Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos.  CH/1758/2009

ADMINISTRATIVE APPEALS CHAMBER JR/2204/2009

 

Before:

 

Mr Justice Walker CP

Upper Tribunal Judge Rowland

Upper Tribunal Judge Turnbull

 

 

Attendances:

 

For the Appellant/Claimant: Mr Tim Buley, of counsel, instructed by Pierce Glynn

For the Secretary of State: Miss Samantha Broadfoot, of counsel

For London Borough of Lambeth: Mr Dauda Rufus, of Lambeth Finance and Resources Department

 

 

DECISION

 

The Claimant’s appeal (CH/1758/2009) against the decision of the First-tier Tribunal (Judge Poynter) made on 15 January 2009, striking out her appeals, is allowed to the following extent. We set that decision aside as wrong in law. We re-make that decision and hold (i) that it is not appropriate to reconsider the decision made by a legally qualified panel member on 14 May 2008, determining that the appeals were not out of time; and (ii) that the appeals should therefore not be struck out.

 

The claim for judicial review (JR/2204/2009) is dismissed.

 

 

REASONS

 

MR JUSTICE WALKER and JUDGE TURNBULL

 

Introduction

 

1. This decision is by a majority, but Judge Rowland agrees with us on 4 of the 6 issues we have identified, and in particular on Issue 1 (the correct avenue of challenge).

 

2. The decisions by Lambeth Council (“the Council”) which the claimant (Miss LS) sought to appeal to the First-tier Tribunal were made between November 2005 and September 2006 and related to the amount of Miss LS’s entitlement to housing benefit.  Miss LS’s contention was that she had not at the material times been living with a “non-dependant” and therefore that, in calculating her housing benefit entitlement, the Council had been wrong to apply a “non-dependant deduction”.

 

3. However, no appeals were sought to be made until, at the earliest, January 2008. On the face of it the appeals were therefore irredeemably out of time, as they were more than 12 months late. However, it was contended on behalf of Miss LS that they were not in fact late at all because there had been no proper notification of the decisions sought to be appealed, so that the time limits had not started to run.

 

4. The appeals were initially (in April 2008) rejected by a legally qualified panel member, and then (in May 2008) accepted by the same legally qualified panel member. The appeals proceeded to a hearing on the merits, but by the decision of 15 January 2009 now the subject of challenge before us the First-tier Tribunal (Judge Poynter) decided that he was required to reconsider the issue whether the appeals were irredeemably late, because that issue went to his jurisdiction to decide the appeals. He held that the housing benefit decisions had been properly notified by means of the letters sent at the time of the decisions, that the time limits for appealing had therefore started to run at the date of notification, and that he therefore had no jurisdiction to consider the appeals on their merits. It is common ground that his decision should be treated as a decision striking out the appeals under rule 8(2)(a) of the Tribunal Procedure (Social Entitlement Chamber) Rules 2008 (“the SEC Rules”).

 

5. However, Judge Poynter said that he came to that conclusion with regret because, but for the time limit point, he would have allowed Miss LS’s appeals and found that Miss LS was not at the material times living with a non-dependant, so that no non-dependant deduction fell to be applied.

 

6. Miss LS sought to challenge the decision of 15 January 2009, and, taking the view that it was unclear whether the correct avenue of challenge was by way of appeal to the Upper Tribunal or by way of an application for judicial review in the Administrative Court, made applications for permission in both jurisdictions. The judicial review claim was transferred to the Upper Tribunal, which gave permission both to pursue a claim for judicial review and to appeal.

 

7. In view of the wider importance of the avenue of challenge issue a three judge panel was constituted.

 

8. At the conclusion of the hearing of the judicial review claim and appeal on 7 July 2010 we gave directions for further written submissions in relation to the correct avenue of challenge. In order to given an opportunity for detailed research we set a timetable under which the written submissions would be completed in the autumn, and they were duly provided in accordance with that timetable.

 

9. Our analysis and conclusions in relation to the correct avenue of challenge are set out under Issue 1 below. We conclude that the correct avenue of challenge was by way of appeal, and we therefore dismiss the claim for judicial review.

 

10. Our conclusions in relation to the substantive issues can be summarised as follows.

 

(1) If it had been for Judge Poynter to decide the point, we conclude unanimously that he would have been right to hold that the appeals were irredeemably late because:

 

(a) the time limits for appealing began to run at the dates when notification of the housing benefit decisions were sent to Miss LS: if (as to which we express no final view) the requirements of para. 9 of Schedule 9 to the Housing Benefit Regulations 2006 (S.I. 2006/213)(“the 2006 Regulations”) applied to the notifications: (i) those requirements were not complied with but (ii) Miss LS suffered no prejudice as a result of the defects in the notifications. (Issue 2)

 

(b) the coming into force, prior to Judge Poynter’s decision, of the SEC Rules made no difference (Issues 3 and 4).

 

(2) However, by a majority we conclude that Judge Poynter was wrong to hold that the legally qualified panel member’s decision in May 2008 admitting the appeals was one which she had no power to make and which he was therefore required to reconsider (Issue 5). Accordingly by a majority we set aside his decision striking out the appeals, and re-make that decision by substituting a decision that if (in re-making it) we have a discretion to reconsider the May decision because it was not final in nature, the appropriate course on the facts is not to reconsider it (Issue 6).

 

The facts

 

11. The following account of the facts is taken primarily from the findings of Judge Poynter, to which we have added some matters which emerge plainly from the documents before us and from what we were told at the hearing. 

 

12. References to page numbers are, save where otherwise stated, to the pages in file CH/1758/2009. Pages in file JR/2204/2009 are referred to as (JR p. ).  References to housing benefit should be taken as references also to council tax benefit – although the amounts were different, the decision-making and legislation are indistinguishable – and references to the 2006 Regulations, which was a consolidating instrument, should be taken to include references to earlier legislation where appropriate.

 

13. Miss LS has since 1999 lived in a 2 bedroom flat (“the flat”) as a tenant of the Council, together with her son. The tenancy was originally granted to Miss LS and Mr B, the son’s father, as they were at that time living together.

 

14. Mr B moved out in 2000 and according to Miss LS their relationship broke down irretrievably in July 2003. Miss LS was granted a new tenancy of the flat in her sole name on 28 February 2002. Miss LS has throughout her occupation of the flat been in receipt of income support. Between 16 August 1999 and 1 May 2005 she was in receipt of full housing benefit from the Council. (JR p.2.1-2.4)

 

15. On 13 May 2005 the Council received notification from the Department for Work and Pensions (“DWP”) that Mr B had claimed jobseeker’s allowance (“JSA”) with effect from 25 April 2005 and had given the flat as his address. (p.8)

 

16. On 27 May 2005 the Council made a decision superseding Miss LS’s award of housing benefit and reducing it from 2 May 2005 by the sum of £7.40 per week by way of a non-dependant deduction, on the ground that Mr B was living with Miss LS. Notification of that decision was sent to Miss LS on 27 May 2005. (pp.8-13)

 

17. Further supersession decisions were subsequently made on 18 November 2005, 30 January 2006 and 19 September 2006 altering the amount of the housing benefit award so as to apply a non-dependant deduction of £47.75 per week from 10 October 2005, £7.40 per week from 17 October 2005 and £47.75 per week from 31 July 2006. (pp.21-50)

 

18. In each case the superseding decision was made because the Council received notification from the DWP that Mr B had either ceased to be entitled or (as the case may be) had become entitled again to JSA. A deduction of £7.40 was the appropriate rate in respect of a non-dependant not in remunerative work, and a deduction of £47.75 was the appropriate rate in respect of a non-dependant in remunerative work. The Council did not, in respect of the periods when Mr B was not in receipt of JSA, apply any of the rates of deduction, lower than £47.75 (but higher than £7.40) per week, which are specified by the 2006 Regulations in cases where “it is shown to the appropriate authority” that the non-dependant’s income is less than specified amounts, because the Council did not receive a reply from Miss LS to its inquiries as to the amount of Mr B’s income.

 

19. On 19 February 2007 an officer employed by the Council visited Miss LS at the flat, and according to the Council (p.5) “there was no indication that there is a resident non-dependant.”

 

20. On 23 November 2007 the Council’s housing department began proceedings against Miss LS for possession of the flat, on the ground of rent arrears. According to Miss LS these arrears had arisen because the amount of the housing benefit which had been applied by way of rent allowance had been reduced by the non-dependant deductions, and thus had not covered the full rent. It was as a result of those possession proceedings that Miss LS instructed her current solicitors (Messrs. Pierce Glynn). (JR p.2.6 – 2.7)

 

21. On 11 January 2008 Pierce Glynn wrote to the Council stating that Mr B had not lived at the flat since July 2003, and that Miss LS had merely permitted him to use the flat as his correspondence address. The letter asserted that until a possession proceedings hearing on 8 January 2008 Miss LS had understood that she was entitled to full housing benefit and that it was being paid. “Our client, who has very poor literacy skills, therefore did not pay much attention to the correspondence she received about her Housing Benefit claim. Those letters that she did read explaining the rate at which her Housing Benefit was being paid were too complicated for her to be able to understand and, in particular, she did not grasp at all the fact that from around June 2005 it appears that you have been applying a non-dependant deduction for [Mr B] ……” The letter went on to ask the Council to remove the non-dependant deduction from the date when it had first been applied. (pp. 63-5)

 

22. The letter of 11 January 2008 enclosed a letter from Mr B stating that he had not lived at the flat since 2003. (p.61)

 

23. Judge Poynter said, and it is not disputed, that the letter of 11 January 2008 was “the earliest document that is capable of being treated as an appeal” against the housing benefit decisions, and he treated it as being an appeal. (p.204) 

 

24. On 21 January 2008 the Council in effect made a further superseding decision removing the non-dependant deduction, and thus awarding full housing benefit to Miss LS, with effect from 19 February 2007, the date of the Council’s home visit. (pp.66-73). It is for this reason that the appeals only concern the period down to 19 February 2007. However, the Council refused to remove the non-dependant deduction from any earlier date, as it considered that no error had been made. This decision resulted in arrears of housing benefit totalling £2292 for the period 19 February 2007 to 21 January 2008 being awarded to Miss LS.

 

25. At that time, regulations 18 and 19 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, S.I. 2001/1002 (“the 2001 Regulations”) provided:

 

“18.—(1) Subject to the following paragraphs and regulation 19, an appeal which lies from a relevant decision must be brought within one month of the date of notification of that decision.

(2) For the purposes of calculating the period in paragraph (1), where a written statement is requested under regulation 10, no account shall be taken of any period beginning with the day on which the relevant authority received the request for a statement and ending with the day on which that statement was provided to that person.

(3) Where the relevant authority—

(a)  revises a decision under paragraph 3 of Schedule 7 to the Act;

(b) following an application for a revision under regulation 4, does not revise; or

(c) supersedes a decision under paragraph 4 of Schedule 7 to the Act,

subject to paragraph (2), the period of one month shall begin to run from the date of notification of that revision or supersession, or following an application for a revision, the date the authority issues a notice that it is not revising the decision.

(4) Where a dispute arises as to whether an appeal was brought within the time limit specified in this regulation, the dispute shall be referred to, and be determined by, a legally qualified panel member.

(5) The time limit specified in this regulation for bringing an appeal may be extended in accordance with regulation 19.

19.—(1) Subject to the following paragraphs, the time limit referred to in regulation 18 may be extended only if the conditions set out in this regulation are satisfied.

(2) No appeal shall be brought more than one year after the expiration of the last day for appealing under regulation 18.

(3) An application for an extension of time within which an appeal may be brought (“an application”) shall be determined by a legally qualified panel member.

(4) An application 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 (7).

……………………………………………..

(10) An application under this regulation which has been refused may not be renewed.

(11) The panel member who determines an application shall record a summary of his decision in such written form as has been approved by the President.

(12) As soon as practicable after the decision is made, a copy of the decision shall be sent or given to the principal parties to the proceedings.”

 

26. “Legally qualified panel member” was the statutory term for a tribunal chairman. It can be seen that rule 18(1) provided a time limit of one month, which could be extended under regulation 19(1) but not by more than a year due to the effect of regulation 19(2) which imposed what is generally known as an “absolute time limit”.

 

27. By letter dated 4 March 2008 Pierce Glynn wrote to the Council, appealing against the housing benefit decisions made between 27 May 2005 and 19 September 2006. The letter contended that the appeals were not out of time because Miss LS had not been given proper notification of the decisions, and the time for appealing had therefore not begun to run. The contention, put shortly, was that the notifications of the decisions, which were in standard form, did not comply with the statutory requirements relating to such notifications in that they did not specify the “category” of the non-dependant deduction. (pp76- 77A).

 

28. On 7 March 2008 the Council replied to Pierce Glynn, asserting that the notifications did satisfy the statutory requirements because they “state the amount, the non-dependant’s name and the reason and appeal rights.” (p.78)

 

29. On 17 March 2008 the Council wrote again to Pierce Glynn, acknowledging receipt of the appeal, and stating that they were obliged to submit the appeal to the Tribunals Service. “I must inform you that I have recommended that your appeal is not heard as I consider that it was made outside the legal time limit ….” (p.80)

 

30. On 25 March 2008 the Tribunals Service received from the Council a completed “Notification of HB/CTB appeal form”. In the box for details of the decision sought to be appealed it mentioned only the decision notified on 27 May 2005. Boxes were ticked indicating that the appeal was not duly made because late. (This form is not in the papers, but we have examined it in the Tribunal file).

 

31. With the form was enclosed the Council’s initial submission in the appeal (pp.177-182), together with 34 pages of scheduled documentation. The submission also stated that the date of the decision under appeal was 27 May 2005, although details of the later decisions were set out in the body of the submission, and relevant documentation relating to those decisions was among that enclosed with it.

 

32. The section of that submission headed “Decision Makers Submission” stated as follows in relation to the validity of the notifications/time limit question:

 

“The grounds for the appeal are that the appellant states that at no time was [Mr B] resident at her address for the period in question (from May 2005 to February 2007.

 

In addition, the appeal is based on the view that the decision notices sent by the authority were flawed, and as such those notices are invalid. If the authority (or indeed the tribunal) was to accept that the appellant was not correctly notified of the authority’s actions, there would perhaps be grounds to set those decisions aside.

 

The authority does not accept that the appellant was not properly notified of the actions that the authority had taken. The notifications sent to the appellant on 27 May 2005, 18 November 2005, 30 January 2006 and 19 September 2006 clearly state that the appellant’s award had been reduced because [Mr B] was living with her. This is not an issue of whether the authority had miscalculated [Mr B’s] income, and the notification letters to the benefit claimant were vague, misleading or prejudicial.

 

The authority contends that the appellant was clearly made aware of the authority’s intentions and actions, and it is reasonable to form the view that if [Mr B] was in fact not resident during the time of those enquiries, and the decisions resulting from the lack of any response to those inquiries that [Miss LS] would have informed the authority.

 

…………………………………………………………………………….

 

There is therefore nothing from May 2005 to January 2008 to suggest that the appellant disputed the decisions in question.

 

The authority respectfully submits that the absolute time limit of 13 months has lapsed since the decision of 27 May 2005 that [Mr B] was resident and the appellant’s non-dependant, and that the appeal of 5 March 2008 is not duly made.”

 

33. Although that submission noted Miss LS’s solicitors’ contention that the notifications of the decisions were flawed, it did so in a way which suggested that the result being contended for on behalf of Miss LS was that the decisions themselves could be “set aside.” The submission did not in terms state that the result being contended for on behalf of Miss LS was that the time limit for appealing had not begun to run. (Pierce Glynn’s letter of 4 March 2008, which at that time was the only letter in which that contention had been made, was, however, amongst the scheduled documents, and was described as “letter of appeal”). Furthermore, the section of the submission headed “relevant legislation” set out only regulations 18 and 19 of the 2001 Regulations, which relate to the time limits for appealing. The provisions in regulation 74 of the 2006 Regulations (relating to non-dependant deductions) and Schedule 9 to those Regulations (relating to the contents of decision notifications), which had been relied upon in the letter of 4 March 2008, were not set out or referred to.

 

34. On 25 March 2008 a Tribunals Service clerk sent a Memorandum for attention of “the District Chairman” as follows: “The attached appeal has been submitted as late because it was lodged on 5 March 2008 against a decision which was issued on 27 May 2005. Please consider the appeal and record your decision on the attached sheet.” (p. *). The “attached appeal” referred to was the Council’s written submission, and the documents scheduled to that submission.

 

35. That “attached sheet” referred to by the Clerk was a standard form Tribunals Service document, headed “Interlocutory Determination”, designed for use in relation to appeals which were or might be out of time, which contained a number of options for the chairman to choose from, as follows:

 

“A. ( ) The appeal is not out of time.

 

OR

 

B. ( ) I extend the time for appealing.

 

OR

 

C. ( ) I refuse to extend the time for appealing because the appeal was brought more than one year after the expiration of the last day for appealing in time.

OR

 

D. ( ) I refuse to extend the time for appealing for the following reasons:

 

(i) I have considered whether there are reasonable prospects that the appeal will be successful but find that

 

----------------------------------------------------------------------------------------------

 

(ii) I have considered whether the special circumstances specified in the Regulation or some other wholly exceptional circumstances exist but find that

 

---------------------------------------------------------------------------------------------“

 

36. On 31 March 2008 Pierce Glynn received from the Council a copy of the Council’s submission to the Tribunal. The letter enclosing it was dated 17 March. (JR  p.3.38)

 

37. On 3 April 2008 the chairman, Mrs Griew, simply ticked option C on the determination form. (p.113). We refer to that decision of 3 April 2008 as “the April decision.”

 

38. On 7 April 2008 the Clerk wrote to Miss LS as follows:

 

“The time limit for appealing is one month from the date the decision is given or posted to you. Your decision was sent on 27 May 2005 and your appeal was received on 5 March 2008. This means your appeal is more than one year late.

 

By law, an appeal cannot be accepted if it is more than one year late. Your appeal has therefore been struck out. This means no further action will be taken on your appeal.” (p.116)

 

39. On 7 April 2008 the Clerk also wrote to Pierce Glynn and to the Council, stating that the appeal had been struck out. (p.117; JR p. 3.45)

 

40. On 25 April 2008 Pierce Glynn wrote to the Tribunals Service a letter headed “Re: Judicial Review – Letter Before Claim.” The letter recounted the history and said that Miss LS proposed to bring proceedings for judicial review to challenge the decision of 3 April, on the basis that there was no remedy by way of appeal. The basis of the proposed judicial review was stated to be as follows:

 

“1. The interlocutory chairman has failed to consider and determine whether the written notifications of the decisions being appealed against complied with regulation 90 and schedule 9 of the Housing Benefit Regulations 2006 and so whether or not the time limit for appealing those decisions had begun to run.

 

2. Alternatively, if this issue was considered and determined by the interlocutory chairman she:

 

(a) acted irrationally as the decisions of notifications clearly do not comply with regulation 90 and schedule 9 of the regulations and where there has been no or no effective notification of a decision the time limit for appealing does not start to run;

 

(b) she failed to give any or any sufficient reasons for her decision.” (pp.119-121).

 

41. On 29 April 2008 that letter was sent by the Clerk to Mrs Griew under cover of a printed form of Memorandum, on which the Clerk stated: “Please advise how we should respond to this letter. Are you able to change the decision of the late appeal?” (p.123)

 

42. This Memorandum was headed “Interlocutory Referral”, and the bottom half of the Memorandum contained a blank section headed “Record of Decision”, and then the words “I direct that .”

 

43. On 14 May 2008 Mrs Griew wrote in the blank space the words “late appeal to be accepted.” (p.123). We refer to that decision of 14 May 2008 as “the May decision.”

 

44. On 19 May 2008 the Clerk wrote to Pierce Glynn enclosing a copy of Mrs Griew’s determination. The covering letter included the following:

 

“The time limit for making an appeal is one month from the date the decision is posted. The appeal was made after this time.

 

I enclose a copy of his decision.

 

However, a chairman has decided that there were special reasons why the appeal was late, so he has extended the time limit and the appeal can now go ahead.”

 

45. That letter further stated that the Council had been asked to prepare documents for the tribunal. (p.124)

 

46. On 20 May 2008, seemingly before receipt of that letter, Pierce Glynn had written to the Office of the Social Security Commissioners stating that Miss LS had been advised by counsel that an appeal to the Commissioners against the April decision might be possible, and that they were submitting an application for leave in order to protect the position, should that be the correct route. (p.187)

 

47. On 22 May 2008 Pierce Glynn wrote to the Council stating that it had now been decided that the appeal was not out of time and continuing:

 

“In light of this we no longer intend to proceed with the judicial review against the Appeals Service …….” (p.125)

 

48. On 22 May Pierce Glynn also wrote to the Commissioners’ Office stating that they no longer intended to proceed with an appeal to the Commissioner because it had now been decided that the appeal was not out of time. (JR p.3.60)

 

49. On 4 June it was ordered by consent in the County Court that the possession proceedings be stayed “pending the determination of [Miss LS’s] housing benefit appeal.” (JR p.3.61B)

 

50. On 13 June 2008 the Tribunals Service received from the Council a further “Notification of HB/CTB appeal” form, signed on behalf of the Council on 9 June 2008. On this form the Council’s representative ticked the box opposite the words “the appeal is duly made”. A box was also ticked stating that a TAS 1 Enquiry Form had been issued to Miss LS on 9 June 2008. (Again, we have obtained sight of this from the Tribunal’s file). Mr Rufus told us that that submission was prepared by an organisation employed by the Council to prepare appeal submissions.

 

51. With that notification the Council also sent a revised submission in the appeal. The section of that submission headed “the Decision Maker’s Submission” was in precisely the same terms as the equivalent section in the previous submission, save that the last paragraph (which had contained the contention that the 13 month absolute time limit had passed) was replaced with the following:

 

“The Tribunal is asked to decide whether the authority is correct in applying the maximum and minimum non-dependant deduction to [Miss LS’s] weekly Housing and Council Tax Benefit for the period 10 October 2005 to 31 July 2006 whilst [Mr B] was resident at her address and partly working  and partly in receipt of Income Support/ Jobseeker’s Allowance.” (pp.1-7)

 

52. A copy of the Council’s submission was sent by the Council to the Pierce Glynn, together with the TAS 1 Enquiry Form, requiring completion by her. (JR p.3.63). By letter dated 23 June 2008 to the Appeals Service Pierce Glynn returned the completed Enquiry Form, stating that an oral hearing was required. (JR p.3.64)

 

53. On 26 June 2008 the Tribunals Service sent notifications to the parties that the appeal had been listed for 5 August 2008. (JR p.3.69)

 

54. By letter dated 2 July 2008 Pierce Glynn sent to the Tribunals Service a written submission in the appeal, together with documentation relied upon. (pp. 126-143) The submission included the following, under the heading “note on the local authority’s submission”:

 

“(a) The defective notices

The decision-maker’s submission refers to the issue of whether or not the decision notices issued on 27 May 2005, 18 November 2005, 30 January 2006 and 19 September 2006 were defective. It has been Miss LS’s argument that those notices failed to comply with the notification requirements of reg. 90 and Schedule 9, part 2 paragraph 9(c) of the HB Regs, and that in consequence the decisions were not effectively communicated to Miss LS, so that the time within which an appeal must be brought did not start to run. The decision-maker has disputed this contention, maintaining that the decisions were effective.

 

It is understood that this issue has been decided in favour of Miss LS by the decision of the Chair of the Tribunal [?] dated [?] to admit this appeal for hearing by the tribunal, since that decision accepts Miss LS’s submission that time for appealing had not started to run. If that is not the case, and the issue is still before the tribunal, then it is requested that Miss LS’s representatives are informed of this prior to the hearing, so that they have an opportunity to prepare submissions on it.”

 

(b) matters not subject of the appeal

The submission made by the local authority states, at Section 3 and Section 7, that the appeal is brought on the basis that decision notices sent by the local authority were invalid. That is incorrect. The letter of appeal …… specifically states that the appeal is not brought on the basis that the notices were invalid. Rather it is the appellant’s case that the decision notices failed to comply with the notification conditions of Schedule 3, and that in consequence the notices were ineffective for the purposes of creating time limits for appeal.”

 

55. On 5 August 2008 a hearing took place before Mr Russen, at which Miss LS was present and represented by Pierce Glynn, and the Council was represented by Mr Rufus. Miss LS and her advisers were certainly anticipating that the merits of the appeal would be dealt with, as the Record of Proceedings records that Mr B was also present. However, Mr Rufus raised the question of the absolute time limit, notwithstanding that it had been apparently conceded in the Council’s submission that the appeal was within time.  The Record of Proceedings records the following:

 

“No evidence given. The whole of the hearing taken up with a discussion as to whether the appeal could be an appeal against the decision of 27 May 2005 (in view of 13 month maximum period provided for by Regs. 18 and 19 of the HB Decisions Regs.). I say that the Interloc. Decision cannot be “unscrambled” by me. But we ran out of time. Adjourned 9/10/08 at 10.00 Fox Court.” (p.145)

 

56. On that day a typed Decision Notice was issued, signed by Mr Russen, confirming the adjournment to 9 October, and including the following Directions to the parties:

“(a) If the Respondent seeks to challenge (whether by judicial review or otherwise) the Interlocutory Decision made on 14 May 2008 to admit this appeal as a late appeal against a decision made on 27 May 2005, then it shall forthwith notify both the Appellant and the Tribunals Service of that fact.

 

(b) If the Appellant receives notification from the Respondent that it is seeking to challenge the Interlocutory Decision made on 14 May 2005, then she should write to the Tribunals Service stating whether or not she consents to the hearing currently fixed for 9 October 2008 being adjourned pending the determination of that challenge.” (p.146)

 

57. On 11 August 2008 the Tribunals Service received from the Council a letter dated 3 March 2008 [that date was clearly an error; according to the Council’s subsequent letter dated 9 September 2008 it was sent on 7 August 2008], stating as follows:

 

“I am writing with regards to the notification letter of the Appeals Service dated 19 May 2008 ….. accepting [Miss LS’s] appeal that was received outside of the absolute time limit as being accepted due to the chairman stating he believes that there were special reasons why the appeal was late.

 

The authority believes that the Tribunal Chairman (TC) has erred in law, in allowing the appellant’s appeal that was received on 5 March 2008 against the decision that were notified on  ……….. The Authority is somewhat confused by this decision.

 

The authority now seeks leave to appeal to the Social Security Commissioners ……. on the grounds that the Tribunal’s decision of 19 May 2008 was erroneous in point of law.”

 

58. The letter then set out the Council’s reasons for contending that the time limit had started to run when the notifications were given, and concluded:

 

“The Authority asserts that should the decision of the Tribunal of 19 May 2008 not be set aside, then the Authority wishes to seek leave from the District chair to appeal to the Social Security Commissioner ………………..”

 

59. No copy of that letter of 7 August 2008 appears in any of the documents in evidence in the proceedings before us. We have again obtained sight of it by examining the Tribunals Service original file. It therefore appears that the Council did not send a copy of it to Pierce Glynn, as is confirmed by what Pierce Glynn said at p.169.

 

60. On receipt of that letter on 11 August a Tribunal Clerk referred it to a District Chairman, asking for directions. On 20 August Mr Jeremy Bennett, a District Chairman, directed as follows:

 

“Chairman retired. She is unable to reconsider decision. Appeal admitted. Submission should be prepared dealing with appeal and this preliminary point. Tribunal hearing can review decision to admit. List before DC or Senior DC.”

 

61. The first that any of the parties (other than the Tribunal itself) heard of that Direction is when they received our Direction, shortly after the hearing before us on 7 July 2010. Again, we have become aware of it by examining the original Tribunal file. It appears, from the terms of the Council’s letter dated 9 September 2008 referred to below, that no action was taken by the Clerk as a result of that Direction of 20 August. It certainly does not appear to have been issued to the parties. It would, however, appear to explain why the Council heard nothing from the Tribunals Service in relation to its application for permission to appeal to a Commissioner.

 

62. On 2 September 2008 Pierce Glynn wrote to the Council. The letter referred to the Directions which had been made on 5 August and continued:

 

“We would be obliged if you would advise us of any course of action decided upon by your Authority in this matter. We take it that, since the ultimate deadline for any judicial review proceedings expired on 14 August 2008 without your having notified us of any such challenge, your Authority has decided not to seek to challenge the interlocutory decision. Please confirm whether or not this is the case.” (JR p.3.71)

 

63. On 9 September 2008 the Council replied as follows:

 

“The Authority wrote to the Tribunal on 7 August 2008, in regards to the notification letter of the Appeals Service dated 19 May 2008, which accepted that [Miss LS’s] appeal was duly made on the grounds that the chair agreed to allow an extension of time, as he believes that there were special reasons why the appeal was late.

 

The Authority believes that the Tribunal Chairman (TC) has erred in law, in allowing the appellant’s appeal that was received on 5 March 2008 against the decision that was last on 19 September 2006. The authority wrote requesting leave to appeal to the Social Security Commissioners ……………………..

 

The Authority has not received a response to date in respect of the request. However, it has received confirmation of a hearing scheduled for 9 October 2008 at 10.00 am. The Authority has no further intentions of challenging the issues on the grounds of “out of absolute time” to appeal, due to time factor for your client.

 

The Authority maintains that it has a duty to assess the claim on the evidence available and on the balance of probabilities. The Authority will be asking the Tribunal based on the evidence held and in particular in the absence of evidence from your client to refuse your client’s appeal and accept that of the Authority’s being correct.” (p.191)

 

64. On 9 October 2008 the first hearing before Mr Poynter (as he then was) took place. Miss LS was present in person, and was represented by a representative from Pierce Glynn. The Council was also represented. It appears from the Record of Proceedings that at the outset of the hearing Mr Poynter raised the issue of jurisdiction, as to which the parties’ representatives addressed him briefly. Mr Poynter ruled that he would assume without deciding that the Tribunal had jurisdiction, and that if his decision would otherwise be to allow the appeal he would invite further written submissions (i.e. on the issue of jurisdiction) and, if either party requested, hold a further oral hearing. (pp.148-50)

 

65. He then heard evidence (from Miss LS and Mr B) and submissions directed to the merits of the appeal. The Tribunal’s Decision Notice, issued on that day, adjourning the appeal includes the following:

 

“If it should prove that I have jurisdiction in this appeal then I will allow it because I accept the oral evidence given by [Miss LS] and [Mr B] this morning.

 

However, my provisional view is that I may not have jurisdiction and that if the decision made by Deputy District Chairman Mrs Griew to admit the appeal is wrong, then the law requires me not to follow it because I cannot rely on a decision of another chairman that is wrong in law to confer on me a jurisdiction that has not been granted by Parliament any more than I could lawfully assume jurisdiction on the basis of an incorrect decision that I myself made. For that reason, I do not – again provisionally – share the view that appears to have commended itself to Deputy District Chairman Mr Russen, namely that if Mrs Griew’s decision is to be challenged it could only be done by judicial review.” (p.156)

 

66. The Decision Notice gave directions for the making of further submissions in relation to the jurisdiction issue.

 

67. On 3 November 2008 relevant provisions of the Tribunals, Courts and Enforcement Act 2007 came into force. Under those provisions the Transfer of Tribunal Functions Order 2008, SI 2008 No. 2833 (“the 2008 Transfer Order”) was made so that, with effect from 3 November 2008, the functions of appeal tribunals were transferred to the First-tier Tribunal. Those functions were allocated to the Social Entitlement Chamber. Relevant functions of the Social Security Commissioners were transferred by the 2008 Transfer Order to the Upper Tribunal. Those functions were allocated to the Administrative Appeals Chamber. The chairmen of appeal tribunals and Commissioners became judges.

 

68. On 12 November 2008 Pierce Glynn sent to the Tribunals Service a lengthy letter containing submissions in relation to the jurisdiction issue. (pp.165-171)

 

69. On 15 January 2009, neither party having asked for a further oral hearing in relation to the jurisdiction issue, Judge Poynter considered the matter on the papers and decided that the Tribunal was without jurisdiction in the appeals. The essence of his reasoning is encapsulated in the Decision Notice which was issued on that date:

 

“I decline jurisdiction with considerable regret because, if I had had jurisdiction, I would have allowed the appeal and because I accept much of what [Miss LS’s] solicitor says about the inconvenience and potential prejudice if parties cannot rely upon the Tribunal respecting earlier interlocutory decisions.

 

Unfortunately, however, I have been unable to overcome the fact that these appeals were out of time and the decision of the Deputy Chairman to admit them was plainly wrong, in the sense that it was a decision she had no power to make. I wish to emphasise that point. If the appeals had been late but within the 13 month period, I would have considered myself bound by the decision to admit them even if I would not myself have exercised my discretion in the same way. Similarly, if – again within the 13 month time limit, the Deputy District Chairman had refused to admit the appeals in circumstances where I myself would have admitted them, I would again have considered myself bound by her decision and unable to overrule her.

 

The problem in this appeal is that the error by the Deputy District Chairman goes to my jurisdiction. Parliament has said that no appeal is to be brought in the circumstances of this case. The tribunal is a creature of statute and has no jurisdiction other than that granted by Parliament (expressly or by necessary implication). I have an independent responsibility to determine the extent of my own jurisdiction. In particular, I may not confer on myself a jurisdiction that has not been granted by Parliament. I may not do so by consent of the parties or in any other way. I therefore cannot assume jurisdiction in this case merely because one of my colleagues has previously made a determination purporting to admit the appeal when she had no power to make such a determination.” (p.196)

 

70. In essence, therefore, Judge Poynter’s decision was that (i) Miss LS’s contention that the time for appealing had never started to run because the decisions had not been properly notified was clearly wrong, (ii) the inevitable conclusion was that the appeals were plainly out of time; (iii) that conclusion was one which went to the tribunal’s jurisdiction and Mrs Griew had not had power to make the May decision, and (iv) he was therefore obliged, notwithstanding the May decision admitting the appeals, to decline jurisdiction.

 

71. In the Decision Notice Judge Poynter invited Miss LS to apply for a Statement of Reasons for his decision, and said that he would grant permission to appeal to the Upper Tribunal if requested to do so.

 

72. On 15 April 2009 Miss LS issued proceedings in the Administrative Court, seeking permission to proceed with a claim for judicial review of Judge Poynter’s decision, in order to protect the position if there were held to be no right of appeal to the Upper Tribunal against that decision. The Tribunals Service was the Respondent, and the Council was named as interested party. The claim included an application for an order transferring those proceedings to the Upper Tribunal. (p.239)

 

73. On 19 May 2009 Judge Poynter’s Statement of Reasons for his decision, extending to 27 pages and 58 paragraphs, was issued. (pp.198-224). In it, he pointed out that his decision declining jurisdiction ought to have been in the form of a decision striking out the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685). It is common ground that Judge Poynter’s decision can be treated in both cases as if it were a decision striking out Miss LS’s appeals from the Council’s decisions. We shall therefore refer to it as “Judge Poynter’s strike-out decision”

 

74. The Statement of Reasons states that the appeal had been against one decision in respect of housing benefit, made on 27 May 2005, and one in respect of council tax benefit made on the same day. However, we consider that it is clear that the three later housing benefit decisions and the equivalent decisions in respect of council tax benefit were also under appeal, since the Council’s submission to the Tribunal proceeded on that footing.

 

75. On 9 June 2009 Judge Poynter granted permission to appeal to the Upper Tribunal against his decision of 15 January 2009 (p.228)

 

76. On 24 July 2009 Mr James Goudie QC, sitting as a Deputy Judge of the Administrative Court, ordered that the judicial review claim be transferred to the Upper Tribunal. (p.281)

 

77. On 9 September 2009 Upper Tribunal Judge Rowland made case management directions in both the judicial review claim and the appeal. These included directions that the Secretary of State be added as the Second Respondent to the appeal, that the First-tier Tribunal be substituted for the Tribunals Service as the Respondent in the judicial review proceedings and that permission to bring the judicial review claim be granted. (pp.282-3)

 

 

The issues

 

78. The submissions of the parties give rise to a number of distinct issues.  It is convenient for us to take them in the following order, although this is not the order in which they were advanced.

 

Issue 1: Is the proper avenue for challenging Judge Poynter’s decision an appeal or an application for judicial review?

 

Issue 2: Were the appeals to the appeal tribunal within time, on the basis of the procedural regulations applicable at the time of the May decision? (If not, Issues 3 and 4 then fall to be considered).

 

Issue 3: Did the coming into force of the SEC Rules render the appeals timeous?

 

Issue 4: Did the SEC Rules entitle Judge Poynter to extend the time for appealing  so as to validate the appeals?

 

(If the answers to each of Issues 2, 3 and 4 is “no”, Issue 5 then falls to be considered)

 

Issue 5: Was Judge Poynter right to hold that Mrs Griew had no power to make the May decision, and if not, should we set aside and re-make his decision to strike out?

 

Issue 6: When re-making Judge Poynter’s decision is it either possible or appropriate as a matter of discretion to reconsider the May decision?

 

 

Issue 1: Is the proper avenue for challenging Judge Poynter’s decision an appeal or an application for judicial review?

 

79. Miss LS argues that an application for judicial review is the appropriate way to challenge Judge Poynter’s decision.  The Secretary of State and the Council submit that an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 is the appropriate way, although the Council has not made detailed submissions on the point. 

 

80. Miss LS has been granted both permission to appeal and permission to apply for judicial review.  The question whether Judge Poynter’s decision was erroneous in point of law can be determined equally well in either set of proceedings.  However, there are important practical differences between the procedures that make it necessary for us to decide which is appropriate in this case.  The issue is also one upon which potential litigants should be given some guidance.

 

81. Most importantly, the Upper Tribunal’s power to substitute its own decision for a decision of the First-tier Tribunal that has been found to be erroneous on a point of law is far more limited in judicial review proceedings than its power to re-make  the First-tier Tribunal’s decision in appellate proceedings (compare section 17 of the 2007 Act with section 12).  Also of importance is the fact that there is a power to award costs against an unsuccessful party in judicial review proceedings but no power to award costs in an appeal from the Social Entitlement Chamber of the First-tier Tribunal (see rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (S.I. 2008/2698)).  There are other distinctions between the procedures.  Judicial review proceedings are more cumbersome than appellate procedures because they involve the tribunal as a party, even though the tribunal rarely takes any active part.  Also, judicial review proceedings do not give the First-tier Tribunal an opportunity to review its decision under section 9 of the 2007 Act.  Finally, the statutory provisions governing the grant of remedies in the event of a successful appeal under the 2007 Act differ from the combination of statutory provisions and common law principles which govern the grant of remedies on an application for judicial review – whether in the High Court in England and Wales, in the High Court in Northern Ireland, in the Court of Session by petition to its supervisory jurisdiction, or in the Upper Tribunal.

 

82. At first sight, there appears clearly to be a right of appeal to the Upper Tribunal from the decision given in this case.  Section 11 of the 2007 Act provides:

 

  “(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

  (2) Any party to a case has a right of appeal, subject to subsection (8).

  (3) That right may be exercised only with permission (or, in Northern Ireland, leave).  …

(5) For the purposes of subsection (1), an “excluded decision” is—

(a) any decision of the First-tier Tribunal on an appeal made in exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1)(a) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews),

(b) any decision of the First-tier Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (appeals against national security certificate),

(c) any decision of the First-tier Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (appeals against national security certificate),

(d) a decision of the Tirst-tier Tribunal under section 9 –

(i) to review, or not to review, an earlier decision of the tribunal,

(ii)  to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,

(iii)  to set aside an earlier decision of the tribunal, or

(iv)  to refer, or not to refer, a matter to the Upper Tribunal,

 (e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under  this section have been begun, or

 (f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.

  (6) A description may be specified under subsection (5)(f) only if—

(a) in the case of a decision of that description, there is a right to appeal to a court, the Upper Tribunal or any other tribunal from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or

(b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description.

  …

(8) The Lord Chancellor may by order make provision for a person to be treated as being, or to be treated as not being, a party to a case for the purposes of subsection (2).”

 

83. It is common ground that Judge Poynter’s decision is not an “excluded decision” for the purposes of that provision and therefore, read literally, paragraphs (1) and (2) appear to confer a right of appeal.

 

84. However, Mr Buley argues that Judge Poynter’s decision was not a decision for the purpose of section 11.  He relies upon Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749: [2007] 1 WLR 3033 (also reported as R(IS) 6/07). Morina was concerned with section 14(1) of the Social Security Act 1998. This provided:

 

 “(1)  Subject to the provisions of this section, an appeal lies to a Commissioner from any decision of an appeal tribunal under section 12 or 13 above on the ground that the decision of the tribunal was erroneous in point of law”. 

 

85. In Morina, the Court of Appeal held that a decision of an appeal tribunal to refuse to admit an appeal on the ground of a lack of jurisdiction or to strike out an appeal would not constitute a “decision” within the meaning of that word for the purposes of section 14.  In doing so, it referred to three other decisions of the Court of Appeal, all made in the context of social security cases.  The first was Bland v Chief Supplementary Benefit Officer [1983] 1 W.L.R. 262 (also reported as R(SB) 12/83), in which the Court held that no appeal lay to it against a decision of a Commissioner refusing leave to appeal from a decision of an appeal tribunal under a predecessor of section 14. The second was White v Chief Adjudication Officer [1986] 2 All ER 905 (also reported as an appendix to R(S) 8/85), in which it was said that a refusal of an extension of time in which to apply for leave to appeal was even less of a “decision” than a refusal of leave to appeal. The third was Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03), where Laws LJ identified “a plain distinction between a decision (that is, a decision upon the actual question whether a claimant is entitled to a particular benefit or not) and what may conveniently be called a determination (that is, a determination of any matter along the way leading to a decision, including a determination of a procedural issue such as an application for an adjournment)”.

 

86. It is important, however, to note what Sir Anthony Clarke MR said in Morina at [50].

 

“I add a few words only to emphasise the point made by Arden LJ that the question is entirely one of statutory construction of a particular statutory provision, namely section 14 of the Social Security Act 1998.  In some contexts the word ‘decision’ might well include an interlocutory decision such as a refusal of an adjournment or an order to disclose documents.  All depends on upon the particular circumstances.  In the particular context of section 14 of the 1998 Act, I agree that neither of the decisions complained of was appealable.”

 

87. Section 11 of the 2007 Act is, of course, not confined to social security cases.  Over the last two years there has been a number of cases in which the Upper Tribunal has drawn Morina to the attention of parties engaged in appeals against interlocutory decisions of the Health, Education and Social Care Chamber of the First-tier Tribunal.  The parties’ legal representatives have generally been bemused by the suggestion that the proceedings should have been brought by way of judicial review and no respondent has opposed the appeal on that ground.  Consequently, the Upper Tribunal has accepted jurisdiction, albeit with varying degrees of certainty.  In the Tax and Chancery Chamber of the Upper Tribunal it has similarly been assumed that there is jurisdiction to hear interlocutory appeals, without the point even being mentioned (see Connect Global Ltd v HMRC [2010] UKUT 372 (TCC) and Capital Air Services Ltd v HMRC [2010] UKUT 373 (TCC)).

 

88. Moreover, s 11 of TCEA 2007 must be read with s 13, which concerns appeals from decisions of the Upper Tribunal. Section 13 (so far as directly material) is in these terms:

 

“(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal, subject to subsection (14).

(3) That right may be exercised only with permission (or, in Northern Ireland, leave).

…

(8) For the purposes of subsection (1), an “excluded decision” is –

  (a) any decision of the Upper Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998  (appeals against national security certificate),

  (b) any decision of the Upper Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (appeals against national security certificate),

  (c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),

  (d) a decision of the Upper Tribunal under section 10 –

(i)  to review, or not to review, an earlier decision of the tribunal,

(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or

(iii) to set aside an earlier decision of the tribunal,

  (e) a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under this section have been begun), or

  (f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor.

(9) a description may be specified under subsection (8)(f) only if –

  (a) in the case of a decision of that description, there is a right to appeal to a court from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or

  (b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description.

(14) The Lord Chancellor may by order make provision for a person to be

treated as being, or to be treated as not being, a party to a case for the

purposes of subsection (2).”

 

89. It would be very surprising indeed if the word “decision” in s 11(1) had a different meaning from its meaning in s 13(1), and even more surprising if it had a different meaning in cases concerning different subject-matter.

 

90. We are satisfied that the word “decision” in both s 11(1) and s 13(1) must be read broadly. That is the natural reading of the word. This is particularly so where the structure of the section is to give a right of appeal generally, but then to carve out particular types of “excluded decision” in relation to which there is to be no right of appeal. It is not a question of granting a right of appeal in relation to particular types of pronouncement which are then classified as “decisions”, but rather taking the general run of decisions, and identifying particular types of excluded decision so that the right of appeal applies to all that are not excluded.

 

91. This must, as it seems to us, necessarily be the case when one examines what Parliament has said about excluded decisions in s 11 and s 13. In s 11(5)(d) and s 13(8)(d) all seven of the types of “decision” mentioned are matters falling within Laws LJ’s description of “determinations”, matters “along the way leading to a decision [in a social security case, upon the actual question whether a claimant is entitled to a particular benefit or not]” Plainly Parliament did not intend to adopt the distinction drawn in Carpenter. And in each case the “decision” identified in paragraph (e) is something which has ceased to have effect: in so far as it exists at all it is far removed from “a decision upon the actual question whether a claimant is entitled to a particular benefit or not”.

 

92. A further and very powerful pointer to Parliament’s intention is found in s 13. If it had been Parliament’s intention that the word “decision” in s 13(1) should be interpreted in accordance with Bland, there would have been no need for s 13(8)(c). The words used by Parliament in s 13(8)(c) demonstrate a deliberate intention not to rely upon the courts to infer that the word “decision” has a limited meaning. Instead, in order to achieve a similar outcome to that achieved by Bland Parliament has expressly used the word “decision” in a broad sense, a sense which is broad enough to encompass decisions on permission or leave to appeal. As regards appeals from the Upper Tribunal, Parliament has deliberately categorised decisions on permission or leave to appeal as “excluded decisions”.

 

93. By parity of reasoning decisions by the First-tier Tribunal on permission or grant of leave to appeal fall within s 11(1). They have not been categorised as excluded decisions for the purposes of s 11, and the clear inference is that this is a deliberate decision by Parliament. As Ms Broadfoot points out, it was open to the Lord Chancellor under section 11(5)(f) and (6)(b) to make an order preserving the different approach in social security cases, but he did not do so. It seems to us that there were good reasons for him not making such an order, not the least of which is simplicity. 

 

94. Returning to the right of appeal against interlocutory decisions, it will be open to both the First-tier Tribunal and the Upper Tribunal to refuse permission to bring an interlocutory appeal on the ground that it is premature.  The circumstances of the individual case must be considered.  It is one thing to grant permission for an interlocutory appeal in a case where the final hearing may last for a fortnight.  It is another to do so where the final hearing is likely to last about an hour, as is often the case in social security appeals.  Moreover, as was suggested in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) at [19], where case-management decisions are being challenged, the First-tier Tribunal can treat an application for permission to appeal as an application for a new direction if it is satisfied that the challenged direction is not appropriate. 

 

95. We do not expect that accepting that interlocutory decisions are in principle appealable should give rise to a huge change in the behaviour of litigants.  Mr Buley and his instructing solicitor raise the spectre of unreasonable applications for permission to appeal against interlocutory decisions, but there is no reason to expect the parties to social security appeals to be less reasonable than parties to other appeals.

 

96. Nor is there anything in their point that decisions made without jurisdiction should be quashed in judicial review proceedings and that it would be inappropriate for the Upper Tribunal to re-make such a decision that has been set aside on appeal.  Setting aside a decision under section 12(2)(a) of the 2007 Act is just as effective as quashing it and, in exercising the power under section 12(2)(b)(ii) to re-make a decision, the Upper Tribunal may make any decision that was within the First-tier Tribunal’s jurisdiction or may strike out the appeal to the First-tier Tribunal if that is the decision the First-tier Tribunal should have made because it lacked any jurisdiction at all.

 

97. We are therefore satisfied that an appeal lies in this case. The remedies available on judicial review are discretionary, and on established principles are not to be granted where there is an adequate alternative remedy. The right of appeal under s.11 is an adequate remedy and for that reason we consider that it would be inappropriate to grant Miss LS any relief by way of judicial review. Accordingly, we dismiss her application for judicial review.

 

 

Issue 2: Were the appeals within time, on the basis of the procedural regulations applicable at the time of the May decision?

 

98. As noted above, at the time of the May decision (and at the time when the appeals were made) the time limits were governed by regs. 18 and 19 of the 2001 Regulations. Issue 2 therefore requires the position to be considered without regard to the fact that by the time of Judge Poynter’s decision those regulations had been replaced by the SEC Rules.

 

99. Given that the latest of the decisions being challenged was made on 19 September 2006, that the letter of 11 January 2008 was the earliest document capable of being treated as a notice of appeal and that the time for appealing was one month with an absolute time limit of thirteen months, it would appear at first sight that the appeals were clearly well out of time.  However, ever since Pierce Glynn’s letter of 4 March 2008 it has been argued on behalf of Miss LS that the notifications by the Council of its decisions were defective to an extent which meant that the time for appealing did not start to run at the date of the notifications. 

 

100. This argument is based on paragraph 9(c) of Schedule 9 to the 2006 Regulations, which provides that, where a claimant on income support or income-based jobseeker’s allowance is awarded housing benefit, the decision notice must include a statement as to “the amount of and the category of non-dependant deductions made under regulation 74, if any.”

 

101. Judge Poynter rejected that argument for the following reasons:

 

(i) Paragraph 9 of Schedule 9 to the 2006 Regulations is in Part 2 of that Schedule and, by para. 7 of that Schedule “Parts 2, 3 and 6 of this Schedule shall apply only to the decision notice given on a claim.” The Council’s decisions sought to be appealed were not given “on a claim”, but on a supersession made on the Council’s own initiative. The requirements of para. 9 therefore did not apply.

 

(ii) Alternatively, if the requirements in para. 9 of Schedule 9 did apply:

 

(a)  they were not fully complied with in that the Council did not sufficiently inform Miss LS of the “category” of the non-dependant deduction; but

 

(b)  that defect in the notices did not render them invalid, for the purposes of the running of the time for appealing, because the defect did not cause any significant prejudice to Miss LS. That was principally because the additional detail which (on Miss LS’s argument) the notices ought to have included “would have been wholly irrelevant to [Miss LS] because her case was that there should be no non-dependant deduction at all – not at any level – because Mr B was not living with her.” Judge Poynter relied upon and applied the decision of the Court of Appeal in Haringey LBC v Awaritefe (1999) 32 HLR 517.

 

102. In relation to point (i), Miss LS challenges Judge Poynter’s decision, the Secretary of State supports it and the Council has not made any submission one way or the other.  In relation to point (ii)(a), the Council challenges Judge Poynter’s decision but both Miss LS and the Secretary of State support it.  In relation to point (ii)(b), Miss LS challenges Judge Poynter’s decision, the Council supports it and the Secretary of State has made no submission.

 

Our analysis and conclusions on Issue 2

 

103. In view of our conclusion on point (ii), it is unnecessary for us to express a view on point (i) and we prefer not to do so, although we will make some observations.

 

104. Regulation 90(1) of the 2006 Regulations is the provision which gives effect to Schedule 9. Regulation 90(1) draws a distinction between decisions “on a claim” and decisions “in any other case”, the purpose of the distinction there being that decisions on a claim must be notified forthwith or as soon as reasonably practicable, whereas other decisions must be notified within 14 days or as soon as reasonably practicable thereafter.

 

105. Judge Poynter and the Secretary of State point out that para. 2 of Schedule 7 to the 2000 Act provides that where at any time a claim for housing benefit is decided, the claim shall not be regarded as subsisting after that time. However, the primary reason for that provision is made clear in para. 2 itself, which goes on to provide that the consequence is that Miss LS shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.

 

106. Neither Judge Poynter nor the parties referred to para. 1 of Schedule 7 to the 2000 Act, which on the face of it clearly indicates that there is a difference in that Schedule between a decision “on a claim” and a decision by way of supersession. It defines “relevant decision”, for the purposes of Schedule 7, as any of the following:

 

  “(a) a decision of a relevant authority on a claim for housing benefit ……

 

(b) any decision under paragraph 4 of this Schedule which supersedes a decision falling within paragraph (a), within this paragraph or within paragraph (b) of sub-paragraph (1) of that paragraph”.

 

107. However, there is in our judgment a great deal of force in Mr Buley’s submission that it is impossible to see any reason why it should have been thought by the legislator that the requirements in Parts 2, 3 and 6 of Schedule 9 to the 2006 Regulations ought not to apply to decisions by way of supersession. The information which those Parts require to be included in the decision notice must be just as important to a claimant whose benefit is being altered or removed by way of supersession as to a claimant who is getting the initial decision on his claim. We would therefore be strongly disposed to hold, if it is possible to do so, that decisions “on a claim” include decisions by way of supersession.

 

108. We do not think that it necessarily follows from the fact that a claim does not subsist after the date of the original decision on it that subsequent decisions by way of supersession are not decisions “on a claim” within the meaning of para. 7 of Schedule 9. Further, it seems to be arguable that the distinction clearly drawn by para. 1 of Schedule 7 to the 2000 Act, between decisions “on a claim” and decisions by way of supersession, is not the same distinction as that drawn by para. 7 of Schedule 9 to the 2006 Regulations between decisions “on a claim” and other decisions.

 

109. It may be relevant that regulation 90 of and Schedule 9 to the 2006 Regulations are not made under the 2000 Act, but rather under section 34 of the Social Security Act 1998 which is still headed “determination of claims and reviews”. In its original form it provided for the making of regulations relating to “determinations of the claim” and “reviews of determinations”, and in relation to notifications thereof. It may, therefore, be important, in construing the meaning of “on a claim” in paragraph 7 of Schedule 9, to trace the legislative history of all the relevant provisions. We are reluctant to carry out such an exercise when the parties’ advocates have not done so and when it is not necessary for us to reach a conclusion on the point. However, the Secretary of State may wish to consider whether paragraph 7 should be amended to make the position clear.

 

110. We turn to the second question under Issue 2, which is whether, on the footing that the requirement in para. 9(c) of Schedule 9 did apply, the Council failed to comply with it. The requirement is that the decision notice contains a statement as to “the amount of and the category of non-dependant deductions made under regulation 74, if any.” Regulation 74(1) and (2) provide:

 

  “(1) Subject to the following provisions of this regulation, the deductions referred to in regulation 70 (maximum housing benefit) shall be—

(a)  in respect of a non-dependant aged 18 or over in remunerative work, £47.75 per week;

(b)  in respect of a non-dependant aged 18 or over to whom sub-paragraph (a) does not apply, £7.40 per week.

  (2) In the case of a non-dependant aged 18 or over to whom paragraph (1)(a) applies because he is in remunerative work, where it is shown to the appropriate authority that his normal weekly gross income is—

(a)  less than £101.00, the deduction to be made under this regulation shall be that specified in paragraph 1(b);

(b)  not less than £101.00 but less than £150.00, the deduction to be made under this regulation shall be £17.00;

(c)  not less than £150.00 but less than £194.00, the deduction to be made under this regulation shall be £23.35;

(d)  not less than £194.00 but less than £258.00, the deduction to be made under this regulation shall be £38.20;

(e)  not less than £258.00 but less than £322.00, the deduction to be made under this regulation shall be £43.50.”

 

111. Judge Poynter considered (paragraph 33 of the Statement of Reasons) that, if (contrary to his view) para. 9 had applied, “[the Council] would have been obliged to say that the deduction was applicable to the category of people who were over 18 and in remunerative work or who were over 25 and in receipt of income-based jobseeker’s allowance.”

 

112. The Council argues that the words “if any” in para. 9(c) indicate that the category only needs to be specified if one of the categories set out in regulation 74(2) of the 2006 Regulations applies. If, as here, the amount of the non-dependant deduction applied was either the maximum or the minimum, specified in regulation 74(1)(a) and (b) respectively, then there was no “category”, and accordingly para. 9(c) of Schedule 9 was simply inapplicable. Alternatively, if para. 9(c) did in this case require the category of non-dependant deduction to be specified, the Council argues that the notification letters adequately did so.

 

113. In the notification of the first supersession decision, on 27 May 2005, Miss LS was told (pp. 10 to 13) that the supersession was on the ground that Mr B, a non-dependant, had moved into her home, and that the amount of the deduction from housing benefit was £7.40 per week, an amount “based on the age, income and circumstances of the non-dependant”. We agree with Judge Poynter that, against the background of the terms of regulation 74 of the 2006 Regulations, the requirement that the decision notice specify not only the amount, but also the “category” of the non-dependant deduction, required the notice to state that £7.40 was the deduction appropriate in the case of a non-dependant aged over 18 and not in remunerative work.

 

114. We do not accept the Council’s arguments to the contrary. Miss LS and the Secretary of State are in our view right in submitting that the words “if any” at the end of para. 9(c) of Schedule 9 merely confirm the obvious proposition that no details of non-dependant deductions need be given if no such deduction is appropriate. Further, the meaning of “category” is not in our view restricted to the situation where one of the categories in regulation 74(2) is appropriate. We see no warrant for giving such a restricted meaning to the word “category”, in this context. The purpose of para. 9(c) is in our view that the claimant should be told why the deduction which has been applied was of the amount selected, rather than some other amount, so that he can dispute it if he does not agree with the category which the local authority has selected. Miss LS could of course have worked out, by reading regulation 74 in the light of the amount of the deduction, which category the Council had applied. However, the purpose of the notice requirements is in our view to make it unnecessary for a claimant to look up the legislation in order to work out which category the council must have considered appropriate.

 

115. Similar considerations in our view apply to the other notifications. If one takes, for example, the notification in respect of the decision of 18 November 2005 (pp.21-3), Miss LS was told that a deduction of £47.75 per week had been applied because Mr B, a non-dependant, was living with her, and that the reason for the change in the amount of the deduction was that Mr B’s “circumstances” had changed, and that the amount of the deduction was based on Mr B’s “age, income and circumstances”. In our judgment Miss LS should have been told at least that a deduction £47.75 per week was the appropriate amount in respect of a non-dependant who was over 18 and in remunerative work. It may well be that the notice should also have said that that category only comprised claimants whose income was at least £352 per week.

 

116. The third question under Issue 2 is whether, again on the footing that para. 9(c) of Schedule 7 applied, the defects in the notices had the effect that the time for appealing did not begin to run. We have no doubt that the defects in a notification can be such that time is prevented from running. That is most likely to be so where the notice does not sufficiently inform the claimant about his right of appeal.

 

117. In the Awaritefe case upon which Judge Poynter relied, the issue was whether defects in the notification of a decision that there had been an overpayment of housing benefit which was recoverable from the claimant’s landlord meant that there was no valid overpayment recoverability decision capable of supporting an action by the council against the landlord in the county court for recovery of the sum decided to have been overpaid. Roch LJ said (at pp.526-7):

 

“The fact that there have been breaches of procedures laid down by the statutory instrument is not decisive of the question whether the determination made by the authority is valid or invalid, enforceable or unenforceable. As Sedley J. put it pithily in R v Solihull Metropolitan Council, ex p. Simpson (unreported) it is necessary to assess “the substantive harm done by the breach”. There was no disagreement between counsel that this is the correct approach. The issues here were whether there were breaches of Part 1 of Schedule 6 and if so whether the respondent had suffered substantial harm as a result.”

 

118. Although the issue in Awaritefe was whether the breach of the notification requirements invalidated the decision, in the sense of making it one which could not support a civil action for recovery of the sum decided to have been overpaid, we have no doubt that similar principles apply in the situation before us, where the question is whether the breaches meant that the time for appealing did not begin to run. In that situation the question of prejudice must be judged primarily by reference to the effect which the breaches have on the claimant’s ability to exercise his right of appeal. In our judgment they had no effect at all on the facts of the present case, and thus there was no substantial prejudice to Miss LS.

 

119. As regards the notifications of the decisions which imposed a non-dependant deduction of £7.40 per week, being the minimum amount, there was no possibility of Miss LS being prejudiced, in relation to the exercise of a right of appeal, by not being told that that was the category applicable to non-dependants over 18 who were not in remunerative work. The only possible argument which Miss LS, or indeed any claimant, could raise in that situation is that there should be no non-dependant deduction at all, and the additional information about the category would not be of any assistance in deciding whether to appeal.

 

120. As regards the notifications of the decisions which imposed a non-dependant deduction of £47.75 per week, the possible grounds of dispute are not limited to an argument that that there should be no non-dependant deduction. There is also the possibility of arguing that the amount of the non-dependant’s income mean that the deduction should be of a lower amount – i.e. in a different “category”. A claimant in a different position from Miss LS in this case might have been assisted, in deciding whether to appeal, by the missing information as to the category in which the Council had put the case. However, as Judge Poynter said, that was not so for Miss LS, because her case has always been that Mr B was not living with her at all. The additional information could not have assisted her at all in deciding whether to appeal.

 

121. Mr Buley accepts that the question whether a procedural breach robs a notice of effect must be assessed by reference to the substantive harm caused by that breach, but argues that that question cannot be assessed by reference to the particular circumstances of the recipient of the notice on the particular facts of the case. Rather, because the question of the legal effect of the notice is an objective question of law, he submits that it must be assessed having regard to the nature of the breach and its potential to prejudice a recipient of the notice. In particular, he suggests that it cannot depend on whether the particular recipient suffers a prejudice, because that would mean that the validity of a notice (which may, in some circumstances, have consequences for third parties, and will have consequences for the giver of the notice) will depend on subjective factors which are known only to the recipient.

 

122. We do not accept that submission.  We are dealing only with the question whether defects in a notification prevent the time for appealing from running. It is difficult to see how that question can affect persons other than potential parties to an appeal. The Council will always be a party and will be able to see, when an appeal is eventually brought, whether the arguments sought to be raised in the appeal are ones which have anything to do with the alleged defects in the notification. We therefore do not see why, in deciding whether the defects caused substantial prejudice, it is not permissible to take into account the nature of the contentions which the particular claimant concerned wishes to raise in the appeal. As to the position of any potential third parties to an appeal, unless there would otherwise be unfairness to the claimant, they should be able to rely on a decision notice as being notice of a decision that is fully effective, subject to any appeal or legitimate reconsideration by the decision-maker. 

 

123. In our judgment, therefore, the defects in the notifications which we have identified did not prevent the time for appealing from running. Judge Poynter did not err in this respect.

 

 

Issue 3: Did the coming into force of the SEC Rules render the appeals timeous?

 

124. Miss LS’s contention on this issue, which was not raised before Judge Poynter and which he therefore did not consider, is based on the fact that, by the time of Judge Poynter’s decision on 15 January 2009, the SEC Rules had come into effect. They made different provision for extending the time for appealing when a statement of reasons for a decision is requested than did the 2001 Regulations.

 

125. Regulation 18(2) of the 2001 Regulations merely had the effect of suspending the running of the one month period for appealing when a request for a statement of reasons was made before the expiry of that period.  A request made more than one month after the date of notification of the decision therefore had no effect.

 

126. However, under rule 23(2) of, and Schedule 1 to, the SEC Rules, as in force at the time of Judge Poynter’s decision, the time limit for appealing was

 

“the latest of –

 

  (a) one month after the date on which notice of the decision being challenged was sent to the appellant;

 

(b) if a written statement of reasons for the decision is requested, 14 days after the later of (i) the date on which the period at (a) expires; and (ii) the date on which the written statement of reasons was provided; or

 

(c) ……………………………………………….”

 

127. Miss LS’s contention is that, as written reasons for the Council’s decisions were requested in Pierce Glynn’s letter dated 11 January 2008 and supplied by the Council in its letter of 22 January 2008, the appeals were within time because they were brought before the end of the period of one month from the date the reasons were provided.

 

128. We do not accept that the new provision (which has since been amended) assisted Miss LS, even if it was to be construed literally. The absolute time limit for appealing under regulation 19(2) of the 2001 Regulations had expired before the SEC Rules came into force. The coming into force of the SEC Rules could not revive the possibility of appealing. That would be to give retrospective effect to the legislation and wrongly deprive the local authority of its acquired right to rely on the time bar.  Legislation is to be construed so as not to have such a retrospective effect (see section 16 of the Interpretation Act 1978 and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553).

 

 

Issue 4: Did the SEC Rules entitle Judge Poynter to extend the time for appealing so as to validate the appeals?

 

129. Miss LS’s contention on this issue is again one that was not raised before Judge Poynter and is again based on the SEC Rules.  Rule 5(3)(a) gives the First-tier Tribunal very wide powers to “extend or shorten the time for complying with any rule” and it is contended that this empowered Judge Poynter to extend the time for appealing so as to permit an appeal to be brought more than 12 months after expiry of the primary time limit of one month after notification of the decision (see rule 23(2) and Schedule 1), notwithstanding rule 23(5), which provides for the absolute time limit in clear terms:

 

“No appeal may be made more than 12 months after the time specified in Schedule 1.”

 

130. We reject Miss LS’s contention for two reasons.  First, even without the addition (which had effect only from 1 September 2009) of the new para. (8) to rule 23 of the SEC Rules, rule 5(3)(a) did not in our judgment confer the claimed power because, if it did, rule 23(5) would have been deprived of any effect.  Rule 23(5) was obviously always intended to limit the scope of rule 5(3)(a) in the particular context of rule 23.

 

131. Secondly, as in relation to Issue 3, the result of accepting Miss LS’s contention would be to give the legislation retrospective effect on the facts of this case.  Nothing in the transitional provisions in Schedule 4 to the Transfer of Tribunal Functions Order 2008 empowers the First-tier Tribunal to validate an appeal when the absolute time limit applicable under the 2001 Regulations expired before the new legislation came into effect.

 

132. The result of our analysis is therefore that the appeals were irredeemably out of time under the procedural regulations applicable at the time when the appeals were made (and at the time of the May decision). The May decision that the appeals should be admitted was therefore wrong. Thus far, we are therefore in agreement with Judge Poynter’s conclusions. Further, the coming into force, prior to Judge Poynter’s decision, of the SEC Rules made no difference. The remaining issues concern the questions whether Judge Poynter’s approach in relation to the status of the May decision was right, and if not, what approach he should have adopted.

 

 

Issue 5:  Was Judge Poynter right to hold that Mrs Griew had no power to make the May decision, and if not, should we set aside and re-make his decision to strike out?

 

Issue 6: When re-making Judge Poynter’s decision is it either possible or appropriate as a matter of discretion to reconsider the May decision?

 

 

133. The submissions of the parties in relation to Issues 5 and 6 were as follows:

 

Submissions for Miss LS

 

(1) The April decision was invalid and of no effect. It purported on its face to be a determination of an application under regulation 19 for an extension of time, when no such application had been made by Miss LS. Under the terms of regulation 19 a chairman only has power to decide whether to extend time if an application for an extension of time is made. Pierce Glynn’s letter of 4 March 2008 had not requested an extension of time, but rather had contended that the appeals were not out of time. As the April decision was of no effect, Mrs Griew did not need to have power to reconsider it in order to make the May decision.

 

(2) The May decision was a decision under regulation 18(4) that the appeals were not out of time.

 

(3) Judge Poynter was neither bound nor entitled to consider the correctness of the May decision because:

 

(a) There was no statutory or other power entitling him (as opposed to Mrs Griew) to reconsider it;

 

(b) Even if there would otherwise have been such a power, it could not properly have been exercised in the present case because:

 

(i)  the May decision, even if wrong in law on an issue going to jurisdiction, gave rise to an issue estoppel: Watt v Ahsan [2007] UKHL 51; [2008] AC 696

 

(ii) subsequent events, and in particular the Council’s conduct, meant that it could not have been fair to exercise the power.

 

Submissions for the Secretary of State

 

(1) Mrs Griew, as a chairman, had jurisdiction to make determinations under regs 18 and 19. Therefore, however her April and May decisions are characterised (i.e. whether they were made under regulation 18(4) or regulation 19(3)) Mrs Griew had jurisdiction to make them, subject only to the question whether she was able to reconsider the April decision.

 

(2) Mrs Griew had power to reconsider the April decision – i.e. her own determination that the appeals should not be admitted. CIS/93/1992 shows that a chairman can be invited, but not compelled, to reconsider such a determination. 

 

(3) Judge Poynter had no power to reconsider the May decision, because there was no statutory power which permitted him, as the Tribunal hearing the substantive appeal, to do so. In the case of a negative decision by a chairman under regs. 18 or 19 (i.e. a decision which does not permit the appeal to proceed), the only possible means of challenging the decision is by judicial review (Morina). The same must be true in the case of a positive decision – i.e. one which does permit the appeal to proceed to a substantive hearing.

 

(4) The consequence of Judge Poynter having no power to reconsider the May decision was that it was binding by way of issue estoppel, notwithstanding that it was a decision about whether the Tribunal would have jurisdiction to hear the appeal: Watt v Ahsan.

 

 

Submissions for the Council

 

Mr Rufus did not make detailed submissions on these matters, but he did give some background information, which we have incorporated into the statement of facts above and he also explained that, after writing the letter of 7 August 2008, seeking permission to appeal the May decision to a Commissioner, he went on holiday and was unable to pursue the matter. He confirmed that the Council never received a response to the request for permission to appeal and did continue to want to challenge the May determination.

 

 Issue 5: our analysis and conclusions

 

134. In our judgment the Mr Buley and Miss Broadfoot are correct submitting that Judge Poynter’s approach to the May decision was that, whether or not it would otherwise have been “final” in the sense being a decision of a nature which was not open to reconsideration at the same level, the fact that it was a decision which went to the tribunal’s jurisdiction to entertain the appeals meant (i) that if it was wrong, it was a decision which Mrs Griew had no power to make, and therefore (ii) that he (Judge Poynter) was not only entitled but required to consider its correctness. In our view it is clear from Judge Poynter’s reasoning that he considered that, because it went to the tribunal’s jurisdiction to entertain the appeals and wrongly held there was such jurisdiction, the May decision was not one that Mrs Griew had power to make.

 

135. The first question which arises here is: exactly what did Mrs Griew purport to decide on 14 May 2008? Her decision simply said: “late appeal to be accepted”. On the face of it, and without reference to the background against which that decision was made, it looks like a decision, purportedly under reg. 19(3) of the 2001 Regulations, to extend the time for making a late appeal.

 

136. However, we are in no doubt that one can only sensibly regard it as a determination under reg. 18(4) that the appeals were not out of time. First, that was the basis, and the only basis, on which Pierce Glynn had contended that the April decision ought to be reversed. Pierce Glynn had not contended that if, contrary to their primary contention, the time for appealing started to run when notification of the supersession decisions was sent, the time for appealing could and should be extended. In short, the only “dispute” which needed determining by Mrs Griew on 14 May 2008 was as to whether the appeals were out of time. Secondly, Mrs Griew would plainly have been well aware that, if the time for appealing had started to run when the Council sent notification of the decisions, there was no possibility of extending the time because the absolute 13 month time limit had expired. Such an absolute time limit applied not only to housing benefit and council tax appeals but to all other cases within the jurisdiction of appeal tribunals and was unlikely to be overlooked by any chairman. Thirdly, in relation to the April decision, the standard form offered no more appropriate box for Mrs Griew to tick than Box C and, having ticked that in April, it is perhaps not surprising that she should erroneously have expressed her May decision in equivalent terms.

 

137. In our judgment Judge Poynter erred in law in holding that Mrs Griew had no power to make the May decision. A “dispute” had arisen as to whether the appeals were within time. Regulation 18(4) gave Mrs Griew power to determine that dispute. It was for her to decide whether the appeals were “brought within the time limit specified in this regulation”. Another judge or tribunal might consider that she was wrong, but that does not mean that she lacked the power to decide the dispute in the way that she did. Regulation 18(4) plainly contemplates that this determination will resolve the question whether the appeal tribunal had jurisdiction to entertain the appeals. In our view it is clearly established by Watt v Ahsan that this makes no difference to the position – even though the decision went to jurisdiction, it remained a decision which Mrs Griew had power to make, irrespective of whether a later judge or tribunal might disagree with her.

 

138. The facts in that case, shorn of complications which can be ignored for present purposes, were that Mr Ahsan brought a claim against the Labour Party for unlawful discrimination on racial grounds, contrary to section 12 of the Race Relations Act 1976, in relation to the selection of candidates for local elections. A preliminary issue was directed as to whether the Labour Party was a qualifying body for the purposes of section 12. If it was not, the employment tribunal had no jurisdiction to hear the claim. The preliminary issue was determined by an employment tribunal in Mr Ahsan’s favour.

 

139. The Employment Appeal Tribunal dismissed the Labour Party’s appeal and directed the employment tribunal to proceed to decide the claim on the merits. The employment tribunal heard the case (and other linked claims) over 15 days. Whilst the decision of the employment tribunal was still reserved, the Court of Appeal decided in an unrelated case (Ali v McDonagh) that the Labour Party was not a qualifying body for the purposes of section 12. The Labour Party then invited the employment tribunal, on the basis of the Court of Appeal’s decision, to hold that it had not had jurisdiction to determine the claims. The employment tribunal decided that, as between the parties, it was still bound by the unappealed decision of the EAT in the case before it. It found for Mr Ahsan on the merits. The EAT upheld the employment tribunal’s decision that it had been bound by the previous decision that it did have jurisdiction. However, the Court of Appeal, by a majority, reversed the EAT’s decision, holding that the EAT’s decision of the preliminary issue was not binding because it involved an error as to the employment tribunal’s jurisdiction. Rimer J. said that a party could not be estopped by conduct from disputing a tribunal’s jurisdiction, and that it followed, in his opinion, that a decision on jurisdiction could not give rise to an issue estoppel either: see [2005] ICR 1817, 1836-1837. Buxton LJ likewise said, at para. 84:

 

“If it becomes apparent through a decision of a court of superior authority that the tribunal lacks …….jurisdiction, then the obligation of the tribunal to decline jurisdiction arises; and that obligation, it is trite law, cannot be offset by any previous determination between, or lack of action by, the parties themselves.”

 

140. The House of Lords held, first, that the Court of Appeal’s decision in Ali v McDonagh was right, with the consequence that Mr Ahsan’s claim should have been brought in the County Court, not in the employment tribunal. However, the House then held that employment tribunal had been a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within section 12 of the Act, and its decision, upheld on appeal, that the Labour Party was such a body created an issue estoppel, so that it was binding on the parties, notwithstanding that a later decision had shown it to be wrong. Lord Hoffmann said:

 

“30. …  [Estoppel per rem judicatam, i.e., issue estoppel] is based upon the … policy of avoiding relitigation of the same issues. … [W]hen the tribunal has decided that it does have jurisdiction, the question of whether this decision is binding at a later stage of the same litigation, or in subsequent litigation, involves … issues about fairness and economy in the administration of justice.

 

31. Issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: see Thoday v Thoday [1964] P 181, 198. The question is therefore whether the appeal tribunal was a court of competent jurisdiction to determine whether the Labour Party was a qualifying body within the meaning of section 12.

 

32. The jurisdiction of an employment tribunal depends on whether the facts fall within certain statutory concepts which the Act defines with varying degrees of precision. ……..The decision as to whether the facts found by the tribunal answer to the statutory description is sometimes treated as a question of fact (from which there is no appeal to the appeal tribunal) and sometimes as a question of law (from which there is). In either case, however, the tribunal has jurisdiction to decide the question. I can see no basis for distinguishing between questions which “go to its jurisdiction” and those which do not. A decision that a contract falls outside the jurisdiction of the tribunal because it is for services, of for service overseas, seems to me just as much a question which goes to the jurisdiction as the question of whether the Labour Party is within the jurisdiction because it is a qualifying body. Both are decisions of fact or law, which are (subject to appeal) within the competence of the tribunal.

 

33. In my opinion, therefore, the decision that the Labour Party was a qualifying body for the purposes of section 12 was made by a competent court and is therefore binding upon the parties. It does not matter that a later decision, now approved by this House, has shown that it was erroneous in law: see In Re Waring: Westminster Bank v Burton-Butler [1948] Ch 221. The whole point of an issue estoppel on a question of law is that the parties remain bound by an erroneous decision.”

 

141. The question which arose in Watt v Ahsan was whether an issue estoppel could arise from a decision by a tribunal as to whether it has jurisdiction. The House of Lords held that it could. In reaching that conclusion the House of Lords plainly took the view that the power conferred on the employment tribunal to decide jurisdiction was a power to determine that issue, whether or not another judge or tribunal later concluded that the determination was erroneous. We can see nothing in reg. 18(4) – or elsewhere in the Regulations – to lead to any different conclusion as regards the power conferred by reg. 18(4) upon a legally qualified panel member. It was a power to determine jurisdiction – rightly or wrongly. Accordingly we are driven to the conclusion that Judge Poynter erred in law in holding that Mrs Griew made a decision which she had no power to make.

 

142. We express no view on what the position would have been if Miss LS’s contention that the appeals were within time had lacked any possible foundation. It might then have been arguable that there was in substance no “dispute” for the purposes of reg. 18(4). Such an argument would have to surmount the hurdle that ordinarily something can be described as a “dispute” even if one side is indisputably right and the other indisputably wrong: see Hayter v Nelson [1990] 2 Lloyd’s Reports 265, 268. There is no need for us to consider whether such an argument would be open as a matter of law under reg. 18(4). Having regard to our analysis under Issue 2, Miss LS’s contentions were not in our judgment so hopeless as to be capable of founding any such argument.

 

143. Nor is it necessary for the purposes of issue 5 for us to decide whether the May decision gave rise to an issue estoppel. We shall make some observations about that question when we deal with issue 6.

 

144. As regards issue 5 we hold, for the reasons given above, that the making of Judge Poynter’s strike-out decision involved the making of an error on a point of law. Under s 12(2) of TCEA 2007 we may (but need not) set aside that decision. If we do set it aside, we are required by s 12(2)(b) either to remit the case to the First-tier Tribunal with directions for its reconsideration, or to re-make the decision.

 

145. In our view it is appropriate to set aside Judge Poynter’s strike-out decision. The foundation for that decision, namely that, if the May decision was wrong, it was a decision which Mrs Griew had no power to make, and which for that reason must be revisited, was wrong.

 

146. Having set aside Judge Poynter’s strike-out decision, we consider as a matter of discretion that we should re-make that decision – i.e. we should ourselves decide whether Miss LS’s appeals should be struck out.  It is in the interests of justice that Miss LS’s entitlements be determined with a minimum of further delay. Issue 6 therefore arises.

 

Issue 6: our analysis and conclusions

 

147. As noted earlier, both Miss LS and the Secretary of State submit that the May decision gave rise to an issue estoppel. If they are right, then there would be no discretion to reconsider the May decision, and it would necessarily follow that the appeals could not be struck out for lack of jurisdiction.

 

148. For reasons explained more fully below, we do not find it necessary to decide whether there is a discretion to reconsider the May decision. That is because even if there were such a discretion we would not consider it appropriate to exercise that discretion in favour of reconsidering the May decision

 

149. In these circumstances we make only brief observations on the question whether there is indeed an issue estoppel precluding the exercise of any discretion to reconsider the May decision.

 

150. Mr Buley’s submission is that the fact that the May decision gave rise to an issue estoppel meant that it could not be reconsidered. However, in our judgment that submission is to put the matter the wrong way round. It is well established that “a judicial decision English or foreign is only a res judicata if it is final.” Spencer Bower & Handley, Res Judicata 4^th ed (2009), para. 5.01.

 

151. Further, as Mr Buley recognised, even where a decision is final, the severity of the issue estoppel doctrine “is tempered by a discretion to allow the issue to be reopened in subsequent proceedings when there are special circumstances in which it would cause injustice not to do so” – Lord Hoffmann in Watt v Ahsan at para. 34.

 

152. Judge Poynter was of the view that the May decision was not “final” and therefore that it was open to reconsideration on that ground (as well as on the ground that it went to the tribunal’s jurisdiction to entertain the appeal). However, he said that, had the May decision not gone to his jurisdiction, he would not have thought it right to reconsider it, for reasons of “judicial comity and the need for finality in judicial decision-making ….. any other stance would encourage forum shopping: applicants could go on asking for reconsiderations until they found a judge who was prepared to agree with them”.

 

153. The starting point in determining whether a determination or decision is open to reconsideration at the same level must be the terms of the procedural rules under which the tribunal operates.

 

154. In our judgment reg. 47 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (“the 1999 Regulations”) authorised Mrs Griew to reconsider the April decision. Following the April decision the appeals were struck out by the clerk under reg. 46(1)(b). Regulation 47(2) empowered a legally qualified panel member to reinstate an appeal which had been struck out, in three categories of case. Case (c) was where the panel member was satisfied that the appeal was not an appeal which might be struck out under reg. 46. Case (a) was where (as happened in this case) the appellant had made representations, or further representations in support of his appeal with reasons why he considered that the appeal should not have been struck out. It is in our judgment clear that the power of reinstatement under reg. 47 implicitly extended to reconsidering and reversing the determination of the underlying issue whether the appeal was irretrievably late.

 

155. The fact that Mrs Griew had power to reconsider the April decision therefore removes any possibility of an argument (which no party in fact advanced) that the May decision was a nullity because there was no power to reconsider the April decision.

 

156. However, there appears to have been nothing in the Child Support, Pensions and Security Act 2000, or the 1999 Regulations, which expressly permitted the May decision (i.e. a decision that the appeals were not out of time) to be reconsidered.

 

157. Judge Poynter referred to three factors in support of his view that the May decision was (even apart from the fact that it went to jurisdiction) in principle open to reconsideration, at any rate by Mrs Griew and by the tribunal seised of the substantive appeal.

 

158. First, paragraph 11 of Schedule 7 to the 2000 Act did not make the decision final because that provision was concerned with “outcome decisions” and not to findings of fact an procedural determinations that lead to the outcome decision and he referred to the Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03), which we have mentioned in connection with Issue 1.  Secondly he pointed out that the legislation in force before the SEC Rules made no specific provision for the determination of preliminary issues.  Thirdly, and most importantly, he said:

 

“46.  (e) … I consider it relevant that Mrs Griew’s decision was, at least formally, given ex parte. Lambeth were aware of the nature of [Miss LS’s] case but, as was the correct procedure, they were not given an opportunity to comment on the judicial review letter before Mrs Griew changed her decision.  Applications to extend time and admit out-of-jurisdiction appeals are dealt with ex parte on the basis that they can be revisited inter partes at a later date.”

 

159. He took that view in reliance on CS/93/1992.  There may be room for argument about the use of the term “ex parte” – and not just because it is in Latin – although we accept that that was also the term used by the Commissioner in CIS/93/1992.  Both the April decision and the May decision were made without a hearing but both decisions were made with both parties having set out their cases in writing.  It is true that the Council was not given a chance to comment on Miss LS’s letter before action before the May decision was made, but its previous submission gave grounds for not agreeing with the letter before action and it is unlikely to have said anything other than that the letter before action had not changed its mind.  What may be significant is that the decision was made in a relatively summary fashion without the parties being offered the opportunity of an oral hearing.  This sort of procedure is common in tribunals.

 

160. As we have said, we do not find it necessary to form a concluded view as to whether Judge Poynter had a discretion to reconsider the May decision, whether because it was not “final” in nature, or by virtue of the exception to the issue estoppel doctrine to which Lord Hoffmann referred in para. 34 of Watt v Ahsan.

 

161. That is because in our view, on the facts as known to Judge Poynter, and as known to us today,  we would not as a matter of discretion consider it appropriate to reconsider the May decision. A number of factors lead us to conclude that it would be contrary to the interests of justice to reconsider the May decision:

 

(1) by 9 October 2008 nearly 5 months had elapsed since the May decision.

 

(2) the time limits for challenging the May decision either by way of judicial review or on appeal had passed without any such challenge being made.

 

(3) by the end of May 2008 the Council knew that Miss LS, in the light of the May decision, no longer intended to proceed with the judicial review (see Pierce Glynn’s letter to the Council dated 22 May 2008). It either was or should have been obvious to the Council that if they were to ask that the May decision be set aside then Miss LS would or might wish to continue with the judicial review of the April decision, and that if she did not do so she risked being out of time for that purpose.

 

(4) far from asking that the May decision be set aside, the Council made it clear that it accepted the decision. On 4 June the Council consented to an order in the County Court that the possession proceedings be stayed “pending the determination of [Miss LS’s] housing benefit appeal.” The Council on 9 June 2008 signed the relevant form for submitting a revised submission in the appeal. On that form the Council ticked the box opposite the words “the appeal is duly made”. The revised submission abandoned the original submission’s contention that the 13 month absolute time limit had passed. Indeed the revised submission expressly sought a decision on the merits of the case. That revised submission was sent by the Council to Miss LS’s representatives, plainly with the intention that it should be acted on accordingly

 

(5) at no time prior to the hearing before Mr Russen on 5 August 2008 did the Council make any suggestion that it would seek to resile from its acceptance of the May decision.

 

(6) the whole of the time set aside for the hearing before Mr Russen was used up, and the opportunity to decide the case on the merits on that occasion was lost, as a result of the Council’s decision, without warning, to attempt to persuade Mr Russen that he could revisit the May decision.

 

(7) Mr Russen concluded that he could not revisit the May decision. Accordingly he adjourned the hearing of the merits to 9 October 2008. In order to ensure that both Miss LS and the tribunal knew where they stood, he issued a written direction requiring the Council forthwith to notify Miss LS and the tribunal if it sought to challenge the May decision (by judicial review or otherwise). That direction made it incumbent on the Council to decide promptly if it did indeed want to challenge the May decision. It appears that on 7 August 2008 the Council sent a letter to the tribunal seeking leave to appeal the May decision. However the Council did not copy this to Miss LS’s representatives. It did not do anything during August 2008, as far as Miss LS was concerned, to comply with Mr Russen’s written direction.

 

(8) On 2 September 2008 Miss LS’s representatives sought confirmation from the Council that it did not intend to challenge the May decision. In response to this the Council clearly indicated, in its letter dated 9 September 2008, (i) that it did not intend to pursue the contention that Mrs Griew had been wrong to permit the appeals to proceed and (ii) that it intended simply to contest the appeals on their merits.

 

(9) Miss LS and her solicitors – as must have been intended by the Council - thereafter prepared for and attended the hearing on 9 October 2008 on the basis that the hearing would deal (and deal solely) with the merits of the appeals.

 

162. We balance these matters against the Council’s interest in having a determination in its favour on the time limit. It seems to us that the balance is strongly against the Council. Revisiting the May decision would not be fair to Miss LS, nor would it be just in the light of the way in which the Council had conducted the matter. By the time that Judge Poynter eventually issued his decision notice on 15 January 2009 the SEC Rules had been made and brought into force, subject to transitional provisions, and they included the overriding objective in rule 2 of the SEC Rules of dealing with cases fairly and justly. The matters set out in rule 2 are matters which would have had relevance even before 3 November 2008 when the SEC Rules came into force. Rule 2(2)(a) concerns proportionality. In our view going back on the May decision would be disproportionate to the importance of the case. It would be disproportionate to the complexity of the issues – the issues on the merits were simple and straightforward, whereas the issues which would arise on any attempt to revisit the May decision would inevitably give rise to lengthy legal argument and substantial deployment of resources by both the parties and the tribunal. Going back on the May decision would be disproportionate to the anticipated costs and the resources of the parties. Rule 2(2)(e) concerns avoiding delay, so far as compatible with proper consideration of the issues. In our view the Council’s handling of its response to the May decision had caused substantial, unnecessary and unjust delay, and it would be wrong to prolong that delay even further.

 

163. We do not overlook that on 20 August 2008 a District Chairman had signed a Direction that the time limit issue could be reconsidered as a preliminary point at the hearing on 9 October. But that Direction was never issued to the parties, who were therefore unaware of it, and Judge Poynter understandably made no reference to it. We do not think that, in considering this issue, any significance should be attached to it – especially when the Council had the opportunity to tell Miss LS’s representatives that it intended to pursue its application for permission, but chose instead to tell them that the application would not be pursued.

 

164. For all these reasons we conclude that would not be not appropriate as a matter of discretion to reconsider the May decision.

 

 

Disposal

 

165. We have therefore concluded (1) that Judge Poynter’s decision striking out the appeals on the ground that he had no jurisdiction to hear them was wrong in law and must be set aside and (2) that if, when re-making that decision, we have power to reconsider the May decision, it would not as a matter of discretion be appropriate to exercise that power. We would therefore re-make Judge Poynter’s strike-out decision by substituting a decision that the appeals should not be struck out. The result is that the First-tier Tribunal has jurisdiction to consider the merits of the appeals.

 

166. Judge Poynter stated as follows in the final two paragraphs of his Statement of Reasons.

 

“57. Finally, I would like to record that I regret my decision in this case. In my judgment [Miss S] was properly entitled to housing benefit and council tax benefit without any non-dependant deduction between 2 May 2005 and 18 February 2007. [The Council’s] decision to the contrary is entirely understandable but nevertheless mistaken. I would like to make a decision giving effect to [Miss S’s] entitlement but - for the reasons given - I consider the law prevents my doing so.

 

58. If the Upper Tribunal considers that I am mistaken about that, then I invite it, on this occasion, to refer the appeal back to me. As a result of the unusual procedural history, I have held a hearing, taken evidence and formed a view as to the substantive merits before reaching a final decision on my jurisdiction. If, contrary to what I have decided, I do have jurisdiction in this matter I am in a position to make findings of fact and issue a substantive decision (which would be to allow the appeal) without holding a further hearing.”

 

167. As we have now concluded that the appeals should not be struck out, the proceedings are still live, and it will be for Judge Poynter to give any directions he thinks fit before proceeding to make his decision on the facts.

 

 

JUDGE ROWLAND

 

168. I agree with Mr Justice Walker and Judge Turnbull on their Issues 1 to 4.  However, I am unable to accept the premise upon which Issue 5 is based and my approach to Issue 5 makes it unnecessary for me to consider Issue 6. 

 

169. Issues 5 and 6 raise the question whether Judge Poynter’s decision was wrong in law in the light of Watt v Ahsan [2007] UKHL 51; [2008] AC 696.  In Watt v Ahsan, the House of Lords held that an issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties, even where the decision goes to the court’s jurisdiction.  In the present case, Mr Buley and Miss Broadfoot both argue that Mrs Griew’s May decision gave rise to such an issue estoppel and that Judge Poynter was therefore bound by that decision.

 

170. There can be no doubt that Mrs Griew was a “court of competent jurisdiction” for these purposes and I do not understand Judge Poynter to have suggested otherwise either in his decision notice or, more importantly, in his statement of reasons.  He did not hold that Mrs Griew had no power to make the May decision in the sense that she had no power to decide whether or not to admit the appeals.  He plainly accepted, at paragraph 19 of the statement of reasons, that she did have power to revisit her April decision, even on the basis that it was made under regulation 19 so that regulation 19(10) might have appeared to be an obstacle.  Moreover, having unsurprisingly found that she had no power to admit the appeals under regulation 19 if they were late, he went on to consider the argument that they were not late and rejected it.  Accordingly, what he decided was that, although Mrs Griew had jurisdiction to decide whether she should admit the appeals, she had no power to admit them and was wrong in law to do so.  In that, he was correct in the light of our decision on Issue 2.

 

171. He then considered in some detail in his statement of reasons whether Mrs Griew’s decision was binding on him.

 

“Was Ms Griew’s decision binding on me, even though it was wrong?

 

44. …  Although at the relevant time I was a District Chairman and Mrs Griew was a Deputy District Chairman, the jurisdiction we exercised was co-ordinate and I had (and have as a salaried Tribunal Judge) no express power to disregard, overrule or set aside her final decision other than on an application for leave to appeal under the former paragraph 7(2) of Schedule 7 of the [2000] Act (or under section 9 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’)).

 

45. Two questions arise.  The first is whether Mrs Griew’s decision to accept the appeal was final or whether it was one that was open to reconsideration.  The second is whether, even if that decision was final, there are factors in this appeal that entitle or oblige me to disregard it.”

 

172. In his lengthy paragraph 46, he considered the first question and concluded that Mrs Griew’s decision was not final, for reasons to which I will return.  He then turned to the second question –

 

“If Mrs Griew’s decision was final, was I nevertheless entitled or obliged to disregard it?

 

47. For the reasons given above, I take the view that Mrs Griew’s decision was not final but was open to reconsideration by (at least) her and by the tribunal seised of the substantive appeal.  In those circumstances, the question of whether I would have been entitled to disregard it were it final does not strictly arise.

 

48. However, I do not wish to put my decision on that basis because, even though Mrs Griew’s decision was not final, I would not have disregarded it had it not gone to my jurisdiction.  For reasons on which it is unnecessary for me to elaborate (and which I stress do not reflect poorly on Mrs Griew) this is far from being the first of her decisions that have crossed my desk with a request that it be reconsidered.  I have always, scrupulously, taken the view (as I would with any other Deputy District Chairman) that, even when I considered such decisions to be wrong, they could only be reconsidered by her unless and until she formally released the application to another judge.  Such a stance is required by judicial comity and by the need for the finality in judicial decision-making to which Miss [LS’s] solicitors correctly draw my attention.  Any other stance would encourage forum shopping: applicants could go on asking for reconsideration until they found a judge who was prepared to agree with them.

 

49. What is different in this case is that, whilst I might have disagreed with other decisions, they involved an exercise of judgment or discretion that Mrs Griew had power to make.  That is not so in this case.  Parliament has said that there is to be no appeal against a housing benefit decision more than thirteen months after that decision is notified to the person affected.  By accepting the submission that the decision notices were invalid or ineffective, Mrs Griew erred in law and thereby made a decision to admit an appeal after the expiry of the absolute time limit that she had no power to make (see Morina at paragraphs 37 and 45).  The effect of that decision was to purport to confer on the tribunal a jurisdiction that it did not possess and was not entitled to assume.  Conceptually, the position is no different than would be the case had a legally-qualified panel member purported to admit an appeal against a parking ticket or a decision refusing a social security benefit payable under the law of France (although Mrs Griew would not, of course, have made either of those decisions).

 

50. In those circumstances, had I not disregarded Mrs Griew’s decision, I would myself have been assuming a jurisdiction that had not been validly conferred upon me.  I am not permitted to do that in any circumstances.  It does not matter whether the assumption of jurisdiction is done in reliance upon the consent of the parties, or an error made by a colleague or by my own error.  Whatever the reason, it is simply and straightforwardly impermissible.  Whatever the status of Mrs Griew’s decision, I would have erred in law had I taken any course other than to decline jurisdiction.”

 

173. Paragraphs 47 to 50 are puzzling.  The heading, paragraph 47 and parts of paragraph 50 suggest that Judge Poynter was considering what the position would have been had Mrs Griew’s decision been final.  If Judge Poynter took the view that even if Mrs Griew’s decision had been final he would have been obliged to decline jurisdiction, his view was inconsistent with Watt v Ahsan.  On the other hand, the opening words of paragraph 48 suggest that Judge Poynter was concerned to make clear that the mere fact that Mrs Griew’s decision was not final would not have caused him to disregard it, and effectively to set it aside, had the point not gone to his jurisdiction.  (Although it is possible that “not final” in the first sentence of paragraph 48 was intended to be “final”, the sentence would then have read awkwardly.  Had that been what he meant, one might have expected him to use the clause: “even if Mrs Griew’s decision were final”.)

 

174. However, it is unnecessary for me to decide exactly what Judge Poynter did mean in paragraphs 47 to 50.  To the extent that he may have considered what the position would have been had Mrs Griew’s decision been final, that part of his reasoning was unnecessary to his decision and any error in it may be ignored, given that he had found Mrs Griew’s decision was not final. 

 

175. In Watt v Ahsan, the decision of the Employment Appeal Tribunal was plainly final if, as the House of Lords held, the employment tribunal had been competent to determine the issue of jurisdiction.  Not only had the employment tribunal dealt with the jurisdictional point as a separate preliminary issue, there had also been the appeal to the Employment Appeal Tribunal.  No doubt it was for that reason that finality was not mentioned by Lord Hoffmann.  Nonetheless, it was only because the Employment Appeal Tribunal’s decision was final that the question of jurisdiction was a res judicata (see Spencer Bower & Handley, Res Judicata, 4^th ed (2009), para. 5.01).  If, as Judge Poynter found, Mrs Griew’s May decision was not final, that decision could not have given rise to an issue estoppel and this case is distinguishable from Watt v Ahsan.

 

176. The key issue on this appeal is therefore whether Mrs Griew’s May decision was final.

 

177. In reaching his conclusion that it was not final, Judge Poynter gave greatest weight to the manner in which the decision was made.  It was made in summary fashion without notice to the Council, although Mrs Griew had, or should have had, the Council’s view on the substantive point before her.  The parties were not offered the opportunity to have the issue decided at an oral hearing.  Moreover, the decision did not allude directly to the issue that is said to have been decided by the judge – i.e., whether the appeals were out of time – and was accompanied neither by a statement of reasons nor an offer to supply reasons upon request.  It was also, in the light of Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749: [2007] 1 WLR 3033 (also reported as R(IS) 6/07), not itself appealable.  I am prepared to accept that such a decision may become final, but it would, in my view, be surprising if it were to do so when not accepted, or treated, as final by the parties.

 

178. This type of summary procedure is not generally used in the courts but it is regarded as a proportionate process in many tribunals.  Although it is common in tribunals, I agree with Judge Poynter’s view that decisions made in that way are appropriate only on the basis that they can be revisited at a later date in the event of there being an objection.  The procedure is used mostly for case management decisions which, in any event, are not final decisions capable of founding an issue estoppel because “[i]nterlocutory matters of practice and procedure remain under the control of the court and subject to review and in such matters a dismissal is not a bar to another application” (Spencer Bower and Handley, Res Judicata, 4^th ed (2009), para. 5.02).  There was no express provision in the 1999 Regulations for setting aside decisions made under the Regulations – except for regulation 57 which applied only in limited circumstances – but it seems obvious that, at the very least, case-management directions could be revisited.  Nor was there any express power to hold an oral hearing to consider an interlocutory matter but it does not follow that a legally qualified panel member could not do so.  It was left to appeal tribunals to act fairly and in a manner proportionate to the issues at stake.

 

179. Judge Poynter also referred to Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33 (reported as R(IB) 6/03).  It seems to me that a decision to admit an appeal, unlike a refusal to admit an appeal, may be a truly interlocutory decision or “a determination … along the way leading to a decision” as Laws LJ put it in that case.  Although such a determination was held not itself to be appealable under the 2000 Act, it is clear from Carpenter that, if wrong, it could provide grounds for appeal against the substantive decision.  Where a substantive decision was appealable under paragraph 8 of Schedule 7 to the 2000 Act, a legally qualified panel member had the power, upon receipt of an application for leave to appeal, to set the decision aside under paragraph 7.  It would have been strange if the appeal tribunal could not have corrected an error of law in an interlocutory decision at, or before, the substantive hearing, when it could effectively do so afterwards.

 

180. Carpenter was concerned with a case-management decision, but Laws LJ did not confine his remarks to such decisions and the same approach is implicit in Morina.  In Morina, the Court of Appeal was content to accept that an appeal lay against the Commissioner’s decision accepting jurisdiction even though, had the Commissioner refused permission to appeal on the ground of lack of jurisdiction, no appeal to that Court would have lain in the light of Bland v Chief Supplementary Benefit Officer [1983] 1 W.L.R. 262 (also reported as R(SB) 12/83).  Miss Broadfoot’s submission that, because decisions not to admit appeals or to strike out appeals were challengeable only by way of judicial review, the same must apply to decisions to admit or reinstate appeals is, in my view, too simplistic.  In any event, the fact that a decision is final for the purposes of bringing an appeal or judicial review proceedings does not necessarily mean that it is final for the purpose of creating an issue estoppel.

 

181. Even if it is assumed that the April decision included a decision to strike out the appeals under regulation 46 – which is not how Mr Borrowdale’s case was analysed in Morina – and the May decision is treated as a reinstatement under regulation 47, the May decision was not necessarily final and, indeed, did not necessarily incorporate a decision under regulation 18(4) that the appeals were in time.  Regulation 39(4) provided that, where either party had requested an oral hearing “the appeal tribunal shall hold an oral hearing unless the appeal is struck out under regulation 46(1)”.  Regulation 46 provided merely a power to strike out an appeal; there was no duty to strike out an appeal, even where the appeal tribunal considered that it was an “out of jurisdiction appeal”, and there was also no power to strike out a respondent’s case.  Often jurisdictional issues are clear cut, which is why striking out an appeal was permissible without a hearing (and, indeed, still is under the SEC Rules even though striking out is now mandatory where the First-tier Tribunal lacks jurisdiction).  Nonetheless, it was obviously intended that a contentious jurisdictional issue could be dealt with as part of the substantive appeal.  Consistently with that approach, a case could be reinstated under regulation 47(2)(d) on the ground that “notwithstanding that the appeal is one which may be struck out under regulation 46, it is not in the interests of justice for the appeal to be struck out”.  An argument that a tribunal lacks jurisdiction may be a perfectly good defence to an appeal and it seems to me that the Regulations ensured that the parties were entitled to have the issue determined at an oral hearing in a contentious case.  For all we know of her reasoning (and I agree with Mr Justice Walker and Judge Turnbull that she cannot have meant exactly what she said), Mrs Griew might not have made a firm decision as to the appeal tribunal’s jurisdiction but might have admitted the appeals so that the issue of jurisdiction could be dealt with within the substantive appeal.

 

182. It is because of the manner in which the April decision was made that it was open to Mrs Griew to revisit it in May.  Her May decision was no more final, because it was made in the same way.  Usually, of course, a second decision will be based on additional argument or evidence or at least fuller consideration and is more likely for that reason to be accepted by all parties than a first decision.  However, if it is not accepted or, as here, there is no evidence of it having been based on a fuller consideration of both sides’ arguments, I do not see why in principle it should be any more final than a first decision.

 

183. That is what distinguishes this case from Watt v Ahsan.  Mrs Griew’s decision was not the determination of a preliminary point of the type contemplated by the House of Lords.  Where a court or tribunal directs a hearing of a matter as a preliminary point, it is conducted as a preliminary part of the substantive hearing, with the parties having the same rights to make oral submissions, to be provided with reasons and to appeal.  That was not the case here.

 

184. Nonetheless, a decision made in the manner of Mrs Griew’s May decision could not be open to reconsideration for ever and in all circumstances.  Fairness to other parties means that there must come a time when they can rely on a decision, however it is made.  In particular, it seems to me that an issue estoppel will arise where the conduct of one party has induced another to treat the decision as final to their disadvantage because, for instance, it has obliged them to incur costs they would not otherwise have incurred.  Conduct can include inaction but I have some difficulty in seeing how inaction can give rise to an issue estoppel until any time for challenging the decision by way of appeal or an application for judicial review has expired, particularly when parties do not have legal representation and may not realise the potential significance of inaction.  Moreover, it is consistent with the approach taken in Carpenter – and, indeed, a general approach of discouraging interlocutory appeals – that a decision that does not terminate proceedings should not generally be regarded as final until the proceedings have been concluded.

 

185. I accept that Miss LS and her representatives may have been taken by surprise when, on 5 August 2008, Mr Rufus asked Mr Russen to reconsider Mrs Griew’s May decision, but the Council had not given any positive indication to Miss LS that it would not do so and in social security cases before tribunals parties are not usually confined to arguing points raised in their submissions.  Moreover, the issue was not a new one for Miss LS’s representatives and, perhaps most importantly, the three months for challenging the decision by way of judicial review had not expired.  In my judgment, Mr Russen was wrong to hold that he was not entitled to reconsider Mrs Griew’s decision because, at the date of the hearing before him, the May decision had not become final.

 

186. It was following Mr Russen’s decision that, on 9 September 2008, the Council wrote to Miss LS’s solicitors –

 

“The Authority has no further intentions of challenging the issues on the grounds of “out of absolute time” to appeal, due to time factor for your client.”

 

However, it was made clear in that letter that the Council disagreed with Mrs Griew’s decision and had even applied for permission to appeal.  Its approach was plainly the consequence of Mr Russen’s erroneous ruling.  It is entirely understandable that the Council should not have wished to incur the costs of judicial review proceedings against a tribunal that could probably escape liability for costs by playing no part in the proceedings and with the interested party, Miss LS, likely to be granted legal aid and so also immune from a costs order.  It should not have been told that that was the only way the May decision could be challenged.  Moreover, the attempt of Mr Bennett to put matters right on 20 August 2008, after an application for permission to appeal had been made, was thwarted by, it would seem, the tribunal’s administration’s failure to issue his ruling and instead merely to arrange a new hearing.  The parties were unaware of his ruling but were aware that no other ruling had been made on the Council’s application for permission to appeal.

 

187. Although a summary decision may become final as a result of representations or conduct of a party, that does not, in my view, extend to cases where the representation or conduct is induced by an error made by the tribunal, at least where other parties are aware of the error (even if not aware that it was an error).  Proceedings must be fair to all parties.  Moreover, in the absence of a concession that her case on Issue 2 was hopeless, it is not obvious that Miss LS was induced to act to her disadvantage by the Council’s letter of 9 September 2008.  She would presumably still have been represented at the hearing on 9 October 2008 even if she and her representatives had realised that the jurisdictional issue remained live.

 

188. The May decision not being final – and Mr Russen’s decision not being final either because he ultimately merely gave a case-management direction – Judge Poynter was, in my judgment, right to consider that he was bound to reconsider the May decision, given the justified doubts about it that he obviously had and, more importantly, the fact that the Council had wanted the decision reconsidered.  Having reconsidered it, he was bound to replace it with a new decision, because it was wrong in law.  In the absence of issue estoppel, tribunals ought not to allow detected errors of law to remain uncorrected.  I would add that, even if a decision is not wrong in law, considerations of comity ought not to carry great weight where a decision made without full argument is considered to have been clearly inappropriate by a judge who has had the benefit of much fuller argument (see Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) at [19]). 

 

189. For these reasons, I would dismiss this appeal.  If that would lead to an unjust result on the facts of this case, that is due to there being an absolute time limit beyond which time for appealing cannot be extended in even the most meritorious case, rather than because there is no issue estoppel.

 

 

Mr Justice Walker, Chamber President

 

 

Upper Tribunal Judge Rowland

 

 

Upper Tribunal Judge Turnbull

 

22  December 2010