Upper tribunal decision without reasons by consent

Hi,

Can anyone give me some guidance on the following please:

I supported my client with appeal to FTT for ESA. He was overpaid due to non declaration of work and we were arguing no failure to disclose so O/P not recoverable. Appeal was disallowed.

Requested leave to appeal and this was refused by FTT. Applied directly to UT and leave was granted.

We now have the DWP response to the appeal to UT and they are supporting our appeal and are in agreement for a decision without reasons. In their response they ask the judge to refer the case back to be reheard by another FTT.

I now need to provide my response and say whether I consent to a decision without reasons. I am not sure by doing this whether I am consenting to the FTT decision being set aside or whether I would be consenting also to the matter being referred back to the FTT in addition?

The covering letter from the UT and the Form 3A usually say ‘the SSWP supports your appeal and contents to the judge giving a decision without reasons. In these circumstances the Upper Tribunal judge MAY set aside the first-tier decision without giving reasons [my emphasis].

In our experience in such cases we have never had a UT judge do anything other than set aside the decision and refer back to FTT. But technically you are consenting to neither (only for it to be done without reasons if that is what the judge decides) they are matters for the UTT judge to decide. Even if there are no reasons the judge may still give Directions to the new FTT on any points of law that they must deal with at the fresh hearing.

If you / your client is content for the case to be referred back you could enter ‘no further observations’ and tick the I agree box re decision without reasons on Form 3A.

However you may want the UT to provide reasons. I recently dealt with a case where we did not agree to a decision without reasons - the judge set aside the decision and gave very detailed reasons (which may be of wider interest). This was the 1st time in 30+ yrs I have not agreed to a decision without reasons!

Whether it is appropriate not to consent to a decision without reasons would depend on the original grounds for leave to appeal and the issues / facts / points of law at issue. I would guess in the vast majority of such cases there will be little point in wanting reasons because there is no point of law of wider interest in issue.

SarahP - 15 November 2018 04:17 PM

I am not sure by doing this whether I am consenting to the FTT decision being set aside or whether I would be consenting also to the matter being referred back to the FTT in addition?

Further to what Peter has said and because I think you were asking about this bit as well - it will be a relatively rare case where the UT allows the appeal and disposes of it itself. For that to happen, it would need to be the case that there is agreement between the parties about the facts and the FtT’s findings of fact - with the appeal to the UT made solely on the basis of how the FtT applied the law to those facts. If there was any issue about the FtT falling into error in its fact finding in your appeal to the UT, then it is inevitable that the case will be remitted to a new FtT if the UT allows the appeal.