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Any experience of ESA “triage paper hearing session” in advance of oral FTT hearing?
Hi all,
My client has been waiting over a year for his ESA appeal to be listed for an oral hearing which he wishes to attend. He clearly indicated that he wished to attend his hearing on the SSCS1 appeal notice. He contacted HMRC admin support yesterday to see if they had any update on when his case would be listed and was told that his case was listed for a paper hearing in two weeks’ time.
I contacted HMRC to find out more. They told me that the case had been listed for a ‘”triage paper hearing session” to see whether the case could be decided without my client having to attend. I was told that if the case was not decided favourably, the panel could be adjourned and a request for further medical evidence made. I was told over the phone that the triage session would not be classed as a FTT hearing and that this would still happen if they felt further evidence was needed. I was told these session are not common and are due to the backlog in hearings waiting to be heard.
Has anyone had any experience of this happening in an appeal process?
My concerns are that if the ‘triage session’ is classed as a FTT hearing and it is not decided favourably, then my client’s only next step is appeal to UT. Neither my client or myself as the representative on record have received any letters notifying us of the ‘triage session’ or requesting any further medical evidence. It may be that this happens as a matter of course and I have only been made aware of this as my client was told over the phone.
I am hoping someone has had experience of this which they can share as I am not confident this “triage paper session” will not be treated as my client’s appeal.
Thanks,
Laura
Yes we’ve had a few up this way. At Tribunal User Group meetings we’ve been told that it’s a way to try and deal with ones that obviously should be awarded in favour of the appellant or ones that need extra evidence (usually medical records) whilst avoiding the appellant and Tribunal wasting time attending.
In the event that a “triage” panel decide to make an unfavourable decision (either an outright refusal or WRAG rather than SG for example) then the recourse is to apply for a set aside which should be granted with minimal fuss as long as the appellant asked for an oral hearing originally. Otherwise they open themselves up to an easy error of law argument via a breach of natural justice (indeed not holding an oral hearing despite it being requested is an exact example from the CPAG handbook!).
I’ve seen a few that have come back with positively for our clients and so far none that have come back with any need to have it set aside. On the whole I think it’s probably a positive development as my experience has been that it’s avoided clients putting themselves through a full Tribunal hearing.
Hi there - welcome to the forum.
We (the Newcastle area) were a pilot for these triage sessions and my understanding is that every PIP and WCA case locally should be triaged. Your area may vary. Basically, they get panels together on a Saturday who just run through bundles to try and establish if they can just award benefit without the need for a hearing.
It’s important to note that this is risk free for the client. The panel will not refuse the appeal at a triage. They will either allow it, give directions, or do nothing at all - putting it back for a proper hearing. (If they did refuse the appeal for some reason, you would have straightforward grounds for the decision to be set aside under rule 37 assuming your client had asked for a hearing)
The idea is that there are loads of cases in which the DWP has no chance of succeeding and the triage sessions allow them an opportunity to cull some of these at an earlier stage. I think the statistics locally were that a substantial minority (say 10-20%) of appeals at triage and that about 30-40% would result in some sort of directions being made - but those are just stats from memory and could be wrong.
It’s important to note that this is risk free for the client. The panel will not refuse the appeal at a triage.
Oh did they go as far as to say that? The memory must be going!
I think that one of my clients has had a decision overturned at a triage.
The case was against a ‘good reasons’ decision for not attending an ESA assessment and the client tells me that they have had a letter from the Tribunal Service to say that the decision was overturned in their favour. I initially thought that it was the DWP that had changed the decision and a ‘lapse’ notice sent out but my client says it was longer and more complex letter than that and neither have they heard from DWP to say that they had revised the decision under their own procedures .
In this particular case the DWP are rebuilding the ESA claim and will presumably pay arrears but what happens if DWP disagrees with the Triage decision - does the whole case then proceed to an oral hearing?
It’s important to note that this is risk free for the client. The panel will not refuse the appeal at a triage.
Oh did they go as far as to say that? The memory must be going!
It might just be something I’ve implied. It would be so obviously unfair to start refusing appeals before a hearing when the claimant has an absolute right to request and attend one that I can’t imagine the pilot would have progressed as far as it has if they were doing this.
In this particular case the DWP are rebuilding the ESA claim and will presumably pay arrears but what happens if DWP disagrees with the Triage decision - does the whole case then proceed to an oral hearing?
I think they have agreed at quite a high level to waive their right to a hearing in these circumstances - however I think that if they are unhappy with the result, they would still be able to apply for and get a set aside.
As far as I’m aware, triage hearings are being used only for WCA and PIP appeals - not for Judge-only ones - so I wouldn’t necessarily be sure that your case was “triaged”
I thought that ‘good reasons’ appeals could no longer be heard by a judge sitting alone?
I thought that ‘good reasons’ appeals could no longer be heard by a judge sitting alone?
PIP good reason appeals are full panel - TC v SSWP (PIP) [2017] UKUT 335 (AAC)
ESA good cause appeals are judge-only - CH v SSWP (ESA) [2017] UKUT 6 (AAC)
Don’t ask why as nobody really knows.
Thanks Elliott, I think I must have missed that one!
How interesting I haven’t heard of this before however, we do get a few cases where the Judge will give us a call the morning of the hearing and tell us not to bother coming as they have decided favourably on the papers. I guess this is an unofficial version of what they are now doing.
Ive had a triage hearing refuse the appeal. Dont assume they are only hearing ones that are overturned. Its been set aside to be reheard.All the others have been allowed though
Ive had a triage hearing refuse the appeal. Dont assume they are only hearing ones that are overturned.
Wow okay, either that is some sort of anomaly or I have been too generous in my assumptions about the inherent sense of fairness which permeates the judiciary. I am hoping that it’s the former and that the case had been wrongly listed as just an ordinary paper case or something. Needless to say, it’s not something I’ve seen.
I wouldn’t have thought it would be necessary to explain why it is blatantly unlawful to refuse an appeal without a hearing in circumstances where the claimant has an absolute right to ask for one and has exercised that right. I doubt that - even if the decision is set aside - that claimant is going to be left with much confidence in the fairness of the process.
If the Tribunal thinks that an appeal is hopeless at a preliminary stage, then it can consider striking out the case under rule 8(3)(c). That includes a very important safeguard which is that the appellant must be put on notice that they are considering striking out the case and given a chance to respond. I think it really ought to be that procedure which they should be considering if they are minded to refuse the appeal before hearing the appellant’s evidence. Otherwise, just let it go to a hearing.
During 2018 we had roughly 8 or 9 PIP appeals decided at the regional HQ in Cardiff on the basis of Rules 2 & 5 Tribunal Procedure (Ft-T) (SEC) Rules 2008 i.e. they decided the cases could be disposed off without an oral hearing.
Awarding what was being asked on behalf of the client, not sure if these were ‘triage’ cases, or down to trying to reduce backlogs at our local hearing venue (i’m guessing the latter). DWP did not challenge.
Can’t recall any ESA cases decided like this.
As others on this thread have mentioned, the North East was a pilot area for this. As an organisation doing about 1300 appeals a year, we have generally found this to be a positive move. Only downside was a lot of directions asking for full written submissions in straightforward cases with striking out threatened for non-compliance with directions. The time that was freed up by the triage hearings, was offset for a while, by the time it took us to do the written submissions. Only stopped when we complained - a lot!
Thank you all very much for sharing your thoughts and experiences. I feel less in the dark about my client’s forthcoming triage paper session. I will keep you updated if anything untoward happens!
As others on this thread have mentioned, the North East was a pilot area for this. As an organisation doing about 1300 appeals a year, we have generally found this to be a positive move. Only downside was a lot of directions asking for full written submissions in straightforward cases with striking out threatened for non-compliance with directions. The time that was freed up by the triage hearings, was offset for a while, by the time it took us to do the written submissions. Only stopped when we complained - a lot!
Were any of your appeals refused at a triage hearing as above?