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[1991] UKSSCSC CSB_323_1990 (24 June 1991)

R(SB) 1/92

Mr. M. J. Goodman CSB/323/1990
24.6.91

Tribunal practice - setting aside a decision - whether a decision may be set aside on the ground that "the interests of justice so require" due to a party failing to call sufficient evidence

On 17 March 1989 a tribunal allowed a claimant's appeal against an adjudication officer's decision that an overpayment of benefit was recoverable. In reaching their decision, the tribunal rejected the evidence in two witness statements. The adjudication officer applied to have the tribunal's decision set aside in the interests of justice under regulation 11(1)(c) of the Social Security (Adjudication) Regulations so that the witnesses could be called to give oral evidence in support of their written statements. On 23 June 1989 another tribunal set the decision aside on that ground. The case was heard again on 5 March 1990. That tribunal dismissed the claimant's appeal, holding the overpayment to be recoverable. The claimant appealed to the Commissioner.

Held that:

the phrase "the interests of justice so require" in regulation 11(1)(c) is limited to "procedural irregularities" (R(U) 3/89 affirmed). A failure by a party to an appeal to produce sufficient evidence to satisfy the tribunal is not a "procedural irregularity". It is not possible where a case has failed due to want of adequate evidence to try to rectify the matter by an application to set aside (paras. 9 and 10);

where a tribunal's jurisdiction depends upon a determination to set aside an earlier decision, the tribunal cannot be expected to investigate in detail the decision to set aside unless that decision is plainly invalid on its face (unreported decision CI/78/1990 affirmed) (paras. 13 to 15).

The appeal was allowed by the Commissioner on the grounds that the tribunal's decision of 5 March 1990 was a nullity (applying R(SB) 4/90). The earlier tribunal's decision (of 17 March 1989) therefore stood.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I allow the claimant's appeal against the decision of the social security appeal tribunal dated 5 March 1990 as that decision is erroneous in law and I set it aside. As that decision is a nullity because it was given without jurisdiction, the earlier decision, dated 17 March 1989, of a social security appeal tribunal must stand: Social Security Act 1975, section 101 (as amended).

This is an appeal to the Commissioner by the claimant, a married man aged 56 at the relevant time. The appeal is against the decision dated 5 March 1990 of a social security appeal tribunal, with the leave of that tribunal's chairman, which dismissed the claimant's appeal from a decision of a local adjudication officer issued on 21 October 1988 in the following terms:

"Supplementary benefit/income support amounting to £598.53 has been overpaid to [the claimant] and this amount is recoverable from him."

The reason for the overpayment was said by the Department to be that from
22 October 1987 onwards the claimant's wife had been working as a part-time cleaner under an assumed name, an assertion which the claimant strongly denied. I do not however have to deal with the factual matters involved, my decision being that the original social security appeal tribunal's decision of 17 March 1989 (allowing the claimant's appeal from a requirement to repay the £598.53) must stand.

The reason for the delay between the giving of the adjudication officer's decision on 21 October 1988 and the decision (dated 5 March 1990) of the social security appeal tribunal, now appealed against, is that there had been intermediate proceedings. Originally the appeal from the adjudication officer's decision had been heard by a social security appeal tribunal on 17 March 1989 which by its decision of that date had allowed the claimant's appeal and held that the £598.53 was not recoverable. The reasons given by that tribunal for its decision were:

"The witness statements of Mrs. C and Mrs. D attached to form AT2 do not show that [the claimant's wife] and Mrs. H are one and the same person. There is no evidence as to the earnings of Mrs. H."

What had happened was that written witness statements had been handed into the tribunal, one from a Mrs. C a cleaning supervisor for a firm of cleaners stating that the person known to her as Anne H was the person then sitting in the waiting room of the social security office. The other from Mrs. D stated that she was an assistant manager in the Department's local office and was able to identify the claimant's wife as a cleaner who used to work in that office in 1978/1988. Neither Mrs. C nor Mrs. D were called to give evidence at the social security appeal tribunal's hearing.

On 10 April 1989 an application was made by the appeals officer at the Department's local office to set aside the tribunal's decision of 17 March 1989 on the following grounds:

"At the SSAT held on 17 March 1989, the written statements of two witnesses were not accepted as proof of the identity of [the claimant's wife]. I am therefore applying for the tribunal's decision to be set aside in the interests of natural justice, in order that the witnesses can be called to attend the tribunal to give their oral testimony and to formally identify [the claimant's wife] and Mrs. H to be one and the same person."

On 23 June 1989 a social security appeal tribunal granted this application to set aside. It made the following findings of fact:

"Tribunal found that the adjudication officer may be able to provide additional evidence relevant to the issues the subject of the appeal, such evidence not having been produced on the hearing of the appeal on 17 March 1989."

The "full text of decision" was "That it is in the interests of justice that the adjudication officer be permitted to adduce additional evidence. Adjudication Regulations 1986 11(1)(c) applied."

It was as a result of that setting aside decision that the new tribunal was convened and reheard the case on 5 March 1990. By its decision of that date, it dismissed the claimant's appeal against the adjudication officer's decision requiring repayment of £598.53. It is against that tribunal's decision that the claimant appeals.

I must first consider whether the tribunal's setting-aside decision of 23 June 1989 was valid. That is because, even though no appeal as such lies against a setting-aside decision (regulation 12(3) of the Social Security (Adjudication) Regulations 1986, SI 1986 No. 2218), I am entitled to consider whether or not the third tribunal (against which appeal is now made to the Commissioner) had jurisdiction (see R(SB) 4/90 to this effect). The relevant regulation is regulation 11(1) of the above stated Adjudication Regulations which provides as follows:

"Setting aside decisions on certain grounds

11(1) . . . On an application made by a party to the proceedings, a decision may be set aside by the adjudicating authority who gave the decision or by an authority of like status in a case where it appears just to set the decision aside on the ground that -

(a) a document relating to the proceedings in which the decision was given was not sent to, or was not received at an appropriate time by, a party to the proceedings or the party's representative or was not received at an appropriate time by the adjudicating authority who gave the decision; or

(b) a party to the proceedings in which the decision was given or the party's representative was not present at a hearing or inquiry relating to the proceedings; or

(c) the interests of justice so require."

It is clear that the only possible relevant ground here is sub-paragraph (c) of regulation 11(1) i.e. that "the interests of justice so require". Both the claimant's solicitor and the adjudication officer now concerned submit to me that the setting aside decision of 23 June 1989 could not be brought under that head because in reported decision R(U) 3/89, at paragraph 25, another Commissioner held that "the interests of justice so require" was limited to "procedural irregularities". A failure by a party to an appeal to a social security appeal tribunal to produce sufficient evidence to satisfy the tribunal is not a "procedural irregularity". It is the responsibility of the parties to have the evidence available for the original social security appeal tribunal. If it transpires during the proceedings that that evidence is not available but should be called, the party in question can of course ask the tribunal for an adjournment for this purpose (which the tribunal has a discretion to grant or refuse). There was apparently no such request for an adjournment in this case.

It is not possible, where a case has failed due to want of adequate evidence, to try to rectify the matter by an application to set aside. Nor for that matter would it normally be possible to rectify it by an application for review under section 104(1) of the Social Security Act 1975 since it could not be said that there had been a "relevant change of circumstances", nor that the original tribunal's decision was given "in ignorance of or under a mistake as to a material fact". There may of course be cases where there is further relevant evidence of which the tribunal is ignorant and where an application for review might be granted but this was not one of them. It was simply a case of not backing up written statements with oral evidence, where such reinforcement was thought by the tribunal to be necessary.

Consequently, in the exercise of my jurisdiction (see R(SB) 4/90), I rule that the setting aside decision of 23 June 1989 was invalid. The next question is what should be done in such a situation if there is an appeal to the Commissioner against a subsequent tribunal's decision on the ground of want of that tribunal's jurisdiction, because the prior setting-aside decision was invalid. The Commissioner can entertain that matter (R(SB) 4/90) and I have done so in this case. However, a question not answered in R(SB) 4/90 was whether the subsequent tribunal itself ought to take the point as to want of jurisdiction. In the present case the claimant's solicitor raised the matter with the subsequent tribunal. That tribunal, however, said in their reasons for decision:

"The tribunal did not accept the submission of the appellant's representative that it should be influenced by the previous decision which had been set aside. Leave to set [aside] that decision given on the 17 March 1989 had already been given and the application to set aside was specifically so that oral testimony could be called of the two witnesses whose written statements were not accepted as conclusive proof of the facts alleged by the previous tribunal. The present tribunal was at liberty to reach a conclusion having regard to the evidence presented to it."

The adjudication officer now concerned does not deal with this particular point in his written submission of 25 February 1991 but contents himself with submitting (correctly) that the subsequent tribunal of 3 March 1990 acted without jurisdiction and therefore its decision was a nullity (following R(SB) 4/90). However, the claimant's solicitor does submit that that tribunal erred in not itself being prepared to hold that the prior setting aside decision was invalid. That is a difficult question but I note that it has been addressed (in the context of medical appeal tribunals) in a decision on file CI/78/1990 by another Commissioner. In that decision a medical appeal tribunal (in basically the same position as the social security appeal tribunal in this case) had used the then existing power under section 112(4) of the Social Security Act 1975 and regulation 35 of the Social Security (Adjudication) Regulations 1986 (now repealed and revoked respectively) to refer directly a question of law to the Commissioner. One of the questions that the medical appeal tribunal submitted to the Commissioner was, "May a medical appeal tribunal in the position of the present tribunal treat a setting aside decision given without jurisdiction as of no effect (in view of decision [R(SB) 4/90])?"

The learned Commissioner in his decision on file CI/78/1990, said of this (paras. 9 and 12) as follows:

"The second question raises a number of issues. It was appreciated by MAT No. 3 that there were objections to their adopting the course suggested by the question, these principally being that the setting aside decision by MAT No. 2 under regulation 11 of the adjudication regulations was a decision made by another tribunal of equal status, that it was not the decision under appeal to them, and that it was a determination excluded from appeal by regulation 12(3) of the adjudication regulations. Accordingly in the situation in which MAT No. 3 found themselves . . . when the provisions for reference to a Commissioner of a question of law were still available I consider that they undoubtedly took the correct course in making the reference. So viewing question two historically, and as framed, I would be disposed to answer that question in the negative. However the question was no doubt designed to elicit an answer of continuing relevance and I propose to comment briefly upon the alternatives canvassed before me as the procedural options before a tribunal faced with such a situation. The main alternatives discussed were on the one hand for the tribunal to proceed to deal with the appeal before them, either ignoring any question of invalid prior procedure or after simply drawing attention to it, or on the other hand to refuse to deal with the appeal on the ground of no jurisdiction upon the basis that the decision of a previous tribunal on the appeal had not been validly set aside. There was no enthusiasm on the part of [either representative] for either version of the first course and the second was supported on an analogy with the approach of the Commissioner in [R(SB) 4/90]. In that case the Commissioner held that he was entitled to look at prior procedure in order to determine whether the tribunal whose decision was under appeal to him had jurisdiction in the matter, and in so doing to hold an intervening setting-aside decision to have been incompetent and therefore invalid. The difficulty of extending that approach 'downwards' to the tribunal is of course obvious having regard to the objections already mentioned . . . above. In my judgment an intervening setting aside decision should in general be accepted at face value in any subsequent proceedings before another tribunal. The considerations mentioned . . . above render that the proper approach in my view. But in the event of a setting aside determination being plainly invalid on its face a subsequent tribunal, whose jurisdiction depends upon that determination, must be entitled to expiscate their jurisdiction. If satisfied that they do not have jurisdiction because a prior decision on the appeal has not been validly set aside it would in my opinion be their duty to make a decision refusing to entertain the appeal upon that ground. Such a decision could then, if necessary, be challenged on appeal to a Commissioner."

I agree with that reasoning by the Commissioner in his decision on file CI/78/1990. The learned Commissioner said (see above), "but in the event of a setting aside determination being plainly invalid on its face, a subsequent tribunal, whose jurisdiction depends upon that determination, must be entitled to expiscate their jurisdiction." I ought perhaps to explain that the word "expiscate" is defined in Chambers 20th Century Dictionary as being a Scottish verb meaning, "to find out by skilful means or by strict examination". It is clear that the Commissioner has power to investigate in detail a setting-aside decision and to adjudicate on whether or not it comes within the terms of regulation 11(1) of the above cited Adjudication Regulations (see R(SB) 4/90). However, the subsequent tribunal whose jurisdiction depends upon the determination to set aside cannot be expected to carry out such an investigation nor indeed should it. As the learned Commissioner said in CI/78/1990, "an intervening setting aside decision should in general be accepted at face value in any subsequent proceedings before another tribunal." In my view the facts of the present case come within that category and the tribunal in this case was correct in not going into detail as to whether or not the earlier setting aside decision was within the powers in regulation 11(1). To have done so would have involved the usually undesirable course of one tribunal adjudicating upon the validity of what an earlier tribunal had done. It is only were, to quote again the Commissioner in CI/78/1990, that the "setting aside determination [is] plainly invalid on its face" that the subsequent tribunal must take this point.

The learned Commissioner does not give instances of what could be situations where he would regard a determination to be "plainly invalid on its face". Such a situation could, in my view, occur for example where the setting aside tribunal was not properly constituted, or where notice of the application to set aside had not been given to a party to the proceedings in order that that party should "be afforded a reasonable opportunity of making representations on it before the application is determined" (regulation 11(3) of the above cited Adjudication Regulations). Reference may be made also to the decision of a tribunal of Commissioners in R(S) 12/81 dealing with a number of procedural guidelines in connection with applications to a social security appeal tribunal to set aside an earlier decision. Breach of such guidelines could well render a tribunal's setting aside decision "plainly invalid on its face".

Date: 24 June 1991 (signed) Mr. M. J. Goodman

Commissioner