Upper Tribunal (Administrative Appeals Chamber)

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

 

The appeal against the decision of the First-tier Tribunal given at Middlesbrough on 15 October 2010 is refused.  It is dismissed.

 

 

STATEMENT OF REASONS

 

 

1. The claimant has appealed against the decision of the tribunal recorded at page 73.  The Upper Tribunal who granted permission to appeal did so on a very limited basis.  He said in his determination:

 

 

“I give permission to appeal, limited to whether the tribunal was entitled to rely (as it needed to) on document 33 (without supporting other evidence) as evidence that a letter was properly addressed, pre-paid and posted, when on the face of it it appears only to suggest that on a certain day, someone sought to “trigger” the issue of a particular type of letter to a particular person at a particular address and says nothing about its subsequent despatch.”

 

 

2. The Secretary of State does not support the appeal.  In his submission he said:

 

 

“7. In the instant case the evidence at page 33 is a print out from the Medical Service Records System (MSRS).  Instead of a title open to many interpretations (“Scheduling Log (Form SL1)”, the print at page 33 is clearly and unequivocally entitled “View Letter History”.  It contains the date that the case was referred for a letter (31 March 2010) The letter type (“appointment letter”) the date that letter was triggered (9 April 2010 – 18 days prior to the appointment date), to whom it was sent (“client”) and the address “ XXX Street etc..”).  I submit that it is clear that this is a list of letters that had been sent to the claimant. I further submit that the fact that the word “triggered” was used should not mean that it is uncertain whether that letter was posted; this is a list of letters that were issued.

 

 

8. The second factor that distinguishes the instant case is the fact that the claimant attended the hearing.  In CIB/4012/04 the Commissioner commented (at Paragraph 6) that the Tribunal had not had the advantage of seeing and hearing from the claimant, so had not had the opportunity to ask a number of relevant questions.  In this case the Tribunal was able to ask those questions.

 

9. I submit that the questions it was able to ask led to the third factor that distinguishes the instant case: at paragraph 7 of the statement of reasons the First-tier Tribunal records its finding of fact that the appellant had actually received the letter of appointment under appeal.  In the submission to the First-tier Tribunal the Secretary of State had commented that that the claimant had on several previous occasions failed to receive appointment letters, but received other letters such as giro cheques and decision notices.  The tribunal recorded that the appellant herself commented during the hearing that she thought it strange that she only missed the medical appointment letters.  Even though it was unable to say whether the claimant had ignored or merely overlooked the appointment letters I submit that in the light of the available evidence, and having been able to speak to the claimant about the matter, this was a conclusion that it was entitled to draw from the evidence.

 

10. I submit that these distinguishing factors mean that the Tribunal was not bound by CIB/4012/04, and that in the circumstances of having found as a fact that the claimant received the appointment, it could not reasonably have found as a fact that the Secretary of State had not issued the appointment letter.

 

11. I therefore submit that in finding as a fact that the Secretary of State had discharged the burden of proof and sent the notice of the appointment to the correct address within the relevant timescale the First-tier Tribunal did not err in law.  Accordingly, I request that the appeal be dismissed.”

 

3. In response it was said by the claimant’s representative:

 

“(1) the nature of documents at Doc. 33-47 only indicates that there was an intention to send a letter not that a letter had been sent.

 

The word ‘triggered’ indicates an automatic process to generate a letter was put in train it does not suggest a letter was posted.

 

(2) The requirement in reg. 23(3) operates separately from good cause in 23(2) and should not be con …...  It is suggested that the former is a finding of fact that is for the Secretary of State to demonstrate and the claimant’s evidence cannot really help in determining if the letter had been posted by the department.  The latter is for the claimant to prove there was good cause.

 

It is therefore suggested that it is not determinant that the claimant was at the tribunal.”

 

4. In essence the appeal challenges the entitlement of the tribunal to make the finding in fact which was essential to their decision on the merits.  That finding in fact is contained in paragraph 2 of their reasons and is as follows:

 
“2. Notice of the examination set for the 27/04/10 was sent to the appellant on 9/04/10 at her address of […… ……] [……………].  This is accepted as fact by the tribunal and is evidenced by the letter history printout at page 33 in the appeal papers.”

 

5. I am persuaded that the tribunal were entitled to make that finding.  I accept the Secretary of State’s submission in the last sentence of paragraph 7 of his submission and I am not persuaded that the tribunal were required to place the limiting effect of that evidence that is suggested in the Upper Tribunal Judges’ grant of permission to appeal. I further do not accept that there was no other evidence which on the tribunal’s assessment of it entitled them to reach the conclusion of fact they reached in paragraph 2 of their Statement of Reasons.  The Secretary of State makes reference to that evidence in paragraph 9 of his submission.  In my view the tribunal set out clear and cogent reasons as to why the letter was actually sent and delivered to the correct address.  I refer in that connection to what is said by the tribunal in paragraphs 5, 6 and 7 of their Statement of Reasons.  In these circumstances I see no reason to disturb the finding in fact made by the tribunal and I am satisfied that the tribunal did not err in law in basing their decision on the finding in fact made by them in paragraph 2.  There is no dispute that the claimant failed to attend the appointment in question which is the subject of the finding in fact contained in paragraph 4 of the Statement of Reasons.  In these circumstances I reject the claimant’s submission in response to the Secretary of State’s submission.

 

 

 

 

 

 

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 9 November 2011