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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

If FTT decision has been set aside by UT, why then included in re-hearing papers?

 

EKS_COTTON
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Tax and Welfare Rights Officer, Equity

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Hi all,

The case is this: PIP appeal that has been set aside by the Upper Tribunal on the basis of an error of law.  It has been remitted for a re-hearing by a new tribunal.

In the meantime the client applied for PIP again and has been awarded but not enough, appeals that too.

The UT judge suggested that both appeals be heard together.

The hearing has been listed and I have received an appeal bundle. 

The appeal bundle is really confused and there are documents from our side (conveniently) missing.  When I say confused – there are two (really poor) appeal submissions from the DWP, and the paperwork following each relates to the wrong appeal.

Crucially, the FTT appeal decision that was set aside, and the statement of reasons for the appeal which question the claimants credibility quite viciously, have been included in the appeal bundle.

I wrote to the judge asking that he review all this and providing an analysis of the paper work to help the panel navigate the paperwork if they decided to not compel the DWP to resubmit the paperwork. 

The judge has dismissed my request to issue directions to the DWP and says hearing going ahead.  Says that the panel can sort out the papers. 

Also says that previous appeal decisions are always included in the bundle.  is that correct?

What troubles me the most is the inclusion of the prejudicial last decision.  I checked the tribunal rules and couldn’t find anything about what the procedure should be but I presume setting aside means just that?

Also - the HMCTS have also sent me back copies of the paperwork that I included and they have been numbered incorrectly.

I despair!

If someone could shed light/give further advice I would be very grateful. 

     
Peter Turville
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The original appeal documents including the SOR and ROP will appear in the bundle for the re-hearing. As that re-hearing has been linked and listed with the appeal on the new PIP decision that should have a separate appeal bundle. But it is likely that will include duplicates of paperwork from the original appeal bundle (as it might even if they two appeal were being heard separately - the duty of SSWP to provide all relevant evidence).

It is not unusual for the numbering in an appeal bundle to be confused either due to error by DWP or HMCTS. Don’t bank on DWP/HMCTS sorting them out! I would suggest you will need to sort them out and (if required) make a submission / index to tribunal about what should go where. They will (hopefully) thank you for your effort and it could save the case being adjourned on the day because there is not time / agreement about what belongs to which bundle (even if it won’t make any difference to the cases as all of the evidence will be relevant - but it may make it difficult for the new tribunal to accurately record the evidence etc during the hearing and you may want to avoid the need to challenge the decision of the new tribunal!).

Par for the course I’m afraid.

     
EKS_COTTON
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Thanks so much for the quick reply Peter.

It is difficult enough to prepare the argument let alone sort out messy bundles, but at least I know where I stand now.

Have you any idea as to how much time each panel gets to spend on the paper work prior to the hearing?

     
Peter Turville
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EKS_COTTON - 11 January 2019 12:15 PM

Thanks so much for the quick reply Peter.

It is difficult enough to prepare the argument let alone sort out messy bundles, but at least I know where I stand now.

Have you any idea as to how much time each panel gets to spend on the paper work prior to the hearing?

It will depend on the efficiency of HMCTS but they will probably won’t have received their copy of the bundle mote than 2 weeks before the hearing and possibly much less. They probably won’t have seen any additional evidence etc which has only been sent in less than 3-4 weeks before a hearing (although this may vary depending on which HMCTS regional office is involved). The tribunal clerks at the tribunal venue will only have received the original file from the regional office ready for the hearing about 1 wk before hand (although again this may vary according to region / venue). This all means dealing with recently submitted evidence / missing pages / confused bundles etc all a bit of a nightmare especially if you have a venue you cannot contact directly or the clerks are unhelpful (fortunately the clerks at Oxford venue are wonderful!).