Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/3204/2011

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal’s decision dated 12 May 2011 is set aside and the case is remitted to a different judge of the First-tier Tribunal for rehearing.

REASONS FOR DECISION

1. This is an appeal, brought by the claimant with my permission, against a decision of the First-tier Tribunal dated 12 May 2011, whereby it dismissed her appeal against a decision of the Secretary of State dated 23 April 2010 to the effect that she was not entitled to income support from 1 September 2007 to 13 November 2009 because she and a man engaged in remunerative work were living together as husband and wife.

2. The claimant appeals on procedural grounds and also criticises the First-tier Tribunal’s reasoning.  The Secretary of State supports the appeal.

3. Since I am satisfied that this appeal should be allowed on procedural grounds, it is unnecessary to set out the events that led the Secretary of State to make his decision on 23 April 2010. 

4. After the claimant appealed against that decision, she asked for an oral hearing of her appeal.  However, she did not appear at the appointed time, which was 2pm on 12 May 2011.  The First-tier Tribunal judge noted on the “record of proceedings” –

“Listed 2 pm.

No appearance or contact from the Appellant at 2.12 pm.

All papers read and considered.”

On the “decision notice” he recorded –

“Listed at 2 pm.  No attendance.

Clerk has telephoned appellant over the course of the morning on 7 occasions to check availability – mobile telephone permanently switched off.

The decision of the Secretary of State issued on 23/4/10 is confirmed.

Left to consider the papers only, and without the opportunity to explore the issues on the appeal with [the claimant] (and [her alleged partner]), I am satisfied on the balance of probabilities as to the Respondent’s case.

[The claimant] had no entitlement to Income Support for the period 1.9.07 – 13.11.09.”

5. The Stevenage Citizens’ Advice Bureau   had made submissions on behalf of the claimant.  However, as is regrettably commonly the case – however much money is involved – it had been unable to represent the claimant at the hearing, presumably because it did not have the resources to do so.  Upon being informed of the decision, it asked for a statement of reasons on 17 May 2011.  The statement of reasons was issued on 25 August 2011 and the citizens’ advice bureau then sought permission to appeal on the ground that there had been inadequate findings of fact and also a breach of the rules of natural justice.  In relation to the latter ground, it said –

“[The claimant] fully intended to attend the hearing @ 2pm on 12 April 2011 [sic] but she got confused over the times and attended at 2.30pm.  By that time the Tribunal Judge had made his decision and our client was not able to put her case.  This was a complete oversight and misunderstanding by our client.

The Tribunal Judge has mentioned in his decision notice that he had no opportunity to explore the issues in the appeal with [the claimant] (and [ her alleged partner]).  There was no direction issued that [her alleged partner] should attend the hearing and our client is no longer in contact with him.  [Her alleged partner] would not be affected in any way by the outcome of the hearing in that he was not a party to any of the benefit claims nor would he have to repay any overpayments of benefit.”

6. Permission to appeal was refused by a different judge of the First-tier Tribunal.  She said –

“With regard to the breach of natural justice, the application for permission to appeal dated 12 September 2011 refers to the Appellant attending at the tribunal at 2.30pm for a hearing listed at 2pm.  However, there is no record of the appellant attending the tribunal; the appellant did not apply to set aside the decision for this reason when asking for a statement of reasons by letter of 17 May 2011, nor did the appellant mention this prior to the letter of 12 September 2011.  It is not accepted that there had been a breach of natural justice.”

7. It is not clear form that document what enquiries the judge made to check whether the claimant had attended the venue and there is nothing in the First-tier Tribunal’s file to assist with that either.  It seems likely that she would have mentioned the judge had she asked him for his recollection but it is possible she checked, or asked a clerk to check, the security records.

8. However, when she applied to the Upper Tribunal for permission to appeal, the claimant said –

“I fully intended to attend the hearing on 12 May 2011 but I got confused over the times.  My hearing was at 2.00pm but I thought it was 2.30pm.  I actually got to the venue at 2.20pm and I was asked to wait in the waiting room.  At approximately 2.30pm the tribunal clerk took me in to see the judge.  The judge told me that as I didn’t attend the hearing at 2.00pm he had made a decision on the papers and my appeal was unsuccessful.  It states on the decision notice that there is no record of my attending the tribunal but this is incorrect; I did attend the hearing and spoke to the tribunal clerk and the judge but as I was late for the hearing I was not able to put my case to the tribunal.”

The Secretary of State does not challenge that account.

9. I agree with the First-tier Tribunal judge who granted permission to appeal that, if the claimant’s account is accepted, it would have been more appropriate for the claimant to have asked for the decision to be set aside rather than, or as well as, asking for a statement of reasons and permission to appeal.  However, I do not consider that that shows that she is not telling the truth, because it is quite possible that the request for a statement of reasons was made before the citizens’ advice bureau was told what had happened or that the citizens’ advice bureau simply overlooked the possibility of applying for the decision to be set aside at that stage. 

10. Nor would it be the first time that a First-tier Tribunal judge had overlooked the need to consider whether to set aside his decision and start again when a claimant has arrived late after he or she has made a decision.

11. Indeed, a formal setting aside may not have been required in this case, because, even if the decision notice had been written, it seems unlikely that it had been sent or given to anyone by the time the claimant arrived as the Secretary of State appears not to have been represented.  The Supreme Court has recently confirmed that a decision of a county court may be revisited at any time before it is sealed (In re L (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8; [2013] 1 WLR 634.  In a court, the act of sealing an order is important because that proves its validity to all the world and it is after the document has been sealed that it may be collected from the court office by a party.  Decisions of the Social Entitlement Chamber of the First-tier Tribunal are not sealed.  They are invariably signed, but there is no statutory requirement that they be signed.  Perhaps more importantly, decision notices and other documents are, in practice, either handed to a party at the conclusion of a hearing or are sent to parties by post.  They do not lie in an office awaiting collection at an uncertain time.  It has always been the practice of the Administrative Appeals Chamber of the Upper Tribunal to treat a decision as final only when a written copy of it is sent or given to a party and it seems to me that the same approach should be taken in the Social Entitlement Chamber of the First-tier Tribunal.  It is the act of sending or giving the document to a party that really marks the time when the decision must become final, subject to any statutory power to correct it or set it aside.

12. In any event, given that the claimant had sought the help of the citizens’ advice bureau, it seems very unlikely that she would deliberately not have attended the hearing of her appeal and, although it is possible that she got the day completely wrong, she has been consistent in what she has said.  I acknowledge that the First-tier Tribunal judge who refused permission to appeal said that there was no record of the appellant attending the tribunal, but I do not know what records she checked and what possibility there was of the records being wrong and I am not satisfied that there are records clearly showing that the claimant is lying.  That judge did not have before her the claimant’s most recent, and most detailed, account.  On balance, I accept the claimant’s account of what happened.

13. In those circumstances, did the First-tier Tribunal err in law?  That it might have been more appropriate for the claimant to have applied for the setting aside of the decision does not mean that she cannot appeal.

14. The Secretary of State refers to paragraph 12 of the decision in MH v Pembrokeshire County Council (HB) [2010] UKUT 28 (AAC) and argues that the First-tier Tribunal erred in not considering whether the claimant had consented to her appeal being determined without a hearing.  However, the judge there was referring to rule 27(1) of Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which is concerned with whether or not there is a hearing at all.  Here, the case had been listed for a hearing and the claimant failed to attend on time.  The relevant provision was therefore rule 31, which provides –

“Hearings in a party’s absence

  31. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –

(a)  is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

(b)  considers that it is in the interests of justice to proceed with the hearing.”

15. It is unnecessary for me to consider whether the First-tier Tribunal should initially have proceeded in the claimant’s absence in this case – or whether it erred in doing so without making any reference to rule 31(b) – because it is clear from KH v SSWP (CSM) [2012] UKUT 329 (AAC) that compliance with rule 31 does not prevent a decision from being set aside if a claimant does not attend a hearing and, in the light of evidence subsequently received, it is in the interests of justice to do so.  Even if it was necessary for there to be a formal setting aside of a decision reached by the First-tier Tribunal before 2.30pm, it seems to me it must clearly have been in the interests of justice to set the decision aside in this case, given the amount at stake and the fact that, by then, it was clear that the claimant did wish to take part in a hearing.  I cannot believe that the claimant having arrived 20 minutes late made it impossible to hear the case that afternoon so as to require an adjournment and a delay in someone else’s case being heard.  There was no reason why the same judge could not hear the claimant’s case again, having set his first decision aside.  No-one could reasonably consider a judge to be under any pressure to reach the same decision after he had heard the claimant’s evidence as he had reached on the papers, particularly when he had not committed himself to any detailed reasoning.  I suspect that setting aside his decision simply did not occur to the judge but I am satisfied that he erred in law in not rehearing the case, even if that required him first formally to set his first decision aside

16. It is principally for that reason that I allow the claimant’s appeal.  I should stress that it is the failure of the First-tier Tribunal judge sitting on 12 May 2011 to set the decision aside that was wrong in law.  I do not consider that the First-tier Tribunal judge who refused permission to appeal erred in law in not setting aside the decision because, on the evidence before her, she was entitled to take a different view of what had happened on 12 May 2011 from the view I have taken.

17. The Secretary of State also concedes that the First-tier Tribunal erred in law in finding that the alleged cohabittee’s mother would have had no reason for lying to the investigators about her son’s place of residence without addressing the point made in the citizens’ advice bureau’s submission that she might have done so because of the potential impact on her own benefit entitlement of it being found that her son had been living in her household (doc 55, second paragraph, last sentence).

Mark Rowland

8 March 2013