F-T tribunal directions to appellant-

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 10 posts - 1 through 10 (of 10 total)
  • Author
  • #40080
    Amanda JB


    Recently we have been sent a copy of 2 different tribunal directios which have been sent to the appellants (from the same Judge).

    Case 1 is a PFA case where we are saying we do not agree his self-employment is self-employment

    Case 2 is a capital case where the appellant states she told DWP about some capital but they did not act upon it, she did not say she told the LA.

    In both cases the tribunal Judge has written to the appellants saying on the basis of the facts of the case and the grounds for appeal they have no chance of success, the appellants have been asked to provide further evidence and if they do not the cases will be struck out as they have no reasonable chance of sucess.

    I don’t think is right as in particular the capital one she is claiming it is DWP error to continue paying her I/S. The self-employed one, he is saying he is self-employed, we are saying he isnt, surely these appellants deserve to have their appeals heard??

    Am I missing something here? and should I intervene and say something to the tribunal? I would prefer to win a case which has been properly considered and decided.

    Chris Robbins

    Without the full facts it is difficult to tell.
    In my experience, the vast majority of appeals are submitted where a LA is fully satisfied that its decision is correct both in fact and in law. There are always a few which will raise a genuine dispute as to either the facts or (more rarely) over the correct interpretation of a piece of legislation. One example at the moment could be something like whether or not Reg 12(B)(6) allows for a rent restriction on an unreasonable rent in a LHA case.
    However, the cases you describe don’t give any detail of which category they fall in. They could have the potential to be either. I don’t know how good your submission is, how clear cut the issues are, and what view of the evidence the FtT Judge has taken.
    Just as a general comment I have no problems with a FtT seeking further evidence and threatening strike out if not provided. From your point of view it really depends what has been asked for and whether that passes the test of reasonableness.

    Amanda JB

    The Judge has not asked for anything in particualr just said on the facts they have no chance of success, so in effect offered them the chance to provide any further grounds or evidence they wish to rely on.

    The capital case is linked to the DWP appeals but the Judge is saying the LA appeal has no chance of success on its own and would not require a hearing. he is saying he will strike the case out as no reasonable chance of success.


    As you have been sent a copy of the direction you can challenge it by asking for it to be amended, suspended or set aside under rule 6(5) of the FtT Rules.


    nick dearnley

    Rule 8 of the Tribunal Procedure Rules does give a power to strike out where there is no prospect of success, but they have to give the appellant the opportunity to ‘make representations’ before doing so (and I’m not sure the Judge can ‘direct’ them to mak e representations).

    Did you (or the appellants) opt for paper rather than oral hearings? If so, perhaps the Judge has got part-way through looking at the cases and decided he needs further documents, and asked for them under rule 5?

    It sounds as though the Judge may have confused the power to strike out for failure to comply with a direction with the power to strike out for no prospect of success; so he’s ended up saying ‘I direct you to make representations, and if you fail to follow the direction I will strike out your case’

    I agree with you though Amanda, it does seem fairer to have a hearing (even if just on the papers) and then dismiss the appeals on their merits, rather than in this slightly summary way.

    Amanda JB

    Hi Nick

    I also wondered why the Judge had the case to look at in the first place as i thought they only looked at O/P cases and case 1 isnt, so maybe you are right and the appellants opted for paper hearings, but then why wouldnt he just make a decision and not strike out??

    What I fail to understand is with case 2 she is claiming DWP error, if this is founded then it changes our decision to, could she reasonably have known she was being O/P, the JUdge has all 3 cases on his desk.

    I am just worried we may end up with cases at U-T becasue L-T have not acted properly, I would rather slog the cases out at a hearing and get a decision (plus our PFA case is a big issue seller and I want to know how good my submisison is and if we can win our argument!!)

    nick dearnley

    Thinking about it again, if the appellant opted for a paper hearing then the Judge is supposed to give the opportunity for the other parties to object, as the ‘default’ is an oral hearing. If he’s going to strike the appeals out, he has to give the opportunity for the appellants to make representations, which I think he may be intending. But then he’s muddied* things slightly by using a direction to do so, which (as far as I’m aware) isn’t what directions are for… they’re usually for making someone do something to help get to the bottom of the case, not giving them a chance to fix an appeal that has no prospect of success. After all, failure to comply with a direction can lead to striking out for that reason alone, but not making representations as to why it shouldn’t be struck out will lead to…striking out.

    I’d be surprised if a case alleging DWP error was struck out for no prospect of success, as there is an obvious fact-finding mission to go on.

    You could always consider requesting the Judge to direct an oral hearing as the best way to dispose of the appeals – re-reading your OP it does sound like they’re all being done on the papers.

    I did read somewhere (maybe on another HBInfo thread) that HMCTS are trying to get some cases heard on the papers in an attempt to shrink the backlog that they have, so that might be the case here.*

    *No criticism of HMCTS or their Judges intended.

    Darren W

    Not saying it is right or that it is the case here, but on the face of it, it sounds like they are proof reading them and to free up time the ones where the claimant has no chance of winning they are taking this route. Even on the capital one you have, as it stands until the DWP revise their decision the claimant cannot win.

    Kevin D

    [quote=Darren W]Even on the capital one you have, as it stands until the DWP revise their decision the claimant cannot win.[/quote]

    Why not? I can think of any number of possible issues that could arise – some merely technical but nevertheless fully arguable.

    Darren W

    [quote=Kevin D][quote=Darren W]Even on the capital one you have, as it stands until the DWP revise their decision the claimant cannot win.[/quote]

    Why not? I can think of any number of possible issues that could arise – some merely technical but nevertheless fully arguable.[/quote]

    Of course you are correct, for cannot read, unlikely too.

Viewing 10 posts - 1 through 10 (of 10 total)
  • You must be logged in to reply to this topic.