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2012 UKUT 232 AAC CH 2846 2011 - Late appeal– notification of local authority’s decision not received by claimant - HB/CTB

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John's picture
Joined: 09/03/2008





1.In accordance with the provisions of the Tribunal Procedure (Upper Tribunal) Rules 2008, I accept jurisdiction and waive any failure to comply with procedural requirements that would otherwise prevent me from dealing with this appeal.


2. This appeal by the local authority (brought by permission of the District Tribunal Judge given on 10th March 2011) does not succeed. In accordance with the provisions of section 12 of the Tribunals, Courts and Enforcement Act 2007 I confirm the interlocutory decision of the Social Entitlement Chamber of the First-tier Tribunal sitting in Fox Court (London) given by Judge Burnfield and made on 14th January 2011 (reference 242/09/11546). This is to admit for consideration the appeal(s) to the First-tier Tribunal made by the claimant (who is the respondent in this appeal to the Upper Tribunal), possibly against a decision made by the appellant local authority on 23rd November 2006 (that there was a recoverable overpayment of housing benefit of £1186.18), although the First-tier Tribunal will have to clarify whether the claimant’s appeal covered that issue, and certainly against decision(s) of 15th February 2007 and 2nd February 2007 (that there was no entitlement to housing or council tax benefit as from 4th January 2007 and that there were further recoverable overpayments of £29.74 housing tax benefit and £108.62 council tax benefit).


3. I refer these matters back to the First-tier Tribunal to continue to deal with the substantive appeals, on the merits of which I express no opinion whatsoever.


4. I do not propose to go into the substantive issues, which have been the subjects of much correspondence and of which the parties are well aware, or all of the procedural complexities of this matter.


5. The claimant’s case is that he never received certain notifications from the appellant local authority and therefore could not be expected to deal with them or to appeal in time. The local authority maintains that relevant notifications were issued properly. That is the matter that came before the First-tier Tribunal judge on 14th January 2011 and to which the appeal to the Upper Tribunal relates.


6. The usual time limit for appealing such decisions to the First-tier Tribunal is one month from the date that the decision is issued. The one month rule is set out in schedule 1 to The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. Other relevant provisions of those rules include the following:


5(1) Subject to the provisions of the [Tribunals, Courts and Enforcement Act 2007] and any other enactment, the Tribunal may regulate its own procedure.


(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.        


(3) In particular, and without restricting the general powers in paragraphs (1) and (2) the Tribunal may -

(a) extend or shorten the time for complying with any rule, practice direction or direction.


23(5) No appeal may be made mote than 12 months after the time specified in schedule 1.


7. In the decision of 9th March 2010 the judge seemed to confuse the question of whether the relevant decision(s) had been issued and whether the claimant had received them. The rules cited above depend on issue, not receipt. If the decisions were properly issued at the appropriate time, then clearly the appeals (lodged on 19th August 2009) were out of time and beyond the 13 month absolute limit. However, the judge also found that “There is some evidence of inefficiency by the Council with regard to communication” (paragraph 6(b)). I also observe that some of the correspondence from the local authority has been barely literate for communications of this nature from a public body (for example its letter of 4th March 2011 to the Tribunals Service reproduced at page 28).


8. There is no doubt, following the decision of the Upper Tribunal in

LS v London Borough of Lambeth [2010] UKUT 461 (AAC), that there is a right of appeal to the Upper Tribunal against this kind of decision of the First-tier Tribunal (although it might have been better in the present case for the First-tier Tribunal to use its own powers under rule 5(2) above). However, section 12 of the Tribunals, Courts and Enforcement Act 2007 provides as follows (my emphasis):


12(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal … finds that the making of the decision concerned involved the making of an error on a point of law.


12(2) The Upper Tribunal –


(a) may (but need not) set aside the decision of the First-tier Tribunal …


9. In the unusual and procedurally complex circumstances of the present case, where the First-tier Tribunal found that even if the relevant notifications had been properly issued the claimant had not received them, and given the unsatisfactory nature of some of the local authority’s procedures, it seems to me that procedural matters at all stages have assumed too much importance and obscured what the interests of justice require – a proper settlement of the substantive disputes. Accordingly, on the assumption that the interlocutory decision of the First-tier Tribunal did involve the making of an error of law, I decline to set it aside. This means that it stands and is binding on the parties.



H. Levenson

Judge of the Upper Tribunal


3rd April 2012