IN THE UPPER TRIBUNAL Case No: CDLA/5247/2014

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before UPPER TRIBUNAL JUDGE KNOWLES QC

 

 

Decision:  The appeal is allowed. The decision of the First-tier Tribunal (the tribunal) sitting at Newcastle-Upon-Tyne on 20 February 2014 under reference SC228/13/00271 involved the making of an error on a point of law.

 

Pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the tribunal’s decision is set aside. 

 

I make the following findings. The notice of withdrawal received by the tribunal on 18 February 2014 had the effect of bringing the Appellant’s appeal to an immediate conclusion. It follows that the Appellant remains entitled to Disability Living Allowance in the terms of the Respondent’s decision dated 21 June 2012. I remake the decision to that effect.

 

 

REASONS FOR DECISION

 

 

The Issue in this Appeal

 

1.        This appeal is concerned with the interpretation of Rule 17 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 [“the Rules”] in social security and child support cases. Rule 17 addresses how a party may apply to withdraw his/her tribunal appeal; the circumstances in which such a withdrawal application will have effect and how application may be made for a withdrawn case to be reinstated before a tribunal.

 

2.        I have decided that a notice of withdrawal given by a party in accordance with Rule 17(1)(a) has immediate effect. There is thus no need for a tribunal to make a decision about whether to consent to the withdrawal. A withdrawal in accordance with Rule 17(1)(a) has that effect even if, for example, proceedings before a tribunal are adjourned part-heard. However the immediate effect of Rule 17(1)(a) may be qualified in a social security or child support case if a tribunal has directed, pursuant to Rule 17(3)(b), that notice of withdrawal shall only take effect with the consent of the tribunal. In those circumstances notice given under Rule 17(1)(a) will not take effect without the consent of the tribunal.

 

3.        In this case the proceedings were adjourned part-heard for some months but the tribunal made no direction in accordance with Rule 17(3)(b) before adjourning. Shortly before the hearing was to resume, the Appellant sent a written notice of withdrawal to the tribunal. Instead of accepting the withdrawal, the tribunal wrongly proceeded as if its consent to the withdrawal was required. It refused to accept the withdrawal and proceeded to make a decision on the appeal in the absence of the parties. It decided that the Appellant was not entitled to an award of either component of Disability Living Allowance [“DLA”].

 

4.        Given my interpretation of Rule 17(1)(a), the only proper course open to me is to allow the appeal and set aside the tribunal’s decision. I make findings as follows. The withdrawal given by the Appellant was effective on 18 February 2014 and thus her appeal had come to an end on that date. This had the effect that the Secretary of State’s decision on 21 June 2012 remained the only valid decision about the Appellant’s entitlement to DLA. I remake the decision to that effect.

 

The Relevant Law

 

5.         Rule 17 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 was amended with effect from 8 April 2013. The relevant paragraphs state:

“(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case or any part of it –

(a)  ]….] by sending or delivering to the Tribunal a written notice of withdrawal; or

(b)  orally at a hearing.

(2)  In the circumstances described in paragraph (3), a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.

(3)  The circumstances referred to in paragraph (2) are where a party gives notice of a withdrawal –

(a)  ….

(b)  in a social security and child support case where the tribunal had directed that notice of withdrawal shall only take effect with the tribunal’s consent; or

(c)  at the hearing.”

 

6.        Rule 17(1(a) was amended to remove from sub-paragraph (1)(a) the words “at any time before a hearing to consider the disposal of the proceedings (or if the Tribunal disposes of the proceedings without a hearing, before that disposal)”. Additionally Rule 17(3) was amended to include a new sub-paragraph (3)(b) [see above] which had formed no part of this Rule prior to 8 April 2013.

 

7.        The Tribunal Procedure (Amendment) Rules 2013 made the amendments to Rule 17. The Explanatory Note to those Rules stated that the amendments to Rule 17 extended the power “to withdraw the case to circumstances in which a case has been adjourned part-heard”.

 

Factual Background

 

8.        At the time of the Respondent’s decision, the Appellant was aged 60 years. She had a facial palsy and suffered from depression and anxiety. Additionally she had problems with her leg and with hypothyroidism. Since 21 October 2004 she had been in receipt of the lower rate of the mobility component and the middle rate of the care component of DLA.

 

9.        On 10 February 2012 the Appellant applied for a supersession on the basis that her health had deteriorated. Following enquiries, the Respondent refused the Appellant’s application for a supersession on 21 June 2012 and maintained the existing award. The Appellant appealed to the tribunal.

 

10.     It is noteworthy that “Summary General Directions” were made on 24 April 2013 stating that the tribunal could make any decision it thought appropriate on the evidence. It was recorded in clear terms that the tribunal “may decide to keep the award as it is, increase it, reduce it or remove it altogether”.

 

11.     The Appellant’s appeal was first listed for hearing on 4 December 2013. On that date the Appellant’s husband attended, acting as her representative, together with the couple’s daughter. The Appellant was said to be too unwell to attend. Evidence and submissions were heard but the tribunal ran out of time to conclude matters. The decision notice recorded that the appeal had been adjourned part heard and that the hearing would resume on 20 February 2014. The Appellant’s husband was directed to supply a copy of a care assessment concerning his wife within the next month. No other directions were made by the tribunal,

 

12.     Following the hearing in December 2013, the Appellant and her husband sought advice from two separate welfare rights organisations and were told that, on withdrawal of the appeal, the award of DLA would remain in place unchanged. Accordingly, on 14 February 2014 the Appellant gave written notice that she was withdrawing her appeal. That notice was received by the tribunal on 18 February 2014 She made it plain in her written notice that neither she nor her husband would be in attendance on 20 February 2014 because she could not afford the funds for a carer to accompany her to the tribunal. Additionally, her husband’s health was said to be deteriorating and it was difficult for him to sit and concentrate for the required time.

 

13.     On 19 February 2014 the tribunal judge said that no decision could be made on the application to withdraw until the Respondent had had a chance to comment and the tribunal had considered the issues. This would not be possible before 20 February 2014.

 

14.     On 20 February 2014 the tribunal proceeded to refuse consent to the withdrawal of the appeal. Neither the Appellant nor her husband were present at the hearing on 20 February 2014 but the tribunal nevertheless decided to proceed in their absence. Following its decision on withdrawal, the tribunal determined that the Appellant had no entitlement to DLA with effect from 10 February 2012, this being the date of her application for supersession.

 

The Tribunal’s Decision

 

15.     I have focussed on the tribunal’s reasoning which is pertinent to the notice of withdrawal.

 

16.     The tribunal considered the notice of withdrawal received on 18 February 2014 at some length. It recorded that the tribunal judge took the view that consent to the withdrawal was required and that the Respondent was asked for his opinion which could not be given until the day of the adjourned hearing on 20 February 2014. At that hearing the Respondent argued that the hearing of the appeal should proceed because the evidence heard to date did not support the award of DLA. The directions order dated 24 April 2013 had put the Appellant on notice that the tribunal could make any award it thought appropriate.

 

17.     The tribunal set out the text of Rules 17(1), 17(2) and 17(3)(a) and 17(3)(b) in its decision and noted that, as no direction had been made under Rule 17(3)(b), that Rule could not apply in this case. It held however that Rule 17(3)(c) applied as the application made by the Appellant “was at a hearing”. Such an interpretation meant that the tribunal’s consent to the withdrawal was required under Rule 17(2). The tribunal found that the absolute right to withdraw an appeal or part of a party’s case was before a hearing. It stated that:

“as the hearing commenced on 4 December 2013 and was adjourned part heard until 20 February 2014 the application made on 18 February 2014 was made ‘at a hearing’.”

 

18.     In support of its conclusion, the tribunal referred to the case of BP v Secretary of State for Work and Pensions (DLA) [2011] UKUT 228 (AAC) which stated in paragraph 16 that “it is clear that the absolute right to withdraw ceases once a hearing to consider the disposal of the proceedings commences”. The tribunal also made reference to a change in Rule 17(1)(a), effective from 8 April 2013, which deleted the words “at any time before a hearing to consider the disposal of the proceedings (or if the tribunal disposes of the proceedings without a hearing, before that disposal)”.  The tribunal did not consider that the amendment to Rule 17(1)(a) affected the principle set out in the case of BP.

 

19.     The tribunal then referred to the case of AE v Secretary of State for Work and Pensions [2014] UKUT 5 (AAC), stating this decision confirmed that Rule 17 applied to all parties and to judicial review proceedings as well. It quoted with approval the following statement taken from paragraph 30 of AE:

“I do not consider that a party can withdraw from the scope of an appeal a favourable part of the decision leaving only the unfavourable part for the tribunal to decide”.

 

20.     The tribunal then went on to consider the meaning of the phrase “at a hearing”. I reproduce its reasoning in full as follows:

“33. The hearing arrangements in many jurisdictions involves [sic] the hearing running to a conclusion once it has started. Therefore, if the time estimate proves, for whatever reason to be insufficient many jurisdictions covered by Rule 17 have the listing ability to simply carry on the following working day. Social Security Tribunals do not have such a luxury. If an appeal overruns they have to find another date because the following day is taken up with other listed appeals. In any event in other jurisdictions if a case overruns and has to come back, for example the following morning or it overran on a Friday to come back on the Monday morning, there is always going to be a gap. The Tribunal is not going to be sitting overnight over the weekend or over a holiday period. The Tribunal simply resumes. There is no logical distinction between a jurisdiction which has to arrange separate future specific dates in case an appeal overruns and one where it simply starts again the next morning or the next working week.

34. The Tribunal can see no reason at all why the interpretation ‘at a hearing’ should be different depending on the listing arrangements of a particular jurisdiction. If ‘at a hearing’ was interpreted as meaning actually at the hearing and not in the natural gap which must occur if a case overruns (including over lunchtime) then it would be possible for any party to the proceedings to make a written application in the space between actual sittings to withdraw the appeal. In such circumstances the request to withdraw would be absolute. The consent of the court would not be required. A party to a case who as a consequence of hearing the evidence might realise that it was simply not going their way and they were bound to be unsuccessful would simply have to wait until, say, lunch time when a court was not actually sitting, to make a written application to the court to withdraw and it would have to be granted.

35. That cannot be the meaning of the phrase ‘at a hearing’. The only way in which the phrase ‘at a hearing’ can sensibly be construed is once a hearing starts the hearing remains in existence until it finishes whenever that may be. Therefore, if an appeal overruns and goes part heard the time between the court stopping sitting one day and resuming (whenever that is) must continue to be a hearing and therefore anything that occurs in the interim is ‘at a hearing’.

36. The tribunal was therefore satisfied that when the request came in on 18 February 2014 it was made ‘at a hearing’.”

 

21.     The tribunal finally decided that it could not consent to the withdrawal of the appeal, applying Rule 2 of the Rules. It stated that, in accordance with the directions given on 24 April 2013, the Appellant was on notice that the tribunal was considering the existing award not least because the assessment by the Health Care Professional suggested no entitlement to any award of benefit. The tribunal also stated that it was concerned about the credibility of the information it was being given by the Appellant’s husband.

 

This Appeal

 

22.     I gave permission to appeal on a number of procedural issues. Because I have decided that the tribunal erred in law in its interpretation of Rule 17 and allow the appeal on that ground, it is not necessary for me to address the other issues which arose in this appeal.

 

23.     I set out as follows the grounds relevant to Rule 17 on which I gave permission to appeal.

 

24.     “First, the Appellant had given written notice of an intention to withdraw her case. That notice was received by the tribunal on 18 February 2014. Did the tribunal err in law by not giving immediate effect to that notice? The direction made on 19 February 2014 is arguably invalid through want of jurisdiction as the tribunal’s consent is not required as the notice was not given “at a hearing”. Did the tribunal actually have the jurisdiction to hear the appeal on 20 February 2014?

 

25.     The direction states that “this is a part heard appeal” [page 479]. In that directions order and in its reasons of 20 February 2014, the tribunal relies on this fact as supporting the proposition that rules 17(2) and 17(3)(c) have the effect that a case cannot be withdrawn during the course of an adjournment without the consent of the tribunal. It relies on the case of BP v SSWP (DLA) [2011] UKUT 228 (AAC). Is that interpretation correct? Is that case still good law in the light of the change to the Rules with effect from 8 April 2013? If the tribunal’s interpretation is indeed correct, I observe that there would be no logical justification at all for the inclusion in the revised Rules of Rule 17(3)(b) which requires a tribunal to direct in a security and child support case that notice of withdrawal shall take effect only with the tribunal’s consent. That rule is, it seems to me, an invitation on an adjournment – whether part heard or not – for a tribunal to direct that any written notice of withdrawal received thereafter should not have effect unless the tribunal consents. In the absence of that direction, a written notice of withdrawal is arguably effective once it has been received by the tribunal.

 

26.     Rule 17 draws a distinction between a written notice of withdrawal and notice of withdrawal given “orally at a hearing” [rule 17(1)(b)]. The latter requires the tribunal’s consent by virtue of rules 17(2) and rule 17(3(c); the former does not unless a direction pursuant to rule 17(3)(b) has been given. Unlike the previous version of rule 17(1)(a), the present rule does not limit the effect of a notice of withdrawal to a time “before a hearing to consider the disposal of the proceedings” [Rule 17(1)(a) in effect prior to 8 April 2013].

 

27.     If the notice of withdrawal was effective upon receipt on 18 February 2014, is there any reason why I should not allow the appeal and set aside the tribunal’s decision? This would have the effect of restoring the Respondent’s decision dated 21 September 2012. The Respondent may then take such action in respect of the entitlement to benefit as he thinks fit.”

 

28.     Following my grant of permission to appeal, the Secretary of State filed submissions supporting this appeal and inviting me to set aside the tribunal’s decision and remit the case for a rehearing. The Appellant has seen those submissions but has not replied to them.

 

29.     I have received some additional information from the Appellant’s husband, namely an email dated 9 November 2015 and some additional medical records for the Appellant. Sadly it appears that the Appellant has recently been diagnosed with bone cancer.

 

30.     I am satisfied in all the circumstances that I can proceed to determine this appeal properly and justly without holding an oral hearing.

 

The Parties’ Respective Cases on Appeal

 

31.     The Appellant argued that she had received advice from two welfare rights organisations that the withdrawal of her appeal would not prejudice her entitlement to DLA. She objected to the tribunal’s decision in her absence because it had been made at a hearing she believed had been cancelled because of the notice of withdrawal.

 

32.     The Respondent drew my attention to the cases of AE and BP [already cited above] and to the case of LJ v Secretary of State for Work and Pensions [2015] UKUT 315 (AAC). In LJ Upper Tribunal Judge Hemingway held that the intention of the amendment to Rule 17(1)(a) was to allow a party the absolute right to withdraw an appeal during an adjournment. In LJ the appeal concerned a sizeable recoverable overpayment of benefit and, according to the Respondent, the withdrawal was made because the tribunal was considering an increase in the amount of the recoverable overpayment. The Respondent commented that “it seems more likely the intention to allow withdrawal during an adjournment would only arise if it appeared an appeal against an unfavourable decision wasn’t going to succeed, not that the tribunal’s decision was going to be even more unfavourable” and said that “it cannot be right that such a process then allows a decision that is incorrect based on the evidence now available to remain in place”. It is clear from these comments that the Respondent considered the case of LJ to be incorrectly decided.

 

33.     However the Respondent’s submissions did not really engage with the substance of the grounds on which I gave permission to appeal. Instead he supported the appeal on the basis that the Appellant and her husband were not given proper notice that the tribunal was contemplating a decision to her disadvantage, namely the removal of entitlement to DLA in its entirety. He submitted that I should remit the appeal for re-hearing and suggested that, if I agreed with his view about LJ, the tribunal judge hearing the remitted appeal should first revisit the decision not to withdraw the appeal and should reject the withdrawal application.

 

Discussion

 

34.     I find the interpretation the tribunal gave to Rule 17 amounted to a material error of law.  I hold that the case of BP is no longer good law in the light of the amendments made to Rule 17 with effect from 8 April 2013.

 

35.     Rule 17(1)(a) – unless qualified by a direction pursuant to Rule 17(3)(b) – gives a party the absolute right to withdraw its case by sending or delivering a written notice of withdrawal. This will be the case even if a hearing to consider the disposal of proceedings has commenced and has been subsequently adjourned as happened in this case and in the case of LJ. The language bears no other interpretation and is, in my view, quite clear.

 

36.     Here, the tribunal strained to interpret the phrase ‘at the hearing’ in rule 17(3)(c) so that it would apply at the time the notice of withdrawal was received whenever that was. Not only did this interpretation ignore the effect of the 2013 changes to Rule 17 but it was inconsistent with the definition of ‘hearing’ in Rule 1(3), namely “an oral hearing and includes a hearing conducted in whole or part by video link, telephone or mother means of instantaneous two-way electronic communication”.  There was no oral hearing taking place on 18 February 2014 and thus the notice of withdrawal took immediate effect on that date. The tribunal sitting on 20 February 2014 was without jurisdiction to make any change to the Appellant’s award of DLA.

 

37.     My interpretation is reinforced by the addition of Rule 17(2)(b) to Rule 17 with effect from 8 April 2013. I observed, when giving permission to appeal that, if the tribunal was correct that its consent to a withdrawal during an adjournment of the proceedings was required, there was no possible justification for the inclusion of Rule 17(3)(b) in the revised Rules.  It seems to me that this Rule operates as an invitation on an adjournment of proceedings – whether part heard or not - for a tribunal to direct in a social security or child support case that any written notice of withdrawal received thereafter should not have effect unless the tribunal consents to it. It is quite obvious that the tribunal in this case was contemplating the validity of the Appellant’s entitlement to her current award of DLA. It would have been a prudent and straightforward matter both to have warned the Appellant of this fact and to have guarded against a withdrawal of the proceedings by making a direction in the terms of Rule 17(3)(b). Unfortunately and I suspect through oversight, the tribunal did not take the course which was legitimately open to it.

 

38.     The tribunal in this case was most exercised at the prospect that a party might seek to withdraw its case or part of it during a break in the proceedings on the day of the hearing itself when, for example, the tribunal might have risen to eat lunch. Rising to eat lunch does not, in my view, constitute a formal adjournment of the proceedings which might trigger the possibility of a withdrawal pursuant to Rule 17(1)(a). Adjournment of proceedings – whether from one day to the next or from one month to another - is marked by a decision notice stating that fact and, alongside any other necessary directions, making provision for when the proceedings might conclude. No hearing within the meaning of Rule 1(3) is taking place once an adjournment as I have described it takes effect.

 

39.     When a tribunal rises to eat lunch, it is plain to me that an oral hearing is ongoing and that, pursuant to Rule 17(3)(c), the tribunal’s consent to any application for withdrawal made at a hearing is necessary. If a tribunal has concerns about the possibility of withdrawal during the course of the proceedings, it may wish to make the Rule 17(3)(b) direction either as part of its case management directions or at the start of the hearing. Likewise, if the case has to be formally adjourned either to the next day, the following week or to some later date, a tribunal may wish to consider whether to make the Rule 17(3)(b) direction if it has not already done so. However all of these issues are matters of judgment for a tribunal seised of a particular case and I make it plain that my comments are not intended to set a precedent for how tribunals should case manage the proceedings in each and every social security or child support appeal.

 

40.     Finally and contrary to the views expressed by the tribunal, the case of BP preceded the changes to Rule 17 and is no longer good authority on the interpretation of Rule 17 since it relies on the very wording which was excised from Rule 17(1)(a) with effect from 8 April 2013. Instead, I align myself with the reasoning set out in the case of LJ which drew attention to the intention behind the amendments to Rule 17 set out in the Explanatory Note. The case of AE does not detract from either the reasoning in LJ or in this decision since it did not consider in detail the timing and consequential effect of any notice of withdrawal.

 

41.     Given the analysis set out above, I conclude that the written notice of withdrawal received by the tribunal on 18 February 2014 had immediate effect and brought the proceedings to a conclusion. The tribunal erred in law by not accepting the notice on that date and by soliciting submissions about it from the Respondent.  Given the effect of this valid notice, the tribunal was without jurisdiction to determine any matter relating to the Appellant’s entitlement to DLA on 20 February 2014 and erred in law by so doing.

 

42.     I allow this appeal for the reasons given above.

 

Conclusion

 

43.     The Respondent invited me to remit this appeal for rehearing however such a course flies in the face of my analysis of the law and the facts in this case. There is no appeal to rehear since it was validly withdrawn on 18 February 2014.

 

44.     I thus set aside the tribunal’s decision and make findings as set out in the preamble to these Reasons. I remake the decision to give effect to those findings.

 

 

 

 

 

Gwynneth Knowles QC

Judge of the Upper Tribunal

19 November 2015.

 

[signed on the original as dated]