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Having problems appealing to the upper tribunal!

yanniyanni Member Posts: 50 Courageous

Please can @mikehughescq @BenefitsTrainingCo or anyone else help with this?

In Nov 2018, I received a statement of reasons which made no mention of the washing and bathing activity which was discussed at the tribunal so I sent an email to the administrative support explaining this, referencing all the times that I had mentioned this activity in the PIP2 form and the appeal papers and asking how this could be resolved.

Additionally I asked if the statement of reasons could be amended as I didn’t feel that one of the points was accurate but this was for the verbal communication activity.

I received no response from this email or later requests for the records of proceedings so in February 2019 I sent a formal letter headed ‘Application to appeal to the upper tribunal’ in which I explained that I felt there had been an error of law with activity 4 as the tribunal had given inadequate reasons (in fact no reasons) for their decision. The tribunal service have confirmed they are in receipt of this letter.

Yesterday I received a direction notice referring to the above Nov 2018 email stating that it was not appropriate to amend the statement of reasons then, confusingly, giving me a month to “seek permission to appeal”.

There is no mention in this direction notice of the formal letter or activity 4. It just says about  amending the statement of reasons, the email and that the email may be treated as an application for permission to appeal.

I spent a frustrating 40 minutes on the phone today to the administrative support centre with their administrator insisting that if I was unhappy with the decision I needed to put in writing.

No matter how many times I said that I hadn’t had a decision just a direction notice I got nowhere.


To appeal to the upper tribunal, I understood that  - in simple terms - I needed to write to the FTT (admin support centre) explaining why I felt that there had been an error of law and an FTT judge would look at the original decision and either explain their reasoning for activity 4, amend their decision or refuse to amend their decision and give permission (or not) to appeal to the Upper Tribunal. Have I got this wrong?

Without a decision notice I can’t apply to the upper tribunal and I don’t really know what to do now.

It seems that an email I sent to the administrative support centre asking some questions has somehow became an application to appeal to the UT whilst the letter that was the application has been ignored. 

Today I was told that the judge had seen the letter but I find it difficult to believe that she would make no reference to the letter and  completely ignore both the arguments in the letter if this was true.

Also if she made a decision why have I been sent a direction notice not a decision letter?

And if I follow the directions on the direction notice, who am I meant to request permission to appeal from – the FTT or the UT?

I am going to try CAB tomorrow but they are the only potential advisors in my area.

Any help appreciated.



Replies

  • cristobalcristobal Member Posts: 966 Disability Gamechanger
    @yanni - I think you might best seeing a solicitor for legal advice.

    CAB won't be able to advise on this - it's too complex...
  • April2018momApril2018mom Posts: 2,869 Member
    Please ask a lawyer for advice. This is a complex issue. This is beyond what CAB can do. 
  • mikehughescqmikehughescq Member Posts: 5,979 Disability Gamechanger
    It seems to me that you’ve obtained a statement of reasons and then asked for an amendment to the statement of reasons. I’m not clear as to whether you also obtained the handwritten record of proceedings. The latter may well have highlighted a discrepancy. A decision can be corrected under the slip rule if there was a genuine slip of the pen but the omission of a whole activity is not a slip so I’m inclined to agree with the direction that they’ve looked at your issue and correctly feel that the way your issue is addressed is via an application for leave to appeal on the basis of an error of law. The obvious error here would be inadequate findings of fact but there would likely be others too. Given that you failed to appeal within a month of receipt of your SOR HMCTS are being generous in suggesting you have a month from the latest communication rather than November 2018. Do not let this additional opportunity pass. 

    You can only appeal using a UT1 form, which you can find at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/689163/ut1-eng.doc. Your letter was not a legitimate application for leave to appeal and a judge would arguably be entitled to disregard it. That is why there has been no comment and it’s why you’ve “got nowhere”.

    If you have had a summary decision on the day then you have had a decision. The statement of reasons is an expanded version of that and is also the decision. Your UT1 form and your statement of reasons will form the basis of your application for leave to appeal. Your email has not become an application and your letter has not been ignored. Nor however are either especially relevant. 

    Your options after FTT are 

    - accept the decision.
    - ask for a set aside on specific grounds, which would not apply here.
    - ask for a correction, which also wouldn’t apply here.
    - get an SOR and ROP and then apply for leave to appeal using a UT1.

    Essentially you have done maybe the first half of the last one and now you need to crack on with the latter before you skip outside the month and make things infinitely more complex by needing to make a late application. 

    The UT1 initially goes to your local/regional HMCTS office for a judge to decide if permission should be given. If it is then everything goes off to your national office. If not then you get a second bite of the cherry by being able to apply directly to the national office for permission. The addresses are contained within your previous correspondence with HMCTS and the UT1.

    Your understanding of what happens on a further appeal is completely skewiff. Only if permission is given on the basis of your argument in the UT1 will the matter proceed. It then doesn’t go to the FTT judge. It goes to a UT judge. They can decide that  

    - there was no error of law. End of the matter unless you’ve the money for a judicial review!
    - there was an error but it doesn’t actually change the decision.
    - there was an error and they can make the decision the FTT ought to have made.
    - there was an error and the matter goes back to a different FTT to decide afresh. 

    Do not pin your hopes on 3. That is rare. 1, 2 and 4 are the likely outcomes. However...

    You’ve not mentioned what your concern is with washing and bathing so it’s impossible to assess whether an award of points was possible, likely, unlikely or would have even resulted in an award or higher award. That’s the very first thing which would need to be dealt with before assessing whether or not it’s worth appealing further. It’s often the case that 2 above is the outcome. Additionally, you need to assess the risk to any points already awarded because if 4 is the outcome then your whole award is looked at afresh and not just the points you want them to focus on. 4 is the most likely of the possible positive outcomes.

    I disagree with @cristobal on this. Many advice agencies including Citizens Advice will absolutely have the expertise to advise on leave to appeal. However, you won’t know until you approach them. It will vary from service to service. It’s very unlikely a solicitor would be of much assistance. Just make sure you have exhausted all options by looking at 
    https://advicelocal.uk/ for your area.
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