Act: Logan; Campbell Smith

Alt: Bartos; Office of the Advocate General for Scotland

7 January 2010

[1] This is an application for leave to appeal a decision by the Social Security Appeal Commissioner in terms of section 15(4) of the Social Security Act 1998 dated 10 July 2008 in respect of the applicant's claim for Income Support.

[2] The essence of the application is that the Commission erred in law in supporting an earlier decision by the Tribunal in two respects. First it is said that there was no competent evidence before the Tribunal which allowed the relevant findings in fact to be made. Secondly it is said that esto there was competent evidence before the Tribunal which would allow the findings to be made, the Tribunal failed to weigh that evidence properly against the other evidence in the case. The evidence which the Tribunal relied on to reach their decision consisted of signed statements by the owner or manager of two separate public houses in Carnoustie to the effect that they had made cash payments to the applicant over a period of time for her work as a karaoke presenter. The Tribunal rejected the oral evidence of the applicant and her witness which was to the effect that she had received no payment for this work. In these circumstances the applicant's complaint was that the Tribunal had not treated the two competing chapters of evidence fairly. The testimony of the respondents' witnesses, it was said had not been spoken to in evidence by any witness and was not therefore available for cross-examination. By accepting the respondents' evidence and rejecting the applicant in these circumstances the Tribunal had breached the principles of natural justice and had thus erred in law in reaching its decision. In turn the Commissioner had then erred in sustaining that decision.

[3] The relevant statutory background and the whole facts and circumstances appear sufficiently from decisions of the Tribunal and the Commissioner. However, the crucial statutory provision for present purposes is contained in the Social Security (Incapacity for Work) General Regulations 1995. Regulation 16 says that a person shall be treated as being capable of work on any day which he does work unless that work falls within certain exemptions. The exemption which we now have to consider is contained in regulation 17(2) which refers to work for which weekly earnings do not exceed £20. It must be emphasised that this issue was not in terms before the Tribunal or the Commissioner and only emerged as the principal, and indeed, the only point, in this part of the application in the course of discussion at the hearing. Accordingly, in our view, it is extremely doubtful whether this argument is properly before this court. However we have decided in the circumstances and in the absence of any comment by the Secretary of State to deal with submissions in respect of this second part of the applicant's case.

[4] The first part of the argument therefore was that the statements of the respondents' witnesses did not constitute competent evidence before the Tribunal. In particular it was argued that in the face of a challenge to that evidence found in the oral testimony of the applicant and her witness, the Tribunal should have either adjourned the hearing in order to bring the witnesses to court, or should simply not have considered the unsupported witness statements. However we can find no merit at all in these submissions. No authority was cited in support of them and in the event, we were not satisfied that Mr Logan maintained his position that such evidence was intrinsically incompetent at the end of the day. Once the evidence was accepted as competent the weight to be placed on it, particularly on questions of credibility, was a matter for the Tribunal. No application was made by the applicant to cite witnesses to the Tribunal for the purposes of cross-examination. Mr Logan's contention, as it developed, was ultimately that either the Tribunal ex proprio motu should have called the witnesses so that they might be cross-examined on their statements, or, alternatively, if they chose not to follow that course, they ought to have placed little or no reliance on the material, in so far as it was contentious.

[5] These are, in our opinion, novel propositions concerning the conduct of fact finding exercises by this kind of Tribunal and, what is more, fly in the face of what was said in the case of Bushell v Secretary of State for the Environment 1981 Appeal Cases 75 and in the face of what was said by Lord Chancellor Loreburn in The Board of Education v Rice 1911 Appeal Cases 179 at page 182, all as applied by Lord Reed in the case of Strathclyde Joint Police Board v McKinlay 2005 SLT 764. In particular we refer to what was said by Lord Reed at paragraph [58] of his judgment:

"As a matter of fairness there is in principle nothing objectionable about an investigative procedure in a context such as an appeal to the medical referee under which some evidence was taken in oral form and other evidence in documentary form, even though there are conflicts and inconsistencies. It is for the medical referee to determine whether the inconsistencies are critical to his decision and, if so, how best to resolve them. He is not constrained to resort to the methods of a court in order to do so. In the present case, in any event, he was not invited to adopt any different procedure;"

If that is a sound exposition of the law, and we are satisfied that it is, then that effectively and comprehensibly disposes of the appellant's arguments in this appeal. We would add that in any event having regard to the way which the discussions developed in the course of this morning, the evidence of the respondents' witnesses on the crucial issue of who received the money for the work, which was undoubtedly done and paid for, was not conclusive of the issue. This information was particularly within the knowledge of the applicant and her witness and could not be known to the respondents. In these circumstances it cannot be maintained that the Tribunal, in accepting the respondents' evidence in making their findings in facts, and rejecting that of the appellant, behaved in any way in an unfair manner.

[6] In respect of the second application it is agreed that the Commissioner was correct to hold that the decision of 10 July 2006, which was a determination, could not be appealed. The decision of 13 July 2006 however was one which could competently be appealed. The outcome of these agreed statements however makes no difference to the present case.

[7] We therefore refuse both applications for leave to appeal. We wish to make two final points. First of all, we would like to make it clear that our decision is not in any way to be seen as a criticism of Mr Myles who handled the applicant's case before the Tribunal, we note on a pro bono basis. We can well understand the decisions which he made when conducting the case which we are sure at the time were entirely appropriate and professional. Secondly, we have to deplore the significant delays and the complicated process in what should have been a relatively simple and straightforward matter and which must have proved a significant and extended ordeal for the appellant. We would be grateful if our concern on that matter could be noted.