Errors of Law

Hi Mark,

I am sorry to hear that you are struggling to find someone to help you.
advicelocal.uk/ gives details of advice organisations - however I suspect you may have already tried some of these.
Our members guides give a lot of information about claiming PIP and appeals.
Have a look here, if you haven't already : www.benefitsandwork.co.uk/personal-independence-payment-pip
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.

I hope the above is of some assistance. I apologise that we can't give specific advice about your particular case, we simply do not have the resources to do this. I wish you success. Good luck!

LL26

Hello Mark,

You may wish to read this news article

Guidance for claimants taking case to upper tribunal

The link at the bottom of the article is very helpful

Upper Tribunal Guidance

It is a document explaining the help which the Upper Tribunal will give to people wishing for their case to be considered by the UT, but who do not have anyone to represent them.

One of the things it covers is that an Upper Tribunal Judge will now look for that error in law for you. Do read the documents, and I hope that they give you confidence in going forwards.

Oh, and just to hopefully give you a little more confidence, the majority of UT decisions are paper based ones, so it is likely that you will not have to argue your case in person before the judge.

Catherine

Hi Mudgie

I answered your other post. This one is very old and Denby may not be on here to be able to reply to you. The link still works

BIS