Tue 20-Oct-09 09:55 AM by Kevin D

Following on from another thread, I've had reason to compile another letter where the decision making body has again refused to forward a legitimately made appeal to TTS. I've decided to share the bulk of that letter. Feel free to cannibalise if it helps. If it turns out I have overlooked something that makes the letter plain wrong, let me know and I'll ask Rightsnet to edit / delete as appropriate.

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Dear.....

Formal request for <IS/JSA/HB/CTB etc> Appeal to be admitted directly

Intro…….

The Request

I am asking for this request to be placed before a District Tribunal Judge for determination.

In short, I am asking that appeals against <benefit(s)> decision(s), already made by myself to <decision making body>, are formally admitted by a Tribunal Judge even though those appeals have not been forwarded to The Tribunals Service (TTS) by <decision making body>.

Further, should the appeal be admitted, I respectfully ask for a Direction to be issued to <decision making body> requiring it to provide the following:

- a full response / submission relating to ALL matters that are connected to my appeals, whether or not directly raised in my appeals; and

- full copies of all relevant documentation, including (but not limited to) notification letters and all internal administrative documents (including “post-its” and similar), whether held in paper form, or electronically, or otherwise; and

- full details and records of contact made with <decision making body> by myself, however so held.

It is asked that all the above should be provided, irrespective of <decision making body’s> view as to the relevance of any record and/or document.


Grounds for The Request

I have submitted a letter to <decision making body> clearly appealing against <benefit> decision(s) but, to date, <decision making body> is refusing to treat those letters as appeals and, in turn, are refusing to forward those appeals to TTS. To the best of my knowledge, I have responded within all relevant time limits and there are no grounds on which <decision making body> can refuse to accept properly made appeals. Appeals have been submitted as follows (copies enclosed):

<date of appeal + date of decision(s)> ??

<optional: Further information is briefly summarised and set out in the attached Appendix>.


Legal argument relating to admitting a direct appeal

I am led to believe that, since November 2008, the relevant procedural legislation for appeals is contained in The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. If this is incorrect, I apologise and have to hope the relevant provisions for <benefit> appeals are the same in substance.

My understanding is that my appeal is not one excluded under Rule 23(1). My appeal has been made in accordance with Rule 23(2) and, to the best of my knowledge, Rule 23(6) is also satisfied.

Following on, I have been made aware of a reported Commissioner’s decision - R(H) 1/07 (copy enclosed). Within that decision, (the then) Cmmr Jacobs found the Tribunal’s jurisdiction was not dependant upon the local authority referring the case to The Tribunals Service. I can see the current Procedure Rules were not in existence at the time of Cmmr Jacobs’ decision; however, those assisting me have been unable to find anything under the new rules that would negate the reasoning set out by Cmmr Jacobs. In particular, nothing in Rule 24 requires that an appeal must be referred to the Tribunal by the decision making body; it simply requires that a response must be delivered. It is suggested there is a clear distinction between the making of an appeal and the separate action of a response to that appeal.

It is also suggested that admitting my appeal would in any case be entirely proper (and lawful) when taking into account Rule 2 (Overriding objective...) and, further, Article 6 of Schedule 1 to the Human Rights Act 1998 which provides that I am entitled to a fair hearing within a reasonable time by an independent and impartial tribunal. It is submitted that <decision making body’s> conduct, to date, directly results in a breach of Article 6.


Summary

On the basis of all the above, I strongly submit that my appeal should be directly admitted, even though not referred by <decision making body>. If my appeal is not so admitted, I am left with no practical form of redress as I cannot afford to take other forms of legal action. Should clarification of any of the above be needed, I shall be happy to respond accordingly.

I look forward to hearing from you and I sincerely hope your reply is positive.

Encs. <list encs>

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that's a rather good letter! thanks...

There is also rule 7 of the tribunal rules:

Failure to comply with rules etc.

7.—(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
(a) waiving the requirement;
(b) requiring the failure to be remedied;
(c) exercising its power under rule 8 (striking out a party’s case); or
(d) exercising its power under paragraph (3).
(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—
(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness;
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises).

25 Supplementary powers of Upper Tribunal

(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal—
(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and
(b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.
(2) The matters are—
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal’s functions.
(3) Subsection (1) shall not be taken—
(a) to limit any power to make Tribunal Procedure Rules;
(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.
(4) A power, right, privilege or authority conferred in a territory by subsection (1) is available for purposes of proceedings in the Upper Tribunal that take place outside that territory (as well as for purposes of proceedings in the tribunal that take place within that territory).

“Person” as in 7(3) is not defined in the regulations but in The Interpretation Act

Person “includes a body of persons corporate or unincorporated”.

Tue 20-Oct-09 12:02 PM by Kevin D

Oops.... edit required....

"....between the making of an appeal and the separate action of a response to that appeal."

should be

"...between the making of an appeal, the referral of that appeal to TTS and the separate action of a response to that appeal."


PS: Fantastic nevip. I will amend accordingly.