Employment and Support Allowance (ESA)
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Late application to set aside

Peter99Peter99 Member Posts: 63 Connected
Is it possible to set aside FtT decision, out of time on the Ground where the decision Notice was not properly notified because the FtT failed to include the information on the rights to ask for the written reasons for decision and secondly, where FtT failed to give information on the rights of appeal.


  • Cher_ScopeCher_Scope Posts: 4,111

    Scope community team

    Thanks for asking @Peter99

    Hopefully some of our ESA savvy members can help answer your question  :)
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  • Chloe_ScopeChloe_Scope Scope Posts: 10,653 Disability Gamechanger
    Hi @Peter99, how are you getting on? :)

  • Peter99Peter99 Member Posts: 63 Connected
    edited September 2020
    @Cher_Scope and @Chloe_Scope
    Thanks for asking. I am yet to receive a clear cut advice I need.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    I'm afraid i don't have an answer for you, which is why i didn't reply. Have you read the link that was posted by Andrea above? Maybe someone else will see this and be able to answer your question.
    Proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice I have given to members here on the community.
  • mikehughescqmikehughescq Member Posts: 6,661 Disability Gamechanger
    As per rule 37 - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/488476/consolidated-sec-rules.pdf - any application for a set aside must be within one month. There is no provision for late applications so the matter is at an end. 

    Even if the application had been made in time it’s highly arguable as to whether it would have succeeded because, as 37(2) notes

    ”(2) The conditions are—
    (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
    (b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
    (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or
    (d) there has been some other procedural irregularity in the proceedings.”

    The failure to include the notice on the right to ask for an SOR and ROP relates to a document issued after the proceedings. At best a) could be argued but it’s more than a stretch. The intent of the rule is to allow a quick remedy (a set aside) where something was missing which might plainly have impacted the proceedings. A document you get about what you might do after an appeal cannot impact an appeal that’s already been decided. 

    The further argument that the FTT failed to advise on the right of further appeal so interesting but likely also fails. 

    The right to such information is contained in 

    “33.—(1) The Tribunal may give a decision orally at a hearing.
    (2) Subject to rule 14(2) (withholding information likely to cause harm), the Tribunal must provide to each party as soon as reasonably practicable after making [a decision (other than a decision under Part 4) which finally disposes of all issues in the proceedings or a preliminary issue dealt with following a direction under rule 5(3)(e)]—
    (a) a decision notice stating the Tribunal’s decision;
    (b) where appropriate, notification of the right to apply for a written statement of reasons under rule 34(3); and
    (c) notification of any right of appeal against the decision and the time within which, and the manner in which, such right of appeal may be exercised.”

    So, on the one hand under 33(2)(b) and (c) a tribunal must notify of those rights. On the other there is no sanction if they don’t. Set aside is again not the sanction because the inclusion of the documents would not have affected the proceedings themselves. Those have been done and dusted. 
  • Peter99Peter99 Member Posts: 63 Connected
    You are very brilliant. I agree with your analysis. I reckon not notified of rights of appeal could be the reason for any delay.

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