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Drafting written submissions for First Tier Tribunal appeals
Hello. I was wondering if anybody with experience of FT Tribunal appeals work particularly drafting written submissions for the Tribunal could advise of any best practice and possibly share some submission templates for me. I am looking to train some new staff members up in this area of work and whilst it is something we already do I am keen to learn and develop (possible) better ways to do it. I know there is a school of thought on whether submissions should be “war and peace” i.e. several pages long or whether they should be more succinct. Can anybody share their experience on this please? Many thanks.
Ask CPAG Online - How should you prepare a written submission? might be a good start?
Hello. I was wondering if anybody with experience of FT Tribunal appeals work particularly drafting written submissions for the Tribunal could advise of any best practice and possibly share some submission templates for me. I am looking to train some new staff members up in this area of work and whilst it is something we already do I am keen to learn and develop (possible) better ways to do it. I know there is a school of thought on whether submissions should be “war and peace” i.e. several pages long or whether they should be more succinct. Can anybody share their experience on this please? Many thanks.
I think tribunals prefer not to read novels.
I think tribunals prefer not to read novels.
indeed.
on the other hand, there’s always a basic plan
1. identify the decision under appeal
2. identify what you think is wrong about it and why (fact and law)
3. use subheadings if you have more than one thing to discuss (e.g., pip descriptors or whatever it might be)
4. no one wants to read great blobs of text even if it isn’t a novel….
5. keep it as simple as possible for the point you want to make (no convoluted language; doesn’t work for anyone, even lawyers)
6. if you have any relevant evidence on the relevant point, attach it
7. paginate (both the submissions and the attached evidence)
Short & sweet!
For example in a ‘bog standard’ WCA or PIP appeal simply indicate which ‘treated as’, descriptors or exceptional circumstances criteria apply. Make brief reference to any supporting evidence if required (by simply indication the page number or date of letter etc if not already in the bundle - tribunals should already have read all of the pages!). You may also need to include a para. to note any previous awards if DWP has not included the claim history in their response (which they frequently don’t). Of course there will always be exceptions!
You may need to write a novel in a more complex case such as an overpayment or ‘right to reside appeal (or almost anything except a WCA decision within UC!).
also, if necessary, if done properly for FTT, can then be used in UT as well
Ask 100 welfs, get 100 answers… I don’t know that I am in any particular position to be lecturing but these are some thoughts.
I think the most important thing is to actually say something. By which I mean your submission should set out some coherent basis on which benefit could plausibly be awarded by a sympathetic Tribunal. Everything else is secondary. Just saying “I think that the claimant should score 38 points for daily living” does no good for anyone. This might be an obvious point but there are plenty of submissions out there which do nothing more than this. If you have nothing useful to say in a written submission - either because the case is so self-evidently strong or otherwise - then don’t do one, and apply your time more usefully.
It follows that you ought to deal with the evidence, at least to an extent. So point out the aspects of medical evidence which are helpful to you and deal with the unhelpful points - within reason. I wouldn’t normally bother countering every point made in an averagely rubbish PIP report - but if there is something specific, then deal with it. I am doing a sub now for a claimant where the assessor is basically saying that the whole thing is a put on. So I shall have to address that directly.
Dealing with the law depends on the case. At one point, I had a couple of standard paragraphs which would very briefly introduce ESA and the WCA scheme or whatever but I doubt that they really achieved anything so they have been dropped. I find that with PIP appeals particularly, it is very rarely necessary to make anything more than passing reference to the law unless there is some particular point you are developing. However with more technical appeals, it can be better to set out everything in full - I have certainly had cases where I have made the mistake of assuming that the Judge would already be on top of the law in a particular area only to find otherwise - this is a more difficult issue to solve than the Judge simply being a bit annoyed at having needed to read through a couple of pages of law that they already know. At least then, everyone is on the same page.
My submissions are normally 3-5 sides. Some would say this is too long. I think it is important to say what you need to say even if it takes longer rather than missing something important out for the sake of brevity. Tribunals are busy people but they are not toddlers and they are capable of getting through a 1200-1800 word submission if it is relevant to the case.
The other thing is that context is important. My region are very keen on written subs (there was an incident recently where one local advice agency was complaining because a Judge was directing them to produce subs). Others may be less so. A colleague of mine tells me that the local district judge told them all not to bother doing written subs except in complex cases because they would rather hear it orally. You are also going to have to bear in mind your own capacity to be attending hearings and so on.
[ Edited: 18 Jul 2019 at 07:40 am by Elliot Kent ]
I think tribunals prefer not to read novels.
indeed.
on the other hand, there’s always a basic plan
1. identify the decision under appeal
2. identify what you think is wrong about it and why (fact and law)
3. use subheadings if you have more than one thing to discuss (e.g., pip descriptors or whatever it might be)
4. no one wants to read great blobs of text even if it isn’t a novel….
5. keep it as simple as possible for the point you want to make (no convoluted language; doesn’t work for anyone, even lawyers)
6. if you have any relevant evidence on the relevant point, attach it
7. paginate (both the submissions and the attached evidence)
I never bother with 1 unless the decision itself has been poorly framed within the bundle. Tribunals also struggle with repetition.
My opening is always a history. Not just of the claim as we see it but of the claimants health or relevant circumstances etc. Many tribunals never get context for a claim or even an insight into the functional consequences of a health condition. Laying that out in half a page or more can often decide the matter before you’ve walked in the room. Laying out that your client has PTSD because they were arrested and tortured in quite specific ways in their former home and now have specific triggers (such as a gas flame momentarily flaring up on a hob or a flickering bulb in a room) is far more valuable than saying they have PTSD and it must be bad because look at the scale of the meds they’re on etc.
I have put in some long subs on complex matters but I generally adhere to the principle that few appeals involve more than 3 key points. I’m not a fan of templates as they’re often personal judgements rather than a legal standard.
One thing worth observing here is that for all the talk of specific judges; at TUG and other meetings of how valuable representatives are along with their written submissions I am wholly unconvinced we live in that world any more (if we ever truly did)
My experience is that HMCTS are an utter shambles when it comes to distribution and thus, with the best will in the world, many tribunal receive papers late and simply don’t have the time to digest. There’s no evidence in such circumstances that their solution is to go to the reps sub. Indeed anecdotally I’d say the opposite is true. They familiarise themselves with the claim, claim pack, HCP report and any NHS letters at the very most. I had one where we were set aside before UT as the FTT made a finding of fact which clearly showed that not a one of them had read the written sub.
Additional to the above is the reality that many medical members and DQMs simply don’t read the papers regardless. Their focus is solely on the appellant on the day.
Also in play is a certain assumption on our part that tribunals simply couldn’t function competently without us and our wonderful written subs. The stats. say otherwise. The majority of winning appeals are those without representation or subs.
Bearing that in mind, and I appreciate this is likely a minority perspective, but I have always reserved written subs for those cases where something truly complex requires making simple. Consequently I probably do written subs in less than 50% of my appeals.
my experience when repping is that i’m barely allowed to open my mouth….so prefer to have put it in writing and can then make a point about what i would have said had i been allowed to (not that I ever say that i wasn’t…)
my experience when repping is that i’m barely allowed to open my mouth….so prefer to have put it in writing and can then make a point about what i would have said had i been allowed to (not that I ever say that i wasn’t…)
I don’t necessarily see not opening my mouth as an issue. Depends on the panel. I’m quite happy to let them be inquisitorial and get to where they need to be without my help if that’s what they want to do. There are some cases where they do their job and we win and I don’t need to intervene at all then I don’t see any issue with my being silenced.
Of course there are certain panels where it evades them that my opening my mouth at the outset (or indeed at any point) could have saved them the previous 30 minutes or more but I still don’t see that as my problem provided we get to the desired outcome. That very approach of wanting to quiz the appellant at length when the rep could swiftly resolve an issue reinforces my point that written subs are not necessarily of the value many ascribe to them.
I would generally use this format and where regs or relevant caselaw apply they would be included. Where there is a blatant contradiction between HCP and Cl I would use phrases such as “we would respectfully suggest that this does not constitute majority of the time” etc. Everyone has their own style but I’ve found this to be very successful. Often the decision was waiting for us without the Cl having to enter the hearing
Submission
Personal Independence Payment Appeal Tribunal for XX. NINO: X
X is appealing against the decision of the Decision Maker that he does not meet the criteria for the Daily Living Component of Personal Independence Payment and the Moving Around Component from and including X/X/X.
X suffers from X
X attended an assessment with healthcare professional, X on x
In the opinion of the healthcare professional xx only scored x points from the daily living activities and x for the moving around activities.
xx believes that the following activities also apply:
We rely on the judgement of the tribunal to make a decision based on the evidence before it as to whether xx qualifies for an award of personal independence payment.
If the tribunal should find in favour of xx, we respectfully request that xx be awarded personal independence payment from and including (date of original decision).
Submission compiled by:
Name address
I agree that the above is a true record of my problems:
Signed………………………………….Dated………………….
Sounds like I’m lucky to be dealing with HMCTS in Scotland…..
I almost always do written submissions for a number of reasons.
It helps me get my head round what the case is and which parts of any decision are being challenged. Particularly useful if I have to quote regulations or caselaw as I don’t have the kind of brain that remembers stuff like that.
If challenging the decision of a FTT it can’t be said that x or y hasn’t been brought to their attention if it’s in writing.
If one of my colleagues is covering a hearing for me they have a summary of the case that’s easily digestible (and hopefully to the point).
It can be provided in advance so that the panel members can see what we’re looking for and focus on that. Not always able to do that due to workload and timescales but I find it useful if I can. Also - going by the notes I see in front of the panel members, our panels do spend time reading the papers in advance and prepping their questions.
It means I don’t have to say much on the day of the hearing and I can be confident I’ve not missed anything.
Discussing my submission with the claimant before it’s provided means I can try to focus them on the things that will be looked at and what is irrevelant to their case.
It’s a very unusual case that my submission will be more than 2 or 3 sides of A4 unless there’s new evidence to attach. When many DWP submissions repeat the same statements over and over again I don’t think it’s too much to ask the panel members to read my submission. I’m even sometimes thanked for my helpful submission (I think a written submission may be more of a ‘thing’ here as on the occasions I’ve decided not to provide one I’ve sometimes been asked why I haven’t provided one.)
Just to echo some of the comments on here.
Tribunals in this neck of the woods are often thankful for a well written submission as it helps them focus (though this could be out of politeness of course!) - this can work against a rep as some tribunals have limited their exploration of issues to those raised within the submission, as they expect a competent rep to have explored the claim fully and raise only relevant matters rather than take a scattergun approach.
A well written submission can also mean that a hearing is not required. It has been known that the DWP have withdrawn their decision and replaced it with what has been requested in the submission. We have had calls from appeals officers a few weeks before a scheduled hearing conceding along the lines of “I agree with your submission totally and can’t find a way to argue against it on the facts / evidence / law as presented” (which makes you wonder why it had reached that stage in the first place).
As far as length of submission is concerned, I always work on the mantra that length is not important provided it is relevant, reasonable and sent in well in advance, though if lengthy ensure paragraphs are numbered for easy reference. If presented on the day anything over 2 sides of A4 may lead to a few stern words from the judge. I would echo the need to establish which descriptors or areas are in dispute with reasons as to why, referring to where the evidence is and why some should be preferred over others, splitting each descriptor/ area in dispute down to a subheading. For PIP and ESA I would include at the end of each section “score awarded”, “score previously awarded” and “suggested score” lines. My submissions are usually 4-5 pages long, though I did once go up to 12 pages for a complicated living together case, where I really wanted to lay the lack of logical decision making on with a trowel.
Of course all of the above is entirely dependent on time as a submission can take me hours to write, and there is nothing wrong in not having one, as is quite rightly pointed out above, because tribunals want to take the evidence directly from the horse’s mouth as it were, but it sometimes helps to have control of the reins to ensure things are steered in the right direction.
https://www.rightsnet.org.uk/?ACT=39&fid=9&aid=601_dmpw2aYUAjfQ5kJx8dFh&board_id=1
Link to Judge Phillip Boyd’s Appeal writing guidance
I like written submissions as it helps to get the case presented on paper in clear points. I rarely write more than 2 pages, as tribunals aren’t keen on an essay. Most tribunals want to hear from client’s not reps, so a written submission helps to present the case
I normally start of with an introduction with a background to case, including details of my clients health conditions and how they affect them. If there are “inaccuracies” in the HCP report (obvioulsy there will be), I address them. I put in a bit of case law if relevant (especially for supersessions). I always refer back to whatever pages on appeal papers I am arguing against.
Eg, ” on Page 45 of appeal papers HCP states that my client can peel and chop vegetables as there is no problem with her hands, however on Page 96, her GP states that she has suffered from arthritis for years and this affects her ability, blah blah
Then I address the descriptors we are asking for, what points we require and why client should be getting them
tuppenerth…
My submission is usually my recon or appeal. The case is spelled out in corresondence and needn’t be reiterated with bells and whistles for the hearing.
If I’ve not done the appeal or the recon I’ll think about a submission so the Tribunal knows where I’m going. It’s only for technical stuff, or if I’ve got a novel point, that I’d think about providing a sub in run of the mill cases.