Martin Williams reviews the rules which allow a tribunal to strike out an appeal and the correct procedure for doing so.
In October last year the DWP issued guidance
1 DMG Memo 26/11urging decision makers to ask tribunals to strike out appeals where in the view of the decision maker there are no reasonable prospects of success.
Given this development, it is worth looking at the guidance in some detail and also taking the opportunity to review the rules for this type of strike out.
No reasonable prospects of success
A decision to strike out an appeal has the effect that it brings the appeal proceedings to an end, leaving the decision maker’s decision in force, in circumstances where the tribunal has not considered in full the merits of the appeal.
The ‘Procedure Rules’
2 The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No.2685) set out the circumstances in which a tribunal can strike out an appeal or part of it. The specific power which is the subject of the DMG Memo is contained in rule 8(3)(c). This gives the tribunal a discretionary power to strike out an appeal where it considers that ‘there is no reasonable prospect of the appellant’s case [...] succeeding’.
There are two important features to note about this power.
•The power is a discretionary one: as well as deciding there is no reasonable prospect of success, the tribunal must consider whether it should strike out the appeal. It must have regard to whether or not that would be ‘fair and just’.
3 r2(3)(a) Procedure RulesThis includes considering whether a strike out is a proportionate response to the circumstances given the complexity of the case, the resources of the parties and the costs to the tribunal system. It should also have in mind the need to avoid formality, seek flexibility and ensure the parties are able to participate in the proceedings.
4 r2(2) Procedure Rules •This power cannot be exercised unless the appellant has had an opportunity to make representations on the proposal.
5 r8(4) Procedure Rules Typically that would have to be facilitated by sending the appellant a direction asking her/him to comment on whether the appeal should be struck out before making a decision.
The DMG Memo suggests, at paragraph 3, that where the decision maker requests the tribunal to strike out a case on the basis that there are no reasonable prospects of success, then there is no need to write a full response to the appeal. That might be wrong because rule 24 of the Procedure Rules states that a decision maker must prepare a response in all cases. Where an advisor is asked by the tribunal to comment on the decision maker’s request for a strike out on this basis and no full response has been submitted by the decision maker (including copies of all documents relevant to the decision, etc.), then it is suggested the advisor could request the decision maker be directed to provide these before the appellant gives comments on the prospects of success.
Cases suitable for striking out
The Memo also goes on to give a list of the types of cases for different benefits where the Department considers a decision maker could ask the tribunal to strike out the case. It is not possible to list them all here but some of the notable examples include:
•Employment and support allowance (ESA) appeals about the work capability assessment where the claimant only satisfies one or two physical descriptors and the available evidence indicates that the claimant cannot score 15 points. Decision makers are asked not to put forward for striking out any cases where there are mental health issues.
•ESA appeals where the issue is that the contribution conditions for entitlement to a benefit are not met and HMRC has certified that this is the case.
•Disability living allowance (DLA) appeals about backdating.
•DLA appeals where the issue is the residence or presence test.
•Income support appeals about entitlement where the claimant is no longer entitled as a lone parent because of the age rules in respect of the youngest child.
Disputed facts
What is striking about all of those examples is that they are all cases where, conceivably, there may be a fundamental dispute about the facts. For example, the appellant may assert s/he does score 15 points and that more than two of the physical descriptors apply to her/him. It is not uncommon in appeals on such issues for compelling evidence from the appellant’s own doctor only to be provided at a late stage in the proceedings (indeed many advisors will have held off requesting such evidence until they have seen the evidence from the Department). Similarly, appeals about an insufficient contribution record may in fact turn on whether an employer should have been (but was not) making contributions, meaning the HMRC record could well be accurate but the appeal could still succeed.
6 See reg 60 Social Security (Contributions) Regulations 2001 SI No.1004Appeals about backdating DLA may involve assertions that the claimant did in fact submit an earlier claim.
The Court of Appeal held,
7 Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 in relation to the similar power to strike out an employment tribunal case on the grounds of no reasonable prospects of success, that in a case where the key facts were in dispute between the parties, a strike out would only be appropriate in the most exceptional cases. It gives as an example a case where ‘the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation’. Taking an ESA appeal as an example, it is not at all uncommon for the appellant to dispute the accuracy of much of the medical report prepared by Atos for the Department. That suggests that in such a case the accuracy of the report will have to be tested at a full hearing where the competing claims about the evidence can be evaluated, and so a strike out would not be appropriate.
Furthermore, it is often the case in social security appeals that an appeal which is presented as about one thing by the decision maker should in fact have been treated as about something else. For example, an appeal presented as being about backdating an award of DLA (for which there is no legislative provision) may actually turn on whether the new claim and request for backdating can be treated as a challenge to the decision ending a previous award of DLA,
8 See R(JSA)2/04or about whether the time limit of six weeks for returning a claim form can be extended.
9 See reg 6(8)-(9) Social Security (Claims and Payments) Regulations 1987 SI No.1968Challenging ‘no reasonable prospects’
It is worrying that decision makers are being urged to request tribunals strike out appeals on the ‘no reasonable prospects of success’ basis in cases where fundamental disputes about the facts, or legal arguments not apparent from the way the appeal has been initially presented, may yet arise. Advisors should note the following issues when faced with an appeal which has been struck out on this ground (or where the tribunal proposes to do so).
•It is now clear that there is a right of appeal to the Upper Tribunal against a decision striking out a case.
10 Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC) and LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC)The First-tier Tribunal should issue a statement of reasons for a decision to strike out a case when requested to do so. Grounds of appeal in such cases may relate either to whether it was open to the tribunal to conclude that there were no reasonable prospects of success on the evidence available or, more likely, whether the procedure by which it came to strike out the appeal was fair.
•The appellant must have been given an opportunity to comment on the proposal to strike out the appeal on the grounds it had no reasonable prospects of success before a tribunal strikes out the case. Such decisions can be challenged simply on the basis that the tribunal had no power to strike out the appeal and/or that the process adopted (not affording both sides an opportunity to comment) was unfair.
•Related to the above, in some cases it could be argued that for the appellant to be afforded an effective right to comment on a strike out proposal then all of the documents relevant to the appeal should be provided to the parties. In such cases, it will help for the appellant to be able to state what representations could have been made had s/he had sight of the documents to demonstrate the unfairness.
•In cases which involve a dispute about the key facts, where those facts cannot be established by uncontested documentary evidence, then a strike out on this basis will rarely be fair.
•The tribunal must show that it has had regard to whether it would be fair and just to strike out the case in coming to its decision.
CPAG would be grateful if advisers could let us know via an email to
advice@ssp.cpag.org.uk about cases they are assisting in where the decision maker has suggested there are no reasonable prospects of success
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