I recently lost an appeal on behalf of my client. In the statement of reasons the chairperson said she decided against my client on 'slight balance of probabilities' swaying towards the department. Looking at the evidence the chairperson used to reach the decision I think my client clearly should have won the appeal and merited an award of middle care and low mobility.

Frequency was a big issue. She has pustular plantar disease (severe skin disease) in addition to many other ailments. On slight balance the chairperson ruled that her illnesses didnt affect my client more than 50 per cent of the time to satisfy the qualifying period to DLA. I unsuccessfully argued against this. I think her GP notes supported my argument and the client says she never gets any respite from her illnesses. Also on the day the client wore sandals since her feet was covered in sores and blisters. This was not addressed in the statement of reasons - despite the fact that I highlighted it to the tribunal orally at the hearing. I have been in front of this chairperson many times. She always makes harsh decisions. This time I think I have grounds to appeal her decision to the commissioner. I've never successfully done this before. Could someone help me with what grounds to take on point of law PLEASE.

Thanx

A starting point may be failure to give adequate reasons for the decision. How did the Tribunal decide that her problem does not occur 50 per cent of the time at least? There has to be a reason for drawing that conclusion (ie other than assumption or gut instinct) especially if the client's own evidence stated that to be the case. The Tribunal cannot simply decide not to believe her.

Good luck

Yeah I thought that to Andy. I wasnt sure whether they could use their discretion to make such an assumption. You are correct, the chairperson did not give one reason for her assumption regarding frequency of illness.

Cheers

Just one thing occurred to me, the assumption may have come from the medical member's knowledge of the particular condition she suffers from. I think they should have said something to that efect in the statement though. Also, it may affect your assessment of likely success in the re-hearing.

Isn't it arguable that even if they did have good reasons for 50% that doesn't mean they should have made the decision that way anyway. R(A) 2/74 concerns someone getting renal dialysis 3 nights out of 7 and the Commissioner sends it back saying you can't make an arithmetic decision you must look at everything and make a decision in the round, with regard to the three months back six months forward rules. It's a view backed up in the HoL in Moyna in a more negative way.

You could argue that they haven't explained 50% properly, but if they have they have misdirected themselves regarding how they should apply that conclusion.

Good luck.

This has now all been written out in CDLA/5465/2002 / CDLA/492/2004 (see new cases part of Rightsnet), and whilst I must admit to feeling that that decision does tighten up the statutory criteria but in the opposite way to the court of appeal in Moyna, it is perhaps helpful in your case see paragraph 38.

briefcase summary of CDLA/5465/2002 & CDLA/492/2004

Guys thanks a million for your help. I'm drafting the grounds for appeal now. I'll keep you all updated

Hi
just wanted to add that whenever I have appealed to Coms they always look for reasons (other than the ones you state) for the decision to be erroneous in law and so far have always found some (so you have nothing to lose by appealing because even if the reasons you state are incorrect they will still look to find their own).
Also I have noted that the Coms usually overturn decisions for precedual errors (like not stating why they preferred some evidence over some other evidence, or, where they state something along the lines of "She stated that on bad days she can only walk 10yds but we discounted this as she did not state the frequency of the bad days", in this instance the Coms stated that the tribunal should have asked what the frequency was if they felt it was relevant.
Good luck
Ask your client to keep a diary as this may be the only relevant new evidence that a new tribunal will allow.
Mark

My first thought was to go for an "inadequate reasons" challenge, and looking at it again, I am evenmore convinced.

The Commissioners have made it clear (see for example R(A)1/72 ,R(A)1/73, R(M)1/96), that the reasons must be sufficient for the claimant to understand exactly why the Tribunal came to the decision that it did.

Fro the Tribunal chair to merely state that on the slight balance of probabilities, the criteria are not met is clearly insufficient as you have no way of knowing what went into the balance and what slight(sic) factors tipped that balance

I agree Stainsby - when I read the slight balance comment my ears immediately pricked up. I studied Tort at uni so I know all about the balance of probabilities. The evidence in my clients case clearly did not correlate with the tribunals decision not to make an award. I cannot believe sometimes how perverse in law these decisions are. Tribunal panel members are paid alot of money and should not be allowed to make mistakes like this. In my local area alot of decisions go unchallenged. Im new to this role and hope to shake things up a little. Tribunal chairpersons here are getting away with alot of perverse decisions.