Digest of Procedural decisions
A digest of procedural decisions of all Chambers of the Upper Tribunal which will be of common interest to the Upper Tribunal, the First-tier Tribunal and to parties and their representatives.
19 April 2013
- GJ v Secretary of State for Work and Pensions, JG & SW [2012] UKUT 447(AAC)
CCS/1133/12 – the decision of a First-tier tribunal was set aside in a child support case after it proceeded with an oral hearing in the absence of the respondent father. The date of hearing had been notified to the respondent’s original address although he had notified the Child Maintenance and Enforcement Commission of his new address. The Upper Tribunal judge analysed the provisions of rules 2, 13(5) and 31 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) and concluded that the tribunal had erred in law by failing to ensure the respondent father had a fair hearing.
Key Word: oral hearing in absence of party
- Jones (by Caldwell) (Respondent) v First Tier Tribunal (Respondent) and Criminal Injuries Compensation Authority (Appellant) [2013] UKSC 19,
on appeal from: [2011] EWCA Civ 400J was very badly injured as a result of a traffic collision caused by a third party (H) running into the path of a lorry and killing himself. On a claim for criminal injuries compensation by J on the basis that he had suffered a crime of violence within the meaning of the Scheme rules, the First-Tier Tribunal found that H did not inflict grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861 as it was not satisfied that H intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway. On appeal, the Upper Tribunal held that the FTT had properly directed itself to the question it had to consider, and that its finding that H was not reckless was one to which a rational tribunal could have come: The Court of Appeal allowed an appeal by J. On further appeal to the Supreme Court on the meaning of “crime of violence” in the context of the Criminal Injuries Compensation Scheme Lord Carnwath said, referring to Hale LJ’s comments in [Cooke v Secretary of State for Social Security [2002] 3 All ER 279 paras 5-17], “an expert appellate tribunal, such as the Social Security Commissioners, is peculiarly fitted to determine, or provide guidance, on categorisation issues within the social security scheme. Accordingly, such a tribunal, even though its jurisdiction is limited to ‘errors of law’, should be permitted to venture more freely into the ‘grey area’ separating fact from law, than an ordinary court. Arguably, ‘issues of law’ in this context should be interpreted as extending to any issues of general principle affecting the specialist jurisdiction. In other words, expediency requires that, where Parliament has established such a specialist appellate tribunal in a particular field, its expertise should be used to best effect, to shape and direct the development of law and practice in that field…….……..
In the present context, [these words] provide support for the view that the development of a consistent approach to the application of the expression “crime of violence”, within the statutory scheme, was one primarily for the tribunals, not the appellate courts.”
Key word: questions of fact and law
20 September 2012
Keyword: consent order
20 September 2012
- MK v Secretary of State for Work and Pensions [2012] UKUT 293 (AAC) CE/2446/2011 – the decision of the First-tier Tribunal in a social security case was set aside when it appeared that the tribunal had failed to preserve the digital record of the proceedings as required by the Senior President’s Practice Statement on Record of proceedings in Social Security and Child Support Cases in the Social Entitlement Chamber on or after 3 November 2008.
Keywords: preserving record of proceedings
20 September 2012
- JS v Secretary of State for Work and Pensions [2013] UKUT 100 CDLA/0635/2012 – a three judge panel of the Upper Tribunal considered the meaning of section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 which permits a First-tier Tribunal which has reviewed a decision under section 9(1) to amend the reasons given for the decision;
Keywords: amending reasons for decision on review
20 September 2012
- Dorset Healthcare NHS Foundation Trust v M H [2009] UKUT 4 (AAC), (Three Judge Panel). at paragraph 13: "an express obligation upon the parties to assist in the furtherance of the objective of dealing with cases fairly and justly, which includes the avoidance of unnecessary applications and unnecessary delay. That requires parties to cooperate and liaise with each other concerning procedural matters, with a view to agreeing a procedural course promptly where they are able to do so, before making any application to the tribunal. This is particularly to be expected where parties have legal representation. Parties should endeavour to agree disclosure issues without the need for the tribunal to make a ruling. However, even where a direction from the tribunal may be required …..it will assist the tribunal to further the overriding objective if the parties can identify any directions they are able to agree, subject to the approval of the tribunal. Where they are unable to agree every aspect, this liaison will at least have the advantage of crystallising their positions, and more clearly identifying the issue(s) upon which the tribunal will have to rule".
Keywords: Meaning of the Overriding Objective
20 September 2012
- Smith v HMRC [2011] UKUT 270 (TCC) Mr Justice Arnold reviewed a number of authorities following on from the well-known case of Edwards v Bairstow [1956] AC 14 in which appellate courts have been asked to overturn first-instance decisions on the basis that the lower court’s findings of fact could not reasonably be supported. In so doing, Arnold J quoted from Lord Justice Evans’ speech in Georgiou v Customs and Excise Commissioners [1996] STC 463:
"It follows, in my judgement, that for a question of law to arise in the circumstances, the appellant must first identify the finding challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of the evidence coupled with a general assertion that the tribunals’ conclusion was against the weight of the evidence and was therefore wrong".
Keywords: permission to appeal
20 September 2012
Keyword: evidence
27 September 2011
- Secretary of State for Defence v LA [2011] UKUT 391 (AAC) CAF/2011/2011 There is no presumption that a party has correctly identified all relevant documents on disclosure. There is no need for a presumption, as the rules of procedure provide sufficient powers to deal with any issues that may arise concerning excessive demands for disclosure. Any presumption would be inconsistent with those rules.
Keyword: disclosure
13 September 2011
Keyword: vexatious litigants
22 December 2010
Keyword: jurisdiction
