JMcG-v-Department for Communities (HB)  NICom 10
Decision No: C1/16-17(HB)
SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 22 February 2016
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The decision of the appeal tribunal dated 22 February 2016 is in error of law. The error of law will be explained in more detail below. I would ask the Legally Qualified Panel Member (LQPM) to note that during the course of the proceedings before me, the Department has identified errors in the decision-making process giving rise to the appeal which were not drawn to the attention of the appeal tribunal.
2. Pursuant to the powers conferred on me by Section 59 and Paragraph 8(4) of Schedule 7 to the Child Support, Pensions and Social Security Act (Northern Ireland) 2000, as amended, I set aside the decision appealed against.
3. I am remitting the case to the Northern Ireland Housing Executive (NIHE) for consideration to be given as to whether there should be remedial decision-making in connection with an overpayment of Housing Benefit (HB), the period during which any such overpayment has occurred, the amount of any such overpayment and whether any such overpayment is recoverable from the appellant.
4. The appellant should note that while her appeal to the Social Security Commissioner has succeeded, there is nothing to prevent the decision-making authorities within the NIHE from revisiting the decision-making process, and issuing further decisions. Any further decision will, of course, carry a right of appeal to an appeal tribunal.
5. In the proceedings before the Social Security Commissioners, the appellant has been represented by Mr McManus from John Fahy & Co, Solicitors. The Department has been represented by Mr McGrath from Decision Making Services (DMS).
6. In his detailed written observations on the original application for leave to appeal, Mr McGrath provided a detailed background to the proceedings before the Social Security Commissioners which I have adopted as follows:
7. The appellant had originally held a joint tenancy agreement with her husband. On 9 December 2008 the joint tenancy agreement was ended by the appellant’s husband.
8. On 18 December 2008 a HB claim form was received from the appellant. A further HB claim form was received from the appellant on 11 March 2009. On 30 March 2009 the appellant was awarded an entitlement to HB from 15 December 2008 and she was notified of this decision on 9 April 2009.
9. On 27 February 2012 a ‘data match report’ was received which indicated that the appellant’s husband may also have been living at the address in connection with which the appellant had claimed HB. Further evidence was obtained on the issue of the connection which the appellant’s husband had with the address in relation to which HB had been claimed. On 13 November 2014 and 9 December 2014, the appellant was interviewed under caution.
10. On 19 March 2015 a decision maker decided that the appellant was not entitled to Housing Benefit from 19 April 2010. Notification of this decision was issued to the appellant on 21 March 2015.
11. On 19 March 2015 it was also decided that as a result of the appellant’s failure to disclose the material fact that her husband was living with her from 15 December 2008 an overpayment of HB, amounting to £22,704.20, for the period from 19 April 2010 to 22 March 2015 had arisen which was recoverable from the appellant. Notification of this decision was issued to the appellant on 19 March 2015.
12. On 17 August 2015 a letter of appeal was received.
13. On 19 August 2015 a further decision was made. Mr McGrath has noted that ‘… the decision maker has stated that he was superseding the decision of 30 March 2009 and revising all subsequent decisions to include, the appellant’s husband in the household as the partner of the appellant from 13 April 2010. This decision was notified to the claimant on 22 August 2015.
14. As a result of the entitlement decision of 19 August 2015 a further overpayment decision was made on the same date. It was decided that the appellant had failed to disclose that her husband had been living with her and that, as a consequence, an overpayment for the period 19 April 2010 to 22 March 2015, amounting to £22,683.60 and which was recoverable from her.
15. On 14 September 2015, another decision maker reconsidered the overpayment decision dated 19 August 2015 but did not change it. This reconsideration decision (and notification of the new overpayment decision dated 19 August 2015) was notified to the appellant on 14 September 2015.
Proceedings before the appeal tribunal
16. On 13 January 2016 the LQPM determined that the appeal should be listed for the hearing on the papers alone. The LQPM also determined that the matter should be referred back to her if written submissions were not received from the representative. On 3 February 2016, the LQPM directed that the appellant’s solicitor should be written to and advised that the case was going to proceed by way of paper hearing as no written submissions had been received.
17. The appeal tribunal hearing took place on 22 February 2016. The appeal tribunal disallowed the appeal and issued a decision notice to the following effect:
‘(The appellant) failed to disclose a material fact to NIHE which resulted in an overpayment of Housing Benefit for the period 19 April 2010 – 22 March 2015 amounting to £22683.00 which is recoverable from her.’
18. On 15 June 2016 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS). On 21 June 2016 the LQPM determined that the application for leave to appeal had been received outside of the prescribed time limits for making an application but that the time limit could be extended. On the same date the LQPM refused the application for leave to appeal.
Proceedings before the Social Security Commissioner
19. On 8 July 2016 a further application for leave to appeal was received in the Office of the Social Security Commissioners. On 12 September 2016 observations on the application for leave to appeal were requested from DMS. In written observations dated 13 October 2016, Mr McGrath did not support the grounds of appeal which had been advanced on behalf of the appellant but, in keeping with his role as an amicus curiae, identified problems with the adjudication process within the NIHE. Mr McGrath invited the Social Security Commissioner to consider making the decision which the decision maker ought to have made. Written observations were shared with the appellant and Mr McManus on 18 October 2016. Further correspondence was received from Mr McManus on 19 December 2016.
20. On 9 January 2017 I granted leave to appeal. When granting leave to appeal I gave as a reason that it was arguable that there were errors in the Departmental decision-making process. On 26 January 2017 I directed an oral hearing of the appeal.
21. A Case Summary was received from Mr McGrath on 2 March 2017. In his Case Summary, Mr McGrath stated that he was resiling from the submission which he had made in his initial written observations on the application for leave to appeal that the Social Security Commissioner should make the decision that the decision maker ought to have made. Mr McGrath submitted that the defects in the decision-making process were such that they could not be corrected by the Commissioner.
22. Mr McGrath’s Case Summary was shared with Mr McManus on 2 March 2017 and on the same date a Case Summary was received from him. As will be noted in greater detail below, in his Case Summary, Mr McManus made submissions concerning the admissibility of certain evidence to which the appeal tribunal had given weight in reaching its decision. More particularly, Mr McManus made assertions in respect of the applicability of the Civil Evidence (Northern Ireland) Order 1997 (‘the 1997 Order’).
23. The oral hearing took place on 7 March 2017. The Department was represented by Mr McGrath. The appellant was represented by Mr McManus. Both parties were provided with a copy of the decision of Commissioner Bano (as he then was) in CDLA/2014/2004. At the oral hearing it was agreed that if I was to find that the decision of the appeal tribunal was in error of law on the basis of the defects in the decision-making process identified by Mr McGrath then the appropriate course of action would be for me to remit the case to the NIHE for consideration of a remedy of those defects. In addition, it was agreed that a further oral hearing may not be required. Finally, Mr McManus agreed to provide an additional written submission on the arguments which he had made concerning the admissibility of certain evidence and, more particularly, the applicability of the 1997 Order.
24. A further written submission was received from Mr McManus on 31 March 2017 which was shared with Mr McGrath on 11 April 2017. The file was then passed to the Legal Officer in the Office of the Social Security Commissioners for processing. On 16 August 2017 the Legal Officer wrote to Mr McManus with a direction to make a further submission in connection with article 2(3) of the 1997 Order. A copy of that correspondence was also forwarded to Mr McGrath on the same date and he was invited to make submissions on the applicability of the 1997 Order.
25. Further correspondence was received from Mr McManus on 8 September 2017 and a detailed submission was received from Mr McGrath on 18 September 2017. These documents were cross-shared on 21 September 2017. Following discussions with me, on 31 October 2017 the Legal Office wrote to Mr McManus and Mr McGrath seeking views on whether they wished to present further oral argument or content for me to determine the appeal on the basis of the submissions which had already been made. In correspondence dated 7 November 2017 Mr McManus submitted that he was content for the appeal to be determined on the basis of the submissions already provided. In e-mail correspondence dated 10 November 2017 Mr McGrath concurred.
Errors of law
26. A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law. What is an error of law?
27. In R(I)2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ( EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals. As set out at paragraph 30 of R(I) 2/06 these are:
“(i) making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii) failing to give reasons or any adequate reasons for findings on material matters;
(iii) failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv) giving weight to immaterial matters;
(v) making a material misdirection of law on any material matter;
(vi) committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …
Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”
Errors in the adjudication process
28. In his initial written observations on the application for leave to appeal, Mr McGrath made the following submissions:
‘Problems with the adjudication in this case
The decision that awarded (the appellant) Housing Benefit was given on 30-3-09.
The revised entitlement decision dated 19-3-15 removed entitlement from (the appellant) from 19-4-10 (see Appendix 1& 1A)
The decision dated 19-3-15 raised an overpayment for the period 19-4-10 to 22-3-15 amounting to £22,704.20 which was recoverable from (the appellant) on account of her failure to disclose that her husband was residing at …
Notification of this decision was issued to (the appellant) on 19-3-15.
Following receipt of an appeal application (and actual earnings figures for (the appellant’s) employer) the initial entitlement decision was looked at again.
This new decision purportedly superseded the decision of 30-3-09 and revised all subsequent decisions.
I would submit that this is erroneous.
In correspondence with the Housing Executive I have been informed that the decision maker in this instance was attempting to give a supersession decision for a closed period i.e. from 22-8-11 to 28-8-11 which as a result of obtaining (the appellant’s) actual earnings details gave (the appellant) entitlement to some housing benefit for this period.
What the decision maker should have done was to carry out a revision of the decision dated 19-3-15, (or in technical terms revised the decision dated 30-3-09 as revised on 19-3-15) stating that they were disallowing (the appellant) from 19-4-10 to 21-8-11, allowing housing benefit from 22-8-11 to 28-8-11 and finally disallowing housing benefit from 29-8-11 to 22-3-15.
This was not done and I would respectfully request that the Commissioner considers giving the decision that the decision maker should have given.
On 19-8-15 the decision maker gave a new overpayment decision reducing the amount overpaid from £22,704.20 to £22,683.60.
This decision is also erroneous as it based on the erroneous entitlement decision dated 19-8-15.
Additionally a new overpayment decision would have had to revise the previous overpayment dated made on 19-3-15 which it did not do.
In order to give a new overpayment decision the overpayment decision dated 19-3-15 had to be revised. This was not done.
I would further point out that had this decision been made correctly the reduction in the amount stated as being recoverable would have caused the appeal to lapse.
As a result of the appeal request, and the standard practice of a senior officer of the Housing Executive to reconsider any new entitlement or overpayment decision, a decision maker looked again at the overpayment decision on 14-9-15 but did not change it.
This decision maker completed a “Reconsideration Sheet” and although indicated that the decision dated 19-8-15 was superseded I would submit that the decision of 19-8-15 had been reconsidered but had not been changed.
As already noted the notification letter for this reconsideration issued on 14-9-15 states “because the decision has not been revised”.
I would submit that this is an indication that the overpayment decision dated 19-8-15 was not changed although this is somewhat an irrelevance as the entitlement and overpayment decisions dated 19-8-15 are both, for the reasons outlined, erroneous.’
29. In the Case Summary prepared for the oral hearing of the appeal, Mr McGrath made the following submissions:
‘Problems with the adjudication in this case
As already highlighted in the original submission there are problems with the adjudication in this case. Principally that the entitlement decision dated 19-8-15 is erroneous in law.
I had originally requested that the Commissioner give the entitlement and overpayment decisions that the Housing Executive/Tribunal should have given.
However on reflection this may not be possible.
The only decision directly before the Commissioner is the overpayment decision dated 19-8-15.
In the decision C1/07-08 (HB) the commissioner held,
33. In deciding whether this (overpayment) decision was correct the appeal tribunal would have to be satisfied that, as the overpayment was purported to arise from an incorrect award of HB in the first place, there was a valid revision or supersession of the decision(s) awarding entitlement to HB before the decision made that there had been an overpayment.
I would submit that as there is not a valid entitlement decision in place the subsequent overpayment decision is incorrect.
Additionally I would submit that the defects within the entitlement decision cannot be corrected by the Commissioner as this entitlement decision is not directly before the Commissioner.
Consequently I would submit that the Commissioner may wish to consider referring the case to a new tribunal. This would also give the Housing Executive an opportunity to give proper entitlement and overpayment decisions before the appeal is reheard.’
30. As was noted above, at the oral hearing of the appeal before me, it was agreed by both Mr McGrath and Mr McManus that if I was to find that the decision of the appeal tribunal was in error of law on the basis of the defects in the decision-making process identified by Mr McGrath then the appropriate course of action would be for me to remit the case to the NIHE for consideration of a remedy of those defects.
31. I agree with the constructive and detailed submissions which have been made by Mr McGrath and for the reasons which have been outlined by him agree that the decision of the appeal tribunal is in error of law. I am also in agreement with the suggested method of disposal.
The appellant’s other grounds for appealing
32. Having found, for the reasons which are set out above, that the decision of the appeal tribunal is in error of law, I do not have to consider the appellant’s other grounds for appealing. To proceed in that way would, however, do a disservice to the energy with which Mr McManus has pursued one issue, namely the admissibility of certain evidence the applicability of the 1997 Order to appeal tribunals constituted under the Social Security (Northern Ireland) Order 1998 (‘the 1998 Order’) supplemented by the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (‘the 1999 Regulations’), both as amended. It is the case, though, that any remarks which I make about this issue will be obiter and will have to be read in that context.
33. In the Case Summary prepared for the oral hearing of the appeal before me, Mr McManus set out the following submissions:
‘The content of all documentary evidence referred to in the decision document dated 4th May 2016 was not expressly agreed by the applicant and in the absence of formal proof of each document then there should be no weight attached to the contents of these documents. Unless indicated to the contrary the Tribunal erred in law to attach any weight to these documents.
The applicant would deny that she remained in a relationship with her ex-husband and that at all times she was a single person as per her initial application for benefit. As the applicant was not before the Tribunal there could be no rational and impartial assessment of her familial status. The Tribunal erred therefore in proceeding with this appeal in a paper format and should have informed the applicant that her failure to appear to give evidence in person may lead to an inference being drawn against her.
In addition the Tribunal acknowledged that the applicant had denied the allegations under caution when interviewed at … Social Security Agency which was in the context of a criminal investigation and under the Police and Criminal Evidence (PACE) legislation. There are strict rules which pertain to reducing documentary evidence in a criminal investigation/hearings and as such evidence adduced in an interview under caution is a piece of documentary evidence the content of which had not been expressly agreed by the applicant in the context of these proceedings.
The Department refer to Commissioner’s decision R3/04 (DLA) …
We would respectfully submit that admissibility is the first gateway that any tribunal ought to consider, whether in a criminal and/or civil process and therefore the consideration of weight ought to then be considered.
The Tribunal did not specifically address the issue of admissibility and statement of reasons.
If the tribunal were satisfied that the evidence was admissible and that was the view of the tribunal that weight ought to be attached that the tribunal ought to specifically identify the documentary evidence that it considered admissible and relevant.
The failure to do so renders the decision-making process of the tribunal unclear and incapable of proper scrutiny/assessment and could create a situation whereby prejudicial material could have coloured the mind of the tribunal in its adjudication which adversely affects the appellant’s Article 6 rights to a fair hearing.
In the tribunal’s statement of reasons it was indicated that the evidence was “substantial and no contrary evidence was provided by (the appellant) to call this into doubt other than her denials at the interview under caution.”
The reasoning in our respectful submission reflects a reversal in the burden of proof which is upon the Department to prove the case on the balance of probabilities and the interview of the appellant under caution reflects a clear denial of the allegation which the Tribunal has dismissed in terms of the assessment of the overall merits of the appeal.
We would submit that the tribunal have erred in law in the first instance attempting to permit the adducing of documentary evidence in an appeal process that is not expressly agreed by the appellant.
In equivalent criminal proceedings there exists a formal written process to adduce hearsay evidence which must be placed before the tribunal in advance of the substantive hearing to assess its admissibility.
In equivalent civil proceedings the Civil Evidence Order applies in the party seeking to adduce such evidence must put the opposing party on notice of the application and if not consented to the court must adjudicate upon the matter.
It is plain that in this appeal process that no such formal notice was served by the Department in advance of the hearing date and therefore the Tribunal erred in permitting this evidence being adduced and therefore ought not to have attached weight to same in its deliberations.
In addition the Appellant has been advised by PPS that no prosecution was to be pursued against her and whilst this decision is clearly not binding upon this Tribunal this is an additional consideration of relevance.’
34. In the Case Summary prepared by Mr McGrath, he submitted that it was not an error in law for the Department to produce relevant evidence and it was for the tribunal to give the weight to that evidence, as it had done so. In support of this submission Mr McGrath made reference to the decisions of the Commissioners in R3/04(DLA) and R001-02(DLA).
35. In connection with the submission made by Mr McManus that the appeal tribunal erred in proceeding to determine the issues arising the appeal on the basis of the papers alone and in failing to inform the appellant that her failure to appear to give evidence in person may lead to an inference being drawn against her, Mr McGrath submitted that in the statement of reasons for its decision the appeal tribunal referred to a wide range of evidence which was available to it. Mr McGrath also asserted that there was no indication that any inference had been drawn against the appellant by her non-attendance and that the appeal tribunal had sufficient evidence to support the decision that it had made.
36. Mr McGrath also noted that the appeal tribunal had made reference to correspondence from Mr McManus indicating that the appellant did not wish to attend an oral hearing of the appeal and that written submissions would be provided. The appeal tribunal had noted that written submissions were not received and a direction had been issued by the LQPM that the appeal was to proceed by way of a ‘paper hearing’. Mr McGrath submitted that in this context the appeal tribunal was correct to proceed to determine the appeal on the basis of the papers alone.
37. As was noted above, at the oral hearing of the appeal, Mr McManus agreed to provide an additional written submission on the arguments which he had made concerning the admissibility of certain evidence and, more particularly, the applicability of the 1997 Order. In his written submission received on 31 March 2017 Mr McManus made reference to article 2 of the Order and submitted that article 2 (3) applied to the appeal tribunal proceedings. In this context Mr McManus made the following assertions:
‘Applying the ordinary meaning of the word “tribunal” in the absence of a specific definition in the Civil Evidence (NI) Order 1997 encompasses the tribunal in this instance and therefore there exists a statutory framework within which hearsay and documentary evidence ought to be adduced.’
38. Mr McManus submitted that the statement by Commissioner Bano in paragraph 10 of his decision in CDLA/2014/2004:
‘… ignores the interpretation section of the Civil Evidence (NI) Order and its applicability to these proceedings. It is clear that no consideration was given to the statutory framework either by the prosecuting authority namely the Social Security Agency or by the Tribunal at first instance when the matter was adjudicated.’
39. Mr McManus then made reference to Articles 3 to 5 of the 1997 Order and submitted that the Social Security Agency had failed to discharge the procedural requirement of notifying the appellant of an intention to adduce hearsay evidence. Further the 1997 Order ‘… did not contemplate the adducing of social media profiles or Internet-based information such that has been produced by the Agency in relation to this appeal.’ In addition, Mr McManus submitted that in equivalent criminal proceedings ‘… as the Prosecuting Authority must lodge a formal written application under Criminal Justice (Evidence) (NI) Order 2004 appending what documents they seek to rely upon and this affords the responding party the opportunity to resist this application and the court can adjudicate upon its admissibility in a prehearing forum.’
40. In connection with article 5 of the 1997 Order, Mr McManus submitted that as the appellant was not before the appeal tribunal there could be no rational and impartial assessment of her familial status. He repeated that the appeal tribunal had erred in proceeding with the appeal on the basis of the papers alone and should have informed the appellant that her failure to appear to give evidence in person might lead to an inference being drawn against her. Finally, Mr McManus repeated certain of the submissions which he had made in his Case Summary concerning admissibility and weight.
41. In his response to the Legal Officer’s direction forwarded to him on 16 August 2017, Mr McManus made the following submissions:
‘We would ask you to please note that in the interpretation section of the Civil Evidence (NI) Order 1997 it indicates that the submission of hearsay evidence and evidence in general applies to a court or other tribunal and it is clear that the oral hearing in (the appellant’s) case was a tribunal and therefore it is our submission that the rules of evidence therefore applied to it as well as any other court.
It is asserted that the strict rules of evidence do not apply to the Social Security Commissioners this will clearly affect any appellant’s legal right to a fair hearing that documentary evidence without any providence could be adduced before the tribunal without formal application before the Tribunal as to admissibility.
We appreciate if deemed admissible that is then a question for the Tribunal to assess the weight of such hearsay evidence but given that the evidence that it sought to be adduced in this particular case emanates from an unknown third party social media website it is clear that its provenance and its accuracy is of a high relevance as to the issue of whether or not it should be viewed in the relevant hearing. It is clear in the circumstances therefore that given the advancement in social media and its potential use in both civil and criminal proceedings that the Civil Evidence Order has not adapted to the changes in documentary evidence that is sought to be put before the court and in those circumstances and in particularly this appeal tribunal the writer has made the submissions that has been made in order that firstly the tribunal will consider (the appellant’s) appeal but on a more wide basis that the Commissioners will also provide guidance to the investigating authorities regarding how such evidence is adduced and accordingly what weight should or could be attached to such documentation.’
42. In reply to the further submission from Mr McManus received on 31 March 2017 and his response to the Legal Officer’s direction, Mr McGrath noted that the appeal tribunal is a creature of statute – the 1998 Order and the 1999 Regulations. He also made reference to the decision of Mrs Commissioner Brown in C53/98 (DLA) and Commissioner Bano in CDLA/2014/2004 and submitted that the combined effect of both decisions was that appeal tribunals under the 1998 Order were not bound by the strict rules of evidence and, accordingly, were not bound by the provisions of the 1997 Order. In addition, Mr McGrath repeated the earlier submissions which he had made in connection with the determination by the LQPM that the appeal should proceed on the basis of the papers alone.
43. As was noted above, the basis on which Mr McManus submitted that the provisions of the 1997 Order applied to the appeal tribunal proceedings was that article 2(3) of the 1997 Order provides:
‘In this Order “civil proceedings” means civil proceedings before any court or other tribunal in which the strict rules of evidence apply.’
44. It is clear, however, that appeal tribunals constituted under the 1998 Order and the 1999 Regulations are not tribunals ‘… in which the strict rules of evidence apply.’ Authority for that principle is to be found in paragraphs 10 to 13 of the decision of Commissioner Bano in CDLA/2014/2004. In those paragraphs the Commissioner stated:
‘10. The Social Security and Child Support (Decisions and Appeals) Regulations 1999 do not expressly deal with the admissibility of evidence, but it is has long been held by Commissioners that social security tribunals are not bound by the rules of admissibility of evidence which apply in the ordinary courts-see, for example, R(G) 1/51, R(U)12/56 and R(SB)5/82. In R v Deputy Industrial Injuries Commissioner ex parte Moore  1 QB 456 it was held that the absence of regulations which were empowered by section 51(1) of the National Insurance (Industrial Injuries) Act 1946 for prescribing the evidence to be required in connection with the determination of a claim was an indication that Parliament did not intend that the strict rules of evidence should apply. In R(U) 5/77 Chief Commissioner Temple held, citing Moore, that the statutory authorities dealing with national insurance matters exercise an inquisitorial jurisdiction, so that the strict rules of evidence applicable to adversarial cases do not apply in proceedings before those authorities. Paragraph 4 of Schedule 5 of the Social Security Act 1998 also contains a power, which has not been exercised in relation to tribunals, for provision to be made as to the manner in which any evidence is to be produced, so that the reasoning in Moore also applies to tribunals constituted under the 1998 Act.
11. Although appeal tribunals are not therefore bound by the strict rules of evidence, it does not follow that those rules have no relevance in tribunal proceedings….
12. Common law rules of evidence will frequently be relevant in the evaluation of evidence, since the considerations which have led to evidence being inadmissible at common law will usually affect its weight in proceedings where the evidence can be admitted. Thus, in R(SB) 5/82 it was held that although a tribunal could admit hearsay evidence, it should carefully weigh up its probative value before doing so, bearing in mind that the original maker of the statement is not present at the hearing to be questioned about what he actually saw. In relation to opinion evidence, the fact that a witness is not a qualified expert will not make the evidence inadmissible before a tribunal, but may properly be taken into account by the tribunal in deciding what weight the evidence should be given.
13. The tribunal in this case were fully entitled to treat the evidence of the disability consultant with caution and to reject his opinions in whole or in part if there were facts or circumstances which placed it in doubt-see R v Matheson  2 All ER 87. However, for the reasons I have given, they were not entitled to refuse to consider the evidence and, accordingly, their decision was erroneous in law.’
45. Although the Commissioner makes reference to the Social Security Act 1998 and the Social Security and Child Support (Decisions and Appeals) Regulations 1999, in all relevant respects, these are in identical terms to the 1998 Order and the 1999 Regulations. The authority of the principles in CDLA/2014/2004 has never been challenged and I have no hesitation in endorsing those principles and accepting their relevance and applicability to appeal tribunals constituted under the 1998 Order and 1999 Regulations in Northern Ireland. For that reason, the appeal tribunal which dealt with the appellant’s appeal in the instant case was not bound by the strict rules of evidence and was not, therefore, subject to the 1997 Order and the various procedural requirements set out in that Order in connection with the admissibility of evidence and the weight to be given to certain types of evidence.
46. As was noted above, Mr McManus submitted that any principle that the strict rules of evidence do not apply to appeal tribunals constituted under the 1998 Order and 1999 Regulations in Northern Ireland has an effect on the right of an appellant before such appeal tribunals to a fair hearing, particularly where evidence ‘without any provenance’ is adduced before the appeal tribunal without the requirement for a formal application, and by implication formal determination, on its admissibility. In this respect, Mr McGrath is correct to note the decision of Mrs Commissioner Brown in C53/98 (DLA).
47. In this case the Commissioner addressed the issue of the admissibility of evidence obtained by an adjudication officer (as a decision maker of the Department was then called) during the course of a purported review of an earlier Departmental decision when it was clear that the adjudication officer had exceeded his statutory review powers. In addition, the claimant’s representative had also asserted that a medical report had been so ‘strenuously contested’ that it was agreed it should ‘form no part of the proceedings’ before the tribunal.
48. In response to that latter submission, the Commissioner stated, at paragraph 7:
‘The record of the Tribunal’s proceedings is before me and there is no record of any such agreement being made. The tribunal has noted that Mr O’K… wished the Tribunal to disregard the report from Dr M… There is however, no record that the Tribunal agreed to do so and no record of Miss R…who attended the Tribunal hearing to represent the Adjudication Officer, making any submission in relation to that evidence being excluded. I would certainly have expected such a submission had exclusion been contemplated. Against that background I am unable to conclude that any agreement was made by the Tribunal to disregard Dr M…’s report and indeed had it done so, I would have considered that it was in error of law. The fact that the accuracy of the evidence is disputed does not mean that it can for that reason be excluded from consideration by a Tribunal any more than it could be from a court.’
49. In relation to the more general issue of the admissibility of the evidence which had been obtained by the adjudication officer when exceeding his statutory decision-making powers, the Commissioner stated, at paragraph 13:
‘13. … The admissibility of evidence must therefore be dealt with on much more fundamental legal principles. The rules of evidence are relaxed before Tribunals. However, even in a situation of a civil action in a court, evidence is not inadmissible merely because it was improperly obtained. As stated in paragraph 12 of Volume 17 of the Fourth Edition of Halsbury's Laws of England "Relevant evidence may be improperly or illegally obtained, but that does not render it inadmissible". I can see no rule of evidence which means, at least in non-criminal matters, that evidence improperly or illegally obtained is not, for that reason, admissible. The Adjudication Officer here was not using improper practices as that term would normally be understood. He merely exceeded his powers. I conclude that the same applies in the context of a Tribunal and that the evidence obtained by the Adjudication Officer in excess of his powers is not inadmissible by a Tribunal for that reason.
The Great Britain Commissioners' Decisions
As regards the decisions mentioned above of Commissioners Walker, Rowland, and Mitchell I note that Commissioner Mitchell's decision in CSDLA/120/97 is the only one which deals with this issue on the footing of deciding what is the Tribunal's jurisdiction. That, I think is the correct manner in which it should be approached because of the fact that as Commissioner Rowland said in CDLA/5793/1997, the concept of tainted or inadmissible evidence is one which is foreign to Tribunals. Also, because as stated above, the fact that evidence is improperly obtained does not mean that it is inadmissible. In this case the evidence itself was not tainted in the sense of coming from a tainted source. It was improperly obtained only in the sense that the Adjudication Officer exceeded his powers in obtaining it.
50. The Commissioner added, at paragraphs 16 and 17,
‘16. I cannot however, see that whether the evidence was obtained in excess of the Adjudication Officer's powers or was obtained inadvertently while in the proper exercise of his powers, alters the admissibility of the evidence. The evidence itself is not qualitatively altered, it remains the same. It is admissible by the Tribunal if relevant to the Tribunal's jurisdiction.
17. I consider the expression "tainted evidence" inappropriate; the evidence is much more aptly described as evidence obtained in excess of the Adjudication Officer's powers. It will be seen therefore that I disagree with Commissioner Walker's view that such evidence must be excluded by a Tribunal from its consideration.’
52. In paragraph 20 she stated:
‘20. … Is there any rule of natural justice which prevents relevant evidence being admitted? I can understand that a claimant may feel aggrieved if an existing award is put in question because evidence was improperly obtained. Equally, however, if the evidence puts that existing award in doubt (and provided the standard of reasonable grounds in section 31(6)(ii) is satisfied) there would be a considerable unfairness on the general public if the continuance of that award could not be looked at by an adjudication body. I can see no violation in the rules of natural justice in the Tribunal considering relevant information which was available to it, rather the reverse.
Section 31(6) makes no reference to the exclusion of relevant evidence. Section 31(6)(i) exists to protect a claimant and section 31(6)(ii) to protect the public purse. I consider that a Tribunal, which apart from the strictures of section 31(6), would have an unfettered jurisdiction to consider the entire benefit and would be in dereliction of its inquisitorial role if it ignored relevant acceptable evidence which was before it - whether it was properly obtained or not. A Tribunal has a duty to explore proper benefit entitlement on the basis of relevant acceptable evidence before it. That duty is to be limited only by section 31(5) and section 31(6).’
53. It is axiomatic that the factual circumstances of the decision in C53/98 (DLA) and those pertaining in the instant case are not the same. In the instant case, Mr McManus challenges the admissibility of certain of the evidence which was before the appeal tribunal because the evidence had not been agreed between the parties, that certain evidence had been adduced without consideration as to its provenance and there existed certain safeguards concerning the admissibility of evidence obtained in interview under caution as part of a criminal investigation. In general terms, Mr McManus submitted that admissibility is ‘… the key gateway that any tribunal ought to consider.’ The key principles which emerge from the decisions in C53/98 (DLA) and CDLA/2014/2004 is that an appeal tribunal constituted under the 1998 Order and the 1999 Regulations is less concerned with the formal rules of admissibility of evidence which apply in the ordinary courts and more concerned with the weight to be given to that evidence. It is the examination and assessment of the probative value to be given to evidence which is the balance that is given to permitting a lower test of admissibility.
54. It is important to note that although the challenge in the instant case was to the admissibility of evidence adduced by the Department, the lower test of admissibility is equally applicable to evidence adduced by or on behalf of appellants. It is the case that appellants can and do adduce evidence which has not been the subject of formal agreement with the Department or is otherwise of apparently uncertain provenance.
55. As was noted above, Mr McManus has also challenged the determination by the LQPM to proceed on the basis of the papers alone. He has submitted that the appellant ought to have been informed that ‘… her failure to appear to give evidence in person may lead to an inference being drawn against her.’ I have set out above the detailed observations on this ground of appeal provided by Mr McGrath. For the reasons which he has set out I agree that the decision of the appeal tribunal is not in error of law on the basis of this submitted ground. In the first instance Mr McManus had returned the ‘hearing type enquiry form’ indicating that he was content for the appeal to proceed without an oral hearing. Thereafter, in two unambiguous and direct pre-hearing directions, the LQPM informed the appellant and Mr McManus of the intention to list the appeal for determination on the papers alone and of the right of Mr McManus to provide further written submissions, which he did not. There is no error in how the appeal tribunal proceeded. Further, and in any event, it could not be said that the appeal tribunal drew any inference from the absence of the appellant from the appeal tribunal proceedings.
(signed) K Mullan
24 April 2018