LS CH 1758 2009
| Jurisdiction | UK Non-devolved |
| Judge | Three-Judge Panel / Tribunal of Commissioners |
| Judgment Date | 22 December 2010 |
| Neutral Citation | 2010 UKUT 461 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | London Borough of Lambeth |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 1758 2009 |
| Appellant | LS |
[2011] AACR 27
(LS v London Borough of Lambeth (HB)
[2010] UKUT 461 (AAC))
Mr Justice Walker CP
Judge Rowland CH/1758/2009
Judge Turnbull JR/2204/2009
22 December 2010
Tribunal procedure – scope of right of appeal to Upper Tribunal against interlocutory decisions – meaning of “decision” in Tribunals, Courts and Enforcement Act 2007
Inadequate notice of housing benefit decision – effect on time limits for appeal
The claimant appealed against the application of a non-dependant deduction by the council in the calculation of her housing benefit on a supersession. She maintained that her ex-partner had not been resident at her address at the relevant times. Her appeals were made well outside the 13-month absolute time limit for bringing an appeal but it was contended on her behalf that they were not late because there had been no proper notification of the decisions sought to be appealed, so that the time limits had not started to run. It was contended that the notice did not comply with the requirement in paragraph 9(c) of Schedule 9 to the Housing Benefit Regulations 2006 that the decision notice should contain a statement as to “the amount of and the category of non-dependant deductions made under regulation 74, if any”. A legally qualified panel member initially refused to admit the appeals but later admitted them. The Council did not seek to challenge that decision and the appeals proceeded to a hearing on the merits. At that hearing the First-tier Tribunal Judge decided that he was required to reconsider the issue whether the appeals were irredeemably late, because, if they were, the legally qualified panel member had had no power to admit them and the issue went to his jurisdiction to decide the appeals. He held that the housing benefit decisions had been properly notified by means of the letters sent at the time of the decisions, that the time limits for appealing had therefore started to run at the date of notification, and that he therefore had no jurisdiction to consider the appeals on their merits. It was common ground that his decision should be treated as a decision striking out the appeals under rule 8(2)(a) of the Tribunal Procedure (Social Entitlement Chamber) Rules 2008 (the SEC Rules). The claimant sought to challenge that decision and, taking the view that it was unclear whether the correct avenue of challenge was by way of appeal to the Upper Tribunal or by way of an application for judicial review in the Administrative Court, made applications for permission in both jurisdictions. The judicial review claim was transferred to the Upper Tribunal, which gave permission both to pursue a claim for judicial review and to appeal. In view of the wider importance of the avenue of challenge issue a three-judge panel was constituted. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. It was common ground that the strike-out decision was not an excluded decision, but it was argued that it was not a “decision” for the purposes of section 11 but a determination of a matter along the way leading to a decision, relying on Secretary of State for Work and Pensions v Morina [2007] EWCA Civ 749; [2007] 1 WLR 3033 (also reported as R(IS) 6/07).
Held, allowing the appeal in CH/1758/2009 and dismissing the claim for judicial review in JR/2204/2009, that:
- the word “decision” in both section 11(1) and section 13(1) (which concerns appeals from decisions of the Upper Tribunal) must be read broadly in accordance with its natural meaning and not given the restricted meaning given to it in Morina in the different context of section 14 of the Social Security Act 1998. It followed that interlocutory decisions were in principle appealable and an appeal lay against the strike-out decision in the present case. It would therefore be inappropriate to grant the claimant any relief by way of judicial review (paragraphs 79 to 97)
- while it was possible to construe the notice requirements “on a claim” in paragraph 9(c) of Schedule 9 to the 2006 Regulations as applying also on a supersession, it was not necessary to decide that point, as although the notification letters did not adequately specify the category of non-dependant deduction, that breach did not substantially prejudice the claimant in the present case where that point was not in issue, and therefore did not prevent the time for appeal from running: Haringey LBC v Awaritefe (1999) 32 HLR 517 followed (paragraphs 104 to 123)
- at the time when the appeals were made the absolute time limit for appealing under the procedural regulations then applicable had expired and the later coming into force of the SEC Rules did not give the First-tier Tribunal the power to extend the absolute time limit. The appeals were irredeemably out of time and the decision that they should be admitted was therefore wrong (paragraphs 124 to 132)
- (per Chamber President and Judge Turnbull) however the decision of the legally qualified panel member to admit the appeals was a decision that she had power to make, even though it went to the appeal tribunal’s jurisdiction to hear the appeal. By regulation 18(4) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 the legally qualified panel member was given power to determine whether the appeals were within time and it was established by Watt v Ahsan [2007] UKHL 51; [2008] AC 696 that an issue estoppel could arise from a decision by a tribunal as to whether it has jurisdiction. The decision striking out the appeals on the ground that the legally qualified panel member had not had that power was therefore wrong in law and fell to be set aside, and it was appropriate for the Upper Tribunal to re-make the strike-out decision (paragraphs 134 to 146);
- (per Chamber President and Judge Turnbull) in re-making the strike-out decision it was not necessary to form a concluded view on whether the judge who made that decision had had power to reconsider the decision of the legally qualified panel member to admit the appeals (whether because it was not a “final” decision and so could not give rise to an issue estoppel or by virtue of a general discretion to allow an issue to be reopened in special circumstances). Even if there were such power it would not be appropriate to exercise it in all the circumstances of the case (paragraphs 148 to 164).
- (per Judge Rowland, dissenting) the First-tier Tribunal had not held that the legally qualified panel member had no power to decide whether or not to admit the appeals. The key issue on the appeal was whether the decision to admit the appeal was “final” and the First-tier Tribunal had correctly held that it was not final because it was made in a summary fashion without notice and such decisions by tribunals are appropriate only on the basis that they can be revisited at a later date in the event of there being an objection. A decision made in that manner was not the determination of a preliminary point of the type contemplated by the House of Lords in Watt v Ahsan. While an issue estoppel may arise in some circumstances, such as where the conduct of one party has induced another to treat the decision as final to their disadvantage, the inaction by the Council in the present case did not create an issue estoppel. It followed that, given his doubts about it and the fact that the Council wanted it reconsidered, the First-tier Tribunal Judge was right to consider that he was bound to reconsider the decision to admit the appeal (paragraphs 168 to 189).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Tim Buley, of counsel, instructed by Pierce Glynn appeared for the appellant/claimant.
Miss Samantha Broadfoot, of counsel, appeared for the Secretary of State.
Mr Dauda Rufus, of Lambeth Finance and Resources Department appeared for the London Borough of Lambeth.
DECISION
The claimant’s appeal (CH/1758/2009) against the decision of the First-tier Tribunal (Judge Poynter) made on 15 January 2009,...
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