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missing evidence
- cochondinde
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12 years 1 month ago - 12 years 1 month ago #83826 by cochondinde
missing evidence was created by cochondinde
Hi, please can someone tell me, if a document is missing from the appeal papers that the DWP should have sent to the First-tier Tribunal, does this constitute an 'error in law'?
Also, if it is an error in law, what should I expect from the Upper Tribunal in this respect.
Also, if it is an error in law, what should I expect from the Upper Tribunal in this respect.
Last edit: 12 years 1 month ago by Gordon.
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- Gordon
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12 years 1 month ago #83830 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic Re:missing evidence
cochondinde wrote:
What is an Error of Law?
If this is something you wish to pursue then you need to get advice from a someone with experience in appealing to the Upper Tribunal.
I make no claims to be an expert in this area, but I would imagine you would have to show that the document was material to the case and the decision of the panel.
I would also expect you to have to explain why its absence was not reported to the panel, at the time of the hearing.
As a pre-cursor to appealing you must request a Statement of Reasons, see
Tribunals – Requesting a Statement of Reasons
Gordon
SeeHi, please can someone tell me, if a document is missing from the appeal papers that the DWP should have sent to the First-tier Tribunal, does this constitute an 'error in law'?
Also, if it is an error in law, what should I expect from the Upper Tribunal in this respect.
What is an Error of Law?
If this is something you wish to pursue then you need to get advice from a someone with experience in appealing to the Upper Tribunal.
I make no claims to be an expert in this area, but I would imagine you would have to show that the document was material to the case and the decision of the panel.
I would also expect you to have to explain why its absence was not reported to the panel, at the time of the hearing.
As a pre-cursor to appealing you must request a Statement of Reasons, see
Tribunals – Requesting a Statement of Reasons
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Crazydiamond
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12 years 4 weeks ago - 12 years 4 weeks ago #83837 by Crazydiamond
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Crazydiamond on topic Re:missing evidence
cochondinde wrote:
Although technically it can be construed as an error of law and therefore can be appealed to the Upper Tribunal, under the terms of the Social Security Act 1998 it is possible to have the decision set aside without reference to the UT:-
28. Correction of errors and setting aside of decisions.
(1) Regulations may make provision with respect to—
(a) the correction of accidental errors in any decision or record of a decision made under any relevant enactment; and
(b) the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—
(i) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative or was not received at an appropriate time by the body or person who gave the decision; or
(ii) a party to the proceedings or a party’s representative was not present at a hearing related to the proceedings.
(2) Nothing in subsection (1) above shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection.
(3) In this section “relevant enactment” means any enactment contained in—
(a) this Chapter;
(b) the Contributions and Benefits Act;
(c) the [1993 c. 48.] Pension Schemes Act 1993;
(d) the Jobseekers Act; or
(e) the [1997 c. 27.] Social Security (Recovery of Benefits) Act 1997.
You can simply write to the Tribunals Service citing section 28(1)(b)(i) and ask for the decision to be set aside. A ruling as to whether a decision should be set aside will usually be taken by a District Judge, and you will be notified directly by the Tribunals Service of the decision.
If the decision is not set aside, you can appeal to the UT on the grounds that there was a breach of the rules of natural justice.
Hi, please can someone tell me, if a document is missing from the appeal papers that the DWP should have sent to the First-tier Tribunal, does this constitute an 'error in law'?
Also, if it is an error in law, what should I expect from the Upper Tribunal in this respect.
Although technically it can be construed as an error of law and therefore can be appealed to the Upper Tribunal, under the terms of the Social Security Act 1998 it is possible to have the decision set aside without reference to the UT:-
28. Correction of errors and setting aside of decisions.
(1) Regulations may make provision with respect to—
(a) the correction of accidental errors in any decision or record of a decision made under any relevant enactment; and
(b) the setting aside of any such decision in a case where it appears just to set the decision aside on the ground that—
(i) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative or was not received at an appropriate time by the body or person who gave the decision; or
(ii) a party to the proceedings or a party’s representative was not present at a hearing related to the proceedings.
(2) Nothing in subsection (1) above shall be construed as derogating from any power to correct errors or set aside decisions which is exercisable apart from regulations made by virtue of that subsection.
(3) In this section “relevant enactment” means any enactment contained in—
(a) this Chapter;
(b) the Contributions and Benefits Act;
(c) the [1993 c. 48.] Pension Schemes Act 1993;
(d) the Jobseekers Act; or
(e) the [1997 c. 27.] Social Security (Recovery of Benefits) Act 1997.
You can simply write to the Tribunals Service citing section 28(1)(b)(i) and ask for the decision to be set aside. A ruling as to whether a decision should be set aside will usually be taken by a District Judge, and you will be notified directly by the Tribunals Service of the decision.
If the decision is not set aside, you can appeal to the UT on the grounds that there was a breach of the rules of natural justice.
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 12 years 4 weeks ago by Crazydiamond. Reason: Additional info.
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