Tribunal decision

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    Can I have some opinions please.

    OP appeal goes to Tribunal as his partners earnings weren’t taken into account. In his first app form he doesn’t say he has a partner. In his 2nd he does but doesn’t put her on the form in the part that asks about partners, he describes her a his partner in another part of the form. When asked about why he didn’t put her on the 1st form (which was a CMS3 direct from DWP) he said the DWP told him that as his partner didn’t have a NINO there systems wouldn’t allow them to input a partner so he says he was told to not declare a partner (which, as I think most would agree, is nonsense – the DWP confirmed to me that it is possible).

    Now I fully expected to be told to write off the OP from after the 2nd form was received. However the Judge has said to write off the whole OP.

    Normally I wouldn’t argue the point if it wasn’t for the fact that there are 2 errors in the Judges summary of reasons.

    Firstly she says that there wasn’t a copy of the first form in the bundle. She then goes on to say that she can’t be sure there was an OP as there was no schedule in the bundle saying how it was calculated.

    In both cases she is flatly wrong. They were both in the bundle.

    The OP isn’t that large (just over £1400) but I’m more than a little aggrieved that the Judge has made findings that are simply wrong :~ . Any opinions what I could do next?

    Kevin D

    Based on the info given Martin, I would take it further without hesitation. It seems this was one of those unfortunate Tribunals with a “lazy” judge and the reasoning within the decision has appears to have been wrongly based. More importantly, that reasoning was, apparently, fundamental to the outcome. In my view, albeit not having seen the papers, it could properly be argued that the substantive reasoning was so flawed as to constitute an error in law.

    I also don’t necessarily agree that the clmt escapes the second part of the o/p. Depending on exactly how he completed the form (or answered DWP questions if a teleclaim), there may well be an argument that his omissions contributed to the cause of the overpayment. Also, if the DWP have confirmed that the NINO argument by the clmt is not correct, it surely casts doubt on the reliability of the clmt’s evidence. Only snag there is that the DWP often say “X” would, or would not have happened, because of “policy” of “procedure”. It isn’t credible to argue that just because a policy or procedure exists that something actually happened or not. It’s a bit like the DWP or a LA trying to insist that they keep a record of ALL phone calls – an argument on which Cmmrs/UT have cast substantial scepticm.

    NB: If it goes back for a rehearing, I’d be tempted to ask the DWP for the recording of the clmt’s telephone claim with the DWP (assuming it was made over the telephone). No DPA implications – s.35(2).


    How do I proceed? Do I ask the FtT to have a rehearing? In all my years of benefits I’ve never actually taken an appeal further you see. 🙂

    Kevin D

    Does this help, at least as a starting point?

    In practice, a clearly set out letter to the FtT seeking leave to appeal against its decision will *normally* set the wheels in motion – the LA will need to identify the decision, quote case reference and set out the grounds for appeal (bearing in mind it must be about errors in law).

    If the FtT doesn’t set aside it’s decision, but gives leave to appeal, you’ll need to complete the relevant UT form and enclose basic docs (including the FtT’s letter giving leave). Even if the FtT denies the initial request, you can still approach the UT directly.

    If it’s of any comfort, I didn’t have a single request denied during my benefits life (er, actually, all that I had first hand involvement in were ultimately successful :bigsmile: ). Smug? Oh yes….

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