DP v The London Borough of Lambeth

These proceedings arise out of a decision of the Respondent Local Authority (“Lambeth”) on 11 October 2018 to reduce the Appellant’s entitlement to receive Housing Benefit [“HB”] retrospectively on the grounds that, contrary to a declaration she had made in 2014, her son had been living with her as a non-dependant adult during the period from September 2014 to October 2018. The decision asserted that, as a result, there had been a substantial overpayment of HB which Lambeth was entitled to recover.

I set out the facts and procedural history in more detail below. The facts are within a fairly narrow compass; but the proceedings that have followed have been protracted. The net result is that we have heard a rolled-up application for permission to bring a second appeal. The proposed second appeal is from an order of the Upper Tribunal (Deputy UTJ Hocking) made on 14 June 2023 dismissing the Appellant’s appeal against a decision of the Social Entitlement Chamber of the First-tier Tribunal on 28 January 2021 by which the FtT dismissed the Appellant’s appeal against Lambeth’s decision.

I bear in mind at all times the test to be applied by this Court on an application for permission to bring a second appeal from the Upper Tribunal. Where, as here, the Upper Tribunal has refused permission to appeal, Article 2 of The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 provides that:

“Permission to appeal to the Court of Appeal in England or Wales … shall not be granted unless … the relevant appellate court considers that:

(a)

the proposed appeal would raise some important point of principle or practice, or

(b)

there is some other compelling reason for the relevant appellate court to hear the appeal.”

For the reasons set out below, I would grant permission to appeal and allow the appeal. If my Lords agree, I would remit the case to the FtT for a rehearing.

The Appellant has lived in her current home since 1984 and has been in receipt of HB for some considerable time. In September 2014 she submitted a change of circumstances form, in which she declared that she was the sole occupier of the property and that her son had left the property two days before. Her son has been in remunerative employment throughout such that the effect of her declaration was that the Appellant became entitled to a higher rate of HB and increased Council Tax support once her son had left.

Some three years later, in December 2017, Lambeth opened an investigation into the Appellant’s entitlement to the Council Tax single person’s discount. The appellant was visited by representatives of Lambeth at her home. In March 2018 she was interviewed under caution. During that interview she repeated that her son had moved out of the property in 2014. Lambeth then proceeded to obtain extensive documentary evidence which consistently recorded the son’s address as being at the Appellant’s property. On the basis of that documentary evidence Lambeth took the decision that was notified to the Appellant on 11 October 2018.

The Appellant has always been of the fixed view that Lambeth’s actions in investigating her and making its decision on 11 October 2018 were motivated by anger and a desire to retaliate after she had obtained a Debt Relief Order in February 2018. As a result, Lambeth had written to the Appellant in March 2018 stating that her outstanding balance of £1,905.93 Council Tax relating to the financial years 1999/2000, 2012/2013, 2013/2014 and 2014/2015 was covered by the Order and did not need to be paid. The Appellant had instituted the process that led to the writing off of this outstanding balance by consulting a debt counselling charity in and from August 2017. There is no rational basis for the Appellant’s conviction about Lambeth’s motivation but, as set out below, it is accepted by Lambeth to be genuine; and it looms large in the procedural history.

The Appellant appealed Lambeth’s decision to the FtT. At some point she consulted another charitable source of advice (“Centre 70”) who came on the record as her representative. They did not, however, attend any hearing or send written representations and a subsequent review of their file by the Appellant’s current solicitors suggests that they took no effective steps on her behalf.

During a hearing before the FtT on 10 March 2020 the Appellant told the Tribunal that she was in contact with her son and that he was living in Enfield. In the light of that information the FtT Judge adjourned the hearing and gave directions that were set out in a Directions Notice including:

“4.

As explained, the hearing has now been adjourned because you have stated that your son … lives in Enfield and that you are in communication with him. At the time of the interview under caution, you were unable to state exactly where he was living.

5.

Within 28 days of the date of this Directions Notice, you are required to provide copies of your son's council tax bills, for his accommodation in Enfield, covering the period from September 2014 (the date that he left your property) to October 2018 (the date of the decision under appeal). Please send only photocopies and bring the original council tax bills with you to the next appeal hearing.

6.

If there are no council tax bills to show your son's residence in Enfield, the Tribunal would be greatly assisted by hearing your son giving oral evidence as the overpayment decision relates to him. You are therefore encouraged to attend the appeal hearing with him on the next occasion. Even if you are able to send copies of his council tax bills, his oral evidence would still be of assistance.”

Subsequently, on 29 July 2020 another FtT Judge directed the Appellant to produce evidence by 20 August 2020 after which the appeal was to be relisted.

On or about 20 August 2020 the Appellant sent a sheaf of handwritten letters, said to have been written for her by her mother. By then it is apparent that the appeal had been listed to be heard on 26 August 2020. In the sheaf of letters, the Appellant said that she wished to continue with her appeal without attending. The letters signed by the Appellant asserted the connection between her taking steps to obtain debt relief and Lambeth’s first visit about her HB; and she repeated that her son had moved out in 2014. Two of the letters were signed by her son. One gave an address in Streatham Hill and said that he had lived in a room in that address from 2014 to 2017. The second gave an address in Enfield and said that he had lived in a room in that address since 2018 and still lived there. It said that when he moved out he had not told his mother where he was moving to.

As foreshadowed in her recent letters, the Appellant did not attend the hearing on 26 August 2020. The FtT adjourned the hearing because the Appellant could not be contacted; and it ordered the Appellant to provide electoral register forms evidencing her son’s residence in Enfield at the relevant times. The directions stated that if she did not take part in the next hearing and did not provide the requested information, the tribunal would determine the appeal on the basis of the information available to it.

The Appellant did not produce any evidence of the sort contemplated by the 10 March or 26 August 2020 directions. Nor, when the appeal came on for hearing by way of a telephone hearing on 28 January 2021, did her son attend the hearing. The Appellant had produced the two handwritten letters, signed by her son and provided in August 2020. There is also reference to a handwritten letter from the Appellant’s mother, which now cannot be identified. Otherwise, all that the Appellant had supplied was a series of hand-written letters dated between 20 November 2020 and 18 January 2021 which focused repetitively and (in a lay sense) obsessively on the investigation (including the visit of Lambeth’s investigators to her home) and the motivation for the investigation being her obtaining the writing off of her Council Tax arrears. These letters have been described by her Solicitors (in a description adopted by Dr Kumar) as seeming “scrambled, ranting and exhibited a paranoid belief as to why the [Lambeth] Fraud team had taken action against her”. So far as is relevant, she continued to assert that her son had left the property in 2014 and that he had simply failed to notify his change of address to the various people who had generated the documentary evidence on which Lambeth relied to support their decision.

The FtT dismissed the Appellant’s appeal. The decision notice and the subsequent Statement of Reasons addressed the absence of any documentary evidence and drew adverse inferences from the failure to provide independent evidence. The core of the FtT’s reasoning as set out in the Statement of Reasons was as follows:

“27.

I find that a substantial amount of evidence has been submitted by the Respondent, which links [the Appellant’s] son to the property. By way of rebuttal, [the Appellant] submits that her son has merely continued to use her address for correspondence. Whilst it may be that on leaving the family home adult children may continue to use their parents' address, what is evident in the appeal before me is that correspondence from [the son’s] employers and bank statements are linked to the property and this is the only address that they have. I find that it is not credible that such important correspondence would go to the property if [the son] was not living there and if, as initially suggested, [the] son's whereabouts were not known to her. I find that employer correspondence is of such importance that it would be reasonable to conclude that the employer should have known where [the son] was residing.

28.

I find that [the Appellant] has been provided with numerous opportunities to rebut the evidence that has been relied on by the Respondent, by producing evidence linking her son to another address. The hearing was adjourned and clear instructions were given as to the type of evidence that would assist in rebutting the Respondent's evidence. All that has been provided by [the son] is a handwritten letter in which he says that he did not tell [the Appellant] where he was living because he had "come of age". I find that such a position does not sit well with the seriousness of the situation that [the Appellant] has now found herself in.

29.

I find that it would have been a relatively straightforward and simple matter for [the Appellant] to be able to show that her son resided in Streatham during the overpayment period and that he now resides in Enfield, by the production of evidence from independent/official sources. Such evidence could have taken the form of electoral register forms, in the absence of council tax bills (if he was renting a property in Streatham or Enfield), tenancy agreements or other bills addressed to her son in Streatham or Enfield.

30.

In the absence of any satisfactory evidence to the contrary, I find that the evidence before me strongly suggests that [the Appellant’s] son was still residing in the property during the period of the overpayment. I am therefore satisfied that an overpayment has arisen.” (emphasis added)

The reasoning in the Statement of Reasons was consistent with the earlier Decision Notice. [17] and [18] of the Decision Notice was in similar but not identical terms to [28] and [29] of the Statement of Reasons as follows:

“17.

Prior to today's hearing, by way of further evidence, [the Appellant] provided two handwritten letters prepared by her and signed by her son, stating that her son lived in Streatham between 2014 and 2017 and that he lived in Enfield from 2018. [The Appellant] has not however provided any independent evidence from official sources, apart from the handwritten letters from her mother and her son.

18.

I find that it would be a relatively straightforward and simple matter for [the Appellant] to be able to show that her son resided in Streatham during the overpayment period and that he now resides in Enfield. Such evidence could take the form of electoral register forms (in the absence of council tax bills), tenancy agreements or other bills addressed to her son in Streatham or Enfield. The fact that [The Appellant’s] son is not listed on the electoral register at her address is not of sufficient cogency to displace the other evidence that shows that he was linked to her address during the period covered by the overpayment.” (emphasis added)

The decision of the FtT put the Appellant’s rent account with Lambeth substantially in arrears. When payment of the arrears was not forthcoming, Lambeth took steps to institute possession proceedings. Faced with Lambeth’s Notice of Seeking Possession, the Appellant instructed Messrs G T Stewart, Solicitors, to act on her behalf in those proceedings. As recorded in a detailed letter to HMCTS dated 13 October 2021, which made a late application to set aside the FtT’s decision of 28 January 2020, the Solicitors had contacted the Appellant’s son, who provided a two-fold explanation for why he had not changed the details of his address on the documentation which had been relied upon by Lambeth. His explanation was that his accommodation was not secure and he did not want to have to change his address every time he moved on; and that he wanted to obtain credit and would not have been able to do so if he gave an address where he had only been living for a short while. The solicitors had also contacted the people with whom it was said that the son had lived, first in Streatham and latterly in Enfield, both of whom were said to be prepared to give evidence of his living with them; and they had contacted neighbours of the Appellant who had provided witness statements corroborating the Appellant’s evidence that her son moved out in 2014. Having reviewed Centre 70’s file, the Solicitors blamed Centre 70 for not having taken the necessary steps to protect the Appellant’s position.

We have in the appeal bundles four witness statements that were evidently taken by the Solicitors in September 2021 from the Appellant, her son, and two neighbours of the Appellant. The son’s witness statement exhibited handwritten letters from the people in whose homes he says he had lived, both of whom were said by the Solicitors to be prepared to give evidence.

In addition, the Solicitors’ letter raised for the first time the question of capacity. The solicitors were concerned that the Appellant was confused, unable to recall events, and unable to provide detail about what had happened at the January 2021 hearing. [I interpose that it is clear from the documentation in this appeal that some of the information that the Appellant had provided to the solicitors can be seen to be materially inaccurate.] In the light of the solicitors’ concern that the Appellant might lack capacity, they told HMCTS that they were in the process of having the Appellant assessed by a consultant psychiatrist. On 8 November 2021 the Solicitors wrote to Dr Anil Kumar, Consultant Psychiatrist, instructing him to “assess our client and then prepare a report in relation to whether she is disabled and as to whether she lacks capacity to be a party to these proceedings.”

Dr Kumar produced his report on 29 November 2021 and a certificate as to capacity to conduct proceedings the following day. I refer to his evidence in detail below: see [26]. Armed with his report and, it appears, the witness statements to which I have referred, the Solicitors wrote again to the Tribunal on 13 December 2021 requesting that the decision of January 2021 be set aside.

On 11 February 2022, the FtT (District Tribunal Judge V A King) refused the application to set aside the decision of January 2021. Amongst the reasons given were that (a) the circumstances did not fall within Rule 37(2) of the Tribunal Procedure Rules as the documents relied on had not been in existence at the time of the original decision; (b) the evidence from Dr Kumar was based on an examination that took place many months after the decision on 28 January 2021; (c) the Judge had listened to a tape recording of the January 2021 hearing and the Appellant appeared able to answer questions and engage with the issues in the appeal; and (d) (at [8]) the Appellant had not produced “any evidence likely to lead to a different outcome in the Housing Benefit appeal”. The Judge said that they had not found any procedural irregularity in the proceedings but, if they had, they would still have refused to set aside because of the state of the evidence produced by the Appellant. I interpose at this point that Lambeth placed great weight on (d) above, but ultimately accepted that it neither said nor bound us to act on the basis that the evidence produced by the Appellant could not lead to a different outcome in the HB appeal. I consider that acceptance by Lambeth to have been both correct and inevitable.

In May 2022 (by which time the Appellant had the benefit of representation by Mr Rutledge who appears for her with Mr Burton KC before us) the Appellant made a late application for permission to appeal on the basis that the FtT in January 2021 had erred in holding that it would have been a relatively straightforward and simple matter for the Appellant to show that her son did not reside at her property. This was said to be based on a mistake as to a relevant fact, namely that the Appellant had the capacity to know what evidence would support her case. After refusal of permission by the FtT, the UT (UTJ Church) gave permission to appeal on 1 December 2022. In setting out his reasons why he was granting permission to appeal, UTJ Church said that he was persuaded that the decision of the FtT was based on a material mistake of fact and that:

“I am persuaded that it is arguable that the [FtT] was mistaken as to your capacity to conduct your appeal, and that if it was so mistaken such mistake may have been material in the sense that, had it not been made, the [FtT’s] conduct of the proceedings, and the ultimate outcome of the appeal, might have been different.”

That permission led to the hearing and dismissal by the UT of the appeal, on the papers, on 14 June 2023, which is the subject of the present proposed appeal. The UT refused permission to appeal. Hence this hearing.

The UTJ recorded that the Appellant appealed on two grounds, namely (1) mistake of fact, in that it was not “a relatively straightforward and simple matter” for her to provide the evidence as to her son’s address that had been requested, once one took account of her lack of capacity, impaired cognition, and paranoid belief system; and (2) that the FtT had taken too restrictive an approach to the evidence that the Appellant needed to provide. He took the view that ground 2 amounted to a disagreement as to the weight that the FtT chose to put on evidence and that no error of law was disclosed.

In a footnote to Ground 1, the UTJ said:

“To rely on capacity alone as a mistake would seem to have the effect that in every case where a litigant is found to lack capacity after the event there would be a mistake of fact amounting to unfairness, with results that would look very similar to CPR 21.3(4). But I do not think that is the case in tribunal litigation.”

Having identified the principle to be derived from E&R v Secretary of State for the Home Department [2004] EWCA Civ 49 as setting out the conditions to be met for a mistake of fact to amount to such unfairness as to be an error of law, the UTJ then addressed the question whether there had been a mistake as to a relevant fact. The central passage of his reasoning was:

“16.

Here the Kumar report establishes a lack of capacity in November 2021. However it is unclear whether that lack of capacity extended to the period during which [the Appellant] was being asked to supply evidence of her son's address. I noted above that [the Appellant] was apparently expressing possibly paranoid concerns about Lambeth during the proceedings, and Dr Kumar tentatively notes possible evidence of her dissociative condition from around 2018. From all of that material I would agree that the evidence shows on a balance of probabilities that some abnormality of mind or of reasoning was present during the FtT proceedings.

17.

However, the issue is not that the FtT mistakenly found that [the Appellant’s] reasoning was first class. The appeal relies on the statement "I find it would be a relatively straightforward and simple matter for [the Appellant] to be able to show that her son resided in Streatham”, as an error of fact.

18.

That statement needs to be seen in its context. The FtT had provided two explicit directions saying what evidence it would find helpful. Those directions are in plain language. Ordinarily it would indeed have been relatively straightforward and simple to comply with them, or to explain why you could not. Furthermore the Appellant had a substantial period of time in which to provide the evidence. She was not being asked to react on her feet during a hearing, or being given a complex search and disclosure exercise under time pressure. Nor was she expected to exercise her own judgement as to what was needed.

19.

It seems to me that it would require a really significant mental impairment, amounting to a lack of litigation capacity or something close to it, before the FtT's finding that this was a simple matter for [the Appellant] could be said to be in error.

20.

The difficulty with the appeal, and why I conclude it must fail, is that while the Kumar report establishes a lack of capacity in November 2021, it does not establish that lack of capacity, or something close to it, at the time of the FtT directions and final hearing. I certainly cannot find that the lack of capacity at that time is that is "uncontentious and objectively verifiable", indeed it is contested, albeit very briefly. Lambeth's reference to apparently capacitous correspondence during the litigation is not misguided; it is at least as likely to be relevant as the conclusion that Dr Kumar is able to draw some time after the event.

21.

Dr Kumar is not very informative as to [the Appellant’s] likely abilities at the time she was being asked to provide evidence, ie from March 2020 onwards. …” (emphasis added)

On this basis the UTJ held that a lack of capacity during the FtT proceedings was arguable but not established. He also placed reliance on the Social Entitlement Chamber of the FtT being well used to dealing with litigants whose cognitive abilities may be compromised and that this FtT had the benefit of observing the Appellant throughout the proceedings. He detected no hint of procedural unfairness: on the contrary the FtT had conducted itself with fairness towards the Appellant, giving detailed directions and adjourning to allow her attendance. Drawing a distinction between the present case and CF v Secretary of State for Work and Pensions [2017] UKUT 356 AAC, he said: “the concerns I have here that the psychiatric report does not establish in an uncontentious and objectively verifiable way that [the Appellant] lacked capacity during the litigation did not arise in CF”. Furthermore, he was not persuaded that the sentence relied upon by the Appellant, when viewed in context, played a material part in the FtT's reasoning.

In addition to the original report and capacity certificate that were before the various Tribunals from the time of the application to set aside, there are now two further reports and a certificate that are the subjects of an application to admit further evidence. I deal first with the original report because it has been admitted and was before the Tribunals from late 2021 onwards (i.e. from the time of the application to the FtT to set aside the January 2021 decision).

Dr Kumar examined the Appellant on 11 November and reported on 29 November 2021. Among the questions he was asked to address were:

In reporting on his interview with the Appellant, Dr Kumar recorded at length the Appellant’s account of her conviction that Lambeth was motivated by wishing to retrieve the money that had been written off. Dr Kumar recorded that it was difficult to follow the chronology and what the Appellant was saying because she was very upset and was talking incoherently at times with a strong paranoid content. On conducting a Mental State Examination, Dr Kumar identified a degree of thought disorder “with circumstantiality and tangentiality” which made it difficult to follow her conversation at times particularly when she was talking about the housing issues. She had paranoid beliefs about the Council and was looking at everything in a very self-referential way while at the same time denying having “any perceptual abnormalities in all modalities of sensation.” She lacked insight and did not think she had a significant memory deficit or any other emotional problems. Turning to her various letters (which I have summarised above), he said that “most of them are filled with her anger and distress at being accused of not informing the Council about her son moving out, with a paranoid flavour all the time”. He diagnosed her condition as including somatoform autonomic dysfunction causing gastric problems and Ganser Syndrome giving rise to cognitive impairments associated with a degree of dissociation.

In answer to the first of the questions set out above, Dr Kumar concluded his review by saying (at 5.1.13):

“The cognitive impairments which she has due to the stress, in my opinion, would improve once the stressful situation changed. As I mentioned earlier, she has to be investigated to see whether there is any organic or physical cause for this cognitive impairment or her bowel problems. If she is proven not to have a physical cause, then it is likely to be due to the stress and the dissociative condition, which would improve when she was less stressed.”

In answer to the second question he said (at 5.1.14):

“As regards the impairments, she has had the somatoform autonomic disorder for more than 22 years. It is very difficult for me to know when the other dissociative disorder, the Ganser syndrome, started. But going through the interview she did in 2018, it is clear to me that she did have a tendency to give approximate answers even then. I do not know when it became more manifest and as to when she started having the cognitive impairment. It does not seem to have appeared in the recent months, and I think these deficits have been there for some time and seem to be stress-related. Going through the written material, I think that some of these cognitive deficits seem to be there even a couple of years ago and, in my opinion, the Other Dissociative Disorders (Ganser syndrome) also has been there for more than 12 months. It is very difficult to absolutely prove or disprove this, but the only evidence I have is from the interviews she did. I do not have any recent interviews, but I do understand that the solicitor had to spend many sessions to get the details from her as she was giving approximate answers.”

Dr Kumar also addressed the direct question: “does the [Appellant] have capacity within the meaning of the Mental Capacity Act 2005 to conduct legal proceedings?”, to which he answered (at 5.1.20) :

“In my opinion, although she understands the legal proceedings, understands the court processes and understands the consequences, when she is stressed she becomes quite overwhelmed by it and then her paranoid beliefs about the investigators trying to get her out of the property become strong. She also would find it difficult to give clear answers to questions, which is what the solicitor struggled with. So, it would be difficult for the solicitor to get instructions from her when she is overwhelmed by stress as her cognitive functions would be significantly impaired. She would struggle to recollect, she would struggle to understand, and she would struggle to retain when under stress, and then her paranoid belief system would become prominent. She would start thinking that people were deliberately causing her all this distress because the Christians Against Poverty charity organisation had helped her with debt relief in the past and the Council did not like it. So, although she is able to understand what the court case involves and the legal procedure, her explanation for why it happened to her is driven by paranoid beliefs about the Lambeth Council trying to get her out because she made them lose money or got a debt written off. That paranoid belief also is triggered by the stress. As mentioned earlier, with her cognitive impairment during stress, she would struggle to fully understand the evidence and give appropriate instructions. This is very evident in all the letters she wrote and the interviews she had.”

Finally, his conclusions were:

“6.1.

The Defendant has long-standing psychiatric illness such as somatoform autonomic dysfunction affecting the Gastrointestinal system and a condition called Other Dissociative Disorders. She also has significant physical health problems including eczema.

6.2.

All the mental health conditions are major mental illnesses which are long term, and they significantly impact on her level of functioning adversely. … .”

In his Certificate as to Capacity to Conduct Proceedings Dr Kumar’s conclusion that the Appellant lacked capacity is stated in the present tense. That said, in the body of the certificate he stated that the other associative disorders had lasted “since 2018 approximately”. In the box relating to inability to use or weigh information as part of the process of making decisions in the course of proceedings, Dr Kumar said:

“[The Appellant] has fixed paranoid beliefs that Lambeth council officials were deliberately causing her all this distress because the … charity organisation had helped her with debt relief in the past and the Council did not like it. This was how she explained the case to me, and going through the files, it seems that this has been her understanding throughout these proceedings. So, although she is able to understand what the court case involves and the legal procedure, her explanation for why it happened to her is driven by paranoid beliefs about the Lambeth Council trying to get her out because she made them lose money or get a debt written off. As mentioned earlier, with her cognitive impairment during stress, she would struggle to fully understand the evidence and give appropriate instructions. This is very evident in all the letters she wrote and the interviews she had. She find[s] it difficult to view the information available to her objectively, weigh the pros and cons to make decision and give clear instructions.”

The certificate was dated 30 November 2021.

In the light of the UTJ’s reservations about what his evidence established, the Solicitors returned to Dr Kumar for further assessment and advice. He examined the Appellant on 10 April 2024 and has produced two supplemental reports. The Appellant has applied to adduce his further evidence by application to this court.

The first supplemental report is dated 28 July 2024. On this occasion the question was repeated: Whether the Defendant has a mental impairment or impairments; if so, what is the likely diagnosis of any such impairment? For each such impairment, explain the symptoms and likely prognosis, both with and without appropriate medical treatment.

On this occasion Dr Kumar replied:

“5.1.4.

After my current assessment, I have revised [the Appellant’s] diagnosis from Ganser syndrome to that of a delusional disorder. She has fixed paranoid delusional beliefs against the council. She has held it with conviction and has done that since 2020 from the objective evidence I have and possibly from 2017. She has had these fixed false paranoid beliefs about the council, which has been quite distressing for [her].”

Two further questions were then asked:

“On the balance of probabilities did [the Appellant] lack litigation capacity at the time of the First Tier tribunal hearing which took place on 21 January 2021

On the balance of probabilities did [the Appellant] lack capacity earlier in the proceedings, and in the period leading up to and including the First Tier Tribunal Hearing on 21 January 2021, when she was providing documents to the tribunal, including sending the attached letters.”

Dr Kumar’s reply was:

“5.1.7.

I have been sent letters [the Appellant] sent to the council from 2020. From the letter, it is clear that she firmly believes that the reason Lambeth Council took action against her was because she applied for debt relief. She believes that the Council acted vengefully because they could not reclaim the £4,338.18 from her. She believes that this is why they came up with allegations of fraud against her. She has fixed paranoid beliefs about the people who came to inspect the property and believe that they have committed an offence against her. She thought that the judge should hold Lambeth Council to account because they were vengefully putting false charges on her because of the money which was written off through debt relief. She believes that Lambeth Council made her life difficult from 2017 onwards. From the letters [the Appellant] wrote in 2020 and 2021, it is clear to me that on balance of probability, [the Appellant] did lack litigation capacity at the time the first tribunal took place. She also lacked capacity earlier in the proceedings, in the period leading up to the first tier tribunal when she was providing these documents to the tribunal, including the letters she sent.

5.1.8.

This is because she had and continues to have rigidly held paranoid delusional beliefs about Lambeth Council and she thinks that they are harassing her because she got debt relief, and they were deliberately trying to make her homeless. She is of the belief that they made up various allegations and because of her paranoid delusional beliefs, it is clear to me that she was not able to use the information available to her in an objective manner, to weigh the pros and cons to make a decision as she was very much affected by her paranoid delusional beliefs.”

Apart from his changed diagnosis, his conclusions were essentially unchanged: the Appellant has long-standing psychiatric illness such as a Delusional Disorder and her mental health condition is a major mental illness which is long term, and it significantly adversely affects her level of functioning.

This first supplemental report generated a further question from Counsel, which he answered in a second supplemental report dated 23 August 2024. The question was:

“Do you agree with the finding of the First Tier Tribunal that it would have been a “relatively straightforward and simple” matter for [the Appellant] to be able to respond to the requests for further evidence made by the First Tier Tribunal in March and August 2020 and in the period leading up to the final hearing itself?”

To which Dr Kumar answered:

“5.1.4.

When I first saw [the appellant] she had a significant cognitive impairment, as well as symptoms of somatoform disorder. Because of these major difficulties of which the somatic autonomic dysfunction has been there for more than 20 years, I put them as my primary diagnosis. However, [the Appellant] presented with paranoid delusional beliefs about Lambeth Council. After my current assessment, I have revised [the Appellant’s] diagnosis from Ganser syndrome to that of a delusional disorder. She has fixed paranoid delusional beliefs against the council. She has held it with conviction and has done that since 2020 from the objective evidence I have and possibly from 2017. She has had these fixed false paranoid beliefs about the council, which has been quite distressing for her.

5.1.5.

She was quite fixated about her beliefs, and she had an unshakable belief that the Council was deliberately accusing her of fraud because she got some debt relief through Christians Against Poverty. She continues to have these delusional beliefs still. I have gone through the letters [the Appellant] wrote in 2020 and they seem to be driven by her delusional beliefs. She seems to be in quite a lot of distress as well when she was writing these letters.

…

5.1.7.

[The Appellant’s] response to the allegations made against (sic) were through the letters she wrote. In those letters, [the Appellant] writing about how she was mistreated by the Council and how the Council was seeking revenge on her because of her getting her debt written off. It was clear from my capacity assessments that she did not have capacity to litigate or even capacity to instruct the solicitors because of her paranoid beliefs, her thought disorder and difficulty with her memory as well. I have seen her again and certified as not having capacity in April 2024 as well, as she was not able to understand the relevant information because of her originally held paranoid delusional beliefs. She continues to believe that the Council is trying to make her street homeless, and they are making her run up her debt by stopping her housing benefit and making false allegations to distress her. She wasn’t able to understand the key information. Going through her letters, this was the case in 2020 and 2021 as well when she did not quite understand what the case was about, and she was fixated on her paranoid beliefs about the Council. She did not have legal representation with the Council and she did not quite understand what was happening as well, from what she said.

5.1.8.

I understand that the judge hearing the case in 2021 did not have the benefit of a psychiatric assessment and a report. The Judge made a conclusion at that time based on the evidence he had that it was a relatively straightforward and simple case. However, now that [the Appellant] has had 2 psychiatric assessments, including capacity assessments, I am of the view that [the Appellant] has been suffering from a chronic psychiatric condition called a Delusional Disorder and possibly other conditions such as a dissociative disorder and a somatoform disorder as outlined in my previous report. In my opinion, her case wasn’t straight forward and simple in that she has had various psychiatric conditions which affected her litigation capacity and capacity to follow the hearing. She also did not quite understand the information relevant to her case in 2020 and 2021. As [the Appellant] was quite distressed by what she considered as false accusations made by the Council and was quite paranoid about Lambeth Council, she was not able to weigh the relevant information and follow the Court proceedings.”

Dr Kumar summarised his conclusions:

“6.1.1.

The Defendant has long-standing psychiatric illness such as a Delusional disorder.

6.1.2.

In my opinion, with the additional information I got from the psychiatric assessment, I am of the view that her case was not simple and straightforward as the judge originally thought in 2021 when he did not have the benefit of a psychiatric assessment report.”

One of the cardinal features of the tribunal system is the flexibility of the procedure that the Tribunal can and should adopt. As was said in Tendring DC v CD [2024] EWCA Civ 1509 at [62]:

“The rules of procedure in the tribunals permit for a wider range of representatives to support protected and vulnerable parties, including but not limited to litigation friends; these rules are anchored in the overriding objective to deal with all cases fairly and justly (rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, … and rule 11 ibid) There is no specific provision in the tribunal rules equivalent to Part 21 of the Civil Procedure Rules 1998. The tribunal rules concerning support for protected and vulnerable parties are applied more flexibly than in the courts; there is less formality in its processes, consistent with the quasi-inquisitorial nature and requirements of each jurisdiction (AM (Afghanistan) v SSHD [2017] EWCA Civ 1123).”

As this passage makes clear, and as was pointed out in AM at [41]-[42], the foundational considerations underpinning the interpretation and application of these principles, now enshrined in the terms of the overriding objective, are rooted in the general principle of the common law to provide for natural justice in tribunal procedures. In AM Ryder LJ (with whom Underhill and Gross LJJ agreed) said at [44], referring to asylum claims by children, young people or other incapacitated or vulnerable persons, but in terms that are of general application:

“I have come to the conclusion that there is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached.”

Ryder LJ went on to explain that appointing a litigation friend would not be necessary in many cases because a child who is an asylum seeker in the UK will have a public authority who may exercise responsibility for him or her and who can give instructions and assistance in the provision of legal representation of the child. This explanation does not detract from the generality of the principle he had identified.

What was described in AM at [43] as the “accessible, flexible, specialist and innovative approach that [the rules] facilitate” is necessitated by features that are specific to Tribunals, namely:

The flexible approach to be adopted by the FtT and UT is enshrined in the relevant rules. For both the FtT (Social Entitlement Chamber) and the Upper Tribunal, the obligation under the overriding objective to deal with a case fairly and justly includes avoiding unnecessary formality and seeking flexibility in the proceedings (the tribunal being the master of its own procedure) and ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. The flexibility and the determination to achieve a just result is widely reflected in the rules. Thus, for example, Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 permits the FtT to set aside a decision if the Tribunal considers that it is in the interests of justice to do so and one or more conditions are satisfied. The conditions are broadly drafted and include that there has been a “procedural irregularity” in the proceedings. Similarly, both the FtT and the UT have wide ranging powers about the evidence that they will admit or exclude, including (at both levels) whether the parties are permitted or required to provide expert evidence.

It is entirely in keeping with this flexible approach that there is no equivalent in the Tribunal Procedure Rules to CPR Part 21. In particular, there is no equivalent in the Tribunal Procedure Rules to CPR Parts 21.2(1) and 21.3.4, which in civil litigation provide that a person who lacks capacity must have a litigation friend to conduct proceedings on their behalf and that, as least as the default position, any step taken before a person who lacks capacity has a litigation friend has no effect. What matters in the exercise of the Tribunals’ jurisdiction where a person is either vulnerable or compromised in their ability to participate fully in the proceedings is that procedural unfairness must be avoided. In my judgment, the concerns expressed in the first sentence of the footnote to Ground 1, which I have set out at [23] above, are misplaced; and I did not understand the Appellant to be contending for a principle that any and every mistake as to capacity would amount to procedural unfairness. In my judgment, where a litigant in Tribunal proceedings is found to have lacked capacity (or to have been compromised in their ability to participate fully in the proceedings) after the event, it may be relatively easy to conclude that there has been a mistake of fact. However, it will always be necessary to decide what, if any, impact their lack of capacity (or compromised state) has had or may have had upon the fairness of the proceedings, applying the criteria I have briefly summarised above. Only once that issue has been resolved can it be decided whether or not there has been procedural unfairness that requires the Tribunal or the Court on an appeal from the Tribunal to intervene. There is an almost limitless spectrum of potential procedural unfairness and the response of the Tribunal to it should be proportionate to the facts of the case and guided by the overriding objective. These principles are not confined to a formal finding of lack of capacity: they apply with suitable calibration to any case where a litigant’s ability to participate fully in proceedings is compromised or adversely affected in other ways.

There will be cases where the experience of Tribunal Judges will enable them to recognise the inability of the litigant to participate in proceedings fully. Where it is recognised, the Tribunal Judge will be well placed to decide what, if any, provision must be made to enable full and fair participation. However, there may be other cases where even a specialist Tribunal Judge will not be alerted to the difficulties that the litigant is facing. Where that is recognised at a later date, either on a set aside application or on an appeal, the full extent of the Tribunal’s powers is available, up to and including setting aside or allowing the appeal, to ensure that the final outcome is fair.

What is not in doubt on established principles is that procedural unfairness may found a discrete head of challenge in an appeal on a point of law. In E & R v SSHD [2004] QB 1044 the Court of Appeal addressed the issue of procedural unfairness at [66]:

“In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.”

The parties made submissions about what is meant by the words “‘established’, in the sense that it was uncontentious and objectively verifiable”. Since there was no dispute before us about the admission of Dr Kumar’s first report and certificate before the FtT on the application to set aside and the subsequent appeals that have brought the case to this court, and because of the view I take on the basis of that report and certificate, the question is in my view of academic interest only. However, in case it matters (and because it has been argued before us), I consider that it is plainly inadequate for a party simply to rely upon a bare denial of the correctness of the evidence in question and, on the basis of that bare denial, to assert that the evidence is “contentious”. It must be controverted or put in issue either by other evidence or by principled and rational argument or by both. Equally, the requirement that the fresh evidence be “objectively verifiable” should not be understood to mean that opinion evidence is automatically excluded.

This leads to consideration of the status of expert evidence and when it may be disregarded. That was addressed in detail by Lord Hodge DPSC (with whom the other members of the Court agreed) in Griffiths v TUI (UK) Ltd [2023] UKSC 48, [2025] AC 374 . In particular, at [61] the Supreme Court reaffirmed that, as a general and flexible rule, the evidence of a suitably qualified expert should be accepted if it is unchallenged. There may be exceptions to the general rule, such as where the evidence of the expert is manifestly incredible; or where there may be a bold assertion of opinion in the expert’s report without any reasoning to support it (as opposed to the case where there is reasoning but it may appear to be inadequate) so that all that supports the assertion is the fact of the “bare ipse dixit”; or where there is an obvious mistake on the face of the experts report; or where the witnesses’ evidence about the facts is contrary to the factual basis on which the expert has expressed their expert view; or where the expert has been given, but has not taken, the opportunity to respond to criticism of their report or otherwise clarify it. It should be borne in mind that Griffiths v Tui was a case concerning fully adversarial court litigation; but it should come as no surprise that the Supreme Court based its exposition of principle on the need to preserve the fairness of the trial: see [70].

Although as a general and starting proposition, the admission of fresh evidence on an appeal asserting a mistake of fact by the Tribunal below is subject to Ladd v Marshall principles, consideration of the issue whether the material could and should have been made available before the impugned decision inevitably overlaps with the question of “unfairness”, because “a claimant who had the opportunity to produce evidence and failed to take it may not be able to say that he has not had “a fair crack of the whip”: see E & R at [68]-[69]. That said, the Court should bear in mind the observation of Bean LJ at [27] of Hussain v SSWP [2016] EWCA Civ 1428:

“27.

There are cases in which an over strict application of the first principle against a party who appeared without representation, as Mr Hussain did in the First-tier Tribunal, can be contrary to the overriding objective of dealing with cases justly. I prefer, therefore, rather than asking whether a consultant's report could have been obtained with reasonable diligence before the hearing in the FTT, to concentrate on the question of whether it would have been potentially decisive in Mr Hussain's favour or at least have had an important influence on the result of the appeal. In my view, it would not.”

Procedural unfairness may have an additional importance when applying the second appeals test. In Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, 2005 1 WLR 2070 the Court said, at [24(3)]:

“There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.”

The respective positions of the parties can be fairly shortly stated.

For the Appellant, Mr Burton KC submits that the UTJ misinterpreted Dr Kumar’s first report and certificate. Had he not done so, the UTJ should have concluded that the Appellant was suffering from a mental disorder in the run up to the FtT hearing in January 2021 and at that hearing that adversely affected her ability to represent herself adequately. Specifically, her mental disorder meant that it was not a relatively straightforward and simple matter for the Appellant to be able to show that her son resided in Streatham during the overpayment period and that he now lived in Enfield. This is without having resort to the question whether, in the light of what is now known about her son and his asserted reasons for not changing his address, it was reasonable to make the apparent assumption that he would have paid council tax, or gone on the electoral register or have a formal tenancy agreement, those being the sorts of independent evidence contemplated by the FtT. Whether or not the Appellant actually lacked capacity, the uncontroverted evidence of Dr Kumar should have led to a conclusion that his opinion was not restricted to November 2021. But for these errors the UTJ should have concluded that there was a clear error of fact on the part of the FtT which rendered the FtT proceedings unfair. Had her actual mental state been recognised at the time, steps could and should have been taken to remove or ameliorate the unfairness. Had that happened, it cannot be assumed or found that the outcome of the original FtT hearing would have reached the same conclusion. The proposed appeal satisfies the second appeals test, because the case raises an important point of principle or practice and also because, being based on procedural unfairness, there is a compelling reason for the Court of Appeal to hear the appeal. Permission should therefore be given, the appeal should be allowed, and the case should be remitted to the FtT for rehearing.

For the Respondent, Ms McGibbon submits that the Second Appeals test is not satisfied. She accepts that questions of capacity can raise issues of procedural fairness, but she submits that the FtT and the UT applied the relevant principles correctly such that their decisions should not be disturbed. She relies upon the fact that significant allowance had been made for the Appellant by the case management directions in 2020 and that the FtT Judge had heard the Appellant give oral evidence and had not been alerted to the existence of difficulty – nor had DTJ King been alerted on the set aside when they reviewed the recording of the initial hearing. She also relies on the fact that, even since the appointment of a litigation friend, the Appellant has not produced further evidence about her son’s residence of the sort contemplated by the Tribunal’s case management orders in 2020. She maintains that the UTJ was right to take the view that Dr Kumar’s evidence was relevant only to the time when he examined her in November 2021 and not to the time running up to and including the FtT hearing.

In her oral submissions, Ms McGibbon submitted that, since CPR Part 21 does not apply, the critical question to inform the question of procedural unfairness is not whether or not a person lacks capacity but whether they are vulnerable or compromised in some way that requires steps to be taken to prevent procedural unfairness. Even if there is a lack of capacity, the appointment of a litigation friend is not automatically or necessarily the only response that is open to the Tribunal, though it may be. The Tribunal should apply its case management powers appropriately and proportionately on the facts of the given case, the touchstone always being whether the proceedings are fair. It follows from these submissions that the critical question in these appeals is not whether the Appellant lacks or lacked capacity but whether, on a proper understanding of the facts of this case, the hearing before the FtT was procedurally fair.

I have referred at [48] above to the possibility that even the most experienced and specialist Tribunal Judge may not recognise that a litigant who appears before them is compromised in their ability to participate fully in the proceedings, whether by reason of a lack of capacity or for some other reason not amounting to a loss of capacity. This case demonstrates the point. The FtT was not alerted to even the possibility that the Appellant’s ability to participate fully in the proceedings was compromised despite (a) her wholesale non-compliance with orders, (b) her apparently unexplained failure to adduce evidence of the sort contemplated by FtT’s case management orders, and (c) the evidently obsessive streak (to put it no lower) that ran through her letters to the Tribunal which largely concentrated on her conviction that she was the subject of a vendetta by Lambeth and not on the facts that clearly interested and were relevant to the decision to be made by the FtT. Given the lack of appreciation of any difficulties, the FtT’s decision was virtually inevitable on the evidence presented to the FtT by Lambeth and the absence of explanation or evidence from the Appellant. In those circumstances, and subject to the questionable assumption that her son would have generated an evidential trail of council tax, electoral registers or formal tenancy agreements, the FtT’s assessment that it would have been relatively straightforward and simple for the Appellant to respond to the Tribunal’s requests for further evidence was not unreasonable.

However, on a proper assessment of Dr Kumar’s first report and certificate, the position changed radically. I do not accept that Dr Kumar’s evidence can reasonably be interpreted as applying only to the time of his report and not earlier. First, although his first examination of the Appellant was in November 2021, his opinion that she suffered from major mental illness was significantly based upon the content of her letters in the period between the making of the FtT’s case management orders and the January 2021 hearing: see his description of the letters at [28] above, the passage from his report that I have set out at [31] above, and the passage from his Certificate that I have set out at [33] above. From these passages alone it is plain that he considers her paranoid beliefs to be of longstanding and dating back to before the FtT’s hearing. Second, in answer to direct questions from the solicitors, Dr Kumar stated that her dissociative disorder did not seem to have appeared in recent months, had been there “for some time” and “for more than 12 months”: see the passage I have set out at [30] above. Third, the conclusion of his report was that the Appellant was suffering from “major mental illnesses which are long term”: see para 6.2, which I have set out at [32] above. Fourth, in his certificate he said that the associative disorders had lasted “since 2018 approximately”. Both singly and cumulatively these strands lead inexorably to the conclusion that, in his opinion, the major mental illness which he diagnosed in November 2021 had been present at all times material to her failure to comply with the FtT’s case management directions through to and including the hearing in January 2021.

As I have set out at [24] above, the UTJ accepted that Dr Kumar’s evidence established a lack of capacity in November 2021. It was also his view that “a really significant mental impairment, amounting to a lack of litigation capacity or something close to it” would justify a conclusion that the FtT’s finding that is the subject of attack in this appeal was in error. He also accepted that the evidence showed some abnormality of mind or of reasoning was present during the FtT proceedings. Yet he also formed the view that Dr Kumar was not very informative as to the Appellant’s likely abilities from March 2020 onwards. In my judgment, for the reasons I have just set out, that was simply wrong: the evidence that she lacked capacity in November 2021 also supported a conclusion that she lacked it from March 2020 onwards.

Nor can Dr Kumar’s evidence be dismissed out of hand. He is suitably qualified and his report is reasoned. Furthermore, at this stage it is to be regarded as uncontentious because there is neither any expert evidence to contradict it nor a reasoned basis for rejecting it. I note in passing that, when giving directions for this rolled up hearing, I gave leave for Lambeth to submit evidence in response to that of Dr Kumar if so advised. Lambeth did not do so. None of the exceptions to the general rule reiterated in Griffiths v Tui apply: see [51] above. There is in my judgment no reason why either the UTJ or this Court for the purposes of the appeal from his decision should not adopt the clearly expressed opinion of Dr Kumar in his first report and certificate.

In addition, by the time that this case came to be determined in the UT, the UTJ had the evidence submitted by the solicitors initially in support of the application to set aside, which I have summarised at [16] above. That evidence was not before the FtT but, if true, provided additional grounds for setting aside the decision of the FtT because it included an explanation for the son not having changed the address on the various sources of documentary evidence identified by Lambeth in the course of their enquiries. It also demonstrated that there was at least potentially more compelling evidence available to the Appellant than her solitary and bare assertion that her son had left home in 2014. If Ladd v Marshall were to be raised, Bean LJ’s observation would apply: see [52] above.

For these reasons, I conclude that this is a case where, applying E&R, there has been a mistake of an existing fact, namely that the Appellant was not compromised or lacking in capacity such that it would be relatively easy for her to participate fully in the proceedings as directed by the FtT’s case management directions and at the January 2021 hearing. That is established by the evidence of Dr Kumar. The appellant was not responsible for the mistake, because it is a feature of her illness that she is in denial as to her difficulties. The mistake played a material part the tribunal’s reasoning because the FtT drew an adverse inference from her failure to comply with the ostensibly reasonable case management directions or to provide a reasonable explanation for that failure.

Adopting the approach that I have set out at [47] above, it is plain that the FtT’s mistake had a significant impact on the Appellant’s ability to participate fully in the proceedings which gave rise to material procedural unfairness. Had the true position been appreciated, I do not doubt that the Tribunal had sufficient powers that it could and should have exercised to render the proceedings fair. For a start, due allowance would have been made for the Appellant’s condition so that the adverse inference from her failure to comply with the Tribunal’s previous directions would not have been made. Beyond that, the Tribunal may have investigated why her son was not present and why he had produced no documents as contemplated; and it may have taken steps that would lead to a litigation friend (or some other person willing to assist her) being appointed. That would at least have increased the chances of the hearing being attended by her son, her neighbours and the son’s putative landlords. What seems to me abundantly plain is that the outcome of the proceedings may well have been different if the FtT had appreciated the true position as now revealed by Dr Kumar’s evidence.

In the light of these considerations, I consider that the second appeals test is satisfied. The fact that the appeal is based on what I consider to be a clear and material procedural unfairness is sufficient of itself to provide a compelling reason for the appeal to be heard. The appeal raises important questions about the flexibility of the approach to be adopted in the Tribunal in relation to lack of capacity or other compromising disadvantage suffered by a litigant. And, for the reasons I have attempted to set out, the appeal should be allowed.

I reach these conclusions without reference to Dr Kumar’s evidence subsequent to his first report and certificate. It is therefore not necessary to refer further to that evidence or to determine the application for it to be admitted. It would of course be at least potentially admissible on a remitted hearing.

I would therefore grant permission to appeal, allow the appeal and remit the issue of the son’s place of residence during the period of alleged overpayment of HB to the FtT to be reheard in the light of the evidence that is now available and any other material evidence that the Tribunal may, in its discretion, decide to admit.

I agree.

I also agree.