I've just applied for leave to appeal to the Upper Tribunal and this has been granted, but the first-tier Tribunal is now reviewing its own decision and scheduling a further hearing. It's the first such case I've come accross and wondered if anyone knows what the procedure is in this situation? Is there any guidance out there?

Many thanks for any information anybody has.

Wed 29-Apr-09 06:55 PM by Ruth_T

There are some FAQs on the Tribunals Service website for users of Social Security and Child Support Tribunals about the changes brought about by the Tribunals, Courts and Enforcement Act 2007. http://www.appeals-service.gov.uk/Documents/3nov08/TCESSCSAFAQs.pdf

It's not particularly comprehensive, but it links to the The First-Tier Tribunal (Social Entitlement Chamber) Rules 2008, and states: 'When considering an application for permission to appeal to the Upper Tribunal, the Judge will first consider whether to review the First-tier Tribunal’s decision. Where there is an error of law, it is possible for the Judge to set aside and re-decide the case instead of referring it to the Upper Tribunal.'

Thanks for that.

There's one thing I'm not too sure about, though. The client has been sent an OSSC1 form. I thought this had been abolished and I can't understand why this form would be appropriate if the decision is going to be reviewed.

Can anyone shed any light?

No the Ossc form or new equivilant is still correct when applying to the Upper Tribunal, what is probably happening is the first tier judges now have more power to set a side and it appears the process has confused them, set a side and leave to appeal are 2 seperate decisions but usually set a side is dealt with first, so I suspect the leave to appeal was dealt with first , and decision issued , you should stick with the deadlines and apply to Upper tribunal rather than await the set a side or review decision.

This may help:

www.administrativeappeals.tribunals.gov.uk/FormsGuidance/forms.htm

On Steve's behalf thanks for the replies. This was my case and Steve was dealing with it whilst I was on extended leave. The client has now got another hearing date.

Can I join in with a related issue?

Scenario - PCA appeal. Lost at tribunal. Statement of reasons deals with only 6 out of the 7 PCA physical descriptors that we put in issue. Application made for set-aside and leave to appeal to Upper Tribunal - solely on the basis that reasons were not given why the 7th descriptor (carrying 15 pts) was not satisfied.

Now it gets interesting - a "supplemental statement of reasons" is issued following directions from a different (f-t) tribunal judge. The statement is drafted by the same judge who heard the case in the first place and now covers all 7 of the descriptors in issue.

Is this lawful? Is it covered by Rule 39 and/or Rule 2?

This is the first time I've come across this issue, so any pointers would be gratefully received. New time limit for seeking permission to appeal is 6.7.09.

Thanks in advance - Matthew

Look at s.9 TCE Act - the tribunal is using its review power to amend the statement of reasons. That will then give a new right to seek permission to appeal to the Upper Tribunal.

I was a bit surprised the first time I came across this too!

Simon Ennals

Thanks Simon - I have looked at s9(4)(b) - you're quite right. Darn!

Thanks also for replying so quickly.

Matthew

Hi Matthew

Have you got a copy of the record of proceedings?
Be interesting to see if this ties in with 2nd sor.

The short answer is - no I don't have a copy of the RoPs. However, the new reasons around the relevant PCA activity are essentially as follows:
- MS Dr clinical findings
- lack of supporting medical evidence from Appellant's own GP
- lack of credibility for Appellant's own evidence

The new reasons are fairly sound so I think we're struggling. Would the RoPs actually help? What do you think?

Sorry - I am overworked and more than a little cynical.
1st sor only covered 6 points. When this was challenged 2nd miraculously remembered the 7th.
Perhaps rop may show this was not adequately explored?
Worth getting anyway - it may give you some ideas.
Have they explained reasons for Appellant's lack of credibility?

Thanks for your further advice.
I am likewise overworked & cynical - I missed the absence of SoR. Thank you.
In answer to your last Q, unfortunately yes.
Matthew

Have to admit, I hadn't read the TCEA too closely. I'm wondering if s.9 renders CA/4297/2004 to be of historical relevance only (a case where it was found that a Tribunal couldn't have two attempts at a SoR).

Or, will it depends on the facts? i.e. is there room to distinguish between a genuine amendment when compared to a complete rewrite?

I've had a case go through this already.

Basically, leave was requested on the basis of inadequate reasoning, amended reasons issued to try and cover the (admitted by the judge) previous inadequacy.

I then reapplied for leave on grounds that decision remained inadequate. A second ground on the basis that amending the reasons in that manner, while allowed by the Act was wrong in law was added. The application quoted para 18 of CA/4297/2004 and stated that although the power was now present, the "dangers" identified by Comm Levenson remained.

I also brought in paras 21 & 22 of CA/4297/2004 and said that this still stood even with the introduction of the new powers in TCE Act.

The decision was set aside by the (same) judge on the grounds of inadequate reasoning so I've no idea if the review argument holds any water but its worth having a go in my opinion.

David

CI 2324 2008

might be of help as well?

summary of CI 2324 2008 from rightsnet briefcase ...