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Mark Perlic Welfare Rights Service

Mark Perlic Welfare Rights Service

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Mark Perlic Welfare Rights Service

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Presentation Transcript

  1. Mark PerlicWelfare Rights Service

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

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

  4. What is the one thingyou need to make an appeal to the Commissioners? appealing to Commissioners

  5. balls

  6. conviction

  7. OSSC1

  8. full statement of reasons

  9. error of law

  10. leave to appeal

  11. error of law---------------------------leave to appeal

  12. tribunal’s decision(+ record of proceedings)

  13. 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

  14. error of law - leave to appeal

  15. 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

  16. 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)

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

  18. Error of law? • breach rules of natural justice • breach of duty to act inquisitorially • breach of procedure • failure to give adequate reasons

  19. 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)

  20. 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

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

  22. the Commissioners • Commissioner Bano • Commissioner Levenson

  23. since 1948 stood the test of time

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

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

  26. there is no love at the Commissioners only the law

  27. 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

  28. 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

  29. 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

  30. 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

  31. 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

  32. study the wording

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

  34. how long to write-up a decision?

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

  36. get your free CD • PowerPoint slides • May 2006 - conference report • November 2007 - conference report • going to the Commissioners guide • leave to appeal template • example one • example two

  37. DLA/AA Case Law Pack • Derbyshire County Council, Welfare Rights Service - DLA/AA Case Law Pack • January 2008 • Telephone: 01629 531531

  38. any questions?

  39. thank you Mark Perlic