FtT Unable to produce SOR

We requested an SOR on 31/05/13, Chased it up many times. Now got a Directions Notice from the Regional Judge stating it cannot be produced, inviting us to apply for a set aside which will be considered on its merits.

So I need to check;

Is it possible to apply to the UT for leave to appeal without an SOR? In which case the client would arguably not have suffered a detriment, making our request for a set aside weaker. Any case law on this?

Is there any case law on a FtT being unable to provide an SOR?

I don’t really know why the Regional Judge did not set it aside himself without asking us to apply for a set aside.

Many thanks as always!

We’ve had a spate of these recently and we requested set-aside for those clients who indicated this is what they wanted to do and the previous FtT decisions were all set aside accordingly and new FtT hearings arranged. Didn’t need to go near UT at all. We simply requested the set-aside on the grounds that client didn’t feel previous FtT took into account their health problems and how they affected functional limitations (all ESA cases iirc).

I guess pclc is wondering what the next steps are in the (very unlikely) event that a set-aside is not granted.

Rule 21 of the UT Rules sets out the requirements for applying for leave and at para (5) provides;

(5) The appellant must provide with the application a copy of-
(a) any written record of the decision being challenged;
(b) any separate written statement of reasons for that decision; and..

So not an absolute requirement, no. Can’t see the UT refusing permission if set-aside refused and circumstances explained.

Thanks to both for your replies. Yes I was thinking ahead, catastrophising again, too long in this job has made me a glass half empty kinda guy.

Talking of which, can you appeal a refusal to set aside. I remember a UT decision on this some time ago, can’t find it as usual.

PCLC, I had just such a case the other day. The SOR was requested and, some months later, a direction produced stating no SOR was available and inviting either party to request a set-aside.

To answer your question, the appellant has the right to appeal a refusal to set aside a decision to the UT. See CPAG p.1376.

Thanks Edmund.

I still don’t know why the reviewing Judge in these cases does not just set it aside him/ herself - as if we don’t have enough to do!

Its clearly arguable as either some other procedural irregularity and/ or a document relating to proceedings was not received by the appellant.

Chris Connolly - 06 March 2014 03:07 PM

Forgive me if this is an egg/grandma reply, PCLC, but the Judge won’t set the tribunal decision aside unless and until you ask him/her to do so.

Writing a quick letter saying “Please set aside because there has been no SoR” is a chore but 5 minutes ought to be enough.

A Tribunal can set aside a decision at their own discretion for a variety of grounds including procedural irregularity (i.e. they lost the file which is clearly what’s happened here)

Thanks for the replies. Chris, I don’t think its as simple as a quick letter. The direction from the Judge invited me to apply for a set aside and said it would be considered on its own merits. So I had to draft a fairly lengthy response to cover the bases.

I agree with Dan, they don’t need an application in cases like these and I don’t understand why they are doing it.