Hi all,

I have recently successfully had a struck out appeal reinstated. It was orginally struck out on the basis that it was a misconcieved appeal. The tribunal chair, following representations from us, has reinstated it.

I have checked the D&A Regs (Regs 46-48) about reinstatement of appeals, but I'm still unsure about one issue. When the appeal is reinstated, does this mean the issue of whether or not it is misconcieved has been determined (ie in the claimants favour if it's reinstated) or do we still have to go to tribunal to determine the misconceived issue. (The actual substantive appeal is unlikely to be listed as we are appealing a test case on this issue to the Court of Appeal, and the Appeals Service have postponed the hearings in the related cases)

The client has now received papers concerning whether or not she wants an oral hearing of the misconcieved application, but the direction on the LQM's decision to reinstate, states that the appeal should be reinstated and postponed with the others awaitng the test case.

The legislation doesn't seem to state what occurs when the appeal is reinstated, and following the Chairs decision, I had thought he misconcived issue was settled and the matter now proceeds to the substantive issues.

Any help would be great

Lee

Appeals are only 'struck out' when the appellant fails to respond to the TAS 1 form sent to them with the submission.Do you mean that an appeal put to TAS as outside jurisdiction has been admitted as within their jurisdiction? If that is the case, then it has been decided that they are able to deal with the matter.

We don't actually have 'misconceived' appeals anymore, since June/July last year, but we send appeals considered to be 'outside jurisdiction' to TAS so that the chair/LQPM can look at it and decide if it can be admitted.(This is also what we do for late appeals, unsigned appeals etc.)A good example of the 'outside jurisdiction' appeal is the C and P Reg 4(evidence requirement)decision, which used to be put up as misconceived because outside jurisdiction as it was a S of S decision with no right of appeal, but which now has to be prepared as a full submission for the Tribunal with the Reg 19 -backdating- provisions as well.

Wed 09-Jun-04 04:12 PM by ken

I'm not sure why you feel that there are no such things as 'misconceived appeals' since June/July last year?

DMA Reg 48(4) does allow for the striking out of a 'misconceived appeal', which Reg 1(3) in turn defines as an appeal that is frivolous or vexatious or obviously unsustainable and has no prospect of success.

I agree with Big Lee that the legislation doesn't seem to explictly state what occurs when such an appeal is reinstated.

However, if the appeal was struck out specifically and solely on the basis that it was supposedly misconceived, and but then reinstated following representations that it was not, would that not mean that implicitly the appeal has to be seen and treated as a valid appeal, and dealt with procedurally in the normal way?

I'd agree with Ken on this one. The case involved a claim for bereavement benefit which was made more that 3 months after the death of her spouse (we are challeneging the 3 month time limit in an ongoing test case)

The Department initially argued that the appeal was misconcieved, in that it had no prospect of success. (The application was unfortunately made before the amendments kicked in which extended the time limit for a bereavement payment to 12 months from the date of death.)

My understanding was that if the appeal was reinstated, then it would be treated as a valid appeal, and dealt with normally. But, the fact that my client has now recieved this form asking her whether she wants an oral or paper hearing to determine the misconcieved issue has thrown me a bit!!

Anyway, I shall send in our submissions that it's not misconceived, and raise this problem with TAS. I'll let you know what they do.

Cheers for the help,

Lee

When I said that there were no misconceived appeals since last year, what I meant was that appeals officers no longer classified them as such without preparing a submission.We used to just send a copy of the actual appeal to TAS, say it was misconceived and wait for agreement, then file it away.Now we have to write a full submission,go to Tribunal and explain why there is no prospect of success. I dont do BB appeals (yet!), but something like a Social Fund Mat Grant claim made more than 3 months after the birth would previously have been misconceived but now isn't.