CO v London Borough of Havering (CH)

A requirement that a notice of appeal be signed by the appellant is satisfied where the appellant’s solicitor signs it as authorised agent. The solicitor’s signature is treated as that of the principal, so there is no procedural irregularity requiring waiver under the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

When deciding whether to extend time for an appeal, the tribunal must apply the overriding objective. It must consider all relevant circumstances, particularly the length and reasons for delay, the appeal’s prospects, and prejudice to the respondent. A later decision may be considered on an interlocutory extension application; the restriction on considering later circumstances governs the substantive housing-benefit appeal, not the jurisdictional issue.

The claimant appealed against a local authority decision denying housing benefit and council tax benefit and seeking recovery of overpayments. Her solicitors sent a detailed notice of appeal nearly nine months late but within the 13-month limit. The notice was signed by the solicitors rather than personally by the claimant.

The local authority treated the appeal as invalid. The Basildon First-tier Tribunal struck it out as outside its jurisdiction on 11 February 2013. The claimant appealed to the Upper Tribunal. The central issues were whether the solicitors’ signature satisfied rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, and whether time should be extended for the late appeal.

1. Appeal allowed. The First-tier Tribunal erred in holding that the appeal had not been duly made and was outside its jurisdiction. Its interlocutory decision was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

2. Rule 23(6) required a notice of appeal to be signed by the appellant, but that requirement did not demand a personal signature. Applying the agency principle affirmed in General Legal Council ex parte Basil Whitter v Frankson, [2006] UKPC 42, a solicitor’s authorised signature counts as the appellant’s signature. The contrary approach in R v Lambeth LBC ex p. Crookes and Others, [1998] 31 HLR 59, was unduly narrow and was not followed.

3. A solicitor who lodges an appeal is ordinarily presumed to act on instructions. Accordingly, the solicitor’s notice was compliant rather than an irregular notice whose defect had to be waived under rule 7. The position of a lay representative without written authority was left less certain.

4. The notice was nearly nine months late, so an extension required the exercise of discretion under rule 5(3)(a). The delay weighed heavily against the claimant, and reopening the matter caused some prejudice to the authority. However, the claimant’s explanation was understandable, the potential prejudice was relatively slight, and the later Department for Work and Pensions decision gave the substantive appeal at least reasonable prospects. The risk of injustice justified an extension.

5. The statutory restriction on taking account of later circumstances applied to the substantive housing-benefit appeal, not to the interlocutory question of jurisdiction and extension of time. The Upper Tribunal remade the decision, admitted the late appeal and remitted the substantive appeal to the First-tier Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal, set aside the First-tier Tribunal’s interlocutory decision, remade it to admit the late appeal, and remitted the substantive appeal.

• First-tier Tribunal (Social Entitlement Chamber), Basildon: On 11 February 2013, held that the appeal had not been duly made under rule 23(6) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 and struck it out as outside jurisdiction.