Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No.  CH/1074/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge S M Lane

 

DECISIONS:

 

The appeal against the decision of the First-tier Tribunal (Judge Poynter) on 15/5/09 to set aside the decision of a First-tier Tribunal on 10/11/08 is dismissed.  The Tribunal’s decision did not contain any material errors of law.

 

The appeal against the decision of the First-tier Tribunal (Judge Gil) on 25/2/10 is dismissed.  The Tribunal’s decision was not made in error of law.

 

REASONS FOR DECISION

 

1     I apologise for the delay in issuing this decision, which follows an oral hearing at Field House on 4 May 2012.  The appellant attended, and was represented by Mr Juss, of counsel.  The respondent Authority was represented by Mrs Grehan.  Her colleague, Miss Jeive, also attended.  I am grateful to all of them for their assistance.

 

2     The two decisions under appeal are brought with the permission of Judge Poynter. 

 

INTRODUCTION

 

3     There is no doubt that that these appeals have been plagued by administrative errors which have caused the appellant a good deal of frustration.  These have led, in part, to the appellant making a number of applications based on complaints of a procedural nature.  To summarise the complex history as briefly as possible for the moment, the appellant was successful in his appeal to a First-tier Tribunal (Judge Quinn) on 10/11/08 against a decision that he was not entitled to HB for a period of several years.  The appeal was heard in the absence of the Authority.  Before the hearing, the Authority made an application for postponement because its presenting officer was too ill to attend.  This was never sent to the Tribunal and Judge Quinn gave no consideration to the issue of the Authority’s absence in proceeding.  A district tribunal judge (DTJ Poynter) set aside Judge Quinn’s decision on 15/5/09 for procedural irregularity under rule 37.  The appeal was reheard on 25/2/10 by a First-tier Tribunal (Judge Gill).  The Judge Poynter granted permission to appeal against both decisions following the appellant’s application for permission to appeal against Judge Gill’s decision. 

 

4     In order to distinguish the various decisions made First-tier Tribunals, I shall refer to the decisions by the name of the judges who decided them. 

 

 

5     I have come to the conclusion that there are no material errors of law in either of the decisions before me.

 

THE BACKGROUND

 

6     The starting point was a decision by the Authority on 18/10/2007 that the appellant was not entitled to HB for the period 23/12/02 to 30/9/07 because the tenancy for his home was contrived to take advantage of the Housing Benefit (HB) system and [sic] was not of a true commercial nature.  These are two distinct grounds under regulation 9 of the HB (Persons who have attained the qualifying age for state pension credit) Regulations 2006 by virtue of which HB is treated as not payable even though the occupier of the dwelling has an agreement to make payments for it.  The  way in which the Authority described the provisions does not matter because the Tribunal did not repeat the Authority’s error.

 

7     The decision on non-entitlement will, no doubt, result in the Authority issuing a decision for a recoverable overpayment of HB for that period.  This is thought to amount to £43,706.40 for that period.  A decision on recovery of the overpayment was not, however, before the tribunals.  

 

8     As I have already summarised above, the appellant attended a hearing before Judge Quinn on 10/11/08 with his legal representative (Record of Proceedings, p289).  The Authority did not attend, but had sent an urgent fax to the Tribunals Service in Nottingham (the responsible office) on the morning of the hearing requesting a postponement because their presenting officer was ill.  The fax confirmation (p426) shows that a two page fax was sent to Nottingham.  The covering sheet states, in large print, ‘PLEASE FAX TO HOUNSLOW URGENT – 10 AM CASE’. 

 

9     There is no record that Nottingham sent the fax to the Tribunal venue.  The Tribunal papers did not contain the fax.  The question of the postponement request is not mentioned in the Record of Proceedings or the Tribunal’s Statement of Reasons.  There is no indication that the Tribunal applied its mind to the question of whether it was appropriate to proceed with the hearing in the Authority’s absence despite the size of the potential overpayment, the complexity of the law, the hot dispute over the facts and interpretation to be put on them, the Authority’s express request for an oral hearing and their clearly stated intention to send a presenting officer (p296, form AT37).  The appellant was successful before the First-tier Tribunal. 

 

10  A catalogue of administrative errors occurred, the first of which is that a vital page of the fax had gone missing at an early stage.  I refer to this as ‘the second page’.  This was followed by an apparent failure by the Tribunals Service to send the decision notice to the Authority until 16/12/08.  This prompted the Authority to make an in-time application for the decision to be set aside for procedural irregularity (p290). 

 

11  Judge Poynter gave directions on the application on 19/3/09 requiring the Authority to supply a copy of the fax and giving a deadline of 9 April 2009 for doing so (p297).  On receipt, the Tribunals Service was to send a copy of the application and the fax to the appellant for his comment.  Judge Poynter stated that the decision would not be set aside before the appellant had this opportunity.  The Tribunals Service appears not to have sent the documents to the appellant, who therefore did not have an opportunity to comment. 

 

12  Judge Poynter was unaware of the Tribunals Service’ omission.  He dealt with the application on under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘First-tier Rules’) on the papers as they stood and set aside the decision on 15/5/09. I shall refer to this as ‘the set aside decision’.  

 

13  Rule 37 is as follows:

 

37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if—

 

(a)   the Tribunal considers that it is in the interests of justice to do so; and

(b)   one or more of the conditions in paragraph (2) are satisfied.

 

(2) The conditions are—

 

(a) a document relating to the proceedings was not sent to, or was not received at an

appropriate time by, a party or a party’s representative;

(b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;

(c)   a party, or a party’s representative, was not present at a hearing related to the  proceedings; or

(d)  there has been some other procedural irregularity in the proceedings.

 

(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision

 

14  The judge’s reason for setting the decision aside was that a party, or a party’s representative was not present at a hearing related to the proceedings and that it was in the interests of justice to set the decision aside (rule 37(1) and (2)(c)).  He gave the brief reason that the Authority’s representative was unable to attend the hearing because of illness. He gave directions for the appeal to be re-listed before a DTJ or an authorised tribunal judge.  The latter is not a formal designation but is used in the Southeast region to identify fee-paid tribunal judges who are accustomed to hearing appeals of particular difficulty. 

 

15  Judge Poynter mistakenly put the wrong date (19/3/09) on the set aside decision, rather than 15/5/09 (p299).  This confused the appellant and made him angry.  He assumed that the judge had pre-judged the outcome of the set-aside request and made his decision on the same day as he issued his directions.  He was adamant that he should see a copy of the fax, attributed bad faith to the Authority and objected strenuously to the judge’s decision.  The Tribunals Service, however, never managed to send him a copy of both pages of the fax.  When the Upper Tribunal became seized of the appeal, the second page of the fax was missing.  I accordingly gave directions to the Authority to provide it, which they did, and sent a copy to the appellant during the course of the Upper Tribunal proceedings.

 

16  The appellant  made an application to set aside the set aside decision of 15/5/09. Judge Poynter declined to do so because the wording of rule 37(1) did not give him this power.  The rule states that a decision can only be set aside where the decision to be set aside disposes of proceedings or part of proceedings.  The set aside decision did not dispose of proceedings:  it revived them.  Judge Poynter did, however, explain how the wrong date came to be on the set aside decision and corrected it under the slip rule.  He also apologised for the error. 

 

17  Even though the judge’s set aside decision could not itself be set aside under rule 37, it could be appealed to the Upper Tribunal under section 11 of the Tribunals Courts and Enforcement Act 2007.  This was not appreciated until the Upper Tribunal issued its decision in LS v LB Lambeth [2010] UKUT 461 (AAC) [CH/1758/2009] on 22 December 2010, long after the events in question.  Before this, there was considerable legal doubt about the extent to which appeals were permitted against decisions such as the one in question.

 

18  On 1/7/09, the appellant wrote to the Tribunals Service, Sutton Office, to which his appeal had been transferred, pointing out a number of errors and asking the judge at the Sutton Tribunal Service to dismiss the appeal, refuse to set this case aside and reinstate the original decision in his favour.  This was not an apt application:  the original decision had already been set aside; the only appeal in existence was his own appeal against the Authority’s decision.

 

19  The re-hearing was set to be heard on 2/7/09.  Owing to a further mishap the appellant missed the hearing because he was given the wrong address for the venue. Judge Gill, who was the judge assigned to hear the appeal, adjourned.  She gave directions (p339) which are not relevant to the procedural problems with which we are dealing. 

 

20  On 12/8/09, the appellant wrote to ask Judge Poynter to reconsider his set aside decision (p369 – 372).  On 28/9/09 he wrote at length to inform the Tribunal Service that he filed papers for judicial review of the judge’s set aside decision but had been advised by the clerk of the High Court that his application was premature.  He gave his grounds (p374 – 396).  The applications were treated by a Regional Judge as a request to reconsider Judge Poynter’s set aside decision of 15/5/09. 

 

21  On 30/9/09 Judge Poynter again refused to set aside his decision of 15/5/09, giving full reasons (pp435-6).  Paragraph 5 is instructive: 

 

‘…If I did have power to reconsider the set aside knowing what I know now, I still would not do so.  The facts remain that, through circumstances outside their control, Ealing were not represented at the hearing; that an application to postpone was made before the hearing commenced and that application was not placed before the Tribunal who was therefore unaware of it.  In those circumstances, it is manifestly in the interests of justice that the decision should be set aside.  The detriment to [the appellant] of depriving him of the benefit of a decision which may only have gone in his favour because of a procedural irregularity is outweighed by the detriment that would be suffered by Ealing if they were deprived of their opportunity to be heard.’

 

22  Judge Gill reheard the substantive appeal on 25/2/10 though the appellant disputed the jurisdiction of the Tribunal and eventually walked out.  The hearing (at which the Authority’s presenting officer was present) continued in his absence.  Judge Gill dismissed the appellant’s appeal (pp462 – 468).  The Statement of Reasons was issued on 22/3/10. I deal with this under the second appeal ground, below.

 

23  The appellant requested permission to appeal the set aside decision after the rehearing on 25/2/10.  Judge Poynter refused permission on 26/2/10 but indicated that he would grant permission to appeal from any application to appeal the decision of 26/2/10 so that the Upper Tribunal could deal with all procedural issues. Permission to appeal on all issues was subsequently granted by the DTJ on 23/11/10.

 

FURTHER PROCEDURAL MATTERS

 

24  Both sides asked for permission to admit late documents.  I considered it to be in the interests of justice to admit them so that Tribunal had a full picture and could deal with the appeal effectively. 

 

DID THE DISTRICT TRIBUNAL JUDGE MAKE AN ERROR OF LAW IN SETTING THE FIRST DECISION ASIDE?

 

25  The appellant’s objections to the set aside decision were summed up at page 371:  (i) that it was up to the Authority to prove they sent an application for postponement, (ii) that the reason given (illness) needed to be backed up by a medical report and (iii) it had to be shown that the reason was one which would have led the Tribunal to adjourn.  He also made numerous objections regarding the technicalities of compliance with directions which are not material:  a First-tier Tribunal judge is permitted under the Rules to vary his directions and to waive non-compliance.  Steps taken which are not in compliance with the Rules or directions are not void. The salaried First-tier Tribunal judges who deal with these application regularly are well aware of their powers.

 

26  Mr Juss expanded on the submissions (roughly corresponding to heads (i) and (ii)). First, he denied that he was making any allegation of bad faith against the Authority, but he suggested that it was not possible to tell whether there ever was a second page of the fax, or to know what it said.  (The disputed page is now numbered 509 in the bundle.)  He argued that the Authority had been unable to produce the document despite repeated requests and a copy of the missing page had never been sent to the appellant.  He found it most odd that the document only came to be produced some three years down the line.  He submitted that that Judge Poynter could not have seen the second page on the date that he set aside the earlier decision, and that it was unlawful for him to do so without having seen the second page of the fax. 

 

27  I do not accept the submission establishes that an error of law was made.  There is a communication result report at p426 which shows transmission by the Authority of a two page fax to the Nottingham Tribunals Service fax number on 10 Nov 2008 at 9:39 with the result ‘okay’.  Short of the Authority somehow rigging the transmission, it is reasonable to infer that two pages were sent.  While it is true that the second page might only have been a page of further evidence, it is more likely that the second page would have something to do with their attendance given that the Authority failed to attend despite its clearly stated intention to do so and the other factors mentioned earlier. It also makes sense when considered in the light of the Authority’s application to have the decision set aside.  If an important item of evidence had been missing, there is no reason why the Authority would not have given this as a reason since the absence of a document is also a ground upon which a decision may be set aside. 

 

28  It is also not right to say that the Authority couldn’t find the document until it was suddenly produced after a gap of three years.  The papers before me show that the appellant repeatedly asked the Tribunals Service for a copy of the fax.  This appears never to have been actioned.  It seems that they simply failed to respond to the appellant’s increasingly exasperated requests. 

 

29  The submission that Judge Poynter must have decided the set aside application without the relevant document is not made out.  It is true that the second page disappeared.  It has done so more than once: the Upper Tribunal had to call for it a twice, through no fault of the Authority.  Its propensity to disappear does not, however, mean that Judge Poynter did not see the document when making his decision.  Given the stringent terms of his directions to the Authority, it is unlikely that he would have set the decision aside without having seen both pages of the fax.  Had the second page been missing at the time of his decision, it would have been equally remarkable, given the terms of his directions, had he not mentioned this.

 

30  The submission would fail in any event because a First-tier Tribunal judge could lawfully have made the decision without having seen the missing page.  There is no rule that only the best evidence can prove a fact, nor does the existence of the document have to be proved beyond reasonable doubt.  The standard is on the balance of probabilities.  It would, of course, have been up to the DTJ to decide what weight to attach to the Authority’s evidence that the presenting officer was ill, in the absence of the second page. 

 

31  It is worth pointing out that the First-tier Tribunal Judge could have set aside the decision even if a party had not sent a request for postponement in advance.  The rule does not require an application to made before the hearing.  Tribunals deal with many applications to set aside decisions where a party did not make an application in advance.  There is no assumption that parties are acting in bad faith and decisions can generally be made without the formality and expense of a medical note if the reason for absence is illness. 

 

32  The next issue is whether Judge Poynter’s exercise of his discretion to set aside the First-tier Tribunal’s decision was defective in any other way which constituted an error of law. 

 

33  We must go back to rule 37 again.  The critical features of the rule are (i) that one of the four conditions in (2) is made out; (ii) it is in the interests of justice to set aside the decision and (iii) that the rule is discretionary, not mandatory.  The interests of justice require a consideration of fairness to both parties, the effects of the application on the proper administration of justice, and the larger public interest in the fair administration of justice. The decision on where the interests of justice lie must be made by weighing the relevant factors. It is inevitable where tribunals are given discretion of this width that different tribunals may come to different conclusions. 

 

34  Plainly both 37(2)(b) and (c) could have been relied on by the Authority:  (b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings.

 

35  Mr Juss submissions were, however, aimed at the weight given by Judge Poynter to the various factors; in particular, the judge did not mention what weight he gave to the sentence in the postponement application which stated ‘if this is not possible the case we [sic] have to be heard in the absence of the Authority.’  (‘We’ is plainly a typographical error for ‘will’ have to be heard and I shall use the correct form of words throughout.)  Mr Juss also submitted, as a second string, that the reasons on the pro-forma decision notice at page 299 are inadequate as they only contain a one sentence explanation - that the Authority’s representative was unable to attend the hearing because of illness.  There is no reasoning by which the judge shows that he balanced the relevant factors, including the fact that the appellant was present with a representative, in the application. 

 

36  I do not accept these submissions.  The correct approach to whether the judge’s decision was erroneous in law must be to look at whether the decision was objectively fair in light of the generous ambit given to judges when weighing up the factors involved in exercising a discretion.  This approach reflects the underlying principle developed in the Court of Appeal's recent decisions on procedural unfairness in SH(Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 [13 – 14] and Terluk v Berezovsky (Rev 1) [2011] EWCA Civ 1345, but allows proper weight to be given to the complex balancing exercise that a judge must carry out when exercising a broad discretion.  In Terluk , Sedley LJ [18] – [20] said: 

 

18 Our approach to this question is that the test to be applied to a decision on the adjournment of proceedings is not whether it lay within the broad band of judicial discretion but whether, in the judgment of the appellate court, it was unfair. In Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, Lord Hope said (at §6):

"[T]he question whether a tribunal … was acting in breach of the principles of natural justice is essentially a question of law."

As Carnwath LJ said in AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579, §50, anything less would be a departure from the appellate court's constitutional responsibility. This "non-Wednesbury" approach, we would note, has a pedigree at least as longstanding as the decision of the divisional court in R v S W London SBAT, ex parte Bullen (1976) 120 Sol. Jo. 437; see also R v Panel on Takeovers, ex p Guinness PLC [1990] 1 QB 146, 178G-H per Lord Donaldson (who had been a party to the Bullen decision) and 184 C-E per Lloyd LJ. It also conforms with the jurisprudence of the European Court of Human Rights under article 6 of the Convention – for we accept without demur that what was engaged by the successive applications for an adjournment was the defendant's right both at common law and under the ECHR to a fair trial.

19 But, as Lord Hope went on in his next sentence in Gillies to point out, the appellate judgment

"requires a correct application of the legal test to the decided facts …"

Thus the judgment arrived at at first instance is not eclipsed or marginalised on appeal. What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge. In the present case, this is an important element.

 

37  Because Mr Juss’s submission also involves an attack on the adequacy of the reasons given for  the set aside decision, it is necessary to add a further caveat relating to the judge’s duty to give reasons, when applying that principle to this case.  Rule 34 of the First-tier Procedure Rules requires a Tribunal to give reasons for a decision which disposes of the proceedings, except decisions under Part 4 of the Rules (correcting, setting aside, reviewing and appealing Tribunal decisions).  These interlocutory and post-hearing decisions are, in practice, rarely made by the same judge as presided at the appeal who will rarely have other than ‘paper’ knowledge of the case.  The exception in rule 34 enables the judge to take a robust view on an issue without time consuming, costly and elaborate procedures.  The kind of detailed written reasons required in a Statement of Reasons in a substantive decision would generally be inappropriate in light of the exception. 

 

38  The exception applying to Part 4 decisions does not mean that the judge never need give reasons in interlocutory and post hearing decisions.  Common law supplements the rule by requiring the judge to give at least a succinct explanation where the reasons would otherwise appear aberrant:  R (Birmingham City Council) v Birmingham Crown Court [2009] EWHC 3329 Admin  [46] – [50], per Beatson J: 

46. Although English law may be inching towards a general duty to give reasons, as was recognised in the Institute of Dentists case, it has not yet got to the stage where there is such a duty. Sedley J, as he then was, giving the judgment of the Divisional Court, stated that at that time, 1993, the court "cannot go beyond the proposition that, there being no general obligation to give reasons, there will be decisions for which fairness does not demand reasons". His analysis of the decision in R v Home Secretary, ex p Doody [1994] 1 AC 531 concluded ([1994] 1 WLR 242 at 256), that reasons are not called for wherever it is desired to know whether grounds for challenge exist, because this would be to create a general duty that Lord Mustill in Doody's case was careful to exclude. Sedley J stated (at 258) that:

"The absence of reasons always makes it difficult to know whether there has been an error of approach. The question of justification for withholding reasons logically comes after the establishment of a prima facie duty to give them."

47. In R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1980] 1 WLR 525, at 540 Lord Keith stated that "the only significance of the absence of reasons is that if all other known facts and circumstances appear to point overwhelmingly in favour of a different decision, the decision-maker, who has given no reasons, cannot complain if the court draws the inference that he had no rational reasons for his decision". The implication of that statement is that in such circumstances an explanation is called for. R v Civil Service Appeal Board, ex p Cunningham [1992] ICR 816 recognised that one of the categories of case in which there is a duty to give reasons is a decision that appears aberrant without reasons. In that case the court considered there was a duty to give reasons for the award of abnormally low compensation to an unfairly dismissed prison officer.

48 …

49.  Moreover, although Newman J in the Maidstone Crown Court case favoured the giving of succinct reasons, he recognised that where permission to appeal out of time is granted the judge granting permission may well not elaborate on his reasons: see [43]. In the, albeit different, context of arbitration appeals Lord Diplock and Lord Roskill have stated that as a general rule no reasons should be given by a judge when granting permission to appeal against a decision of arbitrators: The Antaios [1984] 3 All ER 229 at 237 and 239. They referred inter alia to the fact that the person granting permission is not deciding the question that arises in the appeal, the undesirability of protracted and costly arguments on applications for permission, and the need for applications for permission to appeal to be dealt with as simply and as informally as possible. Notwithstanding the different context, the desirability for keeping the process as simple and informal as possible applies here.

50. Accordingly, both because the decision is not apparently aberrant and because of the nature of the decision, an interlocutory decision akin to a case management decision, while agreeing with Newman J that as a general rule it is very desirable for a judge to give succinct reasons why an extension of time has either been granted or refused, I do not consider that the judge's failure to do so in this case means that the decision must be quashed

39  From the paragraphs cited above, it is reasonably clear that the common law obligation should not be used to undermine an existing regime.  For tribunals, this is laid down in a statutory scheme of Rules in which a distinction is drawn between Part 4 decisions and other decisions for the giving of written reasons.  If the common law requirement were to impose too high a burden, it would render the rule otiose. 

 

40  I consider that the reasoning most recently set out in R (Birmingham City Council) sets a reasonable balance between the rule and the common law requirement for a judge to give reasons.  In practice, if it is obvious from the nature of the decision being made (as it often is in relation to setting aside under rule 37(2)(c), as in this case) nothing more than finding the relevant circumstance that applies may be needed.  It will generally be obvious that a party who has not been able to attend a hearing for a legitimate reason will have lost his opportunity to put his case, test the evidence of the other party and make his submissions to the judge.  That party will, at least on the face of it, not have had a fair hearing.  In a great many of these cases, the interests of justice will favour setting the decision aside.  In cases under rule 37(2)(a) and (b) (missing documents) and 37(2)(d) (unspecified procedural irregularity, it may be sufficient for the judge to highlight the materiality (or lack of it) of the document or asserted procedural irregularity to the decision making process.  The reasons may not need to do more than say so briefly, as long as they make the material point.

 

RESOLUTION

 

41  Judge Poynter issued a decision notice and directions setting aside the First-tier Tribunal (p299).  Rule 37 did not require him to give written reasons and the decision notice did not purport to do so.  The decision identified the material reason for setting the decision aside – the absence of the party’s representative (37(2)(c). 

 

42  This was is sufficient.  It is obvious that the Authority was prejudiced by the hearing proceeding in their absence.  Although Mr Juss sought to put a great deal of weight on the last sentence in the missing page of the fax (p509) ‘if this [i.e. a postponement] is not possible, the case will have to be heard in the absence of the Authority’, I do not consider that the sentence can bear any such weight.  All it says is the obvious:  if it is not possible to grant the application, the appeal would have to go ahead without them.  This is far from saying ‘please feel free to do so’. 

 

43  If I am wrong about the adequacy of the reasons initially given by the judge, I consider that the further explanation given in paragraph 5 of the decision of 30/9/09 (p434/5) is more than adequate to explain the decision.  Although paragraph 5 does not mention as a factor that the appellant had attended the original hearing with counsel, this does not undermine the decision, which is amply justified by the brief reasons given.

 

44  It should be added that in the circumstances which occurred, not only was rule 37(2)(c) made out, but also 37(2)(b).  Indeed, rule 37(2)(d) which permits a decision to be set aside for other procedural irregularity, might arguably have been in play, though it is unnecessary to make any decision on that provision.  Moreover, as a matter of substance, the Tribunal’s failure to consider the issue of whether it should proceed and to explain why it did so in its Statement of Reasons was a serious error of law.  Either of these omissions could have justified setting the decision aside for error of law if the post-hearing events had taken the path of appeal rather than procedural set aside.  I see no reason why this could not have been taken into account in deciding where the interests of justice lay, and should not be taken into account by the Upper Tribunal. 

 

45  Finally on this ground of appeal, I accept, as did Judge Poynter, that the appellant did not have the opportunity promised to him in the judge’s directions of 19/3/09 to respond to the Authority’s application and fax.  It is to be noted that the Rules do not require a party to be given the opportunity to comment on an application for setting aside a decision, though this is what Judge Poynter intended to do.  Rule 5, however, enables the Tribunal to regulate its own procedure.  This includes the power to direct changes to earlier directions.  As it happens, however, the judge did not do this because, unknown to him, the appellant did not reply to the Authority’s application because the Tribunals Service failed to send him the correspondence.  While the omission to seek the appellant’s views in these circumstances might have amounted to an error of law would depend on how serious the effect of the oversight was.  It goes back to the question ‘was it unfair’.  The voluminous body of correspondence and submissions written by the appellant show, however, that the appellant’s objection remained the same throughout:  he had won first time around, the Authority’s fax was a fabrication, and the original decision should be reinstated.  These comments would not have taken the judge any further.

 

46  The appeal on this ground therefore fails.  Had it succeeded, I should add that I would either have substituted my own decision to the same effect as that of Judge Poynter or refused the appellant relief. 

 

PROCEDURAL ISSUES ARISING FROM THE SECOND STAGE OF THE PROCEEDINGS

 

47  The appeal was finally reheard by Judge Gill on 25/2/10 (Record of Proceedings 451 – 458).  An hour into the hearing, the appellant submitted a letter a disputing the judge’s jurisdiction to hear the appeal, requesting a review of ‘your directions and decisions’, permission to appeal to the First-tier Tribunal against ‘your directions and decisions and, if those applications were refused, giving permission to appeal to the Upper Tribunal’ (p460).  The tribunal judge declined the applications and, as stated earlier, the appellant left the hearing which continued in his absence.  The Tribunal dismissed the appeal, confirming the Authority’s decision of 18/10/2007 by which the appellant was liable for an overpayment of £43,706.40.  If found that the appellant’s tenancy was not on a commercial basis or, in the alternative, was contrived to take advantage of the HB scheme so that he was not entitled to HB which had been paid over a long period of time.

 

48  The appellant applied for permission to appeal against the decision of 25/2/10 on 22/4/10 (p465 – 469).  Another administrative oversight appears to have occurred, and the application was not actioned until 23/11/10 when Judge Poynter granted permission to appeal on the ground that the procedure leading to the First-tier Judge’s decision arguably involved a breach of the tribunal’s duty to act fairly which was beyond its own power to correct.  It is clear that he is referring to errors he attributes to his own actions, and not to those of the Judge Gill. 

 

DID JUDGE GILL ERR IN LAW BY REFUSING TO DEAL WITH THE APPELLANT’S APPLICATION FOR HER TO REVIEW ALL PREVIOUS DECISIONS AND DIRECTIONS, AND FOR PERMISSION TO APPEAL THE SET-ASIDE DECISION TO THE UPPER TRIBUNAL?

 

49  Mr Juss argued that Judge Gill was obliged to reconsider all previous applications, including the application to set aside the set-aside decision, and to determine application for permission to appeal to the Upper Tribunal against Judge Poynter’s set-aside decision.

 

50  No authority was cited for this proposition and I reject it.   The appellant’s attempts to ‘annul’ Judge Poynter’s set aside decision had all been dealt with by the time of the hearing before Judge Gill.  As I have already explained, the set aside decision was discretely appealable to the Upper Tribunal.  It was no part of Judge Gill’s function, in conducting the new hearing, to entertain any application for permission to appeal aspects of the decision-making process that had led to the case coming before her.  Indeed, she had no jurisdiction to decide such applications.  Article 11 of the Senior President’s Practice Statement of 30 October 2008 on the Composition of Tribunals in Social Security and Child Support Cases in the Social Entitlement Chamber on and after 3 November 2008[1], reserves the power to deal with permission to appeal to a salaried judge.

 

51  Even if Judge Gill been able to consider the appellant’s application for permission to appeal Judge Poynter’s refusal to disturb his set aside decision, only one answer would have been possible: namely, that Judge Poynter’s decisions were free from material legal error (see paragraphs x to x above).

 

SHOULD JUDGE GILL HAVE ADJOURNED THE REHEARING?

 

52  The answer is no.

 

53  The appellant produced a letter to the Tribunal an hour into the hearing asking her to deal with applications which beyond her jurisdiction and inappropriate.  He requested an adjournment if she refused to deal with those matters.  The judge refused.  The interaction between the appellant and Judge Gill are set out at length in the Record of Proceedings at p456 and I do not repeat it here.  The judge warned the appellant about the perils of leaving the hearing mid-way.  Manifestly, the judge considered all relevant matters. Particularly bearing in mind the overriding objective, her decision not to adjourn can in no sense be categorised as unfair or otherwise unlawful.

 

54  As is plain from my decision, this case has been beset by administrative errors for which the appellant is not to blame. The appellant has sought energetically to preserve a decision in his favour which was obtained in circumstances that were procedurally unfair to the other party. His representations in this regard were properly considered by Judge Poynter and the appellant’s challenge to that judge’s decisions has been fully ventilated before the Upper Tribunal. The appellant has also been unable to demonstrate any procedural unfairness at the rehearing by Judge Gill. 

 

55  I am also satisfied that, where there were procedural mishaps, they were immaterial and did not prejudice the appellant.  They would not justify overturning Judge Poynter’s decision.  

 

56  Had I found there to be material errors of law, I would have had no hesitation in remaking Judge Poynter’s decision to the same effect under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007.  I do not consider that any reasonable Tribunal addressing its mind to the issues involved in the setting aside issue could have come to any other decision. 

 

57  I have taken the precaution of making findings of facts which would support that decision under the power given by section 12(4)(b) of the Act:

 

(a)             Before the hearing began, the Authority sent a two page fax to the appropriate office requesting a postponement of the hearing because its presenting officer was ill.  The first page was a top sheet.  The second page contained the request for a postponement.

(b)             The two page fax was never sent to the hearing venue and never seen by the Tribunal.

(c)             The Tribunal went ahead with the hearing in the absence of the Authority and without considering whether proceeding with the hearing was the appropriate course to take.

(d)             The appellant succeeded before the Judge Quinn in the absence of the Authority.

(e)             The proceedings were, in the circumstances, procedurally unfair. 

(f)               Judge Poynter was entitled to set aside for procedural irregularity Judge Quinn’s decision under rule 37.

(g)             When he made his decision, he had seen both pages of the disputed fax.

(h)             The omission to give the appellant an opportunity to comment on the setting aside was immaterial in all the circumstances and the reasons he later gave could not have made any difference to the outcome of the set-aside application. 

(i)               The appellant was given a full opportunity to argue his case before Judge Gill, who was properly seized of jurisdiction of the appeal.

 

OTHER PROCEDURAL GROUNDS OF APPEAL

 

58  The grounds of appeal to the Upper Tribunal the appeal document at 481 – 499 allege conspiracy, bias, maladministration, innumerable errors of judgment (in other words, he did not agree with the judge) and law.  The appellant sought to rely on a multitude of technical failures to dot the ‘i’s and cross the ‘t’s procedurally.  These are of no avail.  They simply did not affect the substance of the decisions taken in material ways and did not cause any unfairness or prejudice to the appellant. 

 

59  The allegations of conspiracy and bias are entirely unfounded and should not have been made.  The allegations were quite rightly not repeated by counsel who appeared on his behalf.  His complaint about maladministration is a matter for Tribunals Service, and not the judiciary.  His complaints about the DTJ’s omission to action the appellant’s application to appeal the set-aside decision was made good by granting permission at point which was appropriate in the circumstances of the case, that is to say, after the substantive decision on rehearing was made.  Even if the DTJ might have granted permission earlier, there was no obligation to do so.  His decision to hold off granting permission on an interlocutory matter until all issues could be conveniently dealt with together by the Upper Tribunal was in accordance with the overriding objective of the First-tier Procedure Rules.  His submission that the later Tribunal erred in law because it failed to provide reasons with the decision notice is misconceived:  it was under no obligation under the Rules for to give reasons at that stage.

 

60  The argument that his right to a fair hearing under Article 6 of the European Convention on Human Rights (which he mistakenly refers to as Article 6 of the Human Rights Act 1998, which is the Act that incorporates the ECHR into our domestic law) cannot succeed.  The appellant was given the opportunity of a hearing at which he could present evidence and his legal submissions but walked out, having been informed by the Tribunal about its proposed course of action.

 

THE SUBSTANTIVE GROUNDS OF APPEAL AGAINST THE AUTHORITY’S DECISION

 

61  The brief facts as found by the Tribunal are as follows:  The appellant, his wife, son and mother in law lived together at a previous address.  When they fell into difficulty with their then landlord, their son in law, JN, decided to provide secure accommodation for them by purchasing premises for them to live in.  He bought N Avenue on 20 December 2002 and rented it to them.  The family members/relatives were the appellant’s wife, son (RSA, who was a full time student but qualified as a dentist in July 2005) and elderly mother in law.  JN had, at much the same time, purchased a property together with his wife (the appellant’s daughter) for the couple to live in.  In the mortgage application form for N Avenue, JN stated that he was gifted £100,000 by his father in law (the appellant, A53).  The four occupants of the house were listed as joint tenants.  The rent was £900 per month (p152). 

 

62  The appellant applied for HB and Council Tax Benefit (CTB) in respect of N Avenue on 24/12/2002 (p127-146).  He did not declare the tenants’ relationship to the landlord on the claim form.  Benefits were paid from 23/12/02.  The mother in law died in February 2003.  From October 2005, the rent officer restricted the rent on the house (p312) because they were now over-accommodated in the 3 bedroom house:  as the unit now consisted of only the appellant and his wife and the son, they were only entitled to two bedrooms.  The appellant was granted exceptional payments by the Authority to cover the shortfall caused by the rent restriction.  These payments stopped in January 2006. 

 

63  In September 2005 JN sold the house to the RSA (the son).  The price stated on the Registry documents was £80,000 (A27).  As house prices in the area in which the appellant lived went up by this time, the price paid represented a considerable undervalue for the property.  In November 2005 the appellant advised the Authority that his son had bought the house (p183, also p244) and was now his landlord, the with the previous tenancy continuing ‘as a statutory periodic assured short-hold tenancy’ though he believed the new landlord would give him a new tenancy agreement.  His son reduced the rent in April 2006 and backdated the reduction to 1 January 2006, when the exceptional payments stopped, but there was still a shortfall in between HB and the chargeable rent. 

 

64  The Authority investigated the claim in July 2006.  The son said he was going to rent out a room to another person, but never did so.  In November 2006, he wrote to the appellant and his wife to say he was limiting their occupation to two rooms and reduced the rent.  He took out possession proceedings in June 2008.  The appellant and his wife left the property in July 2008 and a money judgment was made against them of £4658 (p317).  The property was not re-let to anyone else and in December 2008 the son and his parents were in occupation.

 

65  The Tribunal found that the appellant was to be treated as not liable to make payments for the dwelling under regulation 9(1)(a) – that the tenancy was not on a commercial basis or alternatively on the ground that the tenancy was contrived under regulation 9(1)(l), both in the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006. 

 

66  The grounds of appeal on the substantive issue was that the Tribunal erred in a number of ways.  Some of them are misunderstandings of the Statement of Reasons.  For example, the appellant says the Tribunal was wrong in paragraph 41 to say that the landlord was a close relative of his or his partner at the material time.  Paragraph 41, however, merely sets out the relevant regulation.  There are various ways under the regulation under which an occupier of property is not treated as liable for paying for it.  One of them arises where the occupier’s liability to pay is to a close relative or a partner living with the occupier is just one, but this is not the sub-paragraph relied on by the Authority or the Tribunal. 

 

67  The next cluster of grounds relate to his disagreement with the conclusion that the tenancy was not on a commercial basis and was, in effect, contrived.  He says the Tribunal was wrong because ‘the rent was not increased over time – landlords will often prefer a tenant whose rent is guaranteed come what may; that it assumes that the Authority would have paid an increase in the rent, it ignores the fact that the appellant’s previous property did not see rent increases and ignores the fact that the relationship between the appellant and his landlord does not necessarily prevent a commercial tenancy from arising.’  He maintains that his only purpose in moving into the premises was to have a roof over his head and that the reason why he did not disclose his relationship to his landlord was that the form did not require it.  He also submitted that the Tribunal was wrong to conclude that the appellant had anything to do with the payment of the £100,000 which he asserted was a private arrangement between the son and the son-in-law. At the Upper Tribunal hearing he produced an agreement between his son and son in law purporting to show, amongst other things, that the £100,000 was a loan to JN from by the buyer’s uncle and was to be discharged as part of the purchase deal between the son and son in law. 

 

68  The ground relating to the loan issues can be dealt with simply.  The appellant is trying to appeal against a finding of fact.  Findings of fact are for the First-tier Tribunal and cannot be appealed to the Upper Tribunal, as such, as the Upper Tribunal’s jurisdiction is confined to errors of law.  I have no doubt that the finding of fact involved here was fully open to the Tribunal on the evidence before it, and the Tribunal gave cogent reasons for so finding. 

 

69  His submission regarding non-disclosure of his relationship with the landlord is that the claim form did not ask him to disclose such a relationship.  That is incorrect.  The original claim form in respect of N Road specifically asked about his relationship to his landlord and specified that the Authority wished to know about relationships through marriage (p143).  The appellant answered that there was no relationship to the landlord.  This was incorrect since, at that time the appellant’s landlord was his son in law, who was undoubtedly related to the appellant through marriage to his daughter.  The appellant did disclose his relationship to his new landlord, his son, shortly after he bought the house (p183) and again on the review form he returned to the Authority on 3 October 2006 (p201).  The Tribunal was, in any event, prepared to accept that the appellant misunderstood the question on the original form. 

 

70  That leaves the remaining criticisms in [74] by which the appellant seeks to pick off, one by one, each of the Tribunal’s considerations of relevant factors with the result that no factors remain from which the Tribunal was entitled to draw a conclusion.  This way of analysing the factors is incorrect.

 

The law

 

71  Regulation 9(1)(a) treats a person who is liable to make payments in respect of a dwelling as if he were not so liable where -

 

(a) the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis;

(b) - (k) …

(l) In a case to which the preceding sub-paragraphs do not apply, the appropriate authority is satisfied that the liability was created to take advantage of the Housing Benefit scheme established under Part 7 of the Act.

 

72  Regulation 9(1)(a) deals with agreements which are not on a commercial basis.  The law is well known, and I do no more than summarise the main principles by reference to CPAG’s Housing Benefit and Council Tax Benefit Legislation, 24^th edition 2011-2012, at 252ff.  Put at its simplest, the issue is whether the agreement is one which is at arm’s length.  This requires the Tribunal to look at the relationship between the parties as a whole (R v Sutton LBC ex p Partridge  [1994] 28 HLR 315 at 319-320, R v Rugby BC HBRB ex p Harrison [1994] HLR 36 at 48-49), R(H) 1/03, para 16.4), the terms of the agreement and whether any of the terms on which a person occupies the dwelling are not enforceable in law (regulation 9(2)). 

 

73  The final decision whether the agreement is on a commercial basis or not is one of compound fact, depending on the primary facts found by the Tribunal:  R(H) 1/03, [21] – [22]. 

 

74  There are no rigid rules by which a commercial agreement can be definitively identified:  CH/3743/2003 (per Commissioner Jacobs, as he then was).  Items of evidence may point one way or the other, but it is from the totality of the factors that the conclusion must be drawn.  So, for example, an individual factor such as landlord’s willingness to accept less rent than required by the agreement, or that the letting is between family members, or that the landlord acts as carer for the tenant, might not be enough in and of itself to show that the agreement is non-commercial; but as the number of factors pointing towards the non-commercial nature of the agreement increase, so does the likelihood of a conclusion that the agreement itself is not commercial.  This is not to say that one factor is insufficient and three are plenty.  The exercise also requires a qualitative evaluation. 

 

75  What a Tribunal must not do, of course, and what this Tribunal correctly did not do, is eliminate each factor as insufficient in and of itself and conclude ‘therefore’ that the agreement must be commercial.  It must put them all back together again to see where the weight lies when the factors are taken together. 

 

76  While the Tribunal must consider all relevant circumstances, the weight which it attributes to them is for the Tribunal alone.  A challenge to the weight given to the factors will only succeed if no reasonable Tribunal could have approached the case in the way it did:  R(H) 8/04 [23] and [29].  Another way of putting this is that the decision must be very seriously flawed before the Upper Tribunal can intervene.

 

77  I am satisfied that the Tribunal identified the questions to be answered and considered the relevant evidence properly.  Its findings of fact were justified on the evidence, as were its conclusions.  The material facts and circumstances obviously included the family’s need for a home and the intention of the son in law in purchasing the house, as the appellant points out, as well as the rent arrangements.  The relationship between the landlord and tenant is clearly relevant, as may be the appellant’s failure to disclose that relationship. 

 

78  At the end of the day, the factor which caused the Tribunal most concern, however, was the gift of £100,000 to JN from the appellant to buy the house.  The Tribunal expressly considered the further explanations given by the appellant in paragraph 46 –54 and considered them inherently improbable.  She has given cogent reasons for rejecting the alternative explanation.  I can see nothing wrong with the judge indicating that one factor amongst the many considered was to bear greater weight in the analysis, especially where the factor was inherently unlikely to be found in a residential commercial agreement. 

 

79  The Tribunal identified the question to be answered as whether the agreements were on a commercial basis, or alternatively whether they were they were contrived under regulation 9(1)(l).  I might have chosen to phrase this differently since they are not true alternatives in the sense that one or the other will do.  It is only if none of the conditions in regulation 9(a) – (k) are established that (l) comes into play.  This, however, was the exercise the Tribunal carried out in substance and there is no material error of law in the decision on that basis.

 

80  A further submission at the hearing was that the appellant now had a document said to be an agreement between JN and the appellant’s son, RSA, which he believed to demonstrate the truth of his evidence.  This document was not before the Tribunal.  It purports to be an agreement to sell the house for to RSA for £200,000, of which £80,000 was to be raised by the son and that ‘the loan of 100,000 from his uncle, SI, … should be recovered as part of this deal.’  It goes on to make specific provision regarding how the remaining £20,000 of the price was to be recovered and on payment of taxes on the deal. 

 

81  The Tribunal did not err in law by not considering evidence that was not before it.  It is plain that the document contains controversial facts and is, at best, of dubious provenance and probative value.  It is undated.  It conflicts with the mortgage application which, as the tribunal judge rightly pointed out, says that the money was borrowed from the father in law and is unlikely to done so in error.  It is improbable that RSA, who had just qualified, would be in any position to pay back the £20,000 as set out.  It says nothing about how the £100,000 was to be recovered or from whom.  Indeed, it is not even not signed by the uncle, whose rights were supposedly affected.  It could not possibly affect the outcome of the decision.

 

82  I am not, in addition, satisfied that the document is genuine.  The appellant is a careful collector of paperwork as shown by the voluminous documents he has supplied over the years.  I find it inherently improbable that this document between two family members who were major participants in the circumstances only came to light now. 

 

83  The burden of proof was on the Authority.  There is nothing in the decision to suggest that the Tribunal made any mistake about this.

 

FINAL MATTERS - CASES REFERRED TO BY THE APPELLANT

 

84  The appellant lodged an application with the High Court for permission to judicially review Judge Poynter’s decision in September 2009 but was told that the application was premature (p375).  He wrote at length to the First-tier Tribunal to alert them to his grounds for judicial review and mentions a number of cases he intended to rely on in that application.  These were not raised before me and, in light of the discussion in my decision, would not assist the appellant. 

 

 

 

 

 

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 23 November 2012