CO v London Borough of Havering (CH) [2015] UKUT 28 (AAC)

UKUT-AAC
CO v London Borough of Havering (CH)
[2015] UKUT 28 (AAC) · 2015-01-19
[1]The interlocutory decision of the Basildon First-tier Tribunal dated 11 February 2013 under file reference SC919/11/04702 involves an error on a point of law. The First-tier Tribunal's decision dated 11 February 2013 is therefore set aside. The Upper Tribunal remakes the decision in the following terms:
“The claimant’s appeal to the First-tier Tribunal against the local authority’s decision dated 11 May 2010 is not out of jurisdiction. The claimant’s appeal dated 28 February 2011 and received by the local authority on 3 March 2011 was duly made within the terms of rule 23(6). The claimant’s appeal was late but within the 13-month absolute time limit. Time is extended under rule 5(3)(a) so as to admit the appeal. The local authority’s application for the appeal to be struck out is therefore dismissed. The local authority is directed to prepare a submission on its substantive decision made on 11 May 2010 and to send a copy to the HMCTS Birmingham office within 6 weeks of the date that this decision is issued to the parties by the Upper Tribunal office.”
The legal issue that arises in this case is whether the claimant’s original appeal was duly made. In particular, rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685; “the SEC Rules”) requires (amongst other matters) that a notice of appeal “must be signed by the appellant”.[2]In the present case the claimant’s solicitor had signed the letter of appeal. The local authority decided the appeal had not been properly made. By the time the local authority received the claimant’s personally signed letter of appeal, it was outside the maximum 13-month time limit for appeals. The First-tier Tribunal (“the Tribunal”) struck out the appeal as out of jurisdiction.

Summary of the Upper Tribunal’s decision

[3]I allow the claimant’s appeal to the Upper Tribunal. This is because there are legal errors in the Tribunal’s decision. I therefore set aside the First-tier Tribunal’s decision. I substitute my own decision to the effect that the claimant’s appeal was not outside the 13 month absolute time limit. Although the solicitor’s letter of appeal was outside the standard 1 month time limit, I extend time so as to admit the late appeal. On the papers before me I am not able to decide the substantive appeal, and so a new Tribunal will need to do so.

The background to this appeal

[4]The claimant was in receipt of income support (paid by the DWP) and housing benefit (paid by the local authority) as a lone parent. At some point in early 2010 the DWP decided she was living with her partner and they had more than £16,000 in capital. On 23 June 2010 the DWP decided that she was liable to repay a recoverable overpayment amounting to £7,859.15 for the period from 23 July 2007 to 5 January 2010.[5]The local authority took action in parallel. On 11 May 2010 the local authority decided that the claimant was not entitled to housing benefit for the period from 17 October 2008 to 16 November 2009 and was liable to repay £10,459.36 in housing benefit and £1,216.84 in council tax benefit.[6]The DWP and the local authority also took criminal proceedings against the claimant. However, on 29 October 2010 the prosecution withdrew the charges.[7]On 28 February 2011 the claimant’s solicitors sent a 2-page letter of appeal to the local authority. It began by stating “We refer to our above-named client who has instructed us in relation to her appeal against a decision on her entitlement to housing benefit and council tax benefit”. It then referred to a decision dated 16 April 2010. However, the local authority apparently made no decision on that date, and there is no dispute that the letter was in effect challenging the decision of 11 May 2010. The letter continued by setting out details of the grounds of appeal. It noted that the appeal was outside the 1-month time limit but within the absolute time limit. It concluded by stating “A copy of this letter has been sent to our client to sign and forward to your offices”.[8]The claimant says that she did exactly as requested by her solicitors. The local authority says that at that time it did not receive any such letter of appeal counter-signed by the claimant.[9]On 9 March 2011 the local authority wrote to the claimant’s solicitors stating that the appeal had not been duly made, explaining that it needed to be signed personally by the claimant.[10]On 25 August 2011 the claimant’s solicitors wrote to the local authority, reporting that the claimant had already returned her signed copy of the appeal letter.[11]On 1 September 2011 the local authority again wrote to the claimant’s solicitors, stating that it had still yet to receive the counter-signed appeal letter.[12]On 14 September 2011 the claimant herself wrote to the local authority, enclosing a signed copy, but explaining that she had already returned her signed copy of the appeal letter and asking for an extension of time as her earlier letter must have got lost in the post.

The claimant’s appeal to the First-tier Tribunal

[13]On 19 October 2011 the local authority referred the claimant’s appeal to the Tribunal, arguing that the claimant’s signed appeal letter of 14 September 2011 was outside the absolute 13-month time limit for appeals (SEC Rules, rule 23(5), (8) and Schedule 1). The local authority’s written submission to the Tribunal, which dealt solely with the issue of the out-of-time appeal, asked that the appeal be struck out.[14]Nothing very much happened for the best part of a year. Of course, the Tribunal was at this time experiencing a very high volume of appeals.[15]On 7 January 2013 the Tribunal administration listed the case for a hearing to take place on 11 February 2013. The local authority representative but not the claimant attended. She says she received no notification of the hearing – and indeed there appears to be no record on the GAPS system that she was duly notified of the hearing date. This would, in itself, be a potential ground of appeal but I need not explore the issue further given my findings below. In its Decision Notice the Tribunal stated that it had decided not to adjourn, that the appeal had not been duly made under rule 23(6) and was struck out; in addition, the local authority’s decision of 11 May 2010 was confirmed. A request for a statement of reasons was refused as it was made late.

The proceedings in the Upper Tribunal

[16]I gave the claimant permission to appeal for three reasons. First, it appeared that a letter the claimant had sent the Tribunal had not been copied to the main file and the parties (although it had been received and added to the Tribunal’s administrative file). Second, it was arguable the Tribunal had erred in law by “confirming” the local authority’s decision of 11 May 2010, given that it had already decided the appeal was out of jurisdiction and should be struck out. Third, it was arguable that the Tribunal had erred in law in its approach to rule 23(6) of the SEC Rules.[17]In the event I only need to deal with the third of these grounds.[18]The claimant’s case, quite simply, is that she did exactly as she had been asked to do by her solicitors and had returned the counter-signed copy of the appeal letter by first class mail in March 2011. She states that “there is no reason why I should lie about returning the letter because all it needed was my signature”.[19]The local authority’s position on this third ground is as follows:
“The Local Authority believes that the appeal was not duly made until it was signed by the appellant and this was not until 14th September 2011, there was no good reason that the appellant was unable to complete or sign an appeal form herself and provide it within a reasonable time limit. She was also in constant communication with her solicitors and would have known that we requested a signed form. There is also no reason to believe that any form has been lost. The Local Authority has never received signed notification of authority to discuss with solicitors and therefore feel we are unable to accept the appeal as duly made.”

The statutory requirements for a valid notice of appeal

[20]Rule 23(6) of the SEC Rules provides as follows (for cases in which the notice of appeal is to be sent to the decision maker, as in this case):
“(6) The notice of appeal must be in English or Welsh, must be signed by the appellant and must state– (a) the name and address of the appellant; (b) the name and address of the appellant’s representative (if any); (c) an address where documents for the appellant may be sent or delivered; (d) details of the decision being appealed; and (e) the grounds on which the appellant relies.” (a) the name and address of the appellant; (b) the name and address of the appellant’s representative (if any); (c) an address where documents for the appellant may be sent or delivered; (d) details of the decision being appealed; and (e) the grounds on which the appellant relies.”
[21]The solicitor’s letter of 28 February 2011, received by the local authority on 3 March 2011, complied with all these requirements save that it was not signed by the claimant herself. Indeed, in terms of the level of detail about the factual arguments being advanced as grounds of appeal on behalf of the claimant, it was exemplary.

The relevant case law

[22]The local authority’s argument that the appeal was not duly made is supported by the decision of Mr Nigel Macleod QC, sitting as a Deputy High Court Judge, in R v Lambeth LBC ex p. Crookes and Others [1998] 31 HLR 59 (“Crookes”).[23]One of the issues in Crookes was the proper meaning of regulation 79(2) of the Housing Benefit (General) Regulations 1987 (SI 1987/1971) (as amended). This provided that a “person affected” by a local authority’s housing benefit decision could institute the then review board procedure if he made “written representations signed by him” within the relevant time limit. In Crookes the review request had been signed by the appellant’s solicitor, but not by the appellant himself. The Deputy High Court Judge held that “the words of regulation 79(2) ‘signed by him’ are clear and explicit and are not complied with by a signed written request from a properly authorised Solicitor” (at 71). In finding so, the Judge placed considerable reliance on, and quoted extensively from, the Court of Appeal’s decision in Re Prince Blücher [1931] 2 Ch D 70. The issue in that case had been whether a proposal for a scheme of arrangement, which had been signed on behalf of a debtor by solicitors, was valid for the purpose of section 16 of the Bankruptcy Act 1914. The Court of Appeal held that the debtor’s personal signature was required.[24]However, as noted by the authors of CPAG’s Housing Benefit and Council Tax Benefit Legislation (27th edition 2014/15) at p.933, the Privy Council in General Legal Council ex parte Basil Whitter v Frankson [2006] UKPC 42 (“ex parte Whitter”) held that Re Prince Blücher had been wrongly decided. In ex parte Whitter itself, the Court of Appeal of Jamaica had held that a regulatory body had no jurisdiction to hear a complaint of professional misconduct made by a client against her former attorney. This was on the basis that the relevant rules required the aggrieved person to make a complaint by affidavit, but the complainant had authorised her son to do so on her behalf.[25]The Privy Council in ex parte Whitter advised that the appeal should be allowed. It re-asserted the general principle that “when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, he may either do so in person or authorise someone else to do it on his behalf” (at [4]). The Privy Council acknowledged that there were “statutes which, exceptionally, require a personal signature and exclude performance by an agent” (at [5]; see e.g. Hyde v Johnson (1836) 2 Bing NC 776). However, Re Prince Blücher, which had previously been regarded as falling into this exceptional category, was expressly disapproved as “wrongly decided”, at least for the reasons given by the Court of Appeal (at [7]). The fact that the complaint in ex parte Whitter had to be made by way of affidavit did not make it an exceptional case. Indeed, the fundamental principle was that “the hand and signature of the agent counts as the hand and signature of the principal. It therefore satisfies the requirements of the rules” (at [12]).

The Upper Tribunal’s analysis

[26]There is no material difference in the wording between the respective statutory requirements that a review board application be “signed by him” and now that a notice of appeal be “signed by the appellant”. However, I decline to follow the decision of the Deputy High Court Judge, in R v Lambeth LBC ex p. Crookes and Others. Its unduly narrow approach to the interpretation of the legislation simply cannot stand with the principles set out by the Privy Council in General Legal Council ex parte Basil Whitter v Frankson. It follows that the requirement in rule 23(6) of the SEC Rules that a notice of appeal “must be signed by the appellant” is satisfied by a notice of appeal being signed by the appellant’s solicitor.[27]There are two further reasons, apart from the highly persuasive authority of ex parte Whitter, which support this reading of rule 23(6).[28]The first is that, given the code of professional responsibilities and ethics imposed on solicitors, one can assume that a solicitor sending in a letter of appeal on behalf of their client is properly authorised and acting on their instructions, and so is signing as agent for their client. The point was put neatly by Judge Rowland in Salisbury Independent Living v Wirral Metropolitan Borough Council [2011] UKUT 44 (AAC) (CH/3186/2009) at paragraph 11:
“11. Rule 23(6) of the Rules provides that a notice of appeal to the First-tier Tribunal ‘must be signed by the appellant’. Insofar as this is a matter of form, non-compliance may be waived under rule 7(2)(a). However, the signature provides proof that the appeal is brought by the person who is claimed to be the appellant. The requirement for the appellant’s signature is generally waived where the notice of appeal is signed by a representative who provides signed authority to bring the appeal or who is a solicitor and therefore presumed to act only on instructions. In this case, the lack of signature was considered important because it was the local authority’s case that the appeals had not been brought either by the claimed appellants or on their behalf and that therefore the appeals were not valid…”
[29]The Court of Appeal subsequently reversed Judge Rowland’s decision on another ground (Wirral MBC v Salisbury Independent Living [2012] EWCA Civ 84 [2012] AACR 37), but there is nothing in the Court of Appeal’s judgment to cast any doubt on the general practice to which Judge Rowland referred. Indeed, in the light of[30]As Judge Rowland notes, if a non-legally qualified representative, such as a welfare rights worker or CAB adviser provides a written authority from their client, then for the purposes of rule 26(3) they are, in practical terms, in the same position as a solicitor who writes on the instructions of their client. The position where a lay representative lodges an appeal but without providing such written authority is not so clear. By definition a lay representative is not bound by a professional code or subject to discipline by a professional regulatory body. It cannot necessarily always be assumed that such a representative is acting on their client’s instructions (see e.g. CSDLA/2/2001). However, that is not the situation in the present case.[31]The second reason that supports a broad and purposive reading of rule 23(6) is the policy underpinning the Leggatt Report (Tribunals for Users: One System, One Service, HMSO, 2001) and subsequently the Tribunals, Courts and Enforcement Act 2007 itself. A recurring theme of the Leggatt Report was that tribunals should be accessible and user-friendly. Tribunal procedures should ensure that cases are dealt with “economically, proportionately, expeditiously and fairly”. The overriding objective in rule 2 of the SEC Rules requires that cases are dealt with “fairly and justly”, which includes “avoiding unnecessary formality and seeking flexibility in the proceedings” (rule 2(2)(b)). An insistence on the claimant’s personal signature when a notice of appeal has been lodged by her solicitor represents a triumph of undue formalism over substance. For the reasons set out above, it is contrary to precedent, principle and policy.

The Upper Tribunal’s decision on this appeal to the Upper Tribunal

[32]The First-tier Tribunal’s decision involves an error of law. The Tribunal found that the claimant’s appeal was(a) not duly made within rule 23(6);(b) was therefore outside the 13-month absolute time limit; and(c) accordingly should be struck out. However, as to (a), and for the reasons set out above, the notice of appeal was duly made within rule 23(6). As to (b), it was late (outside the standard 1-month time limit) but not so late as to breach the 13-month rule. As regards (c), it was therefore potentially within jurisdiction although the claimant’s request for an extension of time needed to be considered. It should not have been struck out on the basis that it was. I do not need to address the other grounds of appeal. The claimant’s appeal against the Tribunal’s interlocutory decision therefore succeeds. I set aside thedecision of the Basildon First-tier Tribunal dated 11 February 2013 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).[33]It is not necessary, and it would be wholly disproportionate, to send this interlocutory matter back for a rehearing. No new information is going to emerge in relation to that issue. I am in a position to re-make the decision, or substitute my own decision, for the tribunal’s decision, and proceed to do so (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii) and 12(4)).

The Upper Tribunal’s decision on the late appeal to the First-tier Tribunal

[34]The local authority’s decision was made on 11 May 2010. The solicitor’s notice of appeal was received on 3 March 2011. It was therefore nearly 9 months late. The time limit is one month (rule 23(2) of, and Schedule 1 to, the SEC Rules). The local authority has objected to the late appeal being admitted, so rule 23(4) does not apply.[35]The one month time limit may be extended as a matter of discretion under rule 5(3)(a) (subject to the absolute 13-month rule, which does not arise on the facts of this case). The decision on whether to extend time must be taken in the light of the overriding objective under rule 2 of the SEC Rules. The starting point is that time limits are there for a purpose and the burden is on the claimant to show that time should be extended. All relevant factors must be taken into account, and especially(1) the length of delay;(2) the reasons for the delay;(3) the chances of the appeal succeeding if the application is granted; and(4) the degree of prejudice to the respondent if the application is granted.[36]As to (1), this is plainly a factor which weighs heavily against the claimant. This is not a delay of a few days or even a week or two. It is a substantial delay of nearly 9 months. On that basis alone the claimant will have to show very good reasons for exercising the discretion in her favour.[37]As to (2), the claimant explains that she understood that when the criminal charges were dropped it had been accepted that she was entitled to the benefits that she had been claiming. She had (mistakenly) understood that all issues relevant to her benefit claim would be dealt with as part of the criminal proceedings which involved both the DWP and the local authority. She was represented by other solicitors in relation to those proceedings, and it was only when she consulted her new solicitors after the withdrawal of the prosecution that she had been correctly advised about her civil appeal rights.[38]As to (3), and on the face of the evidence before me, I am satisfied that there is a realistic prospect that her appeal will succeed if the application is granted. It will be recalled that the DWP originally decided on 23 June 2010 that the claimant was liable for a recoverable overpayment amounting to £7,859.15 for the period from 23 July 2007 to 5 January 2010. The period of the alleged overpayment in respect of housing benefit and council tax benefit fell wholly within that period (17 October 2008 to 16 November 2009). On 26 October 2012 (so two years after the prosecution was dropped) the DWP Income Support Appeals office wrote to the claimant about its decision of 23 June 2010. That letter conveyed the decision “that there is no evidence held of a recoverable overpayment for the period in question”. It added that the papers were being returned to the debt management team “to confirm there is no recoverable overpayment of Income Support”.[39]There is no further information about the substance or detail of that decision. The letter certainly implies that the DWP decision was to the effect that, while the claimant was not entitled to income support for the period in issue, the resulting overpayment was itself not recoverable. However, the letter is short and loosely expressed and it may be that the Income Support decision maker had in fact decided that there was entitlement during the period in question, and so as a result there was simply no question of any recoverable overpayment arising. Whatever the answer, the DWP decision of 26 October 2012 casts a serious question mark over the local authority’s decision.[40]As to (4), if the application is granted there is clearly some degree of prejudice to the local authority given that the case will have to be re-opened and a new submission prepared for the Tribunal.[41]Looking at the overall picture, the length of the delay(1) weighs substantially against the claimant, and there is a degree of prejudice (4) to the local authority if time is extended. The latter is relatively slight in the overall scheme of things. The reasons for the delay(2) are perhaps understandable, and it would not be right to penalise the claimant for the failure of the first firm of solicitors to advise her as to her civil appeal rights. In my view the chances of success (4) are certainly at least reasonable. Indeed, in the light of the DWP’s later decision, there is a real risk of a considerable injustice being done to the claimant if time is not extended and this appeal is not heard on its merits. I take the view that the chances of success, given the DWP change of position, outweigh the factors which otherwise militate against extending time (in particular the length of the delay).[42]Does it matter that the local authority decision under appeal was taken in May 2010, the claimant’s appeal was lodged in March 2011 but the DWP’s revised decision was not taken until October 2012? The law states that the Tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (see paragraph 6(9) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, echoing section 12(8)(b) of the Social Security Act 1998). However, that provision only applies to the Tribunal’s decision on a substantive appeal against a local authority’s decision on a housing benefit claim (paragraph 6(1) of Schedule 7). It does not apply in the context of the Tribunal’s decision on an interlocutory issue as to whether it had jurisdiction to hear the appeal at all and, if so, whether to extend time, which is ultimately governed by rule 2. If I am wrong about that, plainly the DWP’s decision, although later, is simply evidence that refers back to the actual factual circumstances at the relevant time (see Commissioners’ decisions R(DLA) 2/01 and R(DLA) 3/01).[43]I therefore re-make the Tribunal’s decision so as to extend time to admit the late appeal received on 3 March 2011.[44]The claimant’s appeal against the local authority’s decision of 11 May 2010 was accordingly not out of time. It should not have been struck out. Time has been extended to admit the appeal. The case is accordingly remitted to the First-tier Tribunal for the substantive appeal to be decided. My re-made decision is therefore as follows:
“The claimant’s appeal to the First-tier Tribunal against the local authority’s decision dated 11 May 2010 is not out of jurisdiction. The claimant’s appeal dated 28 February 2011 and received by the local authority on 3 March 2011 was duly made within the terms of rule 23(6). The claimant’s appeal was late but within the 13-month absolute time limit. Time is extended under rule 5(3)(a) so as to admit the appeal. The local authority’s application for the appeal to be struck out is therefore dismissed. The local authority is directed to prepare a submission on its substantive decision made on 11 May 2010 and to send a copy to the HMCTS Birmingham office within 6 weeks of the date that this decision is issued to the parties by the Upper Tribunal office.”
[45]As a first step the local authority should therefore prepare a written submission for the Tribunal which deals with the legal, factual and evidential basis for the decision of 11 May 2010. As part of that process the local authority would be well advised to seek further information from the DWP about the decision notified on 26 October 2012 to the claimant about her income support claim. It may be, of course, that on receipt of such information the local authority may decide to reconsider its decision of 11 May 2010 in any event.[46]In the absence of detailed information about the income support decision, it is difficult to be precise about its impact in the housing benefit context. In general terms, however, if the DWP decision was that the claimant was entitled to income support throughout the relevant period then it is not easy to envisage circumstances in which she was also not entitled to housing benefit for the same period, at least where the issue decided in her favour is the same (e.g. as to status as a lone parent or ownership of capital). If the DWP decision is that that the claimant was not entitled to income support, but the resulting overpayment is not recoverable, the position may well be different. This is because of the differences between the income support and housing benefit schemes as to the basis for any recoverable overpayment.