DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the Sutton First-tier Tribunal dated 10 July 2012 under file reference SC154/12/03717 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

 

The Upper Tribunal is able to re-make the decision under appeal. The decision that the First-tier Tribunal should have made is as follows:

 

The Appellant’s appeal against the Secretary of State’s decision dated 29 November 2011 (in respect of the second claim made on 24 October 2011) is dismissed. That decision backdated entitlement to employment and support allowance (ESA) for the maximum period allowable under the legislation, namely three months.

 

However, the Appellant had also made an earlier claim to ESA on 12 April 2011 with effect from 23 March 2011. The Secretary of State has yet to make a proper decision on that claim. The matter is accordingly remitted to the Secretary of State to make such a decision.

 

This decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

1. The Appellant’s appeal to the Upper Tribunal is allowed. The decision of the Sutton First-tier Tribunal, dated 10 July 2012, involves an error on a point of law and is set aside. Its decision is of no effect.

 

2. The usual outcome for appeals that succeed before the Upper Tribunal is that the claimant’s original appeal needs to be re-heard by a new First-tier Tribunal. However, a tribunal re-hearing is not necessary in the particular circumstances of this case. I therefore both (a) allow the Appellant’s appeal to the Upper Tribunal; and (b) re-make the decision that the First-tier Tribunal (FTT) should have made. In doing so, I remit the matter to the Secretary of State to make a decision on the first claim for employment and support allowance (ESA).

 

The factual background

3. The Appellant had the misfortune to be diagnosed with cancer in February 2011. On 23 March 2011 his doctor gave him a sick-note for 13 weeks. The Appellant gave this to his employer, who returned it on 9 April stating that he was not eligible to statutory sick pay (SSP).

 

4. On 12 April 2011 the Appellant therefore contacted the Department by telephone and made a claim for ESA. On 14 April 2011 the Department wrote to the Appellant requesting his SSP1 form and copy pay slips. On 16 April 2011 the Appellant was admitted to hospital for a major operation.

 

5. On 16 May 2011 a Departmental official made the following entry on the computer database record: “No contact from customer – over 30 days – case withdrawn on balance of probabilities that customer is still in receipt of SSP”. It is unclear how, if at all, this action (I hesitate to use the word ‘decision’) was notified to the Appellant. There is no evidence on file that it was so communicated at that time.

 

6. This was then followed by a protracted process in which the Appellant sought to respond to further queries from the Department. The Appellant, obviously not in the best of health, had to chase both his employer and his GP for various documents. In late July 2011 he sent the Department his SSP1 and a duplicate sick-note.

 

7. On 3 August 2011 the Department sent the Appellant a remarkable letter. The body of the letter read as follows:

 

“Dear [Mr R]

About your claim for Employment and Support Allowance

I am returning the documents you sent us received on the 29/07/11.

 

As you had failed to provide the information requested within 30 days from the 14^th April 2011, the processor had no choice but to withdraw your claim dated the 12^th April 2011.

 

You can however make a fresh claim to Employment and Support Allowance and I am enclosing an ESA1 should you wish to do this.

 

If you need any further information regarding the content of this letter please contact me on the telephone number at the top of this letter.”

 

8. On 24 October 2011, and on his doctor’s advice, the Appellant made a further claim to ESA as invited. He sought to claim benefit as from 23 March 2011. On 29 November 2011 a decision maker awarded ESA with entitlement backdated three months from the date of the new claim, i.e. to 24 July 2011. However, credits were awarded with effect from 23 March 2011 as the Appellant had provided evidence of incapacity from that earlier date.

 

9. The Appellant then lodged an appeal against the decision of 29 November 2011. He pointed out that he was sick from the earlier date, that he was recovering from a major operation and had had difficulties obtaining the necessary paperwork.

 

The First-tier Tribunal decision under appeal

10. The First-tier Tribunal (FTT) heard the Appellant’s appeal on 10 July 2012. The FTT dismissed the appeal and confirmed the Secretary of State’s decision dated 29 November 2011.

 

11. The FTT’s reasons were two-fold. First, the tribunal found that the first claim for ESA made on 12 April 2011 had been “correctly closed” due to no contact and insufficient information being provided within the requisite time limit. Second, the tribunal found that the later claim for ESA had been correctly backdated for the maximum period allowable under the legislation, namely three months.

 

12. In the course of its decision the FTT made findings of fact to the effect that the Appellant had been very ill during the period in question and had had problems with his former employers. The tribunal also recorded the Appellant’s evidence that he had only found out in August 2011 that his first claim had been closed.

 

The grant of permission to appeal to the Upper Tribunal

13. In giving permission to appeal, I commented in part as follows:

 

‘5. First, the Appellant made two ESA claims, one in April 2011 (“the defective claim”) and one in October 2011 (which was backdated the maximum 3 months allowed by law, hence “the backdated claim”). So was the FTT concerned with an appeal against the defective claim and the backdated claim, or just the latter? The Appellant’s letter of appeal certainly reads as a challenge to both decisions (p.8). However, the DWP seems to have treated the decision on the defective claim as non-appealable (see the letter of 03 08 2011 at p.21, which makes no mention of appeal rights). That letter is puzzling as it refers to “the processor” as having “no choice but to withdraw your claim”. I can see that the Appellant might withdraw his own claim. But how can a DWP official “withdraw” it? Presumably the DWP were treating the claim as defective (I return to that in a moment) and so a deemed withdrawal? However, Mr Commissioner Howell QC has held that any restriction on the right of appeal against a defective decision did not comply with Article 6 of the ECHR (see reported decision R(IS) 6/04).

 

6. So, did the FTT adequately deal with this jurisdictional point? The decision notice might be read as suggesting that the sole issue before the FTT was the backdated claim (see p.37, para [9]). The statement of reasons seems to engage with the merits of the defective claim (at least to some extent), but concluded that it was “properly closed”. Is this analysis sufficient?

 

7. Second, was the so-called “defective claim” actually defective anyway? A telephone ESA claim is defective in the circumstances set out in reg. 4G(3) of the Claims and Payments Regulations 1987, i.e. where the Secretary of State does not have “all the information he requires to determine the claim”. So the Appellant had to provide information, not (as in some other contexts) information and evidence. It seems to me there is a difference – “information” comprises facts (i.e. “my date of birth is 6 March 1960”) whereas “evidence” comprises e.g. documentary material that supports those facts (e.g. “here’s a copy of my birth certificate”). There was more than one phone conversation in which the Appellant provided information (see letter of 12 04 2011 at p.25 and Appellant’s evidence on file). That April 2011 DWP letter also required further evidence – but how could a failure to provide evidence trigger the defective claim rule, which turned on information?

 

8. Third, the Secretary of State was required to advise the Appellant of the defect and of the rules on the date of claim in reg 6(1F) – see reg. 4G(4).  Does the letter of 12 04 2011 actually meet the notification requirement in reg 4G(4)? In particular, does it make it clear, not simply that the Appellant should provide “information and evidence” by 12 May, but that if he did not do so then his claim would be treated as not having been made at all?

 

9. Fourth, there is a general power in the Secretary of State (and so, on appeal, the FTT) to extend the one month compliance period by “such longer period” as is considered “reasonable” (reg 4G(5)). There were, on the face of it, mitigating circumstances here (the employer’s delay and the Appellant’s serious illness). So should not this option have been considered and explored by the FTT?’

 

The proceedings before the Upper Tribunal

14. Mr John Shaw, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports this appeal. In doing so he makes the following submissions: (i) only a claimant can withdraw a claim for benefit (see Social Security (Claims and Payments) Regulations 1987 (SI 1987/1968), regulation 5(2)); (ii) the Department’s letter dated 3 August 2011 did not constitute a valid notice of a decision (see Social Security (Decisions and Appeals) Regulations 1999 (SI 1999/991, regulation 28(1)); (iii) the first ESA claim accordingly remains undecided; but (iv) the decision to backdate entitlement under the second ESA claim for the maximum period of three months was the only decision that could have been made under the relevant legislation. Mr Shaw therefore recommends that I allow the appeal and set aside the FTT’s decision.

 

15. Mr Shaw further suggests that I can either replace the FTT’s decision with one of my own in respect of the as yet undecided claim for ESA made on 12 April 2011, or return the matter to the Secretary of State for a decision to be made on that claim.

 

16. The Appellant understandably agrees. He points out that he has provided all the information required and in any event incapacity credits have been allowed for the whole period. He asks, in effect, for a decision that he is entitled to ESA for the period from 23 March 2011 to 23 July 2011.

 

The Upper Tribunal’s analysis

17. I agree with the main thrust of Mr Shaw’s analysis. The FTT’s finding that the original claim had been “correctly closed” is plainly an error of law. I also agree that no proper decision has been made, let alone communicated, to the Appellant in respect of his original claim for ESA. I accordingly conclude that the FTT’s decision involves an error of law and therefore both allow the appeal and set aside the FTT’s decision.

 

18. Given all the circumstances, I also agree that it would be right for me to re-make this tribunal’s decision rather than send it back for a new hearing before a fresh tribunal. 

 

19. Mr Shaw’s proposal for the disposal of this appeal, summarised at paragraph 15 above, is not entirely clear. I have no doubt in my own mind that the Appellant was incapable of work as from 23 March 2011 and was entitled to ESA on his first claim. If he was late in providing any paperwork, then in the circumstances it was obviously right to extend time insofar as that was needed. However, the Upper Tribunal’s powers on appeal under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, when re-making the FTT’s decision, are necessarily limited to the powers available to that tribunal. However, the FTT’s jurisdiction is itself limited to deciding appeals against decisions of the Secretary of State made under section 8 (or 10) of the Social Security Act 1998 (see section 12 of that Act). If there has been no section 8 decision, then there cannot be an effective appeal (see R(IS) 12/05 at paragraph 11, per Mr Commissioner (now Judge) Turnbull).

 

20. The Department has produced no satisfactory evidence of any decision on the first ESA claim. Neither the screen-print entry of 16 May 2011 nor the letter of 3 August 2011 can be regarded as “inchoate” decisions that simply need perfecting or tidying up. They are incoherent, not inchoate. There has been no valid decision on the original claim. In the present circumstances, therefore, the best that I can do is as follows. The decision that the First-tier Tribunal should have made, and which I now make, is therefore as follows:

 

The Appellant’s appeal against the Secretary of State’s decision dated 29 November 2011 (in respect of the second claim made on 24 October 2011) is dismissed. That decision backdated entitlement to employment and support allowance (ESA) for the maximum period allowable under the legislation, namely three months.

 

However, the Appellant had also made an earlier claim to ESA on 12 April 2011 with effect from 23 March 2011. The Secretary of State has yet to make a proper decision on that claim. The matter is accordingly remitted to the Secretary of State to make such a decision.

 

21. I certainly hope that the Secretary of State can now take the decision in question as soon as possible, and make an award of ESA on the first claim.

 

Conclusion

22. The decision of the First-tier Tribunal involved an error of law. I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). I also re-make the tribunal’s decision (section 12(2)(b)(ii)) in the terms set out above. 

 

 

 

 

Signed on the original Nicholas Wikeley

on 07 November 2013 Judge of the Upper Tribunal