Fair comment?

Issue 264 (June 2018)

Simon Osborne describes recent caselaw setting out concern at some official responses in appeals to the First-tier Tribunal.

Introduction

Two recent decisions of the Upper Tribunal amplify concerns about the nature of some official responses to the First-tier Tribunal. Regarding tax credits, there seems to be a chronic problem. Regarding benefits, in particular personal independence payment (PIP), there is a suggestion of change – and of further authority from the Upper Tribunal.

Tax credits

In HO v HMRC (TC) [2018] UKUT 105 (AAC), Judge Wright wrestled with some complex considerations about the ability of HMRC to change decisions of the First-tier Tribunal. But the context, said the judge:

‘…reveals yet again the inadequacy of first instance decision making conducted by HMRC under the Tax Credits Act 2002 and the inadequacy of HMRC’s explanation for its decision making in its decisions and appeal responses provided to the First-tier Tribunal. That has been the subject of commentary in, regrettably, too many Upper Tribunal decisions. HMRC’s own submission writer in his submissions to the Upper Tribunal described HMRC’s decision making process in this case as “somewhatperplexing” and that its “administration of its decisions and the appeal in this case has been entirely inept, and it is HMRC submissions that led the [First-tier Tribunal] down an incorrect path.”’ (paragraph 3)

Judge Wright’s comments are reminiscent of Judge Wikeley’s sense of ‘frustration, bordering on despair’ about HMRC First-tier Tribunal responses in VO v HMRC (TC) [2017] UKUT 343 (AAC) (Bulletin 261, p7). With no sign of improvement, Judge Wikeley’s recommendation of ‘studied scepticism and searching if not anxious scrutiny’ of HMRC tribunal responses clearly remains relevant.

Benefits

In LH v SSWP (PIP) [2018] UKUT 57 (AAC), Judge Rowland expressed concern about the practice in DWP responses to the First-tier Tribunal in PIP appeals of not setting out all the obiter (not binding), he said that an unrepresented claimant is unlikely to be able to see all the areas where s/he might add to her/his points score in the assessment. That could result in her/him being unable to focus her/his arguments to the tribunal. The judge accepted that unfairness might not always result, in particular where the tribunal asks sufficient questions so as to remedy any defect.

However, appellants still needed to be able to prepare for appeals in advance. There was also a question, regarding the failure to include all possible descriptors and points, as to whether the DWP response ‘was sufficient for proper compliance’ with the requirementatrule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to set out grounds for opposing the appeal. Further, it was difficult to see how the claimant’s right to participate fully in the proceedings(at rule 2)‘can be achieved if the framework within which the First-tier Tribunal must make its decision is partially hidden from the claimant because the claimant is not made aware of the descriptors potentiallyinissue’(paragraph 34). Althoughnot referred to by the judge, failure to provide sufficient information to the tribunal (about details of a previous award) was criticised by Judge Hemingway in BB v SSWP (CPIP) [2017] UKUT 506 (AAC) (Bulletin 263, p10), as was the ‘unacceptable’ quality of the response.

The Secretary of State’s representative said that Judge Rowland’s comments were ‘presently the subject of careful consideration within the Department’. The judge remarked that the issue was important for appellants and tribunals as well as the DWP. ‘It may therefore be expected’, he said, ‘that, in another case, the Upper Tribunal will consider it necessary to rule on the adequacy of the current style of responses and, in particular, the basic adequacy of response in personal independence payment cases that do not inform appellants of the terms of descriptors that the Secretary of State has found not to be satisfied and the points that might be scored in respect of them’ (paragraph 40).


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