Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

The decision of the First-tier Tribunal that was made on 30 May 2012 under reference X/09/256415 is quashed: section 15(1)(c) of the Tribunals, Courts and Enforcement Act 2007.

DIRECTIONS:

A.         The matter is remitted to the tribunal with the following directions under section 17(1)(a) of the Tribunals, Courts and Enforcement Act 2007.

B.         The tribunal must consider afresh whether to extend time to admit the Notice of Appeal in accordance with my analysis of the law in the reasons below.

Reasons for Decision

A.         Introduction

1.          This application for judicial review is brought with my permission. The applicant, Mr A, applied for criminal injuries compensation under the 2008 Scheme on 22 May 2009 in respect of injuries said to have been sustained in an assault on 14 February 2008. The respondent is the First-tier Tribunal, which refused to extend time to lodge his Notice of Appeal. The Criminal Injuries Compensation Authority is an interested party.

2.          Mr A’s application was at first refused, but on review an award was made of £1000 for temporary mental anxiety. This was subject to two reductions. One reduction, of 25%, was made under paragraph 13(1)(d) to take account of Mr A’s behaviour around the time of the assault. The other reduction, of £50, was made under paragraph 48 to take account of compensation made on order of a criminal court. The Authority notified Mr A of its decision on 14 June 2011.

3.          Mr A exercised his right of appeal to the First-tier Tribunal on 8 February 2012. That was out of time. On 11 April 2012, the tribunal directed him to send with his reasons for failing to lodge his Notice of Appeal’ in time. He did not reply and, on 30 May 2012, the tribunal refused to extend the time for lodging that Notice, saying that ‘the Appellant has failed to give any reasons for the delay’.

4.          I gave Mr A permission to apply for a judicial review of the tribunal’s decision on the ground that the tribunal had inappropriately limited the scope of its enquiry relevant to its power to extend the time for appealing. I cited my decision in R (KS) v First-tier Tribunal and Criminal Injuries Compensation Authority [2012] UKUT 281(AAC), which is in the papers at pages 21-27.

5.          I now quash the tribunal’s decision in accordance with that decision.

B.         The Authority’s submissions

6.          The Authority has made detailed submissions, for which I am grateful. Mr A has not replied to them.

R (KS)

7.          The Authority has referred to my reliance in R (KS) on Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449. It has argued that:

‘whilst the factors referred to in Norwich and Peterborough Building Society and quoted in R (KS) may often be relevant factors for the FTT to take into account, it is not necessary in every case for the FTT expressly to address all of those factors in reaching its decision; what must be addressed will depend on the particular circumstances.’

That argument misses the point. The tribunal’s decision is not defective for giving inadequate reasons. It is defective for not enquiring into or considering the potential merits of Mr A’s appeal.

8.          The Authority has argued that my decision in R (KS) is inconsistent with other decisions of the Upper Tribunal. I do not accept that. One decision cited is OFSTED v AF [2011] UKUT (AAC) 72 (AAC), [2011] AACR 32. Upper Tribunal Judge Levenson there declined to give guidance on how the power to extend time should be exercised:

21. OFSTED complains that, in cases in which it is involved, the power under rule 5(3)(a) is, or might be, exercised inconsistently, and seeks guidance from the Upper Tribunal on how that power should be exercised. However, the power is expressed in deliberately wide terms and the facts of each case vary enormously. The Rules already provide that the power must be exercised fairly and justly and so as to avoid delay “so far as compatible with proper consideration of the issues”. Any further guidance by the Upper Tribunal would either be so general as to be meaningless or would be likely to spark time-consuming and unnecessary satellite litigation.

I respectfully agree that it is not appropriate to lay down rules or even guidelines on how the First-tier Tribunal should apply its case management power to extend time. But that is not what I was doing in R (KS). What I was doing there was to draw attention to the range of information that the tribunal had to take into account. It is one thing to say what a tribunal must take into account. It is something altogether different to tell a tribunal how to exercise its discretion in relation to that information.

9.          The other decision cited is Information Commissioner v PS [2011] UKUT 94 (AAC). Upper Tribunal Judge Wikeley there undertook an extensive examination of the caselaw in this Chamber and elsewhere in the tribunal system. I accept the Authority’s argument that he decided:

‘that it was not appropriate to import or create any specific guidance on the issue of extending the time limit to appeal; each case should be considered on its own facts with reference to the relevant rules governing the Tribunal.’

However, as with the OFSTED case, I see nothing inconsistent with what I said in R (KS). Identifying the range of factors that a tribunal has to take into account is not importing or creating specific guidance. Nor is it inconsistent with every case having to be decided on its facts with reference to the rules of procedure. To put it another way, a First-tier Tribunal is not free to limit itself to particular categories of information or to disregard particular classes of information. The respect shown to that tribunal by the decisions cited does not extend that far.

Adequacy of reasons

10.       Having rejected the Authority’s arguments on R (KS), it follows that I also reject its argument that the tribunal’s reasons were adequate. Adequacy of reasons is not the point.

The merits of Mr A’s appeal

11.       The Authority has finally argued that, on the evidence before the First-tier Tribunal, Mr A had little prospect of success. The Authority may or may not be right on that. For the sake of argument, I am prepared to accept that it is. However, it misses the point. The approach that the tribunal took did not give Mr A the opportunity to address the merits of his appeal. It is possible, I put it no higher, that he may be able to persuade the tribunal, either by his own evidence alone or with the support of other evidence, that the award made was inappropriate. The error of law in the tribunal’s decision is that it did not give him a chance to show that. The tribunal’s direction did not invite him to address the merits and it did not hold an oral hearing at which it could have explored that issue.

C.         What happens now?

12.       The case is remitted to the First-tier Tribunal for it to consider again, after appropriate enquiries and possibly an oral hearing, whether or not to extend time for Mr A to lodge his appeal.

13.       I draw Mr A’s attention to paragraphs 50-57 of the Authority’s submission on pages 44-45. It will help him to understand the hurdle the Authority’s case that he has to overcome.

 

Signed on original on 7 March 2013

Edward Jacobs Upper Tribunal Judge