I recently requested leave to appeal to the commissioners for one of my clients. I was granted leave to appeal however about 10days later I received a letter from the reginal chairman to say that the statement of reasons that I had been sent in May, were a draft copy and had not been authorised by the chairperson. He apologised but said that my request for leave to appeal plus them granting me leave were now void and he enclosed a new statement of reasons which had been written in July!!
Apparantly the chairperson had not been aware that I had been sent the draft and also that I had requested leave to appeal and had written another statement of reasons as she thought the first had been lost!Although why she would do this in July wen the appeal was in March is anyones guess.
The new statement differs considerably from the first statement and it makes no mention of the report I submitted or the EMP report which it had used to argue against my client in the draft.
I am very concerned about this situation as I find it very difficult to see how two different statement of reasons could be issued.
I have had no previous experience of appealing to commissiners so i am now not sure whether it is best to argue for the decision to be set aside or to re write my request to appeal to commissioners. Any advice would be welcome.

When a decision can be set aside?
A tribunal decision can only be set aside in limited circumstances. You must apply, in writing, to the clerk to the tribunal for the decision to be set aside within one month of being sent or given:
the decision notice or the full decision if this is later.
The application should be signed by you. If you have provided written authority, your representative can sign it on your behalf. You must include your reasons for applying for the decision to be set aside. You can make a late application in limited circumstances (see below).
A legally qualified tribunal member can set aside a decision if s/he thinks it is just: and you, your representative or the DWP (or local authority or the Revenue) or the tribunal that made the decision did not receive appeal papers or other relevant documents, or did not receive them in sufficient time before the hearing; or you, your representative or the DWP, local authority or the Revenue were not present at the hearing. However, if you or the presenting officer chose not to attend it may not be just to set the decision aside. If you did not ask for an oral hearing the decision cannot be set aside for this reason unless it would clearly be in the 'interests of justice'.
In some circumstances, a tribunal decision can also be set aside when you (or the DWP, local authority or the Revenue) seek the permission of the tribunal chair to appeal to a commissioner. Sometimes there are 'procedural irregularities' which lead to an obvious unfairness. If, as a result, it would be in the 'interests of justice' for a tribunal decision to be set aside, you should argue that there is also a power to do this. If the tribunal refuses to do so, you could try to appeal to a commissioner against the tribunal's original decision on the grounds that there was a breach of the rules of natural justice. Applications for a decision to be set aside are normally decided without a hearing, so make sure you give a full explanation of your reasons when you apply. If the tribunal's decision is set aside, your appeal is then referred back to be heard by another tribunal.
You must be sent a written notice of the decision on your application as soon as it is practicable. The notice must include a statement of the reasons for the decision. If the legally qualified tribunal member refuses to set aside the decision, s/he can treat your application to set aside as an application for a statement of reasons for the decision (a ‘full decision’), subject to the usual time limits.
If a decision is wrongly set aside, any subsequent re-hearing by a tribunal is invalid. The second tribunal could thus refuse to re-hear the case if there was no power to set aside the previous decision.
Part 5
Decision making and appeals
The Social Security and Child Support (Decisions and Appeals) Regulations 1999
Part V
Appeal Tribunals for Social Security Contracting Out of Pensions, Vaccine Damage and Child Support
Appeal Tribunals Decisions

SETTING ASIDE DECISIONS ON CERTAIN GROUNDS
57.–(1) On an application made by a <1 principal> party to the proceedings, a decision of an appeal tribunal made under <2 Schedule 7 of the Act>, the Child Support Act or the Vaccine Damage Payments Act, may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that–
(a) a document relating to the proceedings in which the decision was made was not sent to, or was not received at an appropriate time by, a <1 principal> party to the proceedings or the party’s representative or was not received at an appropriate time by the person who made the decision;
(b) a <1 principal> party to the proceedings in which the decision was made or the party’s representative was not present at a hearing relating to the proceedings.
(2) In determining whether it is just to set aside a decision on the ground set out in paragraph (1)(b), the panel member shall determine whether the party making the application gave notice that he wished to have an oral hearing, and if that party did not give such notice the decision shall not be set aside unless <4 ….> that member is satisfied that the interests of justice manifestly so require.
<5 (3) An application under this regulation shall–[br />(a) be made within one month of the date on which–
(i) a copy of the decision notice is sent or given to the parties to the proceedings in accordance with regulation 53(3); or
(ii) the statement of the reasons for the decision is given or sent in accordance with regulation 53(4),
whichever is later;
(b) be in writing and signed by a <1 principal> party to the proceedings or, where the party has provided written authority to a representative to act on his behalf, that representative;
(c) contain particulars of the grounds on which it is made; and
(d) be sent to the clerk to the appeal tribunal.]
(4) Where an application to set aside a decision is entertained under paragraph (1), every <1 principal> party to the proceedings shall be sent a copy of the application and shall be afforded a reasonable opportunity of making representations on it before the application is determined.
<7 (4A) Where a legally qualified panel member refuses to set aside a decision he may treat the application to set aside the decision as an application under regulation 53(4) for a statement of the reasons for the tribunal's decision, subject to the time limits set out in regulation 53(4) and (4A).>
(5) Notice in writing of a determination on an application to set aside a decision shall be sent or given to every <1 principal> party to the proceedings as soon as may be practicable and the notice shall contain a statement giving the reasons for the determination.
<6(6) The time within which an application under this regulation must be made may be extended by a period not exceeding one year where the conditions specified in paragraphs (7) to (11) are satisfied.[br />(7) An application for an extension of time shall be made in accordance with paragraph (3)(b) to (d), shall include details of any relevant special circumstances for the purposes of paragraph (9) and shall be determined by a legally qualified panel member.
(8) An application for an extension of time shall not be granted unless the panel member is satisfied that–
(a) if the application is granted there are reasonable prospects that the application to set aside will be successful; and
(b) it is in the interests of justice for the application for an extension of time to be granted.
(9) For the purposes of paragraph (8) it is not in the interests of justice to grant an application for an extension of time unless the panel member is satisfied that–
(a) the special circumstances specified in paragraph (10) are relevant to that application; or
(b) some other special circumstances exist which are wholly exceptional and relevant to that application,
and as a result of those special circumstances, it was not practicable for the application to set aside to be made within the time limit specified in paragraph (3)(a).
(10) For the purposes of paragraph (9)(a) the special circumstances are that–
(a) the applicant or a partner or dependant of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.
(11) In determining whether it is in the interests of justice to grant an application for an extension of time, the panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application to set aside is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application for an extension is based.
(12) An application under this regulation for an extension of time which has been refused may not be renewed.]
Modifications
1. Made by reg 23(3)(b) of SI 2001 No 1002.
2. Made by reg 23(3)(e) of SI 2001 No 1002.
Amendments
3. Inserted by reg 31 of SI 2000 No 1596 as from 19.6.00.
4. Amended by reg 18(a) of SI 2002 No 1379 as from 20.5.02.
5. Amended by reg 18(a) of SI 2002 No 1379 as from 20.5.02.
6. Substituted by reg 18(c) of SI 2002 No 1379 as from 20.5.02.
7. Inserted by reg 2(14) of SI 2005 No 337 as from 18.3.05.
General Note
The setting aside procedure provides an expeditious alternative to appealing where there has been some procedural difficulty, but it is important to bear in mind that setting aside is not a substitute for an appeal in all cases and to consider carefully which course is appropriate. If a set aside is refused, an application for leave to appeal to the Commissioner can still be made. Reg 57A allows for days before notice of the refusal was given to be ignored in calculating the time limit for seeking leave to appeal. However, if it is possible that an application for leave to appeal might be made, it is important to request a written statement of the reasons for the tribunal’s decision under reg 53 while waiting to hear the result of the application for a set aside. See also the commentary to reg 54(13).
Note also the provision for a tribunal's decision to be set aside by a legally qualified tribunal panel member dealing with an application for permission to appeal to a commissioner where there is agreement that the tribunal made an error of law: Sch 7 para 7 CSPSSA.
Analysis
Paras (1) and (2): Grounds for setting aside. Two grounds are given. The first relates to missing documents. This could be a notice of hearing that went astray or some piece of evidence that was missing. The ground will be made out if the document was not received by the applicant, her/his representative or the Tribunal.
Secondly, there is absence from a hearing by the applicant or her/his representative. This is immediately qualified by para (2) which precludes an application on this ground where the applicant failed to ask for an oral hearing, unless "the interests of justice manifestly so require". CIS 6002/1997, referred to in the commentary to reg 52 above, provides an example of circumstances which might fall within this provision.
Once the existence of one of the grounds is demonstrated, the legally qualified tribunal panel member considering the application must go on to consider whether it is "just to set the decision aside" on that ground. This will not always be so. For example, it may be possible for the member to conclude that the procedural mistake made no difference to the result. Furthermore, a party could not normally have a decision set aside on the ground of an absent document if the document was not before the Tribunal due to her/his own fault.
The old third ground of setting aside "where the interests of justice so require" which caused so much trouble when used in the old reg 86(1)(c) of the HB Regs no longer exists. It may be possible to argue that a power to set aside a decision where a procedural problem causes unfairness should be implied: Lloyd v McMahon <1987> AC 625, HL. Sch 7 para 19(2) CSPSSA and reg 57A(3) appear to envisage the existence of such an implied power. Alternatively, it may be possible to appeal even where there is not a breach of natural justice in the strict sense, on the ground that the party has not had the fair hearing to which s/he is entitled under Art 6 of the European Convention on Human Rights. See CDLA 5413/1999 for an example of this approach.
Paras (3) to (12): Procedure. An application to set aside must normally be made within one month of the decision notice or, if later, the statement of reasons being given to the parties. Under para (4), other parties to the appeal must be given an opportunity to comment upon the application.
An application may be made out of time. The one-month time limit can be extended by up to one year: para (6). The criteria bear resemblance to those for late appeals under reg 19 D&A Regs. Special circumstances other than those in para (10) must be "wholly exceptional" but there is no equivalent of the obnoxious provision in reg 54(8) and reg 19(9) D&A Regs.

Go directly to the Commissioners. Send both statements and a little note about how in the best Blue Peter tradition you're including the one the Chair prepared earlier and a coin for the commissioner to toss.

Just to come back on the last post as it came out while I was having a rant in the office.

Two SOR's are spaced two months apart and you say big differences between the two. I think a commissioner would stand by the first rather than the rewrite. Draft or not, the May SOR would have beeen written while the hearing was fresher in the chairs mind. The rewrite comes two months after and can only represent a diminished memory of what took place. The fact that the latter SOR omitted evidence contained in the first is very iffy. Methinks chair trying it on.

Closing question- can a chair declare a leave to appeal apllication void?

Who granted leave to appeal - the Chair or the Commissioner? If it was the Commissioner, I can't see that the chair could do anything about it.

Have a dekko at page 642 of Sweet and Maxwell Admin, Adjudication and Euro etc. Reports CDLA/1807/03 which is a mirror of your situation. There the commissioner set aside decision on the grounds that the reasons be a statement of tribunals reasons and not the "chairmans later rationalisation of the conclusion reached by the tribunal"

out of interest, was the first statement of reasons signed?


jj

Must agree with semitone. You need to contact the Commissioner's office direct and take guidance from them.

Thanks everyone for your responses. I will go straight to the Commissioners. In answer to jj's post, the first statement was not signed, just had the chairperson's name in type. I think I should have picked that up earlier and queried it.