Using evidence from set aside appeal.

client reawarded HR mob lr care. apppealed decision. Tribunal removed all entitlement. Took it to UT who set aside decision.
Client then withdrew appeal. D. M. then superseded HR mob, LR care award and removed on grounds that original decision made in ignorance of material fact. The “material facts” were part of the evidence given by client at appeal which was set aside.

Question: Can the Decision maker use oral evidence given at a hearing, which effectively didn’t happen, when superseding the original decision.

Apologises if the issue has been raised before. I did check .

I can;t see any bar to using verbal evidence given at the earlier hearing. After all, the hearing did take place and presumably the evidence was given. The decision of the UT simply sets aside the decision of the First Tier Tribunal. It doesn’t mean the hearing did not take place.

Why was the appeal withdrawn? Was it because LRCC/HRMC was as much as he could reasonably get? Or was the verbal evidence at the hearing potentially damaging to his existing award?

An issue may be whether the appellant’s evidence was accurately recorded at the first hearing, but if the evidence is not contested, I see no reason why it cannot be used by the DWP. It should be weighed together with all other evidence of course.

We are contesting the evidence as well as we do not believe it was accurate.

Many thanks for informed reply.

On a connected point:  Am I right in thinking that the first tribunal’s statement of reasons should be excluded from the bundle when its decsion is set a side and the appeal goes to a fresh tribunal?

no, whatever ther basis for setting aside at Upper Tribunal or setting aside at local level the full record should be before the tribunal that does the rehearing not just the statement of reasons but also the record of proceedings.

Thanks for clarification Chris.

Interesting update has come up from my previous query. Our set aside client went to their tribunal, but new tribunal adjourned as TS forgot to ensure panel was comprised of different members. However, client then requested that previous statement of reasons be excluded from the new panel’s bundle and judge has directed this should indeed happen. Useful, tactic to deploy I guess, if DWP don’t object!