UK Social Security and Child Support Commissioners' Decisions

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(b) of the Social Security Act 1998:

I SET ASIDE the decision of the Colchester appeal tribunal, held on 24 November 2006 under reference 132/06/00175, because it is erroneous in point of law.

I REMIT the case to a differently constituted appeal tribunal and DIRECT that tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal's discretion under section 12(8)(a) of the 1998 Act, any other issues that merit consideration.

Before the appeal is listed for hearing the district chairman must determine whether (i) the entitlement decision and/or (ii) the resulting overpayment decision are under appeal. If decision (ii) is part of the appeal, a further submission may be required from the Secretary of State.

There is an issue whether there are different versions of a video tape. I direct the claimant or her representative to make clear for the benefit of the tribunal: (i) whether this argument is still made; (ii) if so, at which points on the tapes there is a difference. If these points are not made clear to the tribunal, it need not deal with this issue.

If the claimant is represented at the rehearing, it would assist her representative in presenting her case and the tribunal in hearing the case if (i) unnecessary evidence was pruned from the papers and (ii) the evidence that is relevant were put in a more systematic order relating to the issues for which it is used. That is the responsibility of the representative. The district chairman may set a timetable for this to be done ahead of the hearing.

If the issue of the investigator's notebook is to be pursued by the claimant or her representative, the district chairman must direct the Secretary of State to produce evidence of it in appropriate form.

There is evidence that the claimant has chronic fatigue syndrome. It is a feature of that condition that there may be variation in the claimant's disablement. The appeal tribunal must consider this possibility. It must then decide whether there is variation. If there is, the tribunal must make findings on the range and frequency of the variation. It must then take an overall view of the claimant's disablement in accordance with the decisions of the Commissioner in R(A) 2/74, paragraph 35 and of the House of Lords in Secretary of State for Work and Pensions v Moyna, reported as R(DLA) 7/03. The significance of the video evidence will have to be considered in the light of the tribunal's conclusions on variation, because most of it was not recorded on consecutive days.

REASONS
2. This is an appeal by the claimant, brought with the leave of a district chairman, against the decision of an appeal tribunal. I held an oral hearing on 26 September 2007. The claimant did not attend, but she was represented by Mr Adam Sandell of the Free Representation Unit. The Secretary of State was represented by Mr Jeremy Heath from the Office of the Solicitor to the Department for Work and Pensions, who replaced the representative who was due to attend. I am grateful to them both for their submissions.

Background

3. The claimant was awarded a disability living allowance consisting of the mobility component at the higher rate and the care component at the highest rate. She was then subject to covert surveillance and was videoed while walking out of doors. She was subsequently interviewed and her entitlement terminated from the date when the surveillance commenced.
4. The claimant exercised her right of appeal to an appeal tribunal. From the submission, it appears that only the entitlement decision was under appeal. The overpayment decision was in the papers and was dealt with by the tribunal. I have directed the district chairman to determine which of those decisions are the subject of the appeal. My decision does not turn on that.
5. The appeal was listed for hearing on 9 November 2006, but the hearing was postponed because the venue did not have the facilities for viewing the video evidence. It was relisted for 24 November 2006. I understand that the claimant lost the services of a representative and was only able to find a replacement immediately before the hearing. The representative applied for an adjournment to allow time to prepare the case, but this was refused by the tribunal.
6. I need to mention two further matters that were discussed at the oral hearing.
7. First, the claimant alleged that there were two versions of the video evidence in existence, one at least of which misrepresented her walking ability. She would not co-operate with the tribunal in identifying the parts of the videos that might be different. In the circumstances, I do not criticise the tribunal for refusing to consider this issue further. The claimant had a duty to co-operate with the tribunal and did not do so. She could not simply raise the issue and then dump the responsibility thereafter onto the tribunal.
8. Second, one of the investigating officers provided a written statement in which he said that he had relied on his contemporaneous notes in a notebook that he was willing and able to produce if required – page 81. He brought it to the hearing, but refused to show it to the claimant on the ground that it contained sensitive information. The tribunal did not insist that it be made available. I comment on that later.

How the tribunal went wrong in law

9. Mr Sandell produced a detailed argument that there had been a number of procedural errors. It is sufficient for me to deal only with the adjournment issue. The tribunal went wrong in respect of the refusal to adjourn. Its mistake can be put in four ways:

•    the tribunal was wrong not to adjourn;

•    the tribunal did not explain adequately why it adjourned;

•    the tribunal failed to take account of relevant considerations; or

•    the failure to adjourn led to unfairness in the tribunal's procedure.

It does not matter which formulation is used, because the result in this case is the same.

10. The tribunal gave two reasons for refusing to adjourn. One was that the claimant was capable of putting her own case. The other was that there was ample medical evidence available.
11. Mr Sandell argued that it was apparent from the documents before the tribunal that the claimant might not be best able to put her own case to the tribunal. Mr Heath focused his argument on the outcome of the hearing, arguing that the tribunal had been entitled to make the decision it did on the evidence. On adjournment, he argued that the claimant was articulate and that the papers showed that she had previous experience with challenging benefit decisions. Mr Sandell replied that repeated experience would not necessarily ensure that the claimant had the mental aptitude to represent herself effectively and that being articulate was not the same as being able to understand legal procedures and present logical, coherent reasoning based on evidence.
12. I accept Mr Sandell's argument and his rebuttal of Mr Heath's argument. However, I consider that the tribunal made a more fundamental error.
13. The starting point is that a claimant is entitled to be represented – see regulation 49(8) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. That is an unqualified right. It is not dependent in any way on the claimant's abilities to present her own case. Even someone who is competent and experienced in tribunal advocacy may benefit from the services of a representative who may be able to present the case more objectively by reason of not being personally involved.
14. From that point of view, the claimant was asking the tribunal to allow her exercise her right. However, she was seeking to exercise that right at a very late stage and the tribunal was entitled to consider whether that was justifiable.
15. The tribunal was entitled to consider whether the lateness of the application for an adjournment was the claimant's fault. The first hearing had been vacated, because of lack of adequate facilities at the original venue. That was not the claimant's fault in any way. There is nothing to show that the loss of her first representative was her fault. And the delay in obtaining the replacement representative was explained in the application for adjournment. On the evidence before me, there was therefore no fault on the claimant's part.
16. The tribunal was then entitled to consider whether an adjournment was necessary for the representative to prepare. The time for which the representative had been appointed, the nature of the issues in the case and the evidence available, including video evidence, were all relevant and should have persuaded the tribunal to adjourn. There may have been sufficient evidence available, but the representative still needed time to prepare a case based on that evidence.
17. It is clear from the tribunal's first reason for refusing to adjourn that it did not bear in mind the value of a representative even to someone who could manage without one. It failed to give appropriate significance to the claimant's right under the legislation to be represented. To that extent, it failed to take account of a relevant consideration. I accept Mr Sandell's argument that, as the case evolved at the hearing, it proved that the claimant did not have an adequate grasp of the nature of evidence and the proceedings to do herself justice. The failure to adjourn therefore led to a breach of natural justice.

The notebook evidence

18. I deal with this issue because it is likely to be relevant to the rehearing.
19. The investigating officer's statement was said to be prepared on the basis of the contemporaneous records in the notebook. The officer said that the notebook was available for inspection. The claimant wished to see it. If that remains her position at the rehearing, the tribunal must ensure that the evidence being used against the claimant is available. If the notebook contains information that is not relevant, it can be edited. That process must be overseen by the tribunal. It is not for the Department to decide which evidence it will disclose. That is a matter for the tribunal.

Disposal

20. I allow the appeal and direct a rehearing.

Signed on original on 27 September 2007

Edward Jacobs Commissioner