DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is as follows.

 

The decision of the Exeter First-tier Tribunal dated 12 December 2008 under file reference 194/08/00449 involves an error on a point of law.

 

The appeal tribunal’s decision is accordingly set aside.

 

The Upper Tribunal is not in a position to re-make the decision under appeal.  The appeal against the decision of the Secretary of State dated 18 December 2007 is therefore sent back to a new First-tier Tribunal to be re-heard.  The new tribunal should have regard to the Directions at paragraph 48 below.

 

This decision is given under section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

 

 

REASONS FOR DECISION

 

The decision in summary

 

1.         This is the claimant’s appeal to the Upper Tribunal against the decision of a First-tier Tribunal dated 12 December 2008.  That tribunal’s decision involves an error of law.  I therefore allow the claimant’s appeal to the Upper Tribunal and set aside the tribunal’s decision.  The claimant’s appeal against the Secretary of State’s decision dated 18 December 2007 on his claim to disability living allowance (DLA) will have to be re-heard by a new tribunal.

 

The issue in this appeal to the Upper Tribunal

 

2.         The claimant in this case is is a gentleman, now aged 57, who suffers from arthritis.  He is also subject to an extended civil restraint order (sometimes referred to as an ECRO).  According to the Court of Appeal in Bhamjee and Forsdick and Others (No. 2) [2003] EWCA Civ 1113 (at paragraph 53(5)), “If a litigant exhibits the hallmarks of persistently vexatious behaviour, a judge of the Court of Appeal or the High Court or a designated civil judge (or his appointed deputy) in the county court should consider whether to make an extended civil restraint order against him”.  This is separate from the court’s statutory powers under section 42 of the Supreme Court Act 1981 (see further below).

 

3.         The claimant in this case appealed to the First-tier Tribunal against the Secretary of State’s decision to refuse his claim for DLA.  The issue for the Upper Tribunal concerns the effect (if any), in the DLA appeal, of the extended civil restraint order imposed on the claimant.  In particular, the question for the Upper Tribunal is whether the First-tier Tribunal’s apparent failure to address the claimant’s enquiries as regards the effect of the extended civil restraint order amounts to a breach of natural justice (and hence an error of law).

 

 

A note on extended civil restraint orders

 

4.         The Civil Procedure Rules 1998 (SI 1998/3132), as amended, define a “civil restraint order" as meaning an order restraining a party from (a) making any further applications in current proceedings (“a limited civil restraint order”); (b) issuing certain claims or making certain applications in specified courts (“an extended civil restraint order”; or (c) issuing any claim or making any application in specified courts (“a general civil restraint order”). Practice Direction 3C of the Civil Procedure Rules, made under rule 3.11, provides as follows (at paragraph 3.1):

 

“An extended civil restraint order may be made by –

(1) a judge of the Court of Appeal;

(2) a judge of the High Court; or

(3) a designated civil judge or his appointed deputy in the county court,

where a party has persistently issued claims or made applications which are totally without merit.”

 

5.         The principal consequence of an extended civil restraint order on the individual concerned is set out in paragraph 3.2 of the Practice Direction:

 

“Unless the court otherwise orders, where the court makes an extended civil restraint order, the party against whom the order is made –

(1) will be restrained from issuing claims or making applications in –

(a) any court if the order has been made by a judge of the Court of Appeal;

(b) the High Court or any county court if the order has been made by a judge of the High Court; or

(c) any county court identified in the order if the order has been made by a designated civil judge or his appointed deputy,

concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made.”

 

6.         It will be noted immediately that the Practice Direction refers to courts and not to tribunals.  Moreover, as the Court of Appeal explained in Bhamjee and Forsdick and Others (No. 2), “A civil restraint order and an extended civil restraint order can only restrain the litigant in the context of the litigation he is currently conducting and other litigation to like effect” (at paragraph 43, emphasis added).

 

7.         The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685), which govern the First-tier Tribunal, are modeled in many ways on the Civil Procedural Rules.  However, the Tribunal Procedural Rules include no provision directly equivalent to an extended civil restraint order.  One very good reason for that is that the context is very different.  It is in the nature of civil litigation in the civil courts that a determined vexatious litigant may seek to launch a whole host of different sets of legal proceedings against a wide range of separate parties.  The nature of administrative justice in the tribunals is very different.  Typically, an individual will bring an appeal in response to a particular decision of some government agency.  The scope for bringing multiple proceedings on what may be entirely spurious grounds is therefore much reduced, if not eliminated.

 

The extended civil restraint order applying to the claimant

 

8.         On 20 October 2003, HH Judge Overend, sitting in the Torquay and Newton Abbott County Court, made an extended civil restraint order in respect of the claimant for a period of two years.  The order forbade the claimant from making further applications or taking any steps in Devon and Cornwall in relation to a dispute he had had with various parties over the installation of cavity wall insulation at the claimant’s property and in respect of a subsequent independent expert determination with regard to that installation.  It seems that the claimant had issued proceedings against a total of at least 12 different individuals and bodies. HH Judge Overend made a further such order in 2005 for another two years.

 

9.         At some point, it seems probably in 2006, the Attorney General applied for a civil proceedings order under section 42 of the Supreme Court Act 1981 declaring the claimant to be a vexatious litigant.   On 12 October 2006 the Torquay and Newton Abbott County Court confirmed by Order that the claimant had permission to defend actions or applications brought against him.  His application to have those section 42 proceedings struck out had previously been refused.  However, the Attorney General subsequently came to the conclusion that the public interest did not require that application to be pursued to adjudication and she later discontinued those proceedings.  In October 2007 the High Court decided that those proceedings under section 42 had been properly brought, properly continued but in the event properly discontinued, and so made no order as to costs.

 

10.       Meanwhile, on 5 October 2007 HH Judge Griggs, who by then had replaced Judge Overend as Designated Civil Judge for Devon and Cornwall on the latter’s retirement, renewed the 2005 extended civil restraint order for a further two years.  The judge noted that the court office “has continued to receive correspondence from [the claimant] on a regular and continuing basis making scurrilous allegations against all and sundry arriving at times on almost a weekly basis”.  Judge Griggs clearly explained the nature of the renewed order at paragraph 9 of his Judgment:

 

“In broad terms the new Order will prevent [the claimant], for a further period of two years, from issuing new proceedings in this court or in any other county court in Devon and Cornwall relating to the installation of cavity wall insulation against any party, or from issuing any application, appeal or other process in any of the actions which he had already issued without first obtaining my written permission, or, in my absence, the permission of my duly authorized deputy”.

 

11.       Judge Griggs also referred to the penal notice attached to the renewed extended civil restraint order, explaining to the claimant that he “must understand that, if he attempts to issue new proceedings, applications or processes which are within the scope of this order, he is liable to be brought before the court and sentenced for contempt; he runs the real risk of a prison sentence” (paragraph 11, again emphasis added).

 

The Secretary of State’s decision on the disability living allowance claim

 

12.       The claimant made a new claim for disability living allowance on 10 October 2007, a few days after HH Judge Griggs’s judgment further renewing the extended civil restraint order.  In his claim pack he described his problems with both mobility and care.  The Secretary of State sent a standard form questionnaire to the claimant’s GP.  The GP’s report was short and unhelpful.  It confirmed the diagnosis of arthritis and added comments such as “rarely sees us” and “no record” in response to the standard questions.

 

13.       On 18 December 2007 a decision maker decided to refuse the claim for DLA.  The claimant wrote to indicate that he was considering lodging an appeal, but that he first wished to see copies of the evidence used by the decision maker, including a departmental medical report on him dated 14 December 2007.

 

14.       This request resulted in some confusion all round.  At first the Disability and Carers Service office handling the DLA claim denied all knowledge of any such report.  The claimant then lodged an appeal by letter dated 27 February 2008, complaining about the Department’s failure to produce the medical report.  The claimant had indeed had an official medical examination on 14 December 2007, although it was prepared in the context of his (separate) claim for incapacity benefit or incapacity credits.  In that context Dr Scott, who examined the claimant on 14 December 2007, completed an IB85 medical report. The Disability and Carers Service explained by letter dated 27 March 2008 that Dr Scott’s IB85 had not actually been before the DLA decision maker four days later, when the decision to refuse the DLA claim had been made, but that a copy had been provided with the paperwork for the DLA appeal.

 

15.       In his correspondence with the Disability and Carers Service, the claimant had already referred to what he described as the “continuing political persecution” he had endured for several years at the hands of the Attorney General and various government departments.  On 10 April 2008 he wrote to the Disability and Carers Service stating that before he could proceed with his application (i.e. his appeal) for DLA, “I first need to gain the permission of Justice Griggs sitting at Exeter County Court to proceed.  Failure to do so, would result in my imprisonment.”

 

16.       The claimant also enclosed a copy of his most recent letter to HH Judge Griggs in which he had sought the judge’s permission to proceed with the DLA appeal.  That letter was written in inappropriate and in part indeed in offensive terms.  According to the claimant, for example:

 

“The issue is a simple one.  The crippled half-wit peasant made an application for Disability Living Allowance to the Department of Work and Pensions.  The Government Minister at the DWP, Peter Hain MP, at the request of The Attorney General and in support of the political persecution of [the claimant] by the Government of the United Kingdom and their puppet Judiciary, refused the claim.”

 

17.       The response of the Disability and Carers Service was simply to inform the claimant of its complaints procedure and to advise the Tribunals Service that it had nothing to add to the submission which had already been made on the claimant’s DLA appeal. 

 

The claimant’s correspondence with the Tribunals Service

 

18.       The claimant then wrote a series of further letters to the Regional Office of the Tribunals Service. 

 

19.       On 10 May 2008 the claimant wrote complaining that his appeal had been struck out although he was still waiting to see the 14 December 2007 medical report and asking for his appeal to be reinstated.

 

20.       On 1 July 2008 the claimant signed the standard enquiry form and ticked the box indicating that he wished to have a hearing of his appeal on the papers.  On 5 July 2008 he wrote to the Tribunals Service again, referring to his letter to HH Judge Griggs and the fact that he had not received a reply.  He claimed that if he took part in the DLA appeal process without permission, “he risks the charge of contempt of court and imprisonment”. 

 

21.       On 19 August 2008 the claimant again wrote to the Regional Office of the Tribunals Service.  He complained that the decision to reinstate his appeal but without giving reasons for doing so was “unacceptable”.  He complained that he had only just had sight of Dr Scott’s IB85 medical report from December 2007 and needed to take advice on it.  He added that “Most importantly, [I have] not been given permission to take part in this appeal process” by HH Judge Griggs (original emphasis).

 

22.       On 23 August 2008 the claimant wrote yet again, emphasising that he wanted the appeals process to go ahead but only once he had been given permission to do so by HH Judge Griggs.  He requested the tribunal chairman to approach the judge personally to secure such permission.

 

23.       On 23 October 2008 the claimant wrote to the Tribunals Service once more.  He argued that the DLA appeal fell within the remit of the extended civil restraint order and that he had “not been given permission to continue with this appeal” (original emphasis).  He stated that he refused to “recognise the legality of this appeal process, and refuses to accept any decision” until such permission was granted (original emphasis).

 

24.       The claimant’s appeal was reinstated in response to his letter of 10 May 2008.  However, there is no evidence that the claimant received a substantive reply to the point about his participation in the DLA appeal which he had highlighted in his further four letters of 5 July 2008, 19 and 23 August 2008 and 23 October 2008.

 

The decision of the Exeter First-tier Tribunal

 

25.       The First-tier Tribunal finally dealt with the claimant’s appeal on the papers, and without an oral hearing, at Taunton on 12 December 2008, in line with the claimant’s request dated 1 July 2008.  The tribunal confirmed the Secretary of State’s decision to refuse the claim for disability living allowance.  The tribunal issued a detailed five page Statement of Reasons for its decision.  Although the claimant takes issue with the tribunal’s decision in a number of respects, I am satisfied that the tribunal considered the evidence carefully, made findings of fact that were open to it on that evidence and gave adequate reasons for its decision. 

 

26.       Therefore, in terms of the substance of the tribunal’s decision, there is no error of law.  I emphasise that there is no error of law as regards the substantive merits on the face of the tribunal’s decision.  It is possible that the decision may have been wrong on the facts, but of course the tribunal only had a limited amount of evidence before it.

 

Why the First-tier Tribunal erred in law

 

27.       The difficulty with the tribunal’s decision is one of process rather than substance.  In its Statement of Reasons the tribunal helpfully noted that the bundle of papers before it consisted of the Schedule of Evidence running to 99 pages.  This comprised the original bundle of 84 pages which had been prepared by the Department as the Secretary of State’s submission to the tribunal.  This included, for example, the DLA claim form and the IB85 medical report.  The bundle also included a number of further pages, most of which comprised copies of correspondence between the claimant and the Department.  The final page, page 99, was the tribunal’s Record of Paper Proceedings, confirming that the tribunal had decided that it was appropriate to proceed on the papers.

 

28.       This 99-page bundle included the claimant’s letter of 10 April 2008 to the Disability and Carers Service and the copy of his intemperate letter of the same date to HH Judge Griggs.  It also included his letter of 10 May 2008 to the Tribunals Service asking for his appeal to be reinstated.  However, the bundle did not include the claimant’s four letters to the Regional Office dated 5 July 2008, 19 and 23 August 2008 and 23 October 2008. 

 

29.       It follows that the three members of the tribunal must have been unaware of those letters, unless any of them specifically asked to inspect the original full appeal file, which also includes various administrative, interlocutory and procedural papers.  I am aware that the normal Tribunals Service policy is for the full file to be available at the venue where an appeal is considered.  However, I am also aware that tribunal practice varies.  Some tribunals will always make a point of checking the original file for any further correspondence that may be relevant.  Others will rely on the appeal bundle as sent out to the appellant and the Department, unless those papers suggest in some way that the full file should be consulted to see if there is any further material information contained in it.

 

30.       In the present case I note that the tribunal made absolutely no reference to the question of the extended civil restraint order in its otherwise comprehensive Statement of Reasons.  In the light of this, and the composition of the 99-page bundle, I am satisfied that the tribunal’s attention was not drawn to the claimant’s letters of 5 July 2008, 19 and 23 August 2008 and 23 October 2008.  The tribunal was presumably aware of the existence of the extended civil restraint order itself, as it had sight of the claimant’s letter to HH Judge Griggs dated 10 April 2008, but probably regarded it as an irrelevant matter.  The tribunal appears to have been unaware that the claimant had been pressing the Tribunals Service itself for some months for confirmation that he was able to participate in the DLA appeals process, notwithstanding the existence of the extended civil restraint order.

 

31.       Mrs J Douglas, who now acts for the Secretary of State in these proceedings before the Upper Tribunal, supports the claimant’s appeal.  Her argument is that the claimant was denied a fair hearing before the tribunal.  In particular, she says that the failure to address his enquiries about whether the scope of the extended civil restraint order precluded him from attending the tribunal hearing amounted to a breach of natural justice. 

 

32.       She refers to the decision of Mr Commissioner Jacobs in CJSA/5100/2001.  That was a case on very different facts.  However, the tribunal’s handling of that appeal meant in practice that “the claimant was deprived of the opportunity to present the case he wanted to the tribunal.  The result was that he was at disadvantage compared to the Secretary of State in the presentation of his case.  He did not have equality of arms with the Secretary of State.  The Tribunal’s proceedings were in breach of his Convention right to a fair hearing” (at paragraph 16).

 

33.       I agree that a similar analysis applies here.  The claimant opted for a hearing on the papers, rather than an oral hearing, in July 2008.  He repeatedly asked the Tribunals Service whether the extended civil restraint order precluded him from participating in the appeals process.  He did not receive any answer, let alone a clear answer, to that question.  If he had been told that the extended civil restraint order had no relevance to these tribunal proceedings, the claimant may have decided to change his election and have opted for an oral hearing of his appeal.  There might also have been further evidence which he wished to adduce in support of his appeal.

 

34.       Furthermore, the “overriding objective” of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 “is to enable the Tribunal to deal with cases fairly and justly” (Rule 2(1)). Moreover, “[d]ealing with a case fairly and justly includes… ensuring, so far as practicable, the parties are able to participate fully in the proceedings” (Rule 2(1)(c).  The claimant was denied that opportunity in this case.

 

35.       I am satisfied that the breach of natural justice was inadvertent on the part of the tribunal, but the fact remains that the claimant was denied a fair hearing.  I therefore set aside the tribunal’s decision as it involves an error of law.  The Upper Tribunal is not in a position to re-make the decision.  My decision is therefore to remit the claimant’s appeal to a new tribunal to be determined afresh.  The new hearing is subject to the directions at paragraph 48 below.

 

The answer to the claimant’s question

 

36.       The claimant’s participation in his DLA appeal is not affected in any way by the continuing extended civil restraint order.  I am satisfied that the Order of the Torquay and Newton Abbot County Court dated 5 October 2007 does not stop the claimant from submitting evidence and appearing in person at an oral hearing of his appeal before the First-tier Tribunal against the Secretary of State’s decision dated 18 December 2007 on his claim to disability living allowance.  The Order is by its terms plainly confined to legal proceedings in Devon and Cornwall concerning the installation of cavity wall insulation and an associated independent expert determination.  That is also made clear by the Judgment of HH Judge Griggs.  The separate section 42 application, which might have had some wider impact, has been discontinued in any event by the Attorney General.

 

37.       On one view it was somewhat mischievous of the claimant to suggest that his DLA appeal might fall within the terms of the order dated 5 October 2007.  In doing so, the claimant was ignoring Judge Griggs’s statement that “if he attempts to issue new proceedings, applications or processes which are within the scope of this order, he is liable to be brought before the court and sentenced for contempt; he runs the real risk of a prison sentence” (emphasis added).

 

38.       Be that as it may, the claimant asked a simple question.  He was entitled to a simple answer.  On that point he was ignored, rather than given a straight answer to a straight question.  That amounted to a breach of natural justice in the circumstances of this case.

 

39.       The claimant may therefore take a full part in the new hearing of his DLA appeal.  In addition, the claimant, just like the Secretary of State, must “help the Tribunal to further the overriding objective” and “co-operate with the Tribunal generally” (Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, Rule 2(4)).  I note in passing that the tribunal also has the power to strike out the claimant’s proceedings, or alternatively to prevent the Secretary of State from taking any further part in the proceedings, if certain conditions are met (Rule 8).  However, there is no suggestion that any of those conditions have been met in the context of this DLA appeal.

 

Other matters

 

40.       In his grounds of appeal and associated correspondence, the claimant poses a number of further questions.  In particular, the claimant argues that the rulings of Lord Woolf MR in Ebert v Venvil [2000] Ch 484 and of the Court of Appeal in Bhamjee and Forsdick and Others (No. 2) are “mere judicial fantasy”.  He also argues that the Upper Tribunal needs to rule on the lawfulness or otherwise of the inherent powers of the judiciary to make extended civil restraint orders under the Court of Appeal’s decision in Bhamjee and Forsdick and Others (No. 2).

 

41.       I have no hesitation in resisting that temptation.  In so far as they are relevant, the decisions of the Court of Appeal in Ebert v Venvil and in Bhamjee and Forsdick and Others (No. 2) are binding on the Upper Tribunal under the doctrine of precedent.  I am satisfied that the extended civil restraint order was properly made but equally satisfied that it does not preclude the claimant from pursuing his DLA appeal before the First-tier Tribunal.  There is therefore no need to explore the matter any further.

 

42.       The claimant raises a number of further matters in his correspondence.  He requests me to direct the Secretary of State’s representative to withdraw, rewrite and resubmit her observations on the appeal because of errors contained therein.  That is not necessary as the claimant has suffered no disadvantage or prejudice because of those errors.  The claimant also seems to think that as a preliminary matter the Upper Tribunal should seek an assurance from Judge Griggs that the claimant may participate in the present proceedings without fear of sanction.  I have explained above why that is unnecessary.  I must also stress that Mr Jack Straw is not my “immediate superior”, as the claimant asserts, and that the judges of the First-tier Tribunal and the Upper Tribunal enjoy the same independence as judges in the courts (Constitutional Reform Act 2005, section 3, as amended by Tribunals, Courts and Enforcement Act 2007, section 1).

 

Conclusion

 

43.       I must therefore allow the claimant’s appeal and set aside the decision of the Exeter First-tier Tribunal dated 12 December 2008 under file reference 194/08/00449 (Tribunals Courts and Enforcement Act 2007, section 12(2)(a)).  I am not in a position to decide the issue of the claimant’s possible entitlement to disability living allowance on its merits.  The case must therefore be remitted for rehearing by a new tribunal subject to the directions that follow (section 12(2)(b)(i)).  

 

44.       For the avoidance of doubt, I must stress that I am making no decision or expressing any view on the issue of whether the appellant is indeed entitled to any award of DLA.  That is a matter for the judgment of the new tribunal, which includes members with the necessary expertise on issues other than law.

 

45.       So the new tribunal may end up coming to the same conclusion as the previous tribunal and so dismiss the appellant’s appeal against the Secretary of State’s decision.  Alternatively, it may decide that the Secretary of State was wrong and an award should have been made.  It is for the new tribunal to decide, having reviewed the relevant evidence and made its own findings of fact.

 

46.       I must also draw attention to section 12(8)(b) of the Social Security Act 1998.  This states that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (my emphasis).  That decision was made on 18 December 2007.  Let us assume for a moment that the new tribunal takes place on 18 December 2009 (of course, when it actually takes place is a matter for the Tribunals Service Regional Office).  The issues for the new tribunal will not be the appellant’s care and/or mobility needs as a result of his arthritis as at the date of the new hearing in 2009.  The tribunal will have to focus on the appellant’s care and/or mobility needs on 18 December 2007.  It may be difficult to think back two years ago, but that is the statutory requirement on tribunals as laid down by section 12(8)(b).

 

47.       For the record this does not mean that any evidence from doctors treating the claimant and dated after 18 December 2007 are irrelevant.  They may well be relevant insofar as they may refer to how his condition affected him at that date.  It is any subsequent deterioration after that date which the tribunal is precluded by section 12(8)(b) from taking into account.

 

Directions

 

48.       The following directions apply:

 

(1)        The rehearing will be at an oral hearing.

 

(2)        The new tribunal should not involve any member who has previously been a member of a tribunal involved in this appeal.

 

(3)        The appellant is reminded that the tribunal can only deal with the appeal as at the date of the original decision under appeal (see paragraph 46 above).

 

(4)        If the appellant has any further written evidence to put before the tribunal, in particular medical evidence, this should be sent to the tribunal within one month of the issue of this decision.

 

(5)        The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal.  Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

These directions are all subject to any later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

 

 

 

 

 

 

 

 

 

 

 

Signed on the original                                              Nicholas Wikeley

on 2 October 2009                                                     Judge of the Upper Tribunal