Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/5/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: M R Hemingway: Judge of the Upper Tribunal

Decision: The decisions of the First‑tier Tribunal sitting at Sheffield on 24 March 2014 under reference SC147/14/00379 involved errors of law and are set aside. 

The appeals are remitted for determination at an oral hearing before a completely differently constituted tribunal.

This decision is made under section 12 of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS

Subject to any later directions by a district tribunal judge of the First‑tier Tribunal, the Upper Tribunal directs as follows:

(1) There shall be a hearing, before the First‑tier Tribunal, to decide whether the appellant’s appeals against two decisions made on 17 May 2012 are to be struck out.  If it is decided that the appeals are not to be struck out then the substantive appeals should be listed for a later oral hearing. 

(2) If either party has further written material to place before the new First‑tier Tribunal concerning the striking out issue, that should be lodged with the relevant HMCTS office within one month of the date of issue of this decision. 

REASONS FOR DECISION

1. The appellant has, at various times, claimed council tax benefit which has been payable by the respondent, Sheffield City Council.

2. According to the respondent, it made two separate decisions on 17 May 2012, concerning the appellant’s entitlement to council tax benefit for two “closed periods”.  It also said that those decisions were both sent to the appellant on 17 May 2012.  According to the respondent they were posted separately but on the same day.

3. The appellant claims not to have received either decision.  He also claims that, for a substantial time thereafter, he was unaware of the making of and the content of those decisions.  It is his case that once he knew of them he lodged an appeal.  He did so by e‑mail on 12 September 2013 and although he refers to “the decision” it does seem clear that that appeal was directed against both decisions.  Accordingly where I refer, below, to the “appeal” that is to be taken as a reference to appeals against each decision.

4. Although the respondent took the view that the appeal was out‑of‑time, indeed outside the absolute time limit of 13 months, it forwarded the appeal to the First‑tier Tribunal (F‑tT) for its consideration.  It also forwarded a written submission setting out its view that the appeal was made outside the absolute time limit such that it should not be considered.  The F‑tT issued directions requiring the appellant to submit to it a detailed written explanation as to why the appeal had been lodged outside the absolute time limit.  The appellant responded by a letter of 17 March 2014, which was not particularly detailed but in which he said he had not been sent a notice of the decisions at the time they had been made and suggested that that might have been as a result of malice on the part of the respondent.

5. On 24 March 2014, without further recourse to the parties, the F‑tT decided to strike out the appellant’s appeal.  It issued a Decision Notice to that effect.  It stated, therein, that it was striking out the appeal under rule 8(1) of the Tribunal Procedure (First‑tier Tribunal) (Social Entitlement Chamber) Rules 2008, though I suspect it meant rule 8(2)(a) and went on to add that rule 23(5) provided that no appeal may be made more than 12 months after the normal one month time limit and then said:

“The Appellant has been given an opportunity to explain the lateness of the appeal but has failed to demonstrate any appeal made within the time limit.

The Tribunal has no power to extend the absolute time limit whatever the reason for the delay.”

6. The appellant entered into correspondence seeking to challenge the decision and, in due course, the F‑tT issued its statement of reasons for decision (statement of reasons).  It pointed out that rule 23(5) provided that no appeal may be made more than 12 months after the time specified in Schedule 1 of the rules and that the time specified in Schedule 1 was one month.  The import of this, said the F-tT, was that any appeal lodged more than 13 months after the decision was sent to the appellant would be outside the absolute time limit.  The F‑tT then considered what it had to decide and said this:

“ 13. The issues for me to determine were firstly whether the decision notices had been properly sent to the Appellant and secondly whether any appeal had been received by Sheffield City Council within the absolute time limit of 13 months and, if so, when.”

7. The F‑tT thought that the appellant had contradicted himself in saying, on the one hand, he did not know about the decisions but, on the other, that an e-mail he claimed to have sent to the respondent on 21 June 2012 should have been taken as a request to review the decisions.  The F‑tT then said:

“ 17. Having considered all the available evidence, I was satisfied that on balance there was sufficient evidence to indicate that the two relevant decision notices dated 7 May 2012 had been correctly issued by sending them through the post as submitted by Sheffield City Council.

18. The fact that [the appellant] may not have received the decision notices does not affect time running insofar as rights of appeal are concerned by virtue of the wording in the Rules which provides for the time limit running from the date on which notice of the decision is sent to the Appellant.

19. I was satisfied that the evidence established that the first indication of an appeal was made by [the appellant] in his e-mail received by Sheffield City Council on 12 September 2013, and that means that the appeal was received outside the absolute time limit.”

8. Hence, the appeal was dismissed.

9. The appellant applied for permission to appeal to the Upper Tribunal.  I granted permission to appeal because I thought it arguable that the F‑tT had erred in failing to hold an oral hearing prior to taking a decision to strike out the appeal bearing in mind that there was a disputed factual matter as to whether the applicant had or had not received the decisions of 17 May 2012.

10. The respondent, in a written submission, has indicated that the appellant’s appeal is not supported.  Essentially, the respondent argues that the time for the lodging an appeal to a First-tier Tribunal runs from the date a decision is sent so that, from that perspective, the non‑receipt of the decisions would not matter and would not effect the legal position.  The F‑tT, it was said, had made a reasonable finding on the evidence that the decision notices were sent and, if that were right, the appellant could not provide oral evidence which would assist because what he had to say about non‑receipt would be irrelevant.  The appellant replied by completing a form indicating he had no further comments to make though he did, unlike the respondent, request an oral hearing before the Upper Tribunal.

11. It is against the above background that I must now decide this appeal.  I have considered whether or not I should hold an oral hearing before the Upper Tribunal.  In my directions to the parties I did allude to that possibility and whilst the respondent has not sought such a hearing the appellant has.  His reasons are to the effect that he thinks the respondent has misunderstood his grounds of appeal.

12. There is discretion to hold an oral hearing but there is no right to such a hearing.  Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 states that the Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold such a hearing.  I have had careful regard to the views expressed by both parties.  It seems to me, though, that the issues I have to decide are relatively straightforward and are clear from the documentation.  I do not believe that holding an oral hearing before the Upper Tribunal would take matters further and I remind myself that the parties have had the opportunity to fully set out their respective cases in writing.  Accordingly, I have resolved to decide the appeal on the basis of the documents before me.

13. I have fully noted the content of the respondent’s helpful written submission.  It is prepared by one Mr Twomey to who I am grateful.  Its central thrust, as noted above, is that the outcome was inevitable because time runs from a decision being sent rather than from when a decision is received.  Thus, it is said, that any oral evidence the appellant might have given could not have impacted upon the outcome. 

14. I do not agree that the appellant’s oral evidence would necessarily have been irrelevant.  It seems to me it might have been relevant in two ways.  First of all, if it was accepted by the F‑tT that the appellant had never received either decision then that might have supported the proposition that the decisions had not, contrary to what the respondent had asserted, ever been sent.  Of course, it does not follow that even if the F‑tT had decided they were not received they would have inevitably decided they were not sent.  Notices can be sent and never received by the intended recipient.  A finding that they had not been received could not, though, be said to be wholly irrelevant to a consideration as to the question of whether or not they had been sent.  To that extent, it might have been that the appellant’s oral evidence would have had some probative value with respect to that specific issue.  Further, the appellant’s oral evidence might also have had relevance as to whether he had otherwise been unaware of the decisions having been made and whether he had acted entirely promptly once he became aware of those decisions.  Any acceptance of the appellant’s oral evidence as to non‑receipt and as to how promptly he had acted would also have been relevant to the issue of whether this could be regarded as an exceptional case such that Article 6 of the European Convention on Human Rights required the exercise of discretion to accept the appeal beyond the absolute time limit.

15. It is the respondent’s contention, in effect, that there is no such discretion.  That was also the view the F‑tT took as is clear from what it had to say at paragraphs 13 and 21 of its statement of reasons for decision and what it said in its decision notice.  However, in Adesina v Nursing and Midwifery Council [2013] EWCA     818, in line with Pomiechowski v Poland [2012] WLR 1604, it was held that Article 6 of the European Convention on Human Rights and section 3 of the Human Rights Act required the reading down of an absolute time limit to give discretion for an appeal to be admitted even after the expiry of an absolute time limit though any such reading down was to be to the minimum extent necessary to secure compliance with the ECHR.  It was also held, in effect, that such discretion would only arise in exceptional circumstances and where an appellant had personally done all he could to bring an appeal timeously.  There have been a number of subsequent cases which have illustrated how sparingly the discretion should be exercised such as Parkin v Nursing and Midwifery Council [2014] EWHC 519 (Admin) and Gyurkovits v General Dental Council [2013] EWHC 4507 (Admin), but the discretion is there.  The F‑tT did not realise it had it and did not, therefore, consider whether to exercise it or not or whether hearing from the appellant would assist it in deciding whether to exercise it or not.

16. I suppose if the respondent, through Mr Twomey, had appreciated there was this limited discretion it might have been contended that it is to be used so sparingly that the F‑tT would have inevitably decided that it was not appropriate for it to be used in this case.  However, notwithstanding what is said in the above cases, it might be that genuine non‑receipt of a notice of decision might be regarded as a factor of some significance in considering whether the required exceptional circumstances apply. 

17. On the basis of the above reasoning, therefore, I would conclude the F‑tT erred in, at least, failing to appreciate the extent of its discretion and failing as a consequence to adequately consider whether it was necessary to hold an oral hearing prior to striking out the appeal.  I do, therefore, set its decision aside. 

18. There are further findings of fact to be made.  In particular, for the reasons I have explained, the F‑tT will have to make findings about whether the appellant did or did not receive the decision notices.  Its findings as to that will not, of themselves, be decisive but may have relevance.  As there are further facts to be found it is appropriate that I remit this appeal so that it can be considered, entirely afresh, by a new and differently constituted F‑tT.  That will, initially, be an oral hearing to consider whether the appeal is to be struck out or not. In the event of it not being struck out I have directed a further oral hearing so that the substantive issues may be considered.  The new F‑tT will not be bound in any way by the findings and conclusions of the first F‑tT.

19. This appeal to the Upper Tribunal, therefore, succeeds.  The F‑tT’s decision of 24 March 2014 is set aside.  The appeal is remitted to a new F‑tT to decide (initially at least) whether the appellant’s appeal is or is not to be struck out. 

(Signed on the original)   

M R Hemingway

Judge of the Upper Tribunal

Dated: 29 June 2015