England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM APPEALS TRIBUNAL
(SOCIAL SECURITY COMMISSIONERS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th April 2001

LORD JUSTICE LATHAM:

1. On the 19th July 1997 the appellant sought a Jobseekers Allowance under the Jobseekers Act 1995. The adjudication officer held on the 22nd September 1997 that he was not entitled to that allowance on the grounds that he was a member of a married couple who was living in the same household as his wife who was in remunerative work. He thereby failed to meet the relevant conditions for a job seekers allowance by reason of the provisions of s. 3(1)(e) and s. 35 of the Act. His appeal to the Social Security Appeal Tribunal was dismissed on the 16th January 1998. An application for a rehearing was refused on the 1st May 1998. His appeal to the Social Security Commissioner was dismissed on the 6th December 1999; and he was refused leave by the Commissioner to appeal against that decision on the 7th March 2000. However leave to appeal was granted by this court on the 28th June 2000. The basis of the appeal is that the Social Security Appeal Tribunal misunderstood the evidence that it heard, and failed to ask the right question, namely whether or not the appellant met the conditions for a jobseekers allowance at the time he made his application in July 1997, and accordingly the Commissioner erred in law in dismissing his appeal.
2. In 1997 the appellant was living with his wife in the matrimonial home which was jointly owned. Both were in full time work until March 1997 when the appellant was made redundant. His case was that by the end of June 1997 the relationship between him and his wife was such that they lived separate lives. They slept in separate bedrooms, shopped, cooked and cleaned for themselves. His wife only paid half the mortgage and other household expenses. It was in these circumstances that he made his application for jobseekers allowance on an application which was treated as being made on the 19th July 1997.
3. On the 9th September 1997, he was visited at home by a Benefits Officer who prepared a note of the visit. She recorded the fact that the appellant had moved into a separate bedroom from his wife. The note continues:

"Mr de Silva says that although at the moment they are each doing their own cooking, laundry etc. if he was to receive JSA they would become a couple again because the only problems they have are financial. If he had money there would be no problem."

4. On the basis of the information provided by the benefits officer, the adjudication officer decided, as I have already said, that the appellant was living in the same household as his wife who was in remunerative work, and that he was therefore not entitled to the allowance. The appellant appealed and supported his appeal with a letter in which he denied having said anything to the effect that the only problems between himself and his wife had been financial, and in particular that if he were to receive the allowance he and his wife would become a couple again. At the appeal to the Social Security Appeal Tribunal, the appellant was represented by Mr Shapiro, of the Free Representation Unit. The Tribunal considered the documents, including the Benefit Officers report and a letter from solicitors instructed on behalf of the appellant stating that they were in the process of issuing proceedings for judicial separation on behalf of the appellant. The Tribunal heard evidence from the appellant and submissions from the Presenting Officer, Mrs Trench and Mr Shapiro.
5. The Tribunal decided, by a majority, to dismiss the appeal and gave its decision at the end of the hearing. The dissenting member was Mr Still. Mr Shapiro was concerned about the conduct of the hearing and, before he received the full written decision and the chairman's notes of evidence, wrote to the Tribunal a letter in which, amongst other complaints, he said:

"The Presenting Officer should not have been asked to comment on the veracity or otherwise of the Visiting Officer's evidence or that of Mr de Silva. That was a question for the tribunal alone to decide: Presenting Officer should not have participated in any way in the decision making process."

6. The Tribunal's written decision was in the following terms:

"We considered all the available evidence including everything produced to us today and to everything we heard during a lengthy hearing. We were assisted by the additional papers produced by Mr Shapiro on Mr de Silva's behalf......

We found that Mr de Silva was very articulate and perfectly able to seek and obtain clarification as necessary, he was of course represented throughout the hearing.

We found Mr de Silva's evidence to vary from time to time and to therefore be confused, confusing and at times clearly self contradictory, e.g. when questioned about the visiting officer's report/note of 9.9.1997 Mr de Silva said

(a) "I can't understand where the officer got this information from.

(b) "I can't recall saying those things to the visiting officer."

(c) "BUT LATER (original emphasis) in response to questions by Mr Still we were told "I accept that the visiting officer's statement is a true reflection of what Mr de Silva said and claimed". NB This was stated by Mr Shapiro with Mr de Silva's consent and agreement.

We found that these statements could not all be true and that at least one or more must be untrue. HOWEVER (original emphasis) having apparently having accepted that the missing (sic)officer's statement was factually correct and true Mr de Silva then stated that at least part of it was untrue. This caused us to find that we could not rely on Mr de Silva's oral evidence.

When we considered the visiting officer's report we found that the possibility of it or any part of it being fabricated or untrue to be so unlikely as to make such a possibility totally unacceptable. We therefore accepted the visiting officer's report as the truth.

We therefore found as a fact that Mr de Silva had said that if he succeeded in obtaining JSA he and his wife would become a couple again because the only problems they had were financial and that if he had the money there would be no problem (in the marriage).

This convinced us on the highest balance of probabilities that at all relevant times Mr & Mrs de Silva were living in the same household as a married couple.

The fact that Mrs de Silva was in remunerative work had never been in dispute.

For the avoidance of doubt we, having heard from, spoke to and observed Mr de Silva at considerable length found his evidence to be so questionable as to be unacceptable - we rejected it.

Note: Mr Still felt some parts of Mr de Silva's evidence were probably true and he would have upheld the appeal on that basis."

7. The hand-written notes of evidence included the following:

"Mrs Trench: I support the AO's decision.

Qd by Mr Still: I accept the Visiting Officer's statement as a true reflection of what Mr de Silva said and claimed ......."

later

"Mr de Silva I never said those things to the Visiting Officer about the problems being financial."

8. The appellant applied for the decision to be set aside under regulation 10(i)(c), of the Social Security (Adjudication) Regulations 1995 on the grounds that the interests of justice so required. This was supported by a further letter from Mr Shapiro dated the 29th April 1998 in which he clearly stated that he had at no stage accepted the Visiting Officer's statement. He asserted that the relevant answer had been given by Mrs Trench, and that the Tribunal had therefore misunderstood the evidence. Neither he nor the appellant had therefore made the apparently inconsistent statement which was expressly relied upon by the Tribunal as part of its reasons for being unable to accept the appellant's evidence.
9. A differently constituted tribunal considered the application to set aside the original decision on the 1st May 1998. It concluded that it was not just to do so:

"because it is not clear that there has been obvious mistake or procedural mishap."

10. On the appellant's appeal to the Social Security Commissioner, Mr Commissioner Jacobs, determined that the original decision was not erroneous in point of law. He concluded that there was evidence to support the Tribunal's finding of fact, in particular in relation to the report of the Visiting Officer. He concluded that the Tribunal gave sensible reasons for rejecting the appellant's evidence. As to the conflict as to who made the remark attributed by the Tribunal to Mr Shapiro, the Commissioner said:

"The claimant's representative has argued that the Tribunal wrongly attributed one of the remarks to which it refers. I am prepared to accept that for the sake of argument. However, it does not undermine the Tribunal's reasoning for two reasons. First, the remark was only one of three remarks quoted by the Tribunal. Second, the remarks were only quoted as an example. They were not a comprehensive statement of the deficiencies in the claimant's evidence."

11. The first ground of appeal, as I have said, is that the Commissioner was wrong to reject the appellant's submissions that if the Tribunal had been mistaken as to who gave the answer to Mr Still, the decision was nonetheless supported by the rest of the Tribunal's reasoning. Central to the conclusion that it reached on credibility was its finding that there was a clear discrepancy in the appellant's evidence. That depended on the relevant answer being properly attributable to Mr Shapiro. Even though the Tribunal was careful to state that the decision was based upon all the evidence, the emphasis that it placed on this particular piece of evidence cannot be ignored. If it was a mistake, which was the assumption that the Commissioner was prepared to make for the purposes of his decision, it must have had an effect on the decision of the majority. That being so, I consider that the Commissioner's decision was wrong in law. Mr Mould on behalf of the respondent realistically accepts this. He submits, however, that this court should not interfere with his decision if, having regard to all the material, it is clear that he would inevitably come to the same ultimate conclusion on the merits of the appeal. He submits that we can be confident that the Tribunal was not mistaken in attributing the relevant answer to Mr Shapiro. He accepts that the record does not expressly attribute the remark to Mr Shapiro. But, he submits, we should be very slow to conclude that the Tribunal had made such a significant mistake. The written decision was prepared on the day of the hearing. The issue was one which was central to the Tribunal's decision. It is therefore inherently unlikely, he submits, that such a mistake was made. Further, the wording of the record, namely that the speaker was "accepting" the Visiting Officer's statement, is more consistent with the words having been used by Mr Shapiro than by Mrs Trench, who would more naturally have submitted that she "relied" on the statement. He further submits that the wording of the relevant paragraph in the decision can only mean that the Tribunal had directed its mind particularly to this answer, and the person who gave it, clarifying in the decision that which was not clear in the record itself.
12. Miss Harris, on behalf of the appellant, submits that the record is clearly ambiguous. Although the wording of the answer might on its face appear to be more appropriate if given by Mr Shapiro, nonetheless it immediately follows the statement by Mrs Trench, so that the question from Mr Still which elicited the answer could most naturally have been directed to Mrs Trench in order to ellicit her reason for supporting the adjudicating officers decision. This, she submits, was clearly the recollection of Mr Shapiro whose letter of the 17th January was written before he had received and read either the detailed reasons, or the record. The only sensible meaning to be given to his complaint to which I have already referred is that he was objecting to Mrs Trench giving the answer in question. He confirmed that in his letter of the 29th April 1998. She further submits that as a discrete error of law, the record of the hearing was ambiguous. Under Regulation 29(7) of the Social Security (Adjudication) Regulations 1995, the tribunal was under an obligation to make a record of the proceedings. She submits that an incomplete, incorrect or ambiguous record would be a breach of that regulation. She further submits that any ambiguity could not be cured in the decision itself because that would be self serving. She therefore submits that the error of law made by the Commissioner cannot be retrieved in the way submitted by Mr Mould.
13. I was originally attracted by the appellant's arguments. There is undoubted force in the submission that Mr Shapiro's reaction after the hearing, and his considered position in the letter of the 29th April are consistent, and support the argument that the Tribunal had misdirected itself. But in the end, I have been persuaded that Mr Mould's submissions are correct. It would be extraordinary if, on what the Tribunal clearly considered to be such a central issue, it had made such a fundamental mistake. Whilst it is unfortunate that the record does not identify the person who gave the relevant answer, its wording is wholly inappropriate if it were an answer by Mrs Trench. The way in which the matter was dealt with in the written decision makes it clear that the Tribunal had applied its mind with care to the question of who had given the answer. I am satisfied that the Commissioner would inevitably have come to the same conclusion. Further, although I accept that a failure to make a proper record of the hearing could result in sufficient prejudice for it to amount to an error of law, that is not this case. The wording of the answer supports the assertion in the written decision as to the provenance of the answer. I am quite satisfied that there is therefore no uncertainty prejudicial to the appellant.
14. As to the second ground of appeal, namely that the Tribunal did not direct itself properly as to the issue, namely whether or not the appellant met the conditions for a Job Seekers Allowance at the time that he made his application and that the Commissioner failed to identify this misdirection, I do not consider that this has any merit. If the Tribunal was entitled to come to the conclusion which it did as to the appellant's credibility, it was entitled to find that the appellant had not discharged the onus on him of establishing his entitlement to the allowance. The Tribunal expressly found as a fact that the appellant was living in the same household as his wife "at all relevant times." There is nothing to suggest that the Tribunal misunderstood the question it had to answer. There was no obligation on the Tribunal in the circumstances to consider in detail its findings as to the appellant's living arrangements and household finances. It was sufficient for it to provide proper reasons for rejecting the appellant's evidence. In concluding that the appellants evidence was inconsistent and self contradictory, and providing, as it did, a valid example, the Tribunal adequately discharged its obligation to give reasons.
15. I would therefore dismiss this appeal.

LADY JUSTICE HALE: I agree

LORD JUSTICE HENRY: I also agree.

ORDER: appeal dismissed; no order for costs save detailed assessment of appellants public funded costs. (Order does not form part of approved Judgment)