Archived Ask a benefits adviser [CLOSED]
If this is your first visit, check out the community guide. You will have to Join us or Sign in before you can post.

Community updates

• Read over some of our recent discussions and have your say!

• Upload a new profile picture and give your profile a personal touch.

• Get the latest information on issues relating to coronavirus.

appealing first tier tribunal decision

I'm looking for info on how to appeal a decision which was based on incorrect assumptions, not sure if I want a setting aside or upper tribunal etc, any advice much appreciated :-)


  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger

    Starting point is that you have one month to request a statement of reasons (a detailed reasoning of the decision by the judge) and a record of proceedings (handwritten notes done by the judge on the day of the hearing.

    You can't appeal a first tier tribunal to the upper truibunal on the facts. You have to identify one of the five errors of law and apply for leave to appeal. This is not difficult. Almost all tribunal decision contain an error of law. Most contain more than one. It's near impossible to avoid but you will need expert advice to identify them in the first place.

    "A decision based on incorrect assumptions" sounds like you're disputing the facts not the law. However, it could also be an error of law e.g. insufficient findings of fact. Bottom line is to request the SoR and RoP and get advice.  

    You then apply for leave (permission) to appeal by showing which errors you think apply. This goes to your local HMCTS office. If they grant leave then it gets referred to London. If not then you get one month to apply direct to London.  

    if the UT refer back to the FTT for a new hearing do the facts come into play again.

    A set aside is more related to procedural irregularities e.g. missing paperwork, than disputes of fact.

  • Pippa_ScopePippa_Scope Member Posts: 5,856 Disability Gamechanger
    Welcome to the community, @leon64! I hope the information provided my Mike helps, and just let us know if you have any further questions.
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger

    "... my Mike"? :)

    I've been adopted :)

  • Pippa_ScopePippa_Scope Member Posts: 5,856 Disability Gamechanger
    @mikehughescq Haha! *by Mike, rather! 
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger
    "Disappointed face" :)
  • leon64leon64 Member Posts: 5 Listener
    Thank you both! I'm sure I'll be back, but I'll ask for the SoR and RoP first. The decision note was quite detailed so I have a fair idea of the line of thought, it is a fairly reasonable assumption but it is still incorrect and I wonder if it would come under the natural fairness section
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger
    Near impossible to construct an error of law case from the summary decision. You need the SoR and RoP to be able to do that, not least as at least one of them will hopefully cast further light on any assumptions. If it doesn't then you may have an error on the "making a finding of fact for which there is no evidence" front.
  • leon64leon64 Member Posts: 5 Listener
    Hello again :)
    I've received the SOR, which takes some of the claim out of context in order to state that the claim conflicts with what a doctors letter said (it doesn't). It also makes incorrect assumptions and seems they haven't taken all illnesses into account when judging what the applicant probably could and could not do. I can refute the incorrect statements but I'm a bit lost on which error of law applies, can you offer any advice? Many thanks :)
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger

    At this stage you need expert face to face advice to identify an error of law. Do you have just the statement of reasons or do you have the record of proceedings too? If you don't have the latter then you need to request it quickly.

    Impossible to say on here which errors might apply without having sight of the decision, ROP and the appeal papers. Thus, you need face to face advice.

    What I can say, as previously, is that much of what you describe above still seems to be factual disputes i.e. over what is or isn't a fact. At this stage that is done and gone. You only get to dispute findings of fact again if you can show an error of law at this stage.

  • leon64leon64 Member Posts: 5 Listener
    Hmm, I did request the ROP at the same time but received only SOR, could this be because it was a paper based hearing or should I be getting back in touch again for the ROP? Unfortunately face to face help is out of the question in this situation so I'm left to tackle it alone/ with online help and I'm feeling rather stuck! I did wonder if it could help that They received further documents relating to the claim 10 days before the decision was made but they didn't take them into consideration, but I'm not sure if that's the best thing to go on or not. 
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger

    Nope. There should be a ROP regardless in theory.

    Maybe post up a small list of your main objections to the decision with lots of specifics? That may enable more informed comment on whether there's an error of law there.

  • leon64leon64 Member Posts: 5 Listener
    I'll have a think, thanks. 
    Do you have any suggestions as to how to handle the missing ROP? I'm aware the clock is ticking from the SOR date so bit concerned about that! 
  • mikehughescqmikehughescq Member Posts: 4,674 Disability Gamechanger
    Just write back to HMCTS ASAP and ask for it. However, it’s absence is not a good reason to delay an application for leave to appeal. You still need to apply for that within one month of receiving the SOR.
Sign in or join us to comment.