Permission to appeal refused – interests of justice?

My first ever application for permission to appeal to the UT has been refused (here is the decision to refuse permission to appeal to the UT).  I admit that looking back, my submission was too long and contained a couple of errors.  However, on the whole I am very disappointed with the decision.

Firstly, the UT was not able to obtain the First-tier Tribunal’s file.  Also I feel that a lot of my arguments were simply dismissed.  For example, I think the case is similar to others over which the same judge presided:

- ESA85 medical report internally inconsistent – CIB/3063/1999, paragraph 11
- Insufficient findings for mobility descriptor – AH v SSWP [2013] UKUT 0118 (AAC); [2013] AACR 32, paragraph 21

I believe I can ask for a set aside under Rule 43 of the Tribunals Procedure (Upper Tribunal) Rules 2008 - if not, it’s a Judicial Review that’s needed.  Has anyone got any experience or advice about this?  For example, I think I have to show that it is ‘in the interests of justice’ to set aside – what does that mean?

Thanks for any help…

Without having any further information and on reading the UT decision - It looks to me like you are appealing on the basis you don’t like the decision.

That’s not an EIL as the UT explain in detail.

Therefore I conclude the FTT have found facts and supported them with reasoning that you either don’t understand or do understand but don’t agree with.

If you think the same evidence could lead to different facts found at another tribunal consisting of different members then this is also not an EIL.

As it’s your first application you may want to consider the book of Edward Jacobs - Tribunal Practice and Procedure http://www.lag.org.uk/bookshop/practice-and-procedure/2014/tribunal-practice-and-procedure.aspx

That’s my best advice I’m afraid.

@John Birks
Thanks ever so much for your response.  Yes I have the Tribunal book - it’s really good!  As for the decision, yes I didn’t like but it’s more that, as an example, the FTT never asked how long the client could walk before needing to stop.  So I can understand that I disagree with some of the FTT findings but what I am disputing more is that the enquiries/investigations made were insufficient to apply the law correctly.  Same with the picking up and moving descriptor.  The FTT asked about picking up but not about moving.  Also, I quoted the case about inconsistent medical report - why was it an error of law in that case but not here?  This is what I am confused about.. Anyway, thanks again!

First thing to note is the decisions quoted are both signed as Edward Jacobs - So you can be sure the Edward Jacobs who gave your UT decision is aware of the decisions you have referred to.

Decisions will vary on the evidence to the particular case.

without having all the evidence it’s not possible to say - there may be some inconsistencies but not enough to say it’s wholly wrong.

Exactly - that’s why I was disappointed with the decision!  This is paragraph 21 from AH v SSWP [2013] UKUT 0118 (AAC); [2013] AACR 32:

The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows.  And, if the claimant is present at the hearing, the tribunal should ensure that it obtains evidence that is sufficient to that purpose.  Just to take one example: the tribunal should have probed Mr H’s evidence that he “could not repeatedly do 50 metres”.  How far could he walk before stopping?  What made him stop?  How did he feel?  How soon could he proceed?  How often could he repeat that process?  This was particularly important in this case, because of the content of Mr H’s evidence to the tribunal.  At least as it was recorded by the judge – the record of proceedings does not have to be verbatim – his evidence was expressed in the language of the Schedule.  The tribunal had to obtain evidence that would allow it to assess Mr H’s answers by reference to that language.  It could not do that if the evidence repeated that language.  The tribunal would at least need to know what Mr H meant by “repeatedly”, as he might not be using it in the same way as in Activity 1.

To me it seems how the FTT got to their facts is as important as what facts they got to.  Or am I wrong?

wr4 - 28 May 2015 04:33 PM

@John Birks
Thanks ever so much for your response.  Yes I have the Tribunal book - it’s really good!  As for the decision, yes I didn’t like but it’s more that, as an example, the FTT never asked how long the client could walk before needing to stop.  So I can understand that I disagree with some of the FTT findings but what I am disputing more is that the enquiries/investigations made were insufficient to apply the law correctly.  Same with the picking up and moving descriptor.  The FTT asked about picking up but not about moving.  Also, I quoted the case about inconsistent medical report - why was it an error of law in that case but not here?  This is what I am confused about.. Anyway, thanks again!

I cannot tell for certain whether you were at the FTThearing, but if you were, did the tribunal give you the opportunity to ask the questions of your client that you did not think were asked (but should have been)? As John says, it is really difficult to know if you have a good case to argue that there has been an error in law without all the documentation, but my gut feeling would be that you are extremely unlikely to get anywhere with a set aside application, and no one would reasonably entertain a JR on this case either. Decisions by UT judges involve some degree of judgement as to what may, or may not amount to a MATERIAL error of law. I stress “material”, because decisions can contain errors of law which are unlikely to have made a significant difference to the outcome. There may be an awful lot more to this case than appears from your post and the UT decision, but I can only say that it doesn’t appear to be a case where you can realistically do anything further

@Brian JB
Thank you very much for your thoughts…  I’m glad you mention representation as it was also referred to in the last paragraph of the UT decision.  From the FTT Statement of Reasons:

Although [...] had indicated in her notice of appeal that she was represented by [...] they were not in attendance and had not provided any representations in connection with this appeal.

Wouldn’t this count for something?

It’s really not possible to offer any definitive advice on the basis of what you’ve posted so far.

It would be possible to offer an opinion if you posted up the (anonymised) statement of reasons and your own application for leave - that’s the only way we could identify any errors of law and say whether you’ve been able to argue those with sufficient clarity in your leave application that it ought to have been granted.

But the things you identify are not necessarily erros of law. Remember, in order for an appeal to the UT to succeed, the error of law must be a material one - i.e. it must be such that it was capable of affecting the outcome of the appeal had the tribunal actually applied the law correctly.

For instance, a DLA appeal tribunal might say in its statement of reasons that “the claimant is not virtually unable to walk by virtue of the distance he is able to walk before experiencing extreme pain” - a clear error of law. But that same tribunal may have made unimpeachable findings of fact in regard to the appellant’s ability to walk some 350-400 metres before first becoming so short of breath due to asthma that he needed to stop, in regard to that stop being only a momentary one and in his ability, following that stop, to walk a further 350-400 metres before needing to stop again. Now (unless the argument was that the claimant is constantly in severe discomfort) on those findings of fact, no tribunal properly applying the law was going to award DLA HRM - the error of law is not a material one.

As regards the mobilising and needing to stop issue, it is at least possible that the stopping point is dealt with implicitly in the findings of fact - i.e. if the claimant’s evidence was that they could manage to walk a specific distance ‘in one go’ and this was accepted as fact.

As for the picking up and moving, again, it would very much depend on what was put in contention in the appeal. Most often with that descriptor the difficulty that the claimant will complain of is a problem in picking up the relevant object at all - i.e. their argument will not be that they can pick up the 1/2 litre carton of milk but are then unable to transfer it. So unless the argument has been put that it is the transferring rather than the picking up is the problem, a tribunal will be very unlikely to be in material error if it makes good findings of fact as to why the appellant is able to pick the object up…..

Have you been on the CPAG ‘Appeals to the Upper Tribunal’ course? Best thing I did when starting out, though I think they may have called it ‘identifying errors of law’ way back then….

@past caring
I really appreciate you taking the time to chime in.  I will definitely put the Statement of Reasons and Record of Proceedings up when I get a chance and hopefully you/others might interested enough in taking a look..  As for my submission, I am a little embarrassed at its length and it does contain a couple of errors - I am worried about being chastised by you expert rightsnet members!  I did try my best though and might post it at some point if I pluck up the courage..  Thanks again for your thoughts and for the CPAG course recommendation as well, I will look into it for sure.

You can email it to me if you don’t want it on public display - though it might be a couple of weeks before I get a chance to get back to you in full.

But I wouldn’t worry - we all have to start somewhere and the important thing is wanting to learn/improve. And 17 years in, I know I still make the odd mistake even now…...

For the set aside application, the “interests of justice” are not defined, but I imagine it would involve considering whether the UT might have made a different decision had it seen the FTT bundle.  You would need to point to material evidence that was in the bundle but not in your appeal grounds and show there is a real possibility that the UT’s decision would have been different had they seen it.

To challenge the permission decision by judicial review, you have to get over the test in in R(Cart) v Upper Tribunal [2011] UKSC 28 and Civil Procedure Rule (CPR) r54.7A(7):

“(7) The court will give permission to proceed only if it considers –
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either –
(i) the claim raises an important point of principle or practice; or
(ii) there is some other compelling reason to hear it.”

It’s unlikely that (b)(i) will apply, so you will need to show that there is “some other compelling reason” for the case to go to the High Court, e.g. a serious procedural irregularity in both the First-tier Tribunal and Upper Tribunal proceeding (see R(Kuteh) v Upper Tribunal [2012] EWHC 2196).  That’s effectively a higher hurdle than applying for a set aside under rule 43, so a judicial review of the permission decision doesn’t really get you very far.  Again, it’s not a matter of saying you think a different UT judge could have reached a different decision.

Note also that under CPR r54.7A(3) the time limit for bringing a judicial review is 16 days (!) from the date of the PTA refusal, so you may already be out of time.

Arguably, if the UT refuses to set aside for procedural irregularity, there is a right of appeal to the Court of Appeal against that decision.  This is on the basis that a rule 43 decision is not an excluded decision under s13(8) of the 2007 Act – see the commentary at p1496 of the green Sweet and Maxwell book.  You would need to show that there was an error of law in the set aside decision or that it was in some way irrational. 

@Mike Spencer
Thanks a lot for the detailed info.  I will take a look and see what I think..

I’ve also got some other documents here now if anyone is interested..
- FTT Decision
- FTT Statement of Reasons
- FTT Record of Proceedings (I also prepared a transcript of the FTT Record of Proceedings, although there were sections I found hard to read, which are in red)

Thanks again for everyone’s help and opinions on this…

wr4 - 28 May 2015 05:37 PM

@past caring
I really appreciate you taking the time to chime in.  I will definitely put the Statement of Reasons and Record of Proceedings up when I get a chance and hopefully you/others might interested enough in taking a look..  As for my submission, I am a little embarrassed at its length and it does contain a couple of errors - I am worried about being chastised by you expert rightsnet members!  I did try my best though and might post it at some point if I pluck up the courage..  Thanks again for your thoughts and for the CPAG course recommendation as well, I will look into it for sure.

As has been pointed out already -  don’t worry about your mistakes. They’re there to learn from.

On the JR issue and the {i]Cart[/i] standard, this may be of interest…

https://gclaw.wordpress.com/2015/01/06/is-the-cart-threshold-being-set-too-high/

I was the rep in this case for the UT leave application (appellant was unrepresented at FtT) and after a failed JR, the appeal succeded at the CoA. We’re now (permission having been granted last week) back at the UT…

This paragraph may assist in understanding the UT/EIL further.

The Upper Tribunal’s analysis
11. I bear in mind that this is not an appeal where the facts are re-investigated by the Upper Tribunal. An appeal limited to error of law means precisely that; I have to be satisfied that the Tribunal’s decision involves such a legal error before I set it aside. The assessment of evidence, and especially the medical evidence, is a matter of fact for the Tribunal to determine. I also have to read the Tribunal decision as a whole, rather than just focus on any particular paragraph in isolation. Reading the statement of reasons as a whole, I am satisfied the Tribunal applied the correct legal tests and reached conclusions which were open to it on the evidence. It may be that the Tribunal’s interpretation of the evidence was a shade generous in certain respects, but it displays no error of law.

http://www.osscsc.gov.uk/judgmentfiles/j4518/UK 5567 2014-00.doc

wr4 - 28 May 2015 04:33 PM

@John Birks
Thanks ever so much for your response.  Yes I have the Tribunal book - it’s really good!  As for the decision, yes I didn’t like but it’s more that, as an example, the FTT never asked how long the client could walk before needing to stop.  So I can understand that I disagree with some of the FTT findings but what I am disputing more is that the enquiries/investigations made were insufficient to apply the law correctly.  Same with the picking up and moving descriptor.  The FTT asked about picking up but not about moving.  Also, I quoted the case about inconsistent medical report - why was it an error of law in that case but not here?  This is what I am confused about.. Anyway, thanks again!

Having looked at the SoR;

1. The tribunal make a finding (para 8) that appellant is able to walk 10-15 minutes slowly before needing to stop and that she can walk 200 metres repeatedly, relaibly and in a reasonable timescale. Amongst other things, the tribunal justify this on the basis of the appellant’s statement that she is able to walk between two specified points, known to the tribunal. Unless the appellant’s evidence was (and this would need to be documented in the record of proceedings) that this distance could only be achieved with stops, I’d say the statement is pretty water tight on this one.

2. Picking up and moving is as I suspected - the appellant put this descriptor in issue because of the difficulties she has with her right arm and hand. It is not the transferring or the lifting and transferring she puts in issue, but the lifting. But she doesn’t suggest there is any problem with her left arm/hand - so there’s no reason to believe she could not manage either a 1/2 or 1 litre carton of liquid. If we leave aside for a moment the vexed question of lifting and transferring a light but bulky object by wedging it against the body with the one good arm, there might possibly be some mileage in the fact that the tribunal does not really resolve the issue that the claimant’s evidence (which the tribunal appear to accept) was that repetitive tasks such as hoovering and ironing are difficult because her right arm becomes painful - so why would lifting and transferring a light but bulky object (using both the right and left arms) not be painful if done repeatedly?

The difficulty is that even if this descriptor were awarded, it gets her only a further 6 points - still 3 short of the 15 needed.

And I don’t see any other glaring errors that might mean additional points could be awarded.