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Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> RN v Secretary of State for Work and Pensions (RP) [2013] UKUT 461 (AAC) (03 August 2013)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2013/461.html
Cite as: [2013] UKUT 461 (AAC)
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IN THE UPPER TRIBUNAL Appeal No. CP/1973/2013
ADMINISTRATIVE APPEALS CHAMBER
THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
Tribunal: First-Tier Tribunal (Social Security and Child Support)
Hearing Date: 5/11/12 and 20/12/12
NOTICE OF DETERMINATION OF
APPLICATION FOR PERMISSION TO APPEAL
This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 5, 21, 22 & 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
I refuse permission to appeal.
1. This matter concerns a challenge by Mr N to a decision to strike out two appeals that he had before the first-tier tribunal (FTT).
2. I accept that there were errors of law in the approach of the FTT to the strike out process, and complications in relation to the linking of 2 cases which led to certain practical difficulties. Nonetheless it is not appropriate to grant permission to appeal as Mr N ultimately has no reasonable prospects of success in either of the appeals. I will deal with the errors in the legal approach for the assistance of the FTT.
3. The source of the difficulty, as frequently occurs, is that the appellant was initially sent an entitlement decision by the Secretary of State. That decision was made on 1/9/11. It said that he was not entitled to his retirement pension from 13/4/11 on the grounds that he had from that date been in prison. This decision was followed some months later with an overpayment decision. That decision said that he had been overpaid the sum of £1126 08 between 18/4/12 and 7/8/12 as a result of his failure to disclose his changed circumstances on or as soon as reasonably practicable after 13/4/11.
4. In order to comply with the time limit in relation to the entitlement decision, Mr N had to challenge that within a month which he did, and the appeal was accepted, registered with HM CTS, and entered on the computer system. It was given the number SC 062/12/00707. The second appeal was numbered SC 062/12/00956. As is clear from what occurred later the two appeals were (appropriately) linked, but not all information appears on both files (or the related computer records) and correspondence has sometimes taken place with reference to one file number only. I do not need to adumbrate all the problems that this has caused, but that they exist should be noted.
5. Both appeals were listed for hearing on 18/7/12 and adjourned. The Secretary of State, who had not sent a Presenting Officer to the hearing, was directed to provide a further submission. On the adjournment notice (which is headed “Decision Notice”) reference is made to both case numbers (although the national insurance number does not relate to this appellant).
6. The Secretary of State was apparently having trouble obtaining the information that had been the subject of the further submission directed by the tribunal on 18/7/12. This information was likely to be within Mr. N’s knowledge and the Secretary of State asked for a direction that he provide that information to the tribunal. That direction was not made formally by the tribunal to Mr N, but the judge instead directed administrative staff to write asking him to provide the information requested by the respondent within 14 days. There was no response, and on further request by the Secretary of State a District Tribunal Judge on 5/11/2012 made formal directions that Mr N provide the information within 14 days of the date of this document being sent to him, and warned him that his appeal may be struck out unless he complied with that direction notice within the time allowed. The only case referred to in that document is the first appeal, the reference ending with the numbers 707. That document was issued to the parties on 5/11/12.
7. On 5/12/12 a District Tribunal Judge made an order striking out that appeal. It read "having given the appellant an opportunity to make representations, the appeal is struck out." It does not state the legal basis for the striking out order.
8. A strike out followed in relation to the second case, 956. It was dealt with by a different judge on 10/12/12 and issued on 20/12/12. It was couched in precisely the same terms, and once again, made no reference to the provision under which the order was made.
9. It is necessary for an appellant to know the legal basis upon which his appeal is brought to a peremptory end. There is a need for clarity in relation to the use of what is the most Draconian power vested in a tribunal.
10. The power exists under the Tribunal Procedure (First Tier Tribunal) (SEC) Rules 2008, rule 27 (3) permitting the disposal of the proceedings without a hearing under rule 8 (striking out a party's case). The relevant parts of Rule 8 provide as follows
.
8.—(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with the direction would lead to the striking out of the proceedings or that part of them.
(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—
(a)does not have jurisdiction in relation to the proceedings or that part of them; and
(b)does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
(3) The Tribunal may strike out the whole or a part of the proceedings if—
(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;
(b )the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or
(c )the Tribunal considers there is no reasonable prospect of the appellant’s case, or part of it, succeeding.
(4) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out.
(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
(6) An application under paragraph (5) must be made in writing and received by the Tribunal within 1 month after the date on which the Tribunal sent notification of the striking out to the appellant.
11. It was said in each strike-out decision that the appellant had been given an opportunity to make representations; this would imply that the power was that set out in rule 8 (2) or (3) (b) or (c). Rule 8 (4) demands that an appellant has this opportunity only in those circumstances.
12. If it was a strike out under rule 8 (2) or (3) (b) or (c) two problems arise. The first is that I can see no reference to any document affording the appellant the opportunity to make representations. The second is that nowhere is the appellant given a reason for the use of this extreme procedural remedy.
13. Without the Tribunal being clear as to which part of rule 8 had been invoked in relation to either strike out the appellant was left in the dark as to why his cases could not be heard. That is a material error of law and had it not been for the weakness of the appellant’s case on the central issue I would have reinstated both appeals. It is necessary for the FTT to indicate the precise source of its jurisdiction when exercising the strike-out power and to explain why it is doing so, where appropriate stating why any failure to co-operate with the Tribunal means that the Tribunal cannot deal with the proceedings fairly and justly
14. Mr. N is equally entitled to know from me why I say that his case is too weak for me to grant permission to appeal. In relation to the entitlement decision (number 707) there can be no argument that he was entitled to receive retirement pension whilst in prison. This is because of the provisions of section 113 (1) (b) Social Security Contributions and Benefits Act 1992. That is the general provision as to disqualification and suspension of benefits in certain circumstances, and the sub paragraph to which I refer deals with the position of somebody undergoing imprisonment or detention in legal custody. Under Part II of the same Act retirement pension is included. In R(P) 2/01 Mr. Commissioner Howell (as he then was) said that the disqualification from retirement pension included the earnings related element, because the wording of the legislation was clear. There are some exceptions to the general disqualification which are set out in the Social Security (General Benefit) Regulations 1982, but they do not apply in Mr. N's case. It is unfortunate that the legal basis of the disqualification was not set out in the response of the Secretary of State in either of Mr. N's appeals, although I think Mr. N was not really arguing the disqualification point; his main concern lay with the overpayment decision (number 956).
15. As to that, his contention that he could not notify the pension department because he was in prison is frankly fanciful; had he told a member of the prison staff that he needed to make that notification there is no doubt that he would have been provided with the wherewithal to do so, and probably with assistance should that have been required. He has no reasonable prospect of success upon either issue; accordingly I refuse permission to appeal.
(Signed on the original) PA Gray
Judge of the Upper Tribunal
3 August 2013