IN THE UPPER TRIBUNAL Case No  CIS/1759/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.  The decision of the First-tier Tribunal sitting at Fox Court on 10 July 2009 under reference 242/08/08884 involved the making of an error on a point of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraphs 23 and 24 of the Reasons.

 

REASONS FOR DECISION

 

1. Both the claimant and the Secretary of State have expressed the view that the decision of the tribunal involved the making of an error on a point of law and have agreed to a rehearing.  That makes it unnecessary to set out the history of the case or to analyse the whole of the evidence or arguments in detail.  I need only deal with the reason why I am setting aside the tribunal’s decision.

 

2. The case was an appeal against two decisions that overpayments of income support had been made, totalling £14,383.03, and were recoverable.  This was on the basis that the claimant had failed to disclose that she was living together as husband and wife with Mr H, who was engaged in remunerative work. The claimant’s appeal was in substance against the entitlement decisions which had preceded the overpayment decisions, as it was her case that she and Mr H had not at any material time been living together as husband and wife.

 

3. Following a number of postponements and abortive hearings, the case came before the tribunal on 10 July 2009.  A decision notice was issued that day, the terms of which it is necessary to set out in full.   After the conventional heading setting out details of the hearing, judge and parties, it continued (errors etc in original):

 

“DECISION NOTICE

 

The appeals are disallowed.

 

The decisions of the Secretary of State issued on 11/02/2008 and 22/11/2007 are confirmed.

 

Statement of Reasons for Decision

 

1. Decision dated 11/02/2008 is confirmed.  The Appellant is not entitled to income support of £128.59 from 11/01/2005 to 04/02/2007 because she had a partner with whom she lived with and he was in remunerative work.

 

2. Decision dated 22/11/2007 is confirmed.  The Appellant is not entitled to income support of £59.15 from 08/11/2007 to 09/01/2008 because she had a partner with whom she lived with and he was in remunerative work.

 

3. The Tribunal did not find the Appellant to be a credible witness.    There is ample evidence to demonstrate that the Appellant was living   with Mr H and not at a London address as she would have the Tribunal believe.  I found as a matter of fact that the Appellant was living with Mr H and their children between the relevant period.

 

4. I found that I could not rely on the statement’s which support the Appellant’s case because none of her witnesses attended the oral hearing, notwithstanding the fact that I had indicated on a previous hearing that I would expect the witnesses to attend.  I found these   statements to self serving and unreliable.”

 

4. On 24 July 2009, the claimant’s representatives, her local law centre, wrote to the clerk to the tribunal asking for confirmation of whether the statement of reasons included in the decision notice was complete and, if it was not, for a copy of the complete statement of reasons to be forwarded to them.

 

5. Nothing was heard from the Tribunals Service and so on 18 September 2009 the law centre wrote again to the Tribunals Service enclosing a copy of the earlier letter and making what was described as “an application under regulation 54 of the Social Security and Child Support Regulations 1999 to extend the time for making an application for the statement of reasons for a tribunal’s decision.”  The statutory reference should have been to rules 5 and 34 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, but the intention was clear.

 

6. On 13 October the clerk to the tribunal replied:

 

“Further to your letter dated 18^th September, I can confirm that the   decision for these appeals acts as the full statement of reasons.”

 

7. On 13 November 2009 an application was made seeking a set-aside and/or permission to appeal.  It is not clear on what the set-aside application was based; the application for permission to appeal was based on a challenge to the facts found and reasons given. On 24 November 2009 the Tribunals Service replied (notwithstanding its letter of 13 October), stating that it was necessary to request a statement of reasons before an application for leave to appeal to the Upper Tribunal could be made. The Tribunals Service subsequently informed the claimant’s representative that the papers had been sent back to the tribunal judge for him to decide whether the decision notice did indeed contain a statement of reasons. Nothing further having apparently happened, the representatives wrote again on 14 January 2010 setting out the above, suggesting that there was no provision that allows the tribunal judge to expand or revise his statement of reasons once these have been issued and asking for the application for permission to appeal to be duly considered.  This elicited a reply dated 19 February 2010 in the following terms:

 

“Thank you for your letter dated 14 January 2010 which has been referred to District Judge Bates.  The statement included in the decision notice is not a full statement of reasons within the meaning of the rules.  The full statement is now attached.

 

Please confirm that you still want to appeal and the matter will be placed before a District Tribunal Judge.”

 

 Attached was a substantial document, covering seven sides of double-spaced typed A4, signed by the original tribunal judge and described as "Statement of Reasons for Decision”.

 

I have the First-tier Tribunal’s file and there is no other evidence of the process which led to the issue of the letter dated 19 February 2010.

 

8. An amended or further application for permission to appeal was made on 21 March 2010, challenging the process adopted by the First-tier Tribunal in relation to the decision notice and statement of reasons as well as maintaining challenges to the findings of fact by the tribunal.  Permission to appeal was refused below, but given, together with the slight extension of time necessary, by me.

 

9. Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008/2685 provides:

 

“(1) [Relates to asylum support cases]

 

(2) In all other cases the Tribunal may give reasons for a decision which disposes of proceedings (except a decision under Part 4)—

(a) orally at a hearing; or

(b) in a written statement of reasons to each party.

 

(3) Unless the Tribunal has already provided a written statement of   reasons under paragraph (2)(b), a party may make a written application to the Tribunal for such statement following a decision which finally disposes of all issues in the proceedings.

 

(4) An application under paragraph (3) must be received within 1 month of the date on which the Tribunal sent or otherwise provided to the party a decision notice relating to the decision which finally disposes of all issues in the proceedings.

 

(5) If a party makes an application in accordance with paragraphs (3) and (4) the Tribunal must, subject to rule 14(2) (withholding information likely to cause harm), send a written statement of reasons to each   party within 1 month of the date on which it received the application or as soon as reasonably practicable after the end of that period.”

 

10. Once an application for permission to appeal has been made to the tribunal, its role is set out in rule 39:

 

“(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 40 (review of a decision).

 

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

 

(3) The Tribunal must send a record of its decision to the parties as soon as practicable.

 

…”

 

11. The relevant provisions of rule 40 regarding reviews are as follows:

 

“…

(2) The Tribunal may only undertake a review of a decision—

(a) pursuant to rule 39(1) (review on an application for permission to appeal); and

(b) if it is satisfied that there was an error of law in the decision.

 

(3) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.

 

(4) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (3) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”

 

12. The power to review is conferred by section 9 of the Tribunals, Courts and Enforcement Act 2007. So far as relevant, it provides:

 

“(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).

…

(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following–

(a) correct accidental errors in the decision or in a record of the decision;

(b) amend reasons given for the decision;

(c) set the decision aside.

…”

 

13. In my view, rule 34(2)(b) is broad enough to include a statement of reasons given as an addendum to a decision notice , as here.  Rule 34(3) clearly envisages that a statement of reasons may have been provided without the need for a request for one.  Although it may not be every brief explanation as part of a decision notice that is to be so treated, I conclude from the way in which he framed it (particularly with the underlined heading and use of capitals in “Statement of Reasons for Decision“, which convey a certain formality), that the tribunal judge in this case was intending to provide the statement of reasons which rule 34 envisages.

 

14. Further, that that was the case was expressly confirmed on behalf of the tribunal by the clerk’s letter of 13 October, which was unlikely to have been written without reference to a judge.

 

15. I am not concerned here with the not uncommon issue of where a tribunal judge in refusing permission to appeal makes comments which could be seen as attempts to supplement the statement of reasons for decision.  Nor am I concerned with anything that could be viewed as “any clerical mistake or other accidental slip or omission” so as to be capable of correction under the provision made by rule 36.

 

16. I do not consider that it was open to the District Tribunal Judge simply to declare that what had been stated by the tribunal judge to be a statement of reasons was not one.  There is in my judgment only one route by which it would be open to replace, wholesale, one statement of reasons with another, and that is by the power of review under section 9.  The relevant issues are set out in AM v SSWP [2009] UKUT 224 (AAC). If the statement of reasons given by the tribunal judge fell short of the standard required by law, that would be in error of law.

 

17. In R(RB) v First-tier Tribunal (Review) [2010] UKUT 160 it was stated that

 

“if a power of review is to be exercised to set aside the original decision because of perceived error of law, this should only be done in clear cases.”

 

Even if one assumes – without deciding -  that it must likewise be a “clear” error of law in cases where the reasons are to be amended rather than the decision set aside, it may be that this could have been seen as a clear case – the paucity of the original reasons is suggested by the fact that the same judge considered that seven sides were needed second time round to do what he had done in little more than one page (including the decision) the first time.

 

18. It might, therefore, have been a case in which the power of review could have been properly triggered.  The District Tribunal Judge was authorised as a salaried judge to consider the application for permission to appeal (and with it, the possible exercise of the power of review) from the decision of the original tribunal judge, under the terms of the Practice statement on the composition of the tribunals in social security and child support cases in the Social Entitlement Chamber.  So, it could have been done.  But was it done?  In my view, it was not.  Firstly, there was no reference anywhere in the papers to the substitution of the statement of reasons having been effected following a review.  This is to be contrasted with the decision of 18 May 2010 refusing the renewed application for permission to appeal, in which the District Judge expressly indicates that she was not intending to review the decision. The inference I draw is that the District Tribunal Judge, while aware of the review provisions, was not purporting to exercise them when the statement of reasons was substituted.  Secondly, if there had been a review at that point, the tribunal was required by rule 40(3) to send a record of its decision to the parties, which so far as I can see it did not. Compliance with rule 40(3) is not a mere empty formality, but because of the requirements of rule 40(4) is an essential protection for all parties where a tribunal takes action following a review without having first invited representations. In this case there is no evidence that representations were invited from the parties, nor was the safeguard of rule 40(4) complied with. In AM the Upper Tribunal Judge held that these provisions were mandatory.  While I am relying in part on the existence of this rule to conclude that the substitution of the statement was not effected under the review powers at all, if I am wrong in that, the purported review was in any event invalid because of non-compliance with these provisions.

 

19. I conclude therefore that the substitution of the earlier short statement of reasons by the subsequent long statement of reasons was not effected following a review (and certainly not a lawful one) and, as there was no other route available for doing it, was not lawful.

 

20. I therefore do not need to consider further here the issues around whether the contents of a second statement of reasons, formulated seven months after the original decision and after an application for permission to appeal had already been made, could safely be relied upon.

 

21. The Secretary of State supports the appeal substantially on these grounds.  He, correctly in my view, does not invite me to uphold the second statement of reasons on the basis that even if it was not lawfully done under the powers set out above, it could have been. In view of the error of law which he concedes there to be, he invites me to remit the case for rehearing, which I accept is a proper approach because of the importance of the credibility of witnesses whom I have not had the chance to hear.

 

22. I do not need to deal with any other error on a point of law that the tribunal may have made.  Any that were made will be subsumed by the rehearing.

 

23. I direct that the tribunal must conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.  While the tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to these but must consider all aspects of the case, both fact and law, entirely afresh.  The tribunal must not take into account any circumstances that were not obtaining at the date of the decisions appealed against – see section 12(8)(b) of the Social Security Act 1998- but may take into account evidence that came into existence after the decision was made and evidence of events after the decision was made, insofar as it is relevant to the circumstances obtaining at the date of decision: R(DLA)2/01 and 3/01.

 

24. The file should be placed before a District tribunal Judge of the First-tier Tribunal as soon as possible for case management directions.

 

25. The fact that this appeal has succeeded on a point of law carries no implication as to the likely outcome of the rehearing, which is entirely a matter for the tribunal to which this case is remitted.

 

(signed)

C.G.Ward

Judge of the Upper Tribunal

21 January 2011