Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                             Appeal No.  CH/999/2014

ADMINISTRATIVE APPEALS CHAMBER

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Name:                          K G

Tribunal:                     First-Tier Tribunal (Social Security and Child Support)

Tribunal Venue:       Luton

Hearing Date:            12 August 2013

NOTICE OF DETERMINATION OF AN APPLICATION

FOR PERMISSION TO APPEAL

I refuse permission to appeal.

REASONS

1    The First-tier Tribunal (F-tT) was plainly wrong in refusing to consider whether the decision issued by the Authority to the appellant complied with regulation 10 of the Housing Benefit Regulations 2006.  This was an issue that fell to the Tribunal to decide.  The error was, however, immaterial because no Tribunal looking at the information given by the Authority, as set out by the appellant’s representative in his submission and also reproduced at Appendix 1 (following page 44), could have come to the conclusion that the notice was defective in a respect material to the appellant, or that any defect in the notice was prejudicial to her.

2    The background facts are that the respondent Authority raised an overpayment against the appellant in 2005 seeking to recover overpaid benefit from 2001.  The precise dates are not important for the purposes of this application.  The appellant did not seek to appeal the HB decision until 2012, some 7 years after it was issued.  The difficulty is that there is a 13 month absolute time bar in relation to appeals from an Authority’s HB decision to a F-tT. 

3    In seeking to get around this bar and persuade the First-tier Tribunal to admit the late appeal, the representative argued that the time for appealing had never begun to run against the appellant because the notice given by the Authority was defective, and therefore invalid.  To support this proposition, he cited several cases and referred to Wade and Forsyth, Administrative Law, 8^th edition (p229) wherein the authors give their view that procedural safeguards are normally regarded as mandatory, so it is fatal to disregard them.  The representative further argued that the appellant was, in any event, prejudiced by defects in the notice. 

4    There is no ‘instant death’ rule in relation to defective notices issued by HB Authorities as is clear from the Court of Appeal’s decision in Haringey LBC v Haringey LBC v Awaritefe [2000] 32 HLR 517 (CA).  That decision was subsequently applied in R(H) 1/02 [10], R(H)3/04 CH/4943/2001 and CH/5217/2001.  The correct approach is ‘to assess the substantive harm done by the breach’ (R v Solihull M.C. ex p Simpson (unreported) per Sedley J; or as the Court of Appeal put it, to assess  ‘whether the claimant had suffered substantial harm as a result.’ The effect of any asserted non-compliance therefore fell to be assessed. 

5    The representative drew my attention to regulation 10 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 but I have also taken notice, in particular, of regulation 77 of the Housing Benefit (General) Regulations 1987 as supplemented by Schedule 6 paragraph 14 and paragraph 2, as in force at the relevant time. 

6    As relevant to the circumstances of this case: regulation 10 says that the person affected has to be told of the decision against which the appeal lies, the right to a statement of reasons where the notice does not include one (italics added), and the right of appeal against that decision.  Schedule 6, paragraph 2 however requires that every decision notice shall include a statement as to the right of any person affected by that decision to request a written statement under regulation 77(4) (requests for statement of reasons) and the manner and time in which to do so; paragraph 3 requires the inclusion of a statement as to the right of a person affected to make an application for revision and, where appropriate, to appeal against that decision and the manner and time in which to do so; paragraph 6 permits the Authority to include further information in a notice; paragraph 14 requires the claimant to be told that there is a recoverable overpayment, its reason, amount, how it was calculated, and the benefit weeks involved. 

7    Checking those requirements against the wording of the Authority’s notices (all issued on 10 August 2005, pp14 – 27), they give the necessary information though not in technical language.  There is information on the dates from which the existing decisions were superseded, the benefit involved (called ‘Rent Benefit’, which no one is likely to misunderstand), the reason for the overpayment (that the Job Centre assessed her as having excess capital), how much benefit was actually paid and how much should have been paid and the total repayable.  The Authority also provided a chart showing the amounts overpaid during various benefit weeks affected and the total overpayment. 

8    The notice also tells the appellant that if she wants to know more about the decision, she can contact the Authority by phone or in writing.  It does not expressly tell her that she can have a written Statement of Reasons, but it draws her attention to the right to get further information.  It also tells her, correctly but non-technically, and in conformity with paragraph 3 that she can ask for more information about the decision to be within one month, but that unless she does so, the Authority may not be able to consider any dispute.  This tells her, in essence, that she can dispute the decision and that the one month time limit is not written in stone.  She is then told she has a further right of appeal within one month, which ‘may’ be sent to an Independent Appeal Tribunal. 

9    A lawyer might have adopted more technical language, but the Authority clearly drafted the notice for laymen and, apart from a reference to the right to a written Statement of Reasons, the notice does tell recipients about all of the steps they can take to pursue their rights in relation the decisions. 

10 I do not accept the representative's submission that the Authority misinforms the appellant about the right to appeal by indicating that it can only arise after an internal decision.  The Authority is, rather, drawing a distinction between a ‘dispute’ and an ‘appeal’, and telling recipients that a dispute might not be entertained after a month.  That is not the same as saying that the appeal could only arise following reconsideration.

11 I am unable to accept that there is a breach of the regulations by telling recipients that the appeal ‘may’ be sent to an Independent Appeal Tribunal.  People reading the notice are not likely to believe that it is up to the Authority to decide whether a person’s appeal is worthy of being heard by an independent tribunal.  It is far more likely to be taken to mean that the matter will go to appeal to an independent body if the disagreement cannot be resolved between the parties. 

12 I cannot see any objection to telling the recipients that, if they want more information about appealing, they could ask for a further written Guide.  The notice is designed to give basic information on appeals to recipients, leaving those who wish to appeal to ask for more.  Not every recipient of a notice will wish to appeal it.

13 In summary, apart from omitting the express reference to a Statement of Reasons, the Authority had complied with its duties in all essential respects. 

14 As to the omission of express reference to obtaining a written Statement of Reasons, there is plainly a disparity between paragraph 2 of Schedule 6 of the Housing Benefit (General) Regulations 1987, which says a person must be told of her right to obtain a written Statement of Reasons, and regulation 10 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, which says she may have one if the notice does not [already] include one.  The difference in wording throws into relief the importance of the rule in Haringey LBC v Awaritefe requiring an appellant to show real harm before before a notice is treated as void.

15 Since the Authority’s notice contained full written details of the decisions, I find it impossible to see how the omission to tell the appellant that she could ask for written reasons prejudiced her. 

                                      (Signed on original)

                                                                                     S M Lane

                                                                                     Judge of the Upper Tribunal

                                      (Dated)                                  20 May 2014