Missing paperwork

My client attended a DLA appeal without representation and lost. She called to see me for advice on what she might do next and I advised her to request a written statement of reasons for the decision of the tribunal. The Tribunals Service have written to all parties to the appeal to say that the tribunals judge’s written record of proceedings is missing from their file and the judge cannot produce a written statement of reasons from his memory of the proceedings. They have canvassed opinion on what should happen next. My understanding is that if the tribunal cannot produce a written statement of reasons for their decision, the decision must automatically be erroneous in law, it should be set aside and the appeal should be reheard by a freshly-constituted tribunal.  I’m not sure why the Tribunals Service are inviting suggestions that something else might happen. Any ideas?

I agree with your analysis.  New hearing needed.

The Tribunal Chairman/Judge has aduty (Reg 29(7) Social Security (Adjudication) Regulations 1995) to make a record of the proceedings.
Also R(A) 1/72 held that “in an administrative quasi-judicial decision the minimum requirement must be at least that the claimant looking at the decision should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority”.Obviously if there are no statement of reasons and findings of fact then the claimant has no opportunity to do this and a breach of Natural Justice has been created.

What Office dealt with the request for statement of decision/findings of fact and record of prioceedings?

I had a case where on chasing a statement of reasons 3 months after its’ request I was told it could not be obtained as the judge in question was on long term sick leave. I was told to consult with my client, as if the decision was set aside and the case reheard he could risk losing the benefit he had been awarded! Needless to say we asked for the set aside and currently waiting relisting.

This is now dealt with by the First Tier Tribunal Procedure rules, which don’t in fact impose a duty to keep an ROP. That is done by a President’s Protocol. Since 2008, there is only a duty to preserve the Tribunal’s file for 6 months, which means that if an application for leave to appeal is made late there is a serious risk that the papers will be missing. Apparently the new case law indicates that you cannot guarantee that the the absence of an ROP will give you a set-aside. One case I have seen quoted where leave to appeal was refused in these circumstances was CIB/62/2008.

But the absence of a statement of reasons will get as close to a guarantee of a set aside as you’ll ever get.