DP v The London Borough of Lambeth

In tribunal proceedings, a later finding that a litigant lacked capacity, or was otherwise unable to participate fully, does not automatically invalidate the proceedings. The tribunal must assess the impact on fairness and respond proportionately under its overriding objective. It has flexible powers, including appointing a litigation friend or setting aside a decision. A mistake of fact may constitute an error of law where the fact or evidence was established and objectively verifiable, the party was not responsible, and the mistake materially affected the reasoning, applying [2004] EWCA Civ 49. Unchallenged, reasoned expert evidence should generally be accepted subject to limited exceptions. Material procedural unfairness can itself provide a compelling reason for a second appeal.

Lambeth retrospectively reduced the appellant’s Housing Benefit on the basis that her adult son had continued to live with her. The First-tier Tribunal dismissed her appeal on 28 January 2021, drawing adverse inferences from her failure to produce independent evidence of his other addresses. It later refused to set aside that decision.

The Upper Tribunal dismissed the appellant’s appeal on 14 June 2023 and refused permission for a further appeal. The proposed second appeal concerned whether the tribunals had proceeded on a material mistake of fact about the appellant’s capacity and ability to participate effectively, thereby causing procedural unfairness.

Stuart-Smith LJ delivered the judgment, with Edis and Newey LJJ agreeing.

1. Permission and disposition. The second-appeal test in Article 2 of the The Appeals from the Upper Tribunal to the Court of Appeal Order 2008 was satisfied. Clear and material procedural unfairness supplied a compelling reason to hear the appeal, and the appeal also raised important questions about tribunal flexibility in cases involving incapacity or other compromising disadvantage. Permission was granted, the appeal was allowed, and the issue of the son’s residence was remitted to the First-tier Tribunal for rehearing.
2. Tribunal procedure and capacity. Tribunal procedure is flexible and is governed by the overriding objective of dealing with cases fairly and justly. The absence of an equivalent to Part 21 of the Civil Procedure Rules 1998 means that there is no automatic rule that proceedings are ineffective whenever a litigant lacks capacity without a litigation friend. The touchstone is procedural fairness. Where a litigant is later shown to have lacked capacity, or to have been materially compromised in participating, the tribunal must assess the actual impact on fairness and adopt a proportionate response using its available powers.
3. Mistake of fact and expert evidence. Applying [2004] EWCA Civ 49, the Court found a mistake as to an existing and established fact: the appellant’s ability to participate fully in the proceedings. She was not responsible for the mistake, and it materially influenced the First-tier Tribunal’s adverse inference from her non-compliance with directions. The tribunal could and should have adjusted its approach, investigated the absence of further witnesses and evidence, and considered appointing a litigation friend or other assistance.
4. Dr Kumar’s first report and certificate were reasoned, based in material part on the appellant’s earlier letters, and supported the conclusion that her illness and compromised capacity pre-dated the First-tier Tribunal hearing. The evidence was unchallenged and none of the exceptions identified in [2023] UKSC 48 applied. The later supplemental reports were unnecessary to the decision and their admission application did not require determination, although they could potentially be considered on the rehearing.

• Court of Appeal (Civil Division) — Permission for a second appeal granted; appeal allowed; the issue of the son’s residence during the alleged overpayment period remitted to the First-tier Tribunal for rehearing.
• Upper Tribunal (Administrative Appeals Chamber) — Deputy Upper Tribunal Judge Hocking dismissed the appeal against the First-tier Tribunal’s decision on 14 June 2023 and refused permission to appeal. The proceedings were identified as UA-2022-001401-HB.
• First-tier Tribunal (Social Entitlement Chamber) — The appellant’s appeal against Lambeth’s Housing Benefit decision was dismissed on 28 January 2021. An application to set aside was refused on 11 February 2022.