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Appealing to the Upper Tier Tribunal (18 April 2011)

By Julieann Nicoll

The First Tier Tribunal are an independent Tribunal at HM Tribunals Service who will hear appeals regarding Social Security cases, they will hear appeals and apply the law and standard of proof that is required to be met by a claim. Appeals will generally be decided by a maximum 3 member panel which will consist of a legal chair person, a medical professional and a disability specialist.

If the First Tier Tribunal refuses an appeal, there is the possibility of appealing to the Upper Tier Tribunal Service; appellants must first obtain a Statement of Reasons within 1 month from the First Tier Tribunal outlining the Tribunal’s reasons for their decision. The Statement of Reasons must be reviewed and analysed in detail to determine if the First Tier Tribunal’s decision was erroneous in law.

If the First Tier Tribunal’s decision was erroneous in law permission to appeal can be lodged by requesting leave (permission) to appeal from the First Tier Tribunal Judge. There are other issues that can be challenged this is why specialist legal advice is required when assessing the Statement of Reasons. The application for leave must be received by the Tribunal Service within one month of the date that the First Tier Tribunal’s Statement of Reasons was posted.

A case currently dealt with by the Welfare Benefits department at Duncan Lewis that is almost near conclusion involves a client suffering from a rare form of nocturnal epilepsy. She was in receipt of Disability Living Allowance, but on submitting a renewal form the Department for Works and Pensions found that she was no longer entitled to Disability Living Allowance despite her medical conditions not improving from her initial Disability Living Allowance application.

Our client appealed this decision without legal representation and attended a Tribunal appeal hearing in March 2010, but her appeal was refused, so she sought legal advice because she felt the First Tier Tribunal’s decision was not correct, and she was unsure how to proceed.

The Statement of Reasons was received and reviewed, and Duncan Lewis determined that the First Tier Tribunal had made an error of law in refusing her appeal. The First Tier Tribunal had based their decision in part on a specific element that is not a condition that has to be satisfied within the Disability Living Allowance criteria.

Due to the above error of law permission was sought from the First Tier Tribunal to appeal to the Upper Tier Tribunal, permission was then granted to appeal to the Upper Tier Tribunal.

Duncan Lewis then submitted legal arguments to the Upper Tier Tribunal outlining our case which was reviewed by a Queens Council (QC) Judge at the Upper Tier Tribunal. The Respondents were also given the opportunity to make representations to our arguments. The Upper Tier Judge agreed with our arguments and the original First Tier Tribunal decision was set aside and a new hearing was ordered with directions issued from the Upper Tier Judge, including directions that a representative from the Department for Works and Pensions were to attend the new hearing and the First Tier Tribunal panel determining the case were to be a fresh panel who had not been involved in the previous appeal hearing.

To prepare for the fresh hearing Duncan Lewis obtained detailed medical evidence from a Professor of Neurology, who was very supportive of our client’s case.

This case is soon to be heard at a new First Tier Tribunal appeal hearing, if the client is successful she will be granted 2 years of backdated Disability Living Allowance.