Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL                             Appeal No: CH/3295/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

            The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Fox Court on 30 March 2012 under reference SC242/11/09181 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.    

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)               The new hearing will be at an oral hearing. Given the appellant’s change of address to an address in Newcastle-upon-Tyne, consideration will have to be given to transferring the appeal to the North West region of the First-tier Tribunal.    

 

(2)              The appellant is reminded that the tribunal can only deal with his situation as it was down to 2 February 2011 and not any changes after that date.

 

(3)              If either party has any further evidence that they wish to put before the tribunal that is relevant to the issues with which this appeal is concerned, this should be sent to the First-tier Tribunal’s office in Sutton within one month of the date this decision is issued.

 

(4)              The First-tier Tribunal should have regard to the points made below.

    

 

REASONS FOR DECISION

 

 

1.                   I gave directions on the appellant’s application for permission to appeal on 25 October 2012, when I said,

 

“Permission to appeal was refused by a District Tribunal Judge of the First-tier Tribunal on 17.08.12.

 

[The appellant] has renewed his application for permission to appeal to the Upper Tribunal.

 

I have not yet decided whether to grant permission to appeal or whether to hold an oral hearing of the application for permission to appeal. 

 

In order to assist me to decide both of these matters I need first to obtain the views of both [the appellant] and the London Borough Islington in respect of [the appellant’s] allegation (raised for the first time in his letter of 7.10.12 attached to the UT1 form) that Islington’s presenting officer ….was present in the First-tier Tribunal hearing room with the First-tier Tribunal Judge before [the appellant] was called into that room for his appeal hearing.”        

 

The views of both parties and the First-tier Tribunal were then provided as to what had occurred on the hearing of the appellant’s appeal to the First-tier Tribunal (“the tribunal”) on 30 March 2012.    I also asked the First-tier Tribunal for its comments on what was being alleged.   

 

2.                  In response, the appellant reiterated that the presenting officer for Islington was present in the room before the appellant came in.  Islington’s response to the directions was understandably limited in what it was able to say because the presenting officer no longer worked for Islington.

 

3.                  In a reply letter written by the Regional Tribunal Judge it was said that the judge who had presided over the tribunal hearing on 30 March 2012 had indicated that after the lapse of time she had no recollection of the appeal and could not recall the presenting officer.  The letter went on to make a number what it termed “general points” on behalf of the Judge.  Most relevant amongst these was that it:

 

“ha[d] never been her policy and it would and it would be totally inappropriate for her to discuss an appeal with a Presenting Officer in the absence of other parties either before the hearing started of after the hearing was completed prior to making her decision” 

 

Notwithstanding the nature of the allegation put, I note that this letter does not say that then judge did not allow presenting officers to be present in the tribunal hearing room before the appellant entered.

  

4.                  The Regional Judge’s letter continued that if it was necessary for the tribunal judge to comment further she had asked to be sent her copies of the appeal papers, the record of proceedings and the statement of reasons.  The relevant documents were sent to the Regional Tribunal Judge by the Upper Tribunal on 31 January 2013 but no further reply was received from either the Regional Tribunal Judge or the tribunal judge.

 

5.                  In the light of this information I directed an oral hearing of the application for permission to appeal. This was to: (a) hear from the parties about what had occurred at the hearing on 30 March 2012, and (b) what legal consequence ought to follow if the presenting officer was present in the hearing room with the Judge before the appellant entered the room, (and any other error of law arguments that may arise).  That hearing took place on 27 September 2013.  The appellant attended the hearing as did the Islington’s Principal Customer Engagement Officer (Appeals), Mr Bhamra.

 

6.                  I announced that I was giving permission to appeal and the reasons why at the end of the hearing on 27 September 2013.  I asked Islington to indicate in writing within fourteen days of the hearing whether it was content for me to proceed to determine the appeal on the basis of what had been said at the hearing or whether it wished to make written submissions on the appeal. I did this in the hope that this would speed up the proceedings. Unfortunately this turned out not to be the case as Islington provided nothing in writing to the Upper Tribunal. I was therefore none the wiser as to what Islington’s stance was on the appeal. 

 

7.                  This deficit led me to produce a written grant of permission to appeal on 13 November 2013. This was issued to the parties on 29 November 2013. Given my views as to the merits of the appeal I directed the parties to the appeal to inform the Upper Tribunal within 14 days of the date on which the grant of permission to appeal was sent to them whether they had any objection to the decision of the First-tier Tribunal being set aside for error of law on the grounds identified in the grant of permission to appeal and to the Upper Tribunal referring the case for re-determination by a differently constituted First-tier Tribunal. Neither party has made any response. I therefore take it that neither party objects.

 

8.                 As I have already said, the main reason for holding the hearing on 27 September 2013 was for me to decide as a matter of fact, and on the balance of probabilities, whether Islington’s presenting officer was in the tribunal hearing room with the Judge before the appellant was called into the room. Having heard evidence from the appellant about this, having recognised Islington’s inability to say anything about this issue substantively (the presenting officer no longer being in its employ), and having further noted that the Regional Tribunal Judge’s letter of 22 January 2013 on behalf of the judge concerned does not say that the judge would never allow a presenting officer to be in the room with her before an appellant entered the room, I have concluded as a matter of fact that, for whatever reason, the presenting officer was present in the room before the appellant entered it.  The appellant’s evidence to me was convincing on this issue and what is said on behalf of the judge does not contradict this central point. In particular, I am satisfied from what he told me that he was on time for the hearing of his appeal, and therefore the presenting officer’s presence in the room was not accounted for by the appellant having been late and the hearing already having started. Had this been the case it ought to have been recorded on the record of proceedings, which it is not.     

 

9.                  Allowing the presenting officer to be in the room with the judge before the appellant came into that room in my judgment breached the rules of natural justice by giving rise to the appearance of partiality or unfairness in the procedure. In R(IS)15/94 Mr Commissioner Goodman said at paragraph 18:

 

“I would lastly mention briefly a point which emerged at the hearing before me on 8 September 1993. The claimant was describing the tribunal hearing and making a point (which he had made in a letter dated 19 July 1992, No. 33 in the appeal papers) as to the presenting officer being the same person to whom he had earlier spoken on the telephone when dealing with this case. I do not think I need go into that particular matter now, but the claimant did add that he was not sure of this matter until, as he put it, he went into the tribunal room and saw the presenting officer there. If in fact the presenting officer were with the tribunal before the claimant was shown into the tribunal room there could of course have been a breach of the rules of natural justice. It is of course important that one party to an appeal e.g. the presenting officer, should not be in the presence of the tribunal before the other, even in a case where the presenting officer has been engaged in earlier cases. I will say no more about it than that because, as I have set the tribunal’s decision aside on other grounds, I have not needed to make a final ruling on this point. I should also emphasise that I have not had an opportunity to have enquiry made of the clerk of the tribunal about this particular matter.” (my emphasis)

 

10.              Even accepting what the judge has since said in paragraph 3 above (that is, that she did not discuss the case with the presenting officer) does not neutralise the concern as to the appearance of partiality as it leaves out of account body language, uninvited comments the presenting officer may have made, and why he was allowed in the room without the appellant.    Given the importance of this cardinal feature of the justice system – justice must not only be done but be seen to be done – it is very arguable that this error alone merits setting aside the tribunal’s decision.  

 

 

11.               However, it may be argued that if the decision is otherwise sound such an error on its own does not merit setting aside the tribunal’s decision because even had the presenting officer not been present the result would, inevitably, been the same. That, however, brings me to the second error of law.     

 

12.              In my judgment the tribunal also erred in law in failing to enquire of the appellant more fully than it did the basis on which he had formed the belief that “the cap that was talked about in the press meant he was entitled to the capped amount of £1,000 whatever his actual rent was”. 

 

13.              The context of this remark is evident from the papers and will be known to the parties. Briefly, however, it is relevant to the appellant’s case that he could not reasonably have been expected to realise he was being overpaid (per regulation 100 of the Housing Benefit Regulations 2006), when he was being paid in effect four times the level of his rent, because of his alleged belief that the “benefit cap” meant that he was entitled to a capped amount of £1000 regardless of his actual rent (see his email of 24 May 2011 on page 60).  

 

14.              That may seem a wholly unreasonable belief to someone versed in the law of housing benefits, however the issue the tribunal had to determine was the whether it was a reasonable belief of the appellant: see in particular paragraph [16] of Upper Tribunal Judge Mark’s decision in Hull City Council –v- JS [2012] UKUT 477 (AAC), whose reasoning I respectfully endorse and adopt. That in turn required an investigation of the basis of the appellant’s belief.  For example, if the belief was based on what a stranger with no obvious authority had said to the appellant in a café, it may have been unlikely to have provided a reasonable basis for the belief. On the other hand, if it was, for example, (wrong) advice given to him by a CAB, or a wrong reporting on the cap expressed in what may have been seen as an authoritative newspaper, the nature of the belief may have been more reasonable. However, if the appellant misread what a newspaper had said or made a wrong assumption then the belief may have a much less secure footing. 

 

15.               These are all potential examples of the basis for the appellant’s belief. I have no idea which, if any of them, may be true in fact, or whether the belief sprang from elsewhere.  However, they highlight that this was an area that called for investigation by the tribunal.

 

16.              The problem, however, is that consideration of the record of proceedings on page 79 does not reveal any real investigation of this issue by the tribunal, nor does it evidence that the appellant had based his belief on what he had read in newspapers (and page 61 does not say this either). In these circumstances I am driven to conclude that the tribunal erred materially in law in failing to investigate this relevant issue adequately with the appellant.   

 

17.               For these reasons, the tribunal’s decision dated 30 March 2012 must be set aside.  I am not in a position to re-decide the first instance appeal.  Plainly I am not infected by the presenting officer already being present error the tribunal made.  That then potentially left the way open for me to re-decide the appeal on the basis of the reasonableness of the appellant’s belief. However, it was not appropriate for me to do so at the hearing on 27 September 2013 because: (i) the point only arose during the course of the hearing and neither party was in a position to properly address the factual merits in the time left; and (ii) in any event, at that stage the submissions had not concluded  as whether the tribunal had erred in law and its decision ought therefore to be set aside, and is only once that point is reached that the Upper Tribunal is authorised to re-decide the first instance appeal: see section 12(1) and (2) of the Tribunals, Courts and Enforcement Act 2007.  

 

18.              However, given what I have said above, the basis for the appellant’s belief (and its reasonableness) will need to be tested at a hearing. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber), this time probably sitting in Newcastle-Upon-Tyne.  The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 

 

 

(Signed) S. M. Wright

Judge of the Upper Tribunal

                                                                                                          

Dated 12^th February 2014