Leave to Appeal

Cl failed to appeal after FTT ruling within one month as set down at 38(3) Of the Tribunal Procedure [FTT Social Entitlement Chamber ]

Is there anything which can supersede this to allow us to appeal?

The tribunal’s case management powers allow it to extend or shorten the time for complying with any rule or direction under rule 5(3)(a). And when exercising its discretion as to whether to extend time, the tribunal must seek to give effect to rule 2 - i.e. the overriding objective of dealing with cases fairly and justly.

So being late isn’t an insurmountable obstacle so long as you can show there are good reasons or that it would be in the interests of justice for the application to be admitted.

A question, though - is it the application for leave to appeal which is late or the application for a statement of reasons? There willl be different problems depending on which scenario you are facing…

application for leave to appeal.

There are parallel provisions (even down to the same numbering) in the Upper Tribunal Rules.

So there was an in-time application for a statement of reasons, but the leave application was out of time?

I can envisage a scenario where the appellant may have had the wherewithal to request the SOR but was unable to identify (even the most glaring) error of law by themselves - and was unable to access the services of an advice agency within time. That might run.

But on the other hand, if it was an advice agency that actually made the original request for a statement…...

No it was CL WHO MADE the error. Just picked up cl today.

It would help (and would make it easier to help you) if I didn’t have to drag the information out of you.

Exactly what error did the client make?

Did they actually get as far as making a late leave application? If so, has this already been refused as being out of time? And, if so, how long ago? Did the substance of any application have merit - i.e. was the only real problem that the application was out of time?

Or did they obtain a statement and take it no further?

The client failed to ask to go into Support group, realized after 6 weeks then wanted to appeal. Had heart attack AND THEN found our service. He received letter denying him right to appeal up or request review due. I believe the notice of the decision is not right.

Why do you believe this?

rule 5(3)(a) as you pointed out

Wouldn’t the most pragmatic approach be to request a supersession of the decision to place him in the support group?

But he’s been to FtT and had a ruling

Yes, so you are asking for a supersession of the latest decision made by the FtT, on the basis that his health condition has deteriorated (i.e. heart attack) since the effective date of their decision.

Bryan R - 24 February 2014 01:45 PM

rule 5(3)(a) as you pointed out

No - I meant why do you think;

a) the original decision was wrong (not morally wrong, but legally wrong on the facts and evidence so that a challenge to UT might succeed)

b) it was (legally) wrong not to allow a late application for leave?

rule 5 (3)(a) only provides the mechanism whereby a late application can be admitted. It doesn’t mean it should be admitted.

And I think Paul is right - a request for a supersession is probably the best course of action as it will be both simpler (no need to show the original tribunal decision contained an error of law or that there are good reasons for a late application to be admitted) and will protect the client’s interests. And for the latter reason, I’d ask for the supersession even if I decided to pursue the application to UT.

Thanks both of you.