IN THE UPPER TRIBUNAL Appeal No: CE/1614/2014
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal allows the appeal of the appellant.
The decision of the First-tier Tribunal dated 30 January 2014 by which it refused to extend time to ask for a statement of reasons to be provided in the appeal with the reference SC068/12/09718 involved an error on a material point of law and is set aside.
The Upper Tribunal is not in a position to decide whether the time for seeking a statement of reasons ought to have been extended. It therefore refers this matter to be decided afresh by a District Tribunal Judge of the First-tier Tribunal.
This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007
REASONS FOR DECISION
1. Both parties having agreed that the First-tier Tribunal’s decision of 30 January 2014 (“the tribunal”) was in material error of law and ought to be set aside and the matter remitted to a freshly constituted First-tier Tribunal, and my concurring with that view, I set the tribunal’s decision aside for the following reasons.
2. This is an unusual appeal because the decision sought to be challenged on appeal to the Upper Tribunal is not the substantive decision of the First-tier Tribunal (here dated 10 July 2013, in which the appeal was refused and the appellant found not to have limited capability for work and not entitled to employment and support allowance), but rather the later decision of the District Tribunal Judge not to extend time so as to allow a (late requested) statement of reasons for the First-tier Tribunal’s decision to be provided.
3. The essential history is as follows.
4. On 10 July 2013 the First-tier Tribunal, after a hearing at which the appellant was present, decided his appeal and dismissed it. It confirmed the Secretary of State’s decision of 5 April 2012 that the appellant did not have limited capability for work and so was not entitled to employment and support allowance (“ESA”). The First-tier Tribunal’s Decision Notice was issued to the parties on 10 July 2013. The Decision Notice said (and this is relevant to my view below that there is no arguable basis on which it may be said that this decision was erroneous in point of law, not that such an argument is being pursued by the appellant):
“The appeal is refused.
The decision made on 05/04/2012 is confirmed.
[The appellant] is not entitled to Employment and Support Allowance (“ESA”).
In applying the Work Capability Assessment 0 points were scored from the activities and descriptors in Schedule 2 of the ESA Regulations 2008. This is insufficient to meet the threshold for the test.
No Schedule 3 descriptor applied.
Whilst the Tribunal accepts that [the appellant] has depression and alcohol problems the nature and extent of the resulting limitations are insufficient to score the required number of points. In reaching its decision the Tribunal placed particular reliance upon the evidence of the Health Care Professional and the reluctance of the appellant to provide clear and cogent answers.”
5. The next noted piece of paper evidence in the appeal bundle is a letter from the appellant dated 28 January 2014 in which he said he was not happy with the decision, that he had written to appeal the decision in July but had heard nothing, he had been reassessed by ATOS and “got points”, and he asked for a statement of reasons (page 139). That request was put before a District Tribunal Judge (“DTJ”) on 30 January 2014 who refused to extend time for a statement of reasons to be provided (pages 140-141). It would seem that that decision was notified to the appellant on 3 February 2014.
6. The appellant then applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal (pages 142-158). From GAPS it would seem that this was on or about 5 March 2014. It is important to note – as the correspondence from the First-tier Tribunal would suggest that this may have been missed – that this was arguably not (or not only) seeking permission to appeal the First-tier Tribunal’s decision of 10 July 2013 but rather was (also) seeking permission to appeal the DTJ’s refusal to extend time decision of 30 January 2014 (see section C on page 145).
7. It was not then entirely clear what the First-tier Tribunal did with this permission to appeal request. One GAPS 913/97 letter dated 5 March 2014 to the appellant from the First-tier Tribunal suggested that the application for permission to appeal had been rejected (the letter refers to the application as seeking permission to appeal the 10 July 2013 decision). However if this was the case then there was no determination of a DTJ either refusing permission to appeal or refusing to admit the application. Another GAPS 913/97 letter of the same date simply said that the First-tier Tribunal had sent the application on to the Upper Tribunal for it to consider. Having interrogated GAPS it seemed that this was the version of the GAPS 913/97 letter that was sent to the appellant, the first version of the “LTA refusal letter [having been] amended to say we have sent the application onto the Upper Tribunal”; and that better accorded with there having been no determination of the application for permission to appeal by a DTJ.
8. Given the above history, it seemed to me likely that the omission of such a DTJ determination was simply inadvertent. This is supported by three other factors. First, a refusal to extend time for the seeking of a statement of reasons is itself a “decision” under s.11 of the Tribunals, Courts and Enforcement Act 2007 which is capable of appeal to the Upper Tribunal: see LS –v- Lambeth LBC [2010] UKUT 461 (AAC); [2011] AACR 27 and HK –v- SSWP (ESA) [2014] UKUT 491 (AAC) at paragraph 17. Second, even in the context of a challenge to First-tier Tribunal’s decision of 10 July 2013, where time has not been extended to seek a statement of reasons for that decision rule 38(7)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the TPR”) provides that even absent a statement of reasons the First-tier Tribunal may admit an application for permission to appeal if it is in the interests of justice to do so: see, again, HK, this time at paragraphs 23-24. Third, as noted above, in any event the application on its face was arguably directed against the DTJ’s refusal to extend time decision of 30 January 2014. That remained to be adjudicated by the First-tier Tribunal.
9. Moreover, under the terms rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Upper Tribunal may only consider an application for permission to appeal made to it if the First-tier Tribunal has either refused permission to appeal or refused to admit the application for permission to appeal, and the latter does not extend to the First-tier Tribunal simply having failed (as would seem to be the case here), to act on the application (see paragraph 22 of Ved –v- SSHD [2014] UKUT 150 (IAC).
10. In these circumstances it seemed to me that the appropriate course of action to take was for the application for permission to appeal to be referred back to First-tier Tribunal, with the appeal file, to enable it to arrive at a determination on the appellant’s application for permission to appeal.
11. I therefore directed on 7 May 2014 that the appeal file be returned to the First-tier Tribunal with a request that it determine the application for permission to appeal. A DTJ of the First-tier Tribunal then issued a Decision Notice, dated 4 June 2014, and I treated that Notice as a refusal by the First-tier Tribunal to give permission to appeal against its decision of 30 January 2014.
12. The wording of that Decision Notice was, unfortunately, not entirely clear as it did not say explicitly that permission to appeal had been refused, as it ought to have done pursuant to rule 39(4) of the TPR: refusing to ‘review’ the 30 January 2014 decision was not the end of the matter. Nor was any clarity added by the covering letter, issued to the appellant with this Decision Notice. There could, however, be no question of the DTJ having rejected the application for permission to appeal under rule 38 of the TPR, as if that had been the case then (i) the Notice would have said so, and (ii) the issues of review and refusal of permission to appeal would not have arisen. Despite the wording of the Notice, in the context of my directions of 7 May 2014 and given the law does not allow for the First-tier Tribunal to refuse to review a decision and then take no further action on the application for permission to appeal, I took the view that the proper construction of the Decision Notice dated 4 June 2014 was that it amounted to the tribunal’s refusal of permission to appeal against its decision of 30 January 2014.
13. This however put the appellant in the odd position of only having the tribunal’s reasons for refusing permission to appeal after he had made his application for permission to appeal to the Upper Tribunal. That was not his fault, however. In the circumstances I: (i) waived any procedural requirements that required the renewed application for permission to appeal to be made after the DTJ had refused permission to appeal, and (ii) asked the appellant to make (further) written representations to the Upper Tribunal as to why he said the tribunal had erred in law in its decision of 30 January 2014 refusing to extend the time to allow for a statement of reasons to be produced in respect of the First-tier Tribunal’s decision of 10 July 2013. This was necessary in order to put the appellant in the same position as the normal applicant seeking to renew an application for permission to appeal to the Upper Tribunal: that is, of making representations to the Upper Tribunal having had sight of the tribunal’s reasons for refusing permission to appeal.
14. The Sefton CAB then came on the scene to assist the appellant. It made representations on 23 July 2014 as to why the refusal to extend time decision of 30 January 2014 was arguably erroneous in material point of law[1]. Following those representations, I gave permission to appeal and said the following:
“Permission to appeal is given because it seems to me to be arguable with a realistic prospect of success that the First-tier Tribunal erred materially in law in its decision refusing to extend time to enable a statement of reasons to be provided in respect of its decision of 10 July 2013.
Much of what is now put forward as error of law arguments on behalf of [the appellant] are in truth arguments as to the merits of time being extended and show no error of law.
However one discrete error of law argument is made, namely whether the District Tribunal Judge misdirected herself on a material issue of fact when deciding not to extend time, and it is on this ground that I give permission to appeal. The ground is that the DTJ misdirected herself by considering that [the appellant “had the assistance… with his appeal [of] a professional organisation which deals with appeals on a regular basis”. In my judgment it seems to me be well arguable that there is no evidence to show that “Inclusion Matters” (the organisation) in fact assisted [the appellant] with his appeal (whether or not it was competent to do so[2]). It is not listed as his representative and did not appear at any of the appeal hearings, and at most seems to appear in the medical evidence as one of the healthcare organisations treating [the appellant].
The above quoted words do not appear as the reasons of the DTJ for refusing to extend time on page 140. Those reasons were simply “Too late to apply for statement has known for 6 months she (sic) was not happy with decision. No question of law has arisen”; reasons which must be considered against the reasons given by [the appellant] for seeking a (late) statement of reasons on page 139. Instead the words quoted in paragraph 4 above are used by the DTJ… as part of her basis for refusing permission to appeal against the decision of 30 January 2014. However on the basis of the signature on page 141 and that on the refusal of permission to appeal decision notice it seems clear that it was [the same] DTJ.….who made the decision refusing to extend time on 30 January 2014. Moreover it seems from the wording used by [the] DTJ…..in the refusal of permission to appeal notice of 4 June 2014 that reliance on Inclusion Matters assisting [the appellant] with his appeal was an (unstated) reason for [the] DTJ……refusing to extend time on 30 January 2014. This would seem to follow from the wording used by [the] DTJ…… when refusing permission to appeal: “[t]he tribunal therefore decided, he did not have good cause for a late application for a statement of reasons, he had been represented by a Professional organisation, he attended on the day of the hearing, he therefore had known for over 6 months his appeal had failed, there was not sufficient evidence for the tribunal to accept he had previously appealed the decision of 10.7.2013”.
Although the language used by the First-tier Tribunal is not entirely clear, its seems arguable that it was proceeding on the basis that Inclusion Matters assistance to [the appellant] with his appeal was material to whether time ought to be extended, otherwise there was no good reason for the tribunal to refer to that organisation. It seems arguable therefore that the tribunal proceeded on the basis that Inclusion Matters’ role remained material in the sense that it could have advised [the appellant] to seek a statement of reasons (in time) or sought one for him (in time) and the fact that this had not occurred stood against time now being extended.
However if there is no evidential basis for the finding that Inclusion Matters was acting for [the appellant] at any stage on his appeal (and [the appellant’s] enquiry form to the First tier Tribunal (on its file) does not show him as identifying Inclusion Matters as his representative) then it is arguable that the decision to extend time was based on a materially wrong consideration of the facts. Moreover, that factual error may have influenced the other considerations the tribunal relied on (such as no previous application for a statement of reasons having been made), in the sense that the tribunal may have expected that Inclusion Matters would have made such a request in a proper form and in time.”
15. As noted above, the Secretary of State supports the appeal. The appellant, through the Sefton CAB, has no further comments and consents to a decision being given without reasons.
16. I am satisfied that the tribunal/DTJ erred materially in law in coming to the decision to refuse to extend time dated 30 January 2014. My reasons are essentially those set out when I gave permission to appeal. The foundations are threefold. First, the decision of 30 January 2014 is a decision falling within section 11 of the Tribunals, Courts and Enforcement Act 2007: see LS and HK. Second, as such it is capable of being set aside if made in error of law. Third, although there may be no requirement for the First-tier Tribunal to give reasons to explain why time has not been extended (see HK at paragraphs 18-20), where reasons have been given, as here, they may provide the basis for an error of law argument.
17. Looking then at the DTJ’s reasons as a whole (i.e. including reliance on Inclusion Matters as a professional representative on the appeal), I am satisfied she erred in law either (a) by misdirecting herself on a material issue of fact (that Inclusion Matters was in fact acting for or assisting the appellant with his appeal), or (b) by taking the same into account when it was an irrelevant consideration, or (c) by failing to explain adequately why, despite the contrary evidence, Inclusion Matters was so acting for the appellant.
18. The question of whether time ought (now) to be extended so as to allow a statement of reasons to be provided will have to be decided afresh by another DTJ. Time has, of course, moved on since the previous refusal to extend time decision was made and the further passage of time may be a relevant consideration in whether time ought now to be extended (given the greater difficulty the further passage of time may give rise to in terms of the judge who presided on 10 July 2013’s ability to now properly set out the reasons for the decision). However. I am not in a position to rule that there is no prospect of time now being extended for a statement of reasons to be provided. If the view is taken that the appellant had good reason for applying late for the statement of reasons on 28 January 2014 but the further passage of time since then means a statement cannot now be provided, then the provisions in rule 37 of the TPR may come into play. In all the circumstances, I consider it is appropriate for me to set aside the decision dated 30 January 2014 and remit the issue of whether time ought to be extended to another DTJ for determination.
Signed (on the original) Stewart Wright
Judge of the Upper Tribunal
Dated 26th November 2014
[1] Absent any statement of reasons, any error of law challenge to the substantive decision of 10 July 2013 would almost certainly have had no legal merit: see, again, HK at paragraph 13. .
[2] Though a cursory search for Inclusion Matters in Liverpool on the web would not seem to show it as offering advice on welfare benefits or assistance with appeals.