Too late to appeal?

Simon Osborne looks at rules and caselaw on when a benefit appeal made outside the time limit could still be admitted.

A time limit applies to the making of a benefit appeal to the First-tier Tribunal. This can be viewed as a ‘basic’ time limit within which an appeal must always be admitted for consideration, and an ‘absolute’ time limit within which a later appeal may still be admitted, but after which admission is usually impossible.

Recent caselaw from the Upper Tribunal has looked at the circumstances in which that later ‘absolute’ time limit might in fact still be breached, but the appeal still admitted for consideration. However, it is clear that such cases will, in practice, be rare.

For most benefit appeals, in which the mandatory reconsideration requirement applies, the basic time limit is that the appeal must arrive at the First-tier Tribunal within one month after the claimant was sent the mandatory reconsideration notice.1r22(2)(d)(i) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 No.2685 (‘the TP(FT) Rules’)

In cases where the mandatory reconsideration requirement does not apply (mostly housing benefit), the basic time limit is that the appeal must arrive at the relevant office by one month after the date the decision (which can include a mandatory reconsideration if one was in fact requested) was sent to the claimant.2rr22(2)(d)(ii) and 23(2)(a)(i) TP(FT) Rules If a written statement of reasons (having not already been supplied) is requested within that time, the time limit is extended by 14 days, or if later the date the reasons are provided.

What if the appeal is made after the expiry of the basic one-month time limit? The appeal may still be admitted for consideration, but in almost all cases must still be made within an ‘absolute’ time limit of 12 months from the expiry of the basic time limit – ie, in most cases, within 13 months of the mandatory reconsideration decision.3rr22(8) and 23(5) and (8) TP(FT) Rules A request for late admission must be made, and reasons for the lateness given.4rr22(6) and 23(3) TP(FT) Rules

In practice, late appeals made within the ‘absolute’ time limit are often not resisted (and so are treated as made on time unless the tribunal directs otherwise), and in any case the final decision over whether the appeal should be admitted is made by the First-tier Tribunal.5rr22(8)(a) and 23(4) and (5) TP(FT) Rules

But an appeal made after the expiry of the absolute time limit is very unlikely to be admitted. Straightforwardly, the tribunal rules provide that that time limit may not be extended – so issues like good cause for the delay, or extremely good grounds for the appeal will make no difference. Despite that, it is not quite true that the ‘absolute’ time limit will prevent an appeal in every single case. This is what the recent caselaw from the Upper Tribunal has been concerned with.

Can an appeal made outside the absolute time limit still be admitted? The answer in the great majority of cases will be ‘no’. But existing caselaw has already established that human rights considerations can mean that, as a matter of discretion, in an exceptional case the answer is ‘yes’. The relevant law is the right to a fair trial at Article 6 of the European Convention on Human Rights. As human rights law, it is capable of overriding the tribunal rules on time limits.

The Upper Tribunal applied that several years ago in the decision in KK v Sheffield CC (CTB) [2015] UKUT 367 (AAC), citing the decision of the Court of Appeal in a non-benefits case, Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818. What is sometimes referred to as the ‘Adesina principle’ is that the right to a fair trial may indeed require that an appeal made after expiry of an ‘absolute’ time limit (whether in benefit law or not) is admitted, but only in exceptional cases and where a claimant did everything they could to appeal on time. The basic message remains: appeal in time wherever possible, and assume as a default that a very late appeal, made outside the ‘absolute’ time limit, will not be possible.

More recent caselaw has considered the ‘Adesina principle’ in practice. In KD v SSWP [2021] UKUT 329 (AAC) (3 August 2021), the appeal was 22 months late. The First-tier Tribunal, although aware of the Adesina principle, struck the appeal out. In the Upper Tribunal, Judge Wikeley held that the tribunal had given inadequate reasons for doing so, given the ‘considerable body’ of documentary evidence regarding the lateness of the appeal, including medical evidence.

In MZ v SSWP (UC) [2022] UKUT 292 (AAC) (29 September 2022), the claimant’s appeal had again been struck out by the tribunal for being outside the ‘absolute’ time limit. Here though (as accepted by Judge Wikeley) the tribunal had erred, given the facts of the case, in that discretion should be exercised on whether to allow an appeal outside that time. Although the decision does not contain detailed reasoning, the Secretary of State (in supporting the appeal) had said, regarding the individual facts of this case:

‘Overall, the appellant was waiting on DWP to award UC to the appellant in light of her settled status in the UK and requested updates on multiple occasions within the 13-month time limit, but DWP have seemingly failed to action this in a timely manner. As such, I submit that the FtT [First-tier Tribunal] have erred in law by failing to exercise their discretion in considering whether it was appropriate to hold an oral hearing of the application for permission to appeal in which to assess whether the circumstances are exceptional.’

Most recently, in GJ v SSWP (PIP) [2022] UKUT 340 (AAC) (15 December 2022), Judge Wikeley has undertaken a more detailed examination of the authority on the Adesina principle. The appeal in this case had unquestionably been outside the absolute time limit, although the history was complicated. The claimant was originally refused personal independence payment in 2017 (that had been subject to a mandatory reconsideration but was not changed). The 2017 decision had again not been changed by a DWP ‘LEAP’ (Legal Entitlements and Administrative Practices) decision in 2020. The claimant’s subsequent attempt to appeal against the 2017 decision, well outside the 13-month time limit, was rejected by the First-tier Tribunal as being out of time.

In his consideration of relevant authority, Judge Wikeley this time had reference to the decision of the High Court in Rakoczy v General Medical Council [2022] EWHC 890 (Admin) (another non-benefits case), that itself considered the Adesina principle. Rakoczy recognised that refusing a late appeal must not (in order to protect human rights) impair the very essence of the right to appeal. But it also recognised that, in Judge Wikeley’s words, ‘a case would need to be very exceptional indeed in order to benefit from the Adesina principle’.

This prompted an emphasis on the very high bar set for admission of an appeal outside the absolute time limit. Had he had reference to Rakoczy when deciding MZ v SSWP (UC) (see p9), he might well have put stronger emphasis on the ‘truly exceptional’ nature of what was required. Summing up, he said: ‘…the moral of Rakoczy v GMC is that the Adesina principle is very narrowly drawn indeed… Adesina is about the right of access to the justice system and can only apply if the effect of a time limit is to “restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”.’