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Summary

The claimant was the subject of a decision that she had ceased to be entitled to income support on the grounds of alleged cohabitation with someone in full-time employment. She appealed and requested an oral hearing. However due to confusion on her part, she turned up 20 minutes late for the hearing. By that time the tribunal judge, having received information that the claimant could not be contacted, had considered the appeal on the papers alone and refused the appeal. When the claimant was allowed to see the judge, he told her that he had already made the decision and that she was too late.

Judge Rowland allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal judge had erred in not considering whether to set the decision aside when the claimant turned up late and not rehearing the case. On the facts, which included that there was a significant sum of money at stake and that it was clear that the claimant did wish to take part in an oral hearing, the decision should have been set aside and a hearing commenced. 'I cannot believe,' remarked Judge Rowland, 'that the claimant having arrived 20 minutes late made it impossible to hear the case that afternoon so as to require an adjournment and a delay in someone else's case being heard... I suspect that setting aside his decision simply did not occur to the judge but I am satisfied that he erred in law in not rehearing the case, even if that required him first formally to set his first decision aside' (paragraph 15).

Indeed, it was possible that a formal setting aside was not required in this case. Even if the decision notice had actually been written, it seemed unlikely that it had been given or sent to anyone by the time the claimant arrived. In that case, the decision may have been considered not to have been final. The Administrative Appeals Chamber of the Upper Tribunal treated a decision as final only when a written copy of it was sent or given to a party, and it seemed to Judge Rowland that the same approach should be taken in the Social Entitlement Chamber of the First-tier Tribunal - ie, including in a social security appeal (paragraph 11).

Summary

The claimant appealed against a decision that she was liable to repay a substantial overpayment of housing benefit and council tax benefit. She and her partner attended the tribunal hearing but the relevant council was not represented. The tribunal allowed the claimant's appeal. However the council subsequently applied for a set-aside of the decision on the ground that it had intended to be at the hearing but that the 'tribunal documentation advice' was received at the council on the day of the hearing, and that the appeals officer had telephoned the tribunal clerk and been told that the appeal would be adjourned. The claimant was unaware of the set-aside application, and was not given a chance to comment on it or on the subsequent decision to set the original tribunal decision aside on the grounds of absence of a party to the appeal, the First-tier Tribunal judge holding that the claimant had no such right, except regarding a review for official error. Eventually, the claimant appealed against the set-aside to the Upper Tribunal.

Judge Mark allowed the claimant's appeal and decided that the original tribunal decision should stand. The decision to set aside the original decision, taken as it was on the basis that a party adversely affected by it had no right either to receive notice of the application so as to make representations, or to apply to set it aside except on a review on the basis of error of law, was 'manifestly contrary to the basic principles of natural justice and to Article 6 of the European Convention on Human Rights (paragraph 14). It was hard to think of any judicial decision, said the judge, 'that does not require either that a party adversely affected should either be given the opportunity to be heard before the decision is made or to apply to set it aside within a short time of it being made' (paragraph 16).

Further, contrary to the council's submission and the opinion of the First-tier Tribunal judge who refused permission, there was a right of appeal to the Upper Tribunal against a decision to set aside a decision of the First-tier Tribunal. There was such a right against any decision of the tribunal, including an interlocutory decision, unless it was an excluded decision. The opinion of the First-tier Tribunal judge that a decision to set aside for absence of a party to the appeal, under rule 37(1) and (2)(c) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, Si No.2685, was an excluded decision was simply wrong (paragraph 13).

Furthermore, Judge Mark was satisfied on the facts of the case that the original tribunal judge was entitled to proceed on the day. For set-aside of that to have been correct, it was required under rule 37 not only that a party to the appeal was absent, but the other necessary condition for not proceeding was that it was in the 'interests of justice' to do so. That included why the council was not represented. On the full facts available, Judge Mark concluded that, in fact, notice of the appeal was received by the council in good time but that for some reason it was not adequately explained by the council and it was overlooked until the afternoon it was due to be heard. He also considered that on balance it was more likely that the appeals officer was told by the clerk not that there would be an adjournment but that the tribunal was likely to adjourn but that this would be for the judge to decide (something the appeals officer should have known in any event).

Comment from CPAG

Inevitably, the particular findings of this decision are dependent on its individual facts; however, the judge's comments are a reminder that applications to adjourn for non-attendance before any First-tier Tribunal hearing should be accompanied wherever possible by ample reasons, and that subsequent attempts to get a decision to proceed set-aside will not be successful merely because of the fact of non-attendance.

Summary

The claimant appealed against the decision refusing him disability living allowance. On the appeal enquiry form, he ticked a box indicating that he did not want an oral hearing. Neither did he indicate that he had a representative, although his council welfare rights service had assisted him with the claim form - it was unaware of his return of the enquiry form, the DWP submission and ultimately of the hearing. The tribunal considered the case on the papers and refused the appeal. Following issue of the tribunal decision, the claimant's representative applied on his behalf for the decision to be set aside, on the grounds that had the welfare rights service been aware that a hearing was being arranged, it would have advised that the claimant request an oral hearing and would have provided a submission. The application was refused on the basis that no ground under rule 37(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, SI No.2685 was made out.

Judge Turnbull refused an appeal to the Upper Tribunal against the refusal to set aside. There was no ground made out under rule 37(2). Despite an earlier thought that there may be an argument that a party to the appeal was not present at the hearing, the judge held that 'hearing' in rule 37(2)(c) referred to an oral hearing. Here there was no oral hearing, so no party could be held to be absent (paragraph 14). There was no other error in the refusal to set aside. There was no 'procedural irregularity' (ie, a ground under rule 37(2)(d)), as although the appeal papers were sent to the claimant and not to the welfare rights service, it had not been identified as the representative for the purpose of the appeal. Neither was there any breach of natural justice: it was 'entirely the claimant's fault' that he did not have an oral hearing or seek further help from the welfare rights service; and even if that was due or partly due to the claimant's mental health problem, that still did not mean that there was a breach of natural justice (paragraphs 15-16).

Decision in brief

Three-month period from which claimant must be entitled begins on the day the claim is determined, not the earlier date on which the claim is received - late appeal where both any time revision and official error supersession refused - appeal can be made against official error supersession decision and appeal time limit runs from date of that decision

Summary

The claimant was a Polish national. She came to the UK in December 1998, at the age of 10, with her parents and three siblings. She returned with them to Poland in 2002 but came back in June 2004 (aged 15) when Poland joined the EU. Her mother died and her father became ill. After finishing school the claimant begin registered work but at 17 became pregnant and after a period of unregistered work claimed income support (IS). She was refused on the basis that she did not have the right to reside, a decision eventually upheld in the Upper Tribunal. The claimant's further appeal to the Court of Appeal was based on the argument that the refusal of a right to reside in her case was disproportionate as, by obliging her as someone who had been in the UK for most of her life since the age of 10 to return to Poland, it violated her rights to private and family life under EU law.

The Court of Appeal unanimously dismissed the claimant's appeal. At the time of her claim for IS, she was (as an 'AB' national subject to the workers' registration scheme and was neither working for an authorised employer nor had she completed 12 months' registered unemployment so as to take her outside the requirements of the scheme. The argument that her consequent lack of a right to reside was disproportionate was defeated by the decision of the House of Lords in Zalewska v Department for Social Development [2008] 1 WLR 2602. That was a strongly similar case in which an argument about the proportionality of the workers' registration scheme was made, and which was rejected by the Lords. In the present decision, Lord Justice Laws giving the lead decision said that the decision in Zalewska, 'upheld the proportionality of the scheme as a whole' and could not be distinguished (paragraphs 10-16).

The Court held that there was no breach of the claimant's rights (under Article 7 of the European Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights) to private and family life. Referring to the decision of the Court of Appeal in Kaczmarek [2008] EWCA Civ 1310, Lord Justice Laws noted that there is a distinction between lawful presence in this country and the right to reside here. The claimant in the present case did not have the right to reside under the IS rules, but was lawfully present and (as it happened) no steps were taken to remove her from the country. If such steps had been taken, she would have been entitled to appeal and raise arguments about her rights to private and family life; but 'none of this requires that she be accorded a right of residence... in short, the protection of her fundamental rights did not require that she be accorded such a "right of residence"' (paragraphs 24-26).

Note: at time of writing, it was understood that consideration was being given to an application for permission to appeal to the Supreme Court.

Summary

In this decision the High Court unanimously rejected a judicial review challenge on behalf of a number of claimants that the rule allowing a reduction in their eligible rent following the application of the local housing allowance size criteria (the so-called 'bedroom tax') constitutes unlawful discrimination against disabled people. However, the decision does not question the earlier decision of the Court of Appeal in Burnip v Birmingham CC & Another and Gorry and Wiltshire CC and Another [2012] EWCA Civ 629 (15 May 2012), specifically the Gorry decision, that the rule unlawfully discriminated against disabled children who could not share a bedroom.

The judicial review was brought on behalf of 10 claimants in receipt of housing benefit (HB). The claimants had a variety of different circumstances, but were said to 'represent a range of individuals who are typical of those who are adversely affected by these changes for reasons relating to disability...' (paragraph 3).

The central argument was that the introduction of the 'bedroom tax' into the social rented sector, by the introduction of regulation 813 into the Housing Benefit Regulations 2006 No.213, brought about unlawful discrimination by breaching their rights as disabled people under Article 14 of the European Convention on Human Rights. Related arguments were that the rule involved violation of the Public Sector Equality Duty (PSED) imposed under section 1-49 of the Equality Act 2010, to have 'due regard' to the prospective effect of the rule, and that official guidance in the form of Circular HB/CTB US/2013 was unlawful as prescribing the means of calculating appropriate maximum HB for certain classes of case.

In the lead decision, Lord Justice laws held that discrimination was justified, and ,so not unlawful. The discrimination at issue here was, for the judge, so-called 'Thlimmenos discrimination' - ie, a failure to treat a disabled person more favourably in order to avoid an unfair result (paragraph 48). But that was not made out, and this was also why the PSED was fulfilled in the making of the rule. This was because the policy rationale for the changes was justified. It was not 'manifestly without reasonable foundation', and so the failure to treat disabled people differently (ie, more favourably) had an 'objective and reasonable justification'. These were the tests set out in Humphrys v HMRC [2012] 1 WLR 1545 (paragraphs 56-88). The Court had regard to the Secretary of State's consideration of the new policy from 2010 to 2013, including' the Equality Impact Statement and debates in Parliament, as well as the extra funds made available for affected claimants in the form of discretionary housing payments (DHPs). Arguments for the claimants overlooked or underestimated the strategic aims of the policy to 'shift the place of social security support in society'. Although that aim was contentious, judges could have no public voice for or against it, but had to take rt into account (paragraphs 58 and 65). The Court said that in Gorry the Court of Appeal was faced with a 'discrete group' - ie, families with children who could not share a bedroom because of their disabilities. But it did not accept that the Gorry approach (ie, which found that the Thlimmenos discrimination was unlawful in those cases) could be applied here, where there was no such discrete group-the group was disabled people with varying circumstances. There was no failure: 'the Secretary of State had, of course, nevertheless to consider carefully what steps to take in relation to disabled persons, and others, who would or might face real difficulties arising out of the cap... his provision of extra funding for DHPs and advice and guidance on its use cannot be said to be a disproportionate approach to the difficulties which those persons faced' (paragraph 88).

Regarding the guidance in Circular HB/CTB U2/2O13 (which instructed local authorities to apply the Gorry decision in appropriate cases involving disabled children, but not to others), the Court held that the Secretary of State was 'obliged' to introduce regulations to implement the Gorry decision and not rely on guidance to do so. A departmental circular was 'not a lawful vehicle' for prescribing the means of calculating appropriate maximum housing benefit'. 'Meantime', said the Court, 'local authorities retain their discretion as to the administration of DHPs. It is plainly open to them to follow the Secretary of State's Circular, but compliance with Burnip/Gorry is not their legal responsibility' (paragraphs 89-93).

Comment from CPAG

It is understood that the claimants will seek permission to appeal. Straightforwardly, this decision refuses to extend the Gorry decision further than protecting disabled children who cannot share a bedroom from the bedroom tax. However, even if disabled people in general are not protected, it is unclear exactly why the Court could not consider why, for instance, disabled adults who cannot share a bedroom should not have the same protection.

Arguments that such adults, or some other disabled adults who need an extra room, .are in a 'discrete group' and so are closer to the claimants in Gorry than those in the present decision may still be tenable, although will not be accepted by local authorities and will require testing. Regarding the Court's comments on the official guidance, the DWP has issued further guidance (HB U5/2013) saying that regulations will be amended to reflect Gorry 'in the autumn', and that in the meantime local authorities 'should continue to apply the previous guidance in HB U2/2O13.'

Note: this case was appealed to the Court of Appeal (see R (MA and others) v Secretary of State for Work and Pensions [2014] EWCA Civ 13) and then to the Supreme Court. For the Supreme Court's decision, see R (MA and others, A, Rutherford) v Secretary of State for Work and Pensions [2016] UKSC 58. 

Summary

In these joined cases, a three-judge panel of the Upper Tribunal considered whether alleged failures to properly notify claimants of incapacity benefits that their claims were to be converted to claims for ESA meant that the subsequent 'conversion decisions' (which here involved being refused ESA for failure to satisfy the work capability assessment) were invalid. The Upper Tribunal held that the subsequent decisions were not invalid. The notifications were not in fact invalid, but even if they were the claimants were not disadvantaged.

In each of the three cases, the claimants had been on income support (IS) on the basis of incapacity for work. Their appeals against decisions that those awards did not qualify for conversion to ESA centred on the contention that they were not 'notified persons' for the conversion process, a provision at regulation 4 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No.2) Regulations 2010 No.19O7. In particular, regulation 4(3) provided that a notified person must be informed that her/his existing award would be converted to one of ESA if 'certain conditions are satisfied'. The notifications, argued the claimants, did not meet that requirement as they did not contain sufficient details on the basis conditions of ESA entitlement. It was also argued that the claimants concerned did not in fact receive any notification under regulation 4. For all these reasons, it was argued, the subsequent refusal to convert their IS awards to ESA and concurrent termination of IS entitlement (the conversion decision) was invalid.

Judges Charles, Rowland and Gamble rejected those arguments. The conversion decisions were not invalid. In general observations, the Upper Tribunal held that although the claimants asserted that they had not received the notifications under regulation 4, all of them filled in the work capability assessment questionnaire (ESA5O) and attended an examination by a healthcare professional. It was 'difficult to see what difficulty, prejudice or unfairness could be caused by not receiving a regulation 4 notice' (paragraph 24). Regarding the adequacy of the notices, in most cases (certainly where, as in the present cases, the claimant was in Great Britain), the only basic condition of ESA entitlement that was relevant to the conversion process was the requirement to have limited capability for work; regulation 4(3)(c) did no more than require that it must be clear to claimants that they must have limited capability for work, and the notification did comply with that even before the modifications to the wording subsequently introduced by the DWP (paragraphs 37, 40 and 45). As to the point that the claimants had not actually received the notices, the Upper Tribunal did not consider that essential. The information given by the regulation 4 notice was not something claimants were required or expected to act on; the issue of the notice did not bring about a change in their substantive rights, and was more properly regarded as part of the administrative process (paragraphs 51-54). It was sufficient, in the context of these rules, that the regulation 4 notice was generated and sent out by the DWP; and it was not actually required that it was received for it to be regarded as 'issued' (paragraph 58). Overall any failure or defect on the regulation 4 notice (ie, even if the Upper Tribunal was wrong on the preceding points) would not result in any unfairness or other injustice, and so any breach of regulation 4 on grounds of inadequacy 'did not result in any subsequent conversion decision being invalid' (paragraph 69). It was also 'common ground' that even if the Upper Tribunal was wrong, any defect in the regulation 4 notice would have been remedied by whenever the revised notification (in Forms IBM350 or ESA51), in use from 16 August 2012, was sent out with the ESAS0 questionnaire (paragraph 60).

Summary

In this judicial review decision from the Upper Tribunal, it is held that the work capability assessment process places claimants with mental health problems at a substantial disadvantage, by reason of the failure of that process to obtain further medical evidence at an early stage. The Secretary of State was under an obligation to make 'reasonable adjustments' under section 20(3) of the Equality Act 2010 to remedy that. However, the decision does not require the DWP to seek further medical evidence in every case. Instead, it directs the DWP to investigate how to implement changes so that decision makers are required to consider the need for further medical evidence in mental health cases and justify a decision not to seek further evidence.

It was argued for the claimants that under section 20(3) of the Equality Act, to prevent substantial disadvantage to claimants with mental health problems, the Secretary of State was obliged to seek further medical evidence at an early stage in the work capability assessment in every case in which the claimant had a mental health problem. The Secretary of State argued that he was not so obliged. It was accepted that under current practice the seeking of further medical evidence was made only in a small number of cases (eg, where support group membership may be established by further evidence, where there was an appointee or where there was evidence of attempted suicide or self-harm - paragraph 50). The Secretary of State pointed to safeguards for claimants with mental health problems, such as ensuring failure to return the ESAS0 questionnaire in mental health cases was referred first to a health care professional rather than direct to a decision maker (paragraph 37), and ensuring that where a claimant with a mental health problems fails to attend a medical, the decision maker will attempt to contact her/him by telephone and if appropriate arrange a home visit before making a decision (paragraph 45).

For further medical evidence, however, it seemed to the Upper Tribunal that the Secretary of State was maintaining his position that present practice did not require 'reasonable adjustments' and that such evidence was requested where appropriate. However, he accepted the recommendation of Professor Malcolm Harrington in his third report on the work capability assessment that 'decision-makers should actively consider the need to seek further medical evidence in every claimant's case. The final decision must be justified where this is not sought'. That was different from a requirement always to seek further medical evidence in every case, but did require a decision not to seek it to be justified. Nevertheless, the Upper Tribunal considered that what the DWP was doing abou1 that 'falls well short' of investigating and assessing the recommendation regarding claimants with mental health problems (paragraphs 66-81).

In the Upper Tribunal, Judges Charles, Jacobs and Lane held that the duty under section 20(3) was a generic test, and that on that basis the present practice resulted in a significant number of claimants with mental health problems being placed at a 'substantial disadvantage' and/or suffering an 'unreasonably adverse experience'. However, it was not reasonable to expect as a remedy that the Secretary of State seek further medical evidence in every case. The Upper Tribunal considered that instead an assessment ana trial along the lines of the recommendation of Professor Harrington was most appropriate (paragraph 157). At present there was not sufficient evidence to enable the Upper Tribunal to determine what changes in the work capability assessment process would be reasonable to avoid the substantial disadvantage, and so the Secretary of State was directed to take 'defined steps, with a defined period' to investigate and assess changes in practice regarding claimants with mental health problems (paragraph D of the Index and Overview to the decision).

Note: The Secretary of State intends to appeal

Summary

The issues before the judge in this decision were whether the claimant could be treated as having limited capability for work as someone 'undergoing medical or other treatment as an in-patient in a hospital or similar institution' or if the day in question was 'a day of recovery from that treatment', as provided for under regulation 25 of the Employment and Support Allowance Regulations 2008 No.794.

The claimant had been living in a residential treatment centre for people with gambling addictions, and then (by the time the decision on his ESA claim was actually made) had moved to 'halfway house' accommodation.

Judge Wikeley held that the First-tier Tribunal had failed to consider whether the claimant could benefit from regulation 25, and so was in error on that basis, with the result that a new tribunal would have to consider it (paragraphs 9-11). Giving guidance to the tribunal, the judge held that the expression 'medical or other treatment' had been considered by the Court of Appeal (albeit in a different context) in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515; [2012] AACR 30. Although that was a case about disability living allowance, the judge considered that the same meaning should apply to the phrase in the context of ESA (paragraph 16). In Slavin, importance was placed on whether the claimant received treatment from qualified doctors or nurses; in the present case the question would be one of fact for the new tribunal, but it would need to explore questions like how the appellant was referred to the treatment centre, who admitted him and what were her/his professional qualifications and who had overall charge of the centre and the claimant's treatment programme (and again what were her/his qualifications) (paragraphs 17-19). For the meaning of 'in-patient', the proper meaning was the subject of CJ v SSWP (ESA) [2012] UKUT 201 (AAC). Again, however, the question was ultimately one of fact for the new tribunal (paragraphs 20-22).

As to the meaning of 'hospital or similar institu1ion' that was not defined, but had been considered by the Court of Appeal in White v Adjudication Officer (1993), reported as R(IS) 18/94, and also applied in Slavin. For the judge, it was unlikely that the treatment centre in this case was a hospital, but it might be a 'similar institution'. He cited official guidance in the Decision Makers Guide that 'an institution caring for former alcoholics, drug addicts or psychiatric patients which provides a degree of medical treatment or rehabilitation by trained nursing staff may be a similar institution to a hospital' (paragraphs 23-26). (He also noted that regulation 25 had been amended from 28 March 2011 to provide that it was to include treatment 'where the claimant is attending a residential programme of rehabilitation of drug or alcohol addiction.' However, this came into force after the date of the decision under appeal in the present case, and did not cover gambling addiction.) Again, whether the claimant was covered was ultimately one of fact for the new tribunal, as was the application of the rule to the 'halfway house' that the claimant was in at the time of the decision under appeal. Even if not a 'hospital or similar institution', it was possible that the halfway house was somewhere where the claimant was recovering from such treatment. In addressing that, the tribunal would need to take a 'common-sense' view, and adopt the purposive approach taken in CJ v SSWP- ie, that regulation 25 should apply only to those with medical conditions requiring hospital treatment and recovery from that treatment such the resulting limitation on capability could be assumed to be sufficiently serious, without the need to test it (paragraphs 27-32).

Comment from CPAG

Note that the judge thought it possible that, depending on the individual facts, someone receiving treatment for gambling addition or recovering from it can be covered by regulation 25, even though the March 2011 amendments refer specifically only to drug or alcohol addiction.

Summary

The claimant was sent a decision in a letter headed 'Notice of Overpayment' presenting a 'decision' that she had been overpaid IS and had to pay it back. The reason for the overpayment was money in an undisclosed bank account. The claimant appealed, arguing that she had no knowledge of the money. The First-tier Tribunal dismissed the appeal.

Judge Fordham QC allowed the claimant's further appeal, and substituted a decision that the allegedly overpaid IS was not recoverable because there had been a valid supersession of the claimant's award - ie, so as to bring her entitlement to an end. However, that was not to prejudice the Secretary of State's ability to take further steps to comply with that so as to recover the alleged overpayment, or the claimant's ability to make a fresh appeal about that.

The reason the overpayment was not recoverable was that the judge considered in this case there had been no valid supersession, so that the main overpayment rule at section 71 of the Social Security Administration Act 1992 was not complied with. Specifically, the requirement at subsection (5A) that the award of benefit was changed on appeal, revision or supersession was not met 0n effect, that usually requires a supersession and that was certainly so in the present case). The judge held that for recovery to be lawful there had to have been not only a 'recoverability' decision but also an 'entitlement' decision - ie, one changing the claimant's entitlement. That required that the Secretary of State 'must have notified the entitlement decision' and that should be done 'before the recoverability decision' (paragraphs 4-6). In so holding, the judge commented on the decision of the Northern Ireland Court of Appeal in Hamilton v Department for Social Development [2010] NICA 46. That held that it was possible for there to be a 'two pronged' decision or 'simultaneous dual notification' in which the entitlement decision and the recoverability decision were notified in the same decision. The judge confessed to doubts as to the correctness of that (paragraph 13), but held that, insofar as a 'two pronged decision' can be sufficient, 'the notification would need to be clear' - ie, in communicating two decisions both of which carried the right of appeal (paragraph 14). In the present case, the letter sent to the claimant did not do that: it was in the singular (speaking of a 'decision'), referred to itself as an 'overpayment decision' and did not cite the law involved in a supersession decision (paragraph 16).

Comment from CPAG

This decision, in an appeal supported before the Upper Tribunal by the Secretary of State, further clarifies that the claimant must be aware both that her/his entitlement has been changed and that the subsequent overpayment is considered to be recoverable, and of her/his Tight of appeal against both decisions. That is best done by separate notification; although the decision demurs from holding that the 'two pronged' approach described in Hamilton is actually wrong, as long as the separate decisions are clear. Under Welfare Reform Act 2012 changes, overpayments of universal credit, jobseeker's allowance and employment and support allowance since 29 April are all recoverable, but there must still have been an alteration of entitlement - ie, usually on supersession.

Summary

The claimant appealed against decisions that she was not entitled to jobseeker's allowance as she was living together as husband and wife with another person, and that there was a recoverable overpayment. A number of documents in the appeal papers had been redacted (eg, the fraud investigator's log had substantial passages redacted) and a witness statement was quoted from without the witness's name being given. The tribunal rejected the appeal.

Judge Sir Crispin Agnew of Lochnaw Bt QC allowed the claimant's further appeal and remitted the case to a new tribunal. The tribunal had erred in that it had allowed the Secretary of State to rely on the evidence of an anonymous witness, and it was not clear that special circumstances meant that was permissible. The tribunal had, therefore, breached the rules of natural justice and a right to a fair hearing under Article 6 of the European Convention on Human Rights (paragraph 5). Judge Agnew said: 'I am of the opinion that it is not lawful for the Secretary of State to rely on the evidence of an anonymous witness without the express consent of the tribunal, which should only be given in exceptional circumstances' (paragraph 9). Although hearsay evidence (eg, what a witness told the fraud investigator) is admissible, that will only be so if the person who made the statement is named. It is a fundamental principle of a fair hearing that a person is entitled to know the name of their accuser (paragraphs 10-11 ). Anonymity could be granted to a witness only in exceptional circumstances. The basic approach was that the witness's name should be revealed unless it can be shown that out of necessity the witness should be anonymous. In this case, the tribunal had relied on the evidence in anonymous form without giving any thought to the weight to be given to it. That in itself was an error of law (paragraphs 12-16).

Regarding redacted documents, it was not unlawful for the Secretary of State to supply documents for papers to be sent to the claimant that contained redactions. But in that case he should also provide unredacted copies of the documents in a sealed envelope to be available to the judge of the tribunal. It was then for the claimant's representative to object to the redaction or ask for information about what is redacted, and the tribunal judge will then decide whether to disclose the redactions (paragraphs 17-18). However, the Secretary of State 'should be careful about what is redacted and not use it as a matter of course. In the present case large tracts of the Fraud-Investigator's Observation Log are redacted and that immediately raised a concern [sic] about what is being excluded and whether or not it might be of value to the defence' (paragraph 19).

Summary

The claimant had been entitled to disability living allowance (DLA). She had married her appointee. Following an investigation the award was terminated from a point in the past, with a resulting overpayment that was held to be recoverable from the appointee. Both the claimant and the appointee appealed. Also, the appointee was charged with fraud for failing to disclose a relevant change in the claimant's circumstances (an improvement in her capabilities) that he knew would affect her entitlement. It was unclear whether the appointee had pleaded guilty or not guilty; however he was convicted before the tribunal hearing took place. The tribunal rejected the appeal (seemingly it treated only the appointee as a party) holding that in the absence of fresh evidence indicating that the conviction was wrong, the conviction was a complete bar to the appeal.

Judge Mark allowed the further appeal of the claimant and the appointee and remitted the case to a new tribunal The tribunal had erred in holding that the conviction was a complete bar to the appeal. Also, it was the job of the tribunal also to determine the claimant's entitlement to DLA as part of the appeal. She was not a party to the criminal proceedings, had not been convicted of anything and the conviction of the appointee was not in itself evidence which could be relied on against her, although the evidence relied on before the criminal court could be evidence against her if relevant (paragraph 7).

In so holding the judge reviewed the caselaw on the matter of criminal convictions and the weight to be given to them by tribunals. He adopted the view that 'a conviction represents no more than the opinion of the criminal court that the party in question was guilty of the offence charged and that that opinion, not being expert evidence, was not admissible in other proceedings, because it has no probative value' [ie, sufficiently useful to be proof] (paragraph 24). A separate question was whether there was a public policy requirement that might preclude a convicted person from challenging his conviction - eg, in a social security appeal. Reviewing the authority, the judge held that in general it was contrary to public policy to allow this. However, a party could seek to explain the circumstances of the conviction and the facts on which it was based, without seeking to challenge those facts, and that if there was convincing new evidence that the conviction was wrong they could be permitted to challenge the conviction (paragraphs 32-33). Otherwise, a tribunal should treat any attempt to challenge the primary findings of fact made by the criminal court, or the admissions involved in the pleas of guilty and any inference from those made by the court as against public policy and refuse to permit it, except upon the basis where such challenges were in any case permissible under section 11 of the Civil Evidence Act 1968 (paragraph 34).

However, an exception applied about application of the benefit rules to the facts. The social security tribunal was a specialist tribunal, and it seemed to the judge that 'there should be an exception to the general rule of public policy to the extent that the specialist tribunal should be able, in appropriate cases, to substitute its own findings as to social security law for that of the criminal court, and should be able to make its own findings as to the inferences and conclusions to be drawn from the primary facts found by, or admitted to the criminal court, as to the abilities or otherwise of the claimant and his entitlement to benefit' (paragraph 36). Therefore, the new tribunal in the present case should take into account the evidence that was before the criminal court and the admissions involved In any guilty plea by the appointee when considering the benefit entitlement of the claimant, but should not be bound by the conviction of the appointee on its findings on the claimant's claim (paragraph 38).