Appeal No. UA-2025-000403-USTA and
UA-2025-000405-USTA
Between:
MS
Appellant
- v -
SECRETARY OF STATE FOR WORK AND PENSIONS
Respondent
Before: Upper Tribunal Judge Stout
Decided on consideration of the papers
Representation:
Appellant: In person
Respondent: Lauren Foody (DMA Leeds)
On appeal from:
Tribunal: First-tier Tribunal (Social Entitlement Chamber)
Tribunal Case No: SC180/24/00022
Digital Case No.: 1674-6528-4445-8654
Tribunal Venue: Birmingham (in person)
Decision Date: 29 July 2024
DECISION
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal involved an error of law. Under section 12(2)(a), (b)(i) and (3) of the Tribunals, Courts and Enforcement Act 2007, I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
DIRECTIONS
This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
The new First-tier Tribunal should not involve the tribunal judge previously involved in considering this appeal on 29 July 2024.
The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
These Directions may be supplemented by later directions by a Tribunal Caseworker, Tribunal Registrar or Judge in the Social Entitlement Chamber of the First-tier Tribunal.
REASONS FOR DECISION
Introduction
The appellant appeals against the First-tier Tribunal’s decision of 29 July 2024 refusing the appellant’s appeal against the decisions of the Secretary of State of 8 February 2023 that the appellant was not entitled to the Housing Cost Element (HCE) of Universal Credit (UC) from 4 November 2019 to 3 December 2022 and that accordingly there had been a recoverable overpayment of £11,163.83.
The First-tier Tribunal’s Statement of Reasons (SoR) was issued on 18 October 2024 and permission to appeal was refused by the First-tier Tribunal in a decision issued on 25 February 2025. The appellant filed the notice of appeal to the Upper Tribunal on 25 March 2025 (in time).
I granted permission to appeal by notice sent to the parties on 21 May 2025. The Secretary of State in response to the appeal indicates that the appeal is not opposed on one of the grounds on which I granted permission and does not oppose the decision of the First-tier Tribunal being set aside and remitted.
Why I have decided this appeal without a hearing
The appellant in reply to the Secretary of State indicates that he would wish to attend a hearing before the Upper Tribunal. However, I do not consider it would be in accordance with the overriding objective to hold a hearing in this case. The appeal is effectively conceded by the Secretary of State and it is not normally the role of the Upper Tribunal to re-hear cases and make decisions about the facts of cases such as would be necessary in order to resolve this appeal. The most efficient way of proceeding, since I am satisfied that there was a material error of law in the First-tier Tribunal’s decision, is for me to set aside its decision on the papers and for the case to be remitted for re-determination by the First-tier Tribunal by a different judge. That course also has the advantage for the appellant that, if there is an arguable error in the decision of the next judge he will still have a right of appeal to the Upper Tribunal against that decision, whereas if I remake the decision myself, he is deprived of that opportunity and the right of appeal would lie only to the Court of Appeal in which forum the appellant in principle may be at risk of an adverse costs award if he were to lose.
Why I am allowing this appeal
In granting permission to appeal I observed:
The First-tier Tribunal judge seems to have been under the misapprehension that the appellant was not challenging the amount of the overpayment, when in fact he was as he was challenging the entitlement decision as well as the overpayment decision.
His challenge to the entitlement decision was that the Secretary of State had wrongly concluded that he was not eligible to the HCE at 33 Thames Avenue Bicester as he had “not provided the evidence required that you had a commercial liability to make rent payments” (page 24 of FtT Bundle). The appellant appealed to the Tribunal on the basis that he did have a verbal agreement (see page 2 of the FtT Bundle). The Tribunal failed to deal with that aspect of his appeal. If it had done, and if that part of the appeal had succeeded, it would (as I understand it) have reduced the overpayment.
Given the misunderstanding that appears to have occurred, it seems there might be something in the point that the hearing was unfair because no interpreter was provided, although so far as I can tell (see page 3 of the FtT Bundle) the appellant had not actually requested an interpreter. If there was no subsequent request for an interpreter, then this ground of appeal will not succeed.
The Secretary of State in response to the appeal has submitted as follows:-
I respectfully submit that the FTT erred in law by failing to adequately addressing the appellants grounds to appeal. The appellant appealed both the overpayment and entitlement decision on the basis that they had a verbal rental agreement which could have shown they were entitled to housing element (see pages 2 and 24 of the FTT Bundle), but the FTT fail to explore this in their decision. In paragraph 7 of the Decision Notice (page 19, UT Bundle) the UT reference that the appellant failed to provide the Department for Work and Pensions (DWP) with the relevant documentation, however there is no further comment on this issue throughout the SOR and Decision Notice.
It is not clear from the SOR whether the FTT explored the appellants verbal rental agreement during the hearing, despite this being one of the claimants arguments before the FTT. There is evidence within the FTT Bundle to support that there could have been a rental agreement in place (see addition U, FTT Bundle), however the FTT fail to address this. Paragraph 6 of CI/747/2011 sets out:
“It is a good rule of thumb that the principal arguments advanced by the losing party should expressly be addressed in the statement of reasons. This is required as a matter of fairness because it is only by giving reasons that the tribunal can demonstrate that it has in fact given proper consideration to the arguments.”
Applying the above, the failure of the FTT to refer to the appellants grounds to appeal is an arguable error of law. The FTT instead focused on the effective date of the change of circumstance and whether an extension of the time limit to report a change of circumstance could be applied in the case at hand. Looking at the mandatory reconsideration letter (page 145, FTT Bundle) the reasoning the appellant was not entitled to housing costs for the second property was the lack of evidence provided for the rent, not the delay in reporting a change of circumstance. It appears that the FTT have misdirected themselves as this was the issue that was under appeal. If they had of explored this further, the decision regarding the appellants hosing costs may have been different and the overpayment may have been reduced.
Moving onto the second ground, Rule 2(2)(c) sets out that the overriding objective of the FTT is to ensure that all parties are able to fully participate in the proceedings. The appellant in their grounds to appeal states that the pre organised interpreter was not allowed in the hearing, which caused issues in communication between the FTT and the appellant.
The FTT at paragraph 5 of the SOR acknowledges that English is not the appellants first language. Due to the clear misunderstanding highlighted in the paragraphs above an interpreter may have been useful to the hearing. However, the appellant did not request for an interpreter to be present in hearing, they had multiple opportunities to request this prior to the hearing. The forms found at pages 3, 37, Addition B page 2 of the FTT bundle which give the appellant the opportunity to request an interpreter to attend the hearing remain blank, there is no further evidence within the bundles that show that the appellant requested that an interpreter attended to allow them to fully participate in the hearing.
Although the appellant in their grounds to appeal refers to a pre organised translator not being allowed to attend the hearing, there is no reference to this occurrence in the SOR and Decision Notice. The following was held by Commissioner Rice in CS/343/94:
“If the claimant was dissatisfied with the way the proceedings had been conducted, it was incumbent upon him, or his representative, to complain at the time, or at least to write in afterwards before the tribunal gave their decision. It is not generally open to claimants, who are dissatisfied with the way in which the proceedings have been conducted, to sit back doing nothing awaiting the outcome of the decision, and when it is adverse to them, then and then only to complain.”
While the case law above is not regarding a translator, I submit that it is applicable in the case at hand. The FTT have not erred in law on this ground. If the appellant felt that communication was limited due to language barriers and they could not accurately convey their evidence they should have raised this during the hearing, or shortly after, not once an unfavourable decision has been received. I submit that the FTT have complied with the overriding objective on this issue.
On the basis of the first ground, I submit that the FTT have erred in law. I request that the decision is set aside and remitted back to the FTT to fully explore the appellants rental agreement.
In the light of the appellant’s grounds of appeal, and the Secretary of State’s submissions, I am satisfied that the First-tier Tribunal did indeed materially err in law in failing to deal with the major part of the appellant’s appeal. I set that decision aside and remit it for rehearing.
Although I am not satisfied on the basis of the material before me that there was any unfairness in the appellant not having an interpreter (and this is not an issue the appellant himself sought to press in reply to the Secretary of State’s submission), the appellant should give consideration to whether he should request an interpreter for the remitted hearing. Given what has happened on this appeal as regards an interpreter, if the appellant does not specifically request one for the remitted hearing, it is very unlikely that he would be permitted subsequently to argue that the hearing was unfair as a result of not having an interpreter.
Holly Stout
Judge of the Upper Tribunal
Authorised by the Judge for issue on 24 September 2025