Appeal to UT - Statement of Reasons not Received

I have an appeal pending in the UT - client had failed PCA for IB and lost at appeal when unrepresented.

Apart from other arguable errors of law, one part of my submission was that the client had requested, but never received the SOR - all she received was the Record of Proceedings. The UT have now obtained the file from TAS which includes a SOR sent (they say) at the same time as the Record - they have sent me the SOR, I have shown it to the client and she is still adamant that she never received it.

Is there any law I can use on this non receipt? I do believe my client as TAS do make mistakes - for example, I had originally requested a Set Aside in this case, and the decision refusing this was attached to another Tribunal Decision for a completely different client (which I of course returned to TAS with a polite note)!

Many thanks.

What is the chronology of events in this case following the tribunal’s decision and how were you able to identify any (arguable) errors of law without the SOR unless they were purely procedural ones, breach of natural justice for example?

Nevip - appeal heard on 28/05/09. Client had passed at least 3 PCA’s in past and also receives IIB - she had recently been re-assessed for that and award continued. None of these medical reports were in appeal papers and DWP sub did not mention previous PCA’s at all.

Due to her length of time on IB the Tribunal asked her if she had been assessed in the past - she said that she had passed at least 3 in the past, the most recent being a year ago. She also mentioned her recent medical for IIB. The Tribunal asked if she was requesting an adjournment to enable them to get these previous reports - she says that she replied I don’y know, as Tribunal never explained why they may be important. Also she was unrepresented.

The record of proceedings includes the Chairs comments that previous PCA’s were passed and IIB award recently confirmed after medical and says “could adj if necessary?” and says the claimant replied “No”.

In the SOR only forwarded to us recently it states “The documents relating to those assessments were not available to the Tribunal. Mrs N was given the opportunity to ask for an adjournment so that an attempt could be made to obtain those papers but she did not do so”.

Clinet disputes she said no - without a proper explanation from the Tribunal, and without legal advice, she said “I don’t know” in response to whether she wanted an adjournment and the Tribunal carried on.

She lost, requested a SOR and received a record of proceedings in October. As she had never seen a SOR before she did not know that she had not received it - she thought it was the record of proceedings. She applied for leave to appeal and heard nothing.

She chased it up in January this yearand was told that there was no record of her request for leave to appeal and her file could not be found. She was advised to re-apply (late). This was admitted late but refused in February - we then got involved and asked for a late application to set aside plus an appeal to UT. The application to set aside was refused, leaving only the appeal to the UT.

Apart from the non receipt of the SOR, our errors of law are the UT decisions in cases where previous PCA’s not included in papers eg CIS/516/2008,CIB/3586/2008 and the most recent CIB/2882/2009. Bear in mind the client was unrepresented, had never had to appeal before, the relevance of previous PCA’S plus IIB medical reports was not explained and the client denies that she clearly stated she did not want an adjournment but said “I don’t know”.

Hope this helps and thanks for replying!

Have a look at R(IS) 11/99 where it was held that it is an error of law not to issue a SOR when requested.  From what you have said so far I think you have the bases covered really and certainly don’t need any further help from me.  But, hey, two heads are better than one and glad to be of any small assistance.

Thanks Nevip - I think the issue here is slightly different though - clearly TAS did issue a SOR but it never reached the client - is there any mileage to be made from that? Iknow TAS make mistakes (like all of us) - see my first post!

Cheers

Hi

There are in essence, then, 2 issues.  The first is arguable errors of law.  You seem to have that covered (i.e. absence of the previous medical reports, etc).  The second is whether the application to the UT should be admitted at all under rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008.  If you can convince the UT that the SOR was not received then you could argue that granting the application is clearly in the interests of justice, which is the requirement of rule 21(7) where the appeal to the lower tribunal was made late.

Regards
Paul