DTM v Kettering Borough Council (CTB) [2013] UKUT 625 (AAC)

UKUT-AAC

DTM v Kettering Borough Council (CTB)

[2013] UKUT 625 (AAC) · 2013-12-06

The Appellant in person.

For the Respondent: Mr Michael Ronan, solicitor advocate.

DECISION

The appeal is allowed.

The decision given by the First-tier Tribunal at Kettering on 12 July 2010 under reference 037/09/00262 involved an error on a point of law because the Tribunal had no jurisdiction to consider the appeal.

I set that decision aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”).

Under section 12(2)(b)(ii) and (4) of TCEA, I re-make the First-tier Tribunal’s Decision in the following terms:

I treat the enquiry form signed by the claimant on 1 October 2009 and received by the Tribunals Service on 5 October 2009 as an application to reinstate the appeal to the First-tier Tribunal.

The claimant’s appeal to the First-tier Tribunal is reinstated.

That appeal is allowed.

The decision of Kettering Borough Council dated 14 April 2009 is set aside.

For the purposes of the claimant’s entitlement to council tax benefit under the claim made by him on 20 February 2009, the two adjoining buildings in which the claimant and his family reside (and which are fully identified in the appeal papers) are to be treated as a single dwelling.

I direct Kettering Borough Council to reassess the claimant’s entitlement to council tax benefit under the above claim on that basis and to notify the claimant of its revised decision.

If the claimant disputes Kettering’s revised decision then he may refer that decision to the Upper Tribunal within one month of its being notified to him and I, or, if I am unavailable, another Upper Tribunal Judge, will decide that dispute.

REASONS FOR DECISION

Introduction

1 This is the first of two linked appeals by the claimant against decisions taken by the First-tier Tribunal sitting at Kettering on 12 July 2010. The second linked appeal is CH/2043/2011 .

2 The substantive issue is the same in both appeals. The claimant and his family occupy two adjoining semi-detached houses (“No. 9” and “No. 10”). Each house is separately registered in the council tax valuation list. Kettering decided that, as a matter of law, the claimant and his family can only reside in one of those properties for the purposes of council tax benefit and that, on the facts of this case, his claim for benefit for No. 9 (in which Kettering maintain he does reside) is defeated by the fact that the value of the No. 10 (in which Kettering maintains he does not reside) exceeds £16,000. The claimant’s case is that, despite the separate council tax valuations, he and his family reside in both properties as a single dwelling and he is therefore entitled to council tax benefit for both. Further, as he resides in No. 10 as well as No. 9, the value of No. 10 its value falls to be disregarded in the calculation of his capital.

3 In my decision in CH/2043/2011 which is also issued today, I hold that it is legally possible for two such properties to form a single dwelling and that the two properties in this appeal do so. My reasoning in CH/2043/2011 also applies to the substantive decision in this appeal. That reasoning may be summarised by saying that the point is covered by the decision of Mr Commissioner Howell QC (as he then was) in R(H)3/08 .

4 However I am giving separate decisions in each appeal because this appeal involves two important points of procedure, which do not arise in CH/2043/2011 .

Procedural history

5 What happened in this case was as follows.

The decision-making process at Kettering

6 On 20 February 2009, Kettering received a document relating to the claimant from the Department for Work and Pensions. That document described itself as a “local authority input document”. It was in fact a claim for council tax benefit.

7 On 30 March 2009 Kettering wrote to the claimant in the following terms:

“Further to your claim for council tax benefit made on 20/02/2009, your claim cannot be assessed until the following has been provided:

- Please complete and return the enclosed application form with proof of all income and capital you have. Please also complete the form for self employed earnings.

- Please confirm when you made [No. 9] your main residence, as you have previously indicated that [No. 10] was your main residence.

Please provide this information and any other details relevant to your claim before 13/04/2009.

IMPORTANT Failure to supply all relevant details by the date shown will result in your claim being withdrawn and you will have to make a new claim for housing and/or council tax benefit. In exceptional cases we may be able to extend the date for receipt of the requested information. ” (The emphasis is in the original.)

8 On 14 April 2009, Kettering sent the claimant two letters. The first was in the following terms:

“Further to your application for council tax benefit, I must inform you that you are not eligible for council tax benefit due to the following reason:

- We issued a letter to you on 30/03/2009 giving you to 13/04/2009 in which to supply the requested information to date this information has not been provided.”

9 The second letter was in the following terms:

“We write in response to your telephone call on 14 April 2009 to request a time extension. The reason for the time extension being granted in your case is you are putting together the figures to complete the self employed form.

Please accept this letter a confirmation that you have been given a further seven days in which to provide the following information:

[The requests for information made in the original letter are then repeated.]

Failure to provide this information by 21 April 2009 will result in your claim being withdrawn and you will have to make a new claim for housing and council tax benefit. Your benefit entitlement will be considered from the following Monday after your new claim is received.”

10 The claimant did not provide the information requested by 21 April 2009. However, he did telephone Kettering on 27 April 2009. He is recorded as having been “very irate as has been made nil qualifier on 14/04/09”. He is also recorded as having expressed the view that it was unrealistic of Kettering to require him to provide his self-employed accounts within two to three weeks of his year end. The officer he spoke to advised him that he needed to appeal the decision in writing, which the claimant duly did by e-mail on 29 April 2009.

11 In response to that e-mail, Kettering wrote to the claimant in the following terms:

“I write in acknowledgement of your e-mail received in the office on 29.04.2009 appealing against our decision made on 14.04.2009. Our records show that you were allowed a time extension on the same date to provide the necessary information. For this reason, I am writing to confirm that you have been given a further week’s [sic] to provide the following information:

[A number of information requests follow].

Please provide the requested information by 13.05.2009. If the information has not been provided by this date, the decision made on 14.04.2009 will be upheld.”

12 On 12 May 2009, the claimant visited Kettering’s offices and provided the authority with a completed claim form and such further information as to his income from self employment as he was able to supply at the time.

13 Kettering’s response was to write to the claimant on 18 May 2009 and request further information which it required him to provide by 8 June 2009.

14 On 9 June 2009, the claimant having failed to meet the deadline the previous day, Kettering again wrote to him stating:

“Further to your application for council tax benefit, I must inform you that you are not eligible for council tax benefit due to the following reason.

We issued a letter to you on 18.05.2009 giving you until 08.06.2009 in which to supply the requested information. To date this information has not been provided. The information that we still required [sic] to calculate your entitlement is as follows:

[A number of requests for further information are then made without stating a time in which the information must be provided].”

15 Kettering made a further decision on 6 August 2009, refusing the claim that was made on 12 May 2009. The claimant appealed separately against that decision and I deal with the issues in that appeal in my decision in CH/2043/2011 .

The procedure adopted by the First-tier Tribunal

16 The appeal in this case was received by the First-tier Tribunal on 27 July 2009. On 29 July, the Tribunals Service sent the claimant an enquiry form which he was asked to complete in block capitals and return within 14 days. It contained the following questions (among others):

“ Question 1

If you do not want to continue with your appeal, please tick this box and sign and return this form. We will then treat your appeal as withdrawn and contact you no further.

If you wish to continue with your appeal, please answer the following questions and sign and return this form within 14 days in the envelope provided.

Question 2

“Do you want to have a hearing where you and your representative, if you have one, can meet the Tribunal and put your case?

Yes

No ”

and was accompanied by Guidance Notes which stated:

“Question 1. Do you want to continue with your appeal or withdraw ?

Some people change their mind after starting an appeal and for various reasons decide not to pursue it. Please bear in mind that the Tribunal cannot change the law. It has to apply the law as it stands, even if that leads to an outcome that you think unfair. Within those limits, the Tribunal has the power change the decision you are appealing against with the decision it thinks ought to have been made. Sometimes this might leave you worse off. If you want to withdraw your appeal, just tick the box at Question 1, sign the form at the end and return it to us. We will contact you no further. If you want to continue with your appeal, go on to Question 2.

Question 2. Do you want a hearing ?

A “hearing” means meeting the Tribunal, so that you and your representative, if you have one, can put your case in person. The advantage of a hearing is that you have an opportunity to speak to the Tribunal and the Tribunal has an opportunity to learn more about your case than it could gather from the appeal papers alone. Most people who appeal opt for a hearing. Statistically, more than twice as many appeals are successful with a hearing.

If you do not want a hearing, your appeal will still be decided by the Tribunal but on the basis of the appeal papers only. If there’s anything besides the information in the appeal papers you would like the Tribunal to take into account when making its decision, please send it with your completed Enquiry Form. …”

17 As the claimant had not returned that form, a reminder letter was sent to him on 20 August 2009 asking him to do so within seven days.

18 On 14 September 2009, the appeal was referred to a judge for directions because no reply had been received. The following day, 15 September, a tribunal judge gave the following direction ("the Direction"):

“The appellant was sent an enquiry form on 29/07/09 requesting information to enable the appeal to proceed. He was sent a reminder on 20/08/09. No reply has yet been received.

The appellant is directed to notify the Tribunals Service within 14 days of today’s date whether or not he wishes to continue with the appeal. Failure to comply with this direction will lead to the striking out of the appeal without any further procedure, under the provisions rule 8(1) Tribunal Procedure (First-tier Tribunal) Social Entitlement Chamber Rules 2008.”

The decision notice containing the Direction included the following notes in a small italic font:

“The appellant may wish to seek advice from someone such as a welfare rights organisation, a Citizens Advice Bureau or Law Centre.

If the proceedings had been struck out the appellant may apply to have them reinstated. Any such application must be in writing and must be received by the tribunal within 28 days after the date that the tribunal sent this notice to them.

A party is entitled to challenge any direction given by applying for another direction which amends, suspends or sets aside the first direction.”

The period of “14 days of today’s date” within which the claimant was required to comply with the Direction expired at 5.00 pm on Tuesday 29 September 2009.

19 The Direction was sent to the parties on 22 September 2009, a week after it was given.

20 The claimant completed the enquiry form on 1 October 2009 and returned it to the Tribunals Service. It was received on 5 October 2009.

21 The appeal was then listed for hearing on 7 January 2010. By that time, it was known that there was a second appeal raising the same issues ( i.e., the claimant’s appeal against Kettering’s decision dated 6 August 2009 (see paragraph 15 above). The judge therefore adjourned so that both appeals could be heard together. She gave listing directions but no others.

22 Both appeals were subsequently listed for hearing on 12 July 2010, following which the judge issued a decision disallowing them and confirming two decisions which she identified as having been issued on “03/09/2009 & 09/06/09”.

Reasons for setting the First-tier Tribunal’s decision aside

23 Both Kettering and the First-tier Tribunal made serious mistakes in their handling of the appeal. I have allowed this appeal because of the errors made by the First-tier Tribunal. However, as those errors compounded earlier errors made by Kettering, I first need to explain where Kettering went wrong.

The errors made by Kettering

24 Local authorities are not free to follow their own procedures when administering claims for council tax benefit or housing benefit. The rules that must be followed are contained in regulations made by the Secretary of State under the authority of Parliament. In this case, the relevant regulations were set out in Parts 8 and 9 of the Council Tax Benefit Regulations 2006. Those Regulations confer rights on claimants. Irrespective of whether he was entitled to the benefit he had claimed, the claimant had a right to have the question of his entitlement decided in accordance with the procedures established by law, rather than by procedures of Kettering’s own devising.

25 The procedure followed by Kettering in this case did not comply with the law. Kettering illegally demanded that the claimant should supply it with information within a period that was less than half the minimum period prescribed by the Regulations. As that failure to respect the claimant’s procedural rights appears to be enshrined in Kettering’s standard letters, it is necessary to explain in a little more detail what the law requires.

The time for claimants to supply information

26 A local authority which believes it requires further evidence or information before it can decide a claim for benefit has two main powers. If the original claim was defective, then it must notify the claimant of the defect and allow him or her an opportunity to correct it. If the original claim was not defective, the local authority may nevertheless require the claimant to provide it with any further evidence and information it reasonably requires to determine the claim.

27 The rules about claiming CTB are set out in regulation 69 of the Council Tax Benefit Regulations. It is a lengthy regulation and I need not set it out in full. It establishes two ways of making a claim. The first is in writing and the second is by telephone. This case concerns a written claim, but the time limit within which defective claims may be corrected is the same whichever method of claiming is used.

28 A written claim must be “made on a properly completed form approved for the purpose by the relevant authority or in such written form as the relevant authority may accept as sufficient in the circumstances of any particular case or class of cases having regard to the sufficiency of the written information and evidence”: regulation 69(1). Where, as in this case, a claimant is also making a claim for jobseeker’s allowance ("JSA") the written claim may be sent or delivered either to the office of the Department for Work and Pensions where the JSA claim is made or to the designated office of the local authority: regulation 69(4). Claims for CTB received by the Department are then forwarded to the local authority.

29 The treatment of defective claims is governed by regulations 69(6)-(9) which provide as follows:

“(6) Where a claim received at the designated office or appropriate office has not been made in the manner prescribed in paragraph (1), that claim is for the purposes of these Regulations defective.

(7) Where a claim, which is received by a relevant authority, is defective because—

(a) it was made on the form approved for the purpose but that form is not accepted by the relevant authority as being properly completed; or

(b) it was made in writing but not on the form approved for the purpose and the relevant authority does not accept the claim as being in a written form which is sufficient in the circumstances of the case, having regard to the sufficiency of the written information and evidence,

the relevant authority may, in a case to which sub-paragraph (a) applies, request the claimant to complete the defective claim or, in a case to which sub-paragraph (b) applies, supply the claimant with the approved form or request further information or evidence.

(7A) Where a claim is received at an appropriate office and it appears to the Secretary of State that the form has not been properly completed, the Secretary of State may request that the claimant provides the relevant authority with the information required to complete the form.

(8) The relevant authority shall treat a defective claim as if it had been validly made in the first instance if, in any particular case, the conditions specified in sub-paragraph (a), (b) or (c) of paragraph (8A) are satisfied.

(8A) The conditions are that—

(a) where paragraph (7)(a) (incomplete form) applies, the authority receives at the designated office the properly completed claim or the information requested to complete it or the evidence within one month of the request, or such longer period as the relevant authority may consider reasonable; or

(b) where paragraph (7)(b) (claim not on approved form or further information requested by relevant authority) applies— (i) the approved form sent to the claimant is received at the designated office properly completed within one month of it having been sent to him; or, as the case may be,

(ii) the claimant supplies whatever information or evidence was requested under paragraph (7) within one month of the request,

or, in either case, within such longer period as the relevant authority may consider reasonable; or

(c) where paragraph (7A) (further information requested by Secretary of State) applies, the relevant authority receives at the designated office the properly completed claim or the information requested to complete it within one month of the request by the Secretary of State or within such longer period as the relevant authority considers reasonable.

(9) A claim which is made on an approved form for the time being is, for the purposes of this regulation, properly completed if completed in accordance with the instructions on the form, including any instructions to provide information and evidence in connection with the claim.” (The emphasis has been added).

30 If the original claim is not defective, a local authority can obtain any further evidence or information it needs to make a claim by exercising its powers under regulation 72(1) which is in the following terms:

“ Evidence and information

72.—(1) Subject to paragraphs (1A) and (2) and to paragraph 4 of Schedule A1 (treatment of claims for council tax benefit by refugees), a person who makes a claim, or a person to whom council tax benefit has been awarded, shall furnish such certificates, documents, information and evidence in connection with the claim or the award, or any question arising out of the claim or the award, as may reasonably be required by the relevant authority in order to determine that person’s entitlement to, or continuing entitlement to council tax benefit and shall do so within one month of the relevant authority requiring him, or the Secretary of State requesting him, to do so or such longer period as the relevant authority may consider reasonable”. (Again, the emphasis has been added.)

Paragraphs (1A) and (2) of regulation 72 (to which paragraph (1) is subject) are about the circumstances in which the duty to provide evidence and information arises and limit the types of evidence of information that a person can be compelled to provide. They do not bear on the question of when such evidence and information must be provided. Although the reference to Schedule A1 has been retained in regulation 72(1), that Schedule lapsed with effect from 14 June 2007 (see s.12(2)(g) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004) and therefore was not in effect at the time I have to consider.

31 In my judgment, the original claim for CTB in this case was valid and not defective. The claimant had fully completed the Secretary of State’s “local authority input document” and the Secretary of State had not exercised his powers under regulation 69(7A) to request any missing information. The claim was “received” by the Secretary of State rather than “a relevant authority” so that regulation 69(7) did not apply. I appreciate that, under regulation 69(1), the claim is defective unless made on a form approved by the relevant authority. However, it seems probable that Kettering will have approved the Secretary of State’s “local authority input document”.

32 If that is correct, then it follows that the information requirements in Kettering’s letter of 30 March were made under regulation 72 and the words I have emphasised in the text of regulation 72(1) establish that claimants to whom such requirements are addressed have a minimum of one month in which to respond. That is the shortest time limit that Kettering could lawfully have imposed. Kettering had power to extend that time limit if it considered it “reasonable” to do so but no power to shorten it.

33 Even if Kettering had not approved the “local authority input document”, and the claim was therefore defective rather than valid, the same result would follow. As the words I have emphasised in regulation 69(8A) establish, a claimant also has one month in which to correct any defect in a claim. Again Kettering had power to extend that period, but no power to shorten it.

34 Put simply, there are no occasions in which a local authority has power to require a claimant to provide information in support of a claim for CTB or HB in less than a month, unless that information has been required previously so that the time limit is already running or has expired.

35 It follows that when Kettering wrote to the claimant on 30 March 2009, the earliest date by which it could require him to respond was 30 April 2009. It had no power to demand that he reply by 13 April 2009. That demand, Kettering’s threat to treat the claim as withdrawn and the subsequent decision that the claimant was not entitled to council tax benefit because he had not provided the information within 14 days, were all made without legal authority.

36 Similar criticisms can be made of Kettering’s second letter of 14 April 2009 (paragraph 9 above) and its letter of 18 May 2009 (paragraph 13 above).

37 The threat to treat the claim as withdrawn would have been without any legal basis, whatever time limit had been attached to it. Local authorities have no power to treat a claim for CTB as withdrawn in any circumstances. Under regulation 73(4), the only person who may withdraw a claim is the person who made that claim.

38 Kettering argued at the hearing before me that the irregularity of the decision on 14 April 2009 was regularised because its second letter of that date effectively withdrew the decision and allowed an extension of time. I reject that submission. The second letter does not purport to withdraw the decision notified by the first. In any event, decisions can only be changed by revision, supersession or on appeal which in practice means they continue in effect until a further decision is made: they cannot just be withdrawn and replaced with nothing. The second letter can therefore only be regarded as ancillary to a possible future exercise of Kettering’s power to revise the decision it had made. Further, the second letter of 14 April 2009 was affected by the same error as the letter of 30 March. The aggregate period of 14 days allowed by the latter and the additional seven days allowed by the former was still shorter that minimum period that Kettering was permitted to impose.

39 In summary, Kettering’s second letter of 14 April 2009 amounted to an implied promise to reconsider a decision that it should not have made in the first place, if the claimant provided evidence and information sooner than he was legally obliged to provide it. The existence of such a letter does not affect the conclusions I express at paragraph 35 above.

The errors made by the First-tier Tribunal

40 The First-tier Tribunal erred by failing to recognise that it was without jurisdiction. The effect of the events set out at paragraphs 18 to 20 above was that the appeal was automatically struck out under rule 8(1) of the Procedure Rules an instant after 5.00 pm on Tuesday 29 September 2009.

41 As was stated in the notes to the Direction, an appeal which has been struck out under rule 8(1) may be reinstated. The Tribunals Service should have referred the completed enquiry form back to the judge as an application to reinstate the appeal. However, that step was not taken and the appeal continued to be struck out. It was still struck out when it was listed for hearing on 12 July 2010. It follows that the Tribunal on that day was without jurisdiction to hear it.

42 That lack of jurisdiction could have been cured by the judge who was sitting on 12 July 2010. She could have given a direction reinstating the appeal. However, she did not do so and there is nothing in the statement of reasons which suggests that she was aware of the problem with her jurisdiction. I cannot imply a decision to reinstate the appeal from the fact that the judge purported to decide it. The general rule is that the powers conferred by the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 ("the Procedure Rules") must be exercised consciously and expressly. Even if there are occasions on which that is not necessary, such fundamental matters as whether an appeal has been struck out or reinstated cannot be left to implication.

43 As a consequence, the Tribunal decided an appeal in circumstances where it had no jurisdiction to do so because the appeal had been struck out and had not been reinstated. That is an error of law and its decision must be set aside.

44 I should add that, by rule 8(6) of the Procedure Rules, an application for reinstatement must be made in writing and received by the Tribunal within one month after the date on which the Tribunal sent notification of the striking out to the claimant. The period of 28 days which appeared in the notes to the Direction had no legal basis unless the judge on 15 September 2009 had consciously exercised his discretion under rule 5(3)(a) to shorten that time limit. In that case, he should have said expressly that he had done so and said it in a direction rather than in a note that appears to be giving general advice. Further, under the Procedure Rules, the one-month period runs from the date on which notification of the striking out was given to the claimant, not from the date on which the Direction was notified, which is what the note said. In a case in which the claimant was misled about time limits by the local authority, it is unfortunate that he should have been similarly misled by the First-tier Tribunal.

The jurisdiction of the Upper Tribunal

45 When I raised the problem of the Tribunal’s jurisdiction with the parties at the oral hearing, Mr Rosan, on behalf of Kettering, submitted that if the First-tier Tribunal had no jurisdiction to hear the appeal before it, it followed that the Upper Tribunal had no jurisdiction to hear an appeal against the First-tier Tribunal’s decision.

46 That submission is misconceived. Whether or not it should have done so, the First-tier Tribunal decided the appeal. As the First-tier Tribunal’s decision was not an “excluded decision” for the purposes of section 11(5) of TCEA, sections 11(1) and (2) confer a right of appeal to the Upper Tribunal against that decision on any point of law.

47 The Upper Tribunal is therefore properly seised of this appeal.

Reasons for the decision of the Upper Tribunal.

48 Having set the First-tier Tribunal’s decision aside, I am required by section 12 TCEA either to remit the case to the First-tier Tribunal or to re-make the decision. I have decided to re-make the decision. I have held an oral hearing and have taken further evidence from the claimant. Under section 12(4)(a), I have the same powers as the First-tier Tribunal would have if it were re-making the decision. In those circumstances, no purpose would be served by remitting the case.

Reasons for reinstating the appeal to the First-tier Tribunal

49 The effect of my setting aside the First-tier Tribunal’s decision is that the appeal to that tribunal remains struck out. I must therefore decide first whether to reinstate it. If the appeal is reinstated, I must then decide the substantive issues in the appeal. If it is not reinstated, then I have no jurisdiction to decide those issues.

50 I have decided to reinstate the appeal. I do so because the Direction was perverse. No reasonable tribunal, correctly instructing itself as to the applicable law could properly have given that direction.

The power to strike out proceedings

51 The First-tier Tribunal’s power to strike out proceedings is conferred by rule 8 of the Procedural Rules. So far as is relevant, that rule is in the following terms:

“ Striking out a party’s case.

8. —(1) The proceedings, or the appropriate part of them, will automatically be struck out if the appellant has failed to comply with a direction that stated that failure by a party to comply with a direction would lead to the striking out of the proceedings or that part of them.

(2) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

(3) The tribunal may strike out the whole or part of the proceedings if—

(a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them;

(b) the appellant has failed to co-operate with the tribunal to such an extent that the tribunal cannot deal with the proceedings fairly and justly; or

…”

This appeal does not involve the exercise of the power to strike out an proceedings for want of jurisdiction under rule 8(2) or the power to strike out proceedings in which the appellant has no reasonable prospect of success. What I say below relates only to the powers conferred by rules 8(1) and (3)(a).

52 As with any power conferred by the Procedure Rules, the power to strike out proceedings must be exercised in accordance with the overriding objective in rule 2. That includes both a decision to give directions that may lead to an automatic striking out under rule 8(1) and a decision to strike out under rule 8(3)(a).

53 Rule 2 is in the following terms:

“ Overriding objective and party’s obligation to co-operate with the tribunal

2. —(1) The overriding objective of these Rules is to enable the tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) using any special expertise of the tribunal effectively; and

(e) avoiding delay, so far as compatible with the proper consideration of the issues.

(3) The tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

(4) Parties must—

(a) help the tribunal to further the overriding objective; and

(b) co-operate with the tribunal generally.”

54 The Direction was given because the claimant had not returned an enquiry form. That form was issued to the claimant by the Tribunals Service, not the Tribunal. At least until 15 September 2009, the issue and return of the form were therefore administrative rather than judicial matters.

55 The enquiry form asked the claimant whether he wished to continue with his appeal. If so, it asked him whether he wished to have a hearing. If he did, he was asked a number of further questions to assist the Tribunals Service with the efficient listing of that hearing. Although that information would have been helpful to the Tribunal, it did not concern the substantive issues which the Tribunal had to consider. It was possible for the Tribunal to deal with those issues even if the information was not provided. The judge was therefore incorrect to describe what the claimant had been requested to provide as “information to enable the appeal to proceed”. The appeal could have proceeded perfectly well without that information, and should have done so.

The judge who gave the Direction had a number of options:

(a) Subject to rule 27 of the Procedure Rules, he could have decided the appeal himself without giving further directions. As I explain at paragraph 80 below, that was a real possibility in this case.

(b) Alternatively, as the claimant had not requested a hearing of the appeal, the judge could have directed that the appeal be listed for a decision without a hearing on another occasion.

(c) He could also have directed that there be a hearing of the appeal. If the claimant then failed to attend that hearing, the Tribunal could have exercised its powers under rule 31 to proceed in the claimant’s absence.

However, instead of choosing any of those options, the judge took a course that was likely to ensure that the appeal would be struck out with no proper consideration of the issues.

57 The First-tier Tribunal’s jurisdiction in relation to social security appeals is inquisitorial. When it is seised of an appeal, its primary duty is to decide that appeal on its merits. That is because giving a decision on the merits is usually the fairest and most just way of disposing of the proceedings. It is implicit in the requirement to seek to give effect to the overriding objective when exercising the power to strike out that that power should only be used in cases where striking out is a fairer, or more just, way of dealing with the appeal than giving a substantive decision.

58 The fact that the Tribunal’s jurisdiction is inquisitorial means that the issues in a social security appeal are likely to be less clearly defined than they would be in adversarial proceedings. There are no pleadings and the Tribunal exercises an “enabling role”. What that means is that claimants are entitled to rely upon the special expertise of the Tribunal to ensure that the law is correctly applied to the facts of their case even if they themselves do not raise all the issues which arise from the evidence (see the decision of the Court of Appeal of Northern Ireland in Mongan v Department of Social Development [2005] NICA 16 (reported as R 4/01(IS)) and endorsed by the Court of Appeal of England and Wales in Hooper v Secretary of State for Work and Pensions

[2007] EWCA Civ 495

at paragraphs 25-28).

59 Given the complexity of the social security system, a just outcome would be impossible in many appeals if the Tribunal did not perform that role. Its existence is often cited as a reason why it is not necessary to extend legal aid to social security appeals ( e.g., Tribunals for Users: One System, One Service , the report of the review of tribunals by Sir Andrew Leggatt, The Stationery Office, London, 2001).

60 The fact that claimants may rely upon the Tribunal’s enabling role means that they are permitted to use the appellate process to ask the Tribunal to check whether a decision about their benefits is correct. Claimants will often, and understandably, be unaware of the detailed rules about entitlement to benefits and the respondent’s decision-making procedures. They will often be unable to identify with any precision why they believe a decision is wrong. Rule 23(6)(e) of the Procedure Rules requires that an appeal should state the grounds on which the appellant relies, so claimants must give the best explanation they can, but, once they have done so, the rules do not require them to participate any further in the process unless the Tribunal so directs.

61 So if a claimant sets out his or her case in the notice of appeal and then waits for the Tribunal to give its decision, that is a legitimate use of the Tribunal’s procedures—and, in particular, its enabling role—not a basis for striking out the appeal. A claimant who does so is not misusing those procedures in the same way as claimants in adversarial proceedings misuse the procedures of a court if they commence proceedings and then do not pursue them.

62 A further aspect of the Tribunal’s inquisitorial jurisdiction in social security appeals is that the role of the respondent is not adverse to the claimant (see Diplock J. (as he then was) in R. v Medical Appeal Tribunal (North Midland Region), ex parte Hubble

[1958] 2 QB 228

at 240 as approved by the House of Lords in Kerr v Department of Social Development ,

[2004] UKHL 23

(also reported as R 1/04 (SF)) at para.61). That is so whether the respondent is the Secretary of State, HM Revenue & Customs or a local authority.

63 Entitlement to social security benefits is conferred by Parliament as a matter of right on claimants who satisfy the conditions of entitlement. The authorities that administer those benefits must do their best to ensure that such claimants receive their proper entitlement. If they do not do so, the purpose of the legislation conferring the right to benefit is frustrated as much as it is if benefits are awarded to those who are not entitled to them. The role of a respondent to a social security appeal is therefore to help the Tribunal arrive at the correct decision. There is no legitimate interest in the maintenance of the decision under appeal if that decision is incorrect and usually no unfairness, or injustice, to the respondent if the First-tier Tribunal checks that the decision is correct rather than striking out the appeal without consideration of the issues.

64 For those reasons, the circumstances in which striking out a social security appeal under rule 8(1) or 8(3)(a) is justified will be exceptional.

65 It might be argued that such an approach to rules 8(1) and (3)(a) deprives them of any practical effect. That would not be correct. To begin with, those rules do not only apply to social security appeals. They also apply in child support, asylum support and criminal injuries compensation cases. Child support appeals, in particular, raise different issues because, although the interest of the Secretary of State will not be adverse to that of the parents, the interest of each parent will often be adverse to the interest of the other.

66 Even in social security appeals there will be exceptional cases in which striking out under rules 8(1) or (3)(a) may be appropriate. I am reluctant to provide concrete examples because to do so would be to risk being misunderstood as laying down a rule that such appeals must always be struck out, rather than suggesting circumstances in which it might be appropriate to do so. I will, however, suggest some considerations that might be relevant in identifying some such cases.

67 Although it is usually legitimate for claimants to state their case and await the Tribunal’s decision, that situation changes if the Tribunal issues a direction which requires them to take action. At that point, the duties in rule 2(4) to help the Tribunal to further the overriding objective and to co-operate with the Tribunal generally are activated. When the Tribunal directs a party to do something, then—unless and until the direction is amended, suspended or set aside under rule 5(2)—that party is under a legal obligation to do it.

68 The reality, however, is that many directions addressed to claimants are not satisfied. The Tribunal then has to decide how to proceed. That decision will depend upon all the circumstances of the case but, in particular, it will be relevant to consider why the direction was given in the first place and whether the Tribunal can still make a fair and just decision on the substantive issues.

69 The answer to that latter question will usually be yes:

(a) Directions to claimants in social security appeals are normally given in the exercise of the Tribunal’s enabling role and are intended to assist them to put their case to its best advantage by, for example, identifying relevant evidence that they may possess but have overlooked. Claimants who fail to comply with such directions prejudice no-one but themselves. It will usually still be possible for the Tribunal to give a decision on the merits, particularly as the claimant’s failure to comply with the direction will normally amount to a failure to play his or her part in the “co-operative process of investigation” described in Kerr (at paragraph 62) and will therefore provide a basis for resolving any issue on which the Tribunal remains ignorant against the claimant. If so, the overriding objective is better served by waiving the claimant’s failure to comply with the direction under rule 7(2)(a) and deciding the appeal on the merits.

(b) It may be asked why it is fairer and more just to decide an appeal against a claimant by applying the burden of proof than it is to strike the appeal out. The answer is that before the former course is taken, the Tribunal must consider the evidence and the issues in full, whereas the purpose of the latter course is to bring the appeal to an end without any such consideration. In some cases, full consideration of the evidence and issues will lead to the conclusion that the claimant is entitled to succeed even though he or she is in breach of the Tribunal’s directions.

70 However, the answer to whether the Tribunal can still make a fair and just decision on the substantive issues when a claimant has failed to comply with a direction will sometimes be no. Such a failure may sometimes impede the Tribunal’s ability to check whether the decision under appeal is correct by making it unfairly difficult for the respondent to respond.

71 I have said above that respondents have no legitimate interest in the maintenance of an incorrect decision. They do, however, have a legitimate interest in the maintenance of correct decisions and are entitled to seek to persuade the Tribunal that the decisions they have made are indeed correct. There will be occasions—usually where the claimant is advancing a positive case in support of the appeal, rather than simply relying upon the Tribunal’s enabling role—where a claimant’s failure or refusal to give a detailed explanation of that case in advance will unfairly prejudice the response but in which it will not be possible to apply the Kerr principles because what has not been supplied is particulars of the claimant’s legal arguments rather than evidence of factual matters. In such cases, it may be sometimes be appropriate to conclude that it is not fair and just for a claimant who—having been warned of the consequences—will not comply with the Tribunal’s procedures to be permitted to take advantage of those procedures in circumstances that place a disproportionate burden on the respondent.

72 I emphasise that I am not saying that the circumstances outlined in paragraph 71 above are the only circumstances in which, exceptionally, a social security appeal may be struck out under rules 8(1) and (3)(a). It is in the nature of exceptional cases that one cannot always identify in advance how they will arise. Rather, the discussion is intended to demonstrate that what I say at paragraphs 57 to 64 above does not deprive rules 8(1) and (3)(a) of all effect.

The Direction

73 As there will be some exceptional cases in which social security appeals may properly be struck out under rules 8(1) or (3)(a), it is necessary to consider whether this appeal is one of them.

74 In my judgment, the following considerations establish that it is not.

75 First, and importantly, the claimant was under a legal duty to comply with the Direction, despite the very short time he was given. He should have done so. However, neither the failure to comply with the Direction nor the omission to return the enquiry form prevented the Tribunal from making a fair and just decision on the merits of the appeal or prejudiced Kettering in any way.

76 Second, the Direction did not serve any practical purpose. It did not require the claimant to complete the enquiry form, which would at least have given the Tribunals Service information that would have assisted with the administration of the appeal. Rather, it directed that the claimant should notify the Tribunals Service whether or not he wished to continue with the appeal. It is not clear why that information was needed. The claimant had made a valid appeal against Kettering’s decision. He had been given two opportunities to withdraw that appeal by ticking the relevant boxes on the enquiry form and the reminder letter. He had not availed himself of either opportunity. There was no particular reason for supposing that he did not wish to continue with his appeal.

77 Third, the claimant had not previously been directed by a judge to provide that information. He had merely been asked for it by an administrator. If the judge was unclear about whether the claimant wished to proceed, he could simply have directed the claimant to provide the information. It was premature to have directed that the appeal would be struck out if he failed to do so and, particularly, to have directed that it should automatically be struck out without further judicial process.

78 Fourth, the Direction did not promote the overriding objective. It ignored the flexible options (set out at paragraph 56 above) that were available to the Tribunal to do justice. Instead, it imposed an inflexible rule that the claimant should positively say that he wished to continue with an appeal that had been validly made before he would be permitted to exercise his legal right to pursue that appeal. It threatened him with consequences that were wholly disproportionate if he failed to provide that information. That was contrary to the Tribunal’s obligation to seek flexibility in the proceedings (rule 2(2)(b)). It tended to have the effect that the claimant was unable to participate in the proceedings whereas the overriding objective required the judge to ensure so far as practicable that the claimant was able to participate fully (rule 2(2)(c)). It tended to have the effect that the Tribunal’s special expertise could not be used at all, let alone effectively (rule 2(2)(d)). It tended to ensure that there was no consideration of the issues, rather than the proper consideration of the issues contemplated by rule 2(2)(e).

79 The only aspect of the overriding objective which was promoted by the directions given on 15 September 2009 was the avoidance of delay. However, rule 2(2)(e) provides that the avoidance of delay is only part of the overriding objective to the extent that it is compatible with the proper consideration of the issues and the Direction wrongly promoted the former at the expense of the latter.

80 Fifth, the Direction appears to have been given without any reference at all to the merits of the appeal:

(a) Kettering presented the appeal to the Tribunal on the basis that it was against the decision dated 9 June 2009 but the briefest consideration of the papers would have shown that that was not the case. The decision taken on 9 June 2009 was a refusal to revise the decision made on 14 April 2009 against which the claimant had appealed on 29 April. The appeal could not have been against the later decision because there is no right of appeal against a decision that revises, or refuses to revise, an earlier decision.

(b) As the appeal was against the original decision, changes in circumstance that occurred after 14 April 2009 could not be taken into account.

(c) The appeal was therefore against a decision which drew an inference that the claimant was not entitled to CTB from the fact that he had not provided information at a time when the period prescribed by law for providing that information had not expired. Had the judge wished to avoid delay in the disposition of the appeal, he could have decided on 15 September 2009 to allow it, and to set Kettering’s decision aside as improperly made, but not to substitute a decision of his own. The effect would have been to re-open the claim and allow Kettering to make a fresh decision on the evidence that had subsequently become available.

81 I do not say that the judge had to take that course: it is not the course I have taken myself. However, on the information that was available to the judge on 15 September 2009, this was an appeal that had strong prospects of success. Striking out an appeal that is likely to succeed is a greater injustice than would be the case if it were likely to fail, so that the appeal’s prospects of success are always a factor to be taken into account when applying the overriding objective. It was neither fair nor just for the judge in this case to have given directions that were likely to lead to the appeal’s being struck out in the future, when it was within his power to have allowed it there and then.

82 Sixth, as the judge should have appreciated, it was unlikely that the Tribunals Service would issue the Direction on the day he gave it. In those circumstances, the risk of injustice in setting the time limit to run from the date when the Direction was given rather than the date on which it was issued should have been obvious. The Tribunals Service routinely uses second class post. It would not have been at all surprising if the appeal had been struck out before the claimant even received the Direction.

83 Seventh, the notes to the Direction anticipate that the claimant might wish to seek advice about the directions that had been given. However, the effect of the Direction was that the claimant would have to obtain any such advice within 14 days. That period did not begin when the claimant received the Direction. It did not even begin when the Tribunals Service posted the Direction to him. It began when the Direction was given. The idea that a claimant might be able to obtain advice within such a timescale involves an over-optimistic view of the pressures on welfare rights organisations, Citizens Advice Bureaux and Law Centres and the ease with which members of the public are able to obtain help from those organisations.

84 Finally, the particular form of striking out adopted by the judge has led directly to the jurisdictional error that requires me to set the Tribunal’s decision aside. The Direction provided for the proceedings to be struck out automatically without further order under rule 8(1) rather than for the question of striking out to receive further judicial consideration under rule 8(3)(a).

85 The problem inherent in that approach is that, in the absence of a further order, it is often difficult to tell whether a direction has been satisfied and, if so whether it has been satisfied within the time limit. In this case, the approach had the effect that the Tribunals Service failed to appreciate that the proceedings had become struck out and that it was therefore necessary to refer the appeal back for possible reinstatement once the completed enquiry form had been received.

86 For all those reasons, this is not one of the exceptional social security cases in which it was proper to exercise the power to strike out proceedings. On the contrary, it is an egregious example of the incorrect exercise of that power.

87 I have therefore reinstated the appeal to the First-tier Tribunal on the basis that the direction that led to its being struck out should never have been given in the first place.

Reasons for allowing the appeal to the First-tier Tribunal

88 I have allowed the appeal to the First-tier Tribunal and set aside Kettering’s decision because the law did not permit Kettering to reach that decision without waiting for the expiry of the one month time limit.

89 I have substituted my own decision that Nos. 9 and 10 form a single dwelling for the purposes of calculating the claimant’s entitlement to council tax benefit for the reasons given in CH/2043/2011 .