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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

Decision Makers encouraged to ask tribunal to strike out cases on basis of no reasonable prospects success

Martin Williams
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Welfare rights advisor - CPAG, London

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See the rightsnet new strory about DMG Memo 26/11 here: http://www.rightsnet.org.uk/news/story/circumstances-in-which-decision-maker-should-consider-applying-for-strike-o/

This is a bit of a worrying development and I suspect we will see an increase in cases where the FtT strikes out. Such cases carry a right of appeal to the UT (ask for a statement in usual way and so forth). Furthermore their should be an opportunity for claimant to comment before strike out decision is made on this basis….

I am particularly worried that it appears the procedure here will be to not send the FtT the full bundle of papers (so the FtT will be asked to make a strike out decision without sight of the papers but simply on basis of a memo from the DM). I am not sure that the Procedure Rules really allow the DM to do this- full response should arguably be sent in all cases.

Anyway, the memo also refers to CAP 2/11 which was not available on the DWP website. I have now been supplied a copy by the DWP and attach it here.

Martin.

[ Edited: 28 Oct 2011 at 01:25 pm by Martin Williams ]

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1964
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Deputy Manager, Reading Community Welfare Rights Unit

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CAP bulletin makes interesting reading. I note that for WCA failures, a request to strike out appeal may be appropriate where the claimant has ‘only attracted points in one or two physical areas’. I’ve lost count of the successful appeals I’ve been involved with where the client scored nil points initally.

benefitsadviser
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Sunderland West Advice Project

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Stupid decision if its based on points score. Why bother with ESA regs 29 and 35 if it aint gonna get to a tribunal?

Josephina
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Community, Advice, Support and Education, Brighton

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Does anybody know how this will be done? Will they write to the Tribunals Service before we receive the Enquiry Form? Will we be notified about this and will we be given the opportunity to submit something against their request?

CHC
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Welfare rights team - St Mungo's Broadway

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Very worrying.  Our service works with a large number of clients with substance misuse difficulties who are either living in supported housing after a period of being homeless or time in rehabilitation. This group we are finding are particularly likely to fail their WCA. The clients lives are often very chaotic and as a result they have not engaged with medical services for long periods of time so getting diagnosis of physical and underlying mental health issues takes some time.  It is often difficult for us too find 15 points under the WCA and we frequently use Reg 29 at appeal.  I find that the decision maker does not often consider making a decision on regulation 29 therefore their cases are likely to be struck out before reaching tribunal.

Kevin D
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Independent HB/CTB administrator, consultant & trainer (Essex)

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I don’t have access to the news story so my apologies if the following is duplicated.

Presumably, the DWP is relying on Rule 8(3)(c) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

Oft overlooked is Rule 8(4) which makes it mandatory for an appellant to first be given an opportunity to make representation in respect of the proposed striking out.  I wonder if the phrasing around the term “opportunity” would be regarded as being sufficiently wide ranging to take into account mental health issues / learning difficulties etc.