LM v SSWP (ESA)  UKUT 41 (AAC)
Claimant found fit for work at a WCA and appeals - requesting a hearing on the appeal form. The Tribunal, on 23 March 2019, then proceeds to decide on the papers that she has LCW but not LCWRA and allows her appeal to this extent. Requests a statement of reasons and is then seemingly refused permission to appeal by the FtT. The Upper Tribunal allows the appeal (obviously) because the Tribunal is in clear breach of Rule 27 notwithstanding its reliance on the overriding objective. The Judge also comments on the FtT’s decision to curtail the time limit for requesting a set aside to 14 days for which no reasons were given.
Those working in the North East may recognise this as a “triage hearing”. In the aftermath of the Senior President saying that 60% of appeals were “no brainers” which could be disposed of on the papers, these were introduced as a trial. Essentially Tribunals would sit on a Saturday (note the date of the FtT’s decision in this case which is a Saturday) and go through paper cases at an early stage. About 20% were allowed on the spot and 40% produced some form of directions. This was obviously good news for many as, if the claimant got everything that they were asking for anyway, they were hardly likely to object to having not been given a hearing and would have saved a lot of time.
The corollary of that has to be that there needs to be some recognition from the Tribunal that the right to request a hearing under Rule 27 is absolute. The Tribunal’s attempt to justify itself by reference to the overriding objective was never going to succeed because there is no power to do away with the mandatory need for a hearing. If the Tribunal is going to experiment with these sorts of approaches, then these decisions need, as a matter of course, to be set aside at the very first sign of objection from either party. It’s very concerning that this case had to be taken all the way to UT because the FtT refused to set aside or review its decision.
Elliott, thank you for posting this. We have a similar case regarding “triage hearings” which are also being trialled in our area. Our case it being referred in from another agency and we are still awaiting all paperwork.
It appears the claimant was found ‘fit for work’ and requested an oral hearing on the SSCS1 (although this appears to be being disputed by HMCTS). Appeal was disallowed at a paper hearing. It is clear that the case was dealt with under the “triage” trial rather than as a standard paper hearing. “Triage hearings” are all being dealt with at a single venue (High Wycombe), not farmed out to any venue in the region as per standard paper hearings.
At the local TUG meeting when details of the “triage” approach was outlined it was made clear that no appeal would be refused without the appellant being offered an oral hearing and that it would be the practice that where the appeal could not be allowed on the papers it would always be listed for an oral hearing (at least that’s how I understood it - unfortunately TUG minutes are not provided until the next meeting).
So the question arises on how to proceed with a challenge when the “triage hearings” policy does not appear to have been followed (which we can determine once we have seen all the paperwork etc).
Judge Markus appears to imply that the “triage hearings” trail is unlawful (at least to the extent that an appellant does not get the maximum outcome that they might have got / could realistically attain had there been an oral hearing as requested).
Mixed feelings about this “trial” because there are plenty of ‘obvious’ cases that should not proceed to an appeal and the outcome of a “triage hearing” may well be appropriate in many cases. But there are clear problems where the possible outcomes of a successful appeal in ESA, PIP etc are multiple.
I detect that the “triage” approach is also a symptom of the underlying major administrative problems within HMCTS that the judiciary (who are increasingly inclined to use more industrial language about the problems) are trying to grapple with.
I haven’t looked - is there a practice direction regarding “triage hearing”?
I haven’t looked - is there a practice direction regarding “triage hearing”?
No. They are unlawful - at least where a hearing has been requested. Strictly they are just as unlawful if they award maximum rates of benefit (or at least what the claimant was asking for) but obviously we can be pragmatic. I think Judge Markus does more than just imply this - and in any event it is clear from Rule 27 that the procedure is unlawful.
If an appeal has been refused at a triage hearing, then this really ought to be set aside immediately by the DTJ.
If a Tribunal on a triage where a hearing is requested thinks that a case has no merit, it’s options are either to let the case go to a hearing or consider a discretionary strike out under Rule 8(3)(c) - which gives the important procedural safeguard that the appellant is then entitled to make representations before it is struck out under Rule 8(4) and then request reinstatement under Rule 8(5). It is not allowed to short circuit this and just refuse the appeal without a hearing.
[ Edited: 12 Mar 2020 at 01:04 pm by Elliot Kent ]
Is there any indication that the trail has now ceased (as clearly it must)?
I dunno - I haven’t had a triage case for a while but I’ve heard nothing official.
The trick (at least here) is to check the dates on directions notices. If they are issued on a Saturday then they’re probably triages.
As far as I am aware it is still ongoing.
It’s a difficult one as people once they have an award are reluctant to continue, and on the occasions where there is unhappiness at the level of award, the appeal has simply gone ahead as normal- unlike in the UT case.
We weren’t informed it was happening and only found out when we saw a drop off in our success rates- we couldn’t work out why- and we mentioned it in a meeting with the Regional and a District Judge who said we shouldn’t be worried as we were only having to represent the appeals least likely to be successful, because all the cases likely to result in an award had already been disposed of by way of interlocutory hearing!
This chance discussion also explained why we had been getting lots of unnecessary Directions for written submissions in very straightforward appeals. This had been putting us under a lot of pressure.
Somewhat oddly, the COVID-19 crisis has now created formal grounding for the triage hearing process:
5. In many tribunal jurisdictions, a hearing is required unless the parties consent to a determination on the papers. To deal more efficiently with cases in which a successful outcome for the applicant or appellant is highly likely, Chamber Presidents may decide to follow the following scheme to ‘triage’ appeals and applications for some or all of their jurisdictions where paper determinations are possible with the parties’ consent:
(a) Where the parties have not already consented to a determination without a hearing, the tribunal may assess a case on the papers.
(b) If the tribunal considers it could decide the matter without a hearing, it will provide a provisional decision to the parties.
(c) The parties will then be asked whether they consent to the tribunal making a binding decision on the papers that is in the same terms as the provisional decision.
(d) If one or both of the parties confirm that they require a hearing, a hearing will be listed (which may be conducted remotely).
(e) If the parties consent to a paper determination (or do not object, if there is a provision in the Chamber’s rules that allows for non-objection), the tribunal will issue a final decision in the same form as the provisional decision, unless:
(i) it considers that it made an error in relation to the provisional decision; or
(ii) the circumstances have materially changed since the provisional decision was made.
(f) If paragraph 5.(e)(i) or (ii) above applies, the tribunal shall either provide the parties with a revised provisional decision and follow paragraph 4.(c) onwards in respect of the new provisional decision, or list a hearing. In either case, the tribunal will explain to the parties why it decided not to issue the first provisional decision.
Clearly the case referred to above breached the spirit of these rules because the objection of a party ought to have prevented a final decision being made in these terms.