Upper Tribunal Written Submission

The typical way for UT cases to go is that you put your grounds of appeal together in whatever format suits, the Judge (one hopes) grants you permission, the DWP respond and then you get sent a Form 3 to reply - often times your reply will be no more than “no further comment”. Its normally a very front loaded process where the main part of the job is considering the statement of reasons and identifying points of law in it.

You have said that the judge has specifically asked you to make written submissions which suggests that things have gone slightly off the beaten track. Normally when judges are asking for submissions on things its because there is something specific troubling them which hasn’t already been addressed. For example if the judge has identified an authority which both parties have missed. Your response to that is going to depend on what the judge is interested in.

There is no set format for UT argument - you can set it out in a letter or a submission template depending on what is more comfortable. The main thing to always remember that the UT is concerned with points of law and not with the overall merits of the case. Plenty of people with good cases for benefit lose at FtT because the Tribunal on the day did not see things the same way but that isn’t always going to mean they have a realistic UT case.

I would encourage you to run the case past CPAG Upper Tribunal Assistance Project (https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project). I have also attached a UT submission of mine from a few years ago which might assist (not saying this is the best possible job that could be done - just a flavour of how they can be approached).

Thanks for this Elliot, its extremely helpful.

I might be reading too much into this (or seeing things - long week so could be either!) - unsure now with you saying that, that they actually want a submission.

I would attached redacted but it was sent via WhatsApp on my phone so I’ll explain.

1st page: “... Enclosed notice of telephone hearing. A response is required by 24th January 2021”
2nd page: Gives a list of actions he needs to do i.e. preferred phone number, if any requirements for the hearing etc which needs to be done by the 24th Jan 2021 then underneath gives the details.

My question now is are they wanted a response by me/him i.e. a submission or just wanted him to let HMCTS know what he accessibility requirements are?

Side point - the letters aren’t exactly clear so I can understand why so many don’t bother appealing to the UT!

Thanks again, Adam

A hearing in the Upper Tribunal is exceptional. Normally there is going to be a hearing because (1) the case raises complex or important points which need to be fully argued or (2) the judge is having a hard time figuring out what is going on, usually because arguments have been poorly expressed, and thinks it could be better hashed out at a hearing.

How much do you know about what is going on in this case? Does your client have permission to appeal or is it a permission hearing? Have you seen the SOR or the decision on the PTA application if there is one?

Elliot Kent - 17 January 2021 09:57 PM

A hearing in the Upper Tribunal is exceptional. Normally there is going to be a hearing because (1) the case raises complex or important points which need to be fully argued or (2) the judge is having a hard time figuring out what is going on, usually because arguments have been poorly expressed, and thinks it could be better hashed out at a hearing.

How much do you know about what is going on in this case? Does your client have permission to appeal or is it a permission hearing? Have you seen the SOR or the decision on the PTA application if there is one?

It is more than likely the latter of the two as our client has a habit of rambling on without any point as to what he’s saying.

I haven’t got any other documents than the one I described above - I’m in the process of trying to source these documents.

Very unsure of whether the tribunal wants me to make a submission or not from the letter I’ve been sent.

It’s difficult to assist really because things are almost travelling in reverse. The letter you have from the UT appears to be concerned with administrative set up for a hearing which has presumably been directed by the judge at some stage and for some reason. The judge’s case management directions are where you would expect to find directions on who is to make what submissions when, but you don’t have those. You also don’t know whether the client has permission to appeal or not (and if so what grounds of appeal the judge has permitted to proceed) and you haven’t seen the SOR so you aren’t going to know if your client has any meaningful legal argument to make to begin with.

I don’t think you are going to be able to make any forward progress until you have the papers. The client or previous rep should be able to give you those. If you ask the UTO nicely they might provide you a copy.

Elliot Kent - 18 January 2021 10:20 AM

It’s difficult to assist really because things are almost travelling in reverse. The letter you have from the UT appears to be concerned with administrative set up for a hearing which has presumably been directed by the judge at some stage and for some reason. The judge’s case management directions are where you would expect to find directions on who is to make what submissions when, but you don’t have those. You also don’t know whether the client has permission to appeal or not (and if so what grounds of appeal the judge has permitted to proceed) and you haven’t seen the SOR so you aren’t going to know if your client has any meaningful legal argument to make to begin with.

I don’t think you are going to be able to make any forward progress until you have the papers. The client or previous rep should be able to give you those. If you ask the UTO nicely they might provide you a copy.

No, the client and the previous rep are being extremely difficult so I think I’ll give the UTO are ring to see if they can help.

I’m assuming they have grounds for appeal as its now a oral hearing, unless this has been massively messed up and the Judge just wants to try and resolve it in person (or via telephone now).

Thanks