The Tribunal is completely independent of the DWP and has duty to act justly and fairly, ensuring that you get a chance to fully participate.
Whether your appeal is with the HMRC or the DWP – your case will be heard at the First Tier tribunal (Social Entitlement Chamber).The Tribunal Service will give you the option of an oral hearing or a written hearing. At an oral hearing you will be able to attend the tribunal hearing in person and be able to give oral evidence and your lawyer will be able to make representations on your behalf. For a written appeal the tribunal considers your appeal based on the paperwork they have before them without any oral input from you or your lawyer.
Research shows that you have a higher chance of success at tribunal if you ask for an oral hearing. This will allow you or your lawyer to explain things directly to the judge or medical panel in person.
The DWP or HMRC will be required to file a bundle of evidence including information about their case to the tribunal and to you and your lawyer. Once the appeal bundle has reached HM Courts and Tribunal Service they will schedule your case for a hearing – this can take a few months. In readiness for this you should also prepare a submission of your own giving your side of the events and if relevant providing expert medical evidence.
Roughly 2-4 weeks before the hearing you will be notified by post of your hearing date. You should always be given at least 10 days’ notice of a hearing, unless you have agreed to short notice hearing. A short notice hearing is not advised as you may need further time to submit more evidence of your own such as medical records.
If for some reason you cannot make the date it is important that you contact the HM Courts and Tribunal Service immediately and ask if the hearing can be postponed. You will have to put your request in writing and explain clearly why you could not attend on that date. The Tribunal Judge will consider your request – unless you are categorically notified that your request for a postponement has been granted you should always attend the hearing. If you do not turn up on the day of the hearing the tribunal may decide to proceed in your absence.
The hearing is can be can be particularly informal. It is not usually like a court hearing in that, it normally takes place in a simple room with just a table between you and the Tribunal, though some tribunal hearings are now conducted in magistrates and county courts.
The people who make up the Tribunal will vary, depending on the benefit which you are appealing. An Employment and Support Allowance appeal will usually have two people, a Judge and a Doctor. Disability Living Allowance and Personal Independence Payment (PIP) Appeals usually have 3 people; a Judge, Doctor and someone with experience of disability. Other non-medical Tribunals usually just consist simply of a Judge. When the judge or the panel asks you to answer questions or give evidence you can address them as either Sir or Madam.
During the hearing the Clerk to the Tribunal may also be present – he or she will be there to administratively assist you and the Tribunal. He or she will usually meet you in the waiting room when you arrive. They will have a list of the day’s hearings and will ensure that you are on the list. They will ask you if you have any extra evidence to hand in to the Tribunal and will explain how to claim back your travel expenses. You should keep any travel documents such as taxi or bus receipts and let the tribunal clerk know that you wish to claim your travel expenses.
The only other person likely to attend is a Presenting Officer from the DWP or Local Authority. Although they are paid by the DWP or Local Authority their role in the Tribunal is to assist the Tribunal. Thus whilst they may outline the DWP or local authority’s case, their presence is to ensure that all evidential and legal issues are made clear to the Tribunal.
Usually when you arrive at the Tribunal they will have already read the papers which the DWP provided as part of the Tribunal bundle. They will also have read anything that you sent in – You should make sure any evidence you wish to rely on is sent to the tribunal 7 days before the hearing. If you send in evidence less than 7 days before the hearing, it is best to check with the Tribunal (or the Clerk beforehand that those documents are with the Tribunal you should also take spare copies of the evidence as the Clerk may not have access or resources to photocopy large amounts of evidence.
The Tribunal will usually therefore has a good overview of your case. It will not have made up its mind, but the Tribunal may have decided which areas it wants clarifying so may start by asking you specific question about your case. Make sure you answer as accurately as possible. Try and keep to the point you have been asked about and try not to talk for too long on any particular point.
When the Tribunal has asked all their questions the Judge will usually ask you if you have anything to add. This is your chance to mention anything that you do not feel has been covered by the Tribunal or perhaps not in sufficient detail.
Once the Tribunal feel that all issues have been covered you will usually be asked to step outside whilst it makes its decision. You will then usually be called in to inform you of the decision and you will handed a piece of paper called a Decision Notice that very briefly outlines the decision and possibly a little about the reasons behind it.
Sometimes the Tribunal will want to consider your case for longer and may tell you that it will make a decision later. This is called a “Reserved Decision”. Usually the Tribunal will still make the decision on the same day so you will usually get the decision sent to you in the post within a day or Two.
If you do not like the outcome of you Tribunal you can challenge the decision in two main ways.
Apply for set aside of the Tribunal – you can do this if it is in the Interests of Justice and: – You or your representative did not receive all relevant documents or were not sent them at the appropriate time.
You or your representative were not present at the hearing (and you had indicated that you wanted this)some other procedural irregularity
Apply for leave to appeal to the Upper Tribunal – you can do this on the ground that the Tribunal made an error of Law. Examples of errors of Law are where the Tribunal:
Conducted the proceedings in breach of the proper procedures which breached the rules of natural justice
Failed to give adequate reasons for its decision
Failed to make proper findings of Fact
Came to a conclusion unsupported by the evidence
Essentially if you cannot understand how the Tribunal came to its decision or you feel that the Tribunal was in some way unfair, you may be able to show that the Tribunal erred in Law. In order to do this you will need to know the reasoning behind the Tribunal decision – thus you must request a statement of reasons for the Tribunal decision. Any request for a statement of reasons must be made within one calendar month of the Tribunal sending you or informing you of its decision.
You can ask the Tribunal to extend time to issue a statement of reasons, if you have a good reason for requesting one late, but the Tribunal does not have to grant your request. You should also ask for the Record of Proceedings. This will be the Tribunal Judge’s handwritten notes of the hearing. These must also be requested within 1 calendar month.
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