Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/527/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the appeal to be reheard by new tribunal in accordance with the directions given below.

 

REASONS FOR DECISION

 

1.      This appeal is brought with the permission of a Judge of the Upper Tribunal from a decision of the First-tier Tribunal given on 3 December 2010 refusing to adjourn the hearing at the request of the claimant and dismissing his appeal from a decision of the local authority refusing to backdate an award of housing and council tax benefit from 26 April 2010, the date from which they were awarded, to 22 March 2010.  The commencement of the award is incorrectly stated as 24 May 2010 in the council’s submissions to the tribunal.  That had been the original commencement date but a decision dated 20 July 2010 had amended the start date to 26 April 2010. 

 

2.     The claimant claimed to have had good cause for not having claimed earlier in that he first wanted to do all he could to stand on his own feet.  He sought an oral hearing, and notification of a hearing on 3 December 2010 was sent to him, according to the tribunal documents on 12 November 2010.  By letter dated 23 November 2010 the claimant wrote seeking an adjournment of the hearing date.  I shall return to the contents of that letter in due course.  It is not in the tribunal files and does not appear to have been seen by either judge who considered the adjournment request.

 

3.     The appeal was dealt with by the Birmingham Appeals Service Centre.  A note on the file by a tribunal employee dated 1 December 2010 reads:

 

“Hearing at Norwich 03/12/10

 

TIC: Appellant wrote to TS Birmingham last week  - he is unable to attend – he has lots of commitments as he is setting up in business and has meetings set up.  He really cannot attend but wants an adjournment as he wants to attend and in Jan, Feb any date would be OK.”

 

The note is signed and dated and is followed by another note the same day:

 

“TIC to P10

P10: works Mon, Tues, Wed. – I told them I would phone them Friday once Judge has made a decision on adjournment & PIP request.”

 

Friday was in fact 3 December, the day of the hearing.  There is no indication on the file what time the hearing was listed for.  There followed a third note:

 

“Judge refused PIP on 02/12/10 – Appeal to continue

TIC to Appellant:  no answer 3/12/10”

 

4.     The decision notice produced by the tribunal judge on 3 December 2010 stated that the tribunal proceeded in the absence of the claimant, his request for a postponement being refused.  The appeal was disallowed and the decisions of the local authority in relation to housing benefit and council tax benefit issued on 3 June 2010 were confirmed.  I note that in fact those decisions had been amended by the decision dated 20 July 2010, although there is no reference to that revision in the decision notice.

 

5.     By letter dated 6 December 2010, the claimant wrote to the Tribunal Service in Birmingham asking for an explanation why his letter had not been forwarded to the tribunal in Norwich and for statements explaining why his request for a postponement of the hearing was not granted and giving the reasons for the decision of 3 December.  He also asked for the decision to be set aside for procedural irregularity because the judge was not given sight of his letter of 23 November and because he was for very good reasons unable to attend but the hearing was not postponed as it should have been.

 

6.     In my judgment it is plain that when a written request for an adjournment is made the judge determining that application should see that written request and not rely on a note of a subsequent telephone conversation made by a tribunal officer.  I can see no excuse for that letter not having been sent to the judge considering the adjournment request or for it not being added to the tribunal’s papers so that it could also be seen by the tribunal hearing the case, the adjournment having originally been refused.  Nor has any explanation been offered why, when a request was made by letter of 23 November, it took a week for it to be dealt with at all, although the likely explanation from the telephone note is that it was never forwarded by the Tribunal administrative centre in Birmingham.

 

7.     It then took a judge three months to deal with this request.  By a decision dated 12 March 2011, the claimant’s application to set aside the tribunal decision was dismissed.  The grounds given were that the claimant “requested a postponement of his appeal because of business commitments.  Judicial proceedings take precedence over other appointments and the application was correctly refused.  There are no grounds to set the decision aside.”

 

8.     That decision was manifestly wrong in law, and once again appears to have been reached without looking at the claimant’s letter of 23 November.  Firstly, the judge who originally refused the application was manifestly wrong to refuse an adjournment without reading, or having read to him, the letter of 23 November giving the grounds.

 

9.     Secondly, there is no absolute rule that judicial proceedings take precedence over other appointments.  The tribunal’s power to adjourn or postpone a hearing is a judicial power conferred by regulation 5 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.  By regulation 2 of those rules, it is provided that the overriding objective of the rules is to enable the tribunal to deal with cases fairly and justly.  Regulation 2(3) requires the tribunal to give effect to the overriding objective when it exercises any power under the rules.

 

10. The alleged principle that judicial proceedings take precedence over other appointments simply does not exist as an absolute rule.  Regulation 2(2) sets out factors which, amongst others, are to be taken into account in dealing with a case fairly and justly.  They include proportionality, flexibility, ensuring, so far as practicable that the parties are able to participate in the proceedings and avoiding delay, so far as compatible with proper consideration of the issues.

 

11. Factors in the present case include that the hearing date was fixed without reference to the claimant and that the claimant had indicated his availability at any time in either of the two following months.  The amount at stake was 5 weeks benefit at a total of £85.21 per week, hardly a significant sum from the council’s point of view although of some importance to the claimant.  Those sums remained in the council’s hands unless and until the claim was determined in favour of the claimant.  The application had been received relatively promptly, some time before the hearing, and it does not appear to have been the claimant’s fault that consideration of it was delayed.  Further, without the letter of 23 November, the tribunal on 3 December had not been able fairly to deal with the claimant’s application and on that ground alone should not have continued with the hearing.  So too, the tribunal judge who made the decision refusing to set that decision aside ought not to have come to any decision without first obtaining a copy of the letter either from the offices in Birmingham or, if they had mislaid it, from the claimant.

 

12. A copy of the letter of 23 November 2010 has now been provided by the claimant to the Upper Tribunal on this appeal.  It reads:

 

“Thank you for your letter of 12 November.

 

Unfortunately, I am unable to attend the appeal on 3^rd December.  I am currently launching my business so that I never again, until the day I die, have to apply for benefits!  I already have a full schedule and meetings for that day, which I cannot afford to miss.  How self-defeating it would be if my attempt to stay off benefits were stalled by my appeal against a decision not to grant me benefits earlier this year, at a time when I was also doing my utmost to avoid becoming reliant on them!

 

I, thus, request that you reschedule the hearing for another day.”

 

13. In my judgment, when this is read with the claimant’s indication that he was available any day in January and February, the two decisions not to adjourn and the decision not to set aside patently become perverse.  It is not proportionate to the importance of the case to insist on a hearing on a date of which the claimant had been given relatively short notice if that might put at risk reasonable efforts to get off and stay off benefits, on which the tribunal knew and pointed out in the statement of reasons that he had been since 2003.  This was in the context that the claimant had offered a wide range of alternative dates in the near future for a hearing.  It was not good for him and it was also not good for the council or the DWP who would have to pay benefits in the future. The decision was also unjust in that the tribunal knew, or should have known from the note in its files to which I have referred, that it was acting without seeing the claimant’s written application.  It did not give him, therefore, a fair hearing of his application.  It was wholly inflexible, at least if its approach was reflected in the reasons given for not setting its decision aside.  It did not ensure, in the circumstances, so far as possible, that the claimant could participate fully in the proceedings.  It did not, as a result avoid delay, but caused it as this appeal has rightly resulted.  It has added to the costs of HMCTS in dealing with this matter because of the cost of the appeal which has taken up a great deal more time than an adjournment would have done.

 

14. I am here only concerned with whether the tribunal was in error of law in failing to adjourn on 3 December although my reasoning applies equally to the refusal of an adjournment on 2 December and the refusal to set aside the decision of 3 December.  For the reasons given, I am satisfied that the refusal to adjourn was in error of law and I set aside that decision and the subsequent decision dismissing the claimant’s appeal.

 

15. The claimant’s problems with the tribunal service do not end there, however.  He appears never to have been offered any explanation why his letter of 23 November was not properly dealt with, despite asking for an explanation why it was not forwarded.  Nor was he provided with any statement of reasons, despite having made a prompt and proper request for one.  I note from the tribunal file that a direction was given on 12 March 2011 for the file to be forwarded to the tribunal judge to prepare a statement of reasons.  I do not know whether this happened or not, but no statement of reasons was provided.  It took further letters of complaint from the claimant dated 27 September and 14 October 2011 before a statement of reasons dated 30 October 2011 was finally produced and until 9 November 2011 before it was issued to the claimant more than 11 months after he had asked for it.  It must be very doubtful after such a delay on this case whether the statement that was then produced represented the reasons on which the tribunal acted at the time or was an attempt, as best as could be, to work out what they must have been.

 

16. The statement of reasons indicates that the claimant had given no evidence to explain why he had not claimed from 22 March 2010, the date to which he sought to backdate the claim.  He did in fact ask for backdating to that date, and not to the date in December 2009 when he had ceased to have an income, on the basis that it was then that he became in arrears with his rent (file p.24).  He also offered, by letter dated 20 May 2010, an explanation as to why he had not signed up for Jobseeker’s allowance, stating that he wanted to avoid getting into the benefits trap again and he knew that going to the Job Centre at his age and without a verifiable employment history, would not help him in getting employment.  He preferred to stand on his own two feet, but needed a roof over his head.  The council understandably felt that it had not been given good cause from this letter as to why he had not applied earlier for housing and council tax benefit.

 

17. A further letter from the claimant dated 26 July 2010 also states that that he did not claim immediately because he preferred to do his utmost not to succumb to claiming benefits, and that it was perverse to penalise somebody who adopts such a responsible approach.

 

18. On this appeal, the claimant has again set out in more detail his history of claiming benefits and his desire to avoid what he describes as the benefits trap and to stand on his own two feet as being the reason why his application for benefit was made late.  He refers to R(S) 2/63T, where a tribunal of commissioners approved what was said about good cause in an earlier decision.  What was said was that good cause meant “some fact which, having regard to all the circumstances (including the claimant’s state of health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act, or fail to act, as the claimant did.” It was also stated in that case that the question whether any given set of facts constitute good cause for delay in claiming was a question of law (see para.12 of that decision), but it has since been held by the Court of Appeal in Chief Adjudication Officer v Upton, [1997] 2 CLY 4668 to be a question of fact.

 

19. The tribunal of commissioners in R(S) 2/63T went on to state that in general it was the duty of the claimant to find out what his rights were and how and when they should be asserted.  They went on to identify various cases where a claimant was held to have good cause for delay in claiming because the right to benefit was unlikely and not such as to provoke enquiry into its existence.

 

20. This test has been considered in many decisions of Commissioners and, more recently, of the Upper Tribunal.  In UH v London Borough of Islington, [2010] UKUT 64 (AAC), Judge Lane said:

 

“8 This test, however, is problematic for a variety of reasons:

 

a. The test does not reflect the language used in the relevant regulations, which refer to ‘the claimant’ and ‘good’ cause, and not to ‘a reasonable person’ and what he would have done – CH/2198/2008;

b. By introducing ‘all the circumstances,’ including personal characteristics, into the test of reasonableness, the test takes on subjective elements. These are difficult to reconcile with the objective nature of reasonableness.

c. Neither the test as formulated nor, indeed, the regulations, require a person to be acquainted with ‘the rules and regulations’. It has long since been accepted that ignorance of one’s rights is not of itself good cause for delay in claiming, but may be a factor to be taken into consideration in establishing good cause. ‘A claimant ought to take reasonable steps to ascertain his rights, but…there are frequent occasions when it is reasonable to make no enquiries because there would not appear to an ordinary person to be anything to enquire about’: R(S)3/79. It would not be difficult to multiply examples.

 

9 The difficulties with R(S)2/63T do not make it wrong. However, in order for it to work effectively in the wide range of circumstances placed before tribunals, the test must remain informed by the actual words used in the regulations. Judge Williams recognised the tension between the two formulations in CH/474/2002, which involved a claimant whose mental illness may have caused his unreasonable behaviour and hence his delay in claiming. Logically, someone cannot be unreasonably reasonable, but there might be a person whom we would recognise as having good cause for apparently unreasonable behaviour, which in this context extends to acts and omissions.

 

10 I agree with Judge Levenson in CH/2198/2008 that, at the end of the day, the test is whether the claimant has good cause. The reasonableness of what the claimant does or does not do in relation to claiming is clearly an important consideration, but must be set against other factors which may cast a different light on his behaviour. The more reasonable a person’s behaviour, having regard to age, experience and particularly (it seems to me) the information available, the more likely he is to have good cause. The less reasonable the behaviour, even bearing in mind those other factors, the less likely the claimant is to establish good cause for delay.

 

11 The tribunal could not consider this appeal properly without acknowledging the peculiar situation in which the appellant found herself…”

 

21. The peculiar situation in which the claimant in that case found herself is very far removed from that of the claimant in the present case.  However, the test is one of good cause and all the facts need to be considered in determining whether there was good cause for failing to make the claim.  While it is true that the usual case where questions of good cause arise are cases where the claimant did not know about his or her rights, or was misinformed or had to prioritise, for example, looking after a sick spouse or parent, the term good cause is not limited to such cases and the question that the tribunal must ask itself is whether the facts established amount to good cause for failing to make the claim.   

 

22. There have been many decisions in the past that a decision not to claim benefit was not good cause for not making the claim in good time (seeCS/537/49; CS/554/49; R(U) 34/51; R(I) 6/62).  In CS/554/49 the Commissioner  specifically stated that a “deliberate election not to claim benefit even for altruistic reasons cannot be “good cause” within the meaning of the statutory regulations.”  On the other hand, in R(U)20/56 a short delay while the claimant was negotiating to be reinstated in his job, which had it happened would have rendered the making of a claim unnecessary was held to be good cause.

 

23. I bear in mind also that the apparently definitive rulings as to whether particular facts constituted good cause must be read in the context of the then current view (as stated in R(S) 2/63) that whether all the facts constituted good cause was a question of law.  Now that it is to be treated as a question of fact, while there are some circumstances that clearly fall on one side of the line or the other, there is an area in the middle where the facts are such that a tribunal can properly conclude as a fact either that good cause has been established, or that it has not been established.  What one tribunal might reasonably conclude, as a matter of fact, to be a good cause or good reason for failing to make a claim, another tribunal might reasonably conclude, as a matter of fact, not to be a good reason. Provided both views can reasonably be held, and there are proper findings of facts and reasons, neither can be the subject of a challenge.

 

24. All the relevant facts must be considered before coming to a conclusion.  It appears to me that if a claimant simply chooses not to make a claim and then changes his mind, he does not show that he had good cause for not making it.  It is for him to show in some detail why he did not make it at the start of the period for which backdating is claimed and why he continued not to make it.  It is possible, as in the examples of old cases that I have given, that a tribunal could properly regard a claimant as having good cause not to claim benefit for a limited period, when he is devoting his time to making real efforts to obtain work and avoid what the claimant here has referred to as the benefits trap and in the process to avoid becoming a burden on the state or the local authority.  Indeed he may be applauded for his efforts in that respect.

 

25. On the other hand a person who decides not to claim benefit ought not generally to expect to be able to change his mind and have his claim backdated.  Also, the greater the delay in claiming benefit, the harder it may be to show good cause.  It is a matter for the tribunal to determine as a question of fact whether all the facts in the particular case amount to continuing good cause for failing to make the claim.

 

26. The tribunal must decide the question after hearing evidence as to all the facts.  The claimant will need to explain in some detail what he was doing in the period between 22 March and 23 April that led him not to claim, even when he was falling into arrears with his rent when, if it is the case, he knew he was entitled to do so.  He should produce written evidence of his actions to obtain work in this period if available and should explain its absence if it is not. The tribunal will need to make allowances in this respect for the passage of time, for most of which the responsibility lies with the tribunal under appeal and the judge who refused to set aside its decision, together with whoever was responsible for the delay in the production of a statement of reasons. 

 

27. The new tribunal will also wish to consider that the claimant’s previous claims appear to have been based upon his entitlement to jobseeker’s allowance.  He appears not to have claimed jobseeker’s allowance on this occasion for the reasons he gave in his correspondence.  If his only entitlement during the backdating period would have been on the back of an award of jobseeker’s allowance, then his claim for the period before he was entitled to that allowance will fail whether backdated or not.  If, however, he had an income-based entitlement to benefit, despite not having claimed jobseeker’s allowance, then the tribunal should investigate whether he was aware that he was so entitled.  If he was not so aware then, although ignorance of the law is not of itself an excuse, taken with other factors he may have had good cause for not claiming before he did for more conventional reasons than those on which he has relied to date.

 

28. It is of course possible for the tribunal to find that good cause has been established for a shorter period than that claimed, and if that shorter period is immediately before the date of the claim, then backdating for that shorter period may be permissible.

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

3 December 2012