Rule 40 The Tribunal Procedure Rules

Afternoon all
I need some advice and guidance here if possible please.
I have received a Directions Notice which states that following my request for permission to appeal it is proposed to review the decision of the Tribunal under rule 40.
section 9 (2)(b) TCEA 2007 states that tribunal can review a decision when a party has applied for permission to appeal when it considers that decision contains an error of law. The error in law appears to be insufficient reasons.
The directions notice goes on to say that the judge who prepared the SoR has been asked to consider the issues raised in the letter of appeal and has replied. It is proposed to amend the SoR (amendment proposed under Rule 36 Tribunals Procedure Rules 2008
I have been asked to comment and to be honest I am not happy as the judge has appeared to re-hear the tribunal in their head and has given reasons for almost every insufficiency pointed out in my request for leave.
has any one else come across this being used and if so how can I take this forward as looking at the amendments it just appears that the judge has fallen back on to the tack of credibility.
I have until friday to respond so any thoughts appreciated

Although decided before the TCEA was introduced, CA/4297/2004 may still be helpful.  In that case, it was found a Tribunal was not at liberty to have, effectively, two bites of the cherry at a Statement of Reasons.  Notwithstanding Rule 36, it may still be useful if a distinction can be made between a genuine amendment to the SoR and what would amount to a rewriting of the SoR.

I have just had a decision from UT on a case where amending a SoR was an issue.  Judge Mesher says it would be rare for an addendum specifically addressing the issue raised in the application for permission to appeal not to be seen as ‘an ex post facto rationalisation’ and, therefore, to appear unfair.  I can fax it to you if you want if you give me your number

You should also look at CSIB/331/09 which is concerned with the procedure to be adopted when reviewing under Rule 40 - it’s on the UT website.

Tony

Dear Tony,

I have a case where the UT actually asked the FtT for an addendum rationalising the errors in law we had identified in our application. I would be very grateful for a copy of the UT decision that you referred to. My fax number is: 0151 243 0158.

Many thanks in anticipation.

Chris

Thank you all so much for your help…very much appreciated

Chris - on its way
Tony

Dear Tony,

Many Thanks

Chris

hi

in para 16 of CSIB/331/2009, the Upper Tribunal judge says that -

‘The purported amendment of the Statement of Reasons took place before the salaried Chairman had made a determination that the original decision contained an error of law. This is a breach of Rule 40(2)(b) and section 9(4) of the 2007 Act, which only gives a power to amend the Statement of Reasons where the decision has lawfully been reviewed, in terms of Rule 40(2). I consider this renders the purported review a nullity.

here’s a link to briefcase summary of CSIB/331/2009

cheers ros