UK Social Security and Child Support Commissioners' Decisions

[2003] UKSSCSC CSIS_460_2002 (18 February 2003)

 


DECISION OF SOCIAL SECURITY COMMISSIONER

1. The decision of the appeal tribunal sitting in Glasgow on 28 January 2002 (the tribunal) is in error of law. Accordingly I set it aside and remit the case for rehearing by a differently constituted tribunal.

The issues

2. These primarily concern the application of section 22(4) of the Human Rights Act 1998 (the 1998 Act) to an appeal from a review and overpayment decision insofar as this concerned events before 2 October 2000, whether there was any violation of Article 6 of the European Convention on Human Rights (Article 6) and, if yes, was the tribunal empowered to provide a remedy which rendered nugatory any recoverable overpayment.

The Statutory Provisions

3. So far as relevant, the applicable statutory provisions are these:-

The Human Rights Act 1998

"3.– (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(2) This section –

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; …..

…….

"6 – (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if –

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes –

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature…..

……

7. – (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

……..

(6) In subsection (1)(b) "legal proceedings" includes –

(a) proceedings brought by or at the instigation of a public authority;

and

(b) an appeal against the decision of a court or tribunal.

……..

8. – (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

…..

(6) In this section "court" includes a tribunal;

……

"unlawful" means unlawful under section 6(1).

……

22. –

…..

(2) Sections 18, 20 and 21 (5) and this section come into force on the passing of this Act.

(3) The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes.

(4) Paragraph (b) of subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section."

Schedule 1 Part 1 to the Human Rights Act 1998

"Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial …….

…….."

Social Security Administration Act 1992 (the Administration Act)

"71 – (1) Where it is determined that, whether fraudulently or otherwise, any person has misrepresented, or failed to disclose, any material fact and in consequence of the misrepresentation or failure –

(a) a payment has been made in respect of a benefit to which this section applies; or

(b) any sum recoverable by or on behalf of the Secretary of State in connection with any such payment has not been recovered,

the Secretary of State shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose.

……

(3) An amount recoverable under subsection (1) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it.

……

(5A) Except where regulations otherwise provide, an amount shall not be recoverable under subsection (1) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or [has been revised under section 9 or superseded under section 10 of the Social Security Act 1998].

……."

Background

The decision under appeal to the tribunal (the adverse decision) was a composite decision of an adjudication officer (AO) dated 21 September 1998. This first reviewed decisions from 23 December 1993 to 13 November 1997 which had awarded the respondent Income Support (IS). The ground for review was ignorance of the material fact that the respondent's partner had an occupational pension and the revised decision was that for a lengthy period, there was therefore no entitlement to IS. As a result, an overpayment of IS had been made amounting to £9,012.57. The adverse decision further determined that this amount was recoverable because of the respondent's misrepresentation.

There have been no less than eight tribunal hearings and numerous supplementary submissions from both parties throughout the tribunal process. A tribunal on 1 March 2000 (tribunal 2) adjourned in accordance with the following directions:-

"The Secretary of State is given 28 days from now to produce the clarification of the matters below. The clerk is to begin re-listing for the hearing at the first opportunity after 28 days whether or not the clarification is produced."

This particular adjournment was ordered because of insufficient details about some of the decisions between 23 December 1993 and 13 November 1997 which required specific review and revisal, including what was paid under those decisions and what ought to have been paid, and for certification that such decisions were made by an AO. The next hearing was then listed for 14 June 2000.

On 8 June 2000 the Secretary of State put in a written request for postponement of that hearing, saying that the required information had only recently been obtained. On 12 June 2000 a legally qualified panel member, in this case a District Chairman (the DC), granted the postponement and directed that the rehearing should be relisted within six weeks. The respondent and her representative attended on 14 June 2000, until then unaware of the postponement.

At subsequent hearings the respondents's representative, Mr Orr, has argued that the postponement was a "breach of the right to a fair hearing" under Article 6, incorporated into Schedule 1 of the 1998 Act. That Act was passed on November 9 1998.

Decision of the tribunal

The tribunal allowed the appeal. It determined that the adverse decision was revised so that the recoverable overpayment is nil.

A commendably detailed statement of reasons for its decision was provided by the single member of the tribunal. That this statement starts at page 314 of the bundle (and page 123 ran from 123(1) to 123(133)) indicates the volume of material which had by now accrued. The critical part of the reasoning is in paragraphs 6-9 of the tribunal's statement:-

" 6. Did the Human Rights Act 1998 apply to the postponement decision of 12 June 2000?

This was the essential prerequisite for Mr Orr's submissions to succeed. Mr Orr conceded in the light of various decisions by the Commissioners and the courts that the Human Rights Act 1998 in general had no retrospective effect. Thus as the Act largely came into force on 2 October 2000, it could only apply to a decision taken on 19 (sic) June 2000 if that decision was covered by Section 22(4) which gives a limited retrospective effect to the Act in certain circumstances. Essentially these are that someone who alleges an infringement of a Convention right can rely on that right in legal proceedings "brought by or at the instigation of a public authority" whenever the infringement took place. Thus the appellant can only rely on the postponement of 12 June 2000 being an infringement of her Article 6 rights if the present proceedings were "brought by or at the instigation of a public authority". Clearly if the present proceedings are defined as being brought by the appellant and starting with her letter of appeal, they are not covered by Section 22(4). I take a broader view. I consider that in the case of an appeal relating to an overpayment of benefit, "the proceedings" commence with the taking of the decision by the Secretary of State (formerly by an adjudication officer) that there is a recoverable overpayment. In my view, such proceedings are therefore covered by Section 22(4). I hold that on general principle, it is appropriate to take a wide interpretation of the Human Rights Act given the whole context of that legislation. I further hold that the word "proceedings" can be widely defined as including more than merely proceedings before a court of (sic) a tribunal and can include earlier legal steps, particularly if they are taken by a public authority. That view is supported, in my opinion by the terms of Section 7(1) read as a whole, bearing in mind that Section 22(4) applies Section 7(1)(b) in cases which it affects. Those terms, to my mind, distinguish "any legal proceedings" and "proceedings…. in the appropriate court or tribunal". The former, appearing in Section 7(1)(b) I consider to be wider in its meaning and application than the latter, which appears in Section 7(1)(a). I also take the view that the interpretation which I have adopted is at least not excluded and indeed may well be supported by the precise terms used in Section 7(6). Thus, although proceedings before the Social Security Appeal Tribunal, and later the Appeal Tribunal, were instigated by the appellant, these, in a case like the present were part of a broader process of "legal proceedings" against the appellant which were instigated by the Secretary of State. Thus, by virtue of Section 22(4) of the Human Rights Act 1998, the appellant in the present case can rely on Section 7(1)(b) of that Act in respect of the postponement of 12 June 2000 although the Human Rights Act in general did not come into force until 2 October 2000.

7. Was the postponement of 12 June 2000 an infringement of Article 6 of the European Convention on Human Rights?

After due consideration, I am persuaded that it was. Article 6 of the European convention on Human rights guarantees inter alia, an independent and impartial tribunal for the determination of Civil Rights and Obligations. I am in no doubt that determination of liability for an overpayment of Income Support is well within the kind of matters contemplated by Article 6. In applying Article 6, as is the case with all Articles of the ECHR, I am required by Section 2 of the Human Rights Act 1998 to take into account the so called jurisprudence (case law) of the European Court of Human Rights. That case law establishes that Article 6 includes the principle of "Equality of Arms". That principle demands that each party to a dispute must be afforded a reasonable opportunity to present his evidence under conditions that do not place him at a substantial disadvantage vis a vis his opponent. It therefore follows, in my view, that "Equality of Arms" is also infringed if one party is given a substantial advantage over the other in the presentation of his evidence. I hold that the postponement of 12 June 2000 gave such an advantage to the Secretary of State for the following reasons. The Secretary of State bore the onus of proof. He had been given two opportunities by means of two separate adjournments to obtain evidence which the tribunal's (sic) involved considered to be at least very important. Indeed, probably without production of that evidence, the Secretary of State would necessarily lose the case. The latter of the two adjournments as already emphasised in this decision was strongly worded and in my view, deliberately crafted in peremptory terms. By seeking and gaining the postponement in question, the terms of that adjournment decision were effectively undermined and circumvented. I stress that that took place without notice being given to the appellant as a result of the procedures followed in the Appeals Service and thus again in consequence of these procedures, there was no opportunity given to the appellant for her to comment on the postponement request. The postponement itself was thus granted without such comment being before the District Chairman in question. Further, the documentary evidence which was sought by the tribunal which adjourned was evidence (computerised records of decisions) which was all along, solely in the possession of the Department and never in the possession of any other party. Indeed, a careful scrutiny of the documents involved indicates that they were run off the Departmental computer as long ago as 23 January 1998 and certainly therefore not just in the period between the adjournment of 1 March 2000 and the postponement of 12 June 2000. Finally, and this in my view is crucially important, a decision by the District Chairman to refuse the postponement request would not have been altogether fatal to the Department's case. If the postponement had been refused, the hearing of 14 June 2000 would then have taken place. (Indeed the appellant's representative attended the AS venue on that date, being unaware in fact that the postponement had ever been granted or indeed sought.) At that hearing, there would have been a full discussion with equal participation from both sides, the appellant and the Department, on whether an adjournment to give the Department a further opportunity to obtain the documentary evidence sought, was expedient. A judicial decision would then have been taken by the tribunal sitting on 14 June 2000 in the light of the submissions made by both parties. Given the history of this present case, such a proceeding would clearly have respected and protected the appellant's Article 6 rights without, on the other hand, in any way involving any unfairness to the Department. However, such a proceeding never took place because the hearing of 14 June 2000 was postponed. Looking at matters in the round, therefore the postponement of 12 June 200 (sic) did not afford the appellant the Equality of Arms guaranteed by Article 6. That postponement thus infringed the appellant's Convention Rights.

8. What should the remedy be for the breach of Article 6?

My powers in this regard are contained in Section 8(1) read along with Section 8(6) of the Human Rights Act 1998. Under that provision I can make such order, within my powers, as I consider just and appropriate. I take the view in this case that the best course, having already decided that there was a breach of Convention rights in the postponement of 12 June 2000, is to allow the appeal and reduce the overpayment recoverable on the basis of the adjudication offer's decision of 21 September 1998 to nil. The proceedings, subsequent to the infringement of the appellant's rights, looked at as a whole, especially from the perspective on (sic) an outside observer, cannot, in my view, be said to be fair. They have been tainted by the infringement of Article 6 rights. Especially given that the Secretary of State bears the onus of proof and on the other hand given that the present disposal of the appeal does not preclude him from commencing fresh proceedings to recover the overpayment, it is just and appropriate for me to remedy the breach of Article 6 by giving the decision which I have made in this case. Mr Orr made two alternative suggestions as to the technicalities of remedies in this case. There are obstacles to the granting of both of them which do not apply to the actual decision which I have reached. Firstly, I am not persuaded that I have any power, whether under the relevant statutory provisions or on some inherent basis, to grant a permanent stay to the proceedings or the Scottish equivalent thereof. Secondly, to exclude the evidence produced subsequent to the decision of 12 June 2000 from probation is to effectively hold that evidence to be inadmissible. Such an approach is, at the very least, hard to reconcile with the comments of Commissioner Jacobs in CDLA/2037/2000, paragraphs 20 to 24. For these reasons, therefore, as well as the positive reasons outlined in this paragraph, I have chosen to grant the remedy which I have in the present case.

9. Summary

The appeal is allowed for the reasons given in detail in this decision and particularly in paragraph 8 above. The appellant is warned that I have taken no decision on the facts or on the substantive merits of her case. Thus, the Secretary of State can commence new proceedings against her in respect of the overpayment in question if he so chooses by making a fresh decision, obviously subject to further appeal rights on that matter."

Appeal to the Commissioner

The Secretary of State appeals with the leave of the legally qualified panel member who constituted the tribunal. There are extensive written submissions from both parties. There was then lengthy oral argument when the case came before me for hearing on 29 January 2003. As already noted, the respondent is represented by Mr Chris Orr, Welfare Rights Officer of the Glasgow City Council, Social Work Services. The Secretary of State was represented by Mr Bartos, Advocate, instructed by Mrs Anderson, Solicitor, of the Office of the Solicitor to the Advocate General. Each lodged various productions.

I am grateful to both representatives for their helpful submissions. So far as their arguments are pertinent to the points which I require to address, I shall refer to them then.

My conclusion and reasons

I accept the overall submission made by Mr Bartos that the tribunal erred in law in several respects.

Retrospectivity of the Human Rights Act 1998

Mr Bartos referred first to the whole terms of section 7(1). They relate back to section 6(1) where it is clear that the focus of the 1998 Act is not on the breach of the rights of individuals but on the duty of public authorities to act compatibly with a Convention right.

Under section 22, only certain sections came into force 9 November 1998. The major part of the 1998 Act, including section 7(1)(b), came into force on October 2, 2000. The clear intention of section 22 is that the Act is prospective rather than retrospective. The single exception is under section 22(4) which gives limited retrospectivity to section 7(1)(b).

Section 7(1)(b) and section 22(4) have to be read together and taking account of the fact that section 7 came into force on 2 October 2000. When so read, their meaning is this:-

"A person who claims that a public authority has acted [before 2^nd October 2000]… in a way which is made unlawful by section 6(1) may

….

…(b) rely on the Convention right or rights concerned in any legal proceedings, [brought by or at the instigation of a public authority]

but only if he is….a victim of the unlawful act."

Mr Bartos argues that "legal proceedings" encompasses only judicial or quasi-judicial acts where there is an issue in dispute between at least two parties. Therefore, when the Secretary of State reviews a prior award and makes a subsequent overpayment decision, such a process is not within the term "legal proceedings". In Jones v Department of Employment [1988] 1 All ER 725, the Court of Appeal held that an AO was acting administratively rather than judicially when making a decision on a claim for benefit. This was followed by Mr Commissioner Jacobs in CDLA/3908/2001 who rejected the argument that a termination of the claimant's award effected by the Secretary of State on his own initiative was a legal proceeding such that section 22(4) applied. The Commissioner held (see paragraph 29.1 of his decision) that:-

"The word 'proceedings' carries connotations of legal proceedings in courts and tribunals. It is not apt to describe the action of a decision-maker, which is administrative."

As the decision of an AO (now treated as that of the Secretary of State) is an administrative rather than a judicial decision, there are not yet legal proceedings within section 7(1)(b). Section 22(4) therefore cannot assist the claimant in this case as there are no legal proceedings "brought by or at the instigation of a public authority". The proceedings before a tribunal are legal proceedings but these were initiated by the claimant's appeal. Mr Bartos submits that the tribunal erred in its construction of the statutory language by holding:

"….that the word 'proceedings' can be widely defined as including more than merely proceedings before a court [or] a tribunal and can include earlier legal steps, particularly if they are taken by a public authority."

In response, Mr Orr supports the tribunal's equation of "legal proceedings" with "proceedings". Section 7(6) widens the definition of "legal proceedings" to "proceedings" by replicating the phrase in section 22(4):-

"proceedings brought by or at the instigation of a public authority".

Jones v Department of Employment must now be interpreted in the light of the 1998 Act so that determinations by an AO (now Secretary of State) on benefit claims constitute both "proceedings" and "legal proceedings".

Moreover, meaning has to be given to the words "at the instigation of" (used in both section 7(6) and section 22(4)(a)). Even if legal proceedings do not begin before the claimant appeals, so that such proceedings are brought by the claimant rather than by the Secretary of State (and there is no dispute that the Secretary of State is a "public authority"), the claimant's appeal is "at the instigation of the Secretary of State". It was provoked by the action of the Secretary of State in reviewing benefit and determining a recoverable overpayment.

Mr Orr further argued that the application for a postponement by the Secretary of State fell within the phrase "proceedings brought by or at the instigation of a public authority", even if "proceedings" was confined to "legal proceedings" in the sense of a judicial process before the tribunal. It was a distinct step within such a process

I accept the submissions of Mr Bartos in preference to those of Mr Orr. "Proceedings" in section 22(4) are necessarily the same concept as "legal proceedings" in section 7(1)(b). This is because Section 22(4) applies to situations which are a subset of those within section 7(1)(b). Section 7(6) is neither a deeming section nor an exhaustive definition section. It merely makes clear that the two situations with which it deals fall within the words "legal proceedings". But it does not enlarge the scope of the term "legal proceedings" in section 7(1)(b) so as to include proceedings which would not otherwise be considered "legal proceedings".

I regard as a correct proposition of law that given by Mr Commissioner Howell QC at paragraph 17 of CDLA/1338/02:-

"17. The starting point in my judgment is that an appeal to an appeal tribunal constituted under the Social Security Act 1998 is, in common with an appeal to a social security or disability appeal tribunal under the Social Security Administration Act 1992 which the 1998 Act machinery replaced, a civil legal proceeding in the United Kingdom arising out of the administrative act or decision of an officer acting in the name of or on the behalf of the Secretary of State. The appeal is a complete reconsideration and redetermination of all relevant factual and legal issues arising on the claim or question which gave rise to it. It is the first of the various processes under the Act to amount to a "legal proceeding", since although the Secretary of State's officers are of course required to make their decisions in accordance with the law and in the vast majority of cases do so with a care and objectivity to which the Commissioners have many times paid tribute, those decisions remain administrative: they are not themselves legal proceedings in the same sense as those before a court or tribunal. It follows that in considering the application of the Human Rights Act 1998 to legal proceedings taking place after it comes into force by way of an appeal to a tribunal under the Social Security Act 1998, their "instigator" is always the individual claimant or other person entitled to appeal under section 12, who starts the process when he lodges his notice of appeal: never the Secretary of State, who cannot appeal to the tribunal against his own decision."

Nor do I agree that the words "at the instigation of" apply to any determination by the Secretary of State with respect to the claimant's benefit which leads the claimant to appeal to a tribunal. The definition of "instigate" in the Oxford Compact English Dictionary is "to bring about by incitement or persuasion" or "to urge on". I accept that the word could encompass "to provoke" but it always involves positive action by the instigator to bring about a desired situation. It does not apply where what is done by the Secretary of State is, without any desire on the Secretary of State's part, a trigger for the claimant to take action. The grammatical construction of section 22(4) reinforces this. The subsection is restricted to proceedings which are directly launched by a public authority or by its active intervention to bring about that end through another party.

Nor do I consider that any interlocutory step initiated by the Secretary of State has the drastic effect of triggering the application of section 22(4). The usual presumption is that statutes are not intended to be retrospective. This is supported by the whole terms of section 22, which give limited retrospectivity only under subsection 4. The purpose of that subsection is patently to allow someone to rely on an act by a public authority which is made unlawful by section 6(1), even though such act occurred before October 2 2000, as a defence if a public authority starts proceedings. It would be purely arbitrary if section 22(4) benefited a non-public authority who began a discrete judicial process to determine an issue in dispute between the parties and, in the course of that process, the respondent public authority took an interlocutory step, but the same could not apply where no such interlocutory step was taken. I am unable therefore to read "proceedings brought by or at the instigation of a public authority" in section 22(4) as covering interlocutory applications by a public authority.

It follows that the 1998 Act had no immediate application to any pre-commencement acts by a public authority in this case. In particular, therefore, the tribunal erred in holding that the 1998 Act applied retrospectively to the postponement decision of 12 June 2000. Whether scrutiny of that postponement is relevant to a question arising under section 6(1) about the lawful or unlawful nature of a post-commencement act of a public authority is a wholly different issue.

Incompatibility with the European Convention on Human Rights

The tribunal expressly held that the postponement of 12 June 2000 by a DC was an infringement of Article 6. Mr Orr argued that any or all of three matters constituted the required unlawful incompatibility by a public authority with a Convention right. Firstly, the Secretary of State had applied for a postponement in breach of the peremptory terms of the adjournment decision of tribunal 2 and had done so dishonestly, because he knew that the required information was already available. Secondly, the Appeals Service acted unlawfully by failing to alert the claimant to the postponement request and giving her an opportunity to comment. (It was accepted that this was not required by the express terms of regulation 51 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 which only require the clerk to notify a party who has requested a postponement of the hearing that such request has been refused). Thirdly, the grant by the DC of the postponement request in those circumstances was rightly held by the tribunal to be a breach of Article 6.

Mr Orr submitted that the fair hearing required by Article 6 impliedly includes the principle of "equality of arms". The tribunal was correct that the postponement of 12 June 2000 did not afford this to the respondent. The onus of proof lay on the Secretary of State yet the Secretary of State had been given a substantial advantage in the presentation of his case. The respondent lost the opportunity to put her case on the day when it had been set down for hearing and the Secretary of State was permitted to choose a time more advantageous to himself and less so to the claimant. Mr Orr cited CDLA/5413/99, a decision of Mr Commissioner Williams issued before 2 October 2000, in which he expressed the view that "equality of arms" requires a "fair balance" between the parties.

Mr Bartos relied on the written submission of the Secretary of State. Firstly, it is argued that an interlocutory decision of this kind is not a "hearing" for the purposes of Article 6. Secondly, he contends that enabling the production by one party of documents relevant to the issue before the tribunal which might lead to a decision unfavourable to the other party, did not make the hearing unfair.

I consider the appellant's submissions are correct. It was not suggested that a DC does not come within section 6(3)(b). However an interlocutory decision is not a "determination of [the respondent's] civil rights and obligations" which then automatically applies the panoply of entitlements given by Article 6 to the interlocutory step. It is the tribunal hearing in issue which fell within Article 6. One must look at the proceedings of that tribunal in the context of the process overall, including the postponement, in order to decide whether or not there had been a fair hearing.

If the whole process leading up to the tribunal's determination on 28 January 2002 might lead to an unfair hearing of the issues, then the tribunal had to do what it could do to rectify that. By the time of the tribunal hearing sections 6 and 7 of the 1998 Act applied. Therefore the tribunal was required to refrain from acting in a way which was incompatible with a Convention right. This meant paying regard to the entire situation and, within its powers, ensuring it remedied any previous deficiencies so that the parties ultimately each received a fair hearing of all relevant issues.

However, nothing in the prior events leading up to the tribunal hearing, nor anything at that hearing, denied the respondent a fair opportunity to put her full case. I reject the suggestion that the postponement request was dishonestly made. The writer of the letter may not have known that details of the decisions had been run off the computer at a much earlier date. But there was also the requirement for certification as decisions by AOs, and the preparation of a supplementary submission in the light of the payment information they gave. The Strasbourg Convention gives each party a broadly equal opportunity to present their case in circumstances which do not place one of them at a substantial disadvantage with respect to the other. This was the basis of the Commissioner's concern in CDLA/5414/1991. He considered that the statutory provisions, that notice required to be given or sent by the Department if sent by post is deemed to be given on the day of posting but such notice from a claimant is only treated as given when it reaches the Department, may well infringe that principle.

What is crucial is that each party is ensured the same or similar chance to put their case properly and adequately before the tribunal. No one party must be limited in this respect in a way in which the other party is not so limited. Nothing remotely like that occurred here. Tribunal 2 directed that the case be relisted after twenty-eight days if the Secretary of State had not produced certain information. The Appeal Service did so list. But tribunal 2 could not pre-empt the subsequent judicial process nor did it purport to do so. If circumstances arose rendering a later postponement or adjournment possibly appropriate, that was a matter judicially to be considered at that stage. The District Chairman did not limit the claimant's opportunity to take similar procedural steps. There has been no discriminatory obstacle raised to the presentation of the respondent's case.

The tribunal accordingly erred in law in finding there had been any act by any public authority unlawful because incompatible with the European Convention.

CIS/540/02

When this decision was in the process of being typed I received a further submission from Mr Orr based on CIS/540/02, a copy of which he enclosed. He submitted that what is said by Mr Commissioner Howell QC at paragraph 39 is relevant here:-

"…. what Article 6 obviously requires is a scrutiny of the entire system to see if fair, independent and impartial determination of that issue is provided at any stage."

Mr Orr argues that this broad view of what constitutes the required "fair hearing" must include consideration of interlocutory matters. I agree. But the view I had already formed, which is reflected above in this decision, accords with CIS/540/02. For that reason, and because of the delay already incurred in this case, I have not considered it necessary to obtain the comments of the Secretary of State before resolution of the appeal. The respondent has had this dispute hanging over her for more than 4 years.

I have already emphasised, in effect if not in terms, that the tribunal hearing had to be "Article 6-compliant", as it had the function of determining the respondent's civil obligations. I agree that:-

"…..it is the whole process and the way it actually works in the individual case that have to be judged for the purposes of Article 6" (see paragraph 37 of CIS/540/02).

However, on looking at the entire process, my conclusion is that the postponement in no way prevented the tribunal within Article 6 carrying out a fair hearing of the merits under section 71 of the Administration Act. If the postponement had such a result, there would have been "a failure of the system to comply with Article 6" (see paragraph 40 of CIS/540/02). But CIS/540/02) nevertheless supports my view that the requirements of Article 6 are not applicable to the postponement as a discrete proceeding.

The tribunal's remedy for the purported breach of Article 6

Mr Bartos submitted that the tribunal erred in holding that section 8(1) of the 1998 Act justified a reduction of the overpayment recoverable to nil.

Under transitional provisions, the decision of an AO falls to be treated as the decision of the Secretary of State under section 8(1) of the Social Security Act 1998 (the Social Security Act). The adverse decision was such a decision. Similarly, under the transitional provisions, an appeal to a Social Security Appeal Tribunal made before 29 November 1999 and not determined is to be treated as an appeal duly made to an appeal tribunal from the decision of the Secretary of State under section 8 of the Social Security Act. The right to appeal to an appeal tribunal is given by section 12 of the Social Security Act.

The tribunal on an appeal conducts a complete rehearing in fact and in law. It must apply the law correctly to the facts as found and to the extent that its jurisdiction and powers allow. The tribunal erred by not carrying out its proper function in this appeal. It expressly said, in effect, that it had not considered how section 71 of the Administration Act applied in the claimant's case. It went wrong by dereliction of its duty.

Mr Orr disagreed. Section 8(1) of the 1998 Act allows the tribunal (for under section 8(6) "'court' includes a tribunal") to give any suitable remedy. Tribunals often find that an overpayment in issue is not recoverable and so it must follow that this tribunal was not precluded from so doing.

Alternatively, the tribunal could have imposed a permanent stay. He cited Attorney General's Reference (No 2 of 2001), The Times, July 12 2002, in which the Court of Appeal (Criminal Division) held that a permanent stay was to be the exception rather than the rule where a defendant's right to have a criminal charge determined within a reasonable time was contravened. This nevertheless demonstrated that in appropriate circumstances a permanent stay was the right course of action where there had been unlawful action by a public authority in breach of the Convention. Nothing prohibited a tribunal from imposing such a permanent stay as a remedy.

I disagree. I consider that the tribunal erred in law in failing to determine the relevant issues under section 71 of the Administration Act. A tribunal does not act unlawfully if it is not possible to read and give effect to primary legislation in a way which is compatible with the Convention. This follows from section 6(2)(b) of the 1998 Act when read in conjunction with section 3(1) of the Act.

The tribunal was bound by all of the 1998 Act. But it was also obliged by primary legislation to determine an appeal on the issues arising under section 71 of the Administration Act. The phrases in section 71, "shall be entitled", "is in all cases recoverable" and "shall not be recoverable…unless", cannot be read in any other way than as requiring a tribunal to make the necessary determination whether or not an overpayment determination falls within the relevant statutory criteria as recoverable.

Section 8(1) of the Act does not extend a tribunal's powers. The Court of Appeal (Criminal Division) in Attorney General's Reference (No 2 of 2001) emphasised that the criminal courts in England and Wales always had the right to impose a permanent stay of an indictment in exceptional circumstances. The 1998 Act did not therefore enlarge the remedies available although it now was relevant in appropriate circumstances to the question whether a permanent stay was necessary to prevent an abuse of the process of the Court.

A tribunal has no power to impose a permanent stay of an appeal. There is no express statutory provision nor can one be implied by virtue of necessity. Mr Orr drew an analogy with an appeal abating. However that derives from a principle of the common law and is not a stay by a court or a tribunal. Where an appellant dies before the determination of the appeal, the appeal is not terminated by that fact. However, unless and until there is an appointment of someone to proceed with the appeal or there is a personal representative, then no-one is legally competent to take the appeal forward. In such circumstances, the appeal is considered as automatically "abated", by which is meant suspended. It can nevertheless be revived by the appropriate procedure. Any statement by a tribunal or a Commissioner that an appeal has been abated is thus for clarification only. Abatement is therefore very different from the power to grant a permanent stay. Such a concept could in any event give no advantage to the respondent as it would leave outstanding the adverse decision. The Secretary of State is not legally obliged to continue the customary suspension of recovery procedures and would have no reason to do so if the appeal is permanently stayed.

Finality of decisions

The tribunal also went wrong in its rather extraordinary belief that it could provide an appropriate remedy for the respondent by reducing the recoverable overpayment to nil, yet the Secretary of State could make a fresh overpayment decision.

Under section 17(1) of the Social Security Act, decisions are final subject to further appeal or to revision or supersession. But the Secretary of State only has power to alter a tribunal decision for ignorance or mistake of fact or because of a relevant change in circumstances. There is no power to alter a tribunal decision on the basis of error of law, except by further appeal.

Summary

The appeal is therefore remitted to a new tribunal to begin again. This is necessary because Mr Orr assures me that he has an argument to run on the merits under section 71 of the Administration Act. It is emphasised that there will be a complete rehearing on the basis of the evidence and argument available to the new tribunal. The determination of the respondent's case is entirely for them. Although the Secretary of State has been successful in this appeal limited to issues of law, a decision on the facts of the respondent's case with respect to the adverse decision under appeal to a tribunal remains open.

The Secretary of State is directed to clarify some discrepancies for the benefit of the new tribunal. At page 123 (107 and following) details are given of the amounts of IS paid to the claimant throughout the period which do not fit exactly the corresponding amounts in the overpayment schedule at page 123 (33). Moreover, that last page states the total of the overpayment as a slightly different figure to that given in a supplementary submission from the Secretary of State dated 31 January 2000 at page 123(3).

(Signed)

L T PARKER

Commissioner

Date: 4 February 2003