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Judge won’t make directions and won’t put this in writing
I have a client who has an overpayment of IS and the decision is dated December 2011 (and she wants me to chase it up). Been appealed. I have found out that the appeal was passed to the Appeals team at Mansfield BC on 6/2/2012 and is with the DM. After getting nowhere with Mansfield BC team leaders, I wrote to the Birmingham Tribunal centre requesting the Judge intervene and direct the DWP to prepare a submission, as client does not have much info. about her overpayment. I set out the relevant guidance to the Tribunal on this.
The case creation manager from that Tribunal office then asked the Judge to make a decision as I have chased it up so many times. She says the Judge has decided not to intervene because the delay (Feb 2012 to now) is not an unreasonable delay given that Mansfield BC process and submit 600 appeals per day. She said, had it been a decision in December 2010 and not December 2011; she would have intervened.
I asked for the decision in writing but she said that it would not be put in writing. I asked again, on the grounds that I needed to show what progress had been made and what the Judge has decided so I can explore other courses of action. I have heard nothing further.
I have made a complaint in writing in September to the Tribunal about the failure to give me this in writing but have not received a reply (chased by e-mail twice). It is a potential JR if they don’t but ultimately my goal is to get the Tribunal to make directions (they seem swayed by the local practice in their area). I don’t have this bother with the Leeds office appeals. Any ideas?
Hi Sangeeta,
I think you could argue that it is implicit in Rule 6(4) of the Tribunal Procedure Rules (SI 2685/2008) that a refusal to make a direction when explicitly asked to do so is something that should be notified to the parties.
However, I have to say that on these facts I don’t think the FtT is likely to give a direction ordering a bundle is prepared. This is for following reasons:
1. Delay is not that long compared with usual length of time.
2. As the Judge pointed out verbally to someone (!) then the JCP has a lot of other business to deal with and that can affect what is reasonable.
3. It is an o/p case so the delay has no immediate effect on claimant (other than prolonging her worry about it)- that is quite different from a case where a claimant has no income unless and until appeal succeeds.
Of course there may be specific facts I don’t know about that would mean this case was exceptional.
I think there is a danger in requesting expedition too often- every case cannot be exceptional and really there is a duty to other claimants we represent not to push too hard on a delay issue in a case which doesn’t merit it- as then when you ask for expedition in other cases that have a better case they may be tarred with same brush etc.
Sorry for the perssimism.
“case creation manager”- that is fantastic!
Thanks for reply:
I can see your point; but I happen to agree with my client that she cannot tell what the basis of the decision is until a bundle is, at least, prepared. Expedition is not required; just a reasoned decision and what one might call ‘disclosure’. There is the distinct possibilty after all that the Income Support decision is wrong; which has been pointed out in our appeal.
It is not my experience that cases usually sit on DM’s desks for that period of time (since February 2012) , but maybe we are spoilt here.
(yes; lovely job title!)
I recently requested a direction from TTS to the DWP to issue the appeal bundle for an ESA (WCA failure) after the appeal was lodged 13 months before. TTS issued a direction requesting said bundle within 21 days with a warning that the Department could be precluded from further participation or having the case decided against it if it failed to comply. Lo and behold bundle produced in 6 days.
One of the points I raised in my request was that a long delay would be prejudicial to my client as, come the hearing, as he had to give evidence as to how he was at the date of the decision, the further back in time that was the more difficult the recall would be. Lengthy delays in producing ESA bundles are increasing here but how lengthy the delay has to be before becoming unreasonable will be decided differently by different tribunal judges I suppose.
Dear Sangeeta,
I am afraid that I don’t agree with your Tribunal Judge or, to some degree, with Tony.
The DWP has failed to prepare the appeal papers, consisting of documentation detailed and explained in Rule 24(2) – 23(4) The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, as soon as reasonably practicable, as required by Rule 24 1(b)The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 and in breach of the duty contained in Rule 2(e) The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008. It is the responsibility of the Secretary of State to organise his administration so he can comply with these duties. In the context of social security appeals, I believe that this in in breach of Article 6 ECHR.
I have raised this issue in Liverpool with Jobcentre Plus and, on receiving mere explanations rather than a progressive response on how they will resolve the matter, we have found a local solicitor who is prepared to assist our clients inpursuing Judicial Review proceedings. If you pursue such a course of action on your client’s behalf, it circumvents the local Tribunal Judge’s very forgiving view of DWP responsibilities.
Therefore, you may wish to see if you can find a firm of solicitors who would be prepared to assist your client in pursuing Judicial Review proceedings against the Secretary of State for Works and Pensions. Of course, I can’t guarantee that such proceedings will be successful but you will be amazed at how the log jam causing appeal delays disappears when their solicitors office receives a letter before action.
Hope that this viewpoint is of help.
Regards
Chris
Dear Tony,
I think the point you raise is the one that Sangeeta’s Tribunal Judge held. I don’t think it is a viable defence. It is up to the Secretary of State to administer his resources so that there are not thousands of appellants in the same boat of waiting for months on end before the Tribunals Service even become aware of the existence of their appeals. The HMCTS have made strenuous efforts to reduce waiting times and improve disposal rates, which is why the DWP gave them £26.3 million extra as recently reported. But all of this effort and expense is completely frustrated (and I say illegally) by the Jobcentre Plus failing to administer appeals properly. You say it is in the context of one appeals but their recent report indicates that the significant drop in the appeals referred to HMCTS is because of their backlog, implying tens of thousands of appeal are involved nationally.
In respect of Article 6, I think the position has been changed by the effect of Stec that Protocol 1 to Article 1 applies to non-contributory benefits. As you rightly say, it depends on the facts in each case and different issues of local law affected the decisions made by the European Court. In addition, those other countries have not placed the legal burdens on themselves that our legislation places on the Secretary of State here. I stil think Article 6 is in play in the context of UK social security appeals.
You may be right and these arguments may not be accepted by the High Court but I will still pursue while I can, as I think there will be a significant effect on the issue of appeal papers in these cases when Jobcentre Plus receives of a solicitor’s letter before action.
Regards
Chris
Dear Tony,
I think the point you raise is the one that Sangeeta’s Tribunal Judge held. I don’t think it is a viable defence. It is up to the Secretary of State to administer his resources so that there are not thousands of appellants in the same boat of waiting for months on end before the Tribunals Service even become aware of the existence of their appeals. The HMCTS have made strenuous efforts to reduce waiting times and improve disposal rates, which is why the DWP gave them £26.3 million extra as recently reported. But all of this effort and expense is completely frustrated (and I say illegally) by the Jobcentre Plus failing to administer appeals properly. You say it is in the context of one appeals but their recent report indicates that the significant drop in the appeals referred to HMCTS is because of their backlog, implying tens of thousands of appeal are involved nationally.
In respect of Article 6, I think the position has been changed by the effect of Stec that Protocol 1 to Article 1 applies to non-contributory benefits. As you rightly say, it depends on the facts in each case and different issues of local law affected the decisions made by the European Court. In addition, those other countries have not placed the legal burdens on themselves that our legislation places on the Secretary of State here. I stil think Article 6 is in play in the context of UK social security appeals.
You may be right and these arguments may not be accepted by the High Court but I will still pursue while I can, as I think there will be a significant effect on the issue of appeal papers in these cases when Jobcentre Plus receives of a solicitor’s letter before action.
Regards
Chris
Chris- wish you were right but:
1. On what counts as “as soon as reasonably practicable and whether backlog etc. can be taken into account:
Unfortunately, it was held in R v Secretary of State for Social Services & Chief Adjudication Officer ex p Child Poverty Action Group [1990] 2 QB 540, CA that the number of cases waiting in the pipeline and the level of resources the DM has are factors which influence what may count as “as soon as reasonably practicable”. That is why you need to be able to point to specific facts of this case which tend to suggest that the case should not be subject to the usual level of delay.
2. On Stec:
This case (and RJM in the House of Lords) establish that means tested beenfits can be possessions. That changes nothing about Article 6- which gives a right o appeal in respect of “civil rights”. It has (for long before Stec) been accepted that the determination of your entitlement to a means tested beenfit is determination of a civil right.
3. On the High Court:
In England and Walres, a judicial review against the FtT judge who refused to give the direction would commence in the UT and not the High Courut
I aim this not at individual staff, you get the good, bad and indifferent in any organization, but Jobcentre plus is a failed institution. Many staff have poor morale, work within a target driven culture with crap IT systems. We have jobcentre plus offices by our office. I was in the pub last week. On the next table were JCP staff talking largely guff. One gem I picked up was “if a customer didn’t have a bank account I wouldn’t let him claim JSA”.
hi tony - have had a look but can’t find it i’m afraid -
here’s a link to the archive forum search in case anyone else would like to try -
http://www.rightsnet.org.uk/forum-archive/index.html
cheers ros
Forum archive is still there Tony. The only problem is you cannot do an exact phrase search.
The 1990 case was of course long before the new First Tier Tribunal procedure rules, whicih impose a lot more obligations on the parties, so it is now of doubtful authority.
sorry to hop back to archive forum search - just to say that you can do exact phrase search if you put quote marks round it - e.g. “mobility component”.
i think my problem was i wasn’t quite sure what phrase to search for. gave it a go on MPs and “specialist help” to no avail.
cheers ros
I do love a good debate. However, some points on this particular case for those inquisitive and helpful advisers…
My JR letter would relate to the failure of the Judge not to give me her decision, and reasons for it, in writing. I really believe we have a right to this. If the reasons not to intervene are sound, then that would be fine.
The Overpayment relates to the treatment of a Residence Order Allowance and payment of the Child Element in IS before a CTC claim was made. She also, crucially, says that allowance was declared to the DWP at the time.
The exact same decision was also sent to her 4 months before and after she wrote to them, was resolved and revised in her favour.
I, therefore, have a belief that the BC and the Debt Centre have messed this up, and my client wants to see what the new appeal papers say because all she has is the Debt Centre letter. I think the Tribunal should intervene as she should be allowed to know the reasons for a decision. It is sat on a DM’s desk since 6/2/2012 and I do not think that is acceptable.
R v Secretary of State for Social Services & Chief Adjudication Officer ex p Child Poverty Action Group [1990] 2 QB 540, CA - Was this case to do with claims rather than appeals?
Damian,
You are correct but the principles it established on what constitutes “as soon as reasonably practicable” would be interchangable for claims, decisions and appeals. However, I agree with Ariadne that the legal (legislative) landscape has changed - there was no Rule 2 of the Tribunal Rules in force at that time.
Sangeeta - I know you may be annoyed at the Tribunal Judge but your initial ground of complaint is with the DWP. I would have thought you had a stronger case in challenging their delays than the Tribunal Judge’s refusal to issue a Direction, as the power to issue a Direction is in the discretion of the Judge - you don’t have a right to it.
As Tony rightly says, the merits of the case is for the appeal tribunal to consider. I would think your issue is in getting to the appeal hearing stage as soon as possible (or reasonably practicable).
Regards
Chris