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Another great start to a UT decision

Daphne
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CDLA/922/2017 starts -

Introduction
1. Oh dear. Oh dear. Oh dear.

Judge Wikeley again but this time a DLA overpayment which he had already seen -

3. Indeed, I was so concerned that in my ruling granting permission to appeal on the first time around appeal, I described the case as a “car crash”. Moreover, taken together with its companion appeal, JF v Secretary of State for Work and Pensions (DLA) [2015] UKUT 266 (AAC), I described it as a “mini motorway pile-up” (see [2015] UKUT 266 (AAC) at paragraph 9, citing paragraph 4 of the permission ruling). It only gets worse second time around.

4. That description of the First-tier Tribunal’s conduct of the case might be thought by some to be a touch over-melodramatic. But it has undoubtedly got worse. Unusually, I am almost lost for words.

[ Edited: 25 Sep 2017 at 09:13 am by Daphne ]
Mike Hughes
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Indeed a car crash but it raises another issue for me which I cannot recall a UT judge commenting on.

Anyone reading this decision would not unreasonably conclude that car crash is an appropriate term. They may also (perhaps unfairly) conclude that the continued recruitment of barristers to FTTs ill serves the latter. A lack of knowledge of basic fairness seems to be an increasing tendency.

Many of us will have come across similar cases (I have multiple examples) but there is no addressing of a recurring theme. Maybe it’s just me but Liverpool can be presented with the most straight forward errors of law in a UT application and yet there is almost always a blanket refusal. Indeed it seems that the more you spell it out the more resistant they become. I can only recall 2 refusals by London in 25 years and yet Liverpool are adamant that I’m not finding any errors of law. This is a remarkable thing. How come 1 office think I’m consistently wrong and yet 1 office think I’m consistently right (and indeed subsequently win most of the following FTTs after the UT have sent it back).

Something is not quite right.

ClairemHodgson
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his last line sounded desperate ” i hope i do not see this case again”.

i’ve a feeling he will

BC Welfare Rights
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Mike, it’s not just Liverpool. I’ve only been doing this for a few years and not done loads but without exception, every single UTT application I have made to date has been refused by the various local FTTs but later accepted by London. It seems, from my experience anyway, that the FTT judges will just not accept that they or their colleagues have got it wrong and circle the wagons as a matter of course.

Mike Hughes
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Yes, it’s exactly that sense of circling the wagons. Absolutely that. Much talk of stuff that’s in the interests of justice and then… that. These are of course the same offices keen to drive down rates of adjournment and postponement because of course “justice delayed is no justice at all” and then they repeatedly introduce a wholly unnecessary delay which can often amount to a quarter or more. I could stomach it if I just once got something back which argued it out and said “that’s not an error of law because…” I fully understand why that doesn’t happen but nevertheless.

Judges I can otherwise have very sensible conversations with in or out of the room suddenly refusing leave to appeal in cases where one is tempted to ask London if they could just ask the local office what exactly do they think constitutes an error of law? I am hopefully careful enough to not assume that I am putting in competent applications when I am not. I tend to go for “here’s your errors of law and here is precisely why” rather than just assume they’ll know why I think there’s insufficient findings of fact for example. What’s immensely frustrating is that I have almost never altered the wording when it heads to London and I have, as yet, never been pulled for putting in a ludicrous, untenable or ill-thought out argument.

My fave Liverpool example remains when a judge justified a DLA decision on the basis that most significantly I myself had declared the appellant could walk x distance not y. My written submission clearly said y. They had it in the papers for 3 months before listing. No grounds for set aside and no error. Go figure.

John Birks
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An exception to prove the rule?

Well not really exceptional.

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Mike Hughes
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Blimey. I’d forgotten what they look like 😊