I have just been refused leave to appeal by a commissioner and, to be honest, I am staggered. This is a pretty complex DLA case where the client received no award at all at tribunal. The hearing was poor, with a chair who had made his mind up from the start, a doctor who plainly did not comprehend the criteria for high mobility, and a care expert who seems to think there is an aid for everything and would argue that a limbless person would not fail the cooking test as they could use a perching stool.
My submission raised several points - ignoring written evidence, wrong legal test for high mob., misinterpretation of testimony and, having elicited that she could perform certain tasks, failure to further enquire as to how, length of time, consequences to health etc,
Commissioners response is "I can only interfere with the decision of the tribunal if it got the law or procedure wrong. In this case it did not do so."
Some of the points I raised have successfully challenged other tribunal decisions, which have been set aside. I don't understand why they are not valid in this case.
Wher do I go from here?

Judicial Review of the Commissioner's decision??

Not easy,

was the decision 1. irrational? (you seem to think so), or
2. unreasonable? (ditto), or 3. misdirected in law? (ditto)...sounds like JR grounds to me...(2 and 3 relatively easier to rely upon)...

Thanks for that. One of the outstanding features of this case is that the record of proceedings does not fully support the statement of reasons. It is, of course, handwritten and barely legible. Took me some time to puzzle it out and I was there! Assuming that the Commissioner did not request a typed copy, could this constitute a procedural error?

I think there is case-law that an illegible RoP is an error of law, but that it does not need to be an exact transcript of the proceedings or everything that was said there as long as it is (as the regs say) "sufficient to indicate the evidence taken". Equally it should not record the Tribunal's discussion of the case, or their choice of evidence for the decision which should be the subject of a second, private note by the chairman.

It is permissible in the decision for the chairman to refer to matters not expressly recorded in the RoP of which he has recall.

CSDLA/524/2007 looks in some detail at the requirements of a ROP and considers what defects constitute an error in law.

I have requested set aside on grounds r.o.p. illegible. Client is also considering judicial review. In the meantime we now have a second appeal! We applied for DLA again immediately after tribunal. This was refused and reasons stated are basically that the tribunal was right and DWP agree with statement of reasons/r.o.p. Obviously we will be taking this to a fresh hearing. Wondering about the implications if we win??? Seems that if 2nd panel make an award they are saying DWP decision wrong, yet DWP merely rubber-stamped tribunal verdict, which was confirmed lawful by commissioner?
Any thoughts?

If there has been no changes since the origional decision (confirmed by tribunal) then I am not certain what a another tribunal can do.
See for example.

CH/0704/2005 & CH/0943/2003

Thanks - we are looking into JR. Will make sure we have loads more evidence for next tribunal as well, and focus more on minor complaints rather than the major issue which was deemed not disabling.
Will advise any developments.