Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL                                           Appeal No. CE/1558/2014

(ADMINISTRATIVE APPEALS CHAMBER)

 

BEFORE JUDGE WEST

 

 

DECISION

 

 

The application for permission to appeal against the decision of the appeal tribunal sitting at Colwyn Bay dated 27 August 2013 under file reference SC190/13/00540 is refused. The appeal against that decision has no reasonable prospects of success.

 

            This decision is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS

 

 

1.    This is an application for permission to appeal against the decision of the appeal tribunal sitting at Colwyn Bay on 27 August 2013.

 

2.       I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to him hereafter as “the Secretary of State”. I shall refer to the tribunal which sat on 27 August 2013 as “the appeal tribunal”.

 

The Facts

3.  The claimant, who was born on 21 June 1961, and who suffers from a musculoskeletal problem and depression, originally applied for and was awarded Employment and Support Allowance from and including 7 September 2012. She seeks permission to appeal in person against the supersession decision dated 19 December 2012 (following completion of an ESA50 on 4 October 2012 and a medical report from a healthcare professional dated 25 October 2012) that she did not have limited capability for work and thus did not qualify for Employment and Support Allowance from and including 19 December 2012. She scored 0 points on the descriptors.

 

4.    Her appeal, which was made on 4 January 2013, came before the appeal tribunal on 27 August 2013. The decision had been reconsidered, but not revised, on 5 February 2013 (at page 56). The claimant attended with a friend and gave oral evidence. The appeal was allowed. The appeal tribunal held that the claimant was entitled to Employment and Support Allowance with the work-related activity component because in applying the work capability assessment 15 points were scored: 9 points from descriptor 1(c) and 6 points from descriptor 2(c). No Schedule 3 descriptor applied and nor did regulations 29 and 35. The appeal tribunal recommended that the Secretary of State did not reassess the claimant within 6 months. It recorded that it had received cogent oral evidence in relation to physical features. The record of the proceedings appears at page 57 to 58. The notice of decision appears at page 59. From the handwritten annotation on the decision notice it would appear that it was not issued to the parties until 30 September 2013.

 

5.    It was not, however, until 8 January 2014 that the claimant wrote to the appeal tribunal asking it to consider removing the work-related activity component because she was not able to attend (page 60) and she sent a doctor’s certificate that she was not fit for work (page 62), saying that she was in too much pain to attend and was sedated with tablets for pain relief. That letter did not arrive until 14 January 2014. She had also been sent a Working Links welcome letter on 27 November 2013 (page 63).

 

6.      The clerk to the tribunal replied to the claimant’s letter on 21 January 2014

 

“The decision cannot simply be amended. If you wish to change the decision the information sent to you explained how. However, given the time that has now passed you would need to have a good reason for the delay.

 

If your condition has worsened you can contact the DWP to be reassessed”.

 

 

As Judge Wright subsequently explained, the “information sent” had to be a reference to the standard letter issued to Social Entitlement Chamber applicants by the appeal tribunal which, amongst other things, advised claimants that they could seek a statement of reasons for the tribunal’s decision. The reference to the delay was due to the fact that under rule 34(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 an application for a statement of reasons had to be received within 1 month of the date on which the appeal tribunal sent to the party a decision notice relating to the decision. That meant no later than 30 October 2013, but the claimant’s letter (which could only be construed as wanting to appeal against that decision - and that could only begin by first obtaining a statement of reasons) was more than 2 months outside that time frame.

 

7.    The claimant replied on the following day by writing on a copy of the clerk’s letter and sending it back with the explanation (page 64):

 

“The reason for the time passed, I didn’t realise the component of Working Links focused work was in place until I read the papers properly and the interviews for Working Links sent me letters.

 

Because of my illness I cannot cope or concentrate with life things, so sorry for the lapse in time I hope you understand, please could you help me move on from this”.

 

8.     On 30 January 2014 District Tribunal Judge Maddox directed (page 68) that he was treating the letter as a late request for a statement of reasons, which he refused:

 

“The explanation for the delay does not persuade me to extend time”

 

and he further directed that if the claimant wanted to appeal the decision she would need to apply directly to the Upper Tribunal. The claimant was informed of that decision by a letter of even date (page 75).

 

9.    The claimant wrote back to the appeal tribunal on 3 March 2014 that she wished to appeal against the work-related component as her body was so weak from osteoarthritis and her musculoskeletal condition. She said that she was not well enough to attend any work-related component activity (page 71). That letter was received by the appeal tribunal on 6 March 2014 (page 76). District Judge Maddox directed the clerk to return the correspondence to the claimant and to tell her that she should send the letter direct to the Upper Tribunal (page 69), which she duly did on 18 March 2014.

 

10.    In the Upper Tribunal the matter came before Judge Wright on 1 May 2014 when he made certain observations and directions on the application for permission to appeal (pages 78 to 81), although he made it clear that he was not then giving permission to appeal. He directed that the Secretary of State should provide a response on the merits of the appeal and the jurisdictional issues which he had raised within one month of the date on which the notice of the appeal was sent to the parties and that he would consider what further steps to take once he had received those submissions.

 

11.    On 17 June 2014 the Secretary of State made his submissions (which appear at pages 82 to 86) with four appended cases and the UT1 leaflet which explained how to appeal to the Upper Tribunal. Although Judge Wright had not made a direction to that effect, those submissions were issued to the claimant on 24 June 2014 and she was given a month to respond to them, although she has not availed herself of that opportunity as at today’s date.

 

12.   Given that the Secretary of State has replied with his submissions and that the claimant has apparently chosen not to make any further submission in response to what the Secretary of State has said, I am satisfied that I have sufficient material before me to determine the application for permission to appeal and that it is not necessary to hold an oral hearing of the application.

 

The Grounds for Permission to Appeal

13.   The essence of the claimant’s grounds of appeal is that the appeal tribunal erred in law in not finding that she met the criteria of Schedule 3 or regulation 35 so as to fall within the support group, but her fundamental problem is that in the absence of a statement of reasons, as Judge Wright made clear, it is difficult to see that the appeal tribunal made any such error. It is true that there may be cases in which a person may be able to show an error of law without there being any full statement of reasons for the tribunal’s decision, either because the point of law is justiciable without there being any evidence of the tribunal’s reasoning or because sufficient evidence of its reasoning can be gleaned from the terms of the decision notice itself (see R(IS)11/99 at paragraph 9), but that is not the case here. In the absence of a statement of reasons, I do not see that the appeal tribunal made any error of law and, given that the appeal therefore has no reasonable prospects of success, I would refuse permission to appeal.

 

The Five Issues

14.   That would ordinarily be sufficient to determine this application for permission to appeal, but in the course of his observations, Judge Wright identified three issues on which he said that it would be useful for the Upper Tribunal to provide guidance to the First-tier Tribunal. The first and third issues in fact both sub-divide into two questions and I would categorise the five questions which arise as being

 

(i) was the refusal to extend time for seeking a statement of reasons a “decision” within s.11 of the Tribunals, Courts and Enforcement Act 2007 which itself was capable of appeal to the Upper Tribunal?

 

(ii) in any event, were the reasons in fact given for refusing to extend time (whether required or not) adequate?

 

(iii) did the District Tribunal Judge err in law in concluding that once an extension request had been refused there was nothing further for him to do and in particular that under rule 38(7)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 he could not consider an application for permission to appeal absent a statement of reasons?

 

(iv) for the purposes of rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 was the District Tribunal Judge to be construed as having refused to admit the application for permission to appeal or as simply having failed to act on the application and so not even having refused to admit it?

 

(v) whichever view was taken as to (iv), ought the Upper Tribunal to take steps to remedy any defects in the application for permission to appeal and give permission to appeal either in respect of the appeal tribunal’s decision of 27 August 2013 or in respect of the refusal to extend time on 30 January 2014?

 

The First Issue

15.  The refusal to extend time for seeking a statement of reasons under rule 34(4) was clearly a case management direction within rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, but was it also a “decision” within s.11 of the Tribunals, Courts and Enforcement Act 2007 which itself was capable of appeal to the Upper Tribunal?

 

16.  The question of what is a “decision” within the Tribunal Procedure Rules was considered by a three judge panel in LS v. Lambeth LBC [2010] UKUT 461 (AAC), reported at [2011] AACR 27. For present purposes what it decided was that interlocutory decisions, such as a refusal to extend time, are “decisions” within the meaning of s.11 and, as such, are in principle appealable. In that case Walker J and Judge Turnbull (with Judge Rowland concurring on this issue) held at paragraphs 90-95:

 

“90. We are satisfied that the word “decision” in both s 11(1) and s 13(1) must be read broadly. That is the natural reading of the word. This is particularly so where the structure of the section is to give a right of appeal generally, but then to carve out particular types of “excluded decision” in relation to which there is to be no right of appeal. It is not a question of granting a right of appeal in relation to particular types of pronouncement which are then classified as “decisions”, but rather taking the general run of decisions, and identifying particular types of excluded decision so that the right of appeal applies to all that are not excluded.

 

91. This must, as it seems to us, necessarily be the case when one examines what Parliament has said about excluded decisions in s 11 and s 13. In s 11(5)(d) and s 13(8)(d) all seven of the types of “decision” mentioned are matters falling within Laws LJ’s description of “determinations”, matters “along the way leading to a decision [in a social security case, upon the actual question whether a claimant is entitled to a particular benefit or not]” Plainly Parliament did not intend to adopt the distinction drawn in Carpenter. And in each case the “decision” identified in paragraph (e) is something which has ceased to have effect: in so far as it exists at all it is far removed from “a decision upon the actual question whether a claimant is entitled to a particular benefit or not”.

 

92. A further and very powerful pointer to Parliament’s intention is found in s 13. If it had been Parliament’s intention that the word “decision” in s 13(1) should be interpreted in accordance with Bland, there would have been no need for s 13(8)(c). The words used by Parliament in s 13(8)(c) demonstrate a deliberate intention not to rely upon the courts to infer that the word “decision” has a limited meaning. Instead, in order to achieve a similar outcome to that achieved by Bland Parliament has expressly used the word “decision” in a broad sense, a sense which is broad enough to encompass decisions on permission or leave to appeal. As regards appeals from the Upper Tribunal, Parliament has deliberately categorised decisions on permission or leave to appeal as “excluded decisions”.

 

93. By parity of reasoning decisions by the First-tier Tribunal on permission or grant of leave to appeal fall within s 11(1). They have not been categorised as excluded decisions for the purposes of s 11, and the clear inference is that this is a deliberate decision by Parliament. As Ms Broadfoot points out, it was open to the Lord Chancellor under section 11(5)(f) and (6)(b) to make an order preserving the different approach in social security cases, but he did not do so. It seems to us that there were good reasons for him not making such an order, not the least of which is simplicity. 

 

94. Returning to the right of appeal against interlocutory decisions, it will be open to both the First-tier Tribunal and the Upper Tribunal to refuse permission to bring an interlocutory appeal on the ground that it is premature.  The circumstances of the individual case must be considered.  It is one thing to grant permission for an interlocutory appeal in a case where the final hearing may last for a fortnight.  It is another to do so where the final hearing is likely to last about an hour, as is often the case in social security appeals.  Moreover, as was suggested in Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) at [19], where case-management decisions are being challenged, the First-tier Tribunal can treat an application for permission to appeal as an application for a new direction if it is satisfied that the challenged direction is not appropriate. 

 

95. We do not expect that accepting that interlocutory decisions are in principle appealable should give rise to a huge change in the behaviour of litigants.  Mr Buley and his instructing solicitor raise the spectre of unreasonable applications for permission to appeal against interlocutory decisions, but there is no reason to expect the parties to social security appeals to be less reasonable than parties to other appeals.”

 

 

17.  Thus the refusal to extend time for seeking a statement of reasons under rule 34(4) was a “decision” within s.11 of the 2007 Act which itself was capable of appeal to the Upper Tribunal.

 

18.   Was it therefore a decision which would of itself give rise to a requirement to provide a statement of reasons or was it in fact a set of separate proceedings? In my judgment it certainly could not be said to have been a set of separate proceedings. The request for an extension of time cannot be seen in isolation and existed (and could only exist) in the context of the extant proceedings. A request for an extension of time is not a set of separate proceedings, but is rather a step in the substantive Employment and Support Allowance appeal.

 

19.  The decision was not one which of itself would give rise to a requirement to provide a statement of reasons (if requested).  Rule 34 of the Tribunal Procedure Rules provides that:

 

“(2) In all other cases the Tribunal may give reasons for a decision which disposes of proceedings (except a decision under Part 4)—

 

(a) orally at a hearing; or

 

(b) in a written statement of reasons to each party.

 

(3) Unless the Tribunal has already provided a written statement of reasons under paragraph (2)(b), a party may make a written application to the Tribunal for such statement following a decision which finally disposes of—

 

(a) all issues in the proceedings; or

 

(b) a preliminary issue dealt with following a direction under rule 5(3)(e)”.

 

 

20.   However, the decision which “disposed” or “finally disposed” of the proceedings was the decision of the appeal tribunal on 27 August 2013, not the refusal to extend time by District Judge Maddox on January 2014. Whilst on one view, a decision not to extend time disposes of proceedings, the better view is that it merely prevents the proceedings from being started (or continuing, as the case may be), see the commentary at paragraph 5.280 (page 1587) of Volume II of the Social Security Legislation 2014/2105 (Judge Mark Rowland and Judge Robin White eds.). The decision of January 2014 was not therefore a decision which finally disposed of the proceedings within the meaning of rule 34(2)-(3) of the Tribunal Procedure Rules and as such did not generate a requirement to provide a written statement of reasons, although it would be sensible and prudent for the judge faced with such an application to provide brief reason for reaching his conclusion. In fact District Judge Maddox did provide a brief explanation of his decision which, as I explain below, I consider was an adequate explanation of the reason for his refusal to extend time.

 

The Second Issue

21.   I am satisfied that the reasons in fact given for refusing to extend time (whether required or not) were adequate in the context of this application. The claimant in her letter of 8 January 2014 had essentially said that she did not realise that the work-related activity component was  in place until she had read the papers properly, which was prompted by the Working Links letters which were sent to her about attending work related activity interviews. There is no evidence to suggest that the appeal tribunal did anything other than its standard practice and issued her with the leaflet UT1 at the same time as sending out the decision notice. That leaflet makes clear on page 5 (page 153) that

 

“If you wish to challenge the decision of a First-tier Tribunal there are various steps that you must have taken at that tribunal before you can appeal to the Upper Tribunal …

 

In particular you must have

 

(1) Asked for a written statement of the First-tier Tribunal’s reasons for its decision, and

 

(2) Applied to the First-tier Tribunal judge for permission to appeal.

 

There are one month time limits for both these stages, which may be extended in certain circumstances. You should always ask for a written statement first, but if you do not, or you are refused because you are too late, you must always ask the First-tier Tribunal judge for permission to appeal.

 

Please note: if you do not ask for a written statement within the time limit your chance of appealing may be lost or seriously limited”.

 

22.    In the context the District Judge’s statement that

 

“The explanation for the delay does not persuade me to extend time”

 

incorporated the claimant’s explanation (which I have set out in paragraph 7 above) by reference and rejected it as a reason for existing time in the light of the explanation set out as to the relevant time limits in leaflet UT1.  In essence what District Judge Maddox was saying was that not realising what the correct position was until reading the papers several months later was not a good reason for extending time to make an application for a statement of reasons. In my judgment his reasons in that respect were perfectly adequate in the context of the case before him and the explanation proffered for the delay in making the application.

 

The Third Issue

23.   In my judgment, however, the judge was wrong to dismiss the application for permission to appeal without first having regard to rule 38(7)(c) of the First-tier Tribunal Rules which provides that

 

“(7) If a person makes an application under paragraph (2) in respect of a decision that disposes of proceedings or a preliminary issue dealt with following a direction under rule 5(3)(e) when the Tribunal has not given a written statement of reasons for its decision—

 

…

 

(c) if an application for a written statement of reasons has been, or is, refused because of a delay in making the application, the Tribunal must only admit the application for permission if the Tribunal considers that it is in the interests of justice to do so”.

 

24.  Having refused to permit the application for a written statement of reasons because of the delay, the judge ought then to have gone on to consider whether it was in the interests of justice to admit the application for permission to appeal. There may be cases where the interests of justice do require that the application be admitted even in the absence of a statement of reasons, (see R(IS)11/99 at paragraph 9). In such cases a person may be able to show an error of law without there being any full statement of reasons for the tribunal’s decision, either because the point of law is justiciable without there being any evidence of the tribunal’s reasoning or because sufficient evidence of its reasoning can be gleaned from the terms of the decision notice itself. In those cases, if the judge were to conclude that once the request for an extension of time for a statement of reasons had been refused, there was nothing further to do and in particular that he could not consider an application for permission to appeal in the absence of a statement of reasons, that would be to misconstrue rule 38(7)(c) which nevertheless allows the tribunal to entertain an application for permission to appeal when it is in the interests of justice to do so, even in the absence of a statement of reasons.

 

25.   However, in the light of what I have said in paragraph 13 about the inadequacy of the grounds of the appeal in this particular case, even if the District Judge had expressly gone on to consider whether it was in the interests of justice to admit the application for permission to appeal, in all likelihood he would have reached the same conclusion in any event and I therefore conclude that any error of law was not material.

 

The Fourth Issue

26.  The fourth issue was whether, for the purposes of rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the District Tribunal Judge is to be construed as having refused to admit the application for permission to appeal or as simply having failed to act on the application and so not even having refused to admit it.

 

27.    Rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides that

 

 

“(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if—

 

(a) they have made an application for permission to appeal to the tribunal which made the decision challenged; and

 

(b) that application has been refused or has not been admitted or has been granted only on limited grounds”.

 

28.   As a matter of the construction of the direction of 30 January 2014, I consider that what Judge Maddox did was effectively to refuse to admit the application for permission to appeal rather than to have simply failed to deal with it (and so as not even having refused to admit it). Thus there has been compliance with the terms of rule 21(2)(b) and no defect which requires to be waived under rule 7(2) in order to give the Upper Tribunal jurisdiction to entertain the application for permission to appeal. If, however, the correct interpretation of the direction was that he had simply failed to deal with it (and so had not even refused to admit it). I would have waived the defect in the claimant’s application under rule 7(2) in order to give the Upper Tribunal jurisdiction to deal with the application, although I would then have refused permission to appeal for the reasons set out above and reiterated below.

 

The Fifth Issue

29.   Whichever view was taken as to the fourth issue, the final question is whether the Upper Tribunal should take steps to remedy any defects in the application for permission to appeal and give permission to appeal either in respect of the appeal tribunal’s decision of 27 August 2013 or in respect of the refusal to extend time on 30 January 2014.

 

30.  Even if there were any defects which needed to be waived, and which in the circumstances I would waive under rule 7(2), I would not have given permission to appeal either in respect of the appeal tribunal’s decision of 27 August 2013 or in respect of the refusal to extend time on 30 January 2014.

 

31.  Although the refusal to extend time on 30 January 2014 chronologically comes second, in practical terms it falls to be considered first because without a statement of reasons the application for permission to appeal never gets off the ground.

 

32.   In refusing to extend time the District Judge’s stated that

 

“The explanation for the delay does not persuade me to extend time”

 

In essence what District Judge Maddox was saying was that not realising what the correct position was until reading the papers several months later was not a good reason for extending time to make an application for a statement of reasons. As I have made clear in paragraph 22 above, in my judgment his reasons in that respect were adequate in the context of the case before him and were reasons which he was entitled to conclude on the facts before him. I see no error of law in his decision and would refuse permission to appeal against his decision to refuse to extend time.

 

33.  In relation to the appeal tribunal’s original decision of 27 August 2013 the claimant’s fundamental problem is that in the absence of a statement of reasons it is difficult to see that the appeal tribunal made any error of law. She cannot on the facts of this case demonstrate that there has arguably been an error of law without there being a full statement of reasons. In the absence of a statement of reasons, I do not see that the appeal tribunal made any error of law and, given that the appeal therefore has no reasonable prospects of success, I refuse permission to appeal.

 

Conclusion

34.    I therefore dismiss the application for permission to appeal both in respect of the appeal tribunal’s original decision of 27 August 2013 and in respect of District Tribunal Judge Maddox’s refusal to extend time on 30 January 2014.

 

35.  I would, however, point out that to the claimant that her application for permission to appeal was ultimately against the decision dated 19 December 2012 and that in any event neither the appeal tribunal nor the Upper Tribunal could consider any deterioration in her health after that date: s.12(8)(b) of the Social Security Act 1998 precludes this. The proper course of action, where there is a worsening of the health of a person, is for a fresh claim to be made. If the claimant has not yet made a fresh claim, it may well be in her interests to do so as soon as possible. The claimant may well be able to seek advice from a Citizens Advice or similar welfare rights organisation and I would strongly reiterate that advice to her now.

 

 

 

Signed                                                             Mark West

                                                                        Judge of the Upper Tribunal

 

 

 

Dated                                                               21 October 2014