Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Case Nos.:  CH/3186/2009 JR/131/2010

 

Before: Upper Tribunal Judge Rowland

 

Attendances:

 

For Salisbury Independent Living: Mr John McKendick of Counsel, instructed by Beech Jones de Lloyd, solicitors of Liverpool

 

For Wirral Metropolitan Borough Council: Ms Jenni Richards of counsel, instructed by Weightmans LLP, solicitors of Liverpool

 

Decision: 

 

In case no. CH/3186/2009: (a) the applications of the eleven named claimants for permission to appeal are not admitted because they have not been brought by or on behalf of those claimants;

(b)  the application of Salisbury Independent Living for permission to appeal is granted and the appeal is allowed.  The decision of the First-tier Tribunal dated 12 June 2009 is set aside insofar as it was directed that the appeals before the First-tier Tribunal would be struck out if there was a failure to comply with paragraph 1 of the directions.  There is substituted a decision to the same effect as the First-tier Tribunal’s decision save that, for the words “will be struck out” in paragraph 1, there are substituted the words “will proceed on the basis that Salisbury Independent Living is the appellant”.

 

In case no. JR/131/2010: (a)  the applications of the eleven named claimants for permission to apply for judicial review are not admitted because they have not been brought by or on behalf of those claimants;

(b)  the application of Salisbury Independent Living for permission to apply for judicial review is dismissed.

 

 

REASONS FOR DECISION

 

1. I have before me an application for permission to appeal and, in the alternative, an application for permission to apply for judicial review in respect of interlocutory decisions made by the First-tier Tribunal (Social Entitlement Chamber) in a protracted dispute between Salisbury Independent Living (“SIL”) and Wirral Metropolitan Borough Council (“the local authority”) concerning housing benefit claimed by SIL to be due to its tenants and former tenants.

 

The background

 

2. SIL is an organisation in the voluntary sector, supporting vulnerable adults living in the community.  It is, I understand, incorporated as a company limited by guarantee.  It has four buildings divided into flats for single tenants and it also has other “outreach” properties in the local authority’s area.  The tenants have been reliant on housing benefit in order to pay their rent.  The claims for housing benefit in the present cases cover various periods from 1999 to 2008.  The current dispute is mostly over the amounts of the eligible rents in respect of the tenants and, in particular, whether accommodation was “exempt accommodation”, how much is due under the “Transitional Housing Benefits Scheme” and whether certain service charges are eligible housing costs.  In some cases there is an additional question whether there was good cause for the claim being made late.  SIL claims that the amount of benefit owed in respect of the ten tenants most directly concerned with the present applications is just under half a million pounds, with the total for all its tenants being significantly in excess of three million pounds, and effectively accuses the local authority of prevaricating and failing to make necessary decisions promptly.  The local authority contends that SIL’s charges to its tenants are excessive, that claims made on behalf of its tenants have frequently been late, that SIL has failed to provide evidence in a timely manner and that SIL still owes some £60,000 in recoverable overpayments.  The questions whether the charges were excessive is one of the substantive issues in these cases.  On other issues, I suspect that there is some force in each of the parties’ complaints about the other and that neither party has therefore been entirely blameless in the past conduct of the proceedings.  Whether that is actually so and how much blame might be attached to each party are not matters I need consider.

 

3. It is also unnecessary for me to set out the full history of the litigation.  Suffice it to say that, after a successful appeal by some claimants, an unsuccessful appeal to a Social Security Commissioner by the local authority (CH/39/2007) and two sets of judicial review proceedings before Walker J, decisions in respect of 59 tenants and former tenants were made on 1 October 2008.  Applications for review were made in all the cases and revised decisions were issued on various dates in January 2009.  On 13 February 2009, notices of appeal were submitted in the names of 53 tenants or former tenants by solicitors instructed by SIL.  It appears that there were 66 appeals altogether.

 

4. The local authority objected to a number of the appeals on the ground that they had not been signed by the individual claimants and had in reality been brought by the solicitors who did not themselves have a right of appeal.  The lack of signatures was due to two of the former tenants having died and SIL having been unable to contact some of the others.  SIL sought to get round this by applying to be added as a party to the proceedings.  These issues were considered at a directions hearing on 12 June 2009. 

 

The decision of the First-tier Tribunal

 

5. The judge refused to add SIL as a party, saying –

 

“Whilst Miss Meacher, on behalf of the claimants, sought to have the landlord added to the proceedings as a person affected, the tribunal declined to do so on the basis that such an order could only be made on a valid appeal.”

 

6. He also directed that, except where the notice of appeal had been signed by the claimant –

 

“the claimants should provide signed authority confirming that they wish the appeals to proceed and that they wish to be represented by the solicitors who effectively represent the landlords …, no later than 5.00pm on 24^th July 2009, failing which the appeal will be struck out.”

 

7. Other case management directions made by the judge are not challenged in these proceedings.

 

8. In the event, ten appeals, including the appeals on behalf of the two deceased claimants, were automatically struck out under rule 8(1) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) (“the Rules”) because the necessary signatures had not been not provided by the deadline set by the judge.

 

Subsequent proceedings

 

9. SIL sought a statement of reasons.  This elicited a letter from the clerk to the First-tier Tribunal who set out two paragraphs dictated by the judge, which did not add anything to what had already been said.  In any event, an application for permission to appeal was made, naming the claimants whose cases had been struck out (and, in error, another claimant) and SIL as the appellants.  The judge refused to reconsider or review his ruling and direction and refused permission to appeal.  An application for permission, naming the same claimants and SIL as appellants, was then made to the Upper Tribunal and that is the application for permission to appeal that is now before me.  The appellants have also lodged an application for permission to apply for judicial review, making it clear that this was done only in case it was necessary as an alternative to the appeal.

 

10. On 22 February 2010, I directed that the appellate and judicial review proceedings be considered together, that all submissions should be made in the appellate proceedings and that there should be a “rolled-up” hearing.  I also dismissed interlocutory applications by both parties and issued case-management directions.  Both the First-tier Tribunal (the Respondent in the judicial review proceedings) and the Secretary of State for Work and Pensions (potentially a respondent to the appeal and an interested party in the judicial review proceedings) subsequently indicated that they wished to play no part in the proceedings.

 

The position of the claimants

 

11. Rule 23(6) of the Rules provides that a notice of appeal to the First-tier Tribunal “must be signed by the appellant”.  Insofar as this is a matter of form, non-compliance may be waived under rule 7(2)(a).  However, the signature provides proof that the appeal is brought by the person who is claimed to be the appellant.  The requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions.  In this case, the lack of signature was considered important because it was the local authority’s case that the appeals had not been brought either by the claimed appellants or on their behalf and that therefore the appeals were not valid.  Although the judge did not express himself in that way, I accept Ms Richards’ submission that the real basis of the judge’s decision must have been that he was not prepared to accept that the appeals were brought by or on behalf of the claimants unless their signatures were produced by the deadline he set.  It is obvious that the signature of a dead person could not be produced, but it is equally obvious that the signature of a person entitled to act in place of the dead person would have been accepted.

 

12. It is not disputed by SIL that the reason that signatures have not been produced in the ten relevant cases is that SIL has lost contact with the eight living former tenants and does not have details of the next of kin or personal representatives of the deceased former tenants.  It therefore accepts that it did not have express authority to bring the appeals before the First-tier Tribunal or, indeed, the proceedings before the Upper Tribunal.

 

13. However, it was argued before the First-tier Tribunal, and rather more faintly before me, that SIL had implied authority to act on behalf of its tenants and former tenants.  I do not accept that submission.  It was no doubt understood between the claimants and SIL that the claimants would be unable to pay their rent if they did not claim housing benefit and that they would therefore do so and take such further action as was necessary to secure the right amount of benefit.  It may also have been understood that the claimants, being vulnerable, would be assisted by SIL in making their claims, would allow SIL to submit them and would ask that their housing benefit be paid direct to SIL.  However, there was nothing about their particular situation that implied that SIL should be able to appeal, or even claim, without the express authority of the claimant.  The legislation provides that housing benefit is to be claimed by tenants and not by landlords.  Supporting people in the community implies assisting them to make claims rather than doing it for them.  I note that one of the local authority’s concerns about SIL was that it did not “sufficiently promote the independence of a number of its tenants”.  Where a person is incapable of managing his or her own affairs, someone else may be appointed under regulation 82 of the Housing Benefit Regulations 2006 (SI 2006/213) to claim on his or her behalf but that was not the position here.  In my view, there was no more reason for an implied right to appeal on behalf of the claimants to be attributed to SIL in this case than there would have been in the two cases considered in R v Stoke City Council, ex parte Highgate Projects (1993) 26 H.L.R. 551 and there was not the express authorisation here that there was in the “Stoke case” itself.

 

14. Accordingly, in my judgment, the First-tier Tribunal was entitled to direct that, if the claimants’ signatures were not forthcoming, the appeals should be treated as having been brought without the claimants’ authority. 

 

The refusal to add SIL as a party to the proceedings

 

15. It was argued before the First-tier Tribunal that SIL should be added as a party to the proceedings because it was a “person affected by the decision” being challenged.  Put in this way, the application was misconceived.  As the judge pointed out, a person can be added as a party under rule 9 of the Rules only if there already exists a valid appeal.  It was unnecessary to add SIL as a party in the appeals where it had been authorised to act as the claimants’ representative and in those cases where no such authorisation was forthcoming, there would be no valid appeals once they were struck out.  Moreover, rule 9 permits the addition of a person as a respondent but not as an appellant.  It would be inappropriate to add a person as an appellant if he or she had no right of appeal and any person who is not an appellant but had a right of appeal is in any event a respondent (see subparagraph (a) of the definition of “respondent” in rule 1(3)) without needing to be added.

 

Was SIL a party to the proceedings without needing to be added?

 

16. Unfortunately, it seems to me that the way the case was argued before the First-tier Tribunal obscured the real question which was whether SIL was already a party to the appeals and, indeed, was the true appellant in the cases brought without the authority of the claimants.

 

17. Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (“the 2000 Act”) makes provision for adjudication in housing benefit and council tax benefit cases.  Paragraph 6(3) provides –

 

“”In the case of a decision to which this paragraph applies, any person affected by the decision shall have a right of appeal to the First-tier Tribunal.”

 

18. The question whether SIL was a “person affected by the decision” in each case was raised in connection with the application to add SIL as a party.  Mr McKendrick, supported on this issue by Ms Richards, submitted that the judge should have given reasons for not accepting that SIL was “a person affected by the decision”.  However, it seems to me that the judge simply thought it unnecessary to consider that issue in view of his decision that there could be no question of adding a party to an invalid appeal.  His error was not in failing to give adequate reasons for what he did decide but in failing to decide whether SIL had an independent right of appeal and, since the appeals had been submitted by solicitors instructed by SIL, whether SIL should therefore be taken to have been acting on its own behalf in those cases where it did not have authority to act on behalf of the claimants in whose names the appeals had been submitted.  That error is only material if SIL did have an independent right of appeal.  Mr McKendrick submits that it did.  Ms Richards submits that it did not.

 

19. Paragraph 23(2) of Schedule 7 to the 2000 Act provides –

 

“Regulations may make provision specifying the circumstances in which a person is or is not to be treated for the purposes of this Schedule as a person who is affected by any decision of the relevant authority.”

 

20. Regulation 3 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001/1002) (the “2001 Regulations”) is made under paragraph 23(2) and provides –

 

“(1) For the purposes of Schedule 7 to the Act and subject to paragraph (2), a person is to be treated as a person affected by a relevant decision of a relevant authority where that person is –

(a)  a claimant;

(b)  in the case of a person who is liable to make payments in respect of a dwelling and is unable for the time being to act –

  (i) a deputy appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf,

  (ii) in Scotland, a tutor, curator, judicial factor or other guardian acting or appointed in terms of law administering that person’s estate, or

  (iii) an attorney with a general power or a power to receive benefit appointed by the person liable to make those payments under the Powers of Attorney Act 1971, the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise;

(c)  a person appointed by the relevant authority under regulation 82(3) of the Housing Benefit Regulations, regulation 63(3) of the Housing Benefit (State Pension Credit) Regulations … (appointments for persons unable to act);

(d)  a person from whom the relevant authority determines that –

  (i) an overpayment is recoverable in accordance with Part 13 of the Housing Benefit Regulations or Part 12 of the Housing Benefit (State Pensions Credit) Regulations; or

  (ii) …;

(e)  a landlord or agent acting on behalf of that landlord and that decision is made under –

  (i) regulation 95 (circumstances in which payment is to be made to the landlord) of the Housing Benefit Regulations;

  (ii) regulation 96 (circumstances in which payment may be made to the landlord) of those Regulations;

  (iii) regulation 76 (circumstances in which payment is to be made to the landlord) of the Housing Benefit (State Pension Credit) Regulations;

  (iv) regulation 77 (circumstances in which payment may be made to the landlord) of those Regulations.”;

(2) Paragraph (1) only applies in relation to a person referred to in paragraph (1) where the rights, duties and obligations of that person are affected by a relevant decision.”

 

21. Thus subparagraph (e) treats a landlord as a person affected by a decision only insofar as the decision is one as to whether or not payment should be made directly to the landlord.  However, in CH/3817/2004, Mr Commissioner Mesher, as he then was, pointed out that regulation 3 said who was to be treated as a person affected by a decision but did not, as paragraph 23(2) of Schedule 7 to the 2000 Act would have permitted, say that any other person was not to be treated as being a person affected by the decision.  He held that, in those circumstances, a person not mentioned in regulation 3 could claim to be a person affected by a decision for the purposes of paragraph 6(3) of Schedule 7 to the 2000 Act and he decided that a claimant’s partner would have been a person affected by a decision that left her unable to pay the rent for which she was jointly and severally liable with the claimant had the decision in question fallen within paragraph 6(1) of the Schedule.

 

22. Mr McKendrick relied upon that decision and also on R v Stoke City Council, ex parte Highgate Projects, to which I have already referred.  At the time the latter case was decided, there was no statutory appeal from a local authority’s decision in respect of housing benefit.  Instead, Part XI of the Housing Benefit (General) Regulations 1987 (the “1987 Regulations”) provided that any “person affected by a determination” should be notified of it and was entitled to apply for a review.  Regulation 2(1) provided that –

 

““person affected” means any person (including the appropriate authority) whose rights, duties or obligations are affected by a determination, whether or not on review, or by a decision on further review”.

 

23. The question that arose for consideration by a divisional court of the Queen’s Bench Division (Henry LJ and Mitchell J) was whether the landlords in two cases, referred to as the “Birmingham case” and the “Stoke case”, were persons affected by determinations made in housing benefit claims in respect of their tenants.

 

24. In the Birmingham case, the landlord let bedsits to three tenants on assured shorthold tenancies at a contractual rent of £195 per week.  Housing benefit was awarded at the rate of only £99.99 per week in two cases and £67.41 per week in the third.  Two of the tenants left without providing forwarding addresses and the landlord, who had been notified of the decisions because the housing benefit was to be paid to him, applied unsuccessfully for a review of all three determinations on the ground that the amounts awarded were too low and then applied for a further review, by which time the third tenant had also left.  The question before the Court was whether the landlord had been entitled to apply for a review or further review.  Henry LJ, with whose judgment Mitchell J agreed, said at 558 –

 

“But while the fact that that benefit is to be paid direct will affect his ‘rights, duties, and obligations’ and so come within the restricted definition, the quantum of that payment will not affect those matters at all.  Whether the benefit payment is adequate or inadequate will not affect the landlord’s rights, duties and obligations under either the lease or the Regulations.  Therefore in relation to the quantum of the tenant’s claim, they are not persons affected in the way those words are used in the Regulations.”

 

25. In the Stoke case, the landlord ran hostels for persons who had been convicted or were at risk of committing criminal offences and, as in the present case, hoped to recoup a substantial proportion of the cost of the support it provided through service charges that the local authority decided were not eligible service charges.  The Court found that the landlord was entitled to apply for a review for two reasons.  The first was simply because the licensees had authorised it to do so on their behalf, but Henry LJ went on to say at 562 –

 

“Secondly, the Project was expected to provide general counselling and other support services for their licensees.  Such services cost money.  A major source of the Project’s funds (and therefore ability to provide services) were amounts recovered or hoped to be recovered by way of housing benefit.  In these circumstances, the project is in my judgment capable of being a ‘person affected’ within the meaning of the Regulations, in that its provision of its duties and obligations to its licensees is affected by the amount of housing benefit recovered.  The Project is thus quite differently placed to ordinary landlords.”

 

26. It is not easy to discern the principle behind the distinction, since presumably an ordinary landlord’s ability to provide the accommodation and keep it maintained, in fulfilment of his duties and obligations under the lease or other agreement, may equally be affected by the amount of housing benefit recovered.  However, it seems to me that the Court must have been influenced by the unfairness there would otherwise be to a landlord delivering a degree of what might be regarded as social care without knowing in advance what the remuneration would be, as had previously been the case when there had been standard amounts of housing costs for hostel-dwellers met through income support or, alternatively, a grant might have been paid.  In any event, while the Upper Tribunal is not bound by decisions of the High Court exercising its supervisory jurisdiction where an appeal to the Upper Tribunal is effectively the successor to that supervisory role (Secretary of State for Justice v RB [2010] UKUT 454 (AAC)), a single judge of the Upper Tribunal should follow a decision of a divisional court (i.e., two or more judges of the High Court sitting together) as a matter of judicial comity, just as a single judge of the High Court follows a decision of a divisional court (R v Greater Manchester Coroner, ex parte Tal [1985] Q.B. 67, 81) and a single judge of the Administrative Appeals Chamber of the Upper Tribunal follows a decision of a three-judge panel of the Upper Tribunal (Dorset Healthcare NHS Foundation Trust v. MH [2009] UKUT 4 (AAC) at [37]).  I therefore must accept that the distinction drawn by the divisional court in the Stoke case could properly be drawn under the legislation in force at the time.

 

27. Mr McKendrick submits that the approach taken in the Stoke case should be applied to the present case for the purposes of paragraph 6(3) of Schedule 7 to the 2000 Act.  Here, as in that case, the dispute is over entitlement to, or the amount of, that element of the eligible rent in the calculation of housing benefit that is designed to enable tenants to pay for services provided to them in pursuance of their agreements with SIL.  In fact, if CH/3817/2004 is rightly decided, there is now no statutory provision restricting the meaning of “person affected” to those whose rights, duties and obligations are affected except in relation to those people specified in regulation 3(1) of the 2001 Regulations, but I will decide this case on the basis that that is the natural meaning in this context.  I accept Mr McKendrick’s submission that there is no material factual distinction between this case and the Stoke case.

 

28. Ms Richards, however, submits that the legislative history, which was not considered in CH/3817/2004, shows that CH/3817/2004 was wrongly decided on the issue material to this case.  She points out that, shortly after the Court decided R v Stoke City Council, ex parte Highgate Projects – although it was seventeen months afterwards rather than just five months afterwards – the definition of “person affected” in regulation 2(1) of the 1987 Regulations was amended by regulation 2 of the Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No.2) Regulations 1994 (SI 1994/2137) so that it read –

 

“‘person affected’” means a person who is—

(a)  a claimant;

(b)  the appropriate authority;

(c)  the landlord, in the case of a determination made under regulation 93 or 94; or

(d)  a person from whom the appropriate authority determines that an overpayment is recoverable in accordance with Part XIII,

and whose rights, duties or obligations are affected by a determination, whether or not on review, or by a decision on further review.”

 

29. That, as was no doubt intended, gave statutory effect to the Birmingham decision while reversing the Stoke decision on the issue material to this case.  The definition did not allow for the possibility that a person other than those mentioned in subparagraphs (a) to (d) could be a “person affected”.  Ms Richards submits that it must have been intended that regulation 3 of the 2001 should have the same effect.

 

30. That Ms Richards’ approach requires a non-literal construction to be given to the current legislation is clear.  The structure of the current legislation is different from the structure of the previous legislation.  Regulation 2 of the 1987 Regulations defined the term “person affected”.  Regulation 3 of the 2001 Regulations does not purport to do so.  The term “any person affected by the decision” appears in the 2000 Act without any definition.  Paragraph 23(2) of Schedule 7 permits, but does not require, regulations to specify who is, or who is not, a person affected by a decision.  Regulation 3 provides that certain persons are to be treated as persons affected by a decision but does not provide that all others, or any others, are not to be treated as persons affected by a decision.  I do not understand Ms Richards to challenge Mr Commissioner Mesher’s literal analysis of the legislation in CH/381472004.  The question is whether the legislative history shows that a literal construction is not appropriate.

 

31. The difficulty with Ms Richards’ approach is that it assumes that the intention of Parliament and the Secretary of State was the same in 2000 and 2001 as it had been in 1994.  I do not consider that any such assumption can properly be made, notwithstanding the letter from the office of the Solicitor to the Department for Work and Pensions and the Department of Health dated 4 June 2010 sent to the local authority’s solicitors.  It seems to me to be quite possible that, upon reconsideration, the view was taken in 2000 or 2001 that the Court had been right to regard the landlord in the Stoke case to have a sufficient interest to justify being entitled to challenge a decision and that there might be other cases where a person not falling within the scope of regulation 3 ought to be regarded as a person affected by a decision.  There certainly seems to have been a change of mind by 2005, because no attempt has been made to amend regulation 3 in the light of CH/3817/2004.  It would not be surprising if there had been a change of mind in 2000.  The 2000 Act liberalised the housing benefits scheme in important respects.  It introduced, in a slightly belated response to the coming into force of the Human Rights Act 1998, a right of appeal to an independent tribunal in housing benefit cases in place of the former system of reviews and it also, by section 71, amended section 75 of the Social Security Administration Act 1992 so as, for the first time, to enable regulations to be made having the effect that an overpayment made to a landlord might in some circumstances be recoverable only from the tenant and not also from the landlord (see R(H) 6/06 at [37]).  Against this background, it would not be entirely surprising if it had been also considered desirable to reinstate the effect of the Stoke decision.

 

32. A hint that that might have been the intention can also be found in other subordinate legislation.  At the time the 2000 Act came into force, most of Part XI of the 1987 Regulations was revoked by Part II of Schedule 2 to the Housing Benefit and Council Tax Benefit (Decisions and Appeals and Discretionary Financial Assistance) (Consequential Amendments and Revocations) Regulations 2001 (SI 2001/1605).  Regulation 2(3) of those amending Regulations replaced the definition of “person affected” in regulation 2(1) by the requirement that the term “shall be construed in accordance with regulation 3 of the Decisions and Appeals Regulations”, now found in regulation 2(1) of the 2006 Regulations.  It could have substituted another definition, perhaps defining a “person affected” as a person within the scope of regulation 3 of the 2001 Regulations, and it is at least arguable that the form of words used shows both a recognition that regulation 3 of the 2001 Regulations did not define exclusively those person to be treated as affected by a decision and also a desire to apply the wider approach to the 1987 Regulations.

 

33. I might have been persuaded to accept Ms Richards’ submission if I had been sure that there was another way of avoiding what seems to me to be the manifest unfairness of not allowing SIL to argue its case even though the local authority’s decisions may ultimately be upheld.  The local authority knows, or could probably find out through its social services department or the Department for Work and Pensions, the whereabouts of the living former tenants with whom SIL has lost contact.  Naturally, it cannot divulge their addresses to SIL without permission.  During the hearing, I raised the question whether, if SIL had no independent right of appeal, the local authority ought to take steps itself to persuade the claimants to authorise SIL to bring appeals on their behalf.  I appreciate that a number of the former tenants were concerned at receiving papers from the Tribunals Service suggesting that they had brought appeals that they knew nothing about, but if SIL were to give a clear undertaking that they would not seek any payments from its former tenants, as I understand is its position, the local authority would be able to assure former tenants that they had nothing to lose in giving SIL the authority it required.  Ms Richards, who was admittedly taken by surprise by my suggestion, submitted that the local authority was under no duty to act as I had suggested and that it should not do so.  That may well be right.  In any event, I have no doubt that neither the First-tier Tribunal nor I could direct it to do so and the idea of yet another application for judicial review, seeking an order that the local authority use its best endeavours to obtain the claimants’ agreement to authorise SIL to act on their behalf, is distinctly unattractive.  Moreover, there may be an additional problem in respect of the deceased former tenants.  They may have no known next of kin or personal representatives and there appears to be no power in the local authority to appoint anyone to act in their place.  It is consistent with the approach taken in respect of other social security benefits that there should be no power to appoint someone to make a claim on behalf of a deceased person, but neither the 2001 Regulations nor the 2006 Regulations contains a power to appoint a person to proceed with a claim that has already been made or to bring an appeal in respect of such a claim, although regulation 21 of the 2001 Regulations permits someone to be appointed to proceed with an appeal where a party to proceedings has died.  This may be an unintended lacuna, because, as the learned editors of CPAG’s Housing Benefit and Council Tax Benefit Legislation (23^rd edition 2010/2011) point out, regulation 30(1) of the Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968) makes the necessary provision in respect of other benefits.

 

34. In all these circumstances, I do not consider that a departure from a literal construction of regulation 3 to the 2001 Regulations can be justified.  In my judgment, the construction given to the legislation in CH/3817/2004 was right.

 

35. I am also satisfied that SIL should be considered to be a “person affected by the decision” of the local authority in each of the ten relevant cases so that it had an independent right of appeal.  As I have already indicated, I do not consider this case to be distinguishable from the Stoke case.  Moreover, I can see no good reason for not treating the appeals that were lodged on SIL’s instructions without authority from the named claimants as SIL’s own appeals.  The only defect was in the naming of the appellant and, in this instance, I regard that as little more than a technicality although, as I have recorded, it had the unfortunate effect of causing alarm to some of the claimants.

 

36. It follows from my approach that SIL was also a party to all the appeals to the First-tier Tribunal in which it had authority to act on behalf of the individual claimants.  It could be treated as an additional appellant but otherwise it would be a respondent I see no need to complicate the proceedings before the First-tier Tribunal by making any decision having the effect that SIL must formally be treated as a separate party as well as being treated as the claimants’ agent but, nonetheless, it is in law a party to those appeals and that will be significant if SIL or any other party wishes to appeal against the decision of the First-tier Tribunal.

 

Appeal or judicial review?

 

37. In the light of LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC), it is plain that, under section 11 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), a party to proceedings before the First-tier Tribunal (or anyone else mentioned in paragraph 8(2) of Schedule 7 to the 2000 Act) has a right of appeal to the Upper Tribunal against any decision of the First-tier Tribunal that is not an “excluded decision”.  The decisions challenged in these proceedings were not excluded decisions.  The effect of Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327 is that, with immaterial exceptions, judicial review proceedings may be brought in the Upper Tribunal under sections 15 to 18 of the 2007 Act against “any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act, where there is no right of appeal to the Upper Tribunal”.  Thus, in the present case, if the appellants or applicants were parties to the proceedings in the First-tier Tribunal, they have a right of appeal and do not need to, and therefore do not, seek any order in the judicial review proceedings.  On the other hand, if they were not parties to the proceedings in the First-tier Tribunal, they do not have a right of appeal and must seek their remedy in the judicial review proceedings.

 

38. It follows that if a person challenges a refusal to add him or her to proceedings before the First-tier Tribunal, the challenge must be brought by way of an application for judicial review.  However, where a person claims to be a party who does not need to be added to the proceedings, a challenge to a refusal or a failure to treat him as a party must be brought by way of an appeal, just as a decision of the First-tier Tribunal that it does not have jurisdiction may be challenged on appeal.

 

 

Conclusion

 

39. The implication of my finding that SIL had no implied authority to appeal to the First-tier Tribunal on behalf of individual claimants is that it also had no authority to appeal to the Upper Tribunal or bring judicial review proceedings on behalf of the claimants.  The claimants themselves have not made the applications.  Accordingly, I refuse to admit the applications insofar as they were brought in the names of the claimants.

 

40. The only respect in which it was necessary for SIL to rely on judicial review proceedings, and therefore the only ground upon which it does seek permission to apply for judicial review, is its challenge to the refusal to add it as a party to the proceedings before the First-tier Tribunal.  For the reasons I have given, I regard that challenge as misconceived and accordingly refuse permission.

 

41. However, I grant permission to appeal and allow the appeal on the ground that the First-tier Tribunal erred in failing to regard SIL as the appellant in the cases where it did not have authority to act on behalf of the claimant.

 

 

 

 

Mark Rowland

28 January 2011