Appealing to upper tribunal advice please

Hi Anne

I'm sorry, but I was mistaken so I have deleted my post so people can't keep reading it. You have to wait until you have received your statement of reasons. These are taking about three months to arrive. When you receive it you have one month from the date on that letter to apply to the upper tribunal.

The initial request is received by the venue that held the hearing and the Judge in charge will decide whether they agree with the reasons given or not, if they do then the request will be sent on to the relevant UTT. If they do not then it will be referred back to the claimant with the Judge's reasons.

You will then have another month from the date of this new letter to make a request directly to the UTT, this will be reviewed by a District Judge to decide whether there is the potential for an Error if there is then it will be passed to a UTT Judge for a hearing. If it is rejected then the claimant has no further right of appeal.

Appeals to the UTT must be based on an Error of Law or very occasionally an Error of Fact, there will be no further review of the evidence and testimony except in these circumstances, that is why the SoR is required before an appeal can be submitted as it is a statement of how the Decision was made.

Anne, sorry for giving you the wrong information before and probably false hope. Still, nothing to stop you putting in for it.

BIS

Hi Anne,

I saw your post, and may be able to offer further expalanation. I had a similar query a couple of weeks ago -I have copied the relevant part of that response. I apologise therefore if I appear to refer to someone else. I hope this helps.

I will try and explain a bit, which may help you understand your paperwork.
What is an 'error of law'?
An error of law can be one of several things. If the Tribunal have used the wrong criteria -
as you probably know, PIP is based on a points system- with points being awarded for certain activities is accordance with how you can/can't do the activity. So for example, (and here the guides will explain exactly what the test is for each activity section.) - if the tribunal said 'he can prepare baked beans on toast therefore he can prepare food =0 points.' this would be an error of law, this is because the correct test for Descriptor 1 - preparing food - is to prepare a simple cooked meal for one using fresh ingredients'. Baked beans and toast are ready-prepared and not fresh ingredients, which would include meat and vegetables - peeling chopping etc.

Next possible error of law - error of fact - if throughout the tribunal and within all the papers in the appeal bundle you said 'I can not walk more than 20 metres'. but the Tribunal said 'Appellant is clear, and says that he can walk over 200m = 0 points' this would clearly be an error of fact, which becomes an error of law because the tribunal's decision is not based on correct evidence. No tribunal could correctly make that decision.

Was the procedure correct - were you allowed to speak and give evidence freely, was there a bias? So for example, if the tribunal said 'we are running late, you have 1 minute to put your case, please hurry up!' This might suggest that the tribunal were not really giving you a chance to speak, or there might be something more obvious - so if they asked you where you came from, and you answered 'I live in Cambridgeshire', and you heard the the tribunal judge then say ' well, all the people in Cambridge are time wasters, and shouldn't claim benefits', this would suggest that the judge is bias, which could be an error of law. Was the tribunal properly constituted, were you given proper notice of the hearing? These are all procedural errors and if breached are likely to be errors of law that can be appealed.

Next possible scenario - tribunal fails to make adequate enquiry - this is in fact something that I recently argued as error of law - all PIP activities have to be done 'safely, in an acceptable manner, in a reasonable time and repeatedly'. (These concepts are all described in the guides.) So, when someone has a condition where coordination and ability to walk/use hands etc gets progressively slower and slower, so it takes more than twice the time a normal person would take, this should ordinarily mean points should be awarded. The tribunal forgot to ask how long it took the appellant to do the activities, including walking - the tribunal said he can walk 200m so no points. The tribunal ignored the very slow time it took for this appellant to walk, and this was an error of law.

Lastly, if the tribunal simply say 'preparing food = zero points' this is insufficient - the tribunal should add a brief sentence or two saying eg 'Both GP and Assessor note this man has full use of his hands, and there is no other reason or evidence why he can not prepare food.' - this would be ok.

Clearly some of these areas overlap.
If you can, perhaps make a copy of the statement of reasons, so you can scribble notes on it. Read the notes of evidence (record of proceedings) if you have a copy, or perhaps you/friend made your own notes at the hearing - compare the two - does the tribunal note seem accurate? Go through the PIP descriptors via the guides and see if the tribunal's reasoning falls within the law as described in the guides. Has the tribunal gone through the whole tests correctly? Has the tribunal provided sufficient explanation, and has it relied on correct facts, and not ignored vital information. (The tribunal might have relied on the evidence of the assessor who felt no points should be awarded, and ignored all your medical evidence, including consultant's reports which confirm numerous disabilities - it would be an error of law for the tribunal to 'rely' on the assessor and ignore other medical evidence)

There may be several spelling errors and small errors etc - try to work out the main reason/s why you think the tribunal got it wrong - bullet points may help. If you can find at least one substantial error of law, then you can appeal.First you would need to write to HMCTS and ask for 'the first tier tribunal decision to be set aside and/or for leave to be granted to appeal to the Upper Tribunal'. The regional judge will look at your case and will decide if there is an error of law. He can agree, and then it is likely that the decision will be set aside, and a new hearing will be set up, with different tribunal people. If there is an error of law of importance, then the case can be sent directly to the Upper Tribunal for a ruling on the law- the Upper Tribunal judge can make a new decision or again might think another hearing is required.

There is a month from the date of the tribunal decision to request a set aside/leave to appeal to Upper Tribunal. However, this can be extended up to a final 13 month limit after the decision, as long as you can argue good reason. If your health condition/s mean that you can not deal with this within the original time limit, and particularly if you were unable to access any professional help, then this is likely to be a good reason for a short delay.

LL26

Hi Anne,

That is really good news for you about you UC LCWRA award – one less thing to worry about. I apologise if you have already posted about this and I have forgotten. But if you have not done so can I suggest that you get a copy of the assessment report (UC85). It is not only good to know what is in your file, but the DWP and the Tribunal Service do sometimes cross refer between awards. It is also something which you could potentially use in your appeal.

To answer your questions:

1. This is not the time to argue your whole case again, but to say why you believe the Tribunal made a mistake. Although you are not expected to be a legal expert and LL28’s post above gives you great advice on this. However, if your son has prepared an amazing document which you would like the judge to read there is no reason not to include it in what you send to the court since the worse that can happen is that they disregard it.

2. I would prefer to be honest and straightforward. Anything else can at the best be misleading and can potentially lose you points since you are presenting yourself as doing something which you have not done. However, he needs to include a short letter from you saying that you either wish for the decision to be set aside or wish for permission to appeal to the Upper Tribunal. You should also state that you include a statement written by your son which you have read (or have had read and explained to you) and with which you agree.

3. Your one month starts from the date of the letter sent to you which includes the Statement of Reasons.

As ever, please do come back to us if you have any more questions,
Catherine