Technological problems with producing a SOR

mmm
if e.g. a court’s recording equipment failed whilst judge giving judgment, counsel on each side would be invited to agree a note of said judgement (usually of course if someone wanted to appeal) and they would then work together to agree that.  there was a case reported just the other week on that.

but whether i’d trust a PO to do that…...when it’s an entire record of proceedings…. mmmmmm

think i’d be minded to agree with the judge and then see what DWP do.  they might be happy with just the SOR

I think if the ROP can’t be produced, either party would virtually always be entitled to a set aside. I think the Judge is being awfully reasonable and pragmatic about it - we know that the DWP sometimes request SORs for training or other purposes without really intending to appeal and it seems fair enough for the Judge to enquire with them seeking to compromise.

I don’t see why you would object to the approach - unless your client would also like the decision set aside for whatever reason.

In a case last year, the ROP was lost and when we requested an SOR, the Judge set aside the decision without asking anyone. The difference in that case was that we had lost the appeal outright and it was very obvious that we would have no objection to it being set aside.

Just a thought, in some cases I’ve known the PO to request and get a copy of the ROP from the clerk immediately after the hearing - no idea if this happens with audio recordings but perhaps there is some remote chance that the DWP already have their own copy of the ROP which they could give back to the Tribunal?

Hearing could have been audio recorded at the request of the appellant or, more likely, because the judge had an impairment which would make it a practical solution. The approach suggested seems eminently sensible and pragmatic.

R(DLA)3/08 (tribunal of commissioners) held that absence of a record of proceedings will only give grounds for overturning a decision where it deprives a party of ability to show the decision is in error-

Headnote as follows:

Tribunal practice – record of proceedings – whether note of submissions required Commissioners’ jurisdiction – whether a tribunal’s breach of a procedural requirement necessarily renders its decision erroneous in point of law In both appeals the tribunal was unable to produce a legible copy of the record of proceedings. Regulation 55 of the Social Security and Child Support (Decision and Appeals) Regulations 1999 required a record of proceedings to be made, kept and provided to the parties upon request. The claimant in each appeal argued that a failure to comply with regulation 55 rendered the tribunal’s decision erroneous in point of law. A Tribunal of Commissioners was appointed to consider the issue in light of the differing approaches of individual Commissioners. Held, dismissing the appeal in CSDLA/500/2007 but allowing the appeal in CSLDA/524/2007, that:

1. a tribunal’s record of proceedings should be a record of what happened and in addition to indicating the evidence taken, should include a record of any procedural application and its result (paragraph 6). It is good practice to include a brief note of any submissions made (paragraph 10);

2. the duty to make a record of proceedings does not extend to making a note of the tribunal’s deliberations (paragraph 26);

3. the record of proceedings must be intelligible or capable of being made intelligible to those to whom it is issued (paragraphs 13 and 14);

4. a failure to comply with regulation 55 will not necessarily render the tribunal’s decision erroneous in point of law; the failure to comply must be material to the decision in the sense that it has resulted in a real possibility of unfairness or injustice. In so far as they suggest otherwise, CDLA/4110/1997, CIB/3013/1997 and CA/3479/2000 should no longer be followed (paragraph 27);

5. the extent to which, in a particular case, a lack of a record of proceedings results in unfairness or injustice may turn on the extent to which the deficiency can be made good, for example, by obtaining evidence as to what happened at the hearing from the parties or the tribunal. However, a proportionate approach is required and some social security cases will not justify detailed investigation; in such a case a Commissioner should not be slow to find that the failure to comply with regulation 55 renders the tribunal’s decision erroneous in law (paragraph 28);

6. in CSDLA/500/2007 no unfairness had resulted from the lack of a record of proceedings (paragraphs 32 and 33) but in CSDLA/524/2007 the tribunal’s reasons did not explain the evidential basis for the decision and an explanation could not be found in the illegible record of proceedings, it being too late to require the tribunal chairman to provide a legible transcript (paragraph 44);

7. it was unnecessary to consider, in relation to CSDLA/524/2007, whether the tribunal’s decision was erroneous in point of law because of a four-month delay in issuing a statement of reasons. However, the Tribunal of Commissioners observed that R(IS) 5/04 appeared to be consistent with the more recent decision of the Court of Appeal in Bangs v Connex South Eastern Limited [2005] EWCA Civ 14, [2005] 2 All ER 316 (paragraph 45).

Thank you all.

I am attaching the Decision Notice as the more I read it the less sure I am as to what it is actually saying the problem is - producing the ROP or the SOR.

Think the judge has slipped in final para and said SoR where RoP is meant.

Nonetheless the better approach I think would be for the judge to prepare a SoR and leave it up to DWP to argue whether it thinks that an unfairness arises in the absence of the RoP….. not sure parties need to (or can) waive the requirement to produce a RoP and so don’t quite understand why the judge asks that….

M