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Validity appeal struck out - how to challenge?
Hi,
Client recently appealed a decision made outside the absolute 13 month limit as DWP never sent him a decision letter at the time, and he only received one a few months ago. HMCTS wrote to my client inviting him to make written representations about why the appeal is late, which he did, and he also included a copy of DWP’s decision letter which was very clearly dated as sent this year.
Judge has struck out the validity appeal stating that the appellant did not make any written representations and that, on the balance of probabilities, DWP did notify my client when the decision was originally made.
After a formal complaint to HMCTS, they now acknowledge that my client did make written representations weeks before the judge made the decision to strike out the appeal. In the reply to our complaint, HMCTS admitted that the written representations had not been passed onto the judge prior to the decision being made to strike out the appeal, due to what they call “administrative oversights”, but that they did subsequently send the written representations to the judge who “confirmed” the original decision, although there is no new or supplementary decision notice, so the only decision notice we have states that my client never made any written representations. Is it not arguable that the decision is not supported by the evidence, thus is erroneous in law?
Is the process of appealing against a validity decision under these circumstances the same as appealing against a normal FtT decision, i.e. can we request a set aside (rule 37 (2)a or (2)d seem appropriate here although I have my doubts if a judge would be considered a ‘party’ to the appeal), and do we still have to request a statement of reasons before requesting permission to appeal to the UT (with permission presumably being sought from the FtT first)? Or do we go directly to the UT in cases like this? Never dealt with a validity appeal before.
Thanks for any input!
I would apply for a set-aside on the basis that the FtT did not have all of the relevant papers before it when making its decision. That’s not in dispute, so should be a shoe in.
But ask for the set-aside request to be treated as a request for a statement of reasons in the event set-aside isn’t given. You still need the SoR to apply for leave to the UT if you don’t get the set-aside.
But there’s one point I’d want to clarify - is it clear that the DWP admits that the decision sent to the client this year is the first notification he’s been given? Or is it saying this year’s notice is a reissue/duplicate of the original?
Thanks for that! I’ll certainly send in a dual-purpose letter requesting a set aside and SOR and take it from there.
Unfortunately DWP are claiming that the letter was originally sent when the decision was made and the letter from earlier this year was a duplicate sent in error. I must confess I don’t have much faith in a successful outcome, but my main line of attack is that Schedule 1 of the 2008 rules (in conjunction with rule 23, as this pre-dates mandatory reconsiderations) states that the time for providing notice of appeal is the latest of “one month after the date on which notice of the decision being challenged was sent to the appellant” - and that, crucially, it does not state that the time limit to lodge an appeal is only limited to one month after the date on which notice of the decision being challenged was first sent to an appellant, and to interpret the rule in such a manner would add gloss to the statutory criteria. My argument is that, if the law intended to restrict this time period to only one month after the date on which notice of a decision was first sent to an appellant, Schedule 1 would explicitly say so, but it does not, and the sending of a duplicate notice opens up another month-long window to appeal, as this is not precluded in the legislation.
I think I saw an Upper Tribunal decision (I think it was one by Jacobs) that said something along the lines that the law is set out in the legislation and the role of a tribunal is to apply the law as it stands, and must not read anything into it that isn’t there. As Schedule 1 currently only states that an appeal must be lodged “within one month after the date on which notice of the decision being challenged was sent to the appellant”, there is nothing that limits it to the date the decision was first sent, so as long as an appeal is lodged within a month after the duplicate was received, it’s still in time, as the duplicate is still a “notice of the decision being challenged”.
Any mileage in this whatsoever?!
I think you’re up against it, to be honest.
I would argue that the legislation is the way that it is because it does not contemplate a valid decision notice being sent to the claimant and then being sent again at some unspecified future date and for some unknown reason. The regulations relating to time-limits for appeal and MR have to be read whilst assuming a valid decision notice has actually been issued.
It seems to me that your interpretation would permit;
i) valid decision notices being issued to two different claimants (Mr A and Ms B) in 2010 - no dispute the notice was issued, no revision or appeal requested and the time-limit for such undoubtedly having been missed.
ii) in 2015 Ms B then receives another notice of the decision - it’s the same decision and there’s nothing to indicate it’s a duplicate. It has been sent out in error - this is also not in dispute. Nor is the fact that the 2010 notice was issued and that she received it.
iii) Ms B gets a second bite at the cherry and a right of appeal, Mr A does not.
The UT isn’t going to wear that one.
My line of attack (assuming that this was supported by the facts) would be to dispute whether the earlier notice was ever issued. If the notice issued this year was unsolicited (e.g. this isn’t a case where the DWP was recovering an overpayment, claimant says ‘this is the first I’ve heard about’ and a duplicate notice subsequently gets issued) then in the absence of any evidence to the contrary, the presumption would have to be that it wasn’t issued previously.
Hi again,
I pretty much agree with everything you’ve said. I’ve resigned myself to the fact this will ultimately come to nothing, but I feel that I owe it to my client to at least try.
My client insists that he never received the original letter but DWP have produced a computer printout showing that one was sent, and from reading rightsnet I believe that, as long as DWP can show reasonable proof, it will sufficiently discharge its responsibility, and the letter will be accepted as having been sent. That’s not to say I don’t believe my client - I have no reason to doubt him - but it seems that disputing whether the earlier notice was sent or not won’t get us anywhere.
Hence my focus on trying to clutch at straws for reasons why a duplicate might be accepted…
The “duplicate” was sent in error was indeed completely unsolicited.
I don’t know, it may still be worth a punt.
I’d be surprised if the print out was able to show more than a letter being generated by the DWP’s computer software. Does the print out show precisely what the letter was? - i.e. could it have been some other letter? If we’re talking about a benefit overpayment, it is and was DWP practice for two letters to be issued - the actual decision notice and a separate letter from Debt Management demanding repayment - the second is not the decision letter and does not (generally) advise of rights of appeal.
There’s also an argument to be made that the print out only shows a letter to have been generated - it is not conclusive proof that the letter was actually printed, put in an envelope and posted to the claimant. The DWP will not be able to attest to that having happened - and whilst generally it might be reasonable to conclude that a print out showing the letter being generated is evidence of its being sent, I’d argue that this only applies in the absence of any evidence to the contrary. In this particular case we have;
1. Your client’s statement that he did not receive the letter - does he come across as a credible witness? If there are things that you can point to as evidence of his being someone who is generally on-the-ball with personal administration, particularly when it comes to hiis benefit claims, even better.
2. DWP systems sometimes go wrong - and a letter generated by the computer software will sometimes fail to print, will be mislaid or will not be psoted. In this case we have very good evidence that the DWP’s systems are i) not infallible ii) have gone wrong in this particular case - i.e. the very decision notice that is the subject of the appeal and which was sent to your client unsolicited. If the DWP systems work so well, how was it that the decision letter was sent to him?
Hi,
You’ve certainly given me some food for thought on this - thanks, I appreciate it!
The printout shows a “WCA Support/Work Group (Appeal Leaflet)” was issued years ago. It does explicitly state that it was “issued”, rather than merely generated. No O/P involved - the client just thinks he should’ve been in the support group for ESA rather than the WRAG and, as the letter this year stated he could appeal the decision, it’s quite difficult to explain to him that, in all likelihood, he can’t.
I’ll adapt my strategy to try to undermine the reliability of the printout by arguing that no system is infallible because, as you say, that can be proven by the fact the duplicate was issued in error, so just because it says it was issued doesn’t necessarily mean it was successfully posted; and then, as my plan B, attempt to argue the alternative interpretation of Schedule 1 of the 2008 Rules.
Thanks again for all of your input, past caring, you’re a star.
On the issue of DWP records showing a letter has been sent out, have a look at this:
Now in that case the UT judge found that the FFT was able to justify its finding that a computer record was enough proof of a letter being sent to the claimant, but in the judgement there are raised issues that a tribunal may want to consider when looking at whether a letter was or was not sent.
We find locally that, especially in overpayment cases, the DWP cannot produce a copy of the actual letter they are seeking to rely upon and instead just produce a screen print. However our arguments (along the lines past caring has mentioned above) are often accepted by FFT who go one to find that a letter was not sent. It is always an argument worth raising.
Whether this is of much help to the rest of your case…...
Hi,
My client came to see me again today. We’ve not yet had a decision on the set aside/statement of reasons, but he came with a bundle of papers that he had just received from DWP in response to a SAR.
In it, there was an internal LT54 form for the disputed decision with the DM’s reasons. At the bottom of the form, there is a box which reads “Notified to customer on form/letter on” and a space to write the date that the decision was sent to the claimant, along with a space for the DM to sign and date it to confirm that the notification had been sent.
That section has not been filled in, which supports my client’s assertion that he was not notified of the decision when it was first made.
The dilemma is this: His original appeal was made on the grounds that the duplicate letter was sufficient enough to confer fresh appeal rights (I wasn’t involved at the time), but crucially, it was never argued at FtT level that the original letter hadn’t been received. I’m concerned that we now can’t make this fresh argument at UT level (assuming the decision is not set aside) because that would be a case of having a second bite of the cherry.
I’m at a loss how we could approach this. The judge’s decision notice found that “it is substantially more probable than not that the decision in question was originally issued in due form on [date of decision]. It is not in dispute that his notice of appeal was lodged in 2015. It follows that the appeal was lodged out of time, and I have no discretion in law to extend time” - which seems to be an incorrect factual finding in light of the LT54, but as it was never contended otherwise at FtT level, I have serious doubts that a UT judge would find that the FtT erred in law. That is unless the tribunal, in its inquisitorial role, had a duty to check that the original notification letter was sent correctly, since the judge referred to the original notification letter in the strike-out decision notice? (I doubt this, as a tribunal doesn’t have an obligation to consider any matters not raised in the appeal and my client never raised the issue that the original notice hadn’t been received - plus DWP’s printout suggested it had been sent at the time the decision was made).
I only have one other potential idea in mind, and would appreciate anyone’s thoughts. It’s long since been established in the Iran case that “a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made” is an error of law…
... but for this to apply, we have to apply the principles of Ladd v Marshall, with the first criteria being that “the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing)” - obviously my client could have made the SAR sooner and obtained the evidence prior to the hearing. So that could be a problem.
However, I’m wondering if there could be a lifeline in the fact that there are established exceptions to the principles of Ladd v Marshall (R v Secretary of State for the Environment ex p Powis [1981] 1 WLR 584). Specifically, I am looking at the exception where the jurisdiction of the tribunal depended “on a question of fact or whether essential procedural requirements were observed”.
Am I right in thinking that this was a matter affecting the jurisdiction of the tribunal - if the appeal was considered in time, the tribunal would have jurisdiction to hear the substantive appeal, and if not, it wouldn’t. Therefore, the jurisdiction equally turns on the question of fact of whether my client was originally notified - even though this wasn’t argued at FtT level - and thus, as the new evidence is directly relating to this fact, which is at the heart of the tribunal’s jurisdiction in this case, it is exempt from the Ladd v Marshall test and thus the UT can hear the new argument?
Straws are being clutched very tightly, but I’d appreciate any input!
Thanks
What’s an SAR?
Don’t worry, I’ve worked it out - subject access request.
I think you’re overcomplicating matters - I’d argue as follows;
1. The client was either unrepresented or represented less than competently at the first instance. Therefore, he was not to know that there would be any issue with an appeal against the decision ‘sent in error’ being out of time - it states that there’s a right of appeal, he’d not received a decision previously and the appeal he did make was, therefore, on the face of it in time.
2. Rather than worrying about the UT stuff at this time, what I would be doing is applying to the FtT for a set-aside on the basis of a document relating to the proceedings not being sent to the tribunal at the appropriate time (rule 37 (2)(b)) - ie the LT54.
3. And I’d simply say that as the appellant proceeded - entirely reasonably - on the basis of (1) above, he had no reason to believe that an SAR might throw up the LT54. And had the tribunal had the LT54 before it, its decision may well have been different.
I think this approach might obviate the need for an application to UT - but we can worry about that if it does become necessary.
[ Edited: 26 Jun 2015 at 11:27 am by past caring ]Hi,
Thanks for that - a set aside request was already sent earlier this month on the grounds that it was wrong to suggest my client had not made any written representations. We’ve not had a decision on that yet so I’ll send a supplementary submission regarding rule 37 (2)(b) and the LT54 and hope they’ll consider both points when it comes to a ruling.
Good news. The judge who originally struck out the appeal has set aside the decision and remitted it to another district tribunal judge to decide the admissibility of the appeal.
Interestingly, in the directions provided, the judge also recuses himself from any involvement with another ongoing appeal regarding a different matter with the same appellant. I didn’t think the interests of justice stretched that far!