UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_4022_2007 (12 June 2008)
URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_4022_2007.html
Cite as: [2008] UKSSCSC CIS_4022_2007

[New search] [Printable RTF version] [Help]

[2008] UKSSCSC CIS_4022_2007 (12 June 2008)

CIS/4022/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The Commissioner's decision

This appeal by the claimant fails. The decision of the Hull appeal tribunal held on 27 September 2007 under file reference 006/07/00226 is not wrong in point of law. It follows that the tribunal's decision – which was to confirm the earlier decision of the Secretary of State – stands.

The background to the three inter-connected appeals

This is one of three inter-connected appeals involving the same claimant and the same overall issue. This first appeal is against the tribunal's decision on the claimant's appeal against the decision of the Secretary of State dated 10 October 2006. That decision in turn was that the claimant was to be treated as living together with her partner as an unmarried couple, as from 28 July 1999, and so was not entitled to income support as a lone parent from that same date.

The second appeal, initially under file reference 950/07/00034, related to the consequential overpayment decision. That decision was to the effect that, because of her failure to disclose the material fact that she was living together with her partner, the claimant was liable for the resulting overpayment of income support totalling some £40,588.46 (for the period from 28 July 1999 to 25 May 2006). The appeal against that decision is now CIS/4021/2007.

The third appeal, initially under file reference 006/07/00675, concerned the associated local authority decision relating to housing benefit and council tax benefit. Those benefits had been awarded on the basis that the claimant was entitled to income support. Following the first and second decisions, the local authority decided that the claimant had been overpaid housing benefit of £17,857.44 (between 2 August 1999 and 4 June 2006) and council tax benefit of £3,301.56 (between 2 August 1999 and 28 May 2006). The appeal against that decision is now CH/4125/2007.

After an adjournment, the appeal tribunal at first instance heard the three appeals against all three decisions together and issued a single composite decision covering all three appeals. I am adopting a slightly different approach on this appeal to the Social Security Commissioner. This case is being treated as the lead decision of the three appeals and contains an explanation of the background and the reasoning for my decision. I am issuing short form decisions in the two related appeals, CIS/4021/2007 and CH/4125/2007 which must be read in the context of this decision in the lead case.

The events leading up to the tribunal hearing

The sequence of events leading up to the present appeal is not in dispute (although, of course, the true nature of the relationship between the claimant and her partner was very much in dispute). In summary the claimant had been in receipt of income support as a lone parent since August 1990. Her claim was for herself and for her two children, a son (born in January 1992) and a daughter (born in January 2000). She had been living at her present address since February 1999.

In December 2005 the Department for Work and Pensions (DWP) received an anonymous report that the claimant and her partner, who it is not disputed was in full-time work, were living together as husband and wife and had been doing so for the past six years. The DWP conducted various checks with credit rating agencies which all placed the claimant's partner as resident at her address on various dates going back to 2000. There was also a report from Sky TV that the claimant's partner had activated a subscription at her address from 28 July 1999. A fraud officer also observed what he took to be the claimant's partner's vehicle parked near the address.

Investigating officers from the DWP and the local authority then interviewed the claimant on two occasions (8 May 2006 and 27 June 2006). The claimant's partner was also interviewed separately (12 July 2006). All interviews were under caution and full transcripts prepared and put in evidence to the tribunal. No issue has been taken as to the accuracy of those transcripts.

The account given by the claimant and her partner were that they were girlfriend and boyfriend but that they had not started living together as such until May 2006 (after the first interview under caution with the claimant). It was not in dispute that the claimant's partner was the father of her (then) six-year-old daughter. When asked at the first interview why she thought the DWP might have received an anonymous allegation, the claimant replied "Well my boyfriend does sleep most nights", which she then explained as "Well some weeks he sleeps every night, some weeks he dun't sleep any".

In his own interview, the claimant's partner made one particular comment that led the investigating officers to make further inquiries. The partner stated that there had been problems with burglaries in the neighbourhood where the claimant lived. He added "I had my works vans, as I say, it's been broke into three times since I've been there".

In response to the DWP's inquiry following that interview, the local police force reported that the claimant's partner had reported several criminal incidents in recent years from the claimant's address. In particular, he had made four reports of damage or theft to his vehicles in 2002. There were no reports from him of any vehicle crime in the course of 2006.

A decision maker then reviewed the evidence. Commissioners and tribunals have many years' experience of seeing the record of what are sometimes at best frankly fairly shoddy decisions taken in DWP offices. It is therefore only right to record that on this occasion the decision maker in question conducted a comprehensive and meticulous review of the evidence. This is evident in the 10-page document entitled "Explanation of Decision Maker's Determination" which reviews the documentary evidence, the interview transcripts and the relevant law before reaching the conclusion that the claimant and her partner had been living together as an unmarried couple at her address for several years. The decision maker took the view on the balance of probabilities that that had been the case at least since the Sky subscription was taken out on 28 July 1999.

The DWP decision maker accordingly reached a decision on 10 October 2006 that the claimant had not been entitled to income support as a lone parent (nor on any other grounds) for the period from 28 July 1999 to 25 May 2006 (the date when the claimant had withdrawn her claim).

A different DWP decision maker then decided on 13 October 2006 that as a result of the "living together" decision there had been an overpayment of £40,588.46 in income support for the period in question. The decision maker also concluded that this sum was recoverable from the claimant under section 71 of the Social Security Administration Act 1992 on the basis of the claimant's failure to disclose the material fact of living together. This is the second appeal now under the file number CIS/4021/2007.

For completeness I should add that the DWP then informed the local authority of their decision. The local authority then made its own decision to similar effect. Initially the council issued a decision seeking the recovery of overpayments of housing benefit and council tax benefit going back to April 2002. This was because the computer records then available only went this far back. The council later issued a further decision to the effect that the claimant had been overpaid a total of £17,857.44 in housing benefit (between 2 August 1999 and 4 June 2006) and of £3,301.56 in council tax benefit (between 2 August 1999 and 28 May 2006). This is the third appeal (CH/4125/2007).

The appeal tribunal hearing and decision

After some correspondence between the claimant's representative, the DWP, the local authority and the Tribunals Service it was sensibly accepted that the claimant had appealed against all three decisions. After an adjournment on 5 April 2007, the three appeals were then all listed for hearing together before a legally qualified panel member. The main hearing took place in Hull on 27 September 2007. The claimant attended with her partner and with her representative, a local welfare rights officer.

The tribunal hearing itself appears to have lasted for nearly two hours. The chairman took a detailed 15-page note of the proceedings. This recorded the main evidence given by the claimant and her partner and the submissions on the law and the evidence made by the claimant's representative. It also recorded a number of procedural matters (I return to these later).

In the event the tribunal decided to confirm all three decisions under appeal and so to dismiss the claimant's three appeals. The tribunal's reasoning on all three appeals is set out in a composite four page Statement of Reasons for Decision.

The grounds of appeal to the Commissioner

The claimant applied for leave to appeal on the ground that the tribunal had failed to show adequate reasons for its decision. In particular it was said that the tribunal had failed to explain why the verbal evidence of the claimant and her partner was in certain respects found to be not credible. A tribunal chairman refused leave to appeal in the first instance, but Mr Commissioner Levenson later granted the claimant permission to appeal.

The claimant's representative concedes that the weighing of evidence is a matter for the tribunal, but argues that tribunals must explain why, if they so find, the evidence of a witness is not credible and that a failure to do so amounts to an error of law. In this case, he points to three particular passages where the tribunal rejected the case as put on behalf of the claimant. In each instance he argues that the tribunal failed to explain why it took the view it did and in particular that there was no suggestion by the tribunal that the evidence was inconsistent, evasive or incredible.

The first two passages involved the issue of whether the claimant and her partner were members of the same household at the material times. The first passage was where the tribunal dealt with the issue of the partner's reports of theft or damage to his vehicles. The claimant argued that he had to give her address as that address was (near) where the offences took place. The Statement of Reasons records that "the tribunal does not accept the argument".

The second passage was where the tribunal noted the claimant's evidence that she did not cook or clean for her partner and his (separate) evidence that he did not like her cooking, which was bland, and that he preferred takeaways, going to the pub or going out for meals with the children. Here the tribunal stated that it "simply does not accept that that situation actually occurs".

The third passage that the representative criticised was in the context of the tribunal's findings on the public acknowledgment of the parties' relationship. The claimant's case was that she and her partner were simply girlfriend and boyfriend but did not live together as an unmarried couple. The Statement of Reasons records "The Tribunal does not accept that".

The parties' submissions on the appeal to the Commissioner

The Secretary of State's representative, in a short submission, does not support the appeal to the Commissioner. She argues that the tribunal reached a decision that it was entitled to do on all the evidence before it and gave adequate reasons. As regards the credibility issue, she helpfully refers to two reported Commissioners' decisions R(I) 2/51 and R(SB) 33/85 and the unreported decision in CIS/12032/96.

In their observations on the related appeal, the local authority submits that the passages cited above by the claimant's representative have been taken out of context. In their submission the tribunal's decision as whole adequately explains why and how the tribunal reached its decision. Any failure to refer explicitly to credibility did not, in the authority's view, undermine the decision as a whole.

The claimant's representative has made a further submission, taking issue with the responses of the Secretary of State's representative and the local authority. He refers to a Scottish decision of the Inner House of the Court of Session, H.A. v Secretary of State for the Home Department [2007] CSIH 65. The representative directs me in particular to paragraph 17 of that decision, an asylum case. For reasons that will become apparent later, it is important to quote what Lord MacFadyen states there in full:

"[17] In the light of the cases cited to us it is convenient at this stage to formulate some propositions about the circumstances in which an immigration judge's decision on a matter of credibility or plausibility may be held to disclose an error of law. The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge (Esen, paragraph 21). This court may not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion (Reid, per Lord Clyde at 41H). But if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation (Wani, paragraph 24, quoted with approval in HK at paragraph 30). A bare assertion of incredibility or implausibility may disclose error of law; an immigration judge must give reasons for his decisions on credibility and plausibility (Esen, paragraph 21). In reaching conclusions on credibility and plausibility an immigration judge may draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible (Wani, paragraph 24, page 883L, quoted with approval in HK at paragraph 30 and in Esen at paragraph 21). Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences (Esen, paragraph 21), and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom (HK at paragraph 29). There will be cases where actions which may appear implausible if judged by domestic standards may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background (Wani, paragraph 24, page 883I, quoted with approval in HK at paragraph 30). An immigration judge's decision on credibility or implausibility may, we conclude, disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture."

The claimant's representative argues that the principles as set out by Lord MacFadyen in H.A. v Secretary of State for the Home Department are equally applicable in the present context. In his submission the central issue concerns the functions and expectations of tribunals – the particular context (be it immigration law or social security law) is, he argues, irrelevant.

The reasons of the Commissioner in dismissing this appeal

However, in the circumstances of this case I am satisfied that there is no error of law in the tribunal's decision and its reasoning. I agree in particular with the submission on behalf of the local authority that the three passages in the tribunal's Statement of Reasons and cited above at paragraphs 21-23 must be read in context.

As regards the first passage – concerning the partner's reports of car crime – the tribunal, having noted the police reports dated as far back as 2002 and having stated that it did not accept the claimant's explanation, continued "Following her argument, if he did not live at that address, [the partner] would have given the address where he was really living and there would then be a separate address as to where the offence took place". In doing so, the tribunal was pointing to a logical inconsistency as an explanation for not accepting the claimant's argument. The tribunal might equally well have pointed to the fact that in his interview under caution in July 2006 her partner had said that his vehicle had "been broke into three times since I've been there" – which, on the basis of the police report, cannot have been referring to the short period since May 2006 but rather to events some years previously.

The second passage in issue referred to the parties' living arrangements. The tribunal stated that it "simply does not accept" that the couple did not have a shared lifestyle as regards household chores. For the reasons set out further below, the tribunal was not under any obligation to state expressly that the account given was incredible as such. The tribunal's reasoning makes it plain enough that it found this particular aspect of their account implausible, and the tribunal went on to note, quite reasonably, that "it is quite sure that they go out together to eat like any other family unit who are able to afford to do so". This second passage must also be seen in the wider context of the tribunal's findings in the same paragraph as regards the Sky subscription and bodies such as DVLA and his bank having the claimant's address as the partner's home address.

The third passage in dispute concerned the issue of public acknowledgement and the rejection of the claimant's argument that they were simply girlfriend and boyfriend. In reality this was not just a finding on credibility. Rather, the tribunal was drawing its own conclusions in the process of applying the relevant law to the findings it had made on all the evidence that it had considered and itemised. The tribunal continued: "All the indications are is that they represent themselves to the outside world as a family unit. It may not be a totally unified unit, but a unit is surely is. Over the years they have gone out together in public with their children with their previous unions and with [their own daughter]. That does not suggest to the Tribunal that it is a boyfriend/girlfriend relationship. The Tribunal took the view that [the claimant and her partner] could quite easily have provided evidence for the Tribunal to consider from third parties such as their respective families, but they did not do so." This is perfectly adequate reasoning.

I therefore dismiss the claimant's appeal against the tribunal's decision on the living together appeal. The decision of the Hull appeal tribunal held on 27 September 2007 under file reference 006/07/00226 is not wrong in point of law. It follows that the tribunal's decision – which was to confirm the decision of the Secretary of State – stands.

Findings on credibility and the tribunal's duty to give reasons

That is sufficient to dispose of the appeal. However, challenges by claimants and their representatives as to the adequacy of tribunals' reasoning on issues of credibility are not uncommon. In that light, and given the further detailed submission made by the claimant's representative in this case, it may be helpful to set out the position as I understand it to be in the light of the relevant case law. I apologise for doing so at some length.

I start with the Commissioners' jurisprudence on issues of credibility and the extent of the obligation on tribunals to give reasons for their findings. In doing so, I consider the decisions in R(I) 2/51, R(SB) 33/85 and CIS/12032/1996 as well as the decision of a Northern Ireland Tribunal of Commissioners in R 3/01(IB)(T), which the Secretary of State's representative surprisingly did not refer to. I also consider some of the parallel case law on credibility issues in asylum cases, as this has been raised by the claimant's representative.

R(I) 2/51

Commissioner's decision R(I) 2/51 is a brief early authority under the industrial injuries scheme. The claimant argued that he had suffered a hernia at work (and so an industrial accident). He had felt a strain at the time but had not realised its significance – nor had he reported it to his employer at the time or mentioned it to his workmates. A week later his doctor diagnosed a hernia. A tribunal, by a majority decision, disallowed his appeal, noting that there was no corroborative evidence.

On appeal, the Commissioner confirmed that it was for the claimant to show on the balance of probabilities that he had suffered an industrial accident. The Commissioner also held that a tribunal could reach that decision on the basis of the claimant's evidence alone – there was no rule of law that it needed to be corroborated. The Commissioner added: "In some cases a Tribunal may rightly think that they cannot act on a claimant's uncorroborated evidence either because it is self-contradictory or inherently improbable or because the claimant's demeanour does not inspire confidence in his truthfulness" (at paragraph 7). The Commissioner astutely added that it was "seldom safe to reject evidence solely for this last reason" – and indeed in any event on the facts of that case the claimant had apparently not given oral evidence at the tribunal.

The Commissioner concluded in R(I) 2/51 that the claimant's appeal should succeed. There was nothing self-contradictory about his statements. Indeed, there was uncontradicted medical evidence available that the hernia was likely to have happened in the manner stated by the claimant. There was nothing inherently improbable about his account – there were indeed sound reasons explaining why he had not reported it or mentioned it at the time. Moreover, there was no positive evidence that the hernia occurred in any other way.

The implication in the submission by the appellant's representative in the present case is that a tribunal can only reject a claimant's evidence if it finds it "to be self-contradictory or inherently improbable or because the claimant's demeanour does not inspire confidence in [her] truthfulness", to use the Commissioner's phraseology. In my view R(I) 2/51 does not stand as authority for so narrow a proposition. R(I) 2/51 certainly holds that as a matter of principle a claimant's evidence does not require corroboration as such. In addition, a tribunal may find a claimant's evidence unreliable because of internal contradictions, its inherently implausible nature or (some times) the way in which the evidence is given. But the Commissioner was not in my view seeking to give an exhaustive definition of the circumstances in which a person's evidence might not be accepted. It is plain from the rest of paragraph 7 of R(I) 2/51 that the Commissioner regarded the wider context of the evidence in the case as relevant – for example, in that case there was no positive evidence pointing to another explanation. In addition, R(I) 2/51 was not a decision which directly concerned the adequacy of a tribunal's reasons as such.

R(SB) 33/85

The decision in R(I) 2/51 was considered and applied by Mr Commissioner Edwards-Jones in R(SB) 33/85. That case concerned a claim under the old single payments regime, part of the former supplementary benefits system, for a lump sum payment for replacement clothing on the basis of rapid weight gain. A tribunal rejected the claimant's appeal against the disallowance of his claim, in part because he had produced no other evidence (e.g. independent medical evidence) about his sudden weight gain.

The Commissioner confirmed that corroboration is a reinforcement of the claimant's evidence "but it is not a necessary probative requirement" (paragraph 14). He cited with approval paragraphs 6 and 7 of the earlier decision in R(I) 2/51. The Commissioner also considered the adequacy of the tribunal's reasons. In his judgement, the tribunal "were not entitled to dismiss the claimant's evidence without proper explanation of their reasons for such rejection" (paragraph 15). This must be done with "reasonable particularity". The Commissioner helpfully gave an example of what this might have looked like. In short, the tribunal could have referred to the claimant's evidence – which was not corroborated – but concluded that they rejected it because the tribunal did not believe him, as he had failed to give any satisfactory explanation for not consulting a doctor. The Commissioner's indicative wording runs to only 8 lines, of which only 6 lines refer to the reasoning. This makes it clear that "reasonable particularity" is not to be read as imposing a very high threshold.

CIS/12032/1996

In the present appeal, the Secretary of State's representative refers to CIS/12032/1996, a decision of Mr Commissioner Goodman. In that case, as in the present appeal, there had been a substantial overpayment of benefit. As here, recovery was sought on the basis of non-disclosure of a material fact (in that case, that the claimant's wife had undisclosed earnings). The tribunal at first instance dismissed the claimant's appeal. The Commissioner allowed the claimant's appeal against the tribunal's decision on the twin grounds that the tribunal had not kept a proper note of evidence of the hearing and had failed to make a finding of fact on a material issue. The claimant and the adjudication officer, who supported the appeal, agreed that those two grounds of appeal meant that the tribunal's decision could not stand.

The Commissioner also dealt with a further ground of appeal, which was not agreed between the parties. The claimant's representative argued that the tribunal should have given an indication as to why it had found the claimant not to be a credible witness. Mr Commissioner Goodman disagreed (at paragraph 14):

"In my judgment the ground of appeal is misconceived. A tribunal in particular in a case of this kind must assess the credibility or otherwise of any witness including the claimant. If it does not find the evidence given by the claimant credible, it is entitled to say so without more. It is difficult to understand what reasons it is supposed to give other than simply that it does not believe the claimant".

In my view it would be unsafe to regard this comment as suggesting that it is sufficient in any and every case for a tribunal simply to rule that it finds a particular witness not to be credible, with no further explanation. I note that the reported decisions in R(I) 2/51 and R(SB) 33/85 appear not to have been cited to Mr Commissioner Goodman, and that his observations on the credibility point were strictly obiter in any event, in the sense that they were not necessary to decide the case before him.

In this context it is also important to bear in mind the wider point made by a Tribunal of Commissioners in Northern Ireland in decision R 2/01(IB)(T): "What constitutes adequate reasoning may vary from case to case and there is a danger in attempting to elevate a particular decision into an authority that a certain format or content either always will or always will not constitute adequate reasoning. It will all depend on the circumstances of the case, the evidential background and the issues" (paragraph 31).

R 3/01 (IB)(T)

A further decision of a Tribunal of Commissioners in Northern Ireland is also relevant in this context. In decision R 3/01(IB)(T) the claimant had been found to be not incapable of work. A tribunal dismissed his appeal, stating that he was not a reliable or credible witness. The Tribunal of Commissioners set aside the first instance tribunal's decision on a separate point in relation to inadequate reasoning, as it had failed to address the claimant's detailed grounds for taking issue with the official medical examination.

However, the Tribunal of Commissioners also dealt with the question of credibility. The claimant's representative had relied on CSIB/459/1997, a decision of Mr Commissioner Henty, where he had stated that "a finding that the claimant was not a reliable or credible witness per se is not sufficient. If they [the tribunal] were of that view and rejected his evidence for that reason they should also have given reasons why they did not find him a reliable or credible witness" (paragraph 12). In the key passage the Northern Ireland Tribunal of Commissioners stated as follows:

"22. Firstly, we do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.

23. A court is not usually required to enter into detailed reasoning as to why it believes or disbelieves evidence. There are sound reasons why not and why courts frequently use anodyne expressions such as that a witness's testimony is "coloured by hindsight" or that his memory has "become selective with the passage of time". Detailed criticism may be regarded as abusive by those criticised and may provoke persons not connected with the appeal into taking steps adverse to the witness or provide them with ammunition to do so. Tribunals are in the same situation. A Tribunal is entitled to exercise its judgment on the veracity of evidence put before it. In many instances it must do so to ascertain the facts. There is no rule that it must explain its assessment of credibility. The only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it. In many instances it would be pointless for a Tribunal to enter into a detailed explanation. A Tribunal might, for example, state that it considered that a claimant was shifty in his demeanour and therefore did not believe him. The claimant would then wish to know why the Tribunal considered him shifty and the matter could continue almost indefinitely. There seems little point in a tribunal entering into such situation and it is certainly not required to do so as a general rule. That is not to say that there may not be times when a further explanation may be needed. It will all depend on the circumstances of the case."

This is a reported decision of a Tribunal of Commissioners, albeit in a parallel jurisdiction, and therefore carries considerable persuasive weight. However, with due respect to the Northern Ireland Tribunal of Commissioners I am not convinced that Mr Commissioner Henty was actually suggesting in CSIB/459/1997 that there was a universal obligation on a tribunal to give reasons for a finding of credibility. I note that CSIB/459/1997 was a case in which there was a marked conflict between the claimant's own assessment of the extent of his incapacity (62 points) and the assessment of the BAMS [the Department's] doctor (0 points). The tribunal had made no findings at all in its decision on the individual descriptors in issue, holding simply that the claimant was not a reliable or credible witness, that he had produced no corroborating independent medical evidence and that the report of the BAMS doctor was accepted. Mr Commissioner Henty's comments have to be seen in that factual context. The Commissioner's approach was therefore entirely consistent with the reasoning in R(I) 2/51 and R(SB) 33/85.

That qualification aside, the Northern Ireland Tribunal of Commissioners was surely correct in asserting that a tribunal "is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision".

Other authorities on credibility in appeal tribunals

In this context I note also the observation of the Court of Appeal in Secretary of State for Work and Pensions v Roach [2006] EWCA Civ 1746. There the Court of Appeal reversed the decision of the Commissioner, who had taken a different view of the credibility of the appellant's evidence as compared to the tribunal at first instance. According to Leveson LJ, giving the main judgment of the Court of Appeal: "it is trite to say that the credibility of a witness depends upon an assessment by the fact-finder of a number of features. Without being exhaustive these include what is said, the way it is said, its internal consistency and the extent to which it corresponds with known facts or human experience; all this must be considered in the context of the perceptions of the witness. Further, assuming that the fact-finder's analysis was open to him or her, an appellate court or tribunal can only intervene in that process based upon an error of law which is not the same as pointing to a different analysis of the evidence" (at paragraph 31).

It is also important not to lose sight of the principle that procedural fairness does not require that the evaluation of evidence submitted to a tribunal and the determination of credibility should be disclosed prior to the final decision. As Mrs Commissioner Parker observed in CSIB/377/2003, citing the Court of Appeal's judgment in Baron v Secretary of State for Social Services (reported as an appendix to R(M)6/86), "The tribunal is in no way required to put, for earlier comment, every inference it later draws. Such a process would entirely stultify the tribunal system. What is required is that there is no breach of natural justice" (at paragraph 38).

A summary of the scope of the tribunal's obligation to give reasons on credibility

Moreover, I am not convinced, despite first appearances, that there is in fact a conflict between the views expressed by the Great Britain Commissioners in R(I) 2/51 and R(SB) 33/85 on the one hand and the Northern Ireland Tribunal of Commissioners in R 3/01(IB)(T) on the other. The differences are more a matter of tone than substance.

In my assessment the fundamental principles to be derived from these cases and to be applied by tribunals where credibility is in issue may be summarised as follows: (1) there is no formal requirement that a claimant's evidence be corroborated – but, although it is not a prerequisite, corroborative evidence may well reinforce the claimant's evidence; (2) equally, there is no obligation on a tribunal simply to accept a claimant's evidence as credible; (3) the decision on credibility is a decision for the tribunal in the exercise of its judgment, weighing and taking into account all relevant considerations (e.g. the person's reliability, the internal consistency of their account, its consistency with other evidence, its inherent plausibility, etc, whilst bearing in mind that the bare-faced liar may appear wholly consistent and the truthful witness's account may have gaps and discrepancies, not least due to forgetfulness or mental health problems); (4) subject to the requirements of natural justice, there is no obligation on a tribunal to put a finding as to credibility to a party for comment before reaching a decision; (5) having arrived at its decision, there is no universal obligation on tribunals to explain assessments of credibility in every instance; (6) there is, however, an obligation on a tribunal to give adequate reasons for its decision, which may, depending on the circumstances, include a brief explanation as to why a particular piece of evidence has not been accepted. As the Northern Ireland Tribunal of Commissioners explained in R 3/01(IB)(T), ultimately "the only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it".

The case law on credibility reasons in the asylum jurisdiction

However, in the present appeal, as has been noted, the claimant's representative places considerable reliance on the decision of the Inner House of the Court of Session, H.A. v Secretary of State for the Home Department [2007] CSIH 65 (see paragraphs 26 and 27 above). In particular, it is argued that the statement of Lord MacFadyen that "an immigration judge must give reasons for his decisions on credibility and plausibility" is of universal application.

I am not persuaded by this argument. It is plain from the context of Lord MacFadyen's judgment that his Lordship's observations were given in the particular context of asylum appeals. In particular, Lord MacFadyen noted that credibility "is an issue to be handled with great care and sensitivity to cultural differences …and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom". Such considerations will sometimes be relevant in some social security appeals, but there is no suggestion whatsoever in the present appeal that they applied.

I do not, therefore, regard the level of detailed reasoning on credibility envisaged in the asylum case of H.A. v Secretary of State for the Home Department as directly applicable in the context of the present social security appeal. The overall rule is certainly the same for both jurisdictions – there must be adequate reasons for the tribunal's decision. But what are adequate reasons may vary according to the nature of the jurisdiction and the nature of the particular dispute within the jurisdiction.

This approach is, in my view, confirmed by consideration of a decision of the Court of Appeal in England and Wales on the adequacy of reasons for a finding on credibility in the context of asylum appeals. In Malaba v Secretary of State for the Home Department [2006] EWCA Civ 820 the appellant, a citizen of the Democratic Republic of the Congo (DRC), claimed asylum. The Secretary of State rejected her application, citing various instances in which her account of events in DRC was found to be not credible. An immigration adjudicator found her to be credible (although it should be noted that the adjudicator did not receive full oral evidence) and allowed her appeal. The Secretary of State appealed to the Immigration Appeal Tribunal (IAT), which allowed the appeal and remitted the case for a fresh hearing before a different adjudicator, concluding that the adjudicator's treatment of the credibility issue was "not adequate". As a result of a change in the law, the matter was then reheard before what had now become the Asylum and Immigration Tribunal (AIT), which dismissed her appeal. Before the Court of Appeal, it was agreed that the AIT decision was erroneous, and the sole live issue was the appropriate relief to be granted.

However, the Court also considered in depth the adequacy of the adjudicator's reasoning for accepting the claimant's credibility. In H.A. v Secretary of State for the Home Department the claimant had made the challenge to the immigration judge's finding that she was not a credible witness. In Malaba v Secretary of State for the Home Department the roles were reversed: the Secretary of State was challenging an adjudicator's finding that the claimant was credible. However, so far as the reasons are concerned, the principles should be the same. The Secretary of State's argument was that the adjudicator had not properly addressed the discrepancies in the claimant's account. The Court of Appeal agreed. According to Dyson LJ:

"19. It follows that at least in this important respect, there were significant discrepancies in the appellant's account. Indeed, the adjudicator said that she accepted the view of the Secretary of State that there were discrepancies. As we have seen, the Secretary of State had said that the discrepancies were so serious that they completely undermined the credibility of her claim. A number of possible conclusions were available to the adjudicator. First, she could have said that, accepting the discrepancies at face value (without taking account of the response statement), they did not undermine the core of her claim. Secondly, she could have said that, if taken at face value, the discrepancies completely undermined the core of her claim; but she accepted the explanations given in the response statement and for that reason concluded that the discrepancies were more apparent than real and did not undermine the core of her account. Thirdly, she could have said that she accepted that some of the alleged discrepancies had not been adequately explained by the appellant in the response statement, but that these did not undermine the core of the account. Fourthly, she could have accepted that some of the alleged discrepancies had not been adequately explained in the response statement, and that these did undermine the appellant's account.

20. In my judgment, the existence of these possibilities underlines the fact that it was imperative for the adjudicator to explain how she reached her main conclusion that, having regard to the response statement, the discrepancies did not completely undermine the core of the claim. It was insufficient simply to say that she had had regard to the response statement. She should have identified the discrepancies which she considered had been satisfactorily explained by the appellant and those which had not, giving short reasons for her findings, and explained why such discrepancies as had not been satisfactorily explained did not completely undermine the appellant's account. I agree with the conclusion of the IAT that the adjudicator did not give adequate reasons for her finding that the appellant was a credible witness, particularly in circumstances where she did not give oral evidence beyond the adoption of her witness statement…"

In a concurring judgment, Pill LJ agreed that in the circumstances of that case "the failure to give adequate reasons for the finding that the discrepancies in the appellant's accounts did not undermine her credibility, and that she was credible, amounted to a fatal error of law by the adjudicator" (paragraph 26). Pill LJ also underlined "the need for fact-finding judges in this jurisdiction to consider the evidence as a whole when assessing the credibility of an applicant and to give reasons for the conclusion reached" (paragraph 27). Pill LJ continued in similar vein to Lord MacFadyen's comments in the Scottish decision:

"28. The fact-finding jurisdiction of immigration judges is of course a most important one. They have a difficult task to perform, assessing the credibility of an account of events in a foreign country and, usually, without the benefit of other direct evidence of those events. An applicant's evidence has to be assessed in the context of in-country material describing the situation in that country. The judge is also entitled to have regard to evidence, such as medical evidence, which may be corroborative of the applicant's account. While there may be cases in which all a fact-finding judge can say is that, having seen and heard the witness, he or she believes or does not believe that witness, it will usually be necessary, when the lawfulness of a finding of fact on credibility is challenged, for the appellate tribunal to consider the question of credibility in the context of the evidence as a whole.

29. In assessing the adequacy of a fact-finding exercise, an appellate tribunal expects findings to be adequately reasoned. By its reasoning, the fact-finding tribunal not only tells the losing party why he has lost but may also be able to demonstrate that it has adequately and conscientiously addressed the issue of fact which has arisen. That is particularly important when it is the credibility of an applicant which is in issue. A lack of reasoning may demonstrate a failure adequately to address the fundamental question: Is the applicant telling the truth?"

Malaba was evidently a case in which a relatively detailed explanation of a finding of credibility was required. But even within the asylum jurisdiction the level of reasoning required may differ according to the context. As Laws LJ noted in A.T. (Guinea) v Secretary of State for the Home Department [2006] EWCA Civ 1889, it was "elementary that the duty to give reasons does not entail a requirement that the fact-finding judge deal expressly with every point" (paragraph 18).

In that judgment Laws LJ also observed (emphasis added):

"Now I do not suggest that there may not be a credibility case in which the immigration judge is indeed obliged to provide a substantial explanation of his or her approach to discrepancies which are found to exist. That was the position in Malaba [2006] EWCA Civ 820 (see the judgment of Dyson LJ at paragraphs 19 and 20) and also AK [2006] EWCA Civ 1182. But every case is of course different. Discrepancies may sometimes be more important where they are internal to a witness's evidence. The duty to give reasons is not a matter of ticking a checklist. Its essence is to ensure that the parties to a decision - and indeed any relevant appeal court - should understand why one has won and the other has lost" (paragraph 18).

Laws LJ's observations are, with respect, very important, as they emphasise that one must not lose sight of the fundamental principle involved. The central principle, as was also made clear by Lawrence Collins LJ in Bassano v Battista [2007] EWCA Civ 370, is that "The duty to give reasons is a function of due process and therefore justice, both at common law and under Article 6 of the Human Rights Convention. Justice will not be done if it is not apparent to the parties why one has lost and the other has won. Fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost" (paragraph 28). Moreover, as Arden LJ observed in the same case, "reasons must be satisfactory but they need not be exhaustive" (at paragraph 55).

Applying these principles in the instant appeal

In the present case, as explained above, I take the view that the tribunal's reasons are satisfactory and disclose no error of law. The issue for the tribunal was a stark one. Was it the case, as the claimant argued, that she and her partner had been girlfriend and boyfriend for some years but who did not start "living together" until May 2006? Or rather, as the DWP argued, had they been living together from 1999? The tribunal considered all the relevant evidence. It made findings of fact based on that evidence. It explained why it did not accept the central arguments put forward on behalf of the claimant. It is noteworthy that there was no firm evidence putting the partner at any other address during the relevant period, other than on an occasional casual basis. There was plenty of evidence putting him at the claimant's address over that period. The partner's employment certainly meant that he regularly worked away from home, but then so also do many partners in married couples. On the evidence and facts as found, the tribunal then applied the relevant law and reached a decision that it was entitled to do. It explained why and did not err in law in any respect. The appeal must therefore fail.

At the risk of making an already lengthy decision even longer, there are three further procedural matters that must be mentioned, as they may have a bearing on other similar cases.

Three procedural issues arising in the course of the tribunal hearing

(1) The absence of any presenting officer

The Record of Proceedings very helpfully noted a number of procedural matters. The first of these concerned the absence of any presenting officer. Neither the DWP nor the local authority sent a presenting officer (PO) to the hearing. The chairman's detailed Record of Proceedings notes that the DWP had stated they were not sending a presenting officer, as they had not been directed to do so at the previous adjourned hearing. The chairman's handwritten note is not 100% clear on this point, but it also appears to state (most likely noting information relayed by the tribunal clerk) "PO for the council stated he will come if required only 10 mins away. They say can't afford to be just sat in room for 2 hours".

In the circumstances I am satisfied that there was no prejudice to the claimant in the failure of either the DWP or the local authority to send a presenting officer to the hearing. However, in a series of decisions the Commissioners have repeatedly reaffirmed the value of official agencies sending a presenting officer to hearings. The Council on Tribunals (now the Administrative Justice and Tribunals Council) have made similar comments. Most notably, the importance of this practice was emphasised by the (Great Britain) Tribunal of Commissioners in R(IS) 17/04.

On that occasion the Tribunal of Commissioners noted with approval the assurance of the Secretary of State that measures were to be taken to ensure the attendance of presenting officers in appropriate cases. This would be where the tribunal so directed or the complexity or the case required it, whether or not the tribunal had so directed. The Tribunal of Commissioners concluded that:

"24. Therefore, with regard to the future, appeal tribunals will have comfort that (i) if the tribunal directs that a presenting officer attend a hearing, then such an officer will attend (or make a timely application for a postponement, if attendance is not possible); and (ii) although this will take some time to implement, the Secretary of State is developing criteria to identify cases of complexity that require a presenting officer and, in those cases, a presenting officer will attend whether or not the tribunal has made an express direction."

If the present case is anything to go by – and anecdotal judicial experience suggests that it is by no means uncommon – then tribunals are still some way from drawing the comfort anticipated by the Tribunal of Commissioners in R(IS) 17/04.

Moreover, in cases such as the present appeal, involving a series of very substantial overpayments, it seems to me to be at the very least highly desirable that a presenting officer attends. It should not need a tribunal's direction for someone in the DWP to appreciate that it might be in the interests of justice, let alone the wider public interest, for a presenting officer to attend where an alleged overpayment in excess of £40,000 is at stake which turns on contested evidence going back over several years. The observation from the local authority in this case – if correctly recorded in the chairman's notes and now correctly deciphered – is little short of astonishing and, if accurate, displays an attitude bordering on contempt for the judicial process.

The failure to send a presenting officer also has the potential to make the tribunal chairman's already onerous task in conducting the hearing even more difficult. In essence, in the absence of the presenting officer, the tribunal has to put the DWP (and/or the local authority's) case to the appellant and test his or her evidence in an inquisitorial or investigatory fashion while ensuring that the appellant has a fair hearing. The potential challenge of doing so in the absence of a presenting officer was highlighted by the decision of the Tribunal of Commissioners in R(IS) 17/04. However, on the basis of the evidence on file in this case, I am more than satisfied that this particular chairman was able to conduct a fair hearing for this particular claimant.

(2) The claimant's insistence on not hearing her partner's evidence

The chairman also recorded that having given her evidence, the claimant had indicated through her representative that she did not wish to be present while her partner gave his evidence. The chairman noted that neither he nor the representative were entirely happy with her decision, as there was a potential risk that it might prejudice her position if her partner were to say something she might wish to challenge. Having checked and noted that the claimant was adamant about leaving the room, the chairman sensibly recorded that he proposed to run through the partner's evidence with her at the end of the hearing.

It is clear from the Record of Proceedings that this is precisely what the chairman did some half an hour later at the end of the evidence given by the claimant's partner. Furthermore, the chairman noted that the claimant's representative agreed with the chairman's précis of the partner's evidence. In my view, the chairman is to be commended for his sensible and helpful handling of this potentially problematic procedural issue.

The chairman also noted quite properly that he could not force the claimant to remain in the hearing room while her partner gave evidence. For the avoidance of doubt, I confirm that the chairman could, of course, have chosen to require the claimant to leave the hearing during her partner's evidence (and indeed for her partner not to be present during her evidence). These are matters for the good judgement of the chairman in the exercise of his broad discretion to conduct the proceedings in the most appropriate manner for the circumstances of that case. Subject to certain statutory constraints, the appeal tribunal is, according to a Tribunal of Commissioners (see R(DLA) 3/06, at paragraph 52) "master of its own procedure" (and see further regulations 38(1) and 49(1) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)).

(3) To swear or not to swear (or to affirm)

Likewise, of course, in a case such as this the chairman might have required those giving evidence to be sworn in or to affirm (regulation 43(5) of the 1999 Regulations), although there is rightly no suggestion from the claimant's representative that this course of action should have been adopted. The Benchbook, issued by the President of the appeal tribunals to tribunal chairmen, gives the following guidance at paragraph 36(6): "Appeals involving child support, substantial overpayments or other areas where credibility is a crucial issue might be considered suitable for the oath; it is however entirely a matter for the chairman on the day to decide whether or not to use the power and some chairmen may feel it is never appropriate."

This guidance reflects the telling earlier observation in The Benchbook that: "Views differ as to the usefulness of the oath. Telling lies on oath of course constitutes perjury, so that in theory anyone giving false testimony can be prosecuted; in practice however this hardly ever happens even though perjury in court proceedings is probably a daily occurrence. Some therefore take the view that there is little point in administering an oath as if a witness is going to tell lies he will do so whether he is on oath or not" (at paragraph 36(4)).

There are arguably at least three reasons why it may be inappropriate to require a party or witness to take the oath or affirm in an appeal tribunal. To that extent I tend to agree with the learned commentary on regulation 49(8) of the 1999 Regulations in Child Support: The Legislation 2007/2008 (by E. Jacobs and G. Douglas, Edition Eight, at p.500). First, it is inconsistent with the informal atmosphere that tribunals seek to adopt. Secondly, the reality is that it may make little difference to the evidence given. Thirdly, the real issue for the tribunal is often the reliability of the evidence, which is a wider issue than the honesty of the person giving that evidence.

With respect, however, I also regard the guidance in The Benchbook on this issue as well-phrased. In this case there were substantial overpayments at issue and credibility did indeed prove to be in question. So the chairman might well have elected to require the claimant and her partner to take the oath or affirm. There is no indication that he did do so and, given the fullness of his Record of Proceedings, I am confident that he did not do so. But that was entirely a matter for his good judgement. As a matter of good practice it may be desirable and sufficient simply to remind the parties that tribunal proceedings are judicial proceedings and that it is important to give a truthful account.

My decision is as set out at paragraph 1 above.

(signed on the original) N J Wikeley

Deputy Commissioner

12 June 2008