S.O. Abraham CH 1074 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge S M Lane |
| Judgment Date | 23 November 2012 |
| Neutral Citation | 2012 UKUT 437 AAC |
| Subject Matter | Housing and council tax benefits |
| Respondent | L.B. of Ealing |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 1074 2010 |
| Appellant | S.O. Abraham |
IN THE UPPER TRIBUNAL Appeal No. CH/1074/2010
ADMINISTRATIVE APPEALS CHAMBER
Before Judge S M Lane
DECISIONS:
The appeal against the decision of the First-tier Tribunal (Judge Poynter) on 15/5/09 to set aside the decision of a First-tier Tribunal on 10/11/08 is dismissed. The Tribunal’s decision did not contain any material errors of law.
The appeal against the decision of the First-tier Tribunal (Judge Gil) on 25/2/10 is dismissed. The Tribunal’s decision was not made in error of law.
REASONS FOR DECISION
1 I apologise for the delay in issuing this decision, which follows an oral hearing at Field House on 4 May 2012. The appellant attended, and was represented by Mr Juss, of counsel. The respondent Authority was represented by Mrs Grehan. Her colleague, Miss Jeive, also attended. I am grateful to all of them for their assistance.
2 The two decisions under appeal are brought with the permission of Judge Poynter.
INTRODUCTION
3 There is no doubt that that these appeals have been plagued by administrative errors which have caused the appellant a good deal of frustration. These have led, in part, to the appellant making a number of applications based on complaints of a procedural nature. To summarise the complex history as briefly as possible for the moment, the appellant was successful in his appeal to a First-tier Tribunal (Judge Quinn) on 10/11/08 against a decision that he was not entitled to HB for a period of several years. The appeal was heard in the absence of the Authority. Before the hearing, the Authority made an application for postponement because its presenting officer was too ill to attend. This was never sent to the Tribunal and Judge Quinn gave no consideration to the issue of the Authority’s absence in proceeding. A district tribunal judge (DTJ Poynter) set aside Judge Quinn’s decision on 15/5/09 for procedural irregularity under rule 37. The appeal was reheard on 25/2/10 by a First-tier Tribunal (Judge Gill). The Judge Poynter granted permission to appeal against both decisions following the appellant’s application for permission to appeal against Judge Gill’s decision.
4 In order to distinguish the various decisions made First-tier Tribunals, I shall refer to the decisions by the name of the judges who decided them.
5 I have come to the conclusion that there are no material errors of law in either of the decisions before me.
THE BACKGROUND
6 The starting point was a decision by the Authority on 18/10/2007 that the appellant was not entitled to HB for the period 23/12/02 to 30/9/07 because the tenancy for his home was contrived to take advantage of the Housing Benefit (HB) system and [sic] was not of a true commercial nature. These are two distinct grounds under regulation 9 of the HB (Persons who have attained the qualifying age for state pension credit) Regulations 2006 by virtue of which HB is treated as not payable even though the occupier of the dwelling has an agreement to make payments for it. The way in which the Authority described the provisions does not matter because the Tribunal did not repeat the Authority’s error.
7 The decision on non-entitlement will, no doubt, result in the Authority issuing a decision for a recoverable overpayment of HB for that period. This is thought to amount to £43,706.40 for that period. A decision on recovery of the overpayment was not, however, before the tribunals.
8 As I have already summarised above, the appellant attended a hearing before Judge Quinn on 10/11/08 with his legal representative (Record of Proceedings, p289). The Authority did not attend, but had sent an urgent fax to the Tribunals Service in Nottingham (the responsible office) on the morning of the hearing requesting a postponement because their presenting officer was ill. The fax confirmation (p426) shows that a two page fax was sent to Nottingham. The covering sheet states, in large print, ‘PLEASE FAX TO HOUNSLOW URGENT – 10 AM CASE’.
9 There is no record that Nottingham sent the fax to the Tribunal venue. The Tribunal papers did not contain the fax. The question of the postponement request is not mentioned in the Record of Proceedings or the Tribunal’s Statement of Reasons. There is no indication that the Tribunal applied its mind to the question of whether it was appropriate to proceed with the hearing in the Authority’s absence despite the size of the potential overpayment, the complexity of the law, the hot dispute over the facts and interpretation to be put on them, the Authority’s express request for an oral hearing and their clearly stated intention to send a presenting officer (p296, form AT37). The appellant was successful before the First-tier Tribunal.
10 A catalogue of administrative errors occurred, the first of which is that a vital page of the fax had gone missing at an early stage. I refer to this as ‘the second page’. This was followed by an apparent failure by the Tribunals Service to send the decision notice to the Authority until 16/12/08. This prompted the Authority to make an in-time application for the decision to be set aside for procedural irregularity (p290).
11 Judge Poynter gave directions on the application on 19/3/09 requiring the Authority to supply a copy of the fax and giving a deadline of 9 April 2009 for doing so (p297). On receipt, the Tribunals Service was to send a copy of the application and the fax to the appellant for his comment. Judge Poynter stated that the decision would not be set aside before the appellant had this opportunity. The Tribunals Service appears not to have sent the documents to the appellant, who therefore did not have an opportunity to comment.
12 Judge Poynter was unaware of the Tribunals Service’ omission. He dealt with the application on under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (‘First-tier Rules’) on the papers as they stood and set aside the decision on 15/5/09. I shall refer to this as ‘the set aside decision’.
13 Rule 37 is as follows:
37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if—
(a) the Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are—
(a) a document relating to the proceedings was not sent to, or was not received at an
appropriate time by, a party or a party’s representative;
(b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.
(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision
14 The judge’s reason for setting the decision aside was that a party, or a party’s representative was not present at a hearing related to the proceedings and that it was in the interests of justice to set the decision aside (rule 37(1) and (2)(c)). He gave the brief reason that the Authority’s representative was unable to attend the hearing because of illness. He gave directions for the appeal to be re-listed before a DTJ or an authorised tribunal judge. The latter is not a formal designation but is used in the Southeast region to identify fee-paid tribunal judges who are accustomed to hearing appeals of particular difficulty.
15 Judge Poynter mistakenly put the wrong date (19/3/09) on the set aside decision, rather than 15/5/09 (p299). This confused the appellant and made him angry. He assumed that the judge had pre-judged the outcome of the set-aside request and made his decision on the same day as he issued his directions. He was adamant that he should see a copy of the fax, attributed bad faith to the Authority and objected strenuously to the judge’s decision. The Tribunals Service, however, never managed to send him a copy of both pages of the fax. When the Upper Tribunal became seized of the appeal, the second page of the fax was missing. I accordingly gave directions to the Authority to provide it, which they did, and sent a copy to the appellant during the course of the Upper Tribunal proceedings.
16 The appellant made an application to set aside the set aside decision of 15/5/09. Judge Poynter declined to do so because the wording of rule 37(1) did not give him this power. The rule states that...
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