Mark Perlic Welfare Rights Service

Welcome Going to the Commissioners - rules of engagement and good practice

Making appeals work … Appeals Conference (June 2006) Event for representatives (November 2007)

appealing to Commissioners What is the one thing you need to make an appeal to the Commissioners?

balls

conviction

OSSC1

full statement of reasons

error of law

leave to appeal

error of law leave to appeal

tribunal’s decision (+ record of proceedings)

set aside reg 57 ‘appears just’ on grounds: - document relating to proceedings - not sent or not received by party to proceedings; or - party to the proceedings was not present (not if no request for oral hearing)   s13 (leave to appeal) - ‘may set aside’ error of law/’shall set aside’ error of law and principal parties agree reg 57 Social Security & Child Support (Decision and Appeals) Regulations 1999 s13 Social Security Act 1998

error of law - leave to appeal

leave to appeal   tribunal chairman (full-time chairman)   granted - OSSC 1 form to Commissioners   refused - OSSC 1 form request leave from Commissioner directly   Commissioner grant or refuse leave

error of law - case law R(A)1/72 R(I)14/75 CIS/3299/1997 R(Iran) - Court of Appeal (must be material error of law)

Error of law? 1.decision contains a false proposition of law 2.no evidence (direct/by reasonable inference) to support findings 3.facts found - no reasonable tribunal applying law correctly could not have reached same decision 4.tribunal took into account irrelevant matters or failed to take into account relevant matters

Error of law? 5. 5.breach rules of natural justice 6. 6.breach of duty to act inquisitorially 7. 7.breach of procedure 8. 8.failure to give adequate reasons

leave to appeal because…   decision contains false proposition of law (why/where?)   tribunal held that assistance with walking not relevant – walking mobility need not bodily function need   decision contained false proposition of law because tribunal held walking not bodily function R(Iran) - Court of Appeal (material error)

Commissioners appeal outcome:   Commissioner find no error of law   Commissioner find error of law set decision aside substitute own decision   Commissioner refer to new tribunal complete rehearing

tribunal’s job   examine evidence   make findings of fact   apply facts to law   give reasons for decision

the Commissioners  Commissioner Bano  Commissioner Levenson

since 1948 stood the test of time

£ - How much district chairman - arm and a leg Commissioner - several body parts - and well worth it

£ - How much district chairman - £96,500 pa Commissioner - £131,000 pa

there is no love at the Commissioners only the law

OSSC1 - tips   neat handwriting a good start   state error of law + how it affected outcome of case in question   ‘my client’ vs Mr Smith (personal)   PCA 15pts needed - blatant error but only get to 10pts no error (material error)   150 million errors - list chief ones only   less is more

OSSC1 - tips   find something different - ‘not same old rubbish’ - something that is ‘interesting/ stimulating’ something to ‘spark the imagination’   do not take Commissioners for a fool

how it works… cases randomly divided up 100 per week per Commissioner (ave) occasionally get case better suited to another Commissioner (due to expertise/ interest) then do swap

oral hearing discretion of Commissioner either party can ask for an oral hearing Commissioner may direct an oral hearing oral hearing held anywhere video conferencing possible address Commissioner not other party

case law no rule of law that one Commissioner bound by another (comity - courtesy/ considerate behaviour towards others) first to get it - precedent would perpetuate error (conflict: Tribunal of Commissioners) no certainty of law - development of law

study the wording

‘ if I want to know what my fellow Commissioners think I will ask them’

how long to write-up a decision?

  quality of product which matters   ¾ of day   5 days (£2,700 ish)

get your free CD PowerPoint slides May conference report November conference report going to the Commissioners guide leave to appeal template example one example two

DLA/AA Case Law Pack   Derbyshire County Council, Welfare Rights Service - DLA/AA Case Law Pack   January 2008   Telephone:

any questions?

thank you Mark Perlic