Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is disallowed. The decision of the Wakefield First-tier Tribunal dated 27 July 2011 did not involve any error on a point of law and therefore stands.

 

Further, the application to the Upper Tribunal for permission to appeal against the decision of the Wakefield appeal tribunal of 22 August 2006 cannot be admitted for consideration because the Upper Tribunal has no power to extend the time for making that application to the date of its receipt (13 September 2011).

 

 

REASONS FOR DECISION

 

1. This is one of the very last of the cases before the Upper Tribunal in which claimants who were deprived of entitlement to the care component of disability living allowance (DLA), to attendance allowance (AA) or carer’s allowance (CA) on their leaving Great Britain and becoming resident in another Member State of the European Union prior to the decision of the European Court of Justice (which I shall call the ECJ although it is now the Court of Justice of the European Union) in Commission of the European Communities v European Parliament and Council of the European Union, Case C-299/05, [2007] ECR I-8695 on 18 October 2007 attempt to have their entitlement reinstated from the date it was taken away. Because the present case has the special feature that the decision taking away entitlement to DLA was confirmed on appeal by what was at the time an appeal tribunal it was not decided at the same time as the great majority of the cases in the block after the decisions were issued in the lead cases of CK and JK v Secretary of State for Work and Pensions (CA, DLA) [2013] UKUT 218 (AAC), BD v Secretary of State for Work and Pensions (DLA) [2013] UKUT 216 (AAC) and BM v Secretary of State for Work and Pensions (DLA) [2013] UKUT 217 (AAC). An oral hearing was directed to discuss the additional issues arising from the special feature of the case.

 

2. The hearing took place at Bradford Immigration Appeals Centre on 6 November 2013. The claimant’s appointee attended and was represented by Mrs Frances Tighe, a retired solicitor but acting in a private capacity as the claimant’s sister. The Secretary of State was represented by Stephen Cooper, solicitor, instructed by DWP Legal Services. I thank both representatives for their assistance.

 

The background

3. In the circumstances I only need to sketch in the background. Prior to December 2005 the claimant was entitled to the higher rate of the mobility component and the highest rate of the care component of DLA on an indefinite basis. On 25 January 2006 she signed a DBD231 form stating that she had gone to live abroad, in Spain, on 17 December 2005, in the hope that better weather conditions and purpose-built accommodation would make dealing with her health condition easier. She said that she would come back to live permanently in Great Britain, but only at an unknown date. I accept that there had been earlier contact to inform the Department of the move. On 15 March 2006 a decision-maker on behalf of the Secretary of State superseded the previous awarding decision (of 21 October 2003) on the ground of a relevant change of circumstances and decided that the claimant was not entitled to either component of DLA from and including 18 December 2005.

 

4. That decision was wrong in law for two reasons. The first is that under the form of regulation 7(2)(c)(ii) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 in force in March 2006 the superseding decision could only take effect from 15 March 2006, not from 18 December 2005 (see paragraphs 47 and 48 of CK and JK and paragraphs 12 and 13 of BD). The second is that, as revealed by the subsequent decision of the ECJ in Commission v Parliament, EU law prevented the taking away of entitlement to the care component in the circumstances of December 2005, although as has later been confirmed EU law did not prevent the taking away of entitlement to the mobility component. I do not need to go into Mrs Tighe’s submissions on 6 November 2013 about the significance of the ECJ having annulled the May 2005 amendments to Council Regulation (EC) No 1408/71 in so far as they listed DLA (care component only), AA and CA as special non-contributory benefits that did not have to be exported to other Member States. It cannot be denied that the decision in Commission v Parliament established the position in EU law as at the date of the move in the present case, with the result that the care component of the claimant’s DLA was to be categorised as an exportable sickness benefit, that she satisfied the conditions for export and that accordingly the British DLA residence and presence conditions could not in law be applied to her from 18 December 2005.

 

5. The claimant appealed against the decision of 15 March 2006. The appeal tribunal sitting on 22 August 2006 disallowed the appeal. The brief reasons on the decision notice recorded a finding that she had ceased to be ordinarily resident in Great Britain as soon as she left and therefore ceased to satisfy the British residence and presence conditions immediately. On the evidence in the letter of appeal that the claimant and her husband had sold their house in England to buy the adapted house in Spain, that was a finding that the tribunal was plainly entitled to reach. The tribunal confirmed the decision of 15 March 2006. Thus its decision also incorporated the two errors of law identified in the previous paragraph.

 

6. There was not at that time any application for a full statement of reasons for the appeal tribunal’s decision or for leave to appeal to what then was a Social Security Commissioner.

 

7. On 26 October 2007, very promptly indeed after the ECJ’s decision in Commission v Parliament, the claimant wrote to the Department referring to the decision and asking for reinstatement of her entitlement to DLA and of her husband’s entitlement to CA. The letter was received on 5 November 2007, but nothing happened. In a further letter dated 15 October 2008 she said that she had written to the appeal tribunal requesting a review of its decision and had got the reply that she enclosed. This was a response from a district chairman of appeal tribunals (I think from the handwriting, Mr Searby, as he then was) dated 5 September 2008 to a query from a clerk about how correspondence from the claimant should be dealt with. The reply was:

 

“Any reconsideration of the decision by a tribunal or SS Commissioners is out of time. She should make her case to DWP.”

 

As explained in paragraph 3 of my case management directions dated 31 January 2012 I am prepared to regard that reply as a rejection of an application by the claimant for leave to appeal to a Social Security Commissioner on the ground that the application was made outside the absolute time limit. The district chairman plainly regarded whatever the claimant had written as including an application for leave to appeal and I see no reason to differ from that.

 

8. Eventually, after more correspondence and completion of forms, a decision was given on 10 August 2009 that the claimant was not entitled to either component of DLA from and including 5 November 2007. That decision was made under an erroneous view about the effectiveness of the past presence condition (26 out of the previous 52 weeks), so that on 4 June 2010 there was a revision of the decision of 10 August 2009 to award the highest rate of the care component from and including 5 November 2007, but to maintain the disallowance of the mobility component. The basis of the award was not made clear, since the there could not even be a supersession of a decision of an appeal tribunal on the ground of error of law. Only decisions of the Secretary of State could be superseded on that ground or be open to the process of revision. Possibly the award could be justified on the basis of there having been a new claim on 5 November 2007 and the certificate of 10 August 2009 (page 102) containing a mistake about the date. The letter notifying the claimant of the decision also informed her that an extra-statutory payment of care component would be made for the period from 18 October 2007 to 6 November 2007 (sic).

 

9. The claimant had appealed against the decision of 10 August 2009. The revision in her favour could have had the effect of causing the appeal to lapse under section 9(6) of the Social Security Act 1998, requiring the making of new appeal against the decision of 10 August 2009 as revised, but that was never brought to the claimant’s attention and I prefer to apply the reasoning of the Tribunal of Commissioners in decision R(IS) 2/08 that the appeal did not lapse in relation to the period prior to 5 November 2007.

 

The decision of the First-tier Tribunal of 27 July 2011

10. By the time of the hearing the claimant had sadly died, but her husband was appointed to continue her claim. He attended the hearing and was represented by Mrs Tighe. The tribunal, constituted by Judge Searby sitting alone, disallowed the appeal. He noted in his combined decision notice/statement of reasons that if it was revision or supersession of a decision of the Secretary of State that was being raised then the issues raised in the submissions on behalf of the claimant would have been relevant. However, he correctly stated that since the operative decision was that of the appeal tribunal of 22 August 2006, there was no provision (under section 9 of the Social Security Act 1998) to revise that decision or to supersede that decision on the ground of error of law (see regulation 6(2)(b)(i) of the Decisions and Appeals Regulations). Paragraph 7 of the notice was as follows:

 

“The tribunal has noted that the decision of 15/03/2006 was made on the grounds of a change of circumstances  due to the [claimant’s] residence outside the UK, but that before 10/04/2006 the drafting of regulation 7(2)(c) was defective and permitted only consideration of changes affected by a disability determination. It also noted that there may be an issue which the [claimant] may wish to raise with the Upper Tribunal as to disapplying time limits which impede revisiting the tribunal decision of 22/08/2006 because of the Secretary of State’s failure to disclose that Commission v Parliament was pending in the [ECJ] and could have led to the appeal being stayed or further appeal being pursued. Had this been done she could have benefited from the decision of ECJ.”

 

The appeal to the Upper Tribunal

11. The claimant’s husband in a letter dated 3 August 2011 to HM Courts and Tribunals Service made what he described as a formal appeal against the decision of 27 July 2011 and requested “that this matter be listed before the Upper Tribunal on the grounds set out in paragraph 7 of the Judge’s decision notice”. Judge Searby gave permission to appeal to the Upper Tribunal against the decision of 27 July 2011. On 13 September 2011 the claimant’s husband lodged a notice of appeal with the Upper Tribunal (AAC) office, including a document dated 9 September 2011 in which he asked, among other things, for the disapplication of the time limits which impeded the revisiting of the decision of the tribunal of 22 August 2006.

 

12. On 31 January 2012 I signed case management directions that included the following:

 

“3.  The issues raised in paragraph 7 of the decision of the tribunal of 27 July 2011 about the possible disapplication of time limits for applying to the Upper Tribunal for permission to appeal against the decision of the appeal tribunal of 22 August 2006 did not arise directly in the cases mentioned above. My preliminary and provisional view of the situation is as follows. I regard the decision of the district chairman recorded on 5 September 2008 as a rejection of the claimant’s implied application for leave to appeal (as it was then called) to the Social Security Commissioner against the decision of the appeal tribunal of 22 August 2006 on the ground that the application was made outside the absolute time limit. Here, not only was the application not made until, it appears, about two years after the date of the appeal tribunal’s decision, but there was never a request for a statement of reasons. The effect of regulation 58 of the Decisions and Appeals Regulations as in force prior to 3 November 2008 was that a chairman had no jurisdiction (ie legal power) to consider an application for leave to appeal where there was no statement of reasons. There was an absolute time limit of three months after the giving or sending out of the appeal tribunal’s decision notice for requesting a statement of reasons. Thus when the application for leave to appeal was made it could not be treated as an implied request for a statement that had to be complied with. The district chairman of 5 September 2008 therefore had no option under the legislation than to reject the application. As the terms of regulation 9 of the Social Security Commissioners (Procedure) Regulations 1999 stood at that date, a Commissioner would have had no jurisdiction to admit any further application for leave to appeal, because the claimant’s application to the district chairman had been made more than 13 months after the date of sending of the appeal tribunal’s decision notice. That was decided in case CS/1952/2001.

 

4.  I would then be prepared to regard the lodging with the Upper Tribunal (AAC) office on 13 September 2011 of the notice of appeal against the decision of the tribunal of 27 July 2011 as including an implied application to the Upper Tribunal for permission to appeal against the decision of the appeal tribunal of 22 August 2006. The issues raised in the paragraph 7 of the decision of the tribunal of 27 July 2011 had been specifically relied on in the application to the First-tier Tribunal. I would also be prepared to look very leniently on the delay between 27 July 2011 and 13 September 2011, as paragraph 7 of the decision of the tribunal of 27 July 2011 had not made it at all clear how the claimant’s appointee could take the issues forward. However, there is a serious problem, on which a response from the Secretary of State is required, over whether the Upper Tribunal has jurisdiction to give permission to appeal in these circumstances. The problem is that as from 3 November 2008 the right of appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007, subject to the giving of permission, is restricted to decisions of the First-tier Tribunal. The First-tier Tribunal is in law a different animal from the appeal tribunals that existed down to 2 November 2008. Under paragraph 4 of Schedule 4 (Transitional Provisions) to the Transfer of Tribunal Functions Order 2008, where an appeal lies to a Social Security Commissioner from a decision made before 3 November 2008 by an appeal tribunal, section 11 of the 2007 Act is to apply as if the decision had been made on or after 3 November 2008 by a First-tier Tribunal. Then if, immediately before 3 November 2008 the situation was that a Social Security Commissioner would have had no jurisdiction to admit an application for leave to appeal against the decision of the appeal tribunal of 22 August 2006, how can it be said that an appeal “lies” to a Commissioner against that decision? If not, the decision of the appeal tribunal cannot be treated as if it were a decision of a First-tier Tribunal and the Upper Tribunal has no jurisdiction. Or does paragraph 4 of Schedule 4 merely refer to the general pre-3 November 2008 route for appeals against tribunals of the type involved in any particular case? If so the Upper Tribunal would have jurisdiction to consider whether to extend time under rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for the making of the application for permission to appeal, free of any absolute restrictions stemming from date on which the application was made to the district chairman of appeal tribunals.”

 

13. The submission from Mr Wayne Spencer on behalf of the Secretary of State dated 2 April 2012 took the view in paragraph 33 that paragraph 4 of Schedule 4 to the Transfer of Functions Order:

 

“could in principle apply, because the Transitional Provisions are directed to the entire category of transitional cases, that is to all outstanding appeals, whether meritorious or unmeritorious, and whether timeous or late. They are designed to provide a mechanism for dealing with such cases, not to decide the outcome of those appeals, or applications relating to them. Accordingly, it would be wrong to construe the word ‘lies’ as excluding a category of appeal which is destined to fail.”

 

However, the following paragraph continued:

 

“34. At the same time, it is submitted that there is only one answer which should be given, consistent with legal certainty, to an assumed late appeal against the AT decision made in 2006; and that is that it should fail, for the same reasons as are given in paragraph 30 above. [Paragraph 30 was an agreement with what I had set out in paragraph 2 of the case management directions about the chairman on 5 September 2008 having been bound to reject an application for permission to appeal] In addition, the new rules brought into force in 2008 should not be given retrospective effect: see LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27. In that case a panel of three Judges held, in paragraph 128 of their decision:

 

‘We do not accept that the new provision … assisted Miss LS, even if it was to be construed literally. The absolute time limit for appealing under regulation 19(2) of the 2001 [Decisions and Appeals] Regulations had expired before the [Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008] came into force. The coming into force of the SEC Rules could not revive the possibility of appealing. That would be to give retrospective effect to the legislation and wrongly deprive the local authority of its acquired right to rely on the time bar. Legislation is to be construed so as not to have such a retrospective effect (see section 16 of the Interpretation Act 1978 and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553)’.”

 

14. Since the lead cases had not yet been identified or listed for hearing at the date of that submission, it also included discussion of the issues, including the effect of EU law, that might arise if revision on the ground of official error were available. It was suggested that an oral hearing would be helpful. Mrs Tighe’s reply dated 29 April 2012 submitted that the Secretary of State had not dealt with the argument that he should have disclosed to the claimant and to the tribunal of 22 August 2006 that the case of Commission v Parliament was pending before the ECJ, so that there could have been an adjournment to await the outcome. An oral hearing was also requested.

 

15. There was then a rather long stay to await the outcome of the lead cases on the EU law and official error issues. Those cases were not decided, after a comprehensive oral hearing in which the main claimants were represented by very experienced counsel instructed through the Child Poverty Action Group, until May 2013. All the EU law issues were decided against the claimants. Very much in brief it was decided that under the terms of the Decisions and Appeals Regulations the errors of law made by the Secretary of State prior to 18 October 2007 in taking away entitlement to the care component of DLA, AA or CA on the claimant changing ordinary residence to another member State did not count as “official errors” because the error was only shown to be so by the ECJ’s decision in Commission v Parliament on that date. It was further decided that no rule or principle of EU law required or allowed the disapplication of the relevant provisions of the British legislation.

 

16. On 13 June 2013 I made a ruling granting the requests for an oral hearing in the present case which included the following, after referring to the effect of the decisions in the lead cases:

 

“3.  Accordingly, I am not granting an oral hearing to allow the parties to attempt to re-fight any of those European Union law issues. It is also my preliminary and provisional view that the result is that there are no sustainable arguments that the tribunal of 27 July 2011 went wrong in law in any way in its decision to disallow the appeal against the Secretary of State’s decision of 4 June 2010 awarding disability living allowance (DLA) only from 5 November 2007. Very much in brief, as explained in the observations and directions of 31 January 2012, since the disallowance of DLA from and including 18 December 2005 was confirmed by the appeal tribunal of 22 August 2006, that decision of the appeal tribunal cannot under British domestic law either be revised on any ground or superseded on the ground of error of law. Since the European Union law arguments have been rejected, there is now no basis for any argument that those British rules should be disapplied so as to allow the enforcement of European Union rights. There is still the anomaly that, if there had been no appeal and no appeal tribunal decision in 2006, the claimant’s appointee could now apply to the Secretary of State to revise the decision of 15 March 2006 on the ground of official error, ie wrongly making the decision effective from 18 December 2005 instead of from 15 March 2006. See the discussion in BD and the conclusion expressed there that if such a ground of revision on the basis of domestic British law were made out that would “open the door” to the application of European Union law as it is now known that it should have applied in 2006 in the making of the revised decision. However, there can be no arguments based on the principle of the effectiveness of European Union law when the door can only be opened by the direct application of domestic law, in which the prohibition on the revision of a decision of a tribunal cannot be avoided.

 

4.  Thus the main focus of the oral hearing is to be on the question of whether the Upper Tribunal should extend the time for applying to the Upper Tribunal for permission to appeal against the decision of the appeal tribunal of 22 August 2006 on the assumptions suggested in paragraphs 3 and 4 of the observations and directions of 31 January 2012. On the further assumption that I accept paragraph 33 of the Secretary of State’s submission of 2 April 2012, so that such an application impliedly made on 13 September 2011 would be decided under the post-November 2008 rules applying to applications in respect of First-tier Tribunal decisions, there would still be a serious problem in the way of extending time even if it was considered that in general the interests of justice were in favour of doing so. The problem is that under the rules that applied before 3 November 2008 any application to a chairman for permission to appeal after the absolute time limit for applying for a statement of reasons and/or for making an application for permission had expired would have to be rejected. Then, as decided by Mr Commissioner Turnbull in decision CS/1952/2001, if there was an application to a Social Security Commissioner for permission to appeal, there would be no power in law to extend time or to admit that application for consideration. Here the absolute time limits in relation to the decision of the appeal tribunal of 22 August 2006 had long expired before 3 November 2008 and the introduction of new rules allowing the Upper Tribunal to admit applications in such circumstances. The argument therefore arises [that] the legal position had been reached before 3 November 2008 in favour of the Secretary of State that the decision of the appeal tribunal of 22 August 2006 could not be challenged by way of appeal, so that the application in 2011 of the post-November 2008 would involve giving those rules an impermissible retrospective effect. As noted in paragraph 34 of the Secretary of State’s submission, that general position can be supported by paragraph 128 of the decision of a three-judge panel of the Upper Tribunal in LS v London Borough of Lambeth (HB) [2011] AACR 27. In my view those difficult and technical issues deserve further discussion with a legal representative of the Secretary of State and with the claimant’s appointee and his representatives (so far as they feel able to engage with those issues) before being finally decided.”

 

The arguments for the claimant on the appeal against the decision of the tribunal of 27 July 2011

17. At the oral hearing Mrs Tighe for the claimant did in particular re-visit the EU law issues around what I had described as the “anomaly” that the claimant was in a sense worse off by virtue of having exercised her right of appeal in 2006. Mrs Tighe candidly admitted that neither EU law nor social security law had been within her areas of experience and expertise while in practice, so that there were some elements of Mr Cooper’s submissions for the Secretary of State that she did not feel able to address in any detail. I have tried below to consider the best arguments that could be made on behalf of the claimant.

 

18. Mrs Tighe’s initial submission was that there was a remedy for the errors of law made by the appeal tribunal of 22 August 2006 that could be provided by the Upper Tribunal through the process of revision on the ground of official error or supersession on the ground of error of law. That submission inevitably foundered on the statutory rocks identified by Judge Searby in the decision of 27 July 2011 (paragraph 10 above). Faced with that, Mrs Tighe submitted that there were fundamental inequalities as between the Secretary of State and claimants with no specialist knowledge (“lay claimants”) and other unfairnesses that required a different approach.

 

The principle of effectiveness

19. I think on reflection after the hearing that that submission can fairly be interpreted as including an argument that, in cases where appeals had been determined by tribunals before the proper interpretation of Regulation No 1408/71 was authoritatively declared by the ECJ in Commission v Parliament, the British rules on revision and supersession of tribunal decisions and on the time limits for appealing against decisions of appeal tribunals (as described in paragraph 2 of my 31 January 2012 directions: paragraph 12 above) were in breach of the EU principle of effectiveness, as discussed in paragraphs 70 to 76 of CK and JK. That principle requires that any restrictions placed by national law on the pursuit of EU rights, as well as not being more onerous than those relating to purely domestic claims (the principle of equivalence), should not render the exercise of the EU rights virtually impossible or excessively difficult. The submission for the claimant was based on the Secretary of State not as at 22 August 2006 having informed the claimant or notified the appeal tribunal of the existence of the challenge by the European Commission to the listing of DLA (care component), AA and CA as special non-contributory benefits in the May 2005 amendments to Regulation No 1408/71. Mrs Tighe pointed out that the Commission’s annulment proceedings were launched immediately on the coming into force of the amendments on 5 May 2005 (in fact on 26 July 2005), so that the Secretary of State was well aware of the strength of the arguments against the validity of that part of the amendments. I note that there was not a hearing before the ECJ in Commission v Parliament until 18 April 2007, followed by the delivery of Advocate General Kokott’s Opinion, suggesting that the result be to annul all the challenged listings, on 3 May 2007, but before then there was a lengthy process of written submissions and evidence produced in CK and JK showed that the Commission had made the substance of its views clear before the amendments were adopted. Mrs Tighe submitted that the claimant and her husband in the present case, like other lay claimants, could not reasonably have been expected to know of any reason to apply in advance for an adjournment of the appeal tribunal hearing of 22 August 2006 or to realise that its decision was questionable in terms of EU law or that there was any reason to keep her case alive pending the outcome of the annulment proceedings by applying for a statement of reasons and then lodging an application for leave to appeal to a Social Security Commissioner. That, she said, coupled with what the claimant and her husband saw as the underhand conduct of the Secretary of State in keeping knowledge of the annulment proceedings from them when they had been honest and open about their conduct and intentions, created the fundamental inequality and unfairness.

 

20. But was that enough to merit a conclusion that the exercise of the claimant’s EU rights had been rendered virtually impossible or excessively difficult, there being no question in the present case of any breach of the principle of equivalence? In paragraph 73 of CK and JK I held in relation to applications for revision of decisions of the Secretary of State that the combination of the exclusion from the definition of official error of errors shown by subsequent court or Upper Tribunal decisions (including decisions of the ECJ) and the 13-month time limit on appealing against the original decision after a refusal to revise that decision did not make the exercise of EU rights excessively difficult. Factors that I regarded as particularly significant were the interests of legal certainty and the fact that supersession of a decision of the Secretary of State on the ground of error of law was allowed with prospective effect from the date of the superseding decision or of the application for supersession if earlier. Thus the exercise of EU rights was not prevented entirely, but merely restricted to as to the past period for which the rights could be given effect following an ECJ decision authoritatively deciding the relevant question of law for the first time.

 

21. In the present case I find substantially the same factors equally significant. It is true that the claimant could not under the British rules have the decision of the appeal tribunal of 22 August 2006 superseded on the ground of error of law. However, she was able to make a new claim for DLA as soon as the decision in Commission v Parliament was made known, in which EU law as declared there had to be applied, and on which an award of the care component of DLA would take effect from the date on which the claim was made or treated as made. Indeed, it may well be that that is the basis that has to underpin the award of the care component of DLA to the claimant with effect from 5 November 2007 (with an extra-statutory payment back to 18 October 2007). The factor of legal certainty has slightly more force in the present case, because the existence of a decision by an independent tribunal is something that is not lightly to be overturned and there is a general public interest in all parties being able to rely on the effectiveness of such a decision after an acceptable time for appealing has passed.

 

22. It is also the case that there was no positive obstacle to the claimant’s applying for a statement of reasons of the appeal tribunal of 22 August 2006 and applying for leave to appeal. No doubt things would have been a little more difficult when operating from Spain, but the time limits were adequate to cover that. There is an analogy with the circumstances before the Court of Appeal in Secretary of State for Work and Pensions v Walker-Fox [2005] EWCA Civ 1441, reported as R(IS) 3/06 (mentioned in paragraphs 71 and 75 of JK and CK). There the issue was whether the ordinary time limit for claiming a winter fuel payment could be applied to a claimant resident in France when it was only after several years of discussion with the European Commission that the British government accepted that winter fuel payments were exportable under Regulation No 1408/71. The Court of Appeal held that there was no breach of the principle of effectiveness. Ward LJ said this in paragraph 47 of his judgment:

 

“What in reality stood in the way of a person in another EEA country making a claim in time in the years 2001 and 2002 was the fact that on reading the 2000 Regulations and accepting them to be the letter of the law, he would see no point in applying at all because he did not meet the clear residential qualification in regulation 2(1)(a). A potential claimant is, however, presumed to know the law (a fiction which is increasingly more of a joke in a real world inundated by legislation, primary and secondary, flooding in on us from Westminster, Whitehall and Brussels). However unreal and therefore unfair it may appear to many, I have to conclude that, in the light of that presumption, he must be taken to know the law contained in Regulation 1408/71 better than the Secretary of State seemed to have understood it at the time. He is deemed to know that a winter fuel payment is a form of old-age benefit which is exportable.”

 

That traditionally robust approach might be thought to go too far in the context of rights under EU law, where the primary concern is always with the substance of matters. But the underlying thought is correct. The principle of effectiveness is not breached merely where it would have been unreasonable to expect a particular claimant to have complied with the procedural restriction in question, but only where the existence of the restriction makes it, if not virtually impossible, at least excessively difficult to exercise the EU right in question. Nor is the issue whether the claimant could reasonably have been expected to realise that a claim or appeal might be successful, but whether the taking of the necessary procedural step to exercise EU rights was made excessively difficult.

 

23. Thus, my initial conclusion is that there is no breach of the principle of effectiveness in the existence of British rules in question. Does what the claimant and her husband regard as unfair and underhand conduct by the Secretary of State alter that conclusion? In my judgment it does not. Ward LJ in Walker-Fox accepted that, at the highest, it might possibly be arguable in cases involving Regulations that if a defendant State has obstructed the exercise of the claimant’s remedy or contributed to the claimant’s failure to exercise it or behaved in some other inequitable way to make it unjust to rely on a time limit, the principle of effectiveness is breached. But in paragraph 50 of his judgment he said this, in the context of the way in that case that the British government had eventually accepted the exportability of winter fuel payments:

 

“For the Government genuinely to advance a view of the law and subsequently to acknowledge that the argument cannot prevail, cannot, in my judgment, come close to being the kind of unconscionable conduct which the court should not countenance.”

 

In the present case there is no evidence of the Secretary of State having done anything to discourage the claimant from taking her case further after the decision of the appeal tribunal of 22 August 2006. The case is put purely in the Secretary of State’s omission to inform the claimant or the appeal tribunal of the pending annulment proceedings in Commission v Parliament. I acknowledge the strength of the sense of unfairness still felt by the claimant’s husband. With all the benefits of hindsight it is easy to accept now that it would have been better if the Secretary of State had included information about the annulment proceedings in the submissions to appeal tribunals. However, I cannot find that the Secretary of State’s omission came near to the kind of unconscionable or inequitable conduct that could result in the disapplication of procedural rules that are otherwise acceptable under EU law. That is in line with my conclusion in paragraph 75 of JK and CK. I also bear in mind that, as discussed in considerable detail in paragraphs 23 to 46 of that decision, my clear judgment is that it was, especially in the case of the care component of DLA as one part of a single benefit, quite impossible to predict how the ECJ would rule on the validity of the listing of the British benefits as special non-contributory benefits in the May 2005 amendments. It was not the case that the Secretary of State was in a partisan way refusing to accept “the writing on the wall”.

 

The Human Rights Act 1998

24. Mrs Tighe made the new submission at the hearing of 6 November 2013 that the Secretary of State’s omission to reveal the existence of the annulment proceedings in Commission v Parliament resulted in a breach of the principles of natural justice and now of the right to a fair trial in accordance with article 6 of the European Convention on Human Rights. She said that the claimant had unfairly been deprived of the opportunity to request a stay or adjournment of the appeal tribunal hearing of 22 August 2006 to await the outcome of the annulment proceedings.

 

25. I do not need to go into whether or not there was a breach of article 6 because there is a fundamental problem with the submission. If the submission were accepted to the extent of agreeing that the decision of the appeal tribunal of 22 August 2006 involved an error of law of the kind put forward, that would do nothing to advance the claimant’s case. I have already accepted that the appeal tribunal’s decision involved errors of law in reaching a conclusion inconsistent with EU law and in giving the disallowance of DLA effect from too early a date. The problem for the claimant is in the procedural rules that prevent anything being done by the Secretary of State, by the tribunal of 27 July 2011 or the Upper Tribunal to correct those errors. The addition of one more error of law would do nothing to get over that problem.

 

26. To advance the claimant’s case it would have to be accepted that the effect of a breach of article 6 on 22 August 2006 would be that the decision of the appeal tribunal was a nullity or could in some other way be regarded as of no force or effect, so that it could be concluded that the claimant’s appeal against the disallowance decision of 15 March 2006 remained outstanding and still to be decided. I know of no authority even suggesting that such an effect could possibly be produced. Section 6 of the Human Rights Act 1998 makes it “unlawful” for a public authority, including a tribunal, to act in a way that is incompatible with a Convention right, but much stronger language would be needed to require the result that the action of the public authority, especially where it is a judicial authority, is a nullity or of no force or effect. Further, section 8(1) of the Act only gives a court or tribunal the power, if it finds an act of a public authority unlawful, to “grant such relief or remedy, or make such order, within its powers as it considers just and appropriate” (my underlining). Thus courts and tribunals are given no new powers to enforce compatibility with Convention rights beyond those that they already have, which in the case of tribunals are those given by legislation. There can be circumstances in which tribunals, in order to establish whether or not they have jurisdiction over a matter, can examine whether a decision of an earlier tribunal is valid or not (see Social Security Commissioners’ decision R(I) 7/94). But that only authorises examination of whether the earlier tribunal had jurisdiction in the narrowest sense, that is having been entitled to enter into consideration of the matter before it. If, say, it was shown that some unqualified person had impersonated the chairman, Mr Tinnion, on 22 August 2006 and purported to decide the claimant’s appeal against the decision of 15 March 2006, the tribunal of 27 July 2011 might have been entitled, after a proper opportunity to comment for all parties, to regard the decision of 22 August 2006 as invalid and of no legal force or effect and to proceed to decide the outstanding appeal against the decision of 15 March 2006. But in the present case there is not the slightest doubt that the appeal tribunal of 22 August 2006 had jurisdiction to decide the appeal that was before it. Therefore, neither the Secretary of State, nor the tribunal of 27 July 2011, nor the Upper Tribunal has any power, if it were to be accepted that there had been a breach of article 6 on 22 August 2006, to provide any remedy beyond that which could be provided on a finding that the appeal tribunal of 22 August 2006 had erred in law. And I have already explained why under the British legislation there was and is no power to correct the errors of law made by that appeal tribunal.

 

Conclusion

27. Accordingly, I find that there was no error of law in the decision of the tribunal of 27 July 2011, so that its decision stands and the claimant’s appeal to the Upper Tribunal must be disallowed.

 

The application to the Upper Tribunal for permission to appeal against the decision of the appeal tribunal of 22 August 2006

28. The conclusion above leaves the only live issue as whether the Upper Tribunal could in law extend the time for applying to the Upper Tribunal for permission to appeal against the decision of the appeal tribunal of 22 August 2006 to 13 September 2011 and, if so, whether it should. If time were extended and the application admitted for consideration, permission to appeal would have to be given, because the appeal tribunal plainly erred in law for the reasons identified in paragraphs 4 and 5 above. At the hearing of 6 November 2013 Mr Cooper for the Secretary of State expressed some doubt whether the issues on which those errors were made were “raised by the appeal” within section 12(8)(a) of the Social Security Act 1998, so that, if not, the appeal tribunal of 22 August 2006 was not bound to consider them and the errors would not indicate that the decision itself was wrong. In my judgment both issues arose so clearly from the evidence before the appeal tribunal that section 12(8)(a) did not allow them to be ignored. In assessing that point it must be right to take account of what EU law is now known to be. The result of any subsequent appeal would then have to be to set aside the appeal tribunal’s decision and to substitute a decision allowing the appeal against the decision of 15 March 2006 and deciding that entitlement to the care component was not to be taken away from any date on account of the change of circumstances from 18 December 2005 and that entitlement to the mobility component was to be removed only with effect from 15 March 2006.

 

29. This was an issue on which Mrs Tighe did not feel able to put forward any further submissions. I can give very brief reasons here, by reference to what has already been set out earlier in this decision. I approach this part of the case on the basis set out in paragraphs 3 and 4 of my directions dated 31 January 2012 (paragraph 12 above), that on 5 September 2008 a district chairman rejected as out of time an application to him for leave to appeal against the decision of the appeal tribunal of 22 August 2006 and that the form UT1 lodged with the Upper Tribunal (AAC) office on 13 September 2011 is to be taken as including an application to the Upper Tribunal for permission to appeal. I accept the submission on behalf of the Secretary of State set out in paragraph 13 above that paragraph 4 of Schedule 4 to the Transfer of Tribunal Functions Order 2008 would allow the Upper Tribunal to give permission to appeal against a decision of a pre-3 November 2008 appeal tribunal despite its current powers being expressed in relation to First-tier Tribunals. However, I also accept the further submission, confirmed and expanded by Mr Cooper at the oral hearing, that in view of the expiry before 3 November 2008 of the absolute time limits for applying to a district chairman (resulting in the inevitable rejection of the application on 5 September 2008) and the absence of any power for a Social Security Commissioner prior to 3 November 2008 to admit an application to a Commissioner in such circumstances, it would give an impermissible retrospective effect to the legislation brought into force from 3 November 2008 to allow the Upper Tribunal now to use its current powers free of the absolute time limit restriction. That follows from the decision of the three-judge panel in LS v London Borough of Lambeth, by which I am bound, but which I also consider soundly based, particularly in view of the specific relevance of the authority cited there (the decision of the Privy Council in Yew Bon Tew v Kenderaan Bas Mara).

 

30. Accordingly, the Upper Tribunal has no power to admit the application for permission to appeal lodged on 13 September 2011. I therefore do not need to address the issue of whether it would have been right to extend time for making the application to the Upper Tribunal. The application cannot be further considered.

 

 

 

 

(Signed on original):  J Mesher

  Judge of the Upper Tribunal

 

Date: 8 November 2013