Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIB/1908/2014

ADMINISTRATIVE APPEALS CHAMBER

Before: M R Hemingway: Judge of the Upper Tribunal

Decision: The First-tier Tribunal erred in law in concluding it had the power to refuse to accept the appellant’s withdrawal of his appeal.  It did not. Its decision on the appeal which it heard Prestatyn on 17 October 2013 under reference SC190/12/00057 is, therefore, of no effect.

REASONS FOR DECISION

1. The appellant was born on 17 September 1946.  He claimed incapacity benefit which he received from 2 November 2001 to 16 September 2011 inclusive.  From 1 October 2009 he has been receiving the lowest rate of the care component of disability living allowance.  From 17 September 2011 he has been receiving state retirement pension.  He has also, from 16 July 2002, been receiving an occupational pension.  The respondent was, initially, unaware of the receipt of the occupational pension.  However, the respondent’s discovery of it led, in due course, to an initial decision of 11 February 2011 to the effect that the appellant had received a recoverable overpayment of incapacity benefit in the sum of £22,537.87 on the basis that he had failed to disclose receipt of it.  Thereafter, though, the respondent made a revised decision of 11 October 2011 to the effect that the recoverable overpayment amounted to £9,471.90.  The basis for the revised decision was the respondent’s acceptance that the appellant had, in effect, disclosed receipt of his occupational pension in July 2006 such that there was no entitlement to recover the overpayment from the time of that disclosure.  However, documentation produced by the respondent suggests that, in fact, whilst the appellant did inform the respondent he had been granted retirement on ill‑health grounds he did not actually disclose the receipt of the pension.  That was a matter not lost on the First‑tier Tribunal (F-tT) which eventually purported to decide the appellant’s appeal.

2. The appellant, in fact, appealed against the revised decision on the basis that he was sure he had informed the respondent of the position regarding the occupational pension at the time he commenced receiving it in 2002.

3. The appeal was listed for hearing on 16 April 2013. However, the appellant’s representative was unable to attend on that date and a postponement request was granted. The F‑tT made directions requiring a supplementary submission from the respondent, requiring the production of certain documents by the respondent and requiring a presenting officer to attend when the case was next listed for hearing. 

4. The appeal then came before the F‑tT on 22 August 2013.  The appellant attended with his representative and there was a presenting officer in attendance.  The appellant gave evidence that he had been informed, in 2002, by his union representative that his occupational pension was “relevant” to incapacity benefit and that receipt of it should be reported to the respondent.  He added that he thought he had then made a telephone call to report its receipt but could not actually remember whether he had done so or not.  It appears that this evidence did or may have come as something of a surprise to his representative.  The hearing continued for a while until some discussion about documentation led to a short adjournment so that certain documents could be faxed to the tribunal venue.  After that had been done the hearing resumed but the appellant’s representative applied for an adjournment to another day.  That application was refused but there was a further short adjournment of some 10 minutes or so, so that the representative and the appellant could discuss matters.  The hearing resumed once again and the representative then indicated, orally, that he was instructed to withdraw the appeal.  According to the F‑tT’s statement of reasons for decision (statement of reasons) this was because the appellant now “accepted the DWP’s case”.  The F‑tT, however, indicated that it wished to consider whether or not to consent to the request to withdraw and adjourned to another day.  It is clear that the F-tT had in mind the possibility that the correct figure for the amount of the recoverable overpayment might have been the higher one.  On the same day, it issued directions indicating that the application to withdraw the appeal was to be refused and that the appeal had been adjourned part‑heard to be relisted before the same judge.

5. On 5 September 2013 the appellant’s representative wrote to the tribunal stating that he was making what he described as “a written application to withdraw”.  The representative made reference to rule 17 of the Tribunal Procedure (First‑tier Tribunal) (Social Entitlement Chamber) Rules 2008, although he appears to have had in mind the wording of that rule prior to amendments of 8 April 2013. He asserted a right to withdraw. The F‑tT responded by issuing a “direction notice” of 24 September 2013 in which it said the application to withdraw was “ill‑judged”, that the appeal would be relisted for hearing as soon as possible and that, following BP v Secretary of State for Work and Pensions (DLA) [2011] UKUT  228 (AAC):

“Once a hearing commences the absolute right to withdraw goes and it is not revived because there is an adjournment whether for discussions, for lunch or for a more extended period.”

6. There was, then, a further and final hearing before the F‑tT on 17 October 2013.  The appellant’s representative made submissions on various issues and maintained that there had been an absolute right for the appellant to withdraw his appeal.  The F‑tT rejected various submissions made on behalf of the appellant, including that one, and decided that there had been a recoverable overpayment of incapacity benefit amounting to £22,530.87 from 14 July 2002 to 19 December 2010.  The F‑tT subsequently issued its statement of reasons. 

7. The appellant, through his representatives, applied for permission to appeal to the Upper Tribunal.  A number of different grounds were relied upon but central contentions were to the effect that BP was wrongly decided such that there was an absolute right to withdraw the appeal but that, even if there was not, the F‑tT had failed to properly exercise its discretion when refusing to accept the withdrawal.

8. I granted permission to appeal and have subsequently received two sets of written submissions from the parties.  Some of the arguments contained therein are quite wide ranging but it is not necessary for me to address them because I have concluded that the F‑tT erred in law in failing to accept the appellant’s withdrawal of his appeal.  I set out my reasoning below. 

9. Up until 8 April 2013 the relevant parts of rule 17 read as follows:

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

(a) 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), by sending or delivering to the Tribunal a written notice of withdrawal; or

(b) 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 withdrawal –

(a) under paragraph (1)(a) in a criminal injuries compensation case; or

(b) under paragraph (1)(b).”

10. It was decided by the Upper Tribunal in BP that a consequence of that wording was that the absolute right of a party to withdraw ceased once a hearing to consider the disposal of the proceedings had commenced.  The appellant’s representative deployed a number of arguments to the effect that that was not the consequence of the rule 17 wording but, whilst I do not have to decide whether BP was correctly decided in order to determine this appeal, it does seem to me that it was.  Thus, had the above version of rule 17 still been in force at the relevant time, the absolute right to withdraw would have ceased from 22 August 2013 and would not have been revived by any subsequent adjournment because the hearing of 22 August 2013 had been one to consider the disposal of the proceedings even though, as it turned out, the proceedings had not been disposed of on that date. 

11. The point, though, is that the 2008 Rules are no longer in the form set out above.  From 8 April 2013 the relevant parts of rule 17 have been in this form:

“ 17. - (1) Subject to paragraph (2), a party may give notice of 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 withdrawal –

(a) in a criminal injuries compensation case;

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

(c) at a hearing.”

12. The Tribunal Procedure (Amendment) Rules 2013, which made the important amendment to rule 17(1)(a) were laid before Parliament on 6 March 2013 and came into force on 8 April 2013.  The actual text of the amendments is to be found at paragraph 24. In the Explanatory Note it is said that the amendment extends the power “to withdraw the case to circumstances in which a case has been adjourned part heard”.

13. There are no provisions which have the effect of, for example, disapplying the amendments to cases which relate to decisions taken prior to the amendments coming into force or in relation to appeals which started life prior to that date.  The amendments, therefore, simply apply to proceedings before the tribunal from the date those amendments came into force.  There is nothing issued in the form of directions in this case which can be construed as a direction that notice of withdrawal could only take effect with the tribunal’s consent.

14. It is clear that the F‑tT did not appreciate that there had been a relevant change to the content of rule 17.  It had not been alerted to that by either party.  Had it been, though, it would have noted that the rule does now, subject to the 17(3)(b) provision, provide an absolute right to withdraw by the sending or delivering of written notice of withdrawal and that this will be so even if a hearing to consider the disposal of the proceedings has commenced and has been subsequently adjourned as happened here.  The letter written by the appellant’s representative of 5 September 2013 does, in my view, clearly constitute a written notice of withdrawal.  Accordingly, despite the fact that there had been the previous hearing of 22 August 2013, the appellant had, in the absence of a rule 17(3)(b) direction, retained an absolute right to withdraw and the F‑tT had no power to refuse to accept that withdrawal and to continue with the proceedings.  By not simply accepting the withdrawal, therefore, the F‑tT did err in law. 

15. In the circumstances I simply decide that the F-tT had no power to refuse to accept the withdrawal of the appeal.  The appeal has been validly withdrawn and the F-tT’s subsequent decision was of no effect.  This, of course, leaves in place the decision of 11 October 2011 to the effect that the appellant has received a recoverable overpayment in the sum of £9,471.90.

(Signed on the original) 

M R Hemingway

Judge of the Upper Tribunal

Dated: 5 June 2015