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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 30 (AAC) (06 February 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/30.html Cite as: [2009] UKUT 30 (AAC) |
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[2009] UKUT 30 (AAC) (06 February 2009)
Main Category: Commissioners' procedure and practice
IN THE UPPER TRIBUNAL Case No CIB/3586/2008
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Decision:
a. the Secretary of State must cause to be added to the bundle copies of all available papers regarding the 2006 assessment of the appellant and his subsequent successful appeal to the appeal tribunal
b. if papers are not available, the Secretary of State must provide the tribunal with an explanation of the steps that have been taken and why they are not available
c. the tribunal must conduct a full re-hearing, examining matters as they stood at the date of the original decision under appeal (31 January 2008)
d. these directions are subject to any further direction which may be given by a District Tribunal Judge
"Any decision of the First-tier tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11(5) of the 2007 Act."
The expression "Tribunal Procedure Rules" is defined in section 22 of the 2007 Act:
"There are rules, to be called "Tribunal Procedure Rules", governing
(a) the practice and procedure to be followed in the First-tier Tribunal, and
(b) the practice and procedure to be followed in the Upper Tribunal."
There is no material provision in the Transfer of Tribunal Functions Order 2008. Accordingly, the Upper Tribunal's judicial review jurisdiction does not in my view extend to the exercise or non-exercise of the power under regulation 57 of the 1999 regulations, which were the rules governing the practice and procedure to be followed not by the First-tier Tribunal, but by its predecessor.
"(1) On an application made by a party to the proceedings, a decision of an appeal tribunal made under a relevant enactment, the Child Support Act or the Vaccine Damage Payments Act, may be set aside by a legally qualified panel member in a case where it appears just to set the decision aside on the ground that–
(a) a document relating to the proceedings in which the decision was made was not sent to, or was not received at an appropriate time by, a party to the proceedings or the party's representative or was not received at an appropriate time by the person who made the decision;
(b) a party to the proceedings in which the decision was made or the party's representative was not present at a hearing relating to the proceedings.
(2) [omitted]
(3) An application under this regulation shall—
(a) be made within one month of the date on which—
(i) a copy of the decision notice is sent or given to the parties to the proceedings in accordance with regulation 53(3); or
(ii) the statement of the reasons for the decision is given or sent in accordance with regulation 53(4),
whichever is later;
(b) be in writing and signed by a party to the proceedings or, where the party has provided written authority to a representative to act on his behalf, that representative;
(c) contain particulars of the grounds on which it is made; and
(d) be sent to the clerk to the appeal tribunal.
(4) [omitted]
(4A) Where a legally qualified panel member refuses to set aside a decision he may treat the application to set aside the decision as an application under regulation 53(4) for a statement of the reasons for the tribunal's decision, subject to the time limits set out in regulation 53(4) and (4A).
(5) Notice in writing of a determination on an application to set aside a decision shall be sent or given to every party to the proceedings as soon as may be practicable and the notice shall contain a statement giving the reasons for the determination.
(6) The time within which an application under this regulation must be made may be extended by a period not exceeding one year where the conditions specified in paragraphs (7) to (11) are satisfied.
(7) An application for an extension of time shall be made in accordance with paragraph (3)(b) to (d), shall include details of any relevant special circumstances for the purposes of paragraph (9) and shall be determined by a legally qualified panel member.
(8) An application for an extension of time shall not be granted unless the panel member is satisfied that—
(a) if the application is granted there are reasonable prospects that the application to set aside will be successful; and
(b) it is in the interests of justice for the application for an extension of time to be granted.
(9) For the purposes of paragraph (8) it is not in the interests of justice to grant an application for an extension of time unless the panel member is satisfied that—
(a) the special circumstances specified in paragraph (10) are relevant to that application; or
(b) some other special circumstances exist which are wholly exceptional and relevant to that application,
and as a result of those special circumstances, it was not practicable for the application to set aside to be made within the time limit specified in paragraph (3)(a).
(10) For the purposes of paragraph (9)(a) the special circumstances are that—
(a) the applicant or a partner or dependant of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.
(11) In determining whether it is in the interests of justice to grant an application for an extension of time, the panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiry of the time within which the application to set aside is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application for an extension is based.
(12) An application under this regulation for an extension of time which has been refused may not be renewed."
"Subject to paragraph (4A), a party to the proceedings may apply in writing to the clerk to the appeal tribunal for a statement of the reasons for the tribunal's decision within one month of the sending or giving of the decision notice to every party to the proceedings or within such longer period as may be allowed in accordance with regulation 54 and following that application the chairman, or in the case of a tribunal with only one member, that member shall record a statement of the reasons and a copy of that statement shall be given to every party to the proceedings as soon as may be practicable."
"(1) The time for making an application for the statement of the reasons for a tribunal's decision may be extended where the conditions specified in paragraphs (2) to (8) are satisfied, but, subject to regulation 53(4A), no application shall in any event be brought more than three months after the date of the sending or giving of the notice of the decision of the appeal tribunal.
(2) An application for an extension of time under this regulation shall be made in writing and shall be determined by a legally qualified panel member.
(3) An application under this regulation shall contain particulars of the grounds on which the extension of time is sought, including details of any relevant special circumstances for the purposes of paragraph (4).
(4) The application for an extension of time shall not be granted unless the panel member is satisfied that it is in the interests of justice for the application to be granted.
(5) For the purposes of paragraph (4) it is not in the interests of justice to grant the application unless the panel member is satisfied that–
(a) the special circumstances specified in paragraph (6) are relevant to the application; or
(b) some other special circumstances are relevant to the application,
and as a result of those special circumstances it was not practicable for the application to be made within the time limit specified in regulation 53(4).
(6) For the purposes of paragraph (5)(a), the special circumstances are that–
(a) the applicant or a partner or dependent of the applicant has died or suffered serious illness;
(b) the applicant is not resident in the United Kingdom; or
(c) normal postal services were disrupted.
(7) In determining whether it is in the interests of justice to grant the application, the panel member shall have regard to the principle that the greater the amount of time that has elapsed between the expiration of the time within which the application for a copy of the statement of reasons for a tribunal's decision is to be made and the making of the application for an extension of time, the more compelling should be the special circumstances on which the application is based.
(8) In determining whether it is in the interests of justice to grant the application, no account shall be taken of the following–
(a) that the person making the application or any person acting for him was unaware of, or misunderstood, the law applicable to his case (including ignorance or misunderstanding of the time limits imposed by these Regulations); or
(b) that a Commissioner or a court has taken a different view of the law from that previously understood and applied.
(9) An application under this regulation for an extension of time which has been refused may not be renewed.
(10) The panel member who determines the application shall record a summary of his determination in such written form as has been approved by the President.
(11) As soon as practicable after the determination is made notice of the determination shall be sent or given to every party to the proceedings.
(12) Any person who under paragraph (11) receives notice of the determination may, within one month of the determination being sent to him, apply in writing for a copy of the reasons for that determination and a copy shall be supplied to him."
"I attend but got the date wrong I wrote to you but you say you didn't receive. I now need a new date."
"On 16/09/2008 I received your application to set aside the decision made by the tribunal on 24/06/2008.
The application is outside the one month time limit. I asked the chairman to consider if there were special reasons for the delay that would let him accept the application even though it was late.
The chairman has not accepted the late application.
This means that I will take no further action."
Despite what is said in this letter, there is no indication that the clerk did in terms ask the chairman to consider whether there were special reasons for the delay.
"To the Commisionaire
I wish to appeal as I wrote twice The first you said you didn't recied it The second the chairman says it was late I have had any money for 12 months".
"On 1/10/2008 I received your application for permission to appeal to the Commissioner against the Tribunal's decision made on 24/06/2008.
Your application has been rejected because:
* I received it more than 1 month after the issue of the tribunal's decision and
* a statement of reasons for the tribunal's decision has not been prepared.
If you have given reasons for the delay in making your application, these will have been considered when deciding if a statement should be prepared.
If your application was received between 1 month and 3 months from the date the tribunal decision was issued, I have attached a copy of the decision not to prepare a statement.
I am returning your application as I can take no further action."
a. whether the appellant had in fact, as he claimed, sent an earlier letter applying for set aside before 16 September 2008 (and if he had, what had become of it) was never investigated as part of the process of deciding on his application (initially) for set-aside;
b. if such an application had been received (see regulation 2 of the 1999 Regulations) the appellant might have had either an absolute right under regulation 57(3) to have his application considered or if his earlier letter was nonetheless late, a stronger case for the application for an extension of time to be granted, bearing in mind the provisions of regulation 57(11);
c. if his application for set aside was admitted, either because his earlier application had been in time or because an extension of time was granted, even if it had been unsuccessful, he would then have been a potential beneficiary of the discretion under regulation 57(4A) to treat the application for set aside as an application for a statement of reasons. Even 16 September 2008 (never mind the date of an earlier letter the appellant might have sent) was within the three month cut off "longstop" for a statement of reasons imposed by regulation 54(1). Although the Secretary of State urges me to find that the appellant had not provided any information that would have allowed the legally qualified panel member to extend the time for applying beyond the normal one month limit, I disagree. The test under regulation 54(5) (to which the discretion under regulation 57(4A) is subject) is similar to that in respect of a late application for set aside under regulation 57(7), for which purpose, as indicated in paragraph 15 above, the communication of 16 September was in my view sufficient to allow his application to be considered
d. even assuming that the appellant's application was not received until 16 September, there is no indication that the relevant tests in paragraphs (8) to (11) of regulation 57 were addressed. In particular, it was necessary to make a finding whether he had sent an earlier letter, whether it had been received and if not, whether its non-receipt was attributable to the fact that "normal postal services were disrupted" or constituted "some other special circumstances" for the purposes of regulation 57(9)
e. no reasons are available as to why his application was in fact turned down
f. the First-tier Tribunal and the appeal tribunal before it quite often (and very sensibly) treat an expression of dissatisfaction with a tribunal decision as a request for a statement of reasons, even if it is not phrased as such. In this case however, it did not do so in relation to the letter of 16 September (which would have been within the three month cut-off for requesting one) yet it did so in relation to the letter of 1 October, only then to say it was out of time. While I can appreciate that from the point of view of the appeal tribunal, the letter of 1 October may have looked more like an appeal than did the letter of 16 September, from the appellant's point of view what he was basically trying to do had not changed.
"(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Upper Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Upper Tribunal must seek to give effect to the overriding objective when it—
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must—
(a) help the Upper Tribunal to further the overriding objective; and
(b) co-operate with the Upper Tribunal."
C.G.Ward
Judge of the Upper Tribunal
6 February 2009