Case No  CDLA/0371/2009

IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:   I extend time under rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”) and otherwise validate the claimant’s application, which was received outside the normal time-limit for applying and did not contain sufficient particulars of the reasons for lateness.  I consider it in the interests of justice to admit the application, as the First-tier Tribunal had (wrongly) refused to provide a statement of reasons for the decision under appeal.  I give permission to appeal and allow the appeal.  The decision of the appeal tribunal sitting at Newcastle-on-Tyne on 23 July 2008 involves an error of law and is set aside.  The case is referred to the First-tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal.

REASONS FOR DECISION

1.	This decision is supported by both parties.

2.	The Newcastle-upon-Tyne tribunal sitting on 23 July 2008 awarded the claimant Disability Living Allowance for the period 23 October 2007 to 22 October 2010.  The award was of the lowest rate of the care component only.  The decision notice was given to him on the day.

3.	On 22 August 2008 a letter was sent by solicitors acting for the claimant requesting a statement of reasons.  That letter was sent both by post and, as subsequently transpired, by fax at 1440 hours, to the number indicated on correspondence from the Tribunals Service.  Proof of faxing has subsequently been supplied.

4.	Papers were put before the District Chairman including only the posted version of the letter, which had been received on 26 August (25 August having been a Bank Holiday) and which was therefore considered to be late.  The District Chairman refused to allow the late application (as it appeared to be) on the basis that it was practicable for the application to have been made in time.

5.	The solicitors then provided proof that the fax had been duly sent, although it still proved impossible to locate the fax within the Tribunals Service.  On 24 October the District Chairman instructed that the chairman of the appeal tribunal be asked if she could prepare a statement of reasons.  On 27 November the tribunal chairman replied, indicating that she would find it very difficult to do so in view of the time that had elapsed.  On 4 December the District Chairman took a formal decision that the tribunal chairman should not be asked to prepare a statement of reasons.

6.	On 7 January 2009 the solicitors (who had been assiduous in progress-chasing with the First-tier Tribunal) were told by the Tribunals Service that no statement had ever been produced and that they should apply to the Upper Tribunal.  This they did, though not until 16 February.

7.	The grounds on which permission to appeal has been sought include that the decision to award the lowest, rather than the middle, rate of the care component was, in the legal sense, perverse and that the decision not to award the lower rate of the mobility component was unsupported by evidence (perhaps this might also be viewed as an allegation that the finding was perverse.)

8.	Under regulation 2 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, a document required to be sent to the clerk to the appeal tribunal (such as a request for a statement of reasons) is to be treated as having been sent on the day it is received by the clerk to the appeal tribunal.  As proof of transmission by fax to the number held out for the purpose has been provided, I find that it is more likely than not that the faxed version of the solicitors’ letter was lost in the office of the Tribunals Service.  In these circumstances, the request for a statement of reasons was in time.

9.	Once a valid request had been made, the chairman was under an obligation to provide one: see regulation 53(4) of the 1999 Regulations.  The fact that a little over three months had elapsed before the request reached the chairman does not affect the need to comply with the duty and the failure to comply resulted in the tribunal being in error of law.

10.	While it may not always be easy to recall the detail of a case some months after the event, the potential need to do so is always present.  Under the 1999 Regulations, a late application for a statement could be made up to three months after the decision was issued.  In practice, the gap before an application reached a chairman might be a good deal longer than three months: the papers might need to be referred to a District Chairman, necessary administrative processes, such as copying the papers and posting them to part-time chairmen would need to be gone through, and it is not unknown for delays to occur due to heavy workloads or administrative error.  Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 is differently expressed, but, taken together with the power under rule 5 to extend the time for complying with any rule, is likewise capable of resulting in a request to prepare a statement of reasons being received some considerable time after the hearing.  It is important, therefore, that a chairman makes sufficient notes in his or her judicial notebook of the tribunal’s findings and reasoning to enable a statement to be prepared in such circumstances.

11.	Under rule 21(3) of the Upper Tribunal Rules the application to the Upper Tribunal should have been made within one month of when the First-tier Tribunal refused to admit an application for permission to appeal.  That was the effect of the telephone conversation of 7 January 2009 in which the solicitors were told to apply to the Upper Tribunal.  I have extended time because (a) the delay at this point was short; (b) given the history of the matter, there was no very clear baseline from which time started to run; (c) the solicitors had made considerable efforts earlier to advance matters; and (d) it is a matter of some concern that a claimant has been unable to obtain a statement of reasons to which he was entitled and without which he would be powerless to pursue an application for permission to appeal based on perversity, as the claimant’s - at least in part - is: see R(IS)11/99.  For similar reasons I consider it to be in the interests of justice for the purposes of rule 21(7) to admit the application.

12.	There will have to be a full re-hearing before a differently constituted tribunal.  I do not consider I need to give any further direction.  The fact that this appeal has succeeded on a point of law should not be taken as carrying any implication as to the eventual outcome, which is entirely a matter for the tribunal to whom this case is remitted.

(signed)						

C.G.Ward
Judge of the Upper Tribunal
26 March 2009