KK v Sheffield City Council (CTB) (Housing and council tax benefits : other)

Factual and Procedural Background

The appellant claimed council tax benefit payable by the respondent, Company A. On 17 May 2012, Company A made two separate decisions concerning the appellant's entitlement to council tax benefit for two closed periods and sent these decisions to the appellant by post on the same day. The appellant contended that he did not receive either decision and was unaware of their content for a substantial period. Upon eventually becoming aware, he lodged an appeal by email on 12 September 2013, which was treated as appeals against both decisions.

Company A considered the appeal to be out-of-time, beyond the absolute 13-month limit, but forwarded it to the First-tier Tribunal (F-tT) along with written submissions supporting this view. The F-tT required the appellant to provide a detailed explanation for the late appeal. The appellant responded with a letter asserting non-receipt of the decisions and suggesting possible malice by Company A.

On 24 March 2014, without further party input, the F-tT struck out the appeal under rule 8(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, citing rule 23(5) which sets a 12-month absolute time limit for appeals beyond the normal one-month time limit. The F-tT found that the decisions had been properly sent and that the appeal was received outside the absolute time limit, thus dismissing the appeal.

The appellant sought permission to appeal to the Upper Tribunal, which was granted on the basis that the F-tT may have erred in failing to hold an oral hearing given the disputed factual issue of whether the appellant received the decisions.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in striking out the appellant's appeal without holding an oral hearing despite a disputed factual issue regarding receipt of decision notices.
2. Whether the absolute time limit for lodging an appeal may be subject to a discretion to extend in exceptional circumstances, including considerations under Article 6 of the European Convention on Human Rights.
3. Whether the time for lodging an appeal runs from the date a decision is sent, regardless of actual receipt by the appellant.
4. Whether the First-tier Tribunal properly applied the relevant procedural rules and human rights principles in dismissing the appeal as out-of-time.

Arguments of the Parties

Appellant's Arguments

• The appellant claimed non-receipt of the decision notices and that he was unaware of the decisions for a substantial time.
• He contested the striking out of the appeal without an oral hearing, asserting that an oral hearing could provide relevant evidence on non-receipt and promptness of appeal.
• He suggested possible malice by the respondent in failing to send the decisions.
• He requested an oral hearing before the Upper Tribunal, contending that the respondent misunderstood his grounds of appeal.

Respondent's Arguments

• The respondent argued that the appeal period runs from the date a decision is sent, making non-receipt irrelevant to the time limit.
• It maintained that the decision notices were properly sent by post on 17 May 2012.
• It contended that the First-tier Tribunal made a reasonable finding on the evidence and that oral evidence from the appellant would not affect the outcome.
• The respondent did not seek an oral hearing before the Upper Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified that the First-tier Tribunal erred by failing to hold an oral hearing before striking out the appeal, despite a disputed factual issue concerning whether the appellant received the decision notices. The F-tT had concluded the notices were sent and that the appeal was out-of-time, applying the absolute 13-month limit without discretion.

The Upper Tribunal emphasized that the F-tT did not recognize it possessed a limited discretion, grounded in human rights law, to admit an appeal beyond the absolute time limit in exceptional circumstances. The court highlighted relevant case law establishing that such discretion, required by Article 6 of the European Convention on Human Rights and the Human Rights Act 1998, must be exercised sparingly but does exist.

The appellant's oral evidence on non-receipt could have been relevant to whether the notices were indeed sent and whether exceptional circumstances existed to justify exercising discretion. The court rejected the respondent's submission that oral evidence would have been irrelevant.

Given these considerations, the court concluded that the F-tT failed to adequately consider the discretion and the necessity of an oral hearing, thus its decision to strike out the appeal was flawed.

The court reasoned that further factual findings were necessary, particularly regarding receipt of the decision notices and the appellant's awareness and promptness in appealing. Consequently, the appeal was remitted to a differently constituted F-tT for fresh consideration, initially to determine whether the appeal should be struck out and, if not, to proceed to substantive hearing.

Holding and Implications

The Upper Tribunal SET ASIDE the First-tier Tribunal's decision of 24 March 2014 striking out the appellant's appeal.

The appeal was remitted to a new and differently constituted First-tier Tribunal to reconsider whether the appeal should be struck out, initially at an oral hearing. If not struck out, a further oral hearing will address the substantive issues.

This decision underscores the necessity for tribunals to recognize and consider the limited discretion to admit late appeals in exceptional circumstances, particularly where human rights considerations apply. It also affirms the importance of oral hearings when disputed factual issues exist that may affect the exercise of such discretion. No new precedent was established beyond clarification of the application of existing principles.