ZB CCS 3628 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 30 July 2013 |
| Neutral Citation | 2013 UKUT 367 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | Secretary of State for Work and Pensions (CSM) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CCS 3628 2012 |
| Appellant | ZB |
IN THE UPPER TRIBUNAL Case No. CCS/3628/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Attendances:
For the Appellant: Mr Jody Atkinson of counsel, instructed through direct access
For the First Respondent: Mr Huw James, solicitor
The Second Respondent appeared in person.
Decision: The father’s appeal is unsuccessful. Although there are minor errors of law in the First-tier Tribunal’s decision, I am not satisfied that I should set its decision aside.
I refuse permission to apply for judicial review of the First-tier Tribunal’s decision because an appeal was the correct method of challenging the decision.
REASONS FOR DECISION
1. This is an appeal, brought with my permission by the father of the qualifying child, against a decision of the First-tier Tribunal dated 2 April 2012, whereby it allowed the mother’s appeal against decisions of the Secretary of State in respect of child support maintenance.
2. The Appellant and the Second Respondent were married to each other but separated in 2002 and have since divorced. The qualifying child is their son. He was born in 1990 and therefore is now in his early 20s. Moreover, in 2006, he ceased living with his mother and went to live with his father instead, with the consequence that this case is concerned, at most, only with the amount of arrears of child support maintenance due in respect of the period from 9 September 2002 to 18 December 2006. Whether the First-tier Tribunal ought to have been determining in April 2012 the father’s liability to pay child support maintenance nearly ten years earlier is a matter I will consider below.
3. The prior question is whether I have any jurisdiction to hear this appeal at all or, to put it another way, whether the father has any right of appeal against the First-tier Tribunal’s decision.
Does being barred from taking further part in proceedings preclude an appeal?
4. The First-tier Tribunal issued case-management directions to the father in May 2010, October 2010 and December 2010, but he failed fully to comply with them. On 27 June 2011, the First-tier Tribunal again directed him to provide a statement of case, a statement of facts and various documents and he was warned that, if he did not comply, the First-tier Tribunal would consider whether he should be barred from further participation in the proceedings and that it might also draw adverse inferences. It was explained that drawing adverse inferences “means that where evidence is not provided to prove the facts of the case, the Tribunal can decide what the facts are, taking into account that there appears to be something hidden”. Those directions were sent to the father, who was at the time represented by solicitors, on 5 July 2011. He did not comply with the directions and, on 18 October 2011, the First-tier Tribunal barred him from further participation in the proceedings under rule 8(3)(a) and (7)(a) of the Tribunal Procedure, (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685, as amended) (“the 2008 Rules”).
5. So far as is relevant, rule 8 provides –
“8–(1) …
(2) …
(3) The Tribunal may strike out the whole or a 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) …; or
(c) ….
(4) ….
(5) If the proceedings, or part of them, have been struck out under paragraph (1) or (3)(a), the appellant may apply for the proceedings, or part of them, to be reinstated.
(6) An application under paragraph (5) must be made in writing and received by the Tribunal within 1 month after the date on which the Tribunal sent notification of the striking out to the appellant.
(7) This rule applies to a respondent as it applies to an appellant except that—
(a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and
(b) a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.
(8) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent and may summarily determine any or all issues against that respondent.”
6. On 13 February 2012 the parties were informed that the hearing would take place on 2 April 2012. The father said that he would not attend because he would be away. However, in fact he appeared at the hearing, without the documents he had been directed to provide but wishing to give oral evidence. The First-tier Tribunal refused to lift the bar on him from taking further part in the proceedings but he remained as an observer.
7. Following the hearing, the father, who no longer had legal representation, applied through his accountants for a statement of reasons and also asked that the letter be accepted “as an appeal”. However, the judge directed that, because the father had been barred from taking further part in the proceedings, no statement would be issued. When asked to confirm that the previous letter would be taken as an appeal, the judge directed that, due to the bar, the confirmation could not be given. Notice to that effect was issued on 19 June 2012. Clearly the judge took the view that a person barred from taking further part in proceedings had neither a right to a statement of reasons nor a right to appeal.
8. On 23 October 2012, the Upper Tribunal received from the father both an application for permission to appeal and an application for permission to apply for judicial review. On 18 December 2012, I waived the requirement that an application for permission to appeal have been refused or not admitted by the First-tier Tribunal before such an application was made to the Upper Tribunal – although, upon reflection, it seems to me that the First-tier Tribunal judge must be taken not to have admitted what was clearly intended to be an application for permission to appeal – and I directed an oral hearing of the applications. However, the hearing took some time to organise and was then fixed for 21 May 2012 and, in the light of written submissions, I decided on 25 March 2013 to grant permission to appeal and directed that the hearing already fixed should be the hearing of the substantive appeal and, if necessary, the application for judicial review, but without prejudice to the questions of jurisdiction and delay being raised in the appeal.
9. The Secretary of State supports the father in arguing that a person who has been barred from participating in proceedings nonetheless retains a right of appeal. The mother, however, contends that there is no right of appeal in such circumstances.
10. The father submits that the words “the proceedings” in rule 8(7) refer to the proceedings before the First-tier Tribunal and he relies on Atos Origin IT Services Ltd v Haddock [2005] IRLR 20 in which the Employment Appeal Tribunal construed the same words in rule 3(3) of the Employment Tribunal Rules of Procedure set out in the Schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 (SI 2001/1171) as referring only to proceedings before the employment tribunal so that a respondent not entitled to take part in the proceedings as a result of failing to enter an appearance was not thereby deprived of its right of appeal. I acknowledge that five of the eight grounds for taking that approach that the Employment Appeal Tribunal set out in paragraph 13 of its decision may not be applicable in the present case, but the other three can be applied with appropriate changes to the language and statutory references.
11. First, the natural construction of “the proceedings” in rule 8(7) of the 2008 Rules is to the proceedings in the First-tier Tribunal, since those are the proceedings with which the Rules are concerned. Secondly, neither the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), section 11 of which provides for an appeal to the Upper Tribunal from a decision of the First-tier Tribunal, nor the procedural rules for either tribunal purports to restrict the right of appeal where a person has been barred by the First-tier Tribunal from participating in proceedings. Thirdly, “[t]here must be some avenue by which a challenge to the decision of [the First-tier Tribunal] on the grounds that it has exceeded its jurisdiction or been guilty of bias can be made by a respondent who has [been barred]” and an appeal on a point of law is a more appropriate procedure than judicial review in the context of the 2007 Act.
12. The Secretary of State has referred me to London Borough of Hackney v Sivanandan [2013] EWCA Civ 22, but that...
To continue reading
Request your trial