Permission to appeal refused – interests of justice?

Having read the decision it does look like on the surface that there has been an application made on the basis of error of facts rather than law. Your subsequent expansion didn’t really enlighten as, from my perspective, none of those would be clear errors of law as case law exists on all of them that does not oblige a tribunal to address them.

However…

1) I always do a long sub. when I am applying for leave to appeal. Over the years I have found it useful to lay out the full extent of the argument at the outset for avoidance of doubt. I don’t think it’s anything to be embarrassed about provided it explicitly targets errors of law not fact. Liverpool clearly don’t like this as they routinely refuse leave but it does mean the full argument is already laid out for an application to London and, for the most part, one or more grounds are then, equally routinely, usually accepted without a need for further clarification.

2) I have had some experience of some UT judges using a response remarkably similar to the one you have uploaded. Remarkably similar. I have begun to suspect the use of something akin to a template response. I have certainly had at least one that left me utterly bamboozled as to how some very clear errors of law were turned into “you just don’t like the decision do you, and that’s not an error of law!”. Funnily enough… Judge Jacobs. Have made one application for a set aside. It was summarily dismissed as “UT judge is independent and if that’s how they read your application then that’s how they read it”.

Mike

Wow thanks everybody again for the responses.  This is amazing..  I am in the middle of some other stuff right now but keep on glancing at the forum as it is so much fun!  Will respond as soon as I get a chance..

wr4 - 28 May 2015 05:37 PM

@past caring
I really appreciate you taking the time to chime in.  I will definitely put the Statement of Reasons and Record of Proceedings up when I get a chance and hopefully you/others might interested enough in taking a look..  As for my submission, I am a little embarrassed at its length and it does contain a couple of errors - I am worried about being chastised by you expert rightsnet members!  I did try my best though and might post it at some point if I pluck up the courage..  Thanks again for your thoughts and for the CPAG course recommendation as well, I will look into it for sure.

No-one on here will chastise anyone for inexperience and/or honest endeavour.

Can someone remind me the main Social Security Commissioner’s case that lists the possible grounds for appeal and what are they - I think there was about 6 particular grounds.

Yes, that would be very interesting..

Are you thinking of Iran v SS Home Dept?

You’re probably thinking of the Court of Appeal case - R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982. The court summarised the most common errors of law at para. 9 of its judgement,

i) Making perverse or irrational findings on a matter or matters that were material to the outcome (“material matters”);

  ii) Failing to give reasons or any adequate reasons for findings on material matters;

  iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

  iv) Giving weight to immaterial matters;

  v) Making a material misdirection of law on any material matter;

  vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

  vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

This is the case most frequently referred to by the UT.

Link here;
http://www.bailii.org/ew/cases/EWCA/Civ/2005/982.html

If anybody else has received any permission refused decisions similar to mine, where error of law arguments are dismissed with similar wording/language I would be interested to hear from you or even better if you could post decisions here.  Thanks a lot.

Can’t find my Judge Jacobs ones. However, I’ve managed to find Judge Levenson and

“I cannot substitute my own view of the facts for that taken by the tribunal, which is what the grounds of appeal are really asking me to do.”

I also have, again from Judge Levenson,

“The points raised in the grounds of appeal, for all that they might have been dressed up as points of law, essentially challenge the First Tier Tribunals findings of fact.”. 

These involved cases where the application for leave to appeal was based solely on either breach of natural justice or getting the law itself wrong. Neither involved anything like insufficient findings of fact or indeed any challenge of the facts at all.

My recall is that I have had at least one, possibly two, decisions from Judge Jacobs utilising something very similar to that latter phrase and one of the two was uncannily close to that. Unfortunately I can’t recall which cases as they were some time ago. Should I come across them I will happily post details.

A couple of things to add:

1) Perfectly possible judges read each others decisions and absorb and use key phrases which appeal. Nothing sinister in that.

2) Gist of one of the above two was very much that the case had gone on too long (having been to the UT before) and now needed to be brought to an end! Make of that what you will…

Decision of Judge Levenson of March this year refusing permission to appeal to UT:

“I can only interfere with the decision of the First-tier Tribunal if it got the law or procedure wrong. In this case it did not do so. I cannot substitute my own view of the facts for that taken by the tribunal, which is what the grounds of appeal are really asking me to do. I note the grounds of appeal but in general terms the First-tier Tribunal was entitled on the evidence before it to make the findings and decision that it made for the reasons that it gave.”

I suspect this is boiler-plate phraseology for a refusal.

@Edmund Shepherd
Thanks a lot, much appreciated..

And there’s nothing wrong with that.

As wro’s I’m sure we all make use of standard letters and that we all have standard paragraphs that we cut and paste into subs - I know I’d be under even more pressure in what is an already overloaded job if I was constantly having to reinvent the wheel.

There’s no reason why UT judges should be any different. If you stop to think about it, aside from decisons on our own applications, the UT decisons that we get to see are those where permission has been granted, so that win or lose, detailed reasons are then given - but there must be a high proportion of cases that do attempt to reargue the appeal without identifying any arguable error of law. I’d be surprised if UT judges didn’t have standard responses to deal with these….

(this isn’t a comment on the present application - I’ve not had chance to read it yet)

I would echo what past caring has said, there is nothing wrong with stock/template responses per se, if that is even in fact what we are seeing..

I think it is a stock response. On paper there is indeed nothing wrong with that. However, we should all know that what happens in practice can go slightly wrong.

What concerned me where I’ve seen it used on my cases (as above) is that is was simply not appropriate or relevant to the arguments which were made. I’m an experienced rep.; have no problem identifying errors of law etc. but I’m also brutally realistic. I am of the view that whilst you can almost always find an error of law (I can only recall 3 cases in 30 years where I held my hands up and thought the decision was flawless and could not be challenged) we all have cases we might pursue because of a sense of injustice and may try to wedge an issue where the tribunal simply got the facts wrong (through mis-hearing etc.) into an error that probably isn’t an error. The need to throw everything against the wall and hope something sticks does occasionally arise and indeed some UT judges have been incredibly helpful over the years in finding flaws I couldn’t possibly have foreseen.

These were not that type of case. Had they been then I wouldn’t have been so daft as to post the quotes up here. I can’t speak for the original poster but my two above were breach of natural justice cases and nothing else. No reference to the facts or findings of fact or insufficiencies of same at all. Yet a template talking about that is used as described.

In one of the above I had a further insight into this process and how it may be suffering from the same pressures we see Decision Makers regularly crack under in terms of making unjustifiable decisions. I applied for a set aside of one of the above. The grounds related to papers which I had sent in; had never been sent back numbered by the UT, and to which the final decision made no reference.

I sent the papers in again and asked for a set aside on the basis of their absence. When I sent them in again. I marked 5 pages discreetly. The UT decision came back that there was no set aside with a clear statement that, whether they had appeared in the papers or not, a duplicate was not needed as the originals had been seen at the appropriate time. No explanation as to why such key papers deserved no reference in the final decision.

I then asked for a proportion of the originals to be sent back to me. Sure enough, only the documents I had latterly sent in came back. Not my originals. Had my client been inclined to judicial review then it could have gotten very interesting.

So, for me, no problem with template answers. However, their use at all should ring alarm bells given the delays at the UT end and the undoubted pressure they will be under to reduce that.

My faith in the UT has been shaken further recently by a couple of pieces of routine administrative incompetence. I’ve two cases on the go where they’ve asked me to obtain written consent from the appellant to act on their behalf. In both cases, section G of the UT1 was signed and dated by the appellant. In both cases the UT had my UT1 (stapled to every other document in the bundle) and replaced it with a copy of the UT1 originally sent to my local office (Liverpool).

Sigh!

Nice read for the morning…  So I guess the question is, what can be done when you feel that the issues have not been considered, or not considered properly.. and how can that tie in to the criteria for a set aside?