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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Appeal made outside absolute time limit - is this the end of the road?

ElaineH
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Welfare Benefits Caseworker, Karbon Homes

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Total Posts: 27

Joined: 12 February 2018

Hi,
I am after any pointers please:

Directions state:

The tribunal does not have jurisdiction to decide an appeal which is outside the
absolute time limit. If the Tribunal does not have jurisdiction to decide an appeal,
it must be struck out. This means that the appeal comes to an end.
I am minded to strike out the appeal. Before I do this I will give xxx xxxx an
opportunity to give any reasons as to why the appeal should not be struck out.

The appeal has been made outside the absolute time limit.
If the Tribunal has no jurisdiction - how can any further reasons given by the appellant change this?
What grounds could there be?

Incidentally this was for PIP - client went on to make a new claim, same condition, no deterioration and was awarded it. Client did have valid reasons for not making appeal in time - this was already set out in appeal request.

Thanks,

Elaine

Elliot Kent
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Shelter

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An appeal may not be struck out without giving the appellant a chance to comment on the points raised. This is fundamental - it would be unfair for the case to be struck out if actually the claimant had something they could say which might cause the tribunal not to strike the case out. See Rule 8(4).

Perhaps the Judge has only reached the provisional view that the appeal is out of time because of some misunderstanding about when the decision was made or appeal lodged - the appellant needs to be given a chance to point this out.

But realistically if the appeal is more than 13 months from the date on the MRN, there is probably nothing that can be said to stop it being struck out.

The exception is if the circumstances are such that refusing to admit the appeal would entail a breach of the human rights of the appellant. The example I use for this is if you had been in a coma for the entire 13 month period and therefore couldn’t possibly have exercised your right of appeal. See KK v Sheffield City Council [2015] UKUT 367 (AAC).

ElaineH
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Welfare Benefits Caseworker, Karbon Homes

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Total Posts: 27

Joined: 12 February 2018

Thank you for your reply.
It is definitely outside of absolute time limit.
I will check that decision out thank you - not that my client was in a coma but was in a difficult situation so argument may be possible.

Elaine

Paul Stockton
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Epping Forest CAB

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Another possible option is to ask for revision of the original decision on grounds of official error and if that is refused appeal against the refusal. The time limit then runs from the date of the refusal. There’s a UT decision which says this is possible, explained in this CPAG article:

https://cpag.org.uk/welfare-rights/resources/article/official-errors-officially-appealable

Of course it all depends on whether you can make an argument that there was an official error. A difference of view between HCP assessments won’t usually be enough.

Martin Williams
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Welfare rights advisor - CPAG, London

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Joined: 16 June 2010

Something else to consider that you might be able to use to argue the FTT does have jurisdiction (dependent on facts):

1. Reg 51(2) of the UC etc (D&A) Regs 2013 provides that the Secretary of State must give the claimant written notice of the decision and of the right of appeal against the decision.

2. Looking carefully at the original decision and the mandatory reconsideration, presumably it is accepted that the appeal is filed more than 13 months after the latter.

3. However, PIP MRN notices that I have seen do not have any indication in the information given about exercising the right of appeal more than one month after the MRN is issued. The one I am looking at now on a file here simply says:

“If you want to appeal, you have one month from the date of this letter to do so

4. It may be arguable that the requirement in reg 51(2) to give notice of the right of appeal includes giving notice in somewhat more detail of the time limits for doing so (specifically of the possibility of a late appeal where it is fair and just to extend time and the maximum possible extension) and that a failure to do so means that time for appealing has not started to run.

5. Ideally the facts for such an argument would involve a claimant who had really good reasons for missing the one month deadline and then did nothing for next 12 months because the notice had misled them into thinking there was absolutely nothing they could do.

6. Arguments that notices which do not contain everything they should do not commence time running/are invalid to succeed generally need the claimant to have suffered a loss because of the defect in the notice.

This is very speculative but I would encourage you to look very carefully at the wording of the decision notices to see if you might want to run such an argument- a decision by the FTT to strike out the appeal for want of jurisdiction is a decision which carries a right of appeal to the UT (although you may not be able to obtain a statement of reasons - as proceedings arguably have not commenced if the appeal is never admitted - so thing to do is just file the permission application once appeal struck out if it gets to that).

Martin