Appeal judge criticises tribunal service over delays in £67k housing benefits overpayment case

The Court of Appeal has criticised the tribunal service for causing “a series of unwarranted delays, and unexpected events, which almost beggar belief” in a housing benefits case brought by Tendring District Council.

Lord Justice Coulson said that the dispute should have been straightforward were it not for problems that “sadly…appear to be primarily due to the tribunal service”.

The case concerned repayment of some £67,000 housing benefit overpaid by Tendring between 2000-12 to the 1st Respondent.

There was a statutory demand for the return of the money in July 2012 after which “much of the debate has focussed on whether the statutory demand, and subsequent events, also made his wife, the proposed 3rd Respondent, jointly liable for the repayment”, Coulson LJ said.

The 1st Respondent's ill health and his lack of legal representation had complicated matters and his wife had acted as his litigation friend.

Coulson LJ said the case had since suffered from “a labyrinth of documents, decisions, appeals and further decisions.

“The case has been round the full course of First Tier Tribunals and Upper Tribunals not once but twice. I stress that none of that is the parties' fault, although it has made the need for a proper chronology in this case almost overwhelming.”

Tendring wanted to join the wife as a party because it wanted her to be formally bound by the result of the appeal so it could enforce any order against the couple without further difficulty.

Coulson LJ said: “At all material times, the parties were proceeding on the basis that what mattered was the decision for or against [the proposed 3rd Respondent]. That remains the case now: that is what the appeal is all about.

“The purpose of the appeal, if Tendring is successful on the substantive merits, is to permit enforcement against both [the 1st Respondent and the proposed 3rd Respondent]. It is therefore necessary for Mrs Ling to be made a respondent in order that she can argue her case to the full, and that, if she is unsuccessful in so doing, Tendring can put in place proper enforcement proceedings.”

He said the 1st Respondent had already been found liable and “it is of course right that [the proposed 3rd Respondent] could have formally been made a party at an earlier stage of these proceedings”.

That though had not happened because “no one turned their mind to the formal position, and everybody focused on the substantive issue as to whether or not [the proposed 3rd Respondent] was in fact jointly liable with her husband”.

The wife had not suffered any prejudice by not having formally been made a party before but if she were not made a party now “she might be able to run all the arguments she has run before at the appeal hearing, lose them, and still avoid any liability to repay the money. She would be arguing on appeal that she was not liable, but with no adverse consequences to her if she lost. That would be having her cake and eating it, and would be contrary to the overriding objective”, the judge said.

Coulson LJ concluded: “On the unusual facts of this case, it is necessary for [the proposed 3rd Respondent] to be joined as a party to these proceedings.”

He said that as a separate party, “it may be inappropriate for her to continue as her husband's litigation friend, because of what may be a potential conflict of interest” and urged [the proposed 3rd Respondent] to co-operate with the Official Solicitor “in view of [the 1st Respondent]'s potential status as a protected party”.

Mark Smulian