RS v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 1: mobilising unaided) [2014] UKUT 203 (AAC)

UKUT-AAC
RS v Secretary of State for Work and Pensions (ESA) (Employment and support allowance : Post 28.3.11. WCA activity 1: mobilising unaided)
[2014] UKUT 203 (AAC) · 2014-05-02
[1]I had thought until Upper Tribunal Judge Rowland’s decision in MC –v- SSWP (ESA) [2014] UKUT 0125 (AAC) that resolution of this appeal was likely to involve grappling with and determining two issues relating to the First-tier Tribunal’s powers to admit late appeals from decisions of the respondent. These issues are:(i) whether a decision not to extend time so as to admit a late appeal is (a) a decision to strike out the proceedings on the basis that the tribunal has no jurisdiction under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the TPR”), or (b) a decision the effect of which is that no proceedings have begun and therefore there is nothing to strike out; and(ii) if the answer to the first point is (b), whether the decision not to extend time to allow the appeal to be admitted is a decision against which an appeal lies to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007.[2]An important practical consideration that lay behind the above issues is that it appears from cases coming before the Upper Tribunal that the First-tier Tribunal (Social Entitlement Chamber) is giving different answers to these questions with consequent different effects on a claimant’s (in most cases) right of redress. In some cases the First-tier Tribunal is treating the decision not to admit the late appeal as a strike out decision under rule 8 of the TPR, giving reasons for that decision when asked and then deciding whether to give permission to appeal to the Upper Tribunal (when asked) against the strike out decision. In other cases, however, the First-tier Tribunal is seemingly taking the view (and this case would seem to be such an example), that as the appeal is not admitted there are no proceedings to strike out. This perspective also seems to carry with it the view that the decision not to admit the appeal is not one which attracts the right to reasons for the decision (because the decision did not dispose of the proceedings, it simply confirmed there were no proceedings in the first place to dispose of, the proceedings not having been admitted), nor is it a decision against which an appeal may lie to the Upper Tribunal.[3]To understand why I thought these issues arose in this case, and also to explain why they now do not here arise for determination, it is first necessary to set out the relevant facts. Relevant Factual Background[4]The decision considered to be under appeal to the First-tier Tribunal (“the tribunal”) was notified to the appellant on 27 January 2012. The appeal was lodged against this decision on 21 February 2013, so just within the maximum 13 month time period for appealing.[5]The decision of 27 January 2012 was a decision which had converted the appellant’s award of incapacity benefit to an award of contributory employment and support allowance (“ESA”) on the basis that she had limited capability for work. However by that same decision it was found that the appellant did not have limited capability for work related-activity (i.e. she didn’t go into the “support” group). The consequences for the future of the appellant not being placed in the support group in terms of her entitlement to contributory ESA were not, and could not have been, known by her at the time. However, from 1 May 2012 amendments were made to the Welfare Reform Act 2007 by the insertions of sections 1A and 1B into that Act which had the effect that a person not in the support group would lose their entitlement to contributory ESA after 365 days.[6]What led the appellant to seek to make her appeal of 21 February 2013 was a letter issued to her on 13 February 2013 in which she was informed that her entitlement to contributory ESA had ended on 13 February 2013 after 365 days (i.e. under the change in the law referred to above).[7]It is not entirely clear why that letter of appeal was not also treated as an appeal against that 13 February 2013 decision. The likely explanation is that prior to the MC decision above, which was decided on 17 March 2014, the common view seems to have been that although an appeal did lie against the decision stopping the contributory ESA after 365 days, the appeal was limited to whether the 365 days had in fact expired and could not encompass whether as at that decision date the person came within the support group. Accordingly, arguments as to whether the person came within the support group had to be raised by way of, usually, a late appeal against the last limited capability for work decision, which in this case was seen as being the 27 January 2012 decision. The MC decision, however, changes this premise.[8]However, as an appeal against the 27 January 2012 decision, the appeal of 21 February 2013 was rightly treated as a late appeal; albeit one within the maximum 13 month time limit for appealing. The Secretary of State on 6 March 2013 said that “ the reasons for lateness are not deemed as wholly exceptional and as a result it has not been supported by the Decision Maker ”. The appeal was therefore referred to the First-tier Tribunal to determine whether the appeal could be accepted as duly made.[9]On 22 April 2013 a District Tribunal Judge made directions on the late appeal in which she asked the appellant to “ send to the Tribunal any comments for the Tribunal to take into account when deciding whether this appeal is late and should not be allowed to proceed. The appellant should deal with the lateness of the appeal, rather than with its substantive merits ”. This the appellant did, in a letter received by the First-tier Tribunal on 7 May 2013. That led to the decision now under appeal to the Upper Tribunal.[10]In the decision, dated 10 May 2013, District Tribunal Judge Taylor said that information (about the above change in the law) was available to the appellant had she sought it; that given the very long delay in appealing there would have to be very compelling reasons why it was late; and that no such reasons existed in the appellant’s case. Judge Taylor referred to the appellant’s ability to have her circumstances reviewed. Although it is not entirely clear what he meant here, I assume by this Judge Taylor meant pursuant to section 1B of the Welfare Reform Act 2007. If that led to a negative decision then the appellant could appeal that decision, but “ [u]ntil then the appeal is not admitted ”. The decision was issued to the parties on 18 May 2013.[11]Those acting for the appellant then applied to the First-tier Tribunal on 3 June 2013 for permission to appeal to the Upper Tribunal. The grounds addressed(i) whether the appellant was aware of the change in the law, and(ii) the merits of her meeting the mobilising descriptor in Schedule 3 to the ESA Regs.[12]This application led Judge Taylor on 7 June 2013 to direct the appellant’s representative to “ supply the authority for the right to appeal ” and added “ [i]f the appeal is not admitted there is no appeal. Without such there is no decision “disposing of the appeal” and thus no right of appeal to the Upper Tribunal ”.[13]The representative, it seems, did not reply to Judge Taylor, but instead on 2 July 2013 lodged an application for permission to appeal with the Upper Tribunal against the decision of 10 May 2013. The representative treated Judge Taylor’s directions of 7 June 2013 as a decision refusing permission to appeal. I doubt that is what Judge Taylor considered he was doing, but in my grant of permission to appeal I waived the relevant procedural requirements relating to valid applications for permission to appeal made to the Upper Tribunal, and no issue now turns on this.[14]The directions of Judge Taylor set out in paragraph 12 above encapsulate well the two issues which I initially thought this decision may need to determine. The Late Appeal Issues[15]In giving permission to appeal on 22 October 2013 I raised the following concerning late appeals. “ Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 provides that, subject to permission having been obtained (s.11(3)), there is a right of appeal on a point of law from a decision made by the First-tier Tribunal, other than an excluded decision. A decision not to admit a late appeal is not an excluded decision. In LS –v- Lambeth (HB) [2011] AACR 27 a Three-Judge Panel of the Upper Tribunal accepted that the word “decision” in s.11(1) should be read broadly and encompassed a decision not to admit a late appeal. Does that reasoning apply here? In LS it was conceded by all the parties that the decision not to admit the late appeal was a strike out decision under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “TPR”), and so that aspect of the decision-making may not have been subject to full scrutiny. On the other hand, given the proper characterisation of the not admit “decision” was crucial to whether the remedy was appeal or judicial review in LS , and given the Upper Tribunal’s inquisitorial jurisdiction, it may be less easy to read LS as being based on a wrong premise. However, does Judge Taylor’s view that as there is no decision disposing of the appeal there can be no appeal to the Upper Tribunal have any merit? Section 11 does not limit the right of appeal to the Upper Tribunal to decisions made by the First-tier Tribunal on appeals , but can that limitation be implied by reference to the First-tier Tribunal’s powers? The right of appeal to the First-tier Tribunal against the 27 January 2012 decision arose under section 12(1) of the Social Security Act 1998, subject to time limits (per section 12(7)a) of that 1998 Act. However, nothing in or made under any Act of Parliament sets out or limits what decisions a First-tier Tribunal is authorised to make on such appeals: see paragraph 12 of R(IB)02/04 . But does there not have to be an appeal to be decided (see section 12(8) of the 1998 Act), and does that mean that if the appeal is not admitted there is no appeal for the First-tier Tribunal to decide? On the other hand, which body decides whether to admit the appeal if not the First-tier Tribunal and where does that body get its powers from? Is it not implicit in the First-tier Tribunal deciding an appeal that it may have to decide whether it is an (in-time) appeal in the first place; that is, whether it has jurisdiction? At the relevant time an appeal was begun by the appellant sending the appeal to the Secretary of State’s decision maker: per rule 23 of the TPR. Importantly perhaps, what rule 23(2) of the TPR speaks of is the appellant start[ing] proceedings by sending or delivering a notice of appeal to the decision maker within the time specified in Schedule 1 to the TPR. Under rule 23(3) of the TPR if the appellant provides the notice of appeal to the decision maker late (but within the maximum 13 month period), the notice of appeal must explain the lateness. At the relevant time there was nothing in rule 23 of the TPR directing what was to be done by the First-tier Tribunal if the appeal was made late but within the maximum 13 month period. (Under rule 22(6) of the TPR (which governs appeals made directly to First-tier Tribunal), if the appeal is made late and the First-tier Tribunal does not extend time, the “ Tribunal must not admit the appeal ”. Does this wording make any difference? Is such a decision not a decision of a First-tier Tribunal on an appeal?) Do the proceedings start under rule 23(2) of the TPR only if the notice of appeal is sent or delivered so that it is received within the time specified in Schedule 1 to the TPR or do the proceeding begin once a late appeal is delivered to the decision maker with the reasons why it was not made in time? This is perhaps a crucial point because the strike out provisions in rule 8 to the TPR apply only to “proceedings”. An in-time appeal plainly amounts to “proceedings” under rule 23(2) but so to, presumably, must a late appeal where time has been extended under rule 5(3)(a) of the TPR. But does that mean that until that decision is made the proceedings have not begun? The answer these questions may affect not only the more fundamental issue of whether the decision not to extend time is an appealable decision at all, but also, for example, whether to hold a hearing before making a decision which disposes of the proceedings (per rule 27(1) of the TPR), whether a decision notice need be provided which disposes of all the issue in the proceedings (rule 33(2)), and whether a written statement of the reasons for the decision which disposes of the proceedings need be provided (rule 34), as well as the set aside rule (rule 37) and applications for permission to appeal (rule 38). In other words, if there are no proceeding under the TPR because none have been started in accordance with rule 23(2) of the TPR, does the decision not to extend time for the late appeal stand outwith the decision-making parts of the TPR? More importantly, perhaps, if the proceedings have not begun (because time has not been extended) does that mean there is no “decision” of a First-tier Tribunal on an appeal under section 12 of the Social Security Act 1998 to which section 11(1) of the Tribunals, Courts and Enforcement Act 2007 may apply? If the answer to this question is yes then that may suggest that LS –v- Lambeth proceeded on a wrong premise and, at least in refusal to admit late appeal decisions, there may be a category of decision that does not fall within section 11(1) of the Tribunals, Courts and Enforcement Act 2007. These are important issues. They are also potentially of wider significance given that the scope of section 11(1) and the word “decision” is relevant to appeals from all First-tier Tribunals (e.g. in asylum and immigration). It will therefore assist the Upper Tribunal if the Secretary of State is able to inform it of any relevant case-law from any Chamber of the Upper Tribunal (or the High Court or Court of Appeal), that addresses the issue of the status of the decision of the First-tier Tribunal not to extend time in respect of a late appeal. In terms of remedy, if there is no s.11 right of appeal in this case then the application may need to be addressed as an application for judicial review. The parties are asked to comment on the application being so treated and permission to seek judicial review being given if this is not a s.11 appeal. ”[16]As none of these issues now need to be decided on this appeal, for the reasons given below, I should say as little as possible on them. However, I should in fairness record the Secretary of State’s submission, not dissented from by those acting for the appellant, that a decision not to admit a late appeal is “decision” of a First-tier Tribunal under s.11 of the Tribunals, Courts and Enforcement Act 2007, whether or not it is a strike out decision that disposes of the proceedings and so would call for a statement of reasons to be provided (if requested) under the TPR.[17]Dealing with the narrower issue of whether the decision not to admit a late appeal is a strike out decision under rule 8 of the TPR, I merely record, without deciding anything, that in paragraph 27 of CM –v- Surrey County Council (SEN) [2014 UKUT 0004 (AAC), in the context of the very similar First-tier Tribunal Procedure Rules concerning the Health, Education and Social Care Chamber, Upper Tribunal Judge Ward was inclined to the view (although he had not received argument on the point) “ that the better view is that an application [to admit a late appeal] which is not admitted does not make it to the stage of being “proceedings” at all [under the HESC Tribunal Procedure Rules] ”. Similarly, in GIA/2710/2010 Upper Tribunal Judge Lloyd-Davies concluded, in a somewhat (but arguably not materially) different context, that:
“ ‘proceedings’ do not become constituted before the First-tier Tribunal unless they are either timeously issued or an appropriate extension of time is granted. A decision on the question of whether or not to extend time to permit an appeal to be brought is not a decision which disposes of proceedings: rather it is a decision which determines whether or not proceedings, in the substantive sense, can be commenced (see also rule 22(1) which refers to the notice of appeal starting proceedings). ”
[18]Neither of these issues, however, now needs to be decided in this appeal. I turn to explain why that is the case. The effect of MC - no late appeal[19]Reverting to the narrative above, there were two decisions in play: the first dated 27 January 2012; the second dated 13 February 2013. Manifestly, the appeal of 21 February 2013 was an in-time appeal against the second of those decisions, and so called for no adjudication on whether it ought to be admitted, if(i) it could be construed as an appeal against that second decision, and(ii) on such an appeal the appellant could argue that she came within the support group. If both of these apply, a third consideration is whether the appellant could usefully obtain anything further by also being able to appeal the first decision.[20]Taking the last point first, Ms Lewis at the hearing before me advised me that due to the transitional protection afforded to the appellant at the time of the conversion decision in January 2012 she would not in fact have received any more in terms of her weekly ESA payment had she met the support group criteria as at the conversion date. The vice for her was losing her contributory ESA after 365 because she was not in the support group. Therefore, a complete remedy for her was to be able to argue in an appeal against the 13 February 2013 decision that she at that date satisfied the support group criteria, which if successful would carry with it the consequence that her contributory ESA ought not to have stopped on that date.[21]The answer to whether the appellant can argue on appeal against the 13 February 2013 that her contribution based ESA should not stop because as at that date she met the support criteria is now provided by MC . The answer in short is “Yes”.

Judge Rowland addressed this issue in paragraphs 35-41 of his decision in MC , and concluded:

“ I am therefore satisfied that, not only did the claimants in these cases have a right of appeal against the decisions to terminate their awards of employment and support allowance, but they also were entitled to argue in those appeals that the awards should be extended on the ground that, at the date on which the Secretary of State’s decision was, or could have been, effective, they had limited capability for work-related activity so that the awards should have been superseded in their favour rather than to their detriment.”
I agree with and respectfully endorse this conclusion and the reasoning that led to it. I pressed Mr Cooper whether the Secretary of State also now accepted this conclusion or whether he may wish to appeal MC . I did so because if an appeal was to be made against MC then my deciding this appeal based on Judge Rowland’s decision, and therefore not deciding the issues concerning an appeal against the 27 January 2012, could provide the appellant with a result of no real substance. Mr Cooper however advised me that he had taken instructions on this matter and that the Secretary of State was now content with the conclusion reached in MC and would not be seeking to appeal it.[22]That then leaves whether such an appeal was made and whether the District Tribunal Judge erred in law his decision of 10 May 2013. The two issues are closely related.[23]The appeal letter is on pages 3-4 of the Upper Tribunal’s bundle. It is poorly photocopied but as far as I can see reads as follows:
“ I was on long-term incapacity benefit which then changed to ESA. I had a medical assessment at Rotherham Job Centre. In March last year I was led to believe that I was in the support group as I have never heard anything since then, until Saturday the 16 th February when I received a letter saying that I had had ESA for 365 days and my benefit was then stopped on Wednesday 13 th February. I then contacted the helpline number on the letter and found out I was in the work-related activity group and there was nothing they could do about it as you are only allowed it by law for 365 days. I then looked it up in the internet and contacted my local M.P’s office and both informed me that by law I should have attended a few work-focused interviews and failure to do so could result in some or total loss benefit. I was never asked to attend these, and I feel that if I had been asked to come to a few work-related interviews you would have found out that the illness I suffer and how if affects my day to day living makes it that I cannot possibly work or hold down a job. I had a very well paid job before becoming ill and due to the illness I could not hold that job down. Also the medication I am taking doesn’t help as I cannot take it at work due to the nature of the medication (morphine). So I feel that if I had been called in for a few-work-related interviews you would have seen all this and if needed provided you with evidence….and you would have transferred me to the support group whilst still in receipt of benefit and as this did not happen my family and my health will suffer greatly because of the non-receipt of benefit which will affect us greatly as we don’t see any of my husband’s wages as they keep a roof over our head and pay the bills. My disability pays for me to be able to get about…we have no spare money at all as the ESA I was getting paid for food. So as you can understand it is causing a great deal of worry so I implore you to resolve this matter as promptly as possible. ”
[24]I can well understand why prior to MC this letter was read as being an appeal against the 27 January 2012 decision only. The appellant’s sole concern was the loss of her contributory ESA and the sole appeal route it was then thought that was available to her to stop that loss was by appealing the 27 January 2012 decision and arguing she was met the support group criteria as at that date. However, in the light of MC an alternative or additional route of challenge lay, and lies, against the 13 February 2013 decision. Moreover, the effect of MC is to declare the law as it always should have been. Accordingly, the question then becomes whether looking at the above appeal letter it also constitutes an appeal against the 13 February 2013 decision. In my judgment it does. It nowhere says it only wishes to appeal the 27 January 2012 decision. What it is seeking to put right is the loss of the contributory ESA from 13 February 2103, which can be put right by challenging the decision of that date.[25]Moreover, and just as importantly in terms of my jurisdiction, the declaratory effect of MC also affects Judge Taylor’s decision of 10 May 2013. It seems to me that that decision arguably cannot be impugned in respect of its deciding not to extend time for appealing the 27 January 2012 decision. However, in the light of MC , in my judgment the decision is erroneous in material point of law for failing to consider and address whether the appeal letter was also an appeal against the 13 February 2013 decision. That error of law is sufficient for the decision of 10 May 2013 to be set aside.[26]In the light of the above I remake that decision to the extent of deciding that the letter of 21 February 2013 is a valid and in-time appeal against the Secretary of State’s decision of 13 February 2013. On that appeal the appellant will be able to argue that as at 13 February 2013, or any earlier, date she came within the support group. The fact that the appellant has been found to meet this criteria and her contributory ESA has been restored to her from 14 August 2013 may have a bearing on this argument.[27]In these circumstances, I can see no useful purpose in my seeking to decide in this appeal the ‘late appeal’ issues identified at the start of this decision. ( Signed) S. M. Wright Judge of the Upper Tribunal Dated 2 nd May 2014

Cited in 2 later judgments