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Written Reasons
I am looking at written reasons following a disallowance at the FTT
I understand that this can only be done if there is an error in law
My questions are:
1 - the written reasons contains facts that are incorrect ....
2 - the reasons contain conflicting statements….
Can these be used as an error (I am new to this part!!)
Also
3 - If I don’t appeal and the client waits until her renewal and her award remains the same - Would this appeal be used if we disagree with the decision again?
Thanks in advance for any help!
A statement of reasons can be challenged on the basis of an error of law (in which case you can seek permission to appeal) or a procedural irregularity which justifies the decision being set aside. In either case, you have one month in which to make an application. Speak to CPAG for help: http://www.cpag.org.uk/content/upper-tribunal-assistance-project
1. A mistake about fact might be an error in law - for instance if the Tribunal said that your client had never been referred to a specialist for their condition but actually page 54 of the appeal bundle very clearly showed that they had. It’s not an error of law for the Tribunal just to disagree with your client about what the facts are, and its not an error of law if the Tribunal makes a mistake about facts which have no bearing on the decision (e.g. if they said your client is 42 when actually they are 44).
2.A genuinely contradictory statement of reasons is also likely to be in error of law.
3. The statement of reasons will go on your clients file and may be available to future decision makers and Tribunals, but it won’t be binding on them as such and won’t automatically have any impact on future decisions.
However, the error of law “must be a material error of law. If it could truly be shown that the result before the adjudicator must have been the same even if there had been no legal error, there would be scope for the Tribunal to dismiss the appeal despite the error” (CA v SoS for the Hone Department (2004) EWCA, para’ 14).
And “I pause to observe, that there would still remain an error of law, but the real point is that it would not be material because the adjudicator would have been bound to have reached the same conclusion even if he had not erred in law” (Detamu v SoS for the Home Deoartment (2006) EWCA, para’ 16).
Discerning that in an individual case comes with experience. But everyone has to start somewhere.
Discerning that in an individual case comes with experience. But everyone has to start somewhere.
this is very true.
do you have anyone experienced taking cases to the upper tribunal that could have a wee look at the reasons/your leave to appeal request?
There is very helpful guidance on appealing to the Upper Tribunal & different grounds that can be used on Fibromyalgia Action UK ” Appealing to the Upper Tribunal against a first tier Tribunal decision”.
CPAG also have an Upper Tribunal Assistance Project which might be able to help as well, http://www.cpag.org.uk/content/upper-tribunal-assistance-project
Also, see the commentary to ss11 and 12 of the Tribunals, Courts and Enforcement Act 2007 in Sweet and Maxwell.