IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Poynter

DECISION

The appeal by the London Borough of Islington succeeds.

The decision of the First-tier Tribunal given at Fox Court on 8 February 2013 under reference SC242/12/07258 involved the making of an error on a point of law.

That decision is set aside.

The decision of the First-tier Tribunal is re-made in the following terms (which except as they relate to procedural matters, are the same as the First-tier Tribunal’s original decision):

The appeal against the decisions issued by the London Borough of Islington on 5 December 2011 as originally made has lapsed.

The time for the claimant to appeal against the decisions issued by the London Borough of Islington on 5 December 2011 as revised on 22 October 2012 ("the decisions as revised") is extended to 6 February 2013.

The appeal against the decisions as revised is allowed.

The decisions as revised are set aside.

The sum of £1,885.60 has been overpaid to the claimant as housing benefit for the period from 16 May 2011 to 6 November 2011.

However, neither the whole nor any part of that sum is recoverable from her.

The sum of £418.87 has been paid to the claimant as excess council tax benefit for the period from 16 May 2011 to 6 November 2011.

However, neither the whole nor any part of that sum is recoverable from her.

 

REASONS FOR DECISION

Introduction

1                This is an appeal by the London Borough of Islington ("Islington") against the decision of the First-tier Tribunal ("FTT") sitting at Fox Court on 8 February 2013.

2                The FTT was considering an appeal by the claimant against a decision issued by Islington on 5 December 2011, and revised on 22 October 2012, under which the claimant was liable to repay overpaid housing benefit ("HB") of £1,885.60 for the period from 16 May 2011 to 6 November 2011 and a payment of excess council tax benefit ("CTB") of £418.87 for the same period.

Procedural history

3                The procedural history of this appeal is relevant to some of the issues I need to decide. What happened was as follows.

4                On 16 March 2011 Islington awarded the claimant HB at the weekly rate of £109.59 from and including Monday 4 April 2011 and CTB at the weekly rate of £24.32 from and including 1 April 2011. That award was based on the fact that the claimant was receiving income support.

5                With effect from the week commencing 17 January 2011, the claimant began to work 22½ hours a week during term-times as a meal supervisor at a local primary school. A note on the DWP’s income support case system ("ISCS"), which is reproduced at page 21 of the papers, establishes that she notified this change promptly to the Jobcentre that administers her income support claim. The Jobcentre should have advised her that, as she was now working for more than 16 hours a week on average, she was in remunerative work and no longer entitled to income support. However it is clear from the DWP’s own notes that instead she was told to produce her payslip in due course ‘in order to adjust her benefit rate’.

6                The claimant had told the DWP that her first payslip was due on 26 February 2011. When that payslip had not been received by 20 April 2011, the DWP wrote to her requesting to see the payslips and noted on ISCS that they should ‘consider suspension’ if no reply was received. On 23 May 2011, not having received a reply from the claimant, the DWP suspended payment of income support to the claimant.

7                It appears that, subsequently, the DWP decided that the claimant had ceased to be entitled to income support from 13 May 2011, because it notified Islington on 3 November 2011 that that was the case.

8                On receipt of that notification, Islington wrote to the appellant notifying her that payment of her HB and CTB had been suspended and requiring her to provide “proof of all income that you have received since your I/S ended”, and a large amount of other information, within seven days. The letter ended by stating:

“If you do not provide this information by 04.12.11 your claim may be cancelled and any overpayment may be fully recoverable from you.

If you are having difficulty providing the information requested you must contact us and tell us why.”

9                Islington’s case is that they did not receive any reply to that letter. On 11 November 2011, they wrote to the claimant again chasing the information and stating:

“If you do not send us all of the information we have asked for within a month of the date of our original letter, we will assume that you no longer want to claim and your claim will be closed.”

10             Islington’s case is also that no reply was received to that letter. On Tuesday 6 December 2011, they wrote to the claimant stating that her claim “has been cancelled on the date shown above”. The reason given for the “cancellation” was “claim cancelled, your income support entitlement ending”. A new decision had been made that the claimant was not entitled to HB or CTB for the periods from 16 May 2011 to (respectively) 6 November 2011 and 3 November 2011. This gave rise to an overpayment of HB for the period of £2,739.75 (25 weeks at £109.59 per week) and an excess payment of £597.62 of CTB (the calculation of which was not explained but which appears to represent approximately 24 weeks and 4 days at £24.32 per week).

11             On 23 January 2012, the claimant appealed to the FTT with the assistance of Ms Lorna Reid of Islington Law Centre. Islington accepted the late appeal but declined to revise its decision.

12             The appeal was therefore submitted to the FTT and, in due course, listed for hearing before Judge Persadsingh on 30 August 2012. The hearing was attended by the claimant and Ms Reid, but Islington were not represented and had informed the tribunal in advance that that would be the case.

13             Judge Persadsingh gave the following decision:

“Adjournment Notice

The representative for [the claimant] has requested an adjournment as the provisions of reg 104 have not been complied with i.e. The local authority has a duty before any overpayment is notified to offset any overpayment against any underlying entitlement.

Directions

Local authority to apply Regulation 104 to the overpayment.

Only relist at Fox Court if both parties are not satisfied with the outcome.”

14             The claimant then provided Islington with her payslips and, on 22 October 2012, Islington issued a revised decision under which the overpayment of HB for the period from 16 May 2011 to 6 November 2011 was reduced by £1,208.60 to £1,885.60 and the excess CTB payment for the same period was reduced by £189.12 to £418.87. The letter notifying the claimant of that decision contained the following section:

“What happens next

As the decision has not been fully revised, you will need to write to us by 06 November 2012 stating whether you intend to continue with your appeal. (Please copy the tribunal Service into your reply).

If you are still unhappy with the decision, a tribunal is likely to treat your appeal as being against the revised decision.”

15             There then followed a disagreement between the Law Centre and Islington about whether the effect of the revised decision had been to cause the claimant’s appeal to the FTT to lapse. In due course, Ms Reid submitted a further appeal by post on 11 January 2013. However Islington apparently did not receive it and a further copy was sent by e-mail on 6 February 2013. On 7 February 2013, the appeals officer at Islington refused to accept the late appeal as there were “no special reasons for lateness”.

16             The proceedings were then listed before Judge Shepherd at Fox Court on 8 February 2013. The judge allowed the claimant’s appeal and set aside the decision made on 5 December 2011, holding that there was no recoverable overpayment of HB or excess payment of CTB.

The FTT’s decision

17             In her statement of reasons, the Judge made the following findings of fact:

“1. It is not in dispute that there has been an overpayment of housing benefit.

2. In January 2011 [the claimant] began full-time work in [Name] Primary School. She contacted the DWP (Job Centre Plus) to inform them of this. She telephoned the Local Authority on the same date as she contacted Job Centre Plus. She does not know the name of the person she spoke to. She told that person that she had started full-time work. The tribunal accepts her evidence as fact that she was told to obtain and complete a change of circumstances form.

3. She got the change of circumstances form from the Housing Office, took it home and completed it and posted it back to the Local Authority.

4. She continued to receive her benefits as before, including income support. She thought her entitlement to income support was based on her being a single parent with a child.

5. On 16.3.11 and 17.3.11 she was issued with Benefit Decision Notices by the Local Authority. She saw that her weekly benefit was based on her receiving income support…; which she was.

6. On 8.4.11, she was sent another Benefit Decision Notice…. Again, her claim was stated to be based on income support.

7. Although she now realises that her income support should have been stopped when she declared that she was working full-time, she did not realise this at the time.

8. On 3.11.11 the DWP notified the Local Authority that it had ended [the claimant]’s claim to income support with effect from 13.05.11.

9. On 4.11.11, the Local Authority suspended her claims for housing benefit and council tax benefit and asked for proof of her income from May 2011 and on 6.12.11 terminated her claim from 16.05.11. She was notified of overpayments of housing benefit and excess council tax benefit. These figures were subsequently reduced by a decision dated 22.10.12.

10. The tribunal treated [the claimant]’s existing appeal as an appeal against the revised decision as the revised decision calculated [the claimant]’s underlying entitlement to benefit following a direction given by the tribunal on 30.8.12.”

18             Giving reasons for her decision, the judge said she had found the claimant to be a credible witness and accepted her evidence that she had notified the local authority that she had started work both by telephone and by completing a form. She:

“considered, on the balance of probabilities that the claimant would have informed the DWP and the Local Authority of her change of circumstances at the same time”.

It followed that the overpayment was caused by local authority error as it failed to act on her notification. The claimant could not reasonably have been expected to realise at the time that she was being overpaid because all the notices that she received stated that her entitlement to HB and CTB stated that her claim was based on her entitlement to income support, which she was receiving, albeit as a result of a mistake by the DWP.

The grounds of appeal

19             Islington applied for permission to appeal against that decision on 17 April 2013. The stated grounds of appeal are as follows:

“The First-tier Tribunal (FtT) arrived at a decision that no reasonable could have arrived at based on the evidence by giving more weight to [the claimant] verbal evidence that it ought to have given.

The FtT wholly accepted [the claimant] verbal evidence that she informed the local authority (LA) about the change in her circumstances (COC) following which she obtained and posted a COC form to the LA. In arriving at its decision the tribunal states that it found [the claimant] to be a credible witness and considered on a balance of probabilities that she would have informed the DWP and the local authority (LA) about the changes at the same time (please refer to the tribunals finding of facts under, paragraphs 2-3 of the statement of reasons (SOR) and paragraph 1 of its reasoning.

He LA regrets that it is unable to see how any reasonable tribunal could have arrived at this conclusion in absence of a shroud of evidence suggesting that [the claimant] notified the LA about the change. If [the claimant] first telephoned then called into its office to collect a COC form, which she purportedly posted to the LA, the tribunal should have considered that the LA would at least have had one record of this (given the advancement of technolgy and record keeping by most Inner London LA’s) which (ultimately undermined the probability that she notified the LA about the change).

The tribunal failed to give adequate reasons for it’s decision. in particular, the tribunal failed to state why it believed that [the claimant] must have notified the LA at the same time as the DWP (which the LA submits was little more than an assumption as it is not uncommon for claimants to omit notifying the LA about COC’s even when they have infiormed the DWP) and failed to state why they found her to be a credible witness given that evidence showed that the DWP were having difficulty obtaining evidence of her payslips (please see page 21 of the LA’s original evidence bundle)(which would explain why their decision was delayed) (ii) the LA had similar difficulties obtaining a response from [the claimant] (once it became aware that JSA was no longer in payment) (please refer to pages see pages 23-40, 31-34) (iii) [the claimant] was dishonest in the evidence that she submitted to the tribunal (at the adjourned hearing of 30 August 2012) by suggesting that the LA wilfully failed to comply with the provisions of reg 104 (please cross reference with pages 45-52) and by misrepresenting her earnings for those purposes (please refer to letter dated 22 November 2011 from [name] primary school; which [the claimant]’s representative faxed to the tribunal on 29 August 2012; as evidence of her earning’s. Please compare with the evidence that was subsequently obtained at the LA’s request (pages 87, 107 of the tribunals numbering). i.e. a more credible witness would have been more forthcoming about responding to the LA’s enquiries and providing the correct evidence.

In absence of any evidence to support that the LA was notified about the change (when weighed against all the outlined evidence) the LA believes that the tribunal erred in law by treating [the claimant] as a credible witness and re classifying the overpayment as an official error overpayment.

Therefore, the tribunal is either asked to (i) grant the LA’s request for leave or asked to (ii) ‘set aside’ the decision of the FtT with a view to the matter being remitted to a differently constituted tribunal.”

For ease of reading, I have altered the case of the quoted words (which were originally in capitals, as the notes to Form UT2 direct). However, the spelling, punctuation, syntax, emphasis and layout are as in the original.

20             On 29 April 2013 District Tribunal Judge Fagg granted permission to appeal on the basis that “there is possibly an arguable point of law involved relating to whether the tribunal has correctly interpreted and applied Regulation 100 housing Benefit [Regulation] 2006 and Regulation 81 of the corresponding Council Tax Regulations”.

21             On 15 August 2013, Upper Tribunal Judge Levenson directed that the claimant should provide a response to the appeal within one month and that Islington might reply to that response within a further month. However, the claimant has not made any response and therefore there is nothing for Islington to reply to.

Discussion

Procedural issues

22             Before considering Islington’s stated grounds of appeal, it is necessary to discuss the procedural issues to which I have referred at paragraph 3 above.

Islington’s letters of 4 and 11 November 2011.

23             As the Upper Tribunal, and before it the Commissioner, has explained on many occasions—and contrary to what Islington clearly believes—local authorities have no power to “cancel” a “claim” for HB or CTB.

24             That is for two reasons:

(a)             By paragraph 2 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, a claim ceases to exist when it is decided. After that what subsists is not a “claim” but either an “award” (if an award was made), or nothing (if it was not). Once an award is in payment, there is no longer any “claim” to “cancel”.

(b)             Moreover, if a local authority wishes to bring an award to an end, there is no legal provision which permits the award simply to be cancelled. Rather, the decision that made that award must be revised or superseded and that cannot be done without first establishing that grounds for revision and supersession exist.

25             If a claimant fails to provide information or evidence when required to do so, that can sometimes give rise to grounds for supersession. As I explained in CH/3736/2006 (at [27]) an authority with grounds for believing that a claimant’s circumstances have changed, but which—having required the claimant to provide it in accordance with Part III of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 ("the 2001 Regulations")—cannot obtain the information it needs to make a decision, has two options:

(a)             either it can rely upon regulation 14 of the 2001 Regulations, which provides that entitlement to benefit ceases in certain circumstances where a claimant fails to comply with an information requirement. That cessation of entitlement is a change of circumstances since the decision awarding benefit had effect and therefore a ground for supersession under regulation 7(2)(a)(i); or

(b)             it may, in an appropriate case, draw the adverse inference that the claimant is no longer entitled to benefit and is refusing or failing to provide information because to do so would demonstrate that that was the case. The inferred absence of entitlement would also be a change of circumstances and a ground for supersession

26             Each of those options has advantages and disadvantages from the authority’s point of view.

27             On the one hand, Part III of the 2001 Regulations contains a number of procedural safeguards designed to protect claimants from having their benefit stopped without their first having been given a warning that that is a likely consequence of continued default and having been told—accurately—what steps they may take to avoid that consequence. If the authority does not follow those procedures correctly, it risks invalidating the subsequent decision under regulation 14 that entitlement to benefit has ceased. And even if the procedures are followed correctly, the claimant’s entitlement ceases from the date on which payment of benefit was suspended (for the reasons given in CH/3736/2006), rather than the beginning of the benefit week after the supposed change in circumstances occurred.

28             On the other hand, if the authority draws an adverse inference, it will often be able to end the claimant’s award from an earlier date. But, because the local authority cannot rely on the statutory cessation of entitlement provided for in regulation 14, the claimant will be at liberty in any appeal to produce further evidence (including evidence that could have been—but was not—produced at the appropriate time) to demonstrate that the inference drawn by the authority was not the correct one.

29             In this case, Islington appears to have chosen the first option. However, its letters of 4 and 11 November 2011 were defective in a number of respects.

30             First, as I have recently explained in DTM v Kettering Borough Council (CTB) [2013] UKUT 625 (AAC), the minimum period in which a local authority may require a claimant to provide information or evidence in connection with a HB or CTB claim is one month, not “seven days”. Islington’s letter in this case is not as bad as Kettering’s was in DTM because Islington did not threaten the claimant with adverse consequences until after the expiry of the one-month limit specified in the regulations. However, the inclusion of the seven day limit at the start of the letter was likely to cause confusion and, in my judgment, was inconsistent with the requirement to provide the claimant with a “firm deadline” for the provision of the information (see CH/2995/2006 at [43]).

31             Second, in order to support any subsequent termination under regulation 14, the authority must notify the claimant of the requirements of regulation 13 (see regulation 13(3)). Those requirements are listed in regulation 13(4). They are that that the claimant must:

(a)             either furnish the information or evidence needed within a period of one month beginning with the date on which notification was sent to her (or within such longer period as the relevant authority considers necessary in order to enable the claimant to comply with the requirement); or

(b)             satisfy the authority within the same period that the information or evidence she has been required to produce does not exist or cannot be obtained.

32             Neither of Islington’s letters complied with regulation 13(3). They only told the claimant that she must provide the specified information. The first letter was equivocal as to the period within which the information had to be supplied and neither mentioned the possibility that the one month time limit could be extended. Neither letter advised the claimant that it was also open her to seek to persuade Islington that the information that had been requested did not exist or could not be obtained: telling her that she must contact the authority and explain why if she was having difficulty providing the information, fell considerably short of what regulation 13(3) required.

33             In those circumstances, the claimant’s entitlement to benefit did not cease under regulation 14—see AA v London Borough of Hounslow [2008] UKUT 13 (AAC) and AA v Leicester City Council [2009] UKUT 86 (AAC)—and the FTT could not have upheld Islington’s decision on the basis.

34             For Islington to resist the claimant’s appeal it therefore had to rely on the “adverse inference” route.

35             Once the decision is put on that basis, the claimant was entitled to produce new evidence to rebut the inference. Judge Persadsingh’s decision to adjourn for the regulation 104 issue to be reconsidered was therefore one she was entitled to make and the reservations about that decision that were subsequently expressed by Islington’s appeals officer (who was not present when it was made) were misplaced.

Did the appeal lapse?

36             Contrary to what Islington advised the claimant, the effect of the decision it gave on 22 October 2012 was that the original appeal lapsed.

37             The relevant law is as follows:

(a)             Under paragraph 3(6) of the Child Support, Pensions and Social Security Act 2000 ("the 2000 Act") :

“(6) Except in prescribed circumstances, an appeal against a decision of the relevant authority shall lapse if the provision is revised under this paragraph before it is determined.”

(b)             The prescribed circumstances are set out in regulation 17 of the 2001 Regulations. They are that the appeal

“shall not lapse where the decision as revised is not more advantageous to the appellant than the decision before it was so revised.”

(c)             Regulation 17(2) gives specific examples of circumstances in which a decision is to be regarded as “more advantageous”. These include the circumstances in which:

“(d) [i]n consequence of the revised decision, housing benefit or council tax benefit paid is not recoverable by virtue of or as a consequence of section 75 or 76 of the Administration Act, or an amount so recoverable is reduced.”

38             The important word in paragraph 3(6) is “shall”. To the extent that the decision under appeal has been revised, the appeal lapses unless the prescribed circumstances exist. Although it is ultimately for the tribunal to decide whether—and to what extent—revision has occurred, there is no discretion about the consequences of that decision. The preferences and conveniences of the parties and the efficient conduct of the judicial process are all irrelevant.

39             Applying those principles to this case, Islington decided on 22 October 2012 that the amount of the recoverable HB overpayment was reduced from £2,739.75 to £1,885.60 and the excess payment of CTB was reduced from £597.62 to £418.87. By virtue of regulation 17(2)(d)—and also as a matter of the ordinary use of the English language—that decision was “more advantageous to the appellant” than the original decision. Therefore the circumstances prescribed by regulation 17(1) do not exist in this case. It follows that the decision caused the appeal to lapse.

40             Islington appear to have taken the view that the appeal did not lapse because of the principle established by the reported decision of a Tribunal of Commissioners in R(IS) 2/08. That view is incorrect.

41             The principle in R(IS) 2/08 is that where the decision as revised is only more advantageous to the appellant in respect of part of the period covered by the original decision, the appeal only lapses as regards that part of the period and continues in relation to the remainder of the period.

42             R(IS) 2/08 does not hold that an appeal against a decision that has been revised, remains in effect unless the revising decision gives the appellant everything she could have obtained from the appeal. Section 29 of the Social Security Administration Act 1992 used to provide that where a claimant had appealed against a which was subsequently reviewed, the appeal would only lapse if the decision on the review was the same as the decision that would have been made on the appeal had every ground of the claimant's appeal succeeded. But that has not been the law since 29 November 1999. The repeal of section 29 and the enactment of section 9(6) of the Social Security Act 1998 (which is in similar terms to paragraph 3(6) of Schedule 7: see paragraph 37(a) above) represented a deliberate legislative decision to abrogate the former rule.

43             Specifically, the decision ultimately under appeal in R(IS) 2/08 had been made on 2 September 2003 and was to the effect that the claimant was not entitled to income support from 17 May 2002. On 8 October 2003, after the claimant had appealed against it, that decision was revised on so as to disentitle her with effect from 1 August 2002 (paragraph 14). As may be seen from the Tribunal of Commissioners’ substituted decision (paragraph 1) they treated the appeal as continuing in respect of the period from 1 August 2002, even though it had lapsed in respect of the period from 17 May 2002 to 31 July 2002.

44             The facts of this case are entirely different. In relation to HB, the period covered by the revised decision was precisely the same as the period covered by the original decision and in relation to CTB it was three days longer. In those circumstances there is no scope for the application of the principle in R(IS) 2/08.

45             For those reasons, Islington’s letter of 22 October 2012 should have told the claimant that her appeal had lapsed and advised her of her rights to make a fresh appeal against the decision as revised. If the claimant had then wished to maintain that the appeal had not lapsed, she could have applied to the Tribunal for a ruling on the point.

46             It follows from what I have said that Judge Shepherd’s approach to this issue was also technically incorrect. As she explained at paragraph 10 of her findings of fact (see paragraph 17 above) she treated the original appeal as an appeal against the revised decision because the revising decision had been made pursuant to the direction given by Judge Persadsingh. That was a sensible and pragmatic approach but, unfortunately there was no legal basis for it. It would certainly be more convenient if regulation 17 prescribed that an appeal should not lapse where a revising decision is made pursuant to directions given by a tribunal (at least where the tribunal has so directed). However, that is not what regulation 17 says. As the law stands, an appeal against a decision that has been revised lapses unless the revising decision is “not more advantageous” to the claimant than the original decision. That is so irrespective of the circumstances that have led to the revising decision.

47             It is for that reason that I have set the FTT’s decision aside.

48             Finally, it should be pointed out that, if the view taken by Islington had been correct, and the appeal had not lapsed as a consequence of the decision of 22 October 2012, the claimant would have been legally entitled to a period of one month from that date to make further representations as to the appeal (see regulation 17(4) of the 2001 Regulations). Islington therefore had no right to demand a response by 6 November 2012 (i.e. within 14 days).

The issues raised by the grounds of appeal

49             I therefore turn to the stated grounds of appeal.

Perversity

50             Islington’s first ground of appeal is that the FTT’s decision was perverse in the sense that it had “arrived at a decision that no reasonable [tribunal] could have arrived at”.

51             In my judgment, this ground of appeal is an attempt to dress up a disagreement with what the tribunal decided about the facts to make it look like an error of law. The judge accepted the claimant’s evidence and she was entitled to do so, particularly as she had had the opportunity of hearing that evidence in person and questioning the claimant about it.

52             It is certainly the case that there was a tension between the claimant’s evidence and Islington’s evidence that they did not have a record of the phone call the claimant said she had made’ or of receiving the change of circumstances form that she said she had submitted. However, the resolution of that type of conflict by weighing the evidence is quintessentially a matter of fact for the FTT. The jurisdiction of the Upper Tribunal is limited to questions of law and if the tribunal has not made an error of law then the Upper Tribunal has no power to interfere with the FTT’s evaluation of the evidence.

53             It is, of course, an error of law to make a perverse decision. But the FTT’s decision in this case is not perverse. Islington’s submission to the contrary amounts to an assertion that no tribunal could reasonably come to the view that Islington’s internal procedures ever worked less than perfectly. That is not the case. Islington’s procedures sometimes fail to operate correctly, including in at least two instances in these very proceedings. The same is true of every other local authority; and of the DWP and HMRC; and indeed of the FTT, the Upper Tribunal and of every other human institution. It was for the judge to decide whether, for example, Islington’s evidence that it had no record of any telephone call meant that the claimant’s evidence that she had made such a call could not be accepted. She was not required to accept Islington’s view of the matter.

Adequacy of reasons.

54             The second ground of appeal makes a number of specific criticisms of the judge’s reasoning but, again, they mostly amount to assertions that the judge erred in law because she did not view the evidence as Islington do. I will deal with each of them in turn.

55             First it is said that when the tribunal found on the balance of probabilities, that the claimant “would have informed the DWP and the local authority of her change of circumstances at the same time” she was making an unjustified assumption.

56             One can readily agree that, as Islington submits, it is not uncommon for claimants to omit to notify the local authority about changes of circumstances even when they have informed the DWP. However it is also the case that many claimants do notify both the DWP and the local authority of changes in circumstances as soon as reasonably possible after those changes occur. The question in this case was whether it was more probable than not that the claimant had done so. The claimant told the FTT that she had. She said that she notified the change in circumstances to Islington by phone, was told to obtain and return a change of circumstances form and did so. The judge chose to accept that evidence. And, although the passage from the statement of reasons quoted at paragraph 18 above could perhaps have been better expressed, that choice did not involve making any assumption: it merely involved accepting the claimant’s evidence.

57             Next, it is said that the judge should have explained why she found the claimant to be a credible witness given that the evidence showed that both the DWP and Islington itself had difficulty obtaining evidence from her.

58             However, there is nothing in this point. The fact that the claimant did not provide evidence when she was asked to do so, shows that she was dilatory and/or disorganised or possibly just busy with other matters. It does not show that her evidence lacked credibility when it was eventually provided. On the contrary, Islington has accepted that the evidence that was eventually produced established that the claimant was entitled to a considerable reduction in the amount of the overpayment to reflect her underlying entitlement.

59             Thirdly it is said that the claimant was dishonest in the evidence that she submitted to the tribunal at the adjourned hearing on 30 August 2012 by suggesting that Islington wilfully failed to comply with the provisions of regulation 104 and by misrepresenting her earnings at the hearing.

60             An allegation that a party’s evidence to a tribunal has been dishonest is a serious one and should not be made without adequate grounds. In this case, the allegation is without foundation. Neither the appeals officer nor anyone else from Islington was at the hearing on 30 August 2012. The only information Islington has about what was said at that hearing comes from Judge Persadsingh’s decision notice (quoted at paragraph 13 above) and her brief record of proceedings which was in the following terms:

“Reg 104 requires that before any overpayment decision is notified the LA has to offset any overpayment against any underlying entitlement. Rep has asked that matter be [adjourned]”

Nothing in either document suggests that the claimant made any suggestion to the tribunal, or indeed that she said anything at all. The only person who is recorded as having made any submission is her representative, Ms Reid. That submission does not assert any “wilful failure” on the part of Islington but only a statement that no offset under regulation 104 had been made, which was true.

61             As far as the letter from the claimant’s employer was concerned, the contents were true but not complete. However, as Ms Reid’s submission to Judge Persadsingh made clear, that document was provided on the basis that the claimant said she had already posted to Islington. The submission reads as follows:

“[The claimant] posted some of the information required to Islington Benefits Service – a copy of a letter from her employer outlining her hourly rate, her December 2011 payslip and a copy of her post office account. … we enclose a copy of the letter from her employer and the post office account but unfortunately we do not have a copy of the payslip.”

The tribunal would therefore have been aware that the employers’ letter only contained part of the information that it needed and that a pay slip, which would have provided further details, was not before it.

62             Overall, nothing that occurred at the hearing on 30 August 2012—or in the run up to that hearing—provides any basis for supposing the claimant had been dishonest. It was therefore unnecessary for Judge Shepherd to address the point in her statement of reasons.

63             Finally, it is not the case that there was not a “shroud of evidence” [sic] or that there was “an absence of any evidence” to support the tribunal’s conclusion Islington was notified about the change. What the claimant said to the tribunal at the hearing was “evidence” and Judge Shepherd was entitled to accept it.

64             More generally, I accept that Tribunals must normally explain their conclusions about the credibility of witnesses. However, the degree of explanation that is required, and indeed the degree of explanation that can be given, depends on the complexity of the case.

65             In this case, the claimant and Ms Reid attended the hearing on 8 February 2013 and Islington did not. It was therefore not possible for the tribunal to obtain further evidence of Islington’s procedures and it would not have been proportionate to adjourn to do so. The judge was faced with a conflict in which the claimant said that she had telephoned and written to Islington to report the change in circumstances and Islington said that it had no record of having received either that phone call or the change of circumstances form. That conflict could have been resolved in a number of different ways. The judge could have concluded that:

(a)             the claimant was lying or mistaken when she said that the telephone call took place and that she had completed and returned the change of circumstances form; or that

(b)             the claimant was neither lying nor mistaken about that but that Islington’s records were incomplete (or that, in the case of the form, it had been committed to the post but not delivered to Islington by the Royal Mail); or that

(c)             Islington were lying or mistaken when they said that they had no record of receiving the call or the form.

66             If the judge had rejected Islington’s evidence and decided that they were lying or mistaken, her statement of reasons would have had to explain why. But she did not do so. The statement implicitly accepts that Islington’s records were as they stated. However, the possibility that those records might be incomplete meant the claimant’s evidence might nevertheless be correct. The judge was obliged to reach her decision on a balance of probabilities and, although items do go astray in the post, far more items that are committed to the post are properly delivered than go astray. The issue was therefore whether, accepting that Islington had no record of the call or receipt of the form, and that a form that had been committed to the post would probably have been delivered, the claimant was lying or mistaken when she said that she had made the call and returned the form.

67             The judge heard that evidence, questioned the claimant about it and, taking everything into account, found the evidence to be credible. She said so in her statement of reasons. It is implicit in the judge’s finding of credibility, that she considered the positive oral evidence from the claimant outweighed the absence of any supporting evidence from Islington’s records. There is really no more the judge could have said to explain that. If the claimant’s evidence had been self-contradictory or inherently implausible, then a further explanation would have been required. But that evidence was neither contradictory and it is not inherently implausible that the claimant made a phone call or completed and returned a form. If Islington had been represented at the hearing and drawn the judge’s attention to aspects of the evidence which they considered undermined the claimant’s credibility, then the judge would have had to deal with those submissions in the statement. But Islington did not attend the hearing or make any such submissions.

Reasons for the re-made decision.

68             I have set the FTT’s decision aside because it erred in law by deciding an appeal that had lapsed.

69             However, this is a case in which I am able to re-make that decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

70             For the reasons I have given, the FTT’s actual decision was one it was entitled to make and has been adequately explained. Its error related to procedure only. Under section 12(4)(a), I have power to make any decision the FTT could make if it were re-making the decision. As I can exercise, that power to give the FTT’s decision a sound procedural underpinning, it is appropriate that I should do so.

71             The key to the re-made decision is that, although the appeal against Islington’s original decision has lapsed, an appeal against that decision as revised was made no later than 6 February 2013 (see paragraph 15 above). The effect of my having set the FTT’s decision aside is that that appeal remains extant and a decision must be made whether it should be admitted. That, in turn, requires me to consider whether an extension of time should be granted from 22 November 2012 (one month after time limit for appealing expired) to (on Islington’s view of the matter) 6 February 2013.

72             Islington submitted to the FTT that time should not be extended because there were no “special circumstances” within regulation 19 of the 2001 Regulations.

73             However, the test applied by the FTT when considering whether to extend time under rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 ("the Procedure Rules") is not the same as the test which local authorities must apply under regulation 19.

74             Rather, I must consider is whether granting an extension would give effect to the overriding objective of dealing with the case fairly and justly (see rule 2 of the Procedure Rules).

75             When considering the overriding objective, I must have regard to the factors listed in rule (2)(2). However, where—as here—the power under rule 5(3)(a) is being exercised by the Upper Tribunal following a successful appeal and as a precursor to re-making the decision under section 12(2)(b)(ii), those factors are of little weight. The most relevant rule 2(2)(d), which identifies that one aspect of dealing with the case fairly and justly is that the issues should be properly considered. That factor favours granting an extension of time in this case because refusing such an extension would mean that the issues are not effectively considered at all.

76             However, the most important factor in this case is that the delay in appealing was caused by the confusion created by Islington’s letter of 22 October 2012. In particular if, as it should have done, that letter had informed the claimant that her appeal against the original decision had lapsed and notified her of her right to appeal against the decision as revised, I have no doubt that Ms Reid would have ensured that the claimant exercised that right within the time limit. It is no answer to say that a computer-generated letter would have been sent to the claimant at around the same time and that that letter would have advised the claimant of her appeal rights. Any such letter would have conflicted with the letter of 22 October 2012 which told the claimant that her appeal had not lapsed. Given a choice between acting on the advice of a letter from a human being written with reference to the facts of the claimant’s particular case and acting on the generic boilerplate advice of a computer-generated notification, confirming that letter, the claimant cannot be criticised for relying on the former.

77             In those circumstances, I cannot see how it would be either fair or just to deny an extension of time in this case. To do so would be to allow Islington to use the confusion that they created to defeat the appeal.

78             That confusion would, in my judgment, also have amounted to special circumstances within regulation 19, if that were the test I had to apply.

79             I therefore grant a sufficient extension of time so as to validate the appeal against the decision as revised and then reinstate Judge Shepherd’s decision for the reasons she gave (other than in paragraph 10 of her written statement of reasons) as supplemented by this decision.

 

Conclusion

80             For all those reasons, my decision is as set out on page 1.

(Signed on the original)

Richard Poynter Judge of the Upper Tribunal 20 January 2014