UT - challanging refusal to give permission to appeal

The client was refused permission to appeal 9/9/10.

The client continued submitting letters that do not request a set a side, but setting out the injustice of his case, concerned with the details of the DWP’s faults and his GP and the problems with the First Tier Tribunal.

All these details had been included in the information the UT Judge made his decision not to give permission to appeal.

The client was informed by the UT by letter that he could only challenge the decision of the 9/9/10 if there was a procedural irregularity or ‘it is possible to apply to set a side an Upper Tribunal decision where the Upper Tribunal considers that it is in the interests of justice to do so and where specified conditions relating to the proceedings before the Upper Tribunal, are met.’

He was also informed that he could challenge the decision by JR. The client did not take this advice.

The appellant continued writing letters not requesting a set a side but setting out the same issues relating to the case prior to the UT.

In a letter dated the 5/4/11 the client set out a letter of complaint, this does not concern and procedural irregulrities of the Judge making the decision of the 9/9/10, but sets out again the same details of his objection to the events leading up to the First Tier Tribunal decicion.

The client complaint is rejected under The Judicial Complaints (Tribunals) (No2) Rules 2008, mindful of Rule 7.

All the UT’s letters responding to the clients letters setting out why he thinks he should be given permission to appeal, stated that he was not refering to any procedural irregularities and therefore had no case, they were not responding to him settting out the ‘injustice’ of the case; though he was not stating his case in these terms.

Would the client’s letters have to be clear he was requesting a set a side on the basis that ‘it is in the interests of justice to do so’, for the UT to have to respond appropriately.

The last decision made by the UT was the rejection of the complaint on the basis of Rule 2 and 7; in May 2011, though the client states he didn’t get this letter until August 11.

“Would the client’s letters have to be clear he was requesting a set aside on the basis that ‘it is in the interests of justice to do so’, for the UT to have to respond appropriately.”

Not necessarily.  UTT’s look at cases holistically and do not confine themselves solely to issues raised on the application.

Thank you

If it could be argued that the client’s letters to the UT should be understood to be requesting a challenge to the UT’s decision not to set a side the decision, based on the ‘it is in the interests of justice to do so’; how should the UT have dealt with this request?

The UT, as a matter of course, would have looked to see if there was ground to set aside under rule 43 of the UT Rules for a procedural irregularity.  The initial notice refusing permission to appeal clearly outlines this as the claimant’s first remedy.  The decision then notifies him of the second remedy of JR.  On receipt of the claimant’s next letter complaining of the perceived injustice he has suffered the UT would have gone straight to the papers to look for any procedural impropriety.  The UT would probably not have considered JR as it is likely that the claimant’s letter did not fully comply with section 18 of the Act and with rule 28.  The UT has obviously concluded that the claimant’s perceived injustice is just that, one of perception and not of substance or, if of substance, that the fault lies elsewhere, where its jurisdiction does not run.

Hi

Just to clarify - refusal of permission to appeal from the UT is potentially subject to JR - we were granted permission in what appears to be the first social security appeal after the decision in Cart and others - most of the other cases seem to be immgration ones.

We lost the substantive hearing though -

The news item is here;

http://www.rightsnet.org.uk/news/story/whether-tribunal-acted-fairly-towards-unrepresented-claimant/

However we are awaiting permission from the Court of Appeal for a further appeal - in the meantime there is a new immigration decision

http://www.bailii.org/ew/cases/EWHC/Admin/2012/3126.html

This implies that the test laid down in Cart is to be applied at the permission stage, and not at the substantive hearing, where normal public law principles apply - we already had permission, given on the basis of the test in Cart, so we arguably did not have to go through it again at the hearing. We will see what the Court of Appeal make of it.

So although JR is possible it is not something you would want to rush into, and you need legal aid funding - its been an awful lot of work so far but I felt the refusal of permission from the UT was unfair on an unrepresented claimant at the first-tier tribunal ,due to the particular facts of the case.