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Top Decision Making and Appeals topic #4046

Subject: "Copying caselaw to the people who wrote it..." First topic | Last topic
Dan_manville
                              

Caseworker, Birmingham Tribunal Unit
Member since
08th Jun 2004

Copying caselaw to the people who wrote it...
Wed 26-May-10 02:37 PM

I've just been preparing an application for leave to appeal and have sent it with none of the caselaw I have referred to appended.

I wonder whether, in the days of the interweb on everyone's desk it's much nicer to save the trees and let the powers that be look it up.

It's fair to say, R2R sub that it is; if I pinned the caselaw to it it'd be about three inches thick and my being a tree friendly kind of soul thinks that's not a good thing.

What do you do?

  

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Replies to this topic
RE: Copying caselaw to the people who wrote it..., Kevin D, 26th May 2010, #1
RE: Copying caselaw to the people who wrote it..., clairehodgson, 27th May 2010, #2
RE: Copying caselaw to the people who wrote it..., ariadne2, 28th May 2010, #3
      RE: Copying caselaw to the people who wrote it..., Tony Bowman, 03rd Jun 2010, #4
           RE: Copying caselaw to the people who wrote it..., Neil Bateman, 03rd Jun 2010, #5
                RE: Copying caselaw to the people who wrote it..., clairehodgson, 03rd Jun 2010, #6
                     RE: Copying caselaw to the people who wrote it..., ariadne2, 03rd Jun 2010, #7

Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: Copying caselaw to the people who wrote it...
Wed 26-May-10 07:22 PM

In short, whether working with LAs or claimants, I always include full copies of legal authorities relied on. Further, if the other party refers to such authority and doesn't provide it, I insist on it being produced if I am unable to locate a copy. In the handful of cases involving Cmmrs/UT, I have always included full authorities.

On more than one occasion, the authority cited has turned out to be nothing but an out and out blag - including an occasion where those acting for the clmt insisted a High Court judgement "proved" HB must be paid (it did nothing of the sort and was not remotely connected to benefits).

On the flip side, I have also seen authorities cited in circulars and guidance blindly adopted by LAs which, when scrutinised, have turned out to be less than relevant.

The difficulty is that, perhaps surprisingly, most LAs do not have a library of decisions, whether electronic or otherwise. I'm not sure what is available to the DWP but, suffice to say, I have seen nothing to indicate it is (generally) any better off or organised than most LAs in this regard.

Further, not every piece of case law is readily obtainable. Occasionally, it proves impossible to obtain it - there are approximately 20 decisions / judgements I would love to lay my hands on but have never been able to obtain.

Further, I'm not aware of any single benefits related website where a comprehensive set of decisions / judgements can be found. For example:

UT site: Only a selection of UTDs/CDs are place on the site.

Bailii: Again, a selection of UTDs/CDs (mostly duplicated from the UT site). However, a very good selection of case law from 1996/7 onwards.

Rightsnet: An excellent source for older and "hard-to-get" CDs and some otherwise unobtainable case law.

All of the above sites a free to access for case law etc. In addition, there are two subscription sites containing primarily HB/CTB case law - HBinfo and another I choose not to give the oxygen of publicity to.

WIthout wishing to blow my own trumpet, I suspect my own collection of HB/CTB related case law is likely to be amongst the most comprehensive in the UK (it certainly beats that of any LA I have formally worked with). I also keep a "quick-reference" guide for the purpose of locating relevant authorities for particular cases (it is of variable use!). But, by definition, that leaves every other benefit in the hands of others, if anyone.


  

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clairehodgson
                              

solicitor, CMH Solicitors, Durham
Member since
09th Apr 2009

RE: Copying caselaw to the people who wrote it...
Thu 27-May-10 07:13 AM

if i cite a case in support of a proposition, i tend to take the view i should supply a copy of it. i know there is a view that tribunals etc are supposed to have access to these things, but do they? also take on board practice with my other hat on - if e.g. counsel is making submissions, citing authority, in a court, that authority will be handed up to the judge so s/he can read it, unless for example it is so well known everyone does know it. i also quote from statute/regs

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Copying caselaw to the people who wrote it...
Fri 28-May-10 05:40 PM

Full-time tribunal judges have access to proper law libraries at their venues. Part-time judges and non-legally qualified members are likely to have access only to a collection of badly out of date with bits missing CDs at the venues and only when they get there on the day - and the usual internet sources of course. In my experience the non-legally members think that law is for lawyers, so they don't let it worry them.

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: Copying caselaw to the people who wrote it...
Thu 03-Jun-10 12:36 PM

Generally, my approach to tribunal submissions is to avoid - as far as possible - using authorities.

When I do, if I'm referring to a reported decision I do not include it. If a non-reported decision I would usually, but not always, include it. Really depends on how 'obvious' the case is. This is the general norm because reported decisions are available at tribunal venues.

Sometimes, instead of sending copies or even referring to specific authorities, I refer to the relevant pages in the law volumes, especially if there's a discussion point in the annotation that considers numerous judgements that are relevant to the case.

  

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Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: Copying caselaw to the people who wrote it...
Thu 03-Jun-10 04:36 PM

I think it's best practice to copy CD/UTDs as you reduce the chances of irritating a Tribunal. The convention is that one should at least copy unreported CD/UTDs.

That said, if Tribunals insist on this it is a further barrier to accessing justice and sits uneasily with the inquisitorial role of Tribunals for claimants going it alone (particularly those given a written submission by an advice agency to deal with unrepresented) or for smaller advice agencies with very limited administrative support.

To be honest I think the bigger problem is those advisers who frequently attend Tribunals without written submissions, even in complex and high risk cases. I am just picking up the pieces of one such case involving an ESA refusal.

  

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clairehodgson
                              

solicitor, CMH Solicitors, Durham
Member since
09th Apr 2009

RE: Copying caselaw to the people who wrote it...
Thu 03-Jun-10 07:16 PM

having said all that, i've just reviewed my subs for a tribunal i've got on monday morning, and i've not cited any CD's - i suspect on the grounds that it's a fact specific matter, and i take it as trite law that for living together, it has to be shown they are in the same house and it's for DWP to prove that...hope i don't end up at UT regretting that one, LOL

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Copying caselaw to the people who wrote it...
Thu 03-Jun-10 08:07 PM

As I said above, you cannot assume that a full set of CDs is available at all tribunal venues. I have found this out to my annoyance at more than one venue which is only part-time. The big full-time offices, where full-time judges live (like Fox Court in London and at Sutton) have proper mini-law libraries, but part time venues like Reading and Aldershot have almost nothing and it is usually incomplete.

  

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