Category: ESA, PIP, UC and DLA Queries and Results
Hi MeLee,
The Statement of Reasons (wsor) normally takes a month to arrive. Or...the is 1 month allowed within the Trib Rules and it should arrive then. If not phone the Tribunal after say 5 weeks to chase.
The record of proceedings (normally a CD) should arrive fairly soon. If you wish, in the interim whilst waiting for the wsor, you can produce a transcript of the hearing when the cd arrives.
If I need to do this I would do it like a playscript. Eg
Tribunal Chairman (Mr Smith):
Hello, I'm the Chairman, Mr Smith....
Doctor: You said earlier that you had a fall in May. Now you are saying the fall was in June...
Me: hmmm...no I had 2 falls, I fell over the kerb in May, I think that one was May...(pause of 8 seconds) ...I don't know, I'm confused...(inaudible mumbling)
Prepare any transcript in a very matter of fact way. You can then produce an annotated copy explaining that eg you were tearful, had to sit down, were confused etc tribunal member sounded cross, which may not be apparent from reading the transcript. (The annotated version will only be necessary if you need to send this in to illustrate an error of law.)
OK...so finally the wsor arrives. Immediately make a copy and keep it safe.
You need to find an arguable material error of law. This is something whereby the decision could have achieved benefit or extra benefit if made correctly. (So if you find an error of law to achieve an extra 2 points and you only got 4 points, this isn't enough to alter the decision because you need at least 8 so won't be material.)
The wsor normally has a few paragraphs explaining the background, then the law then the descriptors set within the law. Remember that everything in the appeal papers is also evidence.
1. The tribunal has sought to rely on 'facts' not borne out by the evidence
Firstly check the ' facts found' - many errors of law involve trying to apply the law to 'non' facts. So, if the wsor says '...we found that the claimant walks to visit her mother's everyday, this is over 200m therefore no entitlement to mobility points...' If there is no mention whatsoever in the papers of walking to Mum's and this wasn't said at the hearing, this can not be a fact! And worse still Mum if your mother had died many years previously so actuallt cant occur!- this so-called evidence is clearly wrong and a Tribunal can not seek to rely on evidence that isn't true or indeed possible.
Often a Tribunal can miss a 'not' so they have noted 'claimant can do...' whereas the truth is you actually said 'I can not...' This is where the transcript is important. You can check this and the other papers. What was said, have the Tribunal relied on actual evidence?
2. The tribunal has failed to provide a proper explanation
Next, consider whether the evidence is reliable? Obviously the tribunal can decide whether the assessment report which contradicts the GP' s report is reliable and correct. However there needs to be at least some explanation, explaining why. If the tribunal explained that at the hearing you gave unconvincing and contradictory evidence which suggested that you had exaggerated your health problems to the GP, then this might be sufficient reason, although perhaps some examples should be provided. However, if there were examples that purported to show contradictions but again didn't appear anywhere in the papers or via the transcript then this would again likely to be an error of law.
3. The tribunal has failed to apply the correct legal test in respect of....
Have a careful read of the members guides and the descriptor wording. Also think about concepts such as 'majority of days' (Regulation 7 ,)and the so-called reliability criteria of Reg 4(2A)' safety/repetition across the across the whole day/reasonable time/and acceptable standard.
Did the tribunal take into account eg the effect of pain (ie not acceptable) whether you could repeat, your speed of activity and crucially whether you were safe? Did they consider the majority of days (not the majority of time ' which is wrong!?) You need to meet all 4 of the criteria and the tribunal need to show that they have consider this.
Consider all the correct legal tests for the descriptors- 'and' "or' are important - some descriptors can be achieved by not doing one of the list, others need all parts to be satisfied to gain points.
4. The tribunal has failed to make a proper inquiry of...
The tribunal has an inquisitorial function- thus if you said 'I can't walk too far. I get out of breath.' This indicates a possible problem with walking. If the tribunal made no further enquiries and then awarded 0 points thus would indicate a failure of their duty. (The Tribunal should investigate how you walk, where you go, how often, speed pain, breathlessness, falls etc.) Similarly, if the Tribunal simply 'rely' on the assessment report and ask no further questions at the hearing, this could also comprise a failure in their inquisitorial duty.
5. The tribunal failed to consider the 'overriding objective ' as set out in Rule 2 The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008
Rule 2 provides that there is an overriding objective of fairness - being ill tempered towards you, not letting you or your witness answer questions, closing the hearing in a short time not allowing you to be able to sum up or add something at the end etc etc might all be evidence of being unfair. Additionally, if you weren't allowed a break to alleviate distress or go to the toilet this might also indicate the hearing was not fair.
Some of these potential grounds for appeal can overlap.
Your particular concern about the hearing was a comment about pouring some water and your daughter's Blue Badge. Who knows thus might well be relevant! If these 'facts' do apply and can somehow be relevant to eg how you prepare food or walk about then an explanation needs to be made. Maybe the water pouring shows dexterity ' it maybe that if the tribunal relied on an observation and didn't ask you to comment this too could be an error of law.
(Thr tribunal relied upon an observation which was not put to claimant.)
Basically match up the evidence with the 'facts'. Is there proper enquiry and proper explanation? Was the hearing fair? Was the correct law applied?
If you can find st least one arguable material error of law then write in explaining this. Write to the tribunal with name and NI number and hearing number then heading -
'Request to set aside First tier tribunal Decision and or request for leave to appeal to the Upper Tribunal.'
Give the hearing date and venue as subheading.
I usually set out the Grounds of Appeal as a numbered bullet list and then revisit each topic giving a full explanation.
Send this on within 1 mth (you can be late if you have a good reason,) then the Regional Judge will decide. He can set the decision aside or send straight to Upper Tribunal if it is complex or maybe a common problem that needs resolution. If the Reg. J reguses you can send a separate request direct to UT.
If you are relying on the transcript to indicate things that were said and ignored or to show nothing was says, then send in a non annotated copy. Sometimes making pencil notes in a spare copy of both wsor and ir transcript can be helpful. But if you do need to appeal to UT you'll need a pristine copy to send in!!!!
I hope this helps.
LL26
