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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Upper Tribunal oral hearing

Gemap
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Advice team - GEMAP Scotland

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Hello all,

Does anyone have an example/template of skeleton arguments that have been submitted in advance for an oral hearing of the Upper Tribunal?

Also, how do you address an Upper Tribunal Judge? I’m in Scotland and as lay representatives we address Sheriffs at the Sheriff Court as ‘My Lord’, ‘your Lordship’ or ‘My Lady’, ‘Your Ladyship’ (pronounced ‘milord’ and ‘milady’). If you were to address them as ‘your honour’ then you would be demoting them. But is that the right title for the UT?

BSM
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Southampton Citizens Advice Bureau

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“Sir” or “Madam” in the UT (I’m assuming it’s the same for Scotland).

https://www.judiciary.gov.uk/you-and-the-judiciary/what-do-i-call-judge/

Uphill Struggle
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Community Advice Team, Falkirk Council

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I can imagine the brave rep who turns up to the UT in Edinburgh and calls Judge May “Dougie”.

Stainsby
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Welfare rights adviser - Plumstead Community Law Centre

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Its over 10 years now since I represented at an oral hearing and I would not use my old submissions in the same format now ( the paragraphs were not numbered for example)

Having said that you need to follow through on the points on which you were granted leave to appeal, and any points raised by the Judge’s case management directions ( just like you would with a paper hearing).  You similarly need to answer any of the other side’s submissions that you think are contentious. ( again just as you would with a paper hearing)

UT hearings are a bit more formal than FtT hearings ( For example you are expected to stand up when the Judge comes into the Court, (s)hethen bows and sits down. You then sit down and the parties get to present their cases when asked to.)

I did not do it, but its a good idea to go and watch a couple of UT cases before you do your own

[ Edited: 11 Oct 2017 at 03:13 pm by Stainsby ]
past caring
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Welfare Rights Adviser - Southwark Law Centre, Peckham

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What stainsby has said. But in addition, I’d say the following (I’ve done 3 in the last few years);

1. If it’s your appeal (from the FtT decision) you get to go second, if it’s the DWP’s appeal, you go first.

2. The issues will have crystalised by the time of the hearing - you’re not going to have to deal with any surprises in what the solicitor or barrister for the DWP says on the day. In fact, any attempt to introduce a new argument (by either side) will be frowned on.

3. If you are more comfortable addressing arguments in writing (as most of us are) then it is always possible to respond to anything either the DWP or judge says in writing and in advance of the hearing. If you haven’t been directed by the judge to provide further submissions or a response to the DWP in writing, then you’ll need to apply for permission to do this - but I’ve always sent the application and the material itself together and not been refused permission. Just be sure to do it well in advance of the hearing.

4. I’ve found the above approach useful much in the same way I find it useful at the FtT - it helps me clarify my thinking and any arguments I want the tribunal to deal with are in the papers. So if I forget to make a particular argument, it still has to be dealt with - and because I worry less about ‘what if I forget something?’ there’s less risk of that actually happening.

4. Think of what you’re going to say as a presentation - you only need to give a very basic outline of what the appeal is about and then deal in more detail with why the FtT’s decision is wrong (or right) and then also address the arguments put by the DWP - as mentioned above, you will know what these are going to be.

5. With the proviso above about not introducing new arguments, there’s no requirement to produce a skeleton argument before the hearing - do it or not as you see fit. I’ve just used typed up speaking notes which I’ve then followed near enough verbatim. Out of politeness, I have a couple of spare copies for the judge and the other side and I ask at the outset whether they want copies, but they don’t need to be submitted or circulated in advance.

6. I said that you don’t need to worry about any surprises, but there’s an exception to that - the judge may well have questions about a point that you or the DWP make. And the judge might well interrupt you to ask those questions. Some might be questions asked out of politeness/for appearances sake - your position will already be known from the papers. But you may well also be thrown a curve ball - you can’t really prepare for this other than by asking others whose expertise you respect to look at your case and pick holes in it/play devil’s advocate. If you have the luxury of a full day’s hearing and you get asked such a question in the morning, it’s acceptable to say that you’re unsure and would like to return to the point after lunch.

7. Don’t worry about it overly - in my cases, where the DWP had instructed counsel, they were more uncomfortable than me in some ways - both called me ‘my learned friend’ but were visibly ill at ease when doing so - they knew it wasn’t right but didn’t know how else to address me. :)

[ Edited: 12 Oct 2017 at 01:23 pm by past caring ]
Gemap
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Advice team - GEMAP Scotland

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Many thanks all,

I have found all of the replies very useful. I think I have a good handle on how to approach it now. Good job I thought to consult the rightsnet group mind.

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Uphill Struggle - 11 October 2017 02:56 PM

I can imagine the brave rep who turns up to the UT in Edinburgh and calls Judge May “Dougie”.

I actually thought Dougie May was going to climb over his desk and punch me once!  Most fearsome of all judges I have ever encountered

MedwayWelfareReform
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Welfare Reform HRA Medway Council

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Hi All

Does anyone know where I can find examples of unlawful decisions at first tier or a guidance for judges on first tier??

I have client who unfortunately attended her first tier alone and lost at tribunal.  However we do not feel she is able to work and would like to represent at upper tribunal.  However need grounds .....

hkrishna
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Welfare rights worker - CPAG in Scotland, Glasgow

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You might find this new service we’re offering useful: http://www.cpag.org.uk/content/upper-tribunal-assistance-project

ClairemHodgson
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Solicitor, SC Law, Harrow

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MedwayWelfareReform - 20 June 2018 02:34 PM

Hi All

Does anyone know where I can find examples of unlawful decisions at first tier or a guidance for judges on first tier??

.

do you mean, an Ft decision made in error of law?

unlikely, they’re not published, only occasionally excerpted in UT appeals .....