family photos from a part-time judge.
- there was a period about 5 years ago where they played regional shuffle. Every medical report for Salford cases appeared in Trafford appeal papers and so on.

We all do it.  About 2 years ago I accidentally stapled one of my own bank statements to a tribunal submissions and sent it off.  HMCTS were smart enough to realise the error and let me know.

Some good news just in time for Christmas, which may assist Mike in his appeal, if it is still live.

A formal complaint was made to HMCTS about the inclusion of the past papers, along with a request under Rule 15(2)(b)(iii) to not admit the past papers, stating that it was unfair for the judiciary to include its own material in these circumstances, and that the onus was on the appellant and respondent to adduce the evidence that they wished to rely upon, citing R(I) 1/65 and [2009] UKUT 61 (AAC).

This was forwarded to a Judge and interpreted as a request for directions. Decision came back in the client’s favour today, along with an apology and an admission that the papers were indeed added by HMCTS (as opposed to either of the parties) - material from past papers removed from the current appeal and a fresh bundle (sans past papers) has been delivered to the parties.

My client had DLA CC awarded for an indefinite period by the UT but not MC. Effectively that expired when PIP was claimed. The PIP appeal has been delayed because a district judge ordered that all copies of the DLA appeal (all 3 of them) decisions were included. I think this, and I’m being polite, is more than a tad naughty. All 3 DLA appeals were successfully appealed to UT. The third UT decision found its own facts at an oral hearing and awarded DLA CC at LR indefinitely. The first two UT decisions found unequivocally that the DLA appeals had made the fundamental error of simply finding no facts at all. Not even adopting facts asserted by the DWP. Simply failing outright to find any facts.

So, whilst I could ask for directions and removal of the lot, my client has had enough and doesn’t want further delays. It seems easy enough to argue that the decisions of the first 2 tribunals are of no relevance whatsoever. The evidence on those appeals is also irrelevant, pertaining as it does to a period long before the PIP claim.  The 3rd appeal was also erroneous in law having also made a fundemantal error in awarding for a time-limited period and failing to say why. All 3 of the appeals are irrelevant as any evidence they contain about distance walked etc. is irrelevant to reliably, repeatedly and so on.

One wonders in such a case whose side the independent judiciary think they’re on.

Mike Hughes - 11 January 2016 09:48 AM

The PIP appeal has been delayed because a district judge ordered that all copies of the DLA appeal (all 3 of them) decisions were included. I think this, and I’m being polite, is more than a tad naughty.

Agreed - it’s more than a bit naughty. If DWP had wanted to rely on them, they should have included them in the paperwork themselves. They probably didn’t because they know they’re irrelevant.

Presumably you’ll send in the UT decision notices setting aside each of the 3 FtT decisions?

Mike Hughes - 11 January 2016 09:48 AM

One wonders in such a case whose side the independent judiciary think they’re on.

Indeed. And, in my experience, clients pick up on this too and think they’re doomed before they enter the hearing room.

It wasn’t the DWP who asked for the DLA decisions to be added. It was a DJ who withdrew the appeal from the list and asked that all prior DLA paperwork was included.

Interestingly, it was the same DJ who heard the 3rd DLA appeal which was overturned at UT because it was a fixed term award without explanation. So, what’s been requested is copies of 2 decisions where the tribunal were found to be so incompetent that Judge Jacobs could be viewed as throwing up his arms in despair and frustration at the fact the same matter came to him twice for the same reason. Added to this we have decision 3 where the facts found by the tribunal were held to be correct but the length of needs was not. Better still, none of those facts have any relevance to PIP as there’s no reference to reliability, safety etc. Can’t imagine why the government wants to reduce tribunal costs!!!

I, of course, fell over myself to assist the poor clerk charged with collating all of this and provided not only the decisions requested to speed things up but also the UT decisions overturning each one. In doing so I noted that the DJ had not requested the UT decisions, despite their being far more relevant than the decisions themselves. It seemed, sadly, a more pragmatic approach than antagonising matters further by making a perfectly sane request for directions that none of this should be included.

Ho hum.

Morning Mike,

The redoubtable Judge J most esteemed and venerable he is to. Much missed Chairman from ‘the good old days’ still recall being ‘requested’ to stay back for a quick word or three - and an apology because one chair had a hissy fit because I refused to be sworn in when representing a client at a Family Credit Appeal (yes I do feel my age).

Had interesting telephone conversation - phoned ESA on behalf of client to say we were seeking a MR on his ESA decision allowing 6pts, but that we would be submitting a letter from his GP (who had told my client not to even consider returning to work as ‘the additional stress will lead you to tip over the edge and you’ll end up hurting yourself or someone else…’. The GP all but brought him by the hand to launch the MR.

The response I had from DWP was that they’d enter the details in to the system screen but ‘The policy (as of 15th January 2016) is that requests for MR must be in writing and the letter and any additional evidence must be Emailed to ESA Decision Maker by Jobcentre Plus ‘;‘As you can not trust the mail…’. I questioned this and they went off to check and insisted that yes this was the case - ‘you will have to ring in when you have everything ready and we will give you an appointment at the local Jobcentre for them to take it and email it to us’.

This proved some what moot as the client received a MR decision (not revised) dated the 19th January despite the fact that the letter and Dr’s support letter were recorded as being received by the Decision Makers on the same day - no reference at all within the MR to the Dr’s comments. - They are currently reconsidering the MR including the GP’s support letter.