Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (held at Bournemouth on 21 July 2009 under reference 195/09/00179) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the claimant had continuous good cause for his failure to make his claim for housing benefit and council tax benefit during the inclusive period from 27 February 2009 to 26 April 2009.

Reasons for Decision

1. This is an appeal to the Upper Tribunal, brought by the claimant through his appointee, with the permission of Deputy Upper Tribunal Judge Thomas. The appeal is against the decision of the First-tier Tribunal. That tribunal confirmed the decision of Pembrokeshire County Council that the claimant was not entitled to housing benefit and council tax benefit for the inclusive period from 27 February 2009 to 26 April 2009, because he did not have continuous good cause for his failure to make a claim.

A. The claim for benefit

2. The claimant moved into his new home on 27 February 2009. He submitted a claim form on 9 March 2009, asking for benefit from 27 February. He explained the delay: ‘Had to have help with form and my mother was ill so couldn’t help.’ The form was signed as completed on 4 March.

3. On 19 March, the local authority wrote to the claimant asking for him to complete two sections of the form and to provide evidence on others matters. Having received no reply, the authority wrote again on 26 March 2009. There was still no reply on 2 April and the authority wrote saying that it had treated the claim as defective and decided that the claimant no longer wished to continue with his application.

4. However, on 6 April the local authority received the outstanding sections of the claim form. As the additional evidence was not included, the authority sent a reminder on 7 April. This information was received on 22 April along with another completed claim form. Benefit was awarded from 27 April 2009, but not from any earlier date.

B. The appeal to the First-tier Tribunal

5. The claimant exercised his right of appeal to the First-tier Tribunal in respect of the effective date of the award and said he did not want an oral hearing. He wrote that the mail to his home was not regularly delivered because of problems with access and he had not received the letters of 19 March and 2 April. He added that he had been to interviews at County Hall several times to try to ensure that he obtain benefit.

6. The authority’s response was that he must have received the letter of 19 March, because he replied to it in part. He was, therefore, aware of the documents that were required.

7. The claimant’s mother wrote in support of the appeal. She explained that her son’s disabilities made things difficult for him. She reported visits to County Hall and the problems of dealing with a different person each time.

C. The tribunal’s decision

8. The issue for the First-tier Tribunal was whether the claimant had continuous good cause for his failure to claim before 22 April 2009. It confirmed the decision that he did not. After setting out the law and the facts, the judge gave his reason for dismissing the appeal:

‘8. In the applicant’s appeal and subsequent correspondence it is stated that the applicant is a vulnerable adult with ADHD who also has a general lack of concentration. This may indeed be so but neither the applicant or his mother have produced any medical or other evidence in support of this assertion. It is for the applicant to produce such evidence and it is also noted that his right to an oral hearing was declined. The burden of proof to establish “good cause” rests on the Claimant CH 5135/2001 and it is for the applicant himself to satisfy the Tribunal that the nature of his illness or disability is sufficient to constitute or lead to good cause.’

D. The correct approach to paper hearings

9. It may be helpful to begin by saying something about the correct approach to paper hearings and, in particular, the role of the overriding objective.

10. The tribunal’s power to deal with a case without an oral hearing is governed by rule 27 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI No 2685):

‘27 Decision with or without a hearing

(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—

(a) each party has consented to, or has not objected to, the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without a hearing.’

Exercising that power involves three stages.

11. The first stage occurs when a case is put before a tribunal for consideration on the papers and without the parties. That is done on the basis that none of the parties has asked for an oral hearing. It is probably done by a clerk and without any individual judicial consideration of the case.

12. The second stage occurs at the start of the tribunal’s consideration. It must be satisfied that no one has asked for an oral hearing. That is a condition of its power to consider the case on the papers. It that condition has not been satisfied, it has no power to proceed and must adjourn and direct an oral hearing. This is a judicial decision under rule 27(1)(a). There is no scope for the overriding objective to apply. Either there has been a request for an oral hearing or there has not. The condition is either satisfied or it is not.

13. The third stage occurs when the tribunal has considered the case. It must then decide whether to give a decision or to adjourn. The adjournment may be to allow an oral hearing to take place or to give directions to a party on evidence that is required. If an oral hearing is directed, this is a judicial decision under rule 27(1)(b). If the case is adjourned with directions, this is a judicial decision under rule 5(3)(h) (case management power to adjourn). In either case, the decision must be made in the light of the overriding objective. That objective is set out in rule 2:

‘2 Overriding objective and parties’ obligation to co-operate with the Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes—

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.’

14. In deciding how to proceed, the tribunal must apply that objective. It must consider any factor relevant to the fairness and justice of the way it deals with the case. The factors listed in rule 2(2) are illustrative, not exhaustive, but they are a useful starting point.

E. Applying the objective in this case

15. In this case, as in many, some factors will favour an adjournment while other will favour giving a decision.

16. The tribunal could have adjourned. The claimant had said that he did not want an oral hearing and a domiciliary hearing was not indicated. However, the tribunal could have adjourned with directions on the evidence to be provided. Several factors favour this approach: (i) it avoids the formality of an oral hearing; (ii) it is flexible; (iii) it helps the claimant to participate more fully in the proceedings; (iv) it makes effective use of the tribunal’s legal expertise to help the claimant. These factors must not be assessed in isolation from the case. It is significant that the claimant and his mother were not present to be questioned and had not been represented. They probably did not understand that the tribunal would not necessarily accept what they said on medical matters. It is also relevant that the tribunal could identify the specific information it required and it could be obtained easily, quickly and without cost.

17. The tribunal could have given a decision on the day, as it did. Other factors favour this approach: (i) it is proportionate to the issue, which was a straightforward matter of fact and judgment concerning entitlement for only two months; (ii) it makes use of the tribunal’s expertise on the evidence available; (iii) it avoids delay without compromising the proper consideration of the issues by using its own expertise to assess the evidence. However, each of these points must be qualified.

18. As to proportionality, the issue was straightforward and the period in issue short. However, it was important to the claimant, whose rent was in arrears. The decision to dismiss the appeal was drastic compared to issuing a direction identifying the evidence required.

19. As the use of expertise, the tribunal was not using any special medical expertise. It was not hearing, say, a disability living allowance case in which the combined knowledge and experience of the members would allow it to assess the evidence available without the need for medical corroboration. The tribunal consisted of a judge alone. That judge may have had considerable experience of dealing with attention deficit hyperactivity disorder in other benefits. But that it not the same as medical knowledge or actual experience of disablement. Moreover, in this case the tribunal did not use its expertise to assess the evidence. It decided that it was not sufficient without corroboration. It was entitled to take that view, but in doing so it assumed that the claimant and his mother would understand the need to produce supporting evidence.

20. As to delay, that is only relevant if it is compatible with the proper consideration of the issues. In any event, the delay would be short and would not cause any prejudice to the other party.

21. So far I have not considered the operation of the tribunal system as a whole. This is a permissible consideration. There would be some impact, as the resumed hearing of this case might cause other cases waiting for a hearing to be delayed. I suspect that too much can be made of this. There is surely always some flexibility in listing and the possibility of cases being substituted if other cases are adjourned out of a list. Any impact would be minimal. It was not caused by any deliberate act on the part of the claimant or his mother, merely their lack of understanding. And there had been no history of delay or tactical manoeuvring.

F. How the tribunal made an error of law in making its decision

22. I could decide that the tribunal’s reasons are inadequate to explain why it did not adjourn. However, there is a more fundamental point. In the circumstances of this case, there was only one way in which the tribunal should have applied the overriding objective. It should have adjourned with directions to the claimant on the evidence that it required. There was no significant factor affecting the operation of the system as a whole. Its ultimate purpose is to allow cases to be decided fairly and justly, not to obstruct that process. There are some factors that favour deciding the case on the evidence available. However, each of those factors is subject to the qualifications I have set out. Moreover, the tribunal did not so much rely on the evidence available as draw attention to the lack of corroboration. That is the basis of its reasoning in paragraph 8, which I have set out. The factors in favour of an adjournment are overwhelming. Essentially, they focus on what has become known as the enabling approach to tribunal procedure. This approach allows the tribunal to assist parties, especially those who are not represented, to make effective use of the proceedings. This may require, as in this case, guiding a party on the adequacy of the evidence and the nature of the evidence required.

G. Disposal

23. I allow the appeal and re-make the decision in the claimant’s favour. The local authority has left the matter to the decision of the Upper Tribunal. I accept that the claimant has difficulties with the delivery of post as a result of problems of access. As a result, mail may not be delivered or reach the wrong flat. Given the nature of his accommodation, that is plausible and there is no evidence to cast doubt on what he says. As a result of those problems, he did not receive all the correspondence from the local authority. He also has attention deficit hyperactivity disorder. He has difficulties with attention and focusing on problems. His mother is his main carer and responsible for all his paperwork. There is now medical evidence on those matters. Obviously, his mother has her own life to lead as well as caring for her son. I consider that the combined effect of those circumstances provided continuous good cause throughout the period in issue.

Signed on original on 29 January 2010

Edward Jacobs Upper Tribunal Judge