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DANIEL ONIFADE v. THE SECRETARY OF STATE FOR SOCIAL SECURITY [1999] ScotSC 6 (29th March, 1999)

A9/98

JUDGMENT OF SHERIFF I D MACPHAIL QC

in the cause

DANIEL ONIFADE

Pursuer

against

THE SECRETARY OF STATE FOR SOCIAL SECURITY

Defender

_______________________________________

Act: Party

Alt: I G Armstrong, Advocate; Solicitor to the Secretary of State for Scotland

EDINBURGH, 29 March 1999.

The Sheriff, having of new resumed consideration of the proof, productions, joint minute and whole cause, makes the following findings.

FINDINGS IN FACT

1. The pursuer is Nigerian. His wife, Mrs Ute Onifade, is German. They have three children, and they all live together in Edinburgh. The pursuer is 35 years of age, and is an industrial relations consultant.

2. The pursuer, his wife and their first-born child, who was then their only child, entered the United Kingdom on 31 January 1993. The pursuer's passport had been endorsed with an entry certificate stating that he was "Dependant of E.C. National". On 1 February 1993 the pursuer was given limited leave to remain in the United Kingdom for four years, and his passport was stamped accordingly by an immigration officer. At that time it was not the practice for a passport which was so stamped to be further endorsed to indicate whether the limited leave to remain was granted subject to a condition that the holder was prohibited from having recourse to public funds. Passports were not endorsed to that effect until 8 November 1996.

3. On or about 16 January 1995 the pursuer made a claim for income support at the office of the Department of Social Security ("the Department") at Argyle House, Edinburgh. He completed a claim form (no 6/1/1 of process). At part 10g of the form he correctly stated that his partner was German. On 26 January 1995 he was interviewed by an adjudication officer, Mr James Christie. Mr Christie was an official of the Benefits Agency, which is an executive agency of the Department. The pursuer later submitted a photocopy of certain pages of his passport (no 6/1/4 of process), including the pages endorsed and stamped as described in finding-in-fact 2 above. He gave the Department all the information required of him.

4. Mr Christie considered the information supplied by the pursuer and the stamp on his passport. He decided that for income support purposes the pursuer was a "person from abroad". He realised that it would be necessary for him to ascertain whether he pursuer had entered the country under a condition that there was no recourse to public funds. He therefore telephoned for advice to the Immigration and Nationality Department of the Home Office ("IND") and to Central Adjudication Services ("CAS").

5. In telephoning these bodies for advice Mr Christie acted in accordance with the guidance provided for adjudication officers by the following publications.

(1) Persons From Abroad (no 6/1/35 of process). This is a handbook provided by the Benefits Agency for the assistance of staff dealing with claims for income support made by persons from abroad. Paragraph 1301 states that persons who are already in the UK with limited leave to remain in the country "will usually have entered the country with limited leave under a condition that there is no recourse to public funds." Paragraph 1303 states: "If it is not clear what the person's current immigration status is . . . contact the HO [Home Office] to: (1) establish their status: and (2) confirm identity." Similar advice is given in paragraph 1018, which refers specifically to the IND. Paragraph 1400 states: "If you are unable to adjudicate on the evidence submitted by the person and require urgent advice, telephone CAS."

(2) The Adjudication Officer's Guide (pages from volume 3 are no 6/1/36 of process). Paragraph 28571 states: "Entitlement to IS [income support] for people in the UK who do not have a permanent right of abode depends on their immigration status." Paragraph 28768 paraphrases the definition of "person from abroad" in regulation 21(3) of the Income Support (General) Regulations 1987 and states, amongst other things, that a "person from abroad" is a person who "is given limited leave to enter or remain in the UK with the condition that there is no recourse to public funds." Paragraph 28769 states that a person is not a "person from abroad" if he or she has been granted exceptional leave to remain. (No such leave had been granted to the pursuer.)

(3) A Guide to Immigration Awareness (no 6/1/37 of process). This publication, produced by IND, "offers answers to questions which may arise in the administration of benefits and services where eligibility depends on the customer's status under our immigration laws" (page 5). Section Three explains that everyone present in the United Kingdom has an immigration status. Under the heading "Not subject to immigration control" it states (at page 8): "Nationals of other EEA [European Economic Area] countries and their family members (who may not be EEA nationals) are also generally able to live in the UK without restrictions on their stay." It further states on the same page that among those subject to immigration control are those who are given limited leave to enter or remain. "Most often this will be granted on the understanding or the condition that they will not become a charge on public funds whilst in the UK." Annex 1 deals with immigration stamps and states: "Many immigration stamps now include a condition prohibiting access to public funds. This wording was introduced into immigration stamps on 8th November 1996. It follows that stamps preceding 8 November 1996 will not contain any reference to access to public funds. However the absence of such a condition does not alter a person's eligibility for a particular benefit or service."

6. Mr Christie understood that a person who had been given limited leave would "usually" or "most often" have entered the UK on a condition or an understanding that there would be no recourse to public funds. He also appreciated that the pursuer's passport, having been stamped prior to 8 January 1996, gave no indication whether any such condition or understanding applied to the pursuer. On 8 February 1995 Mr Christie accordingly telephoned IND. He was told that the pursuer did not have exceptional leave to remain. No 6/1/3 of process is Mr Christie's record of the conversation. He decided that the pursuer was a "person from abroad" for income support purposes and referred to paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987. He concluded that the pursuer in his present circumstances was not entitled to income support. (It would have been more accurate to say that he was entitled to a nil amount of benefit.) On the same date Mr Christie also telephoned CAS, who confirmed his decision (also no 6/1/3 of process).

7. The pursuer by letter dated 13 February 1995 (no 6/1/6 of process) sought a review of Mr Christie's decision. He pointed out that he was the spouse of an EC national.

He asserted that he was not subject to any condition that there was no recourse to public funds. On the same date Mr Christie again consulted CAS (no 6/1/7 of process) who again confirmed his decision. CAS advised him: "The fact that his wife is an EC national does not mean he is treated as an EC national for IS [income support] purposes." Mr Christie decided not to review his decision: that was recorded in no 6/1/8 of process and formally communicated to the pursuer by a letter of 15 February 1995 (no 6/1/9 of process).

8. Throughout his dealings with the pursuer's claim Mr Christie acted in good faith. He reached his decision of 8 February 1995, and his decision not to review it, without malice or any other improper motive. If, however, he had written to IND setting out the whole facts and circumstances which the pursuer had disclosed to him, it is highly probable that IND would have sent him a considered written reply indicating that the pursuer was entitled to income support.

9. The pursuer appealed to the Social Security Appeal Tribunal ("the Tribunal") on 13 February 1995. Another adjudication officer, a Mr Gray, dealt with the appeal and telephoned IND on 23 February 1995. He was told that the pursuer "has no recourse to public funds" (no 6/1/10 of process).

10. In March 1995 the pursuer applied to the City of Edinburgh District Council for housing benefit. The Council made a temporary assessment and wrote to the Home Office for advice. On 31 March 1995 the Council wrote to the pursuer advising that they had received the Home Office's reply "which confirms that as a partner of a European Community National you have the same rights as her. As a result I am pleased to advise that you are eligible to claim housing benefit and payment will continue." (No 6/1/12 of process.)

11. The Tribunal heard the appeal on 20 April 1995. They noted that the pursuer had been awarded housing benefit. They issued their decision (no 6/1/14 of process) on 20 April 1995. The decision was: "Income Support awarded from 28.1.95 [later corrected to "20.1.95" (no 6/1/16 of process)] - European Community National Rights apply." The reasons for the decision were expressed thus: "The tribunal were unhappy with the case as presented particularly as it relied to a large extent on a report of a telephone call with the Immigration Authorities. The evidence produced by the claimant "A" and additional papers produced by the claimant made it quite clear that the decision had been wrongly based in law as the husband of a European Community National, he has the same rights as she. There is no question at all that she would have right to Income Support had she claimed it and therefore it follows that he has the same rights."

12. By letter dated 17 May 1995 (no 6/1/17 of process) the Benefits Agency advised the pursuer that the adjudication officer might decide to appeal to the Social Security Commissioner ("the Commissioner") against the decision of the Tribunal, and that the Secretary of State had decided that the Agency could not pay him any income support. An application for leave to appeal was made on 12 June 1995 (no 6/1/21 of process). Attached to the application was a form dated 20 March 1995 relative to the immigration status of the pursuer which had been completed by the Home Office. A manuscript note on the form states: "An EC National is entitled to live and work in the UK without restriction but does not have the right to recourse to Public Funds. Mr Onifade was given 4 years leave to remain but like his wife has no recourse to public funds."

13. By a further letter to the pursuer dated 12 June 1995 (no 6/1/22 of process) the Agency said: "I can now tell you that the adjudication officer has decided to appeal." The pursuer was not given notice in writing, however, that an application for leave to appeal against the decision had been made. Leave to appeal was granted on 6 July 1995. There then followed an inordinate delay before the appeal was lodged, as a result of a failure in the Office of the Chief Adjudication Officer (see the Commissioner's ruling of 28 December 1995, no 5/2/1 of process, and the extract from the decision of the Commissioner, no 6/1/32 of process, paragraph 5, quoted in finding-in-fact 19 below).

14. On 14 July 1995 an official of CAS wrote to IND asking whether they could confirm whether or not the pursuer had recourse to public funds (no 6/1/27 of process). On 20 July 1995 IND replied as follows (no 6/1/28 of process): "Without evidence to confirm that Mr Onifade is currently the spouse of an EEA [European Economic Area] national who is present and exercising a Treaty right in the United Kingdom, we are unable to confirm whether Mr Onifade has recourse to public funds."

15. The hearing of the appeal before the Commissioner (Mr W M Walker, QC) began on 22 January 1997, more than 18 months after leave to appeal had been granted on 6 July 1995. The Commissioner was dissatisfied with the material placed before him relative to the question whether the pursuer was entitled to have recourse to public funds. He adjourned the proceedings and issued a Direction requiring the adjudication officer to obtain forthwith from the immigration authority a certificate or authorised statement from an officer proper for that purpose showing the condition or conditions, if any, which were attached to the claimant's right of entry to the United Kingdom.

16. The adjudication officer duly obtained a letter from IND dated 19 February 1997 (no 6/2 of process). The material parts of the letter are in the following terms.

"On 1 February 1993 Mr Onifade was granted leave to enter the United Kingdom for 4 years. He was in possession of entry clearance endorsed "Dependant of EC National" issued in Dusseldorf on 29 December 1992 and was accompanied by his German wife and their German child. His passport was endorsed "Leave to enter the United Kingdom is hereby given for/until FOUR YEARS." The endorsement was clearly legible and was dated 1 February 1993.

"On 3 February 1997 we received an application on behalf of Mrs Onifade for a residence permit as confirmation of her right to remain in the United Kingdom as a European Economic Area national exercising rights here under European Community law. An application was also made on behalf of Mr Onifade for "dependant status", which, if the application is agreed (both applications are yet to be decided) will be a residence document valid for the same period as his wife's residence permit. This will be in confirmation of Mr Onifade's right to remain as the family member of an EEA national.

"We have been informed that Mrs Onifade is currently employed as a German tutor until May 1997. It is therefore probable that the permit and document, if issued, will be valid only until the end of that month. A residence permit is issued in the form of a gatefold card bearing the holder's photograph; a residence document takes the form of a passport endorsement which reads "A right of residence in the United Kingdom as the family member of an EEA national (name of EEA national) who is resident in the United Kingdom in the exercise of a Treaty right is hereby given until (date) on behalf of the Secretary of State Home Office (date of endorsement)."

"If the applications are agreed, which they will in all likelihood, Mr Onifade will not have any additional rights; as the family member of an EEA national he is free to undertake any economic activity he wishes as long as his wife is exercising Treaty rights. If his wife is not exercising Treaty rights Mr Onifade is considered to be unlawfully resident. The residence document is simply issued as confirmation of his rights. You will notice that the residence document endorsement makes no statement as to holder's eligibility to recourse to public funds."

17. The adjudication officer made a further submission to the Commissioner dated 19 February 1997 (no 5/1/1 of process). Paragraphs 3 and 4 of that document state:

"3. The reply indicates that Mr Onifade was the dependant of an EC national and does not indicate that any conditions were attached to his right of entry. As this evidence now shows that the granting of his leave to enter the UK was not given on the condition that he had no recourse to public funds, I now submit that Mr Onifade would not fall within the definition of a PFA [person from abroad] in regulation 21(3)(a), nor any of the other sub-paragraphs, of the IS [Income Support] (General) Regulations [1987].

"4. In view of the evidence now held, I submit that, although the reasons behind the tribunal's decision were incorrect (for the reasons already submitted in the submissions dated 20.10.95 and 25.3.96 [not produced in this process]), the actual decision has now been shown to be correct."

18. Neither party sought a resumption of the hearing before the Commissioner, and the Commissioner issued his decision on 26 March 1997 (no 6/1/32 of process). His decision (paragraph 2) was that the pursuer was entitled to income support with effect from 20 January 1995. (It is now conceded in this process that the latter date should be 16 January 1995).

19. At paragraph 5 of his decision the Commissioner said:

"I should first note that this case has had a somewhat unhappy history. Whilst up until the case left the tribunal, the chairman having granted leave to appeal, the procedure was within regular bounds, it then took a considerable time to be lodged with the Office of the Commissioner. It was not the first such case to be delayed by the Office of the Chief Adjudication Officer. . ."

20. At paragraph 7 of his decision the Commissioner said:

". . . The material founded upon by the original adjudication officer, and the only material, as I understand it, before the tribunal, was the written record of a telephone call made by some officer of the Department to the immigration authority and recorded at document 15 of the bundle [apparently no 6/1/10 of process]. So far as the claimant is concerned it recorded that he had been given leave to enter the United Kingdom for 4 years from 1 February 1993 with no restriction as to his employment. There then followed this note-

"He has no recourse to public funds. Immigration do not have a stamp which states this on a passport."

Accordingly, before the tribunal, the claimant's position was that his passport said nothing about a restriction from recourse to public funds. The record of the telephone call was clearly regarded as too indirect to be of assistance. I am not surprised. By the date of the hearing the adjudication officer should have been able to get a definitive statement from the Home Office. To a degree the onus had shifted somewhat by the claimant marking his appeal. Proof of a negative, which is what he faced, can be difficult. But he had founded upon his passport. I think that it probably then behoved the adjudication officer to get something in writing, something positive. Alternatively, I consider that in the circumstances that duty fell upon the tribunal. They were not entitled to hold that there was no evidence that the claimant had no recourse to public funds. . . . I was satisfied that the material before the tribunal was indeed inadequate sufficiently to rebut the position as it appeared from the claimant's passport and no doubt what he would have said if asked, if he did not actually so say, as he did to me, that nobody had told him that he was not to have recourse to public funds. Thus I conclude that the basis upon which the tribunal made an award was unsafe and must be set aside."

21. At paragraph 10 the Commissioner said:

"Two matters have been raised by the claimant in response to the adjudication officer's latest and resiling submission. The first with which I deal concerns a claim for compensation because of the lack of income support and the delay in the case reaching final determination. That is not a matter over which I have any jurisdiction. If the claimant wishes to raise the matter direct with the Department then that must be a matter for him and, ultimately no doubt, for the Secretary of State. I can, and do, offer no view. I should, however, record that had the immigration authority made the position as clear as they now have when they were first asked, this case would have had a very short life. It is not for me to judge whether or how far that was to any extent the fault of the Department or the adjudication service. I have for the purpose of this decision recorded my views in paragraph 7 above [see finding-in-fact 20 above] and the history of the case has been fully set out elsewhere above."

22. Arrears of income support amounting to �1351.05 were paid to the pursuer on 20 May 1997 for the period 16 January 1995 to 18 April 1995, which was the period during which he was entitled to income support. He resumed work on or about 19 April 1995.

23. By a letter dated 2 May 1997 (no 5/1/2 of process) the pursuer claimed from the Benefits Agency compensation for the losses which he said he had incurred as a result of the Agency's wrongfully denying him the income support to which he was entitled. He had incurred expenses by drawing an unauthorised overdraft on his bank account. Since he had had no income, the bank would not formally arrange an overdraft on his account, and he could only overdraw his bank account by means of an unauthorised overdraft which incurred higher than normal bank charges. His letter stated:

"The compensation due are calculated as follows:

(As I was denied my rights for two years, all calculations are based on a two year period)

(1) Overdraft usage fee: �6 per month x 24 months �144.00

(2) Charge of �3 per day for unauthorised overdraft: 3 x 370 days �2190.00

(3) Interest accrued by the charge at 29.8% pa �1076.17

(4) Interest accrued by being overdrawn to the level of �1300

unauthorised overdraft, at 29.8% pa �890.24

(5) Cost of litigation �2500.00

Total compensation �6800.41

I also believe that the benefits to be paid to me should include the interest earned by that amount over a two year period."

24. The defender admits that, in the event that liability is established, the pursuer would be entitled to the figures stated against items (1), (2), (3) and (4), which amount to �4300.41. As to item (5), the pursuer claims �2500 as the cost of litigation on the basis that he has spent many hours in writing letters, making telephone calls and undertaking research into the law. He estimates that some 95% of the sum of �2500 represents the cost of his time, and some 5% the cost of telephone calls, photocopying, postage and stationery. Five per cent of �2500 is �125. The defender accepts that he has incurred expense to that extent.

25. In the event that liability is established, the pursuer would be entitled to damages of �4300.41 plus �125, that is, �4425.41.

26. In reply to the pursuer's letter of 2 May 1997 the Special Payments Section of the Benefit Support Branch of the Department wrote to him on 1 August 1997 (no 6/1/34 of process). The material terms of the letter are as follows.

"An investigation based on the evidence available has now been made into the circumstances of your case.

"The Department is prepared to consider an ex-gratia payment where misdirection or error has caused someone to incur a financial loss that could otherwise have been avoided. Such payments are not automatic; individual cases are considered on their merits.

"Unfortunately in your case it is not accepted that error or misdirection occurred which would justify a payment. I am sorry to tell you that no payment can therefore be made.

"The fact that an appeal against an adjudication officer's decision succeeds does not in itself mean that the decision was an error. The adjudication officer's decision was reasonable based on the information available at that time.

"The overturning of a decision by a higher tier of the adjudicating authorities is a routine event clearly envisaged in legislation."

FINDINGS IN FACT AND LAW

1. The decision taken on behalf of the defender on 8 February 1995, that the pursuer was entitled to a nil amount of income support, was erroneous.

2. As a result of that decision, the pursuer sustained losses in the sum of �4425.41.

3. The defender is not, however, liable in reparation to the pursuer for the losses he sustained as a result of the decision of 8 February 1995.

The Sheriff therefore assoilzies the defender from the crave of the initial writ; finds no expenses due to or by either party.

NOTE:

1. Introduction

This action raises an issue of some general interest which appears not yet to have been decided in Scotland. A person makes a claim to a government department for a payment out of public funds in terms of legislation which provides for a right of appeal against decisions to refuse such claims. The department refuses his claim, without malice or any deliberate maladministration. He appeals against that decision under the statutory procedure, and succeeds. As a result of the original refusal of his claim, however, he sustains financial loss. Does he have a remedy? Is he only entitled to make representations against the original refusal by way of judicial review or the appellate procedures provided by the legislation? Or is he entitled to raise an action of damages against the department?

In this action the pursuer claims damages from the defender for losses he avers he sustained as a result of the refusal of a claim which he made for income support. The pursuer made the claim on 16 January 1995 at an office of the Department of Social Security ("the Department") in Edinburgh. On 8 February 1995 an adjudication officer declined to award him income support. The pursuer appealed to the Social Security Appeal Tribunal ("the Tribunal"), and on 20 April 1995 his appeal was allowed. The adjudication officer appealed to the Social Security Commissioner ("the Commissioner") who on 26 March 1997 set aside the Tribunal's decision but found the pursuer entitled to income support. The pursuer was thereafter paid arrears of income support amounting to �1351.05 for the period 16 January 1995 to 18 April 1995, that being the period during which he was entitled to income support. In this action he now claims damages for the losses which he avers he sustained as a result of the adjudication officer's decision. The sum sued for is �6800. The defender's counsel accepted at the hearing on evidence that in the event of liability being established, the pursuer would be entitled to damages of �4425.41.

2. The pleadings

The pursuer is a party litigant. He conducted his case with notable clarity and courtesy. In his pleadings the pursuer states the legal basis of his case in this way. "The defender either maliciously or erroneously declined to award the pursuer income support to which he was entitled claiming that the pursuer's immigration status bars him from receiving public funds." That averment relates to the decision made by the adjudication officer on 8 February 1995. The pursuer's first plea-in-law is in these terms: "(1) The pursuer having suffered loss through the defender's erroneous or malicious decision, is entitled to reparation from the defender therefor." At the hearing on evidence, the pursuer expressly departed from his averment and plea that the decision was malicious. The issues raised by his pleadings are therefore whether the decision of 8 February 1995 was erroneous and, if so, whether he is entitled to reparation from the defender.

In the course of the proof the pursuer raised two other matters which are not founded on in his pleadings. First, after the appeal to the Tribunal, the Secretary of State directed that payment of income support to the pursuer should be suspended pending the determination of the appeal to the Commissioner. That direction was communicated to the pursuer by the letter of 17 May 1995 which is referred to in finding-in-fact 12. The direction was made by virtue of regulation 37 of the Social Security (Claims and Payments) Regulations 1987, the effect of which in this case was that the suspension should cease unless within one month the pursuer was given notice in writing that an application for leave to appeal against the decision had been made. No such notice was given, as I have recorded in finding-in-fact 13. This matter, however, is not founded on as a ground of liability in the pursuer's pleadings: there is only a brief reference to it in the last sentence of article 2 of the condescendence. In my opinion counsel for the defender was well founded in his submission at the hearing on evidence that this was a matter of which no notice had been given. Accordingly I do not consider it further.

The second matter to which the pursuer referred was the Benefits Agency's refusal of his claim for an ex gratia payment. The facts are narrated in findings-in-fact 23 and 26. They are not, however, averred in the pursuer's pleadings. I therefore also leave this matter out of account when considering the question of liability. I shall refer to it, however, when I deal with the question of expenses.

That matter apart, this note is restricted to a consideration of the issues raised in the record. As I have already noted, the issues raised by the pursuer's pleadings are whether the adjudication officer's decision of 8 February 1995 was erroneous and, if so, whether he is entitled to reparation from the defender. The defender's pleadings set out in some detail the history of the how the pursuer's claim was dealt with. They point out that at the information ultimately obtained from the Home Office on the direction of the Commissioner (set out in finding-in-fact 16) was contrary to the information previously provided to the adjudication officer. The defender's position on record is that at all times the adjudication officer acted in good faith and in reliance on the information made available by the Immigration and Nationality Department of the Home Office. It is also averred that in dealing with the pursuer's claim the defender at all times acted in the proper exercise of his statutory powers and in doing so properly exercised the discretion conferred on him. The defender's pleadings include a general plea to the relevancy of the pursuer's averments. His other pleas are in standard form.

3. Procedure

The defender intended to insist on his general plea to relevancy and timeously lodged a note of the basis for the plea, but at the options hearing the presiding Sheriff ex proprio motu allowed a proof before answer. On 21 January 1999 the diet was called before me. It will be convenient to refer to that diet as "the first hearing". The pursuer appeared on his own behalf, and the defender was represented by counsel. After hearing the evidence and the parties' submissions I made avizandum. I thereafter discovered the case of Jones v Department of Employment [1989] QB 1 which had not been cited at the first hearing. Thinking that it might be relevant, I invited the parties to address me further. I also invited further submissions on the question of expenses. I refer to my interlocutor and note of 26 January 1999. The parties accepted that invitation at a brief hearing on 5 February 1999, when the pursuer intimated that he would be relying on Davy v Spelthorne Borough Council [1984] AC 262. I heard further submissions at a diet on 8 March 1999 ("the second hearing"). On that occasion the pursuer again appeared on his own behalf, and the defender was represented by a solicitor.

4. The evidence

At the first hearing on 21 January 1999 the pursuer gave evidence on his own behalf. The defender's counsel led the evidence of Mr James Christie, the adjudication officer who made the decision of 8 February 1995 refusing the pursuer's claim for income support. These were the only witnesses. No issue was raised as to the credibility or reliability of either of them, and I had no difficulty in finding each of them to be truthful and accurate in his evidence. In particular, I readily accepted that Mr Christie had acted in good faith throughout (finding-in-fact 8). The pursuer expressly departed from his averment and plea of malice: it is unfortunate that that allegation was made.

The evidence of the witnesses was principally concerned to elucidate the chronology of the matter, the significance of the documents in process and, in the case of Mr Christie, the guidance provided for adjudication officers. The documents lodged by the defender were the subject of a joint minute of admissions (no 15 of process). There did not appear to be any dispute as to the material facts.

5. Submissions

First hearing

At the first hearing on 21 January 1999 the pursuer submitted that the basis of his case was that a decision had been made on behalf of the defender which turned out not only to be wrong but also to be ultra vires. It directly contravened regulation 4 of the Immigration (European Economic Area) Order 1994. Regulation 4(2) provides that a family member of a qualified person is entitled to reside in the United Kingdom without the requirement for leave to remain under the Immigration Act 1971, for so long as he remains the family member of a qualified person. Regulation 5(1) defines "qualified person" as an EEA national who undertakes in the United Kingdom the activities of a worker or of certain other categories of persons. The pursuer argued that a decision which was contrary to the law of the land was ultra vires. He also maintained that the Department had not had the expertise to interpret the evidence which had been available to them. He pointed out that he had consequently incurred losses through no fault of his own. He referred me to Henderson v Moodie 1988 SCLR 77 and to an article by P P Craig in (1980) 96 LQR at pages 453-455.

Counsel for the defender referred to various provisions relative to entitlement to income support: the Social Security Contributions and Benefits Act 1992, section 124; and the Income Support (General) Regulations 1987, regulations 17 and 21, and Schedule 7, paragraph 17. As to any liability of the defender for the decision, he submitted that all the decisions taken on behalf of the defender were taken within the ambit of a power conferred in the form of a discretion, and that nothing more than a reasonable exercise of the discretion had been carried out. He cited Hallett v Nicholson 1979 SC 1 at page 9 for the propositions that acts or omissions committed by a statutory authority in the proper exercise of its statutory duties or powers did not found a cause of civil action; that acts or omissions committed by a statutory authority in the course of an improper exercise of its statutory duties or powers and which infringed the rights of third parties might be actionable at common law; and that for such an exercise to be improper, it must be either (a) not authorised by statute or (b) not made bona fide in the interests of the public within the limits of any statutory discretion.

Counsel further submitted, under reference to Bonthrone v Secretary of State for Scotland 1987 SLT 34 at page 41A-B, that if the statutory power was exercised within its legitimate ambit and in a manner which was bona fide, then even if the decision resulting from the exercise of the discretion was wrong, there could be no entitlement to damages by the party aggrieved. That, said counsel, could be understood in the context of a decision subject to review by a system of appeals. Counsel also cited Bonthrone for the proposition that a duty to take reasonable care only arose when the "discretionary stage" of the exercise of a statutory power had ceased and the "executive stage" had begun. The decision whether a claimant was entitled to income support belonged to the discretionary stage: it involved the assimilation of all the evidence and the taking of a decision. If it was decided that he was so entitled, the actual payment of the benefit would belong to the executive stage, and if it was not paid correctly, the Department might be liable to the claimant. If it was decided that he was not so entitled, no executive stage would arise.

Counsel also cited Shetland Line (1984) Ltd v Secretary of State for Scotland 1996 SLT 653 at page 658 for the propositions that damages were not awardable in respect of the consequences of a decision of a Minister of the Crown in the absence of misfeasance or abuse of power amounting to bad faith; and that where a particular power was so exercised that physical consequences or personal injury might occur, a situation might be created which could be categorised as negligence and give rise to a duty of care.

Turning to the facts of the present case, counsel submitted that the adjudication officer, Mr Christie, had followed the established scheme of guidance within the Benefits Agency relative to situations where there was any doubt about the immigration status of a claimant. He had reached his decision on the basis of the advice he had received by telephone from the Immigration and Nationality Department of the Home Office ("IND") and from Central Adjudication Services ("CAS"). Another adjudication officer, Mr Gray, had likewise telephoned IND when he was dealing with the pursuer's appeal to the Tribunal (finding-in-fact 9). Counsel submitted that in considering whether the exercise of discretion on behalf of the defender had been reasonable, the court should find that it had been appropriate for those acting for the Benefits Agency to rely on the word of IND. Counsel observed that the Benefits Agency and the Home Office were two separate arms of the Government. From the perspective of the Benefits Agency, the Home Office were the acknowledged experts in the field. The decision which had been taken might have been a wrong decision, but it was one which those acting on behalf of the defender had been entitled to take, and it had not been ultra vires. It had been essentially an error of fact, made on the basis of information supplied by the Home Office. The Benefits Agency's discretion had been properly and reasonably exercised.

Jones v Department of Employment

After making avizandum, I found the case of Jones v Department of Employment [1989] QB 1, which had not been referred to at the first hearing. Jones was an action of damages for negligence which was brought against the Department of Employment in respect of the failure of an adjudication officer employed by the Department to determine the plaintiff's claim for unemployment benefit correctly, and of the Department to review that decision. The plaintiff had appealed successfully to the Social Security Appeal Tribunal and now claimed damages for loss amounting to �701.50 in respect of legal fees for the conduct of his appeal to the Tribunal, �65 in respect of personal expenses and unquantified aggravated damages in respect of worry, distress, anxiety and inconvenience caused to him. The Department appealed to the Court of Appeal against the refusal by the judge of first instance to strike out the proceedings. The Court allowed the appeal.

It will be convenient to reproduce the material parts of the rubric, interpolating the corresponding modern legislation which applies to the present case:

"(3) Allowing the appeal, that since section 117(1) of the Social Security Act 1975 [section 60(1) of the Social Security Administration Act 1992] prohibited a challenge to the correctness of the adjudication officer's decision other than by way of the appellate procedures set out in the social security legislation an action in negligence at common law would necessarily amount to a challenge to the finality of his decision contrary to section 117(1) [section 60(1)]; and that accordingly no such action could lie . . .

"(4) That the adjudication officer's duty lay in the field of public law, any breach of that duty giving rise to remedy by way of judicial review; that in consequence, having regard to the non-judicial nature of his duties and in particular to the legislation which provided an aggrieved claimant with an adequate remedy by way of appellate procedure, it was not just and reasonable to hold that the adjudication officer or the defendant was under a common law duty of care; and that, accordingly, misfeasance apart, the adjudication officer's decision was not susceptible of challenge at common law . . .

"Per curiam. In general a government department or officer, charged with the making of decisions relating to whether certain payments should be made, but subject to a statutory right of appeal against such decisions, owes no duty of care in private law. Misfeasance apart, the remedy lies in public law by way of judicial review or under the appellate procedure provided by the relevant legislation."

After reading Jones I invited further submissions at a second hearing, as I have already mentioned.

Second hearing

At the second hearing, the pursuer sought to distinguish Jones on the grounds that in Jones the plaintiff had claimed aggravated damages and had not asked the Department for an ex gratia payment. He explained why he had not sought judicial review of the defender's decision to suspend payment of benefit (finding-in-fact 12). He said that he had resorted to raising the present action when his claim for an ex gratia payment had been refused (finding-in-fact 26). He submitted that in the present action he was not seeking to challenge the adjudication officer's decision, and the action did not involve any public law issue: it was concerned with his private law right not to have to suffer economic loss.

He placed great emphasis on Davy v Spelthorne Borough Council [1984] AC 262, the case he had mentioned at the brief hearing on 5 February 1999, and said that, as in that case, the issue related to the circumstances in which a person with a cause of action against a public authority, which was connected with the performance of its public duty, was entitled to proceed against that authority by way of an ordinary action, as distinct from an application for judicial review (Lord Fraser of Tullybelton at page 269F). In the present case, the pursuer's claim was concerned with the infringement of his rights at common law (Lord Fraser of Tullybelton at page 273E-G). It was for the pursuer to choose the court and procedure which suited him best, and for the defender to show that in doing so he was abusing the procedure of the court (Lord Wilberforce at page 278E-G). The present action did not seek to subvert the adjudication officer's decision, or to negate the decisions of the Tribunal or the Commissioner, or to put pressure on the defender. The remedy of damages which was sought here was not within the competence of the adjudication officer, the Tribunal or the Commissioner. He referred to section 60(2) of the Social Security Administration Act 1992. A claim for damages should be made by way of separate action and not by way of judicial review: Shetland Line (1984) Ltd, supra, at page 658H-I.

The solicitor who appeared for the defender at the second hearing pointed to the pursuer's averment and plea of malice and said that these had made judicial review inappropriate.

The defender's solicitor referred to paragraph (4) of the rubric in Jones and submitted that the same point had been raised in Shetland Line (1984) Ltd where it was said (at page 658E-H) that damages were not awardable in respect of the consequences of a decision of a Minister of the Crown in the absence of misfeasance or an abuse of power amounting to bad faith, although a duty of care might arise in respect of the manner in which a power was exercised. She referred to dictionary definitions of "misfeasance". She did not discuss Davy or Jones. In answer to a question from me as to whether, if Jones were to be followed, the pursuer would be without a remedy for his admitted loss of �4425.41 as a result of the adjudication officer's decision, she suggested that the pursuer might yet be able to petition for judicial review of the Department's decision not to make an ex gratia payment.

6. Decision

I now have to decide whether, as the pursuer claims, the adjudication officer's decision was erroneous and, if so, whether he is entitled to reparation from the defender. The defender avers that the decision was made in the proper exercise of his statutory powers and in the proper exercise of his statutory discretion. It was submitted on his behalf that if the statutory power had been exercised within its legitimate ambit and in a manner which was bona fide, then even if the decision resulting from the exercise of the discretion was wrong, the pursuer was not entitled to damages.

I must therefore determine, in the first place, how the adjudication officer's decision is to be categorised. It appears to me to be beyond argument that it was indeed wrong. The adjudication officer held that the pursuer was not entitled to income support, the Commissioner held that he was, and it has not been suggested that the Commissioner's decision was wrong. It is necessary, however, to examine the grounds on which the adjudication officer's decision is criticised by the pursuer. The pursuer in argument advanced two grounds of criticism: first, that the decision was ultra vires; and secondly, that it had been reached without the expertise necessary for the interpretation of the available evidence.

On the first ground, the defender's position on averment is that the decision was reached in the proper exercise of his statutory powers. Although that contention was adumbrated in the defender's pleadings, it was not developed in argument, and neither side referred to any authority. I must therefore approach this matter on the basis of the law as I understand it. I believe that any error of law renders a tribunal's decision ultra vires. I refer to the various discussions of R v Hull University Visitor ex p Page [1993] AC 682 in the seventh edition of Sir William Wade's Administrative Law, and the article on Administrative Law by Mr Michael Supperstone QC in the fourth edition reissue of volume 1(1) of Halsbury's Laws of England, paragraphs 69, 70. If the adjudication officer made an error of law as to the pursuer's entitlement to income support, the pursuer's first criticism would fall to be sustained. The defender's counsel, on the other hand, maintained that the officer's error had been essentially an error of fact. It is difficult to determine this issue in the absence of argument. It is, however, unnecessary for me to do so since I am satisfied that it will be appropriate to decide the case on another ground.

I now consider the pursuer's second criticism, that the decision was reached without the expertise required to interpret the available evidence. It seems to me to be clear that the adjudication officer, although acting honestly and in good faith, did not appreciate the significance of the information placed before him by the pursuer and did not take sufficient steps to evaluate it. The pursuer maintained that he was the spouse of an EC national, and that he was not subject to any condition that there was no recourse to public funds. It was not suggested that he was obviously untruthful in so maintaining. The publication Persons from Abroad stated that persons already in the UK with limited leave to remain "will usually have entered the country with limited leave under a condition that there is no recourse to public funds" (finding-in-fact 5(1), emphasis supplied). The publication A Guide to Immigration Awareness stated: "Nationals of other EEA countries and their family members (who may not be EEA nationals) are also generally liable to live in the UK without restrictions on their stay" (finding-in-fact 5(3)). In my opinion those considerations should have made it clear to the adjudication officer that the question of the pursuer's entitlement to public funds was one which required careful investigation. When in due course it was carefully investigated, by means of a written request to the Home Office and a considered written reply, it was found that the position maintained by the pursuer was perfectly correct. I do not accept that it was sufficient for the adjudication officer to peril the pursuer's entitlement to income support on telephone conversations. The Tribunal and the Commissioner clearly considered that to be an unduly perfunctory approach to such an important issue (findings-in-fact 11, 15, 20) and I cannot disagree. In my opinion the adjudication officer should have written to the Home Office setting out all the facts placed before him by the pursuer. If he had done so, it is highly probable that he would have obtained a considered response in writing which would have been favourable to the pursuer.

I therefore sustain the pursuer's second criticism, that the adjudication officer's decision was reached without the expertise required to interpret the available evidence. I shall assume in the pursuer's favour that that criticism means that the decision was reached without due care. It is important to notice, however, that although his pleadings describe the decision as "erroneous", they do not found on any breach of any duty owed to him by the adjudication officer. That is a matter to which I shall return.

I now consider the submission of the defender's counsel that the adjudication officer's decision of 8 February 1995 had been reached in the reasonable exercise of a power conferred in the form of a discretion. I respectfully accept the propositions in Hallett, Bonthrone and Shetland Line (1984) Ltd relative to the exercise of a discretionary power conferred by statute, but I do not consider that the adjudication officer was exercising such a power. The question the adjudication officer had to decide was, Is the pursuer entitled to income support? That question could only be answered Yes or No, and only one of those answers was correct. There was not a range of different answers which reasonable adjudication officers, fully informed as to the whole circumstances, would have been entitled to give. Where there is only a single, correct answer, there is no room, in my view, for the exercise of discretion. In the words of Lord Diplock: "The very concept of administrative discretion involves a right to choose between more than one permissible course of action, upon which there is room for reasonable people to hold differing opinions as to which is to be preferred." (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at page 1064F.) I am therefore unable to regard the decision of the adjudication officer as a discretionary decision. In my opinion it belongs to what Lord Grieve in Bonthrone at page 41B-C called "the executive stage" in the exercise of a statutory power, where the taking of reasonable care arises, and not to "the discretionary stage". I note that in Anns v Merton London Borough Council [1978] AC 728, to which Lord Grieve refers, Lord Wilberforce drew a similar distinction between "the area of policy or discretion" where there is a choice of courses of action, and "the operational area", and observed: "It can safely be said that the more "operational" a power or duty may be, the easier it is to superimpose upon it a common law duty of care" (page 754C-D).

I have found above that the decision of the adjudication officer was reached without the expertise required to interpret the available evidence, and I have assumed in the pursuer's favour that that may be regarded as a failure to take due care. I shall now further assume in his favour that a case of breach of a duty of care has been sufficiently focussed in his pleadings. No doubt that is a generous assumption, but since the pursuer is a party litigant it is, I think, proper to make here. That assumption having been made, the question which immediately arises is whether the adjudication officer owed to the pursuer a duty of care at common law the breach of which could give rise to an action of damages against the defender. It is therefore necessary to consider whether to apply in this case the reasoning in Jones v Department of Employment which is summarised in the paragraphs of the rubric quoted above.

The following is the relevant legislation. Section 124 of the Social Security Contributions and Benefits Act 1992 sets out the general conditions of entitlement to income support. Subsection (4)(a) provides that where a person is entitled to income support, and he has no income, the amount shall be "the applicable amount". Detailed provision as to "applicable amounts" is made by Part IV of the Income Support (General) Regulations 1987. The other relevant provisions are in Part II of the Social Security Administration Act 1992. The effect of section 20(1)(a) and (6)(b) is that any claim for income support must be submitted forthwith to an adjudication officer for determination in accordance with Part II of the Act. The adjudication officer is bound to take the case into consideration and dispose of it, either by deciding it himself or referring it to a social security appeal tribunal (section 21(1), (2)). Where the adjudication officer has decided the claim, the claimant has a right to appeal to a social security appeal tribunal (section 22(1)). An appeal lies to a Commissioner from the decision of the tribunal on the ground that it was erroneous in point of law, at the instance of the adjudication officer or the claimant (section 23(1), (3)). An appeal on a question of law then lies to the Court of Session, the Court of Appeal or the Court of Appeal in Northern Ireland, from the decision of the Commissioner (section 24). Section 60(1) provides: "Subject to the provisions of this Part of this Act, the decision of any claim or question in accordance with the foregoing provisions of this Part of this Act shall be final . . ."

The first ground of decision in Jones which is relevant in this case was expressed in these words by Glidewell LJ (at page 19C-D): "The present action, if it were to proceed, would necessarily involve a challenge to the correctness of the adjudication officer's decision. That would be a challenge to its finality, by a route other than that provided by the statutory provisions themselves. In my view, this is prohibited by section 117 of the Act of 1975." The latter section is the statutory predecessor of section 60, from which I have just quoted above.

Slade LJ said (at pages 24G-25B): ". . . I feel no doubt that it was not the intention of the legislature, in imposing the relevant duties by the Act of 1975 on insurance officers (or adjudication officers as they are now called), to expose such insurance officers (or the department itself) to claims in negligence at common law by aggrieved claimants. Quite the contrary. For the protection of aggrieved claimants, sections 100 and 101 of the Act of 1975 as amended have specifically laid down the elaborate system of rights of appeal which Glidewell LJ has set out in his judgment, by which aggrieved claimants may seek redress. This system has been extended by section 14 of the Social Security Act 1980. Section 117(1) of the Act of 1975 as amended provides in effect that, subject to those provisions of the Act of 1975 and section 14 of the Act of 1980, which specifically give a claimant a right to challenge a decision on a claim made in accordance with the Act, such decision shall be "final"."

The second ground of decision in Jones which is material in this case was that an adjudication officer did not owe to an applicant for benefit a duty of care at common law the breach of which could give rise to an action. That ground is stated in the following terms by Glidewell LJ (at page 22B-C): "The question thus is whether, taking all these circumstances into account, it is just and reasonable that the adjudication officer should be under a duty of care at common law to the claimant to benefit. Having regard to the non-judicial nature of the adjudication officer's responsibilities, and in particular to the fact that the statutory framework provides a right of appeal which, if a point of law arises, can eventually bring the matter to this court, it is my view that the adjudication officer is not under any common law duty of care. In other words, I agree with Mr Laws [counsel for the department] that his decision is not susceptible of challenge at common law unless it be shown that he is guilty of misfeasance."

Slade LJ said (at page 25B-F): "The plaintiff's right to receive unemployment benefit was simply that conferred by the Act of 1975. In my judgment it would be contrary to both the wording of section 117(1) and the intention of the Act of 1975 as a whole to hold that an adjudication officer owes any duty of care at common law to a claimant such as is now alleged and that it is open to a claimant to challenge the correctness of his decision by bringing an action in negligence.

"If in the present case it be necessary or appropriate to consider whether it is just and reasonable that the alleged duty of care should be held to exist (cf Peabody's case [Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210] at page 241C per Lord Keith and Curran v Northern Ireland Co-ownership Housing Association Ltd [1987] AC 718, 729), I hold without hesitation that it would not be just and reasonable, if only for these reasons. First, as Mr Hill-Smith [counsel for the plaintiff] more or less accepted, the appeal procedure provided for by the Act of 1975 and the Act of 1980 itself for practical purposes provides a disappointed claimant with a perfectly adequate remedy for recovery of unemployment benefit properly due to him though, it is true, without costs, interest and any general damages for anxiety and distress. Secondly, as Mr Hill-Smith also accepted, one logically inevitable consequence of holding that a common law duty of care existed would be this. Immediately following an arguably negligent or erroneous decision of an adjudication officer, a claimant would have the right to pursue an action in negligence against the adjudication officer and/or the department without even pursuing his statutory rights of appeal (albeit at the risk of having any award of damages reduced, though not necessarily eliminated, on the grounds that he had not mitigated his damage by appealing). In the context of this legislation, under which there are likely to be many thousands of citizens who rightly or wrongly consider themselves aggrieved, it would seem to me to make no sense to hold that it is open to a disappointed citizen to challenge the decision in this particular manner."

Both Glidewell and Slade LJJ went on to express a considered and more general view. Glidewell LJ said (at page 22D): "Indeed, in my view, it is a general principle that, if a government department or officer, charged with the making of decisions whether certain payments should be made, is subject to a statutory right of appeal against his decisions, he owes no duty of care in private law. Misfeasance apart, he is only susceptible in public law to judicial review or to the right of appeal provided by the statute under which he made his decision."

Slade LJ said (at page 25F-G): "In more general terms, I would agree with Glidewell LJ that ordinarily, and subject of course to the particular provisions of the relevant statute, a government officer or department who or which is charged by statute with deciding whether certain payments should be made out of public funds and is subject to a statutory right of appeal against such decisions, will owe no duty of care to potential recipients in private law. Misfeasance apart, I would agree that ordinarily it or he will only be susceptible (in public law) to judicial review and also to the relevant rights of appeal." Caulfield J agreed with both judgments.

The decision of the Court of Appeal in Jones was applied by the Court of Appeal in Calveley v Chief Constable of the Merseyside Police [1989] QB 136 (affirmed, [1989] AC 1228) and by Knox J in the Chancery Division in Mills v Winchester Diocesan Board of Finance [1989] Ch 428. In Scotland, in Johnstone v Traffic Commissioner 1990 SLT 409 at page 414E-F, Lord Cameron of Lochbroom expressed his agreement with a material part of the opinion of Glidewell LJ. None of these cases was cited to me, and Jones was not examined in the speech for the defender at the second hearing. I regret that I do not understand the submission which was then made for the defender that the same point had been raised in Shetland Line (1984) Ltd.

I had some sympathy with the attempts of the pursuer to distinguish Jones. Unlike the plaintiff in Jones, he does not claim damages for worry, distress, anxiety and inconvenience. Nor is he pursuing the present action as an alternative to his statutory rights of appeal, or as a means of challenging any decision taken in the course of the statutory procedure. He exercised his statutory rights of appeal and was successful. The fact that the decision of the adjudication officer was wrong was established in the course of the statutory procedure. It is admitted that, as a result of that decision, the pursuer sustained substantial financial loss. It is understandable that he should consider that his rights at common law have been infringed, and that he ought to have a remedy.

I have concluded, however, that I should follow the considered views of Glidewell and Slade LJJ in Jones. While they are not technically binding on me, they are entitled to the highest respect, they were reached after full argument, they relate to a United Kingdom statute and, as far as I have been able to discover, they have been accepted without reservation in both Scotland and England. I do not think that Davy v Spelthorne Borough Council assists the pursuer. There the plaintiff was held entitled to proceed with an action of damages against a planning authority on the ground that the authority had given him negligent advice which led him to refrain from appealing against an enforcement notice. The relevant legislation provided that the validity of an enforcement notice could be questioned only by way of a statutory appeal. It was held that the plaintiff's claim for negligence assumed the validity of the enforcement notice and did not seek to impugn it. In my opinion, however, that case is not of assistance on the question whether the adjudication officer in this case owed a duty of care to the pursuer. I consider, following the opinions of Glidewell and Slade LJJ in Jones, that the adjudication officer did not owe to the pursuer a duty of care at common law the breach of which could give rise to an action. I have interpreted the pursuer's case as favourably as I can, consistently with judicial impartiality; but having made in his favour every assumption which I think may properly be made, I have concluded that the defender must be assoilzied.

I do not offer any comment on the suggestion made by the defender's solicitor, at the end of her speech at the second hearing, that the pursuer might petition for judicial review of the Department's decision not to make an ex gratia payment. That suggestion was not developed, and I do not consider it necessary to deal with it here.

If I had found the defender liable in damages to the pursuer, I would have awarded �4425.41. I understood the defender's counsel at the first hearing not to challenge the pursuer's losses relative to his overdraft, which amount to �4300.41. Counsel did, however, challenge the figure of �2500 which the pursuer states as "cost of litigation" (finding-in-fact 23). This, I think, is essentially a claim for the expenses of this action. It would be for the Auditor to assess the amount of these in the event of an award of expenses in the pursuer's favour. Counsel nevertheless accepted that the pursuer had incurred expense to the extent of five per cent of the sum of �2500, that is, �125, in respect of telephone calls, photocopying, postage and stationery. I would therefore have awarded total damages of �4425.41.

7. Expenses

In the note appended to my interlocutor of 26 January 1999 inviting submissions at a second hearing I intimated that I was not then satisfied that, if the defender were to be successful, the pursuer should necessarily be found liable in expenses by virtue of the general rule that expenses follow the result. I referred to the discussion of the general rule in my Sheriff Court Practice, paragraphs 19-07 to 19-12 (19.07 to 19.12 in the second edition).

At the second hearing the defender's solicitor did not discuss the general rule but submitted that it should be applied. I regret, however, that I find myself dissatisfied with the defender's conduct in relation to the pursuer's claim. The adjudication officer's decision was wrong. The Tribunal and the Commissioner considered his investigation of the matter to have been inadequate. The Commissioner also expressed the view that the adjudication officer should have been able to get a definitive statement from the Home Office before the hearing before the Tribunal. There was then an inordinate delay before the Office of the Chief Adjudication Officer lodged the appeal to the Commissioner (finding-in-fact 13). After the appeal, when the pursuer applied to the Department for an ex gratia payment, he was advised by the letter of 1 August 1997 that it was not accepted that error or misdirection had occurred which would justify a payment, and that the overturning of a decision was a routine event (finding-in-fact 26). In fact, however, the Commissioner had criticised several errors. It is difficult to understand how in all the circumstances the overturning of this particular decision could reasonably have been regarded as a routine event. At the first hearing before me there appeared to be some attempt to blame the Home Office for the pursuer's misfortunes. That seemed to me to be a less than attractive posture: it was the defender's Department alone which was responsible for the defective decision and to which the pursuer was entitled to look for compensation. The pursuer resorted to raising the present action when his claim for an ex gratia payment had been refused.

In all these circumstances I have concluded that I should depart from the general rule and make no award of expenses to or by either party.

I would not have certified the first hearing as suitable for the employment of counsel. The examination of the witnesses was not difficult, because the facts were not in dispute. The submissions then made for the defender were, in my opinion, well within the capacity of a solicitor.

In the result, accordingly, I have granted decree of absolvitor and found no expense due to or by either party.