I know this is a bit late for a Friday, but any help on Monday would be appreciated......

Have just seen client. She had an unsuccessful IB PCA appeal on 28/05/09.

She asked for a Statement of Reasons and lodged a request for permission to appeal to the FtT in time in October 2009.

She never heard anything so chased it up in January 2010 and was told it was never received. She was advised to apply again which she did. After applying again, she was told that her file had subsequently been found, but it was never made clear to her whether her original request for permission to appeal had been found.

In any event, her second application was admitted late but permission to appeal has now been refused (due to no arguable error of law) and client can obviously now go to UT.

However, on going through the papers it appears;

1. She had passed numerous PCA's in the past - this was the first one she had failed. She also receives IIB. She was unrepresented at the hearing. The Tribunal asked her if she had her previous PCA reports with her, which she obviously did not as she had never failed them before. They also asked if she had her medical assessment report for IIB with her - again, she had been successful in renewing this so did not have a report.

The Tribunal asked her if she wished to adjourn but she told them she did not know (it was never made clear why they were asking these questions) and the hearing went ahead.

2. She never received a Statement of Reasons, having asked for it - all she was sent was the handwritten Record of Proceedings, which she could not read properly.

So I am thinking of making a late application for set aside (the original decision was now 9 months ago) as well as appeal to UT, in the hope that we wont have to go to UT.

My questions are;

1. Can the FtT extend the time for applying for a Set Aside (I think they can under over-riding objective)?

2. Should the Tribunal have adjourned to get previous PCA's/ IIB medical reports rather than ask the client if she had them? I believe there is caselaw on this but cannot remember where it is.....

3. I presume the lack of provision of a Statement of Reasons is a serious procedural error and would justify a set aside on these grounds alone? Or can a Record of Proceedings count?

4. If we have to go to the UT, is a lack of a SOR a problem? Again, I think there is caselaw on this but it is late and I cannot think any more...

The decision to refuse permission to appeal was made by a District Judge who is normally pretty good, so why didn't he spot the above issues?

Any thoughts/ guidance much appreciated.

This is a bit off the top of the head but here are some thoughts.

One reason the Tribunal may have asked the appellant if she had any reports (I agree it is a weird thing to ask) may be the frequent paragraph in the response that "records show that the claimant previously satisfied the PCA on X, Y and Z. An exhaustive search of the document store at Heywood has failed to find any trace of the relevant files". Does that figure in your case? In other words the Dept has preempted the Tribunal by saying "we can't find them so don't waste time by adjourning for them". If that is so the Tribunal may have been grasping at straws.

It is of coure always relevant to consider what the claimant's medical condition is. By no means everyone with a medical condition remains incapable of work for life. And what did they say in the IB50? You do find people who report no problem in an area in the IB50 - yes, even with longstanding problems - and only mention them at the moment of appeal.

Thanks Ariadne. Have now checked the new Tribunal procedure rules (from Jan 10) - a set aside has to be asked for within 28 days but there is always the overriding objective in Rule 2, so Iwill use that.

I just cannot beleive that the District Judge did not pick up on the fact that only a Record of Procedings was issued and not a full Statement.

Also the DWP submission said nothing on previous PCA's so I am using CIS/516/2008- failure to take into account previous PCA's is an error of law, whether or not the Tribunal knew about them - in that case, the Tribunal did not know, in my case they did because the client told them.