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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:

1. Under rule 21(7)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008, I consider it in the interests of justice to admit the application, even though the appellant's request to the appeal tribunal for a written statement of reasons was refused on the grounds that it was not made in time.
2. I grant permission to appeal. With the express consent of the Secretary of State under rule 22(2)(c) and the implied consent of the appellant, I have adopted the Secretary of State's submission on the application for permission as the submission on the appeal itself.
3. The decision of the tribunal which sat at Bradford East on 24 June 2008 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the following directions:

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

4. Although I cannot direct him to attend, the appellant is strongly advised to do so. The outcome of the re-hearing is entirely a matter for the new tribunal. No inference should be drawn as to the outcome from the fact that an appeal to the Upper Tribunal has succeeded on a point of law.
REASONS FOR DECISION
5. The appellant has, according to his GP, a "long history of alcohol overuse [which] dates back over 25 years". He has been incapable of work since 24 August 2005. In May 2006 he was examined by a doctor to assess whether he met the Personal Capability Assessment ("PCA"), who concluded that he did not. At this point his GP stopped giving him sick notes, for reasons which are not clear. The appellant appealed to the tribunal and won his appeal. The GP does not appear to have re-started providing sick notes, again for reasons which are not clear.
6. In January 2008 the appellant was re-examined for the PCA. The examining doctor noted that "he has been chronic alcoholic for a long time" and that his condition was unlikely to change for at least 2 years. Although the appellant had said on his form IB50 that he had a number of physical problems (which would have been enough to meet the threshold), the examining doctor did not consider that any of them were bad enough to score points. In accordance with the doctor's advice, the decision-maker awarded five points in respect of mental health, which was not enough to meet the PCA threshold. The appellant appealed again.
7. The case was listed for oral hearing and a bundle of papers prepared. Although the text of the submission included a reference to the previous appeal, no papers from it were included in the bundle. On the hearing day, the appellant failed to attend: it afterwards turned out that he had been mistaken as to the date and so had turned up on the wrong day. Faced with this, the tribunal went ahead with what it had and, by a decision dated 24 June 2008, upheld the Secretary of State's decision.
8. Following the hearing, the appellant (who has at all times been unrepresented) has made efforts to be allowed to have the chance to have his say and otherwise to challenge the decision. His paperwork has been robust and clear in intention but brief and not in a sophisticated form. I shall return to it below.
9. At the time, questions of whether a hearing should be set aside so as to allow a re-hearing when a person has failed to attend were exclusively for a legally qualified panel member of the appeal tribunal to determine. Regulation 57A(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ("the 1999 Regulations") expressly makes clear that "there shall be no appeal against…a determination given under regulation 57" (the regulation authorising set aside.) While the regulation 57 power may have been subject to control by judicial review, this would at the material time have required an application to be made to the High Court. The terms of the Lord Chief Justice's Direction on Classes of Cases Specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act") do not confer jurisdiction on the Upper Tribunal over such decisions taken at that time. The relevant category of judicial review case which is transferred to the Upper Tribunal is set out in paragraph 2b. of the Direction as:

"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.

10. What the Upper Tribunal does potentially have jurisdiction to address (via paragraph 4 of Schedule 4 of the Transfer of Tribunal Functions Order 2008) is whether the substantive decision of 24 June 2008 involved the making of an error of law. In my judgement, there was sufficient in the papers relating to the chronic nature of the appellant's condition, in view of the appellant's restricted communication style, to amount to an implied contention that his condition remained substantively unchanged. This should have alerted the Secretary of State, and then the tribunal, to the need for the papers from the previous assessment and successful appeal to be included: see for instance CIB/3985/2001 and (albeit obiter) CSIB/964/02. There is nothing in the 2008 medical report to suggest that the 2006 papers would no longer be material. Clearly, less than two years previously, an appeal tribunal had found, despite an earlier assessment at which, as reported by the DWP's Approved Disability Analyst, there had been "minimal disability evident", that the PCA threshold was met. Whether this was on the grounds of the physical descriptors, the mental descriptors or a combination of the two is not evident in the absence of the relevant papers, but as the appellant's appeal letter refers to his incontinence, alcohol dependence and stress, any of them is a possibility. I am mindful that (for reasons explained below) I do not have a statement of reasons from the tribunal, but in the deliberations of the tribunal, which are shown to an unusually full extent in the record of proceedings), there is no indication that consideration was given to adjourning to enable these papers to be obtained nor, indeed, any mention of the previous appeal at all.
11. The Secretary of State seeks to distinguish CIB/3985/2001 as involving a case where the appeal tribunal had papers available to view but refused to do so, arguing that in the present case the tribunal felt that they had sufficient evidence on which to base their decision and there is no error in their decision to proceed on the papers before them. I do not accept this as a valid distinction. In CIB/3985/2001, continuity had again been put in issue by the claimant. The tribunal did not have the relevant previous document (in that case an assessment) and was in error of law by failing to call for it, "by accepting as accurate and sufficient the report which, on the claimant's argument, the other evidence would show to be incomplete and insufficient" (per Mr Commissioner Jacobs at paragraph 9.)
12. In submissions about CSIB/964/02, the Secretary of State fails to deal with the observation by Mr Commissioner May Q.C., distinguishing the case before him from that in CIB/3985/2001 [the case is numbered CIB/2985/2001 in the decision but that appears to be a slip], that "in particular what the claimant in that case did was raise the issue of the continuity of his disablement. It was his position in that case that the evidence in previous reports was relevant to that issue. If that is a position adopted by a claimant then clearly the tribunal required to look at it from the point of view of determining which points-scoring descriptors are satisfied."
13. For the reasons in paragraph 6, I am satisfied that such a position was impliedly adopted by the appellant in the present case and so, by failing to call for the earlier appeal papers, the appeal tribunal was in error of law.
14. Having dealt with what I perceive to be the only substantive matter over which the Upper Tribunal even potentially has jurisdiction, I nonetheless need to explain, in some detail, why I have seen fit, in the circumstances of this case, to exercise the power under rule 21(7)(b) so as to assume that potential jurisdiction in this case. To do so requires me to set out relevant extracts of the legislation then in force in relation to applications to set aside decisions of appeal tribunals and applications for statements of reasons to be provided.
15. Applications for set aside were dealt with by regulation 57 of the 1999 Regulations, which, so far as material, was as follows:

"(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."

16. Obtaining a statement of reasons for a decision was governed by regulation 53 of the 1999 Regulations. Paragraph (4) provided (paragraph 4A is not material) that:

"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."

17. Regulation 54 is in the following terms:

"(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."

18. The appellant overlooked the tribunal hearing on 24 June 2008 and attended two days late. He requested a set-aside so he could make his case in person. He did this (if not before) on 16 September 2008 by sending a copy of an earlier letter from the Tribunals Service back to their office on which he had written:

"I attend but got the date wrong I wrote to you but you say you didn't receive. I now need a new date."

19. This communication thus claims that he had made an earlier application and (by implication) followed it up in person or by phone, for him to be told that his earlier application had not been received. I add that it meets, with commendable brevity, all the formal requirements for late applications for set-aside set out in regulation 57(7), other than being signed. Further, it was by no means at the outer limit for such applications, which under regulation 57(6) stood at one year.
20. The appellant's application was dealt with by a District Chairman on 19 September 2008 ticking the box on a proforma refusing to accept the late setting aside application. The appellant was sent this form as it stood. No reasons were given him. There is no indication from the appeal tribunal's file of the matters considered or of the reasons for refusal, including whether he had indeed sent an earlier application; if he had, what had become of it; whether or not any application was in time; if not, whether the circumstances on an application for extension were considered to fall within the terms of regulation 57(8); and if not, which limb of regulation 57(8) was considered not to be met.
21. On 22 September 2008, a clerk wrote to the appellant in the following terms:

"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.

22. The appellant wrote in again (this time by writing on the clerk's letter of 22 September). His communication was received by the Tribunals Service on 1 October. He wrote:

"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".

23. A clerk referred this to a Chairman, asking whether the appellant should be issued with the "standard letter" and on 7 October the Chairman replied agreeing. What was meant by the "standard letter" is not entirely clear. It may have been either or both of the letter dated 2 October 2008 (subsequently reissued on 7 and 15 October 2008) telling the appellant he was too late to apply for permission to appeal to the Commissioner against the tribunal's decision made on 24 June 2008 and, as regards the set-aside more specifically, a letter dated 7 October 2008, which merely repeated, word for word, the letter of 22 September. No further light is shed on the decision with regard to set aside.
24. It is necessary to set out a substantial extract from the letter of 2, 7 and 15 October in full. (Before doing so, I add that I am unclear whether it was in fact sent on 2 October, as this would have preceded the Chairman's direction of 7 October authorising it).

"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."

25. On 20 November, the Upper Tribunal received an application from the appellant.
26. Accordingly, it appears that:

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.

27. I am not exercising a judicial review jurisdiction over any of these matters. Consideration of whether any similar acts or omissions or their current equivalents under the First-tier Tribunal Rules would be liable to attract intervention by way of judicial review must await a case in which they arise. I am concerned with a more general test, namely whether the provisions of rule 21(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 are met. In doing so, I am required to apply the provisions of rule 2, which is in the following terms:

"(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."

28. The appellant has provided further particulars of his application to the Upper Tribunal by sending copies of they key letters to which I have referred. He has done, so far as he is able, what rule 2(4) requires of him. Avoiding unnecessary formality, as rule 2(2)(b) requires, I take that as a sufficient explanation for the purposes of rule 21(7)(a) in the circumstances of this case of how his application for a statement of reasons came to be rejected as having been not made in time. I consider that for the purposes of rule 21(7)(b) the interests of justice are served by admitting the application, in the light of (a) the unfortunate handling of his various post-hearing applications by the appeal tribunal as set out in paragraph 22, (b) the very real difficulty in practical terms which the appellant would have faced in challenging such steps by way of application for judicial review to the High Court (c) the fact that the tribunal's reasoning is reasonably evident in this case even in the absence of a formal statement of reasons and (d) there being (as I have held) a substantive point of law with the potential to have a real impact on the outcome for the appellant.

C.G.Ward

Judge of the Upper Tribunal

6 February 2009