Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CG/297/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Hemingway:  Judge of the Upper Tribunal

 

 

Decision:  The appeal is dismissed.  The decision of the First-tier Tribunal made on 1 August 2013 at Newton Abbot under Ref:  SC129/13/01073 did not involve the making of a material error of law. 

 

REASONS FOR DECISION

 

1. This is an appeal to the Upper Tribunal brought by the Secretary of State for Work and Pensions (“The Secretary of State”), permission having been granted by a district tribunal judge of the First-tier Tribunal (Social Entitlement Chamber), against a decision of the First‑tier Tribunal (F‑tT) sitting at Newton Abbot on 1 August 2013 allowing the claimant’s appeal.

 

2. The claimant (who was the appellant before the F‑tT) made a new claim for carer’s allowance on 6 February 2013.  The basis of the claim was that she was providing care for a person I shall simply refer to as “the recipient”.  However, on 4 April 2012 carer’s allowance had been awarded, from and including 30 January 2012, to another person to whom I shall refer to as “the rival carer” on the basis that she was providing care to the recipient. 

 

3. The claimant indicated, in pursuing her claim for carer’s allowance, that she had previously been employed as a teaching assistant but that her employment had ceased on a date in December 2012 and that she had started caring for the recipient on 20 December 2012.  She asked that her claim be backdated to that date.  She also indicated that the rival carer had started work and no longer provided care to the recipient.

 

4. The Secretary of State sought to contact the rival carer in order to establish whether it was agreed that she was no longer caring for the recipient.  At the same time the Secretary of State decided to suspend payment to the rival carer with effect from 18 February 2013.  It appears the rival carer did not respond to the Secretary of State’s request for further information, therefore, on 7 March 2013 the Secretary of State terminated the award of carer’s allowance to the rival carer with effect from 18 February 2013 (the date from which payment had been suspended) and awarded carer’s allowance to the claimant with effect from that date. The Secretary of State, though, did not allow the claimant’s claim from any earlier date than that.  In particular, it is to be noted that the Secretary of State did not allow the claim from 4 February 2013 to 17 February 2013.  It is only entitlement for that period which remains a live issue. 

 

5. On 18 March 2013 both the claimant and the rival carer disputed their respective decisions by telephone.  The rival carer does not appear to have pursued matters further but the claimant lodged a written notice of appeal which was received by the Secretary of State on 20 March 2013.  In her grounds of appeal the claimant said that she had been caring for the recipient since 20 December 2012 and that no one else was doing so. 

 

6. The Secretary of State prepared a written submission which was placed before the F‑tT at the claimant’s appeal.  In that submission the Secretary of State urged the F‑tT to find that the claimant was not entitled to carers allowance from 20 December 2012 to 3 February 2013 because her earnings were over the permitted limit and that she was not entitled from 4 February 2013 to 17 February 2013 because the Secretary of State had, in his discretion, conferred entitlement on another person (the rival carer) but that she was entitled from and including 18 February 2013.

 

7. The F‑tT held an oral hearing on 1 August 2013.  The claimant attended and gave oral evidence.  There were no other attendees.  The F‑tT allowed the appeal in part.  It decided that there was no entitlement from 20 December 2012 to 3 February 2013 because the claimant’s earnings did exceed the carer’s allowance earnings limit.  However, it decided that there was entitlement to carer’s allowance from 4 February 2013 and, of course, there was no dispute about entitlement from 18 February 2013.

 

8. The Ft‑T made a number of findings.  It found that the rival carer had been caring for the recipient prior to 20 December 2012 but that, thereafter, the claimant had been doing so.  It found that the claimant’s earnings did exceed the permitted limit for the period from 20 December 2012 to 3 February 2013 despite a contention made by the claimant (but no longer pursued) that certain provisions of the Computation of Earnings Regulations 1996 discriminate against workers who are paid monthly (as the claimant was) as opposed to those who are paid weekly.  That argument has not subsequently been revived since the decision of the F‑tT.  The F‑tT then turned to the period from 4 February 2013 to 17 February 2013 and noted that the Secretary of State had contended, in his submission, that the part of the decision covering that period was not before it at all because a decision as to who to pay carer’s allowance to, in the absence of agreement between two or more competing qualifying parties, is one taken by the Secretary of State under section 70(7) of the Social Security Contributions and Benefits Act 1992 and is, as a consequence of Schedule 2 to the Social Security Act 1998, a decision which does not carry a right of appeal.

 

9. As to that, the F‑tT said this:

 

“The respondent argues at 5.25 that I am not able to deal with the second limb of the appeal.  There is a long line of authority stretching back to R(F) 1/72 considered in CH/1229/2002 and approved in R(IB) 2/04 allowing a tribunal to consider and decide on the issues that were before the decision maker on the claim in the light of the evidence and submissions presented to the tribunal.”

 

10. The F‑tT then went on to say, having decided that the issue of entitlement for the relevant period was before it, that the Secretary of State’s decision not to suspend payment to the rival carer from an earlier period and not to make proper enquiries was perverse, irrational and an unreasonable exercise of his discretion. 

 

11. The F‑tT said, if it was wrong about that, that the refusal to pay for the disputed period was unlawful pursuant to Article 1 of the First Protocol to the European Convention on Human Rights and the Human Rights Act 1998 because, following the case of Stec v UK 65731/01 (2006) ECHR 393, if a contracting state has in force legislation providing for the payment as of right of a welfare benefit, whether conditional or not on the prior payment of contributions, that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of the First Protocol.  Thus, said the F‑tT, the claimant before it had a proprietary interest in carer’s allowance.  The F‑tT then pointed out that Article 1 says that every natural or legal person is entitled to the peaceful enjoyment of his possessions and should not be deprived of his possessions except in the public interest and subject to conditions provided for by law and by the general principles of international law.  Thus, said the F‑tT, the claimant’s claim for and entitlement to carer’s allowance was protected by Article 1 and the F‑tT added, in its judgment, it was a breach of the claimant’s human rights for the Secretary of State “on a whim” to refuse to pay carer’s allowance to the claimant and to continue to pay to the rival carer and that the Secretary of State had not acted fairly.

 

12. The Secretary of State applied to the F‑tT for permission to appeal to the Upper Tribunal.  The application was lodged late and it was explained that this had come about because the carer’s allowance unit had sent the relevant paperwork to the Department for Work and Pensions decision making and appeals section but that a courier had erroneously delivered it elsewhere.  An extension of time was sought.

 

13.   The grounds of application for permission related solely to the period from 4 to 17 February 2013 and the argument was, in a nutshell, that the F‑tT did not have jurisdiction during that period because the relevant decision, relating to that period, was a decision in respect of which there was no right of appeal.  As noted above, on 1 November 2013, a district tribunal judge of the First‑tier Tribunal (Social Entitlement Chamber) granted permission to appeal.  The decision did not say anything about the delay in lodging the application so either the district tribunal judge must have decided to extend time under rule 5 of the Tribunal Procedure (First‑tier Tribunal) (Social Entitlement Chamber) Rules 2008 or must have failed to appreciate that the application was made out of time, though the latter seems a little unlikely given that the delay was squarely addressed at the outset of the “reasons for appealing” section of the relevant standard form which was used to lodge the application.

 

14. The claimant, pursuant to directions issued by the Upper Tribunal, filed a response to the appeal in which she asserted, in effect, that the rival carer had been dishonest and that if the case had been before the wrong tribunal (this seemingly being based upon a misunderstanding of the arguments) that was not her fault.  She also expressed some concern as to the cost of the appeal to the Upper Tribunal bearing in mind that only a limited amount of money was in issue.  The respondent, in a written submission, set out the history of the case, repeated the point about the relevant decision being one which did not carry a right of appeal, and said that whilst it was not disputed, in general terms, that a tribunal is entitled to give any decision that the Secretary of State could have given when making a decision under appeal, this was not the case in relation to a decision said by statute not to carry a right of appeal because a tribunal is a creature of statute, derives its jurisdiction from statute, and is, therefore, subject to statutory limits and restrictions.  Although the period in issue was short, the Secretary of State said that he was keen to establish the limits of a tribunal’s jurisdiction in relation to section 70(7) of the Social Security Contributions and Benefits Act 1992 because the matter did not appear to have been considered by the Upper Tribunal before.

 

15. Neither party sought an oral hearing before the Upper Tribunal.  I have not considered it necessary to hold one.  I have decided to dismiss the appeal, albeit, that I agree with a good deal of what the Secretary of State has to say in his written submission to the Upper Tribunal.  I set out my reasoning below.

 

16. The first issue to mention relates to the lateness of the application for permission to appeal. The F‑tT’s statement of reasons for its decision (“the statement of reasons”) was sent to the parties on 24 August 2013.  The Secretary of State signed his application for permission to appeal on 17 October 2013 and it appears to have been faxed to the F‑tT on that date.  The relevant time limit for the lodging of such an application is one month from the date the F‑tT’s statement of reasons is sent out. 

 

17. As I have indicated, in the circumstances referred to above, I think it likely that the F‑tT did decide to extend time in order to admit the application despite its not specifically saying so.  For me to conclude otherwise I would have to decide that the district tribunal judge did not read the application because lateness is expressly and clearly addressed at the outset, or subsequently went on to forget the fact of the lateness when dealing with the substance of the application.  I do not think either of those can have happened and I proceed, therefore, on the basis that the district tribunal judge did decide to extend time such that the matter is not one for the Upper Tribunal to determine. In any event, it seems to me that whether the F-tT consciously exercised discretion or not, it did, as a matter of fact, admit the application and that, in such circumstances, Rule 21 (7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 has the effect of meaning the Upper Tribunal does not have to address the delay. However, in the event of my being wrong about that, I would extend time under rule 5(3) (a) of the Tribunal Procedure (Upper Tribunal) Rules 2008, so as to admit the appeal.  This is because the application for permission to appeal was not made significantly out of time, because an explanation has been offered which relates to an understandable administrative error, because it appears that the Secretary of State acted quickly once the delay was realised and because the appeal raises a point in respect of which guidance has been requested. 

 

18. The Secretary of State says that the decision not to pay carer’s allowance from 4 to 17 February 2013 is one which does not carry a right of appeal to the First‑tier Tribunal.

 

19. The relevant parts of the Social Security Act 1998 read as follows:

 

“ 8. - (1) Subject to the provisions of this Chapter, it shall be for the Secretary of State –

 

(a) to decide any claim for a relevant benefit;

 

(b) … and

 

(c) subject to subsection (5) below, to make any decision that falls to be made under or by virtue of a relevant enactment.

 

12. - (1) This section applies to any decision of the Secretary of State under section 8 or 10 above (whether as originally made or as revised under section 9 above) which –

 

(a) is made on a claim for, or on an award of, a relevant benefit, and does not fall within Schedule 2 to this Act; or

 

(b) is made otherwise than on such a claim or award, and falls within Schedule 3 to this Act;

 

(2) In the case of a decision to which this section applies, the claimant and such other person as may be prescribed shall have a right of appeal to the First‑tier Tribunal, but nothing in this subsection shall confer a right of appeal –

 

(a) in relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision;

 

(b) where regulations under subsection 3A so provide.”

 

20. Pausing there, section 3A has no application to this case.

 

21. The relevant provisions of the Social Security Contributions and Benefits Act 1992 read as follows:

 

“ 70. - (1) A person shall be entitled to a carer’s allowance for any day on which he is engaged in caring for a severely disabled person if –

 

(a) he is regularly and substantially engaged in caring for that person;

 

(b) he is not gainfully employed;

 

(c) the severely disabled person is either such relative of his as may be prescribed or a person of any such description as may be prescribed …

 

(7) No person shall be entitled to more than one allowance under this section; and, where, apart from this subsection, two or more persons would be entitled for the same date to such an allowance in respect of the same severely disabled person, one of them only shall be entitled and that shall be such one of them –

 

(a) as they may jointly elect in the prescribed manner, or

 

(b) as may, in default of such an election, be determined by the Secretary of State in his discretion.”

 

22. Schedule 2 to the Social Security Act 1998 sets out a list of decisions in respect of which no appeal lies, one of which is:

 

“3. A decision as to the exercise of the discretion under section 70(7) of the Contributions and Benefits Act.”

 

23. The Secretary of State says that those provisions, when taken together, mean that there is no appeal to the First‑tier Tribunal against the type of decision which was taken by the Secretary of State with respect to the period from 4 February 2013 to 17 February 2013.

 

24. The F‑tT made reference to a number of cases which it said meant that the part of the decision relating to the above period was one upon which it was entitled to adjudicate.  The first of those is R(F) 1/72.  In this case a Social Security Commissioner decided that a “local tribunal” was entitled to deal with any points and any questions of law put before it so that it was able to consider the respondent’s contention that errors had been made in the original decision under appeal such that the claimant before it was not entitled to family allowance payments in relation to which the original decision had said that he was.  In CH/1229/2002 it was decided that it was open to a tribunal, subject to requirements of fairness, to consider whether a tenancy agreement was not on a commercial basis even though that had not been raised in the original decision made by the relevant local authority in the context of housing benefit.  In R(IB) 2/04 it was decided, amongst other things, that a tribunal could, on an appeal against a decision superseding or refusing to supersede a decision, make a revising decision and, likewise, on an appeal against a decision which had been revised, or not revised, following a claimant’s application for revision, make a supersession decision.

 

25. None of these decisions dealt with a situation where a party to the proceedings had contended that a decision before the tribunal did not carry a right of appeal. Quite simply, therefore, none of these decisions are on point.  They are authority for the general proposition that tribunals are able to consider matters on appeal which have not been specifically raised in a decision under appeal before it.  They are not authority for the proposition that a tribunal is able to adjudicate upon a decision which statute says it cannot.

 

26. The F‑tT then, in the alternative, set out its view, summarised above, regarding the application of Article 1 of the First Protocol to the European Convention on Human Rights and of the Human Rights Act 1998.  However, if the decision covering the period from 4 February to 17 February 2013 is  a decision which is not appealable, then that decision is simply not before the F‑tT to adjudicate upon, whether the arguments relating to the correctness of it or otherwise are based on human rights grounds or other grounds.  The mere fact that the claimant might be able to argue (and I do not say that she successfully can) that there has been an infringement of her rights under Article 1 of the First Protocol does not mean that she is able to do so before the F‑tT if the decision she seeks to appeal is not, as a result of statute, one which carries a right of appeal.  It is worth adding that the F-tT does not have jurisdiction to make a declaration of incompatibility in relation to primary legislation.

 

27. The F‑tT did not go on to consider whether there might be a breach of Article 6 of the European Convention on Human Rights as a consequence of there not being a right of appeal to the F‑tT against the exercise of discretion conferred upon the Secretary of State by section 70(7).  Indeed, no such argument was put to it and no such argument has been put to the Upper Tribunal.  In TD v Secretary of State for Work and Pensions [2013] UKUT 0282 (AAC) the Upper Tribunal were considering, amongst other things, an in some respects similar provision, regarding the Secretary of State’s discretion to award child benefit to one of two parents in circumstances where they had equal shared care for the relevant child.  Such a decision carries no right of appeal as a consequence of paragraph 4 of Schedule 2 to the Social Security Act 1998.  It was said that there was nothing to be gained from a judge simply substituting one exercise of discretion for another and that the absence of guidance in legislation or regulations as to how the discretion was to be exercised (and there is a similar lack of guidance here) made the decision a non-justiciable one.  Thus, a tribunal would in any event be limited to considering the equivalent of the grounds that are available in judicial review proceedings.  Further, judicial review was, itself, available and any error of law in the exercise of the discretion could be considered in those proceedings.  Hence, there was no breach of Article 6.

 

28. Following the same reasoning I do not consider it can be said that there is a breach of Article 6 as a result of the exercise of discretion under section 70(7) of the 1992 Act being a decision in respect of which no appeal lies. In any event, as I say, the matter was never raised.

 

29. It follows from the above that I conclude the F‑tT erred in law in deciding that it was able to deal with a decision made by the Secretary of State as to the exercise of discretion under section 70(7). 

 

30. The only remaining question it seems to me, therefore, is whether the decision which the Secretary of State did make with respect to that period was the type of decision envisaged by section 70(7).  If it was then it did not carry a right of appeal.  That is the matter to which I now turn.

 

31. Section 70(1) states the conditions for entitlement to a carer’s allowance.  Section 70(7) operates to prevent two or more persons who meet those requirements both receiving payment.  The wording “where, apart from this section, two or more persons would be entitled for the same day to such an allowance in respect of the same severely disabled person” indicates that it does envisage a situation where two people satisfy the section 70(1) criteria in relation to the same disabled person.  It is in those circumstances, and only in those circumstances, that a joint election by the persons who do meet the section 70(1) criteria may be made or, failing that, the Secretary of State’s discretion may be exercised.  Put another way, a precondition to the exercise of discretion is that there is more than one person meeting the section 70(1) criteria.  A correct decision under section 70(7) then would be one to the effect that two or more persons met the criteria but that only one of those, pursuant to the exercise of discretion, would be regarded as being entitled.  That person only would receive carer’s allowance.

 

32. The respondent’s original decision as recorded at page 28 of the appeal bundle is not obviously that type of decision, at least not in the way it is expressed.  It is addressed to the claimant and says:

 

“You are not entitled before 18/02/13.  This is because another person was caring for [the recipient] before this date.”

 

33. That does not seem to be a decision that both the claimant and the rival carer both met the section 70(1) criteria but that the rival carer is, in the exercise of discretion, to be the one who receives payment.  The wording, rather, seems to imply that the claimant was not caring for the recipient because another person (the rival carer) was.  It is, therefore, to my mind, difficult to regard that decision as being one relating to the exercise of discretion under section 70(7) at all.  It is, rather, more accurately characterised, it seems to me, as being a decision that the claimant is not entitled to carer’s allowance because she does not satisfy one of the key requirements as contained in section 70(1)(a) in that she has not been caring for the recipient.  That type of decision would seem to be one which does carry a right of appeal to the F‑tT.  It is not the type of decision specifically excluded by paragraph 3 of Schedule 2 to the Social Security Act 1998.

 

34. The matter is complicated, though, by what the respondent says in the written submission prepared for the F‑tT hearing.  The respondent says that the decision, insofar as it relates to the period from 4 February to 17 February, is incorrect and it invites the F‑tT to substitute a decision, for that period, which reads:

 

“You are not entitled from 04/02/13 to 17/02/13 because the Secretary of State in exercise of the discretion conferred upon him has decided that another person is entitled to the allowance in respect of the severely disabled person, [the recipient].”

 

35. The submission then invites the F‑T to uphold the corrected decision.

 

36. The corrected decision recognises, though it could have said so more clearly, that the claimant meets the qualifying conditions in section 70(1).  Were that not so there would be no discretion to exercise.  Thus, the exercise of discretion, of itself, implies that the Secretary of State’s position is now that those conditions are met.  The Secretary of State can be taken to have decided the rival carer meets the requirements in section 70(1) because that person has received the allowance for the disputed period and because the corrected decision says another person is entitled to the allowance.  That is clearly a reference to the rival carer.  The claimant disputed any contention that the rival carer met the requirements during the disputed period.  That is apparent from the documentation before the F‑tT .Thus, what she is saying, in effect, is that it is not the case that two or more persons would be entitled, for the same dates, to the allowance in respect of the same severely disabled person.  Her challenge is not directed to the exercise of discretion.  She says the conditions which are required before discretion is to be exercised do not exist.

 

37. The F‑tT did not directly address that question.  However, it did appear to be addressing the corrected decision rather than the original decision because it considered the question of whether it had jurisdiction and only needed to do that if it was accepting that it was the corrected decision which was before it (the original decision, as I have said, not being one regarding the exercise of discretion).  As noted above, it made some findings, including one to the effect that the rival carer ceased to care for the recipient on 19 December 2012.  It was, therefore, in effect, upholding the claimant’s contention that the necessary conditions which needed to exist prior to the exercise of discretion did not exist.  It seems to me, therefore, that the question arises as to whether, if one regards section 70(7) as constituting two limbs, there is a right of appeal to the F‑tT  as to the first limb which is a decision that there are two or more persons who meet the requirements of section 70(1).  If so, then the F‑tT, in essence, given its findings of fact, was deciding, even though it did not express itself in these terms, and despite whatever else it was deciding, that those conditions were not met because the rival carer did not meet the requirements of section 70(1) as at 4 February 2013.  At least, even if it cannot be taken to have decided that, its findings of fact were such that it could not have reached any other decision on that particular point as a result of those findings.

 

38. Going back to section 8 of the Social Security Act 1998, the claimant had made a claim for a relevant benefit being carer’s allowance.  The Secretary of State decided that claim and, insofar as it related to the period from 4 February 2013 to 17 February 2013, decided the rival carer met the conditions in section 70(1) of the Social Security Contributions and Benefits Act 1992 such that, apart from the application of section 70(7), two or more persons would be entitled for the disputed period.  The Secretary of State decided the claim, ultimately, by reference to discretion according to the corrected decision, but an integral part of the process of deciding the claim was the decision that two persons, including the claimant, met the section 70(1) criteria.  Turning to section 12 of the Social Security Act 1998, that section applies to any decision made under section 8 so long as that decision is made on a claim for or on an award of a relevant benefit.  This clamant had made a claim for the relevant benefit and a decision was made under section 8 in respect of it.  It is true that, ultimately, what led to the claimant not receiving the benefit was the exercise of discretion but the decision relating to there being two persons who met the requirements is an integral part of that.  It would be artificial to say that the decision is not one to decide any claim for a relevant benefit, to use the language of section 8, simply because the final part of the process which led to the benefit not being received was the exercise of discretion.  I do conclude, therefore, that whilst there is no right of appeal against the exercise of discretion itself, there is a right of appeal under section 12(1)(a) of the Social Security Act 1998 with respect to a decision under what I have characterised as the first limb of section 70(7).

 

39. I conclude, therefore, that the F‑tT, whilst erring in thinking it had jurisdiction to consider a decision which is said by statute not to be appealable, did not materially err because, on the basis of its findings, the claimant succeeded under the first limb of section 70(1), and that, therefore, no result other than that which it reached was possible.  Accordingly, whilst accepting much of the reasoning advanced on behalf of the Secretary of State, on the facts of this case, I do not set the decision aside.  I did consider doing so only on the basis that it might be thought the F‑tT, if making a decision about the entitlement of the rival carer which is in effect, in part at least, what it was doing, should have considered adjourning with a view to joining her as a party or, at least, inviting her to attend at a reconvened oral hearing.  However, there is no suggestion that any benefit already paid to the rival carer will be recovered from her and, if any such decision was taken, she would have her own right of appeal against it.

 

40. The position, then, with respect to decisions taken pursuant to section 70(7) is that a claimant affected by a decision that two or more persons would be entitled to carer’s allowance in respect of the same disabled person, were it not for the subsection, has a right of appeal to a F‑tT because that is a decision falling within the scope of section 12(1) (a) of the Social Security Act 1998 when read in conjunction with section 8.  However, there is no right of appeal in circumstances where there are two or more such persons and the decision is taken under the subsection to exercise discretion to pay one rather than the other or others.  That is because that would be a decision falling within Schedule 2 to the Social Security Act 1998 as one in respect of which there is no right of appeal and the F‑tT does not have jurisdiction to adjudicate upon such a decision.

 

41. This appeal, though, for the reasons explained above, notwithstanding my agreement as to much of the Secretary of State’s reasoning, is dismissed.

 

(Signed on the original)  

M R Hemingway

Judge of the Upper Tribunal

 

Dated: 11 September 2014