My client's o/p appeal was upheld as DWP had not provided details of the amount of o/p. The DWP have now applied to set aside the decision. I assume they're using the missing docs/evidence as grounds. TAS have asked for our comments on the setting aside application. I obviously want to argue that DWP should have ensured all their evidence was put before the tribunal members at the time but it's a bit of a weak/pathetic argument. How can I argue it would be unjust to set aside(particularly as I'd use the same grounds if it was the other way round!!)

I would argue:

1. The S of S is well aware of where the burden of proof lies in such cases. He has massive resources etc to prepare his cases.

2. If the Tribunal accepts this burden not discharged on the evidence presented then they have a choice:
a) adjourn
b) allow the appeal

3. R(SB)10/86 para 5 contains some guidance to Tribunals on whether to adjourn in such cases:

“If the statements made by the adjudication officer’s representative are contested, as in this case they were, and he does not adduce evidence in support of them or submit himself for questioning no tribunal should accept such statements if unadmitted without such supporting evidence. If the adjudication officer comes to the hearing unprepared to support his statements by evidence they must either decide the appeal on the basis that the facts are unproved or adjourn to give the officer an opportunity of proving them. And where the claimant has been kept waiting they should hesitate to permit a further long wait”

I would argue that in a situation where the DWP failed to send one of their own documents down to TAS and the appeal goes against them then there is no power, on an application by the DWP, to set the decision aside under Reg 57 of the D&A Regs.

The appropriate remedy should be leave to appeal on grounds of breach of natural justice. This may fail if no PO attended to request an adjournment or a postponement request was not made in advance.

The LTA may succeed if the DWP can successfully argue that the tribunal should have adjourned to give the DWP an opportunity to supply the missing documentation.

Martin's point about the DWP's massive resources to present their case should be used to oppose any LTA application.

Thanks to you both. It has not been confirmed why the DWP have applied for set aside, and am simply assuming it was because they lost the appeal because of insufficient proof of the amount of o/p. It doesn't seem right they get another bite at the cherry. I've never had a case where the DWP have made such an application but I would have thought I should be informed of their grounds not just asked if I wanted to comment on the application. Is this right ?

A PO attended but wasn't familiar with the case. No postponment/adjournment request. Docs weren't missing, they'd simply never been presented. Although the amount of o/p was given, the chair was not pleased there was no schedule nor copy of decision which would have shown it. The chair agreed these were not necessary but would have shown how they arrived at the amount. The chair decided there was an overpayment but it was not recoverable because the SoS had failed to establish the amount.
You've given me hope.
Sue

Chair has allowed the DWP's applic to set aside. She says the missing doc which resulted in the decision that it was non-recovable was there all the time, just not in the copy docs given to the tribunal or to us due to a TAS photocopying error.

She had already decided my clients were cohabiting but it was not recoverable due to the facts as previously mentioned. The Chair stated in the SoR that as it was the SoS who requested the SoR then she presumed it was in respect of the recoverability only. She went on to say that if this was not the case she would prepare a supplemental SoR. As the application's now been granted and we've been given a new appeal date I want to see her reasons for the cohab decision. I've never come across this before and at this point can we ask for the supplemental SoR so we know what we're up against?