Have you tried suing the Judge? Using judicial review to challenge delay in the First-Tier Tribunal

14 June 2023

What do you do when a decision is urgently needed from a tribunal, but it is ignoring your requests? In its handling of a recent Universal Credit (‘UC’) appeal, the Central England Law Centre (‘CELC’) has highlighted the way that judicial review (‘JR’) can be used to bring about the enforcement of clients’ rights where an appeal to the First-Tier Tribunal (‘FTT’) has stalled.

CELC’s approach to the case provides a useful template for how to respond to a situation where a case is not progressing in the FTT because letters and emails are being ignored.

Background

The case concerned a non-EEA national (‘P’) who had been granted pre-settled status under the EU Settlement Scheme as a family member of her EEA-national spouse. The relationship broke down in March 2022 due to the domestic violence of P’s spouse.

She applied for UC in April 2022 and her application was refused. The DWP determined that P’s only right to reside arose from pre-settled status. She was as a result treated as not ‘in Great Britain’. (The DWP position is that people who are solely reliant on pre-settled status as a right of residence fail the habitual residence test and are excluded from entitlement to UC.)[1]

As a result of the DWP decision, P and her two children were forced into a situation of extreme poverty and became reliant on the very limited and uncertain financial support of a domestic violence charity.

Challenging the DWP

P requested a ‘Mandatory Reconsideration’, which was refused. In September 2022 she appealed to the FTT, on the basis that refusal of UC was a breach of Article 1 (human dignity), Article 7 (respect for private and family life) and Article 24(2) (rights of the child) of the EU Charter of Fundamental Rights (“EU Charter”), relying on the 2021 judgment of the CJEU in CG v The Department for Communities in Northern Ireland C-709/20.

On 12 December 2022, the Upper Tribunal in SSWP v AT (AIRE Centre and IMA Intervening) [2022] UKUT 330 (AAC) confirmed that the blanket ban on those with pre-settled status claiming UC would lead to a breach of Article 1 of the EU Charter in cases where there was a risk of being without basics such as food, clothes and accommodation, and was therefore unlawful. Those with pre-settled status who could demonstrate that they are subject to such risk should be awarded UC. The SSWP was given permission to appeal that decision to the Court of Appeal.[2]

P filed further appeal submissions with the FTT on 17 December 2022 based on the judgment in SSWP v AT.

An appeal hearing date was listed for 17 January 2023.

Then, at neither P nor the SSWP’s request, on 6 January 2023, a Directions Notice was issued by the FTT vacating the 17 January hearing and staying the appeal for 6 months to await the outcome decision of the Court of Appeal in SSWP v AT. Representations from the parties were invited within 28 days.[3]

Significantly, P would not receive UC during the 6-month stay, leaving her and her children further in limbo despite the flow of case law in her favour.

Challenging the FTT

CELC took an active and structured approach to challenging the decision of the FTT over the next three months, which is worth careful study. They took the following steps:

• they wrote to the FTT on 11 January 2023 to apply for the decision to stay the appeal to be set aside and for the appeal to continue;
• they wrote again on 16 January 2023 (the day before the original hearing date had been listed) to request an immediate response;
• they wrote again on 19 January 2023 requesting a response by 26 January 2023;
• they sent an email on 30 January 2023 requesting that the correspondence be sent immediately to the “regional chair or, if not available, another senior judge”;
• they sent a further email on 6 February 2023 noting the absence of any reply and warning that a JR pre-action protocol letter would be sent if a response was not received;
• no reply being received, they sent a pre-action protocol letter on 7 February 2023;

Other than a holding response on 23 February 2023 noting that correspondence had been passed to a judge, the FTT did not substantively respond to any of CELC’s correspondence.

CELC then wrote again on 24 February 2023 to explain that JR proceedings were being prepared and would be issued by 28 February 2023 if no response was received.

Finally, on 1 March 2023, JR proceedings were issued for P against the FTT seeking an order requiring the FTT to determine the 11 January application to set aside the directions and a declaration that P’s Article 6 ECHR rights had been breached.[4]

Outcome

Things moved quickly thereafter. Having been notified of the JR proceedings, the SSWP revised the client’s decision and awarded her UC on 17 March 2023.

The FTT then ordered on 20 March 2023 that the 6 January 2023 stay of the appeal was lifted and that the appeal should be re-listed for hearing as soon as possible after 14 days.

This rendered the UC appeal unnecessary, and the JR claim academic.

CELC then reached a settlement with the FTT to the effect that the JR application be withdrawn and the FTT pay the client’s legal costs.

Lessons for Advisers

P had to go to monumental lengths to even get her appeal in the door. Her case is part of an ongoing struggle for those with pre-settled status against the ambiguities of the Withdrawal Agreement. However, these challenges can only be successful if they are given a forum for appeals to be heard. CELC’s approach in this case is an excellent model in how advisers should respond to the FTT ignoring requests to make a prompt decision.

Tight deadlines: As set out above, CELC’s correspondence was regular, set deadlines for response, and proceeded to the next step immediately when no response was received. The deadline for bringing a judicial review claim is short and strict. CPR 54.5(1) requires cases to be brought promptly and “in any event not later than 3 months” from the decision complained about (albeit this can be extended in certain circumstances). Swift progress is therefore essential.

Escalation: CELC’s correspondence escalated. There is a temptation to treat a tribunal with greater deference than other organisations and assume if a response is not received that there must be a reason. However, the FTT is still a public body and where it stands in the way of a just outcome, should be treated like any other. The escalation of response also ensures maximum pressure in negotiating a settlement, as it makes the delay all the more obvious and unreasonable.

Understanding what you can challenge: In this case, the FTT made two major errors. Firstly, it acted unlawfully in staying the client’s appeal without the SSWP having served notice requiring it to consider doing so. Secondly, it failed to determine the client’s application for that decision to be set aside. Understanding the procedural rules that apply,[5] and when to seek advice on what may be open to challenge can be just as important as understanding the substance of your client’s claim.

 Adding pressure: This is a harder factor to quantify, but there is a potential benefit to increasing the pressure on a decision-maker like the DWP in a case such as this. In addition to responding to an appeal, they find themselves involved in JR proceedings. Depending on the facts of the case, this could be the push that is needed to urge a resolution.

Costs: As well as bringing about a faster resolution to their client’s case, CELC won its costs (and at commercial rates, much higher than legal aid would pay). Considering judicial review is always tempered by a consideration of what funding is available in the early stages. This example shows that pursuing a good case can be worth the risk.

Conclusion

This case is a useful study in handling delay in the FTT and a helpful reminder of the importance of remaining vigilant even after an appeal has been filed. This involved the Social Entitlement Chamber but there is no reason why the principles outlined above could not be successful in any FTT chamber.

So don’t accept unnecessary delay for your clients: consider suing the judge!

[1] See UC Regulations 2013/376, Reg 9(3)(c)(i). The status of people who are in the UK under residual EU rights following Brexit is currently still unclear in many areas, including eligibility for UC.

[2] Judgment in this appeal is expected imminently.

[3] This aspect is not explored in detail in this Note. However, P’s position can be summarised as follows: s.26 of the Social Security Act 1998 empowers the SSWP to require a stay in situations where the outcome of another case will be determinative of an appeal; it is not the proper role of the FTT to make that determination of its own volition.

[4] An alternative was also proposed of an order quashing the FTT’s 6 January 2023 directions and requiring the FTT to within 7 days list a hearing of the Claimant’s FTT appeal, to take place within 28 days.

[5] In this case, The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.

Acting in this case was GCN’s Tom Royston with Michael Bates and Kasper Meidell from Central England Law Centre (CELC).

This article was written by second-six pupil Alex McColl.