DLA Upper Tribunal advice needed please

My husband originally applied for DLA in January 2012, which was refused, we appealed this decision and went to the lower tribunal who again disallowed the claim. At this time we attempted to seek advice from Citizens Advice but due to my income and the unlikely fact the lower tribunal erred in law they would not give assistance. The lower tribunal refused our request to appeal, so we had to appeal directly to the upper tribunal for permission to appeal. I pursued this on my husband’s behalf, researched the law and submitted my response/appeal, the upper tribunal at this point agreed with my findings and allowed us to appeal. We have now received the Respondent’s (Secretary of State for Social Security) observations on our appeal, main points;

1. They are not requesting an oral hearing

2. They agree with the Upper Tribunal that the First Tier tribunal erred in law when refusing permission to appeal

3. The tribunal failed to make adequate findings of fact regarding walking distance and disregarding walking achieved whilst in severe discomfort

We now have to decide do we want a decision from the upper tribunal with or without reasons and whether we want an oral hearing or not.

I wonder would we stand a better chance with an oral hearing, at this stage we are unable to provide any further evidence as what further evidence we had has been submitted with the appeal to appeal (which included up to date MRI Scan findings and Consultant letter). I have submitted our reasons for appeal which have been agreed with so far by all other parties.

I’m just wondering if anyone can advise.

Thanks in anticipation

Hi Kayla,

We are not usually able to advise on Upper Tier appeals as this is a very specialist area. However, I have allowed your post as I know that Jim is on-line this evening and might be able to help.

Edit - Actually, I am not sure that Jim is on-line this evening, but he has been active on the site today. I will leave this post in case he, or one of the other mods, can offer advice.

Thank you so much, as you can imagine I had to do a lot of reading to get to the stage I have got to without support, but now I'm not sure whether to request an oral hearing or not.

But my case also goes to show other people that it is sometimes worth appealing a lower tribunal decision as sometimes they do get the law wrong

Hi k99,

This Factsheet may help :

Appealing to The Upper Tier, DR UK Factsheet

bro58

It's very unusual for an Upper Tribunal (formerly Social Security Commissioners) to have an oral hearing. If they agree the First-tier Tribunal has made an error of law, it's normally sent back to a First-tier Tribunal ( not necessarily the one that made the error) for a complete rehearing of the claim laying down directions that the First-tier Tribunal must follow, and then arrive at a new decision.

If the Upper Tribunal is offering you an oral hearing, then my advice would be to take it, since it's a good indication that they feel the First-tier Tribunal has made serious error(s) of law which the Upper Tribunal can correct and substitute their own decision rather than send it back for a complete rehearing by a different First-tier Tribunal.

Whatever you decide, good luck

Thank you for your response, the final paragraph of the Secretary of state's Submission reads . . .

"i therefore request that the judge set aside the First Tier Tribunal's decision and remit the case for rehearing by a freshly constituted Tribunal with appropriate directions for its determination"

The form enclosed asks us to state whether we want an oral or paper hearing, I shall request an oral hearing then.

Thank you