I appealed against a FTT decision as I felt that the tribunal had wrongly assessed the risk of P of O on the grounds that P of O would be engaged if the patient accidentally came across the victim. This was linked to my request that the MHT alter the MoJ imposed EZ. In the FTT refusal decision the Judge incorrectly stated that the MHT could not vary the MoJ EZ. I appealed to UT and appeal was refused. Can I do anything about the incorrect statement the Judge has made in the FTT refusal.? It is a concern that a FTT Judge doesn’t understand the law. I was thinking of submitting a CMR1 asking for the FTT appeal decision to be amended as it is incorrect- or maybe just complain?
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Hi Karen
I would simply write to MHT correspondence, point out the error and ask that it is rectified as it is clearly incorrect. Ask that the issue be put to a District Judge or what ever they call themselves today.
If you hear nothing, them move to a CMR1 application to correct an error in the decision.
Ultimately should refuse, you could appeal that decision as it would clearly be an error of law.
I suspect when dealt with as a simple correction, they will correct.
I hope the case is exceptional!
best wishes
Ben
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Thanks Ben- it is indeed!
Thinking more about this- would it not be better to go straight to CMR1? Could I ask for the refusal of permission to be reconsidered in the light of the error of law? The Judge had completely misunderstood the grounds and it was a toss up between filing a CMR1 revisiting the request for permission or going straight to the UT. Now the UT have turned down the appeal I suppose reconsidering the appeal for permission is academic. I hoped the UT would comment on the woeful FTT permission decision and cited the case law about this but they didn’t even mention it.
Do you think the error of law in the First-tier permission decision tainted the Upper Tribunal decision in any way? Do you think the UT judge shared the same misunderstanding and might have decided differently otherwise?
The UT Judge didn’t express a view about whether the MHT could alter the EZ or not he said (more or less) Even if the solicitor is right and the MHT could alter the EZ this had no bearing on their decision because they thought the Statutory criteria were met. Tbf I think the MHT did know they could alter the EZ - they didn’t think they should but this was because they didn’t want to upset the victim not because they thought the patient was a danger to them.