SOR reply Upper Tribunal

Hi WalesQ

Appeal to UT requires an error of law. It is not enough to just complain that the first tier tribunal didn't make the correct decision.

Look at the WSOR and check that the correct law has been applied For example common errors are made when considering how descriptor activities are done for the majority of time. The correct test is majority of days. Other common errors are saying that because you can cook frozen chips and reheat lasagne you can cook do no points under descriptor 1 - again the correct test is the ability to cook and prepare a simple meal from fresh ingredients- not simply taking food out of the freezer and putting it in the oven! Have a look at each test using the members guides. Compare to the test used by the tribunal.

Other errors of law could be ignoring vital evidence. Eg you clearly said you need help to manage medication and the tribunal saying you don't need help. (Get a copy of the cd recording and check the evidence actually said, there is often a lot of discrepancies between evidence given and alleged evidence in the WSOR.

Sometimes the tribunal fails to consider a descriptor, even though there is evidence to suggest points might be scored.

There could be other things like failure to allow you or your friend to give evidence, stopping you after 5 minutes because time's up. This could suggest that there hasn't been a fair hearing allowing you to fully put your case.

Apparent or actual bias could also indicate a lack of fair hearing.

Fairness is enshrined in your right to a fair trial per Article 6 ECHR and there is an "overriding objective of fairness" under the Tribunal Rules.

Occasionally tribunals clearly mention they accept points for a certain level but mistakenly award fewer points.

Aspects of activities such as safety, repetition etc must be considered; a failure to consider these concepts will also likely to be an error of law.

Everything must be sufficiently explained if it isn't this could also be an error of law.

These are just a few examples of 'errors of law' - you only need to find one error of law that is arguable. HOWEVER it also has to be material.

So, for example due to an error of law you were given 2 points under descriptor 1 but it should have been 4. Hence your score us 2 more than before. If you were correctly awarded 4 points on other descriptors gaining the extra 2 is not going to be sufficient to gain any award. In this example you would have to find an error of law that gives 4 points +.

If you can find at least one arguable material error of law, then you have a month from date when WSOR was sent out to submit this to the tribunal. A late submission can be done, but you would have to argue good cause. This will be more difficult the longer the delay. Ultimate time is 13 months from the date of the letter containing the WSOR.

Write your arguments as succinctly as you can, and explain the error and why it is material.

There is no set format. However you need to write in asking for the First Tier tribunal decision 'to be set side and or for leave to be given to appeal to the Upper Tribunal. '

There is a 2 stage process. Initially the Regional Judge will consider the request. He can agree that there is a material error of law and hence agree to set aside the decision and will organise a new hearing. Imagine a full game of football is played, and the score is 3 -0. There is something terribly wrong with the way the game was referred and it is decided that the game needs to replayed. The score starts back at 0-0. New referees. This is how the set aside works. New hearing different tribunal members start again.

Sometimes the Regional judge thinks there is an arguable error of law, but it's a complicated point, or perhaps something that has national importance, then he will allow the set aside but refer to UT for the appeal to be decided.

Maybe the RJ thinks no errors were made. He will then refuse to set aside. In this instance you can make a direct appeal to the UT .

At UT, again the case is normally Initially considered by the duty judge and then if there is an arguable material error of law the case will go before the UT for final decision.

We would advise you to seek help, you can find your local Welfare Rights Organisation to help you with advice by clicking on the link below and putting in your post code, it will then come up with a MAP with a list of agencies in your area advicelocal.uk or lawcentres.org

Gary

Hi WalesQ

We cannot answeryour question as we do not have the facts of your case, we would advise you to seek help from your local Welfare Rights Specialist; you can find your local Welfare Rights Organisation to help you with advice by clicking on the link below and putting in your post code, it will then come up with a MAP with a list of agencies in your area advicelocal.uk or lawcentres.org

Gary