Mark%20Perlic%20Welfare%20Rights%20Service

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Mark PerlicWelfare Rights Service
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Welcome
Going to the Commissioners - rules of engagement
and good practice

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Making appeals work Appeals Conference (June
2006) Event for representatives (November 2007)

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What is the one thingyou need to make an appeal
to the Commissioners?
appealing to Commissioners

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balls

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conviction
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OSSC1
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full statement of reasons
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error of law
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leave to appeal
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error of law---------------------------leave
to appeal
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tribunals decision( record of proceedings)
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set aside

• reg 57 appears just on grounds
• - document relating to proceedings - not
  sent or not received by party to proceedings or
• - party to the proceedings was not present
  (not if no request for oral hearing)
• s13 (leave to appeal) - may set aside error of
  law/shall set aside error of law and principal
  parties agree
• reg 57 Social Security Child Support (Decision
  and Appeals) Regulations 1999
• s13 Social Security Act 1998

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error of law - leave to appeal
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leave to appeal

• tribunal chairman (full-time chairman)
• granted - OSSC 1 form to Commissioners
• refused - OSSC 1 form request leave from
  Commissioner directly
• Commissioner grant or refuse leave

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error of law - case law

• R(A)1/72
• R(I)14/75
• CIS/3299/1997
• R(Iran) - Court of Appeal
• (must be material error of law)

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Error of law?

1. decision contains a false proposition of law
2. no evidence (direct/by reasonable inference) to
   support findings
3. facts found - no reasonable tribunal applying law
   correctly could not have reached same decision
4. tribunal took into account irrelevant matters or
   failed to take into account relevant matters

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Error of law?

1. breach rules of natural justice
2. breach of duty to act inquisitorially
3. breach of procedure
4. failure to give adequate reasons

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leave to appeal because

• decision contains false proposition of law
  (why/where?)
• tribunal held that assistance with walking not
  relevant walking mobility need not bodily
  function need
• decision contained false proposition of law
  because tribunal held walking not bodily function
  
• R(Iran) - Court of Appeal (material error)

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Commissioners appeal outcome

• Commissioner find no error of law
• Commissioner find error of law set decision aside
  substitute own decision
• Commissioner refer to new tribunal complete
  rehearing

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tribunals job

• examine evidence
• make findings of fact
• apply facts to law
• give reasons for decision

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the Commissioners

• Commissioner Bano
• Commissioner Levenson

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• since 1948
• stood the test of time

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- How much

• district chairman - arm and a leg
• Commissioner - several body parts
• - and well worth it

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- How much

• district chairman - 96,500 pa
• Commissioner - 131,000 pa

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• there is no love at the
• Commissioners only the law

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OSSC1 - tips

• neat handwriting a good start
• state error of law how it affected outcome of
  case in question
• my client vs Mr Smith (personal)
• PCA 15pts needed - blatant error but only get to
  10pts no error (material error)
• 150 million errors - list chief ones only
• less is more

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OSSC1 - tips

• find something different - not same old rubbish
  - something that is interesting/ stimulating
  something to spark the imagination
• do not take Commissioners for a fool

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how it works

• cases randomly divided up
• 100 per week per Commissioner (ave)
• occasionally get case better suited to another
  Commissioner (due to expertise/ interest) then do
  swap

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oral hearing

• discretion of Commissioner
• either party can ask for an oral hearing
• Commissioner may direct an oral hearing
• oral hearing held anywhere
• video conferencing possible
• address Commissioner not other party

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case law

• no rule of law that one Commissioner bound by
  another (comity - courtesy/ considerate behaviour
  towards others)
• first to get it - precedent would perpetuate
  error (conflict Tribunal of Commissioners)
• no certainty of law - development of law

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• study the wording

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• if I want to know what
• my fellow Commissioners
• think I will ask them

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• how long to
• write-up a decision?

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• quality of product which matters
• ¾ of day
• 5 days (2,700 ish)

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get your free CD

• PowerPoint slides
• May 2006 - conference report
• November 2007 - conference report
• going to the Commissioners guide
• leave to appeal template
• example one
• example two

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DLA/AA Case Law Pack

• Derbyshire County Council, Welfare Rights Service
  - DLA/AA Case Law Pack
• January 2008
• Telephone [phone]

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• any questions?

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thank you
Mark Perlic