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[1994] UKSSCSC CSIS_78_1993 (21 November 1994)

R(IS) 2/96

Mr. W. M. Walker QC CSIS/78/1993
21.11.94

Evidence - computer print-out - whether requiring interpretation

The adjudication officer's decision under appeal stated that "As a result of the review decision dated 3 November 1992 an overpayment of income support has been made…". The claimant contended that it had not been shown that the review necessary as a precondition to the recovery of an overpayment had been carried out. Before the tribunal the presenting officer stated that the original review has been carried out on a computer and a letter of review forwarded to the claimant. However no copy of that letter was produced. The social security appeal tribunal (by a majority) decided that there had been a review. The claimant appealed to the Commissioner.

Held that:

a computer print out was not sufficient by itself to establish that the review required by section 71(5) of the Social Security Administration Act 1991 has been carried out. Verbal evidence to interpret the print out, or a copy of the letter informing the claimant of the decision, if it contained the relevant material, might suffice (paras. 10, 11 and 12);

while it might have been open to the tribunal to consider the question of review as a matter first arising in the course of the appeal under section 36 of the Administration Act 1992, it was not appropriate for this to be conducted at Commissioner level. In the circumstances the Commissioner declined to remit the matter back to the tribunal and allowed the claimant's appeal (paras. 14 and 15).

DECISION OF THE SOCIAL SECURITY COMMISSIONER

I hold the appeal tribunal decision dated 17 June 1993 to be erroneous in point of law. Accordingly I set it aside. In exercise of the power conferred by section 23(7)(a)(i) of the Social Security Administration Act 1992 I give the decision which I consider that the tribunal should have given.

That decision is to allow the appeal from a decision by an adjudication officer issued 23 December 1992 determining that there had been an overpayment of income support to the claimant in respect of the period 31 August to 2 November 1992 amounting to £561.37 which amount was declared to be recoverable. That adjudication officer's decision accordingly ceases to be of any force or effect.

The adjudication officer's decision in question opened with these words:

"As a result of the review decision dated 3 November 1992 an overpayment of income support has been made ..."

It bore to be made under and in terms of section 71 of the 1992 Acts. That is to say that it was a recovery decision, based in this case upon a failure to disclose, and so, in terms of subsection (5)(a), it was a precondition that the determination which had awarded, and in pursuance of which had been paid, the income support in question had been revised on a review, there having been no question of it having been reversed or varied on appeal. The terms of the decision quoted above are from the form AT2, the submission by the adjudication officer to the tribunal. The AT2 also appeared to record that there had been a particular and dated review decision which satisfied the condition precedent. In the summary of facts it was said that:

"On 3 November 1992 the adjudication officer decided (the claimant) was not entitled to income support from 31August 1992."

Nothing more was said or exhibited on the question of any review to the tribunal. For completeness I should note that at document 10 of the bundle there appears a form A6 dated 3 November 1992 recording an interview with the claimant consequent upon an award of family credit to her. At that interview it appears that she stated that she had been employed and there was a response that there would be an overpayment of benefit. There is no specific record thereon, however, of a review then, or subsequently, having been carried out. It thus was just the overpayment decision which was appealed to the tribunal and that only in respect of amount.

The majority decision of the tribunal was to allow the appeal so far as the amount was concerned. The minority view was:

"... that there was a lack of evidence before the tribunal to show the procedure followed by the Department."

The majority decision was explained as being:

"... because of other benefits to which would have been entitled leaving a balance due unpayable ..."

It is convenient at this point to record that it was common ground in the written submissions that the tribunal had exceeded its powers by abating the overpayment. The reason for that is that as found as a fact by the tribunal, the Secretary of State had power to abate the sum overpaid. They failed to take account of the law that it is only the Secretary of State who has such power. On that basis the tribunal decision would have had to be set aside in any event.

The claimant sought leave to appeal to the Commissioner upon the ground of an absence of any prior review as required by section 71(5) of the Act. The chairman refused leave. When granting leave I sought to focus an issue by a direction that the adjudication officer should in his submission consider whether there had been compliance with what had been required by paragraph 4 of R(SB) 7/91, namely and in particular:

"If review proceedings are available ... it is essential for a review and revisal decision to be taken by an adjudication officer"

and:

"If a review decision was made by a local adjudication officer then the appropriate document ought to be produced."

It was upon that issue that the matter came before me for oral hearing.

At the oral hearing the claimant was represented by Miss Jane Smith and Miss Jane Heppenstall, Welfare Rights Officers with Lothian Regional Council. The adjudication officer was represented by Mr. William Neilson, Advocate, of the Office of the Solicitor in Scotland to the Department of Social Security. I am grateful to all three for their assistance.

The case for the claimant was that when challenged the Department had to prove that there had been the necessary prior review of the awarding decision. But that challenge only emerged at the tribunal hearing itself. Nonetheless it is clear that there was such a challenge. The chairman's note of evidence records a call on behalf of the claimant for production of "the relevant LT54 form". That is a form which normally records on one side the request being put to an adjudication officer by the Department or by the Secretary of State for a review and on the other side the terms of the adjudication officer's decision and it may be, of any consequential revisal. It is clear further from the chairman's note of evidence that no relevant LT54 form could be produced. The tribunal made no express finding of fact one way or the other and in box 2 of their record of proceedings, form AT3, they said that they:

"... accepted that in order for a demand for overpayment to be made, the appropriate review required to be made by the Department."

It may be semantic, but the review required to be made by an adjudication officer independently of the Department. Nonetheless such a review would normally be initiated by the Department. In their reasons for decision the tribunal majority recorded that the amount in question was:

"... recoverable because the appropriate review had been made by the Department and the letter of review forwarded to [the claimant] in the usual way."

The reason for dissent has already been recorded. The majority were persuaded that there had been a review but the minority was not so persuaded. It may be technical to note the absence of any appropriate finding of fact in terms and in the correct place.

The evidence about a review was from the presenting adjudication officer who said that:

"... the original review had been carried out by the adjudication officer on a computer and the letter of review forwarded to [the claimant] but that no copy of that letter of review was retained by the Department."

It is not clear to me whether the presenting adjudication officer was speaking from her own knowledge of the review as having been so carried out and from her own knowledge that the letter of review had been sent. At all events no copy letter, or even style letter, was put before the tribunal. I feel it to be inherently unlikely that a presenting adjudication officer would be the adjudication officer with personal knowledge of the review, which would mean that she had in effect been the reviewing adjudication officer, or that she would have any personal knowledge as to whether an appropriate letter had been sent to the claimant. I am confirmed in the conclusion by documents now lodged which indicate the identity of the adjudication officers concerned and they do not include the then presenting officer (p. 114 and 92 to 98 of the bundle inclusive). I thus conclude that there was inadequate evidence before the tribunal to warrant their finding about review.

Until the hearing before me, the adjudication officer's position was that the documents just referred to demonstrated that there had been an appropriate review on 3 November 1992, see paragraph 6 of the adjudication officer's submission dated 18 January 1994 at page 91 of the bundle at (a), and 92 to 94 inclusive of the bundle. As I had to say in CSIS/13/1994, dealing with a similar situation, it may be that the last documents, part of computer print-out, so demonstrate but for this Commissioner, and probably for most lay people, there would have to be some evidence to interpret what is set out on them. It was submitted that three other documents, 95 to 97 of the bundle, demonstrated that on 9 November 1992 a revised decision had been made to the effect that there was no entitlement to benefit in the claimant because of remunerative work. Finally it was submitted that document 98 showed that an appropriate letter had been issued on 9 November 1992 and a blank style thereof was submitted as document 99. These documents, to demonstrate the problem, have been reproduced as an appendix to this decision. I accept the adjudication officer's submission to the extent only that these documents may show that there has been a review as required by said section 71(5) but I am satisfied that of themselves they do not so prove. Thus, at the least, it would be necessary in addition that the adjudication officers concerned be identified, as they now have been in response to a direction from a nominated officer. It may be, as Mr. Neilson submitted, that by carrying the claimant's national insurance number the documents can be demonstrated to relate to her. Nonetheless, in order to be able to demonstrate in law an actual review and that of this benefit and of course any consequential revisal, more was in any case, required. These documents were not before the tribunal.

Miss Heppenstall pulled the matter into some focus when she pointed out that the computer could not itself adjudicate. It could record either that there had been an adjudication or, and perhaps and, the consequences of that adjudication. It was still necessary for some human thought to determine what were the relevant facts and apply to them the relevant law. That could not be done by the computer. If, then, the computer was simply recording these matters then it should be capable of producing as output an intelligible review decision. I hold the documentation by itself not to be intelligible.

It is next necessary to consider further the law. Regulation 20(1) as modified by 63(1) of the Social Security (Adjudication) Regulations 1986 requires that any decision of an adjudication officer be notified to a claimant together with intimation of the right to request a statement of the reasons for the decision and of the right of appeal to an appeal tribunal. I am not entirely sure that document 99, even if such a one had been completed and sent to the claimant, fully complies therewith. It is clear that the issuance and receipt of a written intimation of the review was an issue of fact before the tribunal. For the reasons already given, and since the tribunal do not appear to have sought to investigate the matter with the claimant herself, I have to say that I am not satisfied that the tribunal have adequately explained why the majority concluded that a notice had been sent and I note that in any event neither the terms nor even the putative terms of it, have been recorded. These I hold to have been further errors of law on the part of the tribunal

Miss Smith started with the recent decision CSIS/13/1994, in which I remitted to another tribunal a question of "computer review" for further consideration (there were other points involved in that case). Miss Smith then referred to R(SB) 7/91 at paragraph 4 and the passage quoted in my direction, pointing out that if the computer print outs were not the appropriate documents then the decision before the appeal tribunal necessarily had no force or effect. In light of what was said in decision CSSB/316/1989 at page 63 of the bundles, those documents, being by themselves not intelligible for the purpose, equally with the reference and the "payment panel" concerned in that case, could not establish a review or even grounds for a review. The Commissioner's conclusion:

"... that [the] documents are wholly inept to establish an adjudication officer's decision of any validity for the purposes of section 53 of the Social Security Act 1984"

should be applied to this case. (that section 53 is now consolidated in section 71 of the 1992 Act). I was also referred to what I said in the common appendix to CSSB/297/1989 and others, document 28 of the bundle, at the end of paragraph 18:

"Perhaps the most important point about the adjudication officer's decision [on a review and/or revisal] is that if it is not a judgment, it is certainly the legal basis from which the claimant, or, as it may be, the Secretary of State, derives rights. I consider therefore that it must be drawn with appropriate care, cf. paragraph 19 of R(I) 3/87."

Miss Smith's submission was that it was not enough merely to demonstrate, as might be done, I suppose, by the print out and verbal evidence, that there had been some sort of a review but the actual terms of it had to be made available and to have been shown to the claimant in order to comply with what was required by paragraph 4 of R(SB) 7/91. That is so in order to show that the particular review was a proper foundation for the particular revisal.

Mr. Neilson observed that until he had considered CSIS/13/1994 he had been for supporting the adjudication officer's written submissions to the effect that the computer print out established the necessary review. But he felt obliged to accept, in light of that decision, that the computer print out by itself required some interpretation. Thus even if the print out had been before an appeal tribunal something further would have been required in the nature of either what had been intimated to the claimant, which did not appear now to be available, or evidence as to the extent to which the computer was an aid or memory bank for the decision rather than its source and so by interpretation, in the strictest sense, it could be made clear to the tribunal how had come about what the computer print out recorded as the decision. He accepted that the responsibility for the decision could not be delegated to a computer. He did not say, and I was not aware that he was indicating, that positively there would be specified and as required evidence in regard to particular decision. I understood his final position to be that the case should go back to a tribunal to give the Department an opportunity to produce the appropriate verbal evidence. But I understood that to be more of a spes than a positive affirmation about the evidence to be brought. He said that someone "could speak" to these matters and "there will be people who can speak" to them.

Whilst I accept that the question of a review might have been open to the tribunal to consider as a matter which first arose in the course of the appeal before them for the purposes of section 36(1) of the Social Security Administration Act 1992, (formerly section 102(1) of the Social Security Act 1975) at least upon a liberal construction of that provision (R(I) 4/75), I am not persuaded pace CSB/1272/1989, that the actual review as a condition precedent to the revisal is something that can be conducted at this level. An appeal to a tribunal puts the matter as open as it was formerly before the adjudication officer. At the level of the Commissioner it is necessary only to consider whether a tribunal decision is in error of law and if so then the Commissioner's active powers are limited by section 23(7) of the 1992 Act either to give the decision which the tribunal should have given, without fresh or further findings of facts, or, if expedient and in light of such further findings, then to give such decision as is considered appropriate. Otherwise the case must be referred back to the tribunal. I do not consider that that provision allows me to conduct a review on a matter so disparate from the subject of the appeal. The Commissioner in CIS/312/1992 reached a similar view. Like him, and for the reasons stated, I regard this tribunal decision not only as in error of law but also the adjudication officer's decision as not to have been established as valid. The onus on validity is of necessity on the adjudication officer and the Department. The only question that remains is as to whether I should, as it were, let them have a further opportunity to establish the necessary and preliminary review.

I suspect that the amount of money involved has been substantially dwarfed by the costs of the proceedings thus far. To remit the matter to the tribunal, or indeed to the adjudication officer, would incur further public money as well as time (CSB/1272/1989). I agree with that decision as to the probable purpose of the prior review as expressed in paragraph 10. Where I differ, apart from the matters of expense and delay, is with paragraph 11. I accept that the question whether there had been a review was one that first arose in the course of the appeal. But in the absence of a simple demonstration that there had been such a review any question of conducting the review itself involved something greater than a "new question" in my judgement. The consequences of invalidity, given in R(SB) 7/91, had been known for some three years by the time this tribunal sat. If in their computerisation the Department failed to make provision for the availability of decisions in an acceptable and evidential form that must rebound to their loss rather than that of the claimant. For all these reasons I have decided that the proper decision on the case is that set out in paragraph 2 above. The only beneficial result would be if in future cases the Department were to become able to provide a clear text of the relevant review decisions. Only that text can show whether the purpose of a review, set out in paragraph 10 of CSB/1272/1989, has been carried out, that it itself was valid in respect of the ground upon which it had been based by the adjudication officer then concerned within what is now section 25 of the 1992 Act, and was section 104 of the 1975 Act, and that the facts therein set out have both been properly related to that ground in law and been not exceeded by the terms of the overpayment decision.

Date: 21 November 1994 (signed) Mr. W. M. Walker QC
Commissioner