Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CE/1932/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.

The decision of the First-tier Tribunal dated 23 January 2012 is set aside and there is substituted a decision that the claimant’s appeal to the First-tier Tribunal, received by the Secretary of State on 12 December 2011, is admitted and is not struck out.  It therefore remains to be determined.

The Secretary of State is directed to make such further investigations (which may include asking the claimant for further information) as are necessary and to send to the First-tier Tribunal, within three months of the date this decision is sent to the parties, a response to the appeal.

REASONS FOR DECISION

1. This a case where an attempt to shorten proceedings by use of the power to strike them out has had the effect of prolonging them.

2. On 12 December 2011, the Secretary of State received an appeal from the claimant, raising various issues in relation to the claimant’s entitlement to employment and support allowance and in relation to a ban from visiting Jobcentre Plus offices.  There is no right of appeal against a ban of that type and so the appeal fell to be treated only as an appeal to the First-tier Tribunal in respect of employment and support allowance.  The claimant’s principal point – and possibly now his only point – concerned the question whether he was entitled to employment and support allowance during a period when he was in prison, but he also raised the question whether he was getting the correct amount of benefit as a member of the support group following his release from prison.

3. The Secretary of State took the view that the appeal was wholly outside the jurisdiction of the First-tier Tribunal and he sent a submission to the First-tier Tribunal in the following terms –

“An appeal has been received on 12 December 2011.  However the Secretary of State is of the opinion that the appeal concerns a matter that appears to be outside the jurisdiction of the First-tier Tribunal.  This is because the decision appealed against has no right of appeal.  [The claimant] is appealing against the non-payment of ESA whilst he was in prison from 9/7/11 to 27/9/11.  Regulations state that a prisoner has an applicable rate of nil:  Decisions and Appeals Regs 1999 schedule 2 & para 3 of schedule 5 of ESA Regs 2008.

Also see Social Security Act 1998 schedule 2 & para 6(a) the rate of benefit provided by law.

The appeal is referred to the First-tier Tribunal to decide whether the appeal is out of jurisdiction.

SS Act 98 s 12(1) & Sch 3, SS CS (D&A) Regs, reg 26”

4. The submission identified 14 October 2011 as the date of the decision being challenged in the appeal, but the Secretary of State did not object to the admission of the appeal in the light of the delay, which had the effect that the appeal was admitted under rule 23(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2635).  No copy of the decision of 14 October 2011 was provided in the bundle of papers attached to the submission.

5. On 3 January 2012, the First-tier Tribunal wrote to the claimant, giving him an opportunity to comment on the Secretary of State’s submission.  The claimant responded by reiterating the point that he was not getting the proper rate of benefit “following a placement in the support group component as an existing claimant”, which he said was £99.85 per week.

6. That response had no impact on the First-tier Tribunal, which gave a decision on 23 January 2012 in the following terms –

“1. The Tribunal notes the Appellant’s response to the letter dated 03/01/2012.

2.  However, the issue raised by the Appellant relates to the question as to whether he should have been paid ESA whilst in prison.

3.  The Law states that a prisoner has an applicable amount of NIL and the Tribunal has no power to overturn the statutory provision in this respect.

4.  The Appeal is not admitted for hearing.”

7. The claimant then sought permission to appeal in two letters dated 30 January 2012 and 22 February 2012, raising in the second a number of grounds, not all of which related to employment and support allowance.  He still raised the question of the amount of money he was receiving but included with his appeal a number of documents including a letter (doc 38) from Jobcentre Plus conceding that he should indeed have been receiving £99.85 pw plus a premium of £14.05 pw from 27 September 2011 and stating that arrears had been paid.  That letter was misdated 21 December 2012 and had completely the wrong postcode in the claimant’s address but had obviously reached him by 22 February 2012.  He did not mention in either of his letters seeking permission to appeal the question of entitlement to employment and support allowance while in prison.

8. Those letters prompted the First-tier Tribunal to provide, on 16 March 2012, a fuller statement of reasons for its decision.

“1. This statement explains the decision of the Tribunal dated 23/01/2012.

2.  The issue was not about the amount of the Appellant’s entitlement to ESA.

3.  It was about whether the Appellant as entitled to ESA at all when he was in prison and, if so, the amount of his entitlement.

4.  The cumulative effect of the legislation referred to by the respondent namely the Social Security and Child Support (Decisions and Appeals) Regulations 1999, Paragraph 3 of Schedule 5 of the ESA regulations 2008 and Schedule 2 and Paragraph 6(a) of the Social Security Act 1998 establish that the applicable rate of benefit for a prisoner is NIL.

5.  The Tribunal is bound by the Statutory provisions referred to above and has no power to change the law in favour of any Appellant.

6.  The Appeal was consequently not admitted because it was outside the Tribunal’s jurisdiction and/or had no reasonable prospects of success.”

9. The claimant sought permission to appeal again, which was refused by a different judge of the First-tier Tribunal on 20 April 2012.  He then applied to the Upper Tribunal for permission to appeal, which I granted on 2 August 2012.

10. A large number of the grounds of appeal raise matters that are not within the jurisdiction of the First-tier Tribunal or the Upper Tribunal at all and, in this particular case, I can deal only with matters within the scope of the claimant’s appeal to the First-tier Tribunal, which means that I am concerned only with matters relating to entitlement to employment and support allowance.

11. In relation to entitlement while the claimant was in prison, the Secretary of State concedes that the First-tier Tribunal erred in law in finding that the appeal was outside the First-tier Tribunal’s jurisdiction or, in any event, had no reasonable prospects of success.  Those are grounds for striking out a case under rule 8 of the 2008 Rules.  The First-tier Tribunal decided that the appeal should be “not admitted”, but nothing turns on that erroneous use of language.

12. In relation to the First-tier Tribunal’s jurisdiction, the writer of the Secretary of State’s submission to the First-tier Tribunal and the First-tier Tribunal itself have both run together provisions relating to entitlement and provisions relating to the right of appeal.  It is not clear that either of them actually read the provisions.

13. The provision only relating to entitlement they cite is paragraph 3 of Schedule 5 of the Employment and Support Allowance Regulations 2008 (SI 2008/794), which prescribes amounts for the purposes of section 4(2) of the Welfare Reform Act 2007.  Contrary to the impression given by the submission to the First-tier Tribunal, paragraph 3 does not prescribe nil for all cases.  What it actually says is –

The effect of an amount of nil being prescribed is that a person is not entitled to receive any benefit.  But nil is not the amount prescribed for prisoners on remand.

14. As to the right of appeal, section 12 of the Social Security Act 1998 confers a right of appeal to the First-tier Tribunal against, inter alia, decisions of the Secretary of State made under sections 8 and 10 of the Act, except those listed in Schedule 2 which, however, includes a power to prescribe further decisions in regulations.  That power appears to be exercised in Schedule 2 to the Social Security and Child Support (Decisions and Appeals) Regulations 1999.  Schedule 3 to the Act and regulation 26 of the 1999 Regulations list other types of decision against which an appeal lies.  It will therefore be seen that most of the provisions cited by the Secretary of State in the submission to the First-tier Tribunal confer rights of appeal, rather than restricting them.  No relevant provision is identified in Schedule 2 to the 1999 Regulations (making it unnecessary for me to consider the Schedule’s validity in the light of section 12(3) of the 1998 Act, which relates to section 12(2) but sits oddly with paragraph 9 of Schedule 2).  The provision in Schedule 3 to the 1998 Act that is cited and upon which the Secretary of State appears really to have relied is paragraph 6(a),which has the effect that no appeal lies against –

“6. A decision as to the amount of benefit to which a person is entitled, where it appears to the Secretary of State that the amount is determined by –

(a)  the rate of benefit provided for by law; or

(b)  …”

15. It is arguable that paragraph 6(a) of Schedule 3 to the 1998 Act owes more to history than anything else, because it seems unnecessary.  In any event, while it might possibly prevent there being any argument before the First-tier Tribunal that a person who falls within the scope of subparagraph 3(a) of Schedule 5 to the 2008 is entitled to any benefit, it does not prevent a person from appealing on the ground that he does not fall within the scope of that sub-paragraph.  The claimant could not therefore be denied a right of appeal merely because he asserted that he was entitled to benefit while he was in prison.

16. It may be that, when the statement of reasons came to be written, the First-tier Tribunal judge had second thoughts about the correctness of having found that the appeal was not within the First-tier Tribunal’s jurisdiction and that that was why the statement of reasons also recorded that the case had no prospects of success.  However, as the Secretary of State accepts, there was absolutely no hint in the documents before the First-tier Tribunal as to whether the claimant had been a remand prisoner or not at the material time.  Consequently, it was not open to the First-tier Tribunal to find that the appeal had no prospects of success.

17. Moreover, there was also the question of the claimant’s entitlement to employment and support allowance after his release from prison.  At the time it made its decision, the First-tier Tribunal did not know that the Secretary of State had in fact conceded that the claimant was correct as to the amount of benefit to which he should have been entitled and the First-tier Tribunal was, in my judgment, wrong to say on the material before it that the appeal was concerned only with entitlement during the period of imprisonment.  The point raised by the claimant when objecting to his case being stuck out had been raised in the original letter of appeal, which ought accordingly to have been taken as being not only against the decision not to award benefit during the period of imprisonment but also against the subsequent award.

18. However, the Secretary of State had presumably reviewed the award in respect of the period from 27 September 2011 in the claimant’s favour, so that the appeal had lapsed under section 9(6) of the 1998 Act insofar as it was an appeal against the original award.  That may be why the Secretary of State did not mention it in the submission made to the First-tier Tribunal, although it would have been helpful to explain the position in a sentence or two.  In any event, the issue is no longer a live one in these proceedings.  Indeed, the claimant may now be satisfied with the award and payments made from 27 September 2011.  If he is satisfied with the award but not the calculation of the payment of arrears, that is not a matter within the First-tier Tribunal’s jurisdiction.  If he is not satisfied even with the revised award, it was necessary for him to lodge with the local office a new appeal against the decision as revised.

19. However, the question whether the claimant was entitled to employment and support allowance while in prison in 2011 is still a live issue on which, unfortunately, there is still a lack of evidence.  The Secretary of State’s current representative has made enquiries but the local office no longer holds the relevant records.  The claimant’s newly-instructed solicitors have asked for an extension of time if I am not minded simply to allow the appeal on the ground suggested by the Secretary of State.  As the Secretary of State submits, the issue still needs further investigation which might include simply asking the claimant or his solicitors for details of his imprisonment.  I consider that that investigation will be more appropriately carried out locally rather than by the Upper Tribunal.

20. In these circumstances, I accept the Secretary of State’s submission that I should in effect remit the case to his local representative.  I do that by giving the decision set out above. I have given three months for the response because the claimant is again in prison and communication with him may be difficult.  However, his solicitors (AA Mirsons, 103 Clarendon Road, Leeds LS2 9DF (contact: Mr RJ Blackburn)) may be able to answer the question whether the claimant was a convicted and sentenced prisoner from (approximately) 9 July 2011 to 27 September 2011 or whether he was merely a remand prisoner for any part of that period. 

21. If the claimant now accepts that he was not entitled to employment and support allowance because he was a convicted and sentenced prisoner during the period in issue, it would be helpful if he were to write to the First-tier Tribunal to withdraw his appeal.

Mark Rowland

21 November 2012