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Blanket Directions for Submissions

 

scott mcinally
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In Durham we are seeing a rash of directions issued on the same day by the same judge requiring us to provide written submissions identifying the issues/descriptors that are going to be relied upon at the hearing with 28 days to respond. If no response is received within 28 days striking out will be considered.

To give some context these are routine PIP/ESA type of appeals and not complex appeals such as an overpayment, or Living Together. We also do in excess of 1200 appeals per annum, so this will considerably add to our workload. It so far has made no discernible difference in the way hearings are conducted, i.e. they don’t progress any more quickly and tribunals still focus on issues beyond those identified.

Is this happening elsewhere?

     
John Birks
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Not to us by my knowledge.

However, typically I put in a preliminary submission after the initial interview unless the grounds are specific in the SSCS1.

     
scott mcinally
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The reason I am asking is to find out whether this is common practice elsewhere or whether the judiciary in the North East are using Rule 2 and Rule 8 inappropriately. It would be great if as many people could reply as possible as we are looking to take this further, and have already asked for leave to appeal to the UT against an interlocutory decision on this matter.

     
AlexJ
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In my view this is unreasonable. How is it in the interests of justice to issue such blanket directions? Many appellants doubtless attend appeals without a written submission and succeed, so a written submission, although often helpful, isn’t always crucial. Although I can understand Tribunals getting annoyed with late submissions, it isn’t necessary to provide such a strict time limit; ‘in plenty of time for the hearing if possible’ seems like a reasonable rule of thumb; ‘28 days regardless of the date of hearing’ certainly doesn’t. It should be noted that letters from our local HMCTS office suggest at least7 days before the hearing but we try to get things in earlier than this. These directions may have been prompted by a fall in the standard of administration at HMCTS, which has lead to papers not arriving in time etc (which has happened in our area), but if so that’s a problem to be resolved by HMCTS, not by the rep.

     
stevenmcavoy
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im seeing sporadic directions like this that don’t seem to have any reason why case x would get it but not case y.

to be honest I’m hardly ever meeting them and there doesn’t appear to be any follow up and (within reason) the judges don’t seem to care.

my submissions are pretty basic with the points we want to be considered and then reference to any relevant evidence but its quite specific so your talking a page or two of limited detail .  would only take a minute or two to read so it wouldn’t be worth the fuss.

     
Rosie W
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We don’t do a huge number of appeals but we haven’t noticed this happening so far. We get some rather odd directions, notably from one particular judge who doesn’t seem to read the papers properly before firing them off, but not the sort you are getting.

     
scott mcinally
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I suspect that the reason for the Directions- and they come from more than one judge- may have little to do with assisting the tribunal, given the relatively straightforward nature of the cases and the fact that we have traditionally not been required to do this. In complex cases where submissions have been required we have always provided them.

I did ask for the Directions to be reconsidered and cited CH/2042/2011, which I have attached, but this was refused. I also asked for an oral interlocutory hearing, which appears to have been refused, although not explicitly so, and without any reasons.

     

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John Birks
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I’m struggling to see what the issue is.

I also stand corrected, I have seen this before, more than once.

However, it’s applied to the SSWP where they have failed to comply with the requirements to provide. Sometimes the SSWP requests more time to comply.

To date they’ve always complied eventually although I do have one pending a directions hearing, a PO is directed to attend.

I wouldn’t want to be in the same position.

I do agree with the idea that unrepresented appellants not having a clue about the appeal process having an appeal struck out would be treated unfairly but where there is a representative, a professional representative, then I guess the case management powers can be relied upon.

 

 

     
scott mcinally
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Sorry, John, but even professional representatives will struggle to resource this sort of unnecessary demand. As stated above I suspect that the reasons for this sudden outbreak of Directions, goes beyond enabling the tribunal to deal with cases fairly and justly.

Rule 2 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 state:
2.—
(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

I would suggest that there has been no regard, when issuing these standard directions to:
• The importance of each case
• The complexity of the issues involved
• The anticipated costs to and resources of Durham Welfare Rights

Anyway, I just want to know other people’s experiences.

     
John Birks
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scott mcinally - 12 October 2017 01:41 PM

Anyway, I just want to know other people’s experiences.

Understood.

     
Peter Turville
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I’ve never seen anything like it in 30 years of representing.

     
scott mcinally
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Peter, I know neither have I, which is why I am asking. It’s a bit disturbing really.

     
grant
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Not seen blanket directions like this in my area (Liverpool) either. In general where we represent in person and the issues are straightforward we would normally make an oral submission on the day rather than a written one. I know many reps prefer to do a written submission but I’ve never had a Tribunal Judge insist on one.

Hope this helps

     
nevip
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My approach and experience (again in Liverpool) is exactly the same as Grants’.  Leaving aside the ‘blanket approach’ issue, if the judge insists on a written submission then I suggest simply typing onto a blank page a list of the relevant descriptors, i.e. 1a, 2b, etc, and just send that in

     
Dan Manville
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grant - 12 October 2017 05:17 PM

Not seen blanket directions like this in my area (Liverpool) either. In general where we represent in person and the issues are straightforward we would normally make an oral submission on the day rather than a written one. I know many reps prefer to do a written submission but I’ve never had a Tribunal Judge insist on one.

Hope this helps

Nor me. I do get some shade from the judiciary as we’ve team that are hot on providing subs but I only do them if it’s a complex case; usually my SSCS1 has already specified which descriptors I think apply.