clerks at HMCTS Bradford make judical decisions

I can’t see any… http://www.justice.gov.uk/tribunals/practice

I’ve got an outstanding FOI request on this and I’m due to request an internal review next week; it’s in my diary…

DManville - 03 April 2014 04:24 PM

I can’t see any… http://www.justice.gov.uk/tribunals/practice

I’ve got an outstanding FOI request on this and I’m due to request an internal review next week; it’s in my diary…

Please post the FOI reply - I’m sure you intended to!

Peter Turville - 03 April 2014 04:50 PM

DManville - 03 April 2014 04:24 PM

I can’t see any… http://www.justice.gov.uk/tribunals/practice

I’ve got an outstanding FOI request on this and I’m due to request an internal review next week; it’s in my diary…

Please post the FOI reply - I’m sure you intended to!

need I say more?

:)

I know I’ve posted it elsewhere but as I’ve done the review request today thought I’d share

Edit… on my reading there’s a right of appeal to the UT against a strike out…

Peter Turville - 03 April 2014 02:58 PM

It appears clerical staff at Bradford have been delegated ‘functions of a judicial nature’ under FtT Rule 4.

There are form(s) (‘Compliance Certificate’)  on which they record their ‘decision’ on issues like late appeal, not signed by claimant etc.

“I have carried out a compliance check on the Notification of Appeal, Mandatory Reconsideration Notice and other supporting documents. I have identified the following requirements as being non compliant:”

So it appears clerks are making decisions about admitting / rejecting late appeals, grounds for appeal etc.

Does anyone know if the Senior President of Tribunals has issued guidance to clerks on how they exercise those judicial functions? Does anyon have a (link to) a copy?

We have now received a response to our complaint in the particular case where HMCTS Bradford ‘decided’ client had not given any (by which they actually meant sufficient) grounds for appeal.

In this case our client made no addition to the original grounds which were simply returned with a suitably worded covering letter.

We have requested a copy of the ‘old’ & ‘new’ Directions referred to in the response.

Read & weep!

Discussed at last weeks GMWRAG. See thread on the dearth of tribunal listings. http://www.rightsnet.org.uk/forums/viewthread/6279/

At present the issue is that we don’t know the scale of the problem. Along with the inaccessibility of the appeal form it could be a major issue or, maybe not. So, data first and then we can discuss. The danger is that at present we are lulled into thinking it’s no issue because the numbers of appeals being lodged are so low in the first place.

The big issues for me are whether appellants are being clearly advised of the right to challenge the decision; whether such refusals are referred to judges for checking, and, who is doing the quality monitoring (if indeed there is any).

Would also be interested to know the justification for the delegation and the route it took before coming to fruition!

I assume its a potential volume issue. Previously if DWP/HMRC/LA considered the grounds weren’t sufficient, reasons for lateness could not be accepted etc. initially someone in the appeal team would contact the claimant for more info. So the number of referrals to HMCTS for a judge to decide if an appeal could be admitted were probably quite small.

Now however with direct lodgement that initial scrutiny will be undertaken by HMCTS. Clearly judges will not be scrutising every appeal received to ensure it is ‘compliant’ with Rule 22 so the role has been delegated to clerks under Rule 4.

It will be interesting to see the guidance and what level of scrutiny is applied to the decisions made by the clerks. It could be that HMCTS ‘reject’ far more appeals as not properly made compared to DWP/HMRC/LA’s?

I would argue that a decision (whether made by a clerk of a judge) not to admit an appeal is itself an appealable decision following LS v LB Lambeth (HB) [2010] UKUT 461 (AAC) and advisers may have to go down this route if HMCTS reject appeals on dubious grounds?

Peter Turville - 02 May 2014 01:03 PM

I assume its a potential volume issue. Previously if DWP/HMRC/LA considered the grounds weren’t sufficient, reasons for lateness could not be accepted etc. initially someone in the appeal team would contact the claimant for more info. So the number of referrals to HMCTS for a judge to decide if an appeal could be admitted were probably quite small.

Now however with direct lodgement that initial scrutiny will be undertaken by HMCTS. Clearly judges will not be scrutising every appeal received to ensure it is ‘compliant’ with Rule 22 so the role has been delegated to clerks under Rule 4.

It will be interesting to see the guidance and what level of scrutiny is applied to the decisions made by the clerks. It could be that HMCTS ‘reject’ far more appeals as not properly made compared to DWP/HMRC/LA’s?

I would argue that a decision (whether made by a clerk of a judge) not to admit an appeal is itself an appealable decision following LS v LB Lambeth (HB) [2010] UKUT 461 (AAC) and advisers may have to go down this route if HMCTS reject appeals on dubious grounds?

Ironically it would be easy enough for FT judges to scrutinise as they have little to do at present in terms of hearings comparatively.

Don’t think there’s any argument it’s appealable. The argument is that we don’t know whether claimants are being told that. The few stats. that we do have certainly don’t point in that direction.

Interestingly, if an appeal is struck out for being non compliant, I note that rule 4(3) permits that an decision made by a clerk can be reconsidered by a Judge.

Incidentally I’ve decided to wait until the purdah ends before requesting review of my FOI on this however they’ve been very tardy on the other request I’ve made and I suspect I will be escalating something to the Information Commissioner.

DManville - 06 May 2014 10:38 AM

Interestingly, if an appeal is struck out for being non compliant, I note that rule 4(3) permits that an decision made by a clerk can be reconsidered by a Judge.

Incidentally I’ve decided to wait until the purdah ends before requesting review of my FOI on this however they’ve been very tardy on the other request I’ve made and I suspect I will be escalating something to the Information Commissioner.

Yes, but that’s the issue. No evidence people are being told they have the right to ask for a judge to reconsider and I’ve been left with the impression that judges are in fact getting nothing. It looks increasingly like a stitch up.

Mike Hughes - 06 May 2014 10:44 AM

It looks increasingly like a stitch up.

Indeed

The question is what we are going to do about it…

Update on my FOi…

Dear Mr Manville

In your message of 7 April 2014 10:54 you said you wanted clarification
“whether there is any scope for Judicial Intervention in non compliant
appeals” this enquiry has been forwarded for clarification.

Having looked at your enquiry I can find no reference to a particular
appeal and believe your enquiry to be a general enquiry as whether there
is any scope of judicial intervention in relation to appeals which are non
compliant due to the lack of an MRN.

I have spoken to compliance about the issue and they outlined the
following:-

* No MRN Appeals are normally identified by the post team and then passed
through to Registrations; that being the case there wouldn’t be any scope
for picking up the fact that the appellant had specified that they were
unable or incapable of obtaining an MRN.

* In the event that a no MRN appeal made it through the post sift to the
compliance team, there are several possibilities i.e.

1. It could be simply identified as ‘No MRN’ without identifying any
issues and passed to Registrations as above.

2. The compliance clerk could identify that the appellant is having
difficulty obtaining an MRN but still request that it be registered as non
compliant and returned to the appellant for the appropriate action.

3. If the compliance clerk feels that the appellant is unable or incapable
of obtaining an MRN then they have the option of contacting the DWP to try
and ascertain what the specific issues are relating to this particular
individual.

Once the further investigations with the DWP has been completed there’s a
final option of referring the matter to a Judge for them to make a
direction. This is an absolute last resort and not something that is
carried out as matter of course.

The bottom line is that the MRN is required in order to make an appeal
compliant.

So the up and down of it is with no MRN they are picked up by clerks with no delegated powers and go straight through to get registered and sent back to the appellant.

https://www.whatdotheyknow.com/request/guidance_given_to_the_new_appeal

Has anyone else noted that the word document released to Dan on “Standard Operating Procedure” has a set of track changes comments on it? These are quite amusing. Comment Z3 in particular is odd:

“It’s immaterial whether the appellant has not the MRN or not. If there is no MRN then the appeal is non compliant UNLESS the appellant raises speicific issues about jurisdiction. There is no scope to take pity on an appellant who has lost the MRN.”

Isn’t rule 7 on waiving the requirement a sort of “taking pity” procedure?

Martin Williams - 08 July 2014 06:09 PM

Has anyone else noted that the word document released to Dan on “Standard Operating Procedure” has a set of track changes comments on it? These are quite amusing. Comment Z3 in particular is odd:

“It’s immaterial whether the appellant has not the MRN or not. If there is no MRN then the appeal is non compliant UNLESS the appellant raises speicific issues about jurisdiction. There is no scope to take pity on an appellant who has lost the MRN.”

Isn’t rule 7 on waiving the requirement a sort of “taking pity” procedure?

My language when I read those was less diplomatic…

It’s not only those without a MRN - I submitted an appeal with all the relevant docs including the MRN and it arrived 2 days outside the time limit, one of those days being a Sunday. Yes, it was late - client has mental health problems and is very difficult to contact which led to the delay. However, had this been a GL24 sent to the benefit centre I would have pretty taken aback if they refused it, and even more taken aback if it had then been refused by a judge.

Now - no attempt was made to contact me at all despite my putting all my contact details on the SSCS1 and providing a signed authorisation. Instead the whole lot, including the MRN was returned to the client with a request for an explanation of its lateness. She, unsurprisingly, did nothing with that, or the follow up letter also sent to her.

I was then informed by a snippy and dismissive woman at their Contact Centre that I cannot be registered on their system as the rep “because the appeal is non compliant”. This was partially withdrawn by someone actually at Bradford but he could not send me copies of the letters sent to her “because we don’t keep copies”.

I’ve faxed the whole lot back including another copy of the MRN with a short explanation of the outrageous delay (and posted hard copies). And separately sent a complaint letter. I’m struggling to see this, on top of the problems with the mandatory recon process itself, as anything other than a system which has been designed to thwart claimants’ legal right to challenge decisions.

And cause a stupid amount of stress to advisers.