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Breach of Human Rights Act

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7 years 1 month ago #181316 by Sherkyl
Breach of Human Rights Act was created by Sherkyl
Don't know if anyone can help or advise on this one or if anyone has experience of a similar issue.

I may point out that I represent the claimant in this issue and I am listed as their official rep in all documents concerning their claim

The appeal to the FTT was a complete farce. However, during the hearing it became evident that article 6 of the HRA had been and was being breached.

Right at the start of the hearing I was informed that I was not allowed to speak during the hearing but that I could speak at the end if the claimant so wished
That in itself is not right.
However, during the proceedings I tried to point out a procedural error that if it where not corrected would be tantamount to an unfair trial and, therefore, a clear breach of article 6 of the HRA.

I was immediately silenced and the hearing continued without correcting the error.

A decision was made to appeal to the UTT on the grounds that Article 6 HRA had been breached and, because of this a correct decision had not been made.

I requested permission to appeal to the UTT and stated the reasons giving clear evidence of the breach. I also stated that the Statement of Reasons was inadequate because it did not address nearly 80% of the points raised in the claimants case.

The decision of the district Judge was

"It is not appropriate to review the decision because no error of law arises, The Statement of Reasons is adequate to explain the Tribunals decision."


Now I can sort of understand why they would say, after a total of 2 hearings spanning more than 4 hours with over 400 pages of written evidence that 2 sides of an a4 Statement of Reasons was adequate! I mean one word would have covered it DISALLOWED! (LOL)

But, since when has the HRA not been legal grounds?

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7 years 1 month ago #181364 by Gordon
Replied by Gordon on topic Breach of Human Rights Act
Sherkyl

Are you a trained Representative?

If you are then the Judge should have allowed you to provide additional testimony but it is still at their discretion and their decision to not allow to speak would unlikely to be considered a breach of the claimants Human Rights.

If you are not then as far as I can see the Judge acted properly under established Tribunal procedure.

You can still appeal directly to the Upper Tier Tribunal, the letter you received should have details of how to do this.

You need to show that there was an Error of Law in the making of the Decision. It may be that the point of order you mention amounts to this, but the appeal has to be made on that basis.

What is an Error of Law?

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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7 years 1 month ago #181367 by p.greenstreet
Replied by p.greenstreet on topic Breach of Human Rights Act
I was treated exactly the same . I did not know about article 6 and in fact I have never heard of it until now, and they took full advantage of that fact. it seems a pattern is emerging as if they have a standard script to trample us underfoot , I see so many likenesses to my own case on here all the time. I wish I could have been able to afford representation. 3 on 1 is never fair in any game let alone this kangaroo court - others please take note it is not always " great news today " I am very short of it in my case.
The following user(s) said Thank You: s.jmoore@blueyonder.co.uk

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7 years 1 month ago #181423 by BenefitsBod
Replied by BenefitsBod on topic Breach of Human Rights Act
Sherkyl: In case you aren't already aware, the following *may* assist. However, bear in mind this is a generalised response as, for obvious reasons, I am not in possession of all the facts.

Firstly, Rule 11(5) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 makes it clear that a representative has all of the rights of a claimant except for the signing of a witness statement. In my view, that includes the right to speak as if being the claimant and to give evidence, notwithstanding the right of a Tribunal Judge to handle proceedings.

Link: www.legislation.gov.uk/uksi/2008/2685/pd...082685_301114_en.pdf


Secondly, there is some case law that *may* assist but note the legislation cited hails back to a time before the 2008 Tribunal Procedure Rules came into being. See what you think of CDLA/2462/2003 - a Social Security Commissioners decision. Remember that context is king for legal authorities and it can't be emphasised strongly enough that there may be factual differences that distinguish the DLA decision from your client's case.

Link: administrativeappeals.decisions.tribunal...px/view.aspx?id=1207

Just a note of caution. Even if Article 6 has been breached, any appeal to the UT will only be successful if you can show such a breach made a material difference to the overall outcome of the First-tier Tribunal.

Good luck.
The following user(s) said Thank You: s.jmoore@blueyonder.co.uk

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7 years 1 month ago #181449 by Sherkyl
Replied by Sherkyl on topic Breach of Human Rights Act
Thanks for the replies

And thank you Kevin for pointing out Rule 11(5) ; I am aware of it but others may not be.

You do not have to be a trained or qualified representative in fact the rules and guidelines specifically state this.
Whole case is full of holes but without a proper court there appears no opportunity to argue a proper LEGAL case unless someone can afford to employ a high faluting legal beaver of some sort.

I will not go into to many details here because I would have to write an epic novel as, I am sure, would many others.

The point of order that I decided to pick on was the DWP, deliberately, included partial written evidence from a much earlier claim but omitted more recent and poignant evidence. The effect of this was to substantiate the DWP's claim that there was conflicting evidence made by the claimant.

This fact had already been pointed out in a written submission and it was stated that this evidence (and other stuff) should be thrown out.

The DWP also stated that the claimant was not disabled because she had a mentally handicapped adult son that she was listed as the carer for even though they admitted that she was not the appointee. They also tried to accuse her of fraud by stating and insisting that her Son did not live with her but in fact lived 90 miles away at another address in spite of the fact that they had not only corresponded with her son at her home address but all his benefits are paid into her bank account and they have visited her home address and spoke to her son. He is registered with local specialists and doctors and undergoes regular periods of treatment for both his mental health and type 1 diabetes in her home 20.
I would also add that in spite of the fact that theses accusations where made initially, at the first hearing that was adjourned, they where not followed by an investigation and there has never been any investigation into the fraud allegations with regards to a fraudulent claim in regards to her son.

These facts and accusations where 'modified' and somewhat muted for the second hearing but the impact was no less damaging.

However, not withstanding these and many other arguments the fact is that under article 6 a fair trail is paramount and both the defendant and the complainant are entitled to adequate representation.
The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 clearly state that a claimant may choose any person to represent them regardless of that persons qualifications or training.

Ergo; by instructing that I was not allowed to interject into the proceedings they effectively denied the claimants right to reasonable representation and, therefore, denied the right to a fair trial.

Furthermore The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 clearly state that, as the claimants representative, it is part of my duties to point out to the tribunal any fact of law or other procedural or legal point that would help the tribunal in coming to a decision

Even though I had already been bound and gagged by the judge I did try to interject and stress this point when they quoted evidence (by page number) that should not have been included in the evidence pack. But again I was silenced and they continued to refer to it and other incorrect evidence.

This was anything but a fair trail

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