I have a client who has a mental health problem and was getting transitional invalidity benefit. He failed the personal capability test and this was successfully appealed. The DWP then asked for the decision to be set aside on the grounds that the chairman had not addressed the points raised in their submission (this is itself a debatable point) and was accompanied by a letter from the clerk advising that the decision could be set aside if someone who should have been at the tribunal wasn't.

Without wishing to bore everyone, I objected to the setting aside on the grounds that the tribunal had considered the decision maker's submission, that the statement of reasons showed this, and that in any case the DWP had been notified about the tribunal and had made a conscious decision not to attend (waste of public funds and all that).

The chairman has now set aside the decision. Client may well lose at second appeal so is there any way of objecting to the setting aside or getting the reasons as to why it was set aside?

Thanks

I assume the setting aside was for error of law (under Sec 13(2) SSA, rather than a set aside for administrative reasons under Reg 57 of D&A).

In these circumstances technically the Chairman (usually the District Chair)has in fact determined a request for leave to appeal to Commissioners by setting aside the decision him/herself. Reg 58(4) of D&A says that the determination of such an application needs to be recorded in writing by the Chairman and a copy sent to the parties.

In my experience a standard form is used for this and the Chairman records in a few sentences what they found to be the error of law in the decision. However, The Appeals Service often seem to fail to send a copy of this to the parties (rather they send out a standard letter which communicates the fact the decision has been set aside but not the short reasons given by the Chairman). I think that is unlawful given 58(4). It is annoying as the set-aside determination is added to the bundle of papers for the next tribunal and when you turn up you find you are without a copy.

Having said all that, a Clerk would usually be happy to send you a copy of the actual determination should you ask (you may wish to point out that it is a document related to the appeal etc).

However, once you obtain this then I do not think there is much that you can do. I would guess such a decision could be Judically Reviewed but doubt whether you would have much chance of that.

I think you will probably have to put up with the new tribunal.


-Martin

Thanks for that Martin

Danny

In my experience when the Department have sought leave to appeal against decisions of tribunals in my client's favour then a copy of the department's grounds have been sent to me for my arguments as to why leave should not be granted (or why it should - oh yeah) before the chair makes a decision.

Once both sides have had an opportunity to comment then the chair decides whether to grant leave or to set the decision aside him/herself. It may be that if the chair thinks s/he can set the decision aside him/herself (because the error of law is so blatantly obvious) then there is no need for this procedure to be followed. It is not followed when chairs have set aside decisions against my clients when the error of law was obvious. However see the annotations to section 13(2). Of course I did not complain.

This may be a moot point. I suppose there is always the possibility of seeking leave to apply for judicial review to try and get the chair's decision quashed and the above procedure followed if you think that there is no obvious error of law in the tribunal's decision.

Regards
Paul

Cheers Paul. Have written to TAS today asking for the reasons why the decision was set aside.