Advice – TS refused request for statement of reasons

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    mark b

    We had a HB overpayment appeal which we sent to the Tribunals Service in late 2021 and after waiting just over 12 months we still hadn’t received notice of a hearing or a decision so we contacted the TS by email in early 2023. They responded to say that the appeal had been heard in Sept 22 and provided a copy of the decision notice. We had considered that the overpayment (£3k) was caused by claimant error because they failed to notify us of a change to their household when a non-dep left the property, however, the Tribunal judge had found that the overpayment was not recoverable. We responded to the TS the following day to request a statement of reasons and explained that we had not received a copy of the decision notice until 5 months after the paper hearing date.

    In June 23 leave was granted to request a statement of reasons out of time and the judge who made the decision was asked to prepare a statement. We have now received notification from the TS (15th Jan 2024) to say that our request for a statement of reasons has been refused because the judge has destroyed their notes due to the amount of time since the decision was made.

    Does anyone know if there are any further steps we can take to have the decision set aside or are we out of options?

    Peter Barker

    Tricky. You say it was a paper hearing. If neither you nor the claimant requested an oral hearing, I don’t think there was anything procedurally wrong about the Tribunal hearing the case without telling you in advance.

    The delay sending the decision notice was not a procedural error that affected the decision itself, so maybe the set-aside mechanism isn’t quite the right fit.

    However, failure to provide an SOR because of problems at the Tribunal end (and not delay by the parties) has been held to be an error of law and provides grounds for appeal to the UT without an SOR.

    I’d probably try both:

    – ask for the decision to be set aside under Rule 37, and
    – apply for permission to appeal to the UT and to waive the requirement for an SOR under rule 38(7)(b)

    You can do both of these in a single document under separate headings – it goes to the FtT in the first instance.

    Mike Hughes

    No-one requested an oral hearing?

    That triggers a paper hearing process which means the case can be heard at any session into which it can be wedged. That will often be within days or weeks once papers have been issued. You don’t say whether the appeal was acknowledged; you received papers etc. but let’s assume you did. If the matter is a paper hearing and you have papers I think it would be hard to accept anyone not querying by the 3 month mark at the absolute latest why the matter hadn’t been decided and notified. As it’s paper you would never be notified of a listing. You should get the summary decision. Waiting 12 months before even asking is a process relevant to oral hearings only and it’s not a great starting point for this.

    It is extremely fortuitous to be allowed to request an SOR out of time and especially in light of the above delay, which appears to have been of your own making. The lack of a summary decision ought to have been picked up months earlier and you may want to review internal processes in light of that.

    As regards a set aside I do not see that 37(2) applies and if it doesn’t then you likely are dead in the water.

    There is certainly case law with regard to being able to proceed to UT minus an SOR where there has been an issue. What’s the issue here? The SOR has neither been produced and lost or erroneously destroyed. The clock was ticking. You appear to have failed to follow up. Judges destroy their own notes after a set period. If you had appeal papers; likely knew it was a paper hearing and thus ought to have known the clock was likely ticking on the destruction of said notes from very early on then, again, the case becomes that much harder.

    There’s an argument that whilst HMCTS failed to provide a summary decision in a timely manner you contributed to any subsequent applications being made outside the time a judge has to retain their own notes. It would be a very generous and stretchy decision indeed to allow a set aside on any of that.

    You could then apply for leave to appeal minus the SOR. Certainly doable but what’s the specific error of law? Your opportunity to dispute the factual arguments has been and gone. You now need 1 of the 5 errors of law. 2 are lost to you because there isn’t an SOR.

    Outside of this, a bit of common sense. Do you have evidence the appellant lied to the tribunal or evidence the judge was stupid? Absent either then the assumption must be that the decision was made that a credible disclosure was made which wasn’t acted on or a disclosure wasn’t reasonable in all the circumstances. Those are the only options. Respectfully, a judge won’t have pulled a decision out of thin air based on nothing at all and you have the summary decision as a clue.

    If by some means you get leave to appeal and even win at UT, what facts are you going to produce beyond the lack of any evidence of a disclosure when the matter is remitted back to FTT?

    Mike Hughes

    Sorry, should have clarified that by papers I meant that once you’ve produced papers and HMCTS have acknowledged and circulated. Obviously you have papers as you wrote them 🙂

    I should also clarify that the judges set period does not appear to be set by HMCTS. They allegedly keep a copy for a year but the judges copy and their own notes about the case outside of their notes during the hearing appear to be destroyed on a timetable of their own determination. Doesn’t really matter as HMCTS should have a copy for up to a year.

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