RH v Secretary of State for Work and Pensions (DLA): [2018] UKUT 48 (AAC) ; [2018] AACR 33
Upper Tribunal Administrative Appeals Chamber decision by Judge Rowland on 12 February 2018.
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Judicial Summary
Appointment to act - whether claimant with appointee precluded from bringing an appeal independently - whether First-tier Tribunal has the power to appoint a litigation friend
The claimant, who suffered from agoraphobia, depression and paranoid schizophrenia was awarded disability living allowance (‘DLA’). He made a renewal claim in 2004 through his mother who had been appointed to act on his behalf in 1999 by the Secretary of State under regulation 33 of the Social Security (Claims and Payments) Regulations 1987 (the ‘1987 regulations’). He was awarded an indefinite award of the middle rate of the care component and the lower rate of the mobility component with effect from May 2005. In late 2009, Medway Borough Council, seemingly at the claimant’s request, applied to become his appointee and was appointed by the Secretary of State despite objection from the appointee mother on the basis that the claimant lived with her and she was his main carer. There was no evidence that the mother had received formal notice of her removal as appointee although the payments of DLA to her ceased and were made instead to Medway Borough Council from its appointment in 2009. The Council subsequently informed the Secretary of State that the claimant was in hospital from October 2010, that he was discharged in early 2011, that he was living with his mother from March 2012, that he was returned to hospital in January 2015 and, on 26 October 2015, that he had moved into a “residential home” in September 2015. Payment of DLA had ceased from 25 February 2015 and the decision of the Secretary of State on 16 December 2015 resulted in the payment of arrears of the mobility component from 30 September 2015 but gave rise to the appeal to the First-tier Tribunal brought by the claimant’s father as the claimant’s representative on the ground that the Secretary of State had not been entitled to “withdraw” payments of DLA from 25 February 2015. The Secretary of State’s decision was upheld and the claimant through his representative father applied to the Upper Tribunal for permission to appeal. The Upper Tribunal invited argument as to who the parties had been in the First-tier Tribunal and whether the claimant had an independent right of appeal to the Upper Tribunal while a person had been appointed to act on his behalf. The claimant’s father argued that the claimant had had capacity to appoint him as a representative. The Secretary of State and the Council submitted that there was doubt as to the claimant’s capacity but that in any event the claimant had an independent right to appeal to the Upper Tribunal notwithstanding that the Council had been appointed to act on his behalf and, if he lacked capacity, the Upper Tribunal could appoint one of his parents as a litigation friend to represent him. Both parents declined to be appointed as a litigation friend on the ground that their son had capacity to act on his own behalf. The claimant’s father also refused to continue acting as his representative and had unsuccessfully applied to be allowed to intervene in his own right. The claimant’s mother argued that she was still the claimant’s appointee because her appointment had not been properly revoked or, alternatively, that she should be allowed to intervene in the proceedings in her own right.
Held, refusing the claimant’s mother’s application to be substituted or joined as a party to the proceedings and dismissing the application for permission to appeal, that:
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there cannot properly be more than one appointee at a time acting in place of the claimant in respect of a single benefit and, despite the claimant’s mother not having been given notice of the termination of her appointment and the lack of any written record of the Council’s appointment, it had been shown that the Council had been appointed in her place because the Council had been treated as the appointee and had acted as such since 2009 (paragraph 26);
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it was not appropriate for a parent with no independent interest in the substantive application concerning their child’s entitlement to DLA to be granted permission to intervene and if such a parent was to be allowed to participate it should be in the capacity of representative, appointee or litigation friend with a duty to act on the child’s behalf or in his interests (paragraph 28);
- the cumulative effect of section 12(2) of the Social Security Act 1998 and regulation 25(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI/1999/991) was such that the mere fact that there has been an appointment under regulation 33 of the 1987 regulations did not preclude a claimant from bringing an appeal his or herself, a lack of capacity to bring an appeal not being an insuperable problem because, where a person lacks capacity to bring or respond to an appeal, the First-tier Tribunal has the power to appoint a litigation friend and must if necessary exercise that power to avoid a breach of the rules of natural justice and Article 6 of the European Convention on Human Rights (as per Ryder LJ in AM(Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123; [2018] 2 All E. R. 350) (paragraphs 29 to 31);
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a finding that a claimant did have capacity would not result in an appointment under regulation 33 being quashed and the appointee would be a party to the appeal (paragraph 34);
- it was not necessary to decide whether the claimant in this case had capacity because, if he had capacity, he had had an opportunity to take part in the proceedings and, if he lacked capacity, he was adequately protected by having the Council as his appointee given that no-one else currently wished to act on his behalf (paragraphs 40 to 45).
Last updated 12 February 2020 + show all updates
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Decision selected for reporting as [2018] AACR 33
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First published.