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Tribunal Appeal Refused
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2 weeks 5 days ago #297542 by Navigator
Replied by Navigator on topic Tribunal Appeal Refused
Hi LL26,
Wow thank you for one of the most comprehensive answers I think I have ever had here on B&W forum.
I hope I can just make a few points clearer based on your response.
My friend suffers from Severe Bilateral Hearing Loss in both ears, as defined by the (British Society of Audiometric descriptors BSA 2011) which describes her condition as being both permanent in nature, and severe affecting both speech and language.
In the beginning she requested a recorded Assessment, but this was ignored and she mistakenly believed it was being recorded to assist her because of her hearing problem. Had it been recorded thing like her asking for questions to be repeated, struggling to lip read, and the stress and anxiety would have not gone unnoticed as they were all mentioned.
As for the Tribunal: The needing of a timer is based on and chosen for being extra loud, or that the sound it makes is at a higher pitch so she can hear it.. As normal inbuilt appliance timers are not loud, and can easily be obscured by background noises. She uses her mobile as described as it is also volume adjustable, where normal appliance timers are not, plus she can take her mobile with her anywhere in the house, and still know she will be alerted to the timer going off.
In relation to face to face interactions, she asked the Tribunal to provide help in order for her to hear, they provided a microphone and speaker system, meaning she did not have to ask for questions to be repeated, but she did have her adult Son present in the waiting room, as her support for before, during if needed, and after, upon arrival at the tribunal she was so anxious, that her name was not on any of the courts case boards, if it were not for her son being with her who, dealt with the staff and managed to sort it out, she would have just turned and walked away, due to the anxiety she was under.
The tribunal seemed to ask very few questions, and answered them the best she could, however this is a unique situation, where they made allowances for her and acted accordingly, other situations are not so straight forward, at a recent works departmental meeting, she struggled to both hear and understand what was being said, and had to rely on others to tell her what was happening, as her employer still forgets to ask if anyone attending a meeting has any special requirements to do so.
I understand that she now has 30 days to appeal to the hight tier tribunal, as has requested a Statement of reasons from the tribunal, but this may take longer than 30 day deadline to arrive, she is so very stressed by it all and feels both the initial assessment, and the first tribunal have let her down, I think she should apply to the higher tier, but she is fearful, of the same outcome.
Regards
Navigator
Wow thank you for one of the most comprehensive answers I think I have ever had here on B&W forum.
I hope I can just make a few points clearer based on your response.
My friend suffers from Severe Bilateral Hearing Loss in both ears, as defined by the (British Society of Audiometric descriptors BSA 2011) which describes her condition as being both permanent in nature, and severe affecting both speech and language.
In the beginning she requested a recorded Assessment, but this was ignored and she mistakenly believed it was being recorded to assist her because of her hearing problem. Had it been recorded thing like her asking for questions to be repeated, struggling to lip read, and the stress and anxiety would have not gone unnoticed as they were all mentioned.
As for the Tribunal: The needing of a timer is based on and chosen for being extra loud, or that the sound it makes is at a higher pitch so she can hear it.. As normal inbuilt appliance timers are not loud, and can easily be obscured by background noises. She uses her mobile as described as it is also volume adjustable, where normal appliance timers are not, plus she can take her mobile with her anywhere in the house, and still know she will be alerted to the timer going off.
In relation to face to face interactions, she asked the Tribunal to provide help in order for her to hear, they provided a microphone and speaker system, meaning she did not have to ask for questions to be repeated, but she did have her adult Son present in the waiting room, as her support for before, during if needed, and after, upon arrival at the tribunal she was so anxious, that her name was not on any of the courts case boards, if it were not for her son being with her who, dealt with the staff and managed to sort it out, she would have just turned and walked away, due to the anxiety she was under.
The tribunal seemed to ask very few questions, and answered them the best she could, however this is a unique situation, where they made allowances for her and acted accordingly, other situations are not so straight forward, at a recent works departmental meeting, she struggled to both hear and understand what was being said, and had to rely on others to tell her what was happening, as her employer still forgets to ask if anyone attending a meeting has any special requirements to do so.
I understand that she now has 30 days to appeal to the hight tier tribunal, as has requested a Statement of reasons from the tribunal, but this may take longer than 30 day deadline to arrive, she is so very stressed by it all and feels both the initial assessment, and the first tribunal have let her down, I think she should apply to the higher tier, but she is fearful, of the same outcome.
Regards
Navigator
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2 weeks 4 days ago #297568 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Tribunal Appeal Refused
Hi Navigator,
Panic not!
First of all tge time limits are notcas rigid as first appears and second the time limit for lodging the appeal to Upper Tribunal starts on the date the Written Statement of Reasons is sent out.
I'll explain time limits.
There is 1 month basic time limit for
1. Sending in Mandatory Reconsideration after the date of the decision
2. Lodging appeal after MR decision
3 Applying for WSOR after tribunal decision is sent out/announced
4. Applying for leave to set aside First tier tribunal and/or requesting leave to appeal to UT but crucially the time starts from when the WSOR is sent out
Do any of these things within the requisite initial month and the appeal or MR etc will always be considered and deemed legal.
However, sometimes a person might be ill, he might be awaiting an important document, you need to seek legal advice and can't get an earlier appointment, there might be a family bereavement or any combination of the above. These sorts of events are likely to all comprise a reasonable excuse for doing one of the above 4 'appeals' outside the normal one month time limit.
As long as your excuse is reasonable you can have up to 13 months after the relevant decision to lodge the required appeal action. If you are a couple of days late, having thought the due date was Thursday instead of Monday it is entirely possible this could amount to a reasonable excuse which is accepted by DWP or tribunal. However the longer the delay the more punchy the excuse needs to be.
Whilst due dates should be adhered to, and then the appeal will always be allow to proceed, the reality is that you can be late and with sufficient reason, and still be allowed to proceed to the stage of the appeals process.
Hence no need for panic!
...back to the specifics of the case
I think at present there is little to do apart from awaiting the WSOR. Certainly do some background and consider cases etc, but you won't know the proper error of
law until the WSOR arrives.
This is really important-
When the WSOR arrives photocopy it. Write copy on the top. Put the original aside.
Use only the copy from now on, so you can keep a pristine copy.
What you can of course do now to assist is to produce a transcript of the cd recording, as I suspect that might arrive quite soon. Again once done Print a copy, and then when needed you can print a clean one.
As you type the transcript use the comments box via Word, or write a comment in the margin on a hard copy. Note if on the recording there is any kind of distress, stuttering, (um, ah) long pauses etc, harsh tone of voice, something said in a way that could be sarcastic or given a different meaning via the tone that wouldn't be apparent from reading the transcript words - anything basically that wouldn't be obvious from just reading.
Think of a screen play- how would you describe the manner of speech.
This does need to be very matter of fact and not judgmental. You may need to send this into UT. Keep a pristine copy of the full annotated transcript.
A copy of annotated transcript can be used to to compare to with the WSOR- does the tribunal's reference to oral evidence accord with the transcript Even small words like I don't ' can be be wrongly noted by the tribunal as 'I do.' The meaning of course now being the opposite.
The importance of listening to the transcript may be important too.
I can tell someone 'Yes!' and sound emphatic, or I can say 'yes' on a long drawn out way that sounds far from confident. It might not be relevant but if the tribunal say claimant was confident about X, but the manner of speech indicates something not so confident this could be important.
Matching evidence said and evidence from the papers with the 'evidence' relied upon by the tribunal is also important. If the tribunal purports to rely on something that isn't evidence it is likely to be an error of law.
The WSOR should show the correct legal test, how the facts are applied to the law.
Once you have identified one or material error of law (ie one that has the possibility of altering the award), then you have to write to the first tier tribunal asking for leave to set aside the decision and or requesting leave to appeal to UT.
(As per above there's 1 month time limit unless you can show good cause why you are late - the time starts when WSOR is sent out.)
The Regional Judge can agreed there is an error of law and set the decision aside. ( The whole decision is likely to be set aside. ) A new hearing will then be fixed with a totally new panel to rehearse the whole case.
Or, if the Reg. Judge is unsure or perhaps there is an important area of law that needs to be clarified then the case will be set aside and sent to UT.
Alternatively the Reg Judge might think there is no material error of law, and refuses to set aside or refer to UT. However that's not a major problem as you can still appeal directly to UT. (I have done this on several occasions and UT have still upheld the appeal.)
Please repost when you have more information.
I hope this helps.
LL26
Panic not!
First of all tge time limits are notcas rigid as first appears and second the time limit for lodging the appeal to Upper Tribunal starts on the date the Written Statement of Reasons is sent out.
I'll explain time limits.
There is 1 month basic time limit for
1. Sending in Mandatory Reconsideration after the date of the decision
2. Lodging appeal after MR decision
3 Applying for WSOR after tribunal decision is sent out/announced
4. Applying for leave to set aside First tier tribunal and/or requesting leave to appeal to UT but crucially the time starts from when the WSOR is sent out
Do any of these things within the requisite initial month and the appeal or MR etc will always be considered and deemed legal.
However, sometimes a person might be ill, he might be awaiting an important document, you need to seek legal advice and can't get an earlier appointment, there might be a family bereavement or any combination of the above. These sorts of events are likely to all comprise a reasonable excuse for doing one of the above 4 'appeals' outside the normal one month time limit.
As long as your excuse is reasonable you can have up to 13 months after the relevant decision to lodge the required appeal action. If you are a couple of days late, having thought the due date was Thursday instead of Monday it is entirely possible this could amount to a reasonable excuse which is accepted by DWP or tribunal. However the longer the delay the more punchy the excuse needs to be.
Whilst due dates should be adhered to, and then the appeal will always be allow to proceed, the reality is that you can be late and with sufficient reason, and still be allowed to proceed to the stage of the appeals process.
Hence no need for panic!
...back to the specifics of the case
I think at present there is little to do apart from awaiting the WSOR. Certainly do some background and consider cases etc, but you won't know the proper error of
law until the WSOR arrives.
This is really important-
When the WSOR arrives photocopy it. Write copy on the top. Put the original aside.
Use only the copy from now on, so you can keep a pristine copy.
What you can of course do now to assist is to produce a transcript of the cd recording, as I suspect that might arrive quite soon. Again once done Print a copy, and then when needed you can print a clean one.
As you type the transcript use the comments box via Word, or write a comment in the margin on a hard copy. Note if on the recording there is any kind of distress, stuttering, (um, ah) long pauses etc, harsh tone of voice, something said in a way that could be sarcastic or given a different meaning via the tone that wouldn't be apparent from reading the transcript words - anything basically that wouldn't be obvious from just reading.
Think of a screen play- how would you describe the manner of speech.
This does need to be very matter of fact and not judgmental. You may need to send this into UT. Keep a pristine copy of the full annotated transcript.
A copy of annotated transcript can be used to to compare to with the WSOR- does the tribunal's reference to oral evidence accord with the transcript Even small words like I don't ' can be be wrongly noted by the tribunal as 'I do.' The meaning of course now being the opposite.
The importance of listening to the transcript may be important too.
I can tell someone 'Yes!' and sound emphatic, or I can say 'yes' on a long drawn out way that sounds far from confident. It might not be relevant but if the tribunal say claimant was confident about X, but the manner of speech indicates something not so confident this could be important.
Matching evidence said and evidence from the papers with the 'evidence' relied upon by the tribunal is also important. If the tribunal purports to rely on something that isn't evidence it is likely to be an error of law.
The WSOR should show the correct legal test, how the facts are applied to the law.
Once you have identified one or material error of law (ie one that has the possibility of altering the award), then you have to write to the first tier tribunal asking for leave to set aside the decision and or requesting leave to appeal to UT.
(As per above there's 1 month time limit unless you can show good cause why you are late - the time starts when WSOR is sent out.)
The Regional Judge can agreed there is an error of law and set the decision aside. ( The whole decision is likely to be set aside. ) A new hearing will then be fixed with a totally new panel to rehearse the whole case.
Or, if the Reg. Judge is unsure or perhaps there is an important area of law that needs to be clarified then the case will be set aside and sent to UT.
Alternatively the Reg Judge might think there is no material error of law, and refuses to set aside or refer to UT. However that's not a major problem as you can still appeal directly to UT. (I have done this on several occasions and UT have still upheld the appeal.)
Please repost when you have more information.
I hope this helps.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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