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Thread: Tribunal Point of Law

  1. #1

    Tribunal Point of Law

    Hello. Need urgent help. Have been denied ESA after being awarded 0 points after ATOS review despite getting over 15 points on 2 previous reviews and now having fibromyalgia to add to my list of problems. I did not attend tribunal due to anxiety and depression. The tribunal saw in ATOS favour (despite the review being a work of fiction and my written denial if her version of events). I can only appeal to the tribunal on a point of law. Any idea where I can get help or what constitutes point of law. Im at my wits end with this. Thanks gor reading x

  2. #2
    Senior Member nukecad's Avatar
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    A quick answer:

    You can only appeal a First Tier Tribunal benefit decision to the Upper tribunal if there has been an "Error of Law".

    Legally there are "Errors of Fact" and "Errors of Law".
    • Not having, or not considering, all the evidence is an "Error of Fact".
    • Using the wrong law, applying the law incorrectly, or not knowing of changes to the law, is an "Error of Law"


    To put it another way:
    An"Error of Fact" means that you think the judge had the wrong facts or has interpreted them incorrectly.
    With the right information, you think the judge would not have ruled against you.
    You cannot appeal this to the Upper Tribunal. (It was up to you to provide and explain the right information).

    An "Error of Law" means that the judge had the information, but you think the law wasn't applied correctly.
    Judges are human; a mistake in the law could have been made.
    You can appeal this to the Upper Tribunal. (It was the judges mistake).
    Last edited by nukecad; 02-12-2018 at 10:21 AM.
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  3. #3
    Senior Member nukecad's Avatar
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    From the Birmingham Community Law centre:
    http://birminghamclc.org.uk/wb-upper-tribunal-service/
    The only ground for appealing to the UT against the FTT decision is that the FTT has made an ‘error of law’. Both the benefit claimant and the decision-maker can appeal to the UT. An error of law is one of the following:

    • The tribunal got the law wrong or misinterpreted it.
    • There is no evidence to support its decision.
    • The facts it found are such that, had it acted reasonably, and interpreted the law correctly, it could not have made the decision it did.
    • There is a breach of the rules of natural justice.
    • It does not give proper findings of fact or provide adequate reasons for its decision.

    That webpage also tells you how to go about getting permission to appeal to the Upper Tribunal, and what happens then.
    Last edited by nukecad; 02-12-2018 at 03:09 PM.
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  4. #4
    Quote Originally Posted by nukecad View Post
    From the Birmingham Community Law centre:
    http://birminghamclc.org.uk/wb-upper-tribunal-service/


    That webpage also tells you how to go about getting permission to appeal to the Upper Tribunal, and what happens then.
    nukecad would it be deemed an error in law if an appeal was postponed on the day, because the DWP gave the wrong number for the correct Judge and HMCTS only identified that alleged fact 2 hours before a hearing?

    Is this not an abuse of process which could be considered for striking out, either way my husband was denied the right to a fair hearing on that date, add to this he had legal representation which will not be the case, at the rescheduled appeal hearing, I am trying to establish grounds that the case should and would have been won on that date and if DWP have failed to comply with the procedures, they lose any rights to challenge an appeal.

  5. #5
    Senior Member nukecad's Avatar
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    I don't think that would constitute an error in law?

    It's not as if they have made a wrong decision, they haven't made any decision at all yet.

    Even if you could prove some kind of procedural error the UTTs probable decision would be to hold a new FT Tribunal.
    Which is what is happening anyway.

    You will not be awarded ESA just because they couldn't hold it on the original date. (For whatever reason).

    I would concentrate on getting the original DWP decision overturned rather than arguing about a cancelled hearing.
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  6. #6
    Quote Originally Posted by nukecad View Post
    I don't think that would constitute an error in law?

    It's not as if they have made a wrong decision, they haven't made any decision at all yet.

    Even if you could prove some kind of procedural error the UTTs probable decision would be to hold a new FT Tribunal.
    Which is what is happening anyway.

    You will not be awarded ESA just because they couldn't hold it on the original date. (For whatever reason).

    I would concentrate on getting the original DWP decision overturned rather than arguing about a cancelled hearing.
    Maybe not being able to be represented could constitute an error in law, when the next hearing takes place.

    My husband had full representation on the day the appeal was postponed, he will not have that at the rearranged hearing.

    That could make the difference, in otherwords because HMCTS and DWP cannot between them organize a fair hearing, why should my husband be put at a disadvantage because he cannot be represented?

  7. #7
    Senior Member nukecad's Avatar
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    Sorry but again that is not an error of law.

    There is no legal requirement for you to have representation at a tribunal.

    That is your choice, and if you cannot arrange represantation on any particular date then that is not the fault of the law, or the court, or even the DWP.

    I understand that you are disgruntled about the hearing being cancelled, but you realy need to concentrate on overturning the DWPs original decision.

    Arguing about a rescheduled hearing will do nothing to get that original decision overturned, it will just waste time that is more profitably spent challenging the original decision.

    Just reading back your husbands tribunal is about a failure to attend a WCA, because you claim he never received an appointment letter.
    http://www.youreable.com/forums/show...ppeal-question
    You need to concentrate on arguing that.
    You need to show that it is reasonable, or even likely, that he did not receive an invitation letter.
    Anything else is just a distraction. (and may even be seen as clutching at straws).
    The best that the tribunal can award in these circumstances is to direct that a new WCA be held.
    The tribunal cannot make an award of ESA without a WCA being held.
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