Just when I thought the HMCTS and the Judiciary could not sink any lower in their handling of this case. http://r-force.org/blog/?p=224 I receive a response from Judge NP Sellar.
Basically due to the fact that;
- my submission (Statement) was altered/falsified whilst in the care of the HMCTS/Department of work and pensions.
- I was not notified of the Directions of the Regional/District Judge, in contravention of Article 6, 3(b) of the ECHR.
- I was not given a copy of the Regional/District Judges Directions by the clerk to the tribunal (when requested)
- I was not informed by the Clerk to the Tribunal that Judge BT Chataway had chosen to overrule (without precedent) the Directions of the more Senior Regional/District Judge and downgrade the case to a Regulation 22 time out.
- That despite being challenged by the appellant, Judge BT chataway used the aforementioned altered/falsified statement (submission) as if it was factual, as the fundamental basis of finding in favour of the Department of Work and pensions. (Without said falsified evidence the Tribunal would have had no choice but to find in favour of the appellant as the Regulation 22 decision would have been voided by Regulation 25)
Setting Aside a Decision; Rule 37 of the Tribunal procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 (Law as from 2009)
37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a
decision, and re-make the decision, or the relevant part of it, if—
(a) the Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are—
(a) a document relating to the proceedings was not sent to, or was not received at an
appropriate time by, a party or a party’s representative;
(b) a document relating to the proceedings was not sent to the Tribunal at an appropriate
(c) a party, or a party’s representative, was not present at a hearing related to the
(d) there has been some other procedural irregularity in the proceedings.
(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1)
must make a written application to the Tribunal so that it is received no later than 1 month after
the date on which the Tribunal sent notice of the decision to the party.
Judge NP Seller,
“decline to set aside the decision as none of the above circumstance are satisfied.”
I kid you not, the Judge considering the application to set aside the earlier decision, genuinely put that response in writing.
When 37 (d) of said Rules clearly state. ‘there has been some other procedural irregularity in the proceedings’.
One would assume the use of evidence that is known to be falsified/Altered and refusing to admit evidence that proves on the balance of probability (‘proves beyond doubt’, as referred to in other types of proceedings) that said evidence is false. May well be an irregularity. Especially given that the Social Security Acts still uses the outdated term of Complying to Natural Justice (Natural justice is a concept that has been around in the law for a long time. At its most simple, it could be described as the duty of judicial and administrative officials to act fairly).
It would be hard for any judge to state that they are acting with impartiality and fairly, when they use falsified evidence (without making a finding that is factual/non factual). As if it is factual, then go on to use that as the basis of their entire findings.
Common sense states, that this was a procedural irregularity (defined in Rule 37 (d) )as the Tribunal must stay within the remit of the Social Security Acts, which are themselves bound by Natural Justice. If declaration 6 on page 18 of the ESA50 questionnaire is redacted (As it in this case). Then there is no part of the Social Security or Welfare Reform Acts that allow the use of falsified evidence in a decision making process.
So why did Judge NP Sellar, think otherwise?
Judge NP Sellar goes on to say;
“Specifically Mr Taggart attended the hearing and the tribunal had all the relevant document before it”
As to if I attended or not is a 37 (c) matter not an irregularity matter (Not quite sure why the Judge chose to pad out his response in this manner? as it is superfluous to the argument)
“The has been no procedural irregularity – although Mr Taggart makes reference to the Directions of the Regional Tribunal Judge these are in the bundle but in any event simply direct the re-listing of the appeal”
This is where Judge NP Sellar, seems to misunderstand the entire application before him.
a) The Directions where not supplied to the appellant until some months after the proceedings. In breach of Judicial Rules, as well as preventing the appellant from being able to formulate a defence, in breach of Article 6, 3(b) ECHR.
b) Said directions, may on the face of it appear to be just a relisting. In reality those directions where for an hour long hearing (normally 30 minutes) before a Judge, (no medical representative) .
That listing was for the following matters.
“1. The Data Protection Act 1998, and the associated issues of the Department of Work and Pensions allegedly wrongfully declaring ATOS Healthcare as a Data Processor, when prior rulings by the Information Commissioner would clearly define them as a Data Controller in the Capacity of conducting the WCA.
2. The Right of Supersession (Social Security Act 1998). In which the state has not been showing sufficient or obtaining for the purpose of, evidence to Supersede an existing award of benefit. No supersession has been applied, which is in contravention of Social Security Act 1998, on existing awards, by the department of work and pension. (Those subject to the migration process).
3. That Declarations 4, 5, 6 of the ESA50 questionnaire, are allegedly in contravention of Article 7(1) ‘forced submittal to retrospective laws’ and Article 8 ‘forced termination of right of privacy’ of the European Convention of Human Rights. As well as being enforced with no right of Refusal in sharing of Private Personal information with other Data Controllers in contravention of The Data Protection Act 1998 and that ATOS Healthcare has not been correctly declaring themselves as a Data Controller in respect of the WCA in direct contravention of The Data Protection Act 1998.
4. That the existing award of Benefit Made under the Social Security Act 1998 (Incapacity Benefit Paid as Income Support), be reinstated as per regulation until the outcome of said Upper Tribunal.”
Judge BT Chataway, overruled those Directions (from a more senior Judge) ‘without precedent’ and instead forced the case of a Regulation 22, ESA50 questionnaire time out procedure. Which was not actually the final Decision on this Migration claim.
Judge BT Chataway, based his entire findings on the basis, that the appellants ‘Altered/falsified’ submission (Written statement before the Tribunal) stated that the Department (DWP) has issued an Electronic editable version of the ESA50, via Email on the 21st January 2013. The problem is that actual evidence shows that in fact that email was not sent until 22nd February 2013, some 14 days after the Regulation 22 time out decision on the 8th February 2013.
Why is this so important?
Well Regulation 25 (to paraphrase) states that if a Decision maker does not take in to account the nature of a claimants disability when issuing an ESA50 questionnaire, then a Regulation 22 is void in law.
Basically they have to make reasonable adjustments under the Equality Act. In this case issuing an Electronic editable version of that document of which the appellant could complete using a voice controlled computer.
The problem in the terms of law, is that they did not carry this out until after the fact. Meaning that based upon the documented evidence that the Departments decision was in err of law.
Being aware of this, Judge Chataway over stepped his impartiality in the case, ignored the fact that the appellant had retracted the submission (statement) as it no longer represented the facts in the case and used it anyway in a manner as if the appellant was claiming it was factual.
Yet Judge NP Sellear does not consider what many others would call fraud, as being an ‘irregularity’? Which is even more odd given, that without the falsified statement, Judge BT Chataway would have had no other choice but to find in favour of the appellant. Meaning the Regulation 22 decision would be unlawful.
The reality is that I as the appellant had been fully aware from the outset that the Regulation 22 case was a non starter for the department. The real issues here are concerning;
Government contractors, carrying out work unlawfully in breach of the Data Protection Act (Falsely Claiming an exemption which does not apply in the case of the WCA),
Existing awards of benefit not being Superseded (Right of Supersession, Social Security Act 1998) amounting to a £Mulit Billion fraud by the Rt Hon Iain Duncan Smith and the Department of Work and Pensions (Claimants remain entitled to their pre-existing award of benefit for all this time).
That there are serious legal issues concerning the ‘forced’ declarations 4,5 & 6 on page 18 of the ESA 50 questionnaire. Which range from using subterfuge to circumvent the Data Protection Act, to that of retrospective laws via administration, which allow for the use of outdated or falsified evidence as if factual. To retrospectively remove any award of benefit (including passport benefits, such as Housing Benefit etc) retrospectively for up to 5 years. (There is already documented cases of the Department doing this).
So I ask judge NP Sellar, just how bad do these issues have to be before you consider them an ‘irregularity’ as it appears, breaking law in respect of Social Security Legislation, what any would consider to be fraud and breaching international conventions do not seem to meet the criteria for you?