Appeal decision

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  • #39847
    Janillou
    Participant

    I have the following situation:

    . appeal submitted on grounds of reg 9(1)(a)(l)
    . this case was also part of a fraud investigation, and as such I did not
    include some additional evidence due to 3rd party disclosure. However,
    I did indicate on AT37 that the case was part of an investigation and
    that if judge wanted more info – could he please contact us/fraud.
    . Hearing adjourned (of which I was unable to attend), and the LA was asked
    to supply all the information and evidence which they wish to rely on
    per the comments on AT37. If not provided, then they will not be able
    to rely on it.
    . I call Tribunal to query this request, and asked whether or not I could
    supply them to the Judge at the hearing. No reply received, so I
    assumed I could.
    . Hearing takes place – I again couldn’t go. Decision found in favour of
    the appellant. Judge makes reference to the ‘additional’ evidence that
    the LA did not supply, poo pooing my comment to them re my earlier call
    to the Tribunal re this.
    . I ask for a statement of reasons – which I have now received.

    I have never asked for a decision to be ‘set aside’ before. When I do this do I include the additional evidence at the time I make my request? Obviously, I need to let claimant know, but I don’t/can’t supply the additional evidence to them due to 3rd party/sensitivity etc.

    #113629
    mairir
    Participant

    Hi Jackie,

    On what basis are you seeking the decision be set aside? Was your authority represented even though you couldn’t go on either occasion? And if so, why wasn’t the additional evidence presented by the person who was in attendance?

    I suspect you’ll struggle to get a set aside as there were 2 opportunities for evidence to be provided. And the judge is likely to expect the LA to do more than assume they could provide evidence on the day – and then not do it.

    Mairi

    #113630
    Janillou
    Participant

    Hi Mairi

    The LA was not represented at all. I’m the only appeals officer, and no one else was available to go.

    The basis on asking for asking for the decison to be set aside, is due to a document(s) relating to the proceedings not being sent, or received. ie. the evidence we have on fraud file… and;

    the LA not being present at the hearing.

    #113638
    Chris Robbins
    Participant

    Jackie,
    Sorry, but I think you’ve blown it. You say that at the first (unattended hearing)you were asked to supply the additional evidence. If there was no one there you must have received an adjournment notice and a written direction.
    You then say you ‘called the Tribunal Service but received no reply’. This is simply not sufficient. In law you were seeking a variation of a direction, and any such request has to be in writing, giving your reasons.
    In any event, I don’t see why you had such a problem with supplying the evidence. It is for a Tribunal to decide what evidence is or is not relevant and what should be made puiblic. All you needed to do was supply it together with reasons why you felt that certain parts of it should not be disclosed or should be redacted.
    I think you will have to bite the bullet and accept you have lost this one.

    #113642
    John Boxall
    Participant

    Why didnt you go to the hearing? Was it arranged when you said you could not attend?

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #113643
    Janillou
    Participant

    Thank you Chris.

    John – I have been unwell

    #113645
    John Boxall
    Participant

    Sorry to hear that.

    There was a CD about non attendance by a claimants rep when the hearing was booked when they were unavalible but it would not help in this case

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #113648
    Kevin D
    Participant

    {Edited – ref to DAR 7 added}

    The only possible “out” for the LA is the availability of an individual officer – [b]R v Social Security Commr ex parte Bibi [2000] QBD[/b] (link below); see paras 17-18.

    HOWEVER, based on the info given, I tend to agree with John Boxall that this will be of little assistance in this case. I agree with all of the other posters who have observed the LA has failed to follow directions to provide evidence. It doesn’t matter that there is a fraud investigation in progress; a clmt is fully entitled to see ALL of the evidence the LA has, no matter how difficult that may make it for the LA. There are now MANY CDs/UTDs where LAs have been severely criticised for the selective presentation of evidence – including cases where investigations have been at issue.

    Some case law may be of interest. In [b]R(SB) 10/86[/b] (at para 5), the Cmmr found on the facts of the case that submissions should not be accepted without supporting evidence. This isn’t an across the board principle but it does demonstrate that cases are open to such findings. Even more relevant are [b]CDLA/7980/1995 (starred 84/97)[/b] and [b]R(SB)1/92[/b] in which the respective Cmmrs found that a Tribunal decision could not be superseded on the grounds of ignorance of material facts / evidence where a party asked to produce that very same evidence had failed to produce it. This means DAR 7(2)(d) is not an option in the OP’s case.

    In a different context, in [b]R(PC) 1/09[/b], the Cmmr found that the responsibility for obtaining / presenting evidence for excluding entitlement lay with the DWP.

    In my view, unpalatable as it may seem to the LA, the Tribunal was absolutely right to take the view it did. I only wish more FtTs took this approach.

    Courtesy of Rightsnet:
    [b]Bibi[/b]: http://www.rightsnet.org.uk/pdfs/bibi.rtf

    #113653
    Anonymous
    Guest

    Although I agree with the above comments, it is certainly worth requesting a set aside on the grounds that documents were not sent to the tribunal and the PO was unable to attend due to illness. See para 16 of CH/3744/2006 where an LA did exactly this. Note the Commissioner’s comment thought: “the local authority was very lucky indeed to secure that determination.”

    #113655
    Kevin D
    Participant

    On the PO non-attendance point, I would only agree with Michael if a request for a further adjournment was made and rejected. However, I disagree on the evidence side – the LA had been asked more than once and had simply failed to comply. If I was assisting the appellant and was asked to comment on the request for a set-aside, I would have no hesitation in simply asking the Tribunal to consider that the absence of the LA’s PO made no substantive difference because, in any case, the failure to provide the evidence (more than once) meant the LA had not carried the burden of proving its case. In support, I’d cite further case law in which the UT has decided LAs should not be given a second bite in cases where its own lack of evidence cost it.

    By all means try and ask for a set-aside but in my view (based on the info so far) it would be a travesty of justice for the FtT to grant a set-aside. In fact, it would be very interesting to see what happened if the LA was refused a set-aside and it went to the UT….

    #113656
    Anonymous
    Guest

    I find that tribunal judges have a bit of discretion in these matters – the implication in CH/3744/2006 being that Judge Mesher would not have granted the set aside, but was not prepared to interfere with the district judge’s decision to allow it.

    The Council’s defence would be that it was intending to provide the information at the hearing (as it had not been told this was unacceptable) but the only PO was off sick, and the LA did not have contingency plans for such a situation.

    Jackie – I’d suggest you set up contingency plans in the future in case you are unwell on the date of a hearing. Let someone else know when your hearings are scheduled for and ask them to request an adjournment if you can’t make it, particularly if you are planning on submitting additional evidence on the day.

    If the set aside is refused and you’re so inclined, you could always explore other parts of reg 9 (or reg 8 ) – depending of course on the wording of the decision notice.

    Edit to add: I may be a bit biased here, since I’ve lost count of the number of times an appellant has been given a second chance because they didn’t bother turning up on the day to give evidence… obviously Council’s are meant to be experienced at this sort of thing but human errors are sometimes unavoidable and (depending on the missing evidence) it may be in the interests of justice for this appeal to be given a proper hearing.

    #113675
    Anonymous
    Guest

    You say: “I did indicate on AT37 that the case was part of an investigation and that if judge wanted more info – could he please contact us/fraud”.

    Appeals are legal proceedings before a judge. As well as the obligations of the parties to help Tribunals achieve justice as per Rule 2 Tribunal Procedure Rules, the principles of natural justice always apply.

    There can simply be no question of you providing evidence to a judge in this way. If it’s evidence you rely on, it must be supplied to the Tribunal and the appellant and any representative must have sufficient time to see it, obtain advice on it and comment on it. The judge was quite right to ask you to adduce your evidence in the proper way.

    In places like Iran and Belaurus, state bodies often show undislosed evidence to a judge in the covert way you appear to have tried, but not in the UK.

    I also fail to see why the fraud investigator should be contacted directly. In any event, they are not/should not be decision makers. If anything, they are a witness. It would be wholly improper for any judge to have a side discussion with a witness as you appear to have suggested.

    Count your blessings that the LA has only lost a Tribunal and that the LA’s conduct has not been criticised by the judge – which may happen if you go try going to the UT on this.

    I assume claimant was unrepresented. If I had been the rep, I would be pursuing the matter further even now.

    #113682
    Anonymous
    Guest

    I agree with the general thrust of comments above. But Neil: I don’t think the OP was trying to submit evidence to the Tribunal in secret without the appellant’s knowledge – she was saying “I have some quite sensitive evidence and I am not really sure what I should do with it. Can you direct me please?” It seems to me to be implicit that the OP had two options in mind:

    – submit the evidence in the normal way, to be seen by all parties, or
    – don’t submit it at all and the Tribunal must take no account of it

    I think it is wrong to insinuate that the OP favoured a third Iranian/Belarussian option: “Look at this, the claimant has no right to see it, but between you and me it just goes to show, eh?”

    #113796
    Clive Hayward
    Participant

    This thread seems to have finished now and I wondered whether it was worth posting. Ah well, here goes…

    I generally moan if an appellant only supplies information on the day so I guess we need to practice what we preach. We do, after all, have an obligation to assist the tribunal and with the best will in the world if we don’t supply evidence or attend the hearing we must reduce the prospects of getting the outcome we are looking for.

    It is always worth bearing in mind that as far as the Tribunal is concerned the PO is effectively the public body.

    I have some experience of being “the only one who can go” and it can feel quite onerous at times, especially in these days of pay restraint, job insecurity (never mind Universal Credit, the way things are going in some authorities the lights will have been switched off long before that) and threats to our pension scheme….but particularly where an appellant is unrepresented it still behoves us to try to do the job properly.

    For unrepresented appellants there is still an “inequality of arms” even if the poor sod representing the LA actually feels sometimes that it’s “him against the world”.

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