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Cite as: [2014] UKUT 43 (AAC)

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JS v Kingston Upon Hull City Council (HB) [2014] UKUT 43 (AAC) (29 January 2014)
Tribunal procedure and practice (including UT)
tribunal jurisdiction

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 13 September 2010 under reference 950/09/00080) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the tribunal’s decision of 13 September 2010, purporting to review the decision of 4 June 2009, was without force or effect. The decision of 4 June 2009 remains operative of the claimant’s entitlement to housing benefit and council tax benefit.

Reasons for Decision

A. The issue

1. The legal issue that arises is whether the First-tier Tribunal had jurisdiction to review one of its decisions on its own initiative. The answer is: no.

B. How the issue arises

2. This case has arisen out of an attempt by the local authority and the First-tier Tribunal to produce an outcome that was appropriate in a manner that was fair and expedient. Unfortunately, the method followed has actually produced the opposite result with the issue still not resolved over five years after the authority’s decision.

3. The claimant received compensation from the local authority under the Equal Pay legislation. The authority had to decide the effect of that compensation on her entitlement to housing benefit and council tax benefit. It decided that the effect was retrospectively to reduce her entitlement and that she was liable to repay the amounts paid in excess of entitlement. She exercised her right of appeal to the First-tier Tribunal. On 4 June 2009, the tribunal allowed the appeal. In view of developments in other cases, the local authority wrote to the tribunal expressing its concern and asking how the judge would prefer to deal with the case. The judge replied that, if necessary, she could remedy any error she had made on review under section 9 of the Tribunals, Courts and Enforcement Act 2007. That is what she eventually did on 13 September 2010, reviewing her previous decision on her own initiative and substituting a decision dismissing the claimant’s appeal. This eventually led to the claimant applying to the Upper Tribunal for permission to appeal.

C. Did the judge have power to review her previous decision on her own initiative?

4. Section 9(2)(a) confers that power:

9 Review of decision of First-tier Tribunal

(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).

(2) The First-tier Tribunal’s power under subsection (1) in relation to a decision is exercisable—

(a) of its own initiative, or

(b) on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.

However, rule 40(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 provides:

40 Review of a decision

(2) The Tribunal may only undertake a review of a decision—

(a) pursuant to rule 39(1) (review on an application for permission to appeal); and

(b) if it is satisfied that there was an error of law in the decision.

5. That appears to override section 9(2)(a), which raises the question: does statute authorise a rule of procedure to have that effect? Section 9(3) contains some enabling powers specific to review:

(3) Tribunal Procedure Rules may—

(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;

(b) provide that the First-tier Tribunal’s power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal’s own initiative;

(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;

(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the First-tier Tribunal’s power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.

None of those paragraphs authorises rule 40(2)(a). Paragraphs (a) and (d) both apply to review on the tribunal’s own initiative, but neither authorises a decision in the form of rule 40(2)(a). They would limit the review powers to particular descriptions of decision or particular grounds, whereas rule 40(2)(a) simply prohibits the exercise of the power at all, without reference to decisions or grounds. Paragraph (b) also applies to review on the tribunal’s own initiative, but would produce the opposite effect to rule 40(2)(a). And paragraph (c) only applies to section 9(2)(b).

6. There are other enabling powers that are not specific to review. Section 22(1)(a) provides in the most general terms:

22 Tribunal Procedure Rules

(1) There are to be rules, to be called “Tribunal Procedure Rules”, governing—

(a) the practice and procedure to be followed in the First-tier Tribunal …

I would be reluctant to accept that so general a provision could alone authorise rules to override the express and specific power conferred by statute. However, paragraph 6 of Schedule 5 makes provision specific to a tribunal acting on its own initiative:

Tribunal acting of its own initiative

6. Rules may make provision about the circumstances in which the First-tier Tribunal … may exercise its powers of its own initiative.

It could be argued that that authorises a rule of procedure to do exactly what rule 40(2)(a) purports to do: to provide that the First-tier Tribunal may not exercise the review powers in any circumstances. But it could also be argued that rule 40(2)(a) purports to do precisely the opposite of what paragraph 6 authorises, which is to provide when the tribunal can exercise its power rather than when it can’t. However, paragraph 6 does not stand alone. Paragraph 1(2)(a) of Schedule 5 provides that the enabling powers in the Schedule do not prejudice the generality of section 22(1). It is not necessary to find a single enabling power that authorises a particular provision in subordinate legislation. As Lord Hope said in Banks v Chief Adjudication Officer [2001] 1 WLR 1411:

43. I am content to accept, as a general proposition, that guidance as to the meaning of a provision in a statutory instrument may be obtained from the wording of the enabling power under which it was made. But the reliability of that guidance is diminished if one finds, as one does in this case, that a variety of enabling powers were available to the draftsman of the statutory instrument and there were no compelling reasons for maintaining a strict separation between the exercise of each of them. …

Taking the enabling provisions as a package, I consider that they are sufficient to authorise rule 40(2)(a).

7. I set out this reasoning in my grant of permission. The local authority’s representative has not disagreed with it, but has argued that the result is to leave in place the original decision which is said to be manifestly wrong. This, the representative argued, is not in accordance with the overriding objective. This is a reference to rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698).:

2. Overriding objective and parties’ obligation to co-operate with the Upper Tribunal

(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the Upper Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Upper Tribunal must seek to give effect to the overriding objective when it-

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must-

(a) help the Upper Tribunal to further the overriding objective; and

(b) co-operate with the Upper Tribunal generally.

8. I do not accept that argument. As rule 2(3) says, the overriding objective is about interpreting and applying the rules of procedure to ensure that cases are dealt with fairly and justly. That does not allow me to disregard the express limitations in the powers conferred on the tribunal in order to give it a jurisdiction it does not have.

D. Disposal

9. Applying the logic of my analysis, the decision made on 13 September 2010 was without force or effect. There would be no point in remitting the case to the First-tier Tribunal, because it could only decide that it had no jurisdiction to act on its own initiative. I do not consider that the Upper Tribunal has power to do anything more. Specifically, it has no power to deal with the 2009 decision, which is not the subject of this appeal.

10. It is now a matter for the local authority to decide whether, so long after the event, it should pursue this matter further and, if so, how. Any requests or applications that it may make will be for the First-tier Tribunal to decide.

E. Why I refused the request for an oral hearing

11. The local authority’s representative has asked for an oral hearing. The Upper Tribunal has a discretion whether or not to hold a hearing: rule 34(1) of the Upper Tribunal Rules. The test I have to apply is whether ‘fairness requires such a hearing in the light of the facts of the case and the importance of what is at stake’: Osborn v The Parole Board [2013] UKSC 61 at [2(i)]. I am required to have regard to the parties’ views: rule 34(2).

12. I have exercised the discretion against holding a hearing. The legal analysis is clear and the local authority has only disagreed with it by referring to the overriding objective. I have explained why that argument does not work. As the tribunal acted without jurisdiction, the only appropriate course is to set aside the decision.

13. That leaves the question of what the local authority can or should do next. It is not a matter for me to advise on that. It is sufficient to say that, having decided that the First-tier Tribunal had no jurisdiction to make the decision under appeal, I have no power to deal with any issues that now arise in respect of the tribunal’s original decision. An oral hearing could not deal with them.

Signed on original
on 29 January 2014

Edward Jacobs
Upper Tribunal Judge