- Posts: 3
× Members
Appeal to UT after tribunal results
- Sidney
- Topic Author
- Offline
Less More
1 month 3 weeks ago #295211 by Sidney
Appeal to UT after tribunal results was created by Sidney
My brother received his tribunal results today (55 weeks) and I have written for statement of reason and recording of the hearing, he wasn't present.
The main issue is they awarded him 9c but not mobility 1 c-f, which is a contradiction. so far Ive typed the following for reasons to appeal and any help or case law is greatly appreciated. also after I receive the statement of reasons what exactly is the next form or process I need to follow?
There was sufficient evidence as such that the Tribunal awarded 4 points for descriptor 9c (needs social support to engage with other people) due to the mental health issues that caused not only overwhelming physiological distress to Mr W but also caused him to act aggressively and violently on numerous occasions and hurt himself and others.
Therefore, the tribunal has contradicted itself and errored in law by not awarding Mr W any points for mobility activity descriptor 1 c-f.
They stated, “Although the tribunal accepted that on the majority of days in the required period, Mr W did not go out, it was not satisfied that this was on account of overwhelming psychological distress, which is a high threshold”.
The tribunal has failed to take fully into account the written evidence that documents Mr W's mental health problems that have caused him to act violently and that violent or aggressive behaviour causes him overwhelming physiological distress.
The tribunal has failed to consider that nobody could carry out an activity ‘safely’ if violent and aggressive behaviour was triggered by a psychiatric condition.
The tribunal has errored in law by not following previous precedents concerning such, mainly:
In the case of JT v SSWP [2020] UKUT 186 (AAC) Judge Rowland recognised that there was a vicious circle of avoiding with a similarly worded descriptor 9 - he was talking about overwhelming psychological distress preventing a person from engaging with others.
Para 32
"Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
The main issue is they awarded him 9c but not mobility 1 c-f, which is a contradiction. so far Ive typed the following for reasons to appeal and any help or case law is greatly appreciated. also after I receive the statement of reasons what exactly is the next form or process I need to follow?
There was sufficient evidence as such that the Tribunal awarded 4 points for descriptor 9c (needs social support to engage with other people) due to the mental health issues that caused not only overwhelming physiological distress to Mr W but also caused him to act aggressively and violently on numerous occasions and hurt himself and others.
Therefore, the tribunal has contradicted itself and errored in law by not awarding Mr W any points for mobility activity descriptor 1 c-f.
They stated, “Although the tribunal accepted that on the majority of days in the required period, Mr W did not go out, it was not satisfied that this was on account of overwhelming psychological distress, which is a high threshold”.
The tribunal has failed to take fully into account the written evidence that documents Mr W's mental health problems that have caused him to act violently and that violent or aggressive behaviour causes him overwhelming physiological distress.
The tribunal has failed to consider that nobody could carry out an activity ‘safely’ if violent and aggressive behaviour was triggered by a psychiatric condition.
The tribunal has errored in law by not following previous precedents concerning such, mainly:
In the case of JT v SSWP [2020] UKUT 186 (AAC) Judge Rowland recognised that there was a vicious circle of avoiding with a similarly worded descriptor 9 - he was talking about overwhelming psychological distress preventing a person from engaging with others.
Para 32
"Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
Please Log in or Create an account to join the conversation.
- Gary
- Offline
Less More
- Posts: 8169
1 month 3 weeks ago #295222 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic Appeal to UT after tribunal results
Hi Sidney
One of our mods wrote this a while back, which I thought you may find useful.
Written Statement of Reasons (WSOR) normally takes several months, so don't worry if you haven't heard anything for a while. You can always phone DWP for an update.
In order to appeal to Upper Tribunal (UT) you need to have a copy of the WSOR.
Appeal to UT requires an error of law. It is not enough to just complain that the first tier tribunal didn't make the correct decision.
Look at the WSOR and check that the correct law has been applied For example common errors are made when considering how descriptor activities are done for the majority of time. The correct test is majority of days. Other common errors are saying that because you can cook frozen chips and reheat lasagne you can cook do no points under descriptor 1 - again the correct test is the ability to cook and prepare a simple meal from fresh ingredients- not simply taking food out of the freezer and putting it in the oven! Have a look at each test using the members guides. Compare to the test used by the tribunal.
Other errors of law could be ignoring vital evidence. Eg you clearly said you need help to manage medication and the tribunal saying you don't need help. (Get a copy of the cd recording and check the evidence actually said, there is often a lot of discrepancies between evidence given and alleged evidence in the WSOR.
Sometimes the tribunal fails to consider a descriptor, even though there is evidence to suggest points might be scored.
There could be other things like failure to allow you or your friend to give evidence, stopping you after 5 minutes because time's up. This could suggest that there hasn't been a fair hearing allowing you to fully put your case.
Apparent or actual bias could also indicate a lack of fair hearing.
Fairness is enshrined in your right to a fair trial per Article 6 ECHR and there is an "overriding objective of fairness" under the Tribunal Rules.
Occasionally tribunals clearly mention they accept points for a certain level but mistakenly award fewer points.
Aspects of activities such as safety, repetition etc must be considered; a failure to consider these concepts will also likely to be an error of law.
Everything must be sufficiently explained if it isn't this could also be an error of law.
These are just a few examples of 'errors of law' - you only need to find one error of law that is arguable. HOWEVER it also has to be material.
So, for example due to an error of law you were given 2 points under descriptor 1 but it should have been 4. Hence your score is 2 more than before. If you were correctly awarded 4 points on other descriptors gaining the extra 2 is not going to be sufficient to gain any award. In this example you would have to find an error of law that gives 4 points +.
If you can find at least one arguable material error of law, then you have a month from date when WSOR was sent out to submit this to the tribunal. A late submission can be done, but you would have to argue good cause. This will be more difficult the longer the delay. Ultimate time is 13 months from the date of the letter containing the WSOR.
Write your arguments as succinctly as you can, and explain the error and why it is material.
There is no set format. However you need to write in asking for the First Tier tribunal decision 'to be set side and or for leave to be given to appeal to the Upper Tribunal. '
There is a 2 stage process. Initially the Regional Judge will consider the request. He can agree that there is a material error of law and hence agree to set aside the decision and will organise a new hearing. Imagine a full game of football is played, and the score is 3 -0. There is something terribly wrong with the way the game was referred and it is decided that the game needs to replayed. The score starts back at 0-0. New referees. This is how the set aside works. New hearing different tribunal members start again.
Sometimes the Regional judge thinks there is an arguable error of law, but it's a complicated point, or perhaps something that has national importance, then he will allow the set aside but refer to UT for the appeal to be decided.
Maybe the RJ thinks no errors were made. He will then refuse to set aside. In this instance you can make a direct appeal to the UT .
At UT, again the case is normally Initially considered by the duty judge and then if there is an arguable material error of law the case will go before the UT for final decision.
Gary
One of our mods wrote this a while back, which I thought you may find useful.
Written Statement of Reasons (WSOR) normally takes several months, so don't worry if you haven't heard anything for a while. You can always phone DWP for an update.
In order to appeal to Upper Tribunal (UT) you need to have a copy of the WSOR.
Appeal to UT requires an error of law. It is not enough to just complain that the first tier tribunal didn't make the correct decision.
Look at the WSOR and check that the correct law has been applied For example common errors are made when considering how descriptor activities are done for the majority of time. The correct test is majority of days. Other common errors are saying that because you can cook frozen chips and reheat lasagne you can cook do no points under descriptor 1 - again the correct test is the ability to cook and prepare a simple meal from fresh ingredients- not simply taking food out of the freezer and putting it in the oven! Have a look at each test using the members guides. Compare to the test used by the tribunal.
Other errors of law could be ignoring vital evidence. Eg you clearly said you need help to manage medication and the tribunal saying you don't need help. (Get a copy of the cd recording and check the evidence actually said, there is often a lot of discrepancies between evidence given and alleged evidence in the WSOR.
Sometimes the tribunal fails to consider a descriptor, even though there is evidence to suggest points might be scored.
There could be other things like failure to allow you or your friend to give evidence, stopping you after 5 minutes because time's up. This could suggest that there hasn't been a fair hearing allowing you to fully put your case.
Apparent or actual bias could also indicate a lack of fair hearing.
Fairness is enshrined in your right to a fair trial per Article 6 ECHR and there is an "overriding objective of fairness" under the Tribunal Rules.
Occasionally tribunals clearly mention they accept points for a certain level but mistakenly award fewer points.
Aspects of activities such as safety, repetition etc must be considered; a failure to consider these concepts will also likely to be an error of law.
Everything must be sufficiently explained if it isn't this could also be an error of law.
These are just a few examples of 'errors of law' - you only need to find one error of law that is arguable. HOWEVER it also has to be material.
So, for example due to an error of law you were given 2 points under descriptor 1 but it should have been 4. Hence your score is 2 more than before. If you were correctly awarded 4 points on other descriptors gaining the extra 2 is not going to be sufficient to gain any award. In this example you would have to find an error of law that gives 4 points +.
If you can find at least one arguable material error of law, then you have a month from date when WSOR was sent out to submit this to the tribunal. A late submission can be done, but you would have to argue good cause. This will be more difficult the longer the delay. Ultimate time is 13 months from the date of the letter containing the WSOR.
Write your arguments as succinctly as you can, and explain the error and why it is material.
There is no set format. However you need to write in asking for the First Tier tribunal decision 'to be set side and or for leave to be given to appeal to the Upper Tribunal. '
There is a 2 stage process. Initially the Regional Judge will consider the request. He can agree that there is a material error of law and hence agree to set aside the decision and will organise a new hearing. Imagine a full game of football is played, and the score is 3 -0. There is something terribly wrong with the way the game was referred and it is decided that the game needs to replayed. The score starts back at 0-0. New referees. This is how the set aside works. New hearing different tribunal members start again.
Sometimes the Regional judge thinks there is an arguable error of law, but it's a complicated point, or perhaps something that has national importance, then he will allow the set aside but refer to UT for the appeal to be decided.
Maybe the RJ thinks no errors were made. He will then refuse to set aside. In this instance you can make a direct appeal to the UT .
At UT, again the case is normally Initially considered by the duty judge and then if there is an arguable material error of law the case will go before the UT for final decision.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Please Log in or Create an account to join the conversation.
Moderators: Gordon, Gary, BIS, Catherine, Wendy, Kelly, greekqueen, peter, Katherine, Super User, Chris, David