Appealing to Upper Tribunal ...

Hello all once more ...
Have a cl who attended Tribunal 18/11/11.
The tribunal wouldn’t examine a letter cl support worker had written to support their ESA appeal that the cl presented on the day.  I have only just discovered this or I would have asked for the Tribunal’s decision to be set aside.
During the Tribunal the cl broke down becoming very tearful and because of this they could not present their case fully and the tribunal was concluded without my cl presenting all the facts re : how their mental health affected them.
We did not receieve a record of the Tribunal’s proceedings with the written statement of reasons.

Can I appeal to the Upper Tribunal on the basis that their has been a breach of the rules of natural justice because the letter from cl support worker was not considered by the Tribunal and also because cl was not in a fit state to present his case ?

Any thoughts greatly appreciated ...

Thanks

A tribunal can refuse to admit evidence.  However, it must apply its mind to rule 2 of the tribunal rules.  If the excluded evidence had probative value then its exclusion would probably amount to an error of law.  It could amount to a breach of natural justice and the denial of a fair hearing under article 6 of the HRA.  The minimum requirement would probably be to adjourn to consider its merit.  Was it referred to in the statement of reasons?

Hi Nevip !
Longish time no help sought from my end but hope you’re well ?
Thank you for your reply and no, the letter from cl support worker or the fact that they broke down is not in the written statement of reasons ...
Hmmmm, any further thoughts greatly appreciated as ever ...

You could try a late set aside request as well - see Rule 5(3)(a) (power to extend time limit). I have to disagree slightly with Nevip (for the first time ever!) - pretty much all evidence is admissable to a FtT, the issue is the weight to be put on it - I don’t see any way the Tribunal could have refused to admit it by not reading it and this would clearly be a procedural irregularity - though you need a reason why the set aside application is late.

The record of proceedings is supposed to record procedural applications made at the hearing and the tribunal decisions on them.

Failure to do this and then failure to give reasons for excluding evidence is a straightforward error on the grounds of inadequate reasons regardless of whether it was ultimately fair or not to admit the evidence.

I would do it as a two stage:

1. We have no reasons why tribunal refused to admit evidence. That is inadequate reasons.

2. The tribunal hearing was not fair as there were in any event no good reasons for refusing to admit a one page letter etc. on date of hearing.

Tribunals using the power to exclude evidence is depressing.

Hi PCLC

I should have made myself a little clearer.  I agree with you that all evidence is admissible.  What I was trying to say was that a chair has the power to exclude evidence if he chooses to do so.  This is subject of course to the usual legal and judicial safeguards, tribunal rules, right to a fair hearing, etc.

Regards
Paul

as ever your thoughts and replies much appreciated, thank you ...

Thanks Paul – sorry I keep calling you Nevip! My name is Carlos -I hide behind PCLC as I am a friend of Jimmy Carr and use the same tax avoidance scheme.

I am very interested in tribunal practice and procedure, more so as many clients have to represent themselves and as we all know Ken Clarke reckons there is no need for reps at appeals as Judges know the law. Also as the FtT comes under even more pressure, with the temptation to cut corners, coupled with more unrepresented appellants due to cuts to advice proviion,it will be more important to make sure the Tribunals follow the rules.

Please see my post about our JR which is an issue of Tribunal practice.

My take on this is;

Here you haver an unrepresented appellant who turns up at a hearing with an important piece of evidenve.

The Judge refuses to read it. Ok first point is; was there a direction that evidence should be supplied by a certain date and that was not complied with? I dont think so on what has been said.

In SE London where I work Tribunals are ok on taking evidence at the last minute, even from reps, provided it is not bundles of stuff that should have been provided ealier. My excuse as a rep, which has never been challenged, is that I am under alot of pressure and am trying to assist the tribunal (when it is my fault that the evidence was not provided earlier).

Second point is; the Clerk normally comes out and asks if you have any further evidence – was this done, which will then be copied and given to the Tribunal before you go in. What happened here?

There is simply no excuse (unless a dircetion was not complied with – and even then it can be waived ) for refusing to read, as Martin has said, what was likely to be a 1 page letter, given Rule 2 and the constant blurb we get on tribunals being inquisitorial and enabling,

The issue is what to do about it.

I agree with Martin that this is an error of law, but still think you should persue a late set aside if possible at the same time. It was a clear irregularity in procedure, especially as the client was unrepresented. I have done late set asides which have been successful – the reason for applying late could be the health problems of the client, and/or the lack of access to advice . Also given what I say in my other post I am not confident that a UT judge would see it as an error of law {depending on who you get), especially as there is no record of proceedings -a Judge in the ftt may be more sympathetic to a set aside request and mindful that this may end up in the UT which would be bad for them.There are all sorts of considerations eg was this this a fee paid judge or a salaried judge?

Just as an aside- another rep that I know told me that a Judge had refused to accept his sub which was provided on the day so the rep said “Well shall I just read it to you then? Touche!