Upper Tribunal (Administrative Appeals Chamber)

Secretary of State v LC [2009] UKUT 153 (AAC) (06 May 2009)
Commissioners/Upper Tribunal procedure and practice
other

THE UPPER TRIBUNAL Case No: CSG/548/08

ADMINISTRATIVE APPEALS CHAMBER

Appellant: Secretary of State

Respondent: Mrs Lorna Craig

Heard at: Edinburgh

Date of Hearing: 6 May 2009

DECISION OF THE UPPER TRIBUNAL

A J GAMBLE

JUDGE OF THE UPPER TRIBUNAL

Oral Hearing

ON APPEAL FROM: Appeal tribunal

Tribunal Case No: 086/08/00014

Tribunal Venue: Irvine

Hearing Date: 8 July 2008

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

Attendances:

For the Appellant (Secretary of State): Miss S Haldane, Advocate instructed by Miss C McCurry, Solicitor of the Office of the Solicitor to the Advocate General.

For the Respondent (Claimant): Mrs T Brown, Welfare Rights Officer with North Ayrshire Council accompanied by Mrs Kelly, also of North Ayrshire Council.

The Secretary of State's appeal is allowed.

The decision of the appeal tribunal given at Irvine on 8 July 2008 is set aside.

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for rehearing before a differently constituted tribunal in accordance with the directions set out in paragraph 15 of the Reasons.

REASONS FOR DECISION

1. This is an appeal by the Secretary of State, brought with my permission, against the decision of the Irvine Appeal Tribunal of 8 July 2008.
2. I directed an oral hearing which took place on 7 May 2009. The claimant did not attend. Representation was as described above. I am indebted to Miss Haldane and Mrs Brown for their contributions to the debate at the hearing.
3. The claimant is a fifty-three year old woman. She has been the main carer for her son, now aged thirty-six, since 1996. She received invalid care allowance (now termed carer's allowance) from then until 18 September 2006. She does not dispute that her entitlement to that benefit properly ceased from that date.
4. The starting point of these proceedings is a decision maker's decision of 22 November 2007, document 62. That decision was confirmed at reconsideration on 4 March 2008, document 71. In her decision, the decision maker held that the claimant was not entitled to invalid care allowance in the tax years 1997-1998, 1998-1999 and 2000-2001 because of the level of her part-time earnings. She then went on to determine that an overpayment of benefit totalling £6,056.75 had been incurred which was recoverable from the claimant on the ground of non-disclosure.
5. The claimant appealed. Her case was listed before an appeal tribunal held on 21 May 2008. At that hearing, her representative lodged a detailed submission, documents 141-142, along with supporting documentation, documents 143-151. The tribunal adjourned the case because of these lengthy submissions, document 154.
6. The submissions referred to in paragraph 5 above become of central importance in this case. In them, the claimant's representative laid out five separate contentions in four numbered paragraphs. Paragraphs 1 to 3 bear on the issue of the amount of the overpayment, if any. They raise an issue of calculation under the Computation of Earnings Regulations 1996 (Paragraph 1 on document 141) and three such issues under the Invalid Care Allowance Regulations 1976 (Paragraphs 2 and 3 on document 142). The final numbered paragraph on document 142 bears on whether any properly calculated overpayment was recoverable from the claimant, having regard to her duty of disclosure.
7. The case was then relisted before the tribunal of 8 July 2008. On that occasion, the claimant was present along with her representative. The Secretary of State was represented by a locally based presenting officer, not one from the carer's allowance unit. In the Secretary of State's submissions seeking permission to appeal, paragraph 4 of document 162, the following statement is made -

"Contacted on 30 September 2008 the presenting officer could not recall any detail of this hearing or the nature or extent of any concession made."

I am, however, satisfied that at the hearing on 8 July 2008 the presenting officer accepted the first and fourth of the numbered paragraphs of the claimant's representative submissions appearing as documents 141-142, described in paragraphs 6 above, but did not accept the remainder of those submissions. I base my conclusion on the written submission of the claimant's representative appearing in the second paragraph of document 167 and the oral information given to me by her at the hearing. I accept that written and oral information as accurate. Further, my conclusion is supported by the content of the Record of Proceedings of the tribunal (document 155) when that is read in the light of the written and oral information just referred to. It is also broadly consistent with the handwritten marginal notes made by the claimant's representative on documents 171-172, a reproduction of the submissions appearing earlier as documents 141-142. Finally, that some concession was made by the presenting officer is evident from paragraph 4 of the tribunal's statement of reasons on document 159. The presenting officer did not therefore fully concede the claimant's case, albeit he did so to a considerable extent.

8. The tribunal thereupon allowed the appeal. Their Decision Notice, document 156, reads as follows -

"The appeal is allowed. The decision of the Secretary of State issued on 22 November 2007 is revised. On the basis of the available evidence the tribunal is satisfied that no overpayment of carer's allowance arose during the period set out in the said Decision Notice."

It is obvious from the Statement of Reasons, read as a whole, that their decision was heavily influenced by the concessions made by the presenting officer. In paragraph 3 of that statement, document 158, the tribunal refer to the submission prepared on the claimant's behalf. Then in paragraph 4, document 159, they put matters thus -

"Both the appellant's representative and the presenting officer contended that the representative's submission and the suggested treatment therein of the appellant's income over the periods in question was the correct application of the relevant legislation and authorities in respect of the periods under consideration. The tribunal considered that the approach suggested within the representative's submission, conceded as correct by the presenting officer, was in fact the appropriate approach to the circumstances of this appeal."

9. The matters which concerned me when I directed the oral hearing were whether the Secretary of State was bound in the Upper Tribunal proceedings by the presenting officer's concessions before the tribunal below or whether the public law doctrine of legitimate expectation applied to this case. See document 216. Simply put, the issue is; can the Secretary of State argue before me that the tribunal's decision involved the making of a mistake of law in the circumstances described in paragraph 7 and 8 above?
10. In regard to the concessions made below, Miss Haldane submitted that in Scottish civil practice an appellate court can permit the withdrawal by a party to proceedings of a concession which he had made in a lower court if that concession was a concession of law and if to do so would not materially prejudice the other party. She relied on the decision of an Extra Division of the Inner House of the Court of Session in Connolly v Simpson 1993 S.C.391. In particular, she referred me to a passage from Lord McCluskey's judgement in that case, at p.408, F. She went on to submit that the concessions made in this case by the presenting officer were concessions of law and that for me to set aside the tribunal's decision and direct a complete rehearing (as distinct from remaking the decision myself) would not materially prejudice the claimant. Not surprisingly, Mrs Brown strongly dissented from that aspect of Miss Haldane's submissions. In her contention, to set the decision of the tribunal aside, even by way of remitting the case to another tribunal, would result in serious prejudice to the interest of the claimant. Finally, Miss Haldane suggested that for the Upper Tribunal to permit the withdrawal of the concessions made in the First-tier Tribunal was, if anything, more appropriate in this jurisdiction, which was inquisitorial in nature, than in the adversarial one of the civil courts.
11. In my view, Miss Haldane's final submission on the issue of the presenting officer's concessions, summarised immediately above, holds the key to this aspect of the case. The Secretary of State has an adjudicative function in these proceedings under Section 8(1)(c) of the Social Security Act 1998, read along with sub-section (4) of that Section and Section 9 of that Act. He possesses the functions which were formerly those of the adjudication officer and before that, in the case of non means tested benefits of the insurance officer. Those functions were semi-judicial, R(SB) 8/83, paragraph 5. The Secretary of State's duty is to ensure that the correct decision under the appropriate legislation is made. In the exercise of that duty, he regularly supports appeals to the Upper Tribunal in cases where he had opposed the allowing of an appeal below and had been successful in that opposition. His approach in this case is the converse of his support of claimants' appeals in other cases. It is one which his adjudicative function entitles him to take. Further, as a Judge of the Upper Tribunal, I have an inquisitorial jurisdiction. With these points in mind, I hold that neither the Secretary of State nor myself are bound by the concessions made in the tribunal below by the presenting officer. I draw strong support for that conclusion from the statements made by a very experienced and respected Commissioner, Mr Commissioner Rice, in paragraph 7 of R(IS)14/93. There he puts matters thus:

"In the written submissions of the adjudication officer a concession was made that the claimant was at the relevant time without capital resources. However, in his oral submissions to me Mr Butt resiled from that concession, and contended that this was very much an open question which fell for consideration. Mr Shrimpton complained in no uncertain terms that he was taken by surprise. Although he did not seek an adjournment to deal with the point, he complained that there should have been some indication that the Department's attitude had changed. He went further, and argued that the Department were, in view of their concession in the written submissions, precluded from resiling therefrom. The position was analogous to pleadings. Whilst I appreciated Mr Shrimpton's irritation at the change of attitude on the part of the adjudication officer, I pointed out to him that, as this was an inquisitorial jurisdiction, I had to consider every point relevant to the issue, whether put forward by the parties or not, and for that matter I was not bound by any concession made by either party. Mr Shrimpton contended that this was not an inquisitorial, but an adversarial jurisdiction. I rejected that contention. It has always been accepted that this jurisdiction is inquisitorial in nature, a point emphasised at paragraph 14 of CIS/360/1991 where specific reference is made, in support of the proposition, to Reg v. Medical Appeal Tribunal (North Midland Region) ex parte Hubble [1958] 2 QB 228 at page 240; R v. Deputy Industrial Injuries Commissioner ex parte Moore [1965] 1 QB 456 at pages 486-7 and to the following reported cases R(U) 5/77; R(I) 6/81; R(S) 4/82 (T); R(F) 1/83; R(SB) 2/83 (T); R(S) 1/87."

I accept that there is a procedural difference between the case just cited and the present one in that in R(IS) 14/93, the concessions in question were both made and withdrawn at appellate level. However, I do not consider that affects the application of the statement of principle cited above to the present proceedings. Like Mr Commissioner Rice, I hold that I am "not bound by any concession made by either party" adding whether made before the Upper Tribunal or, as here, before the Appeal Tribunal (the statutory predecessor of the First-tier Tribunal). The concessions made by the presenting officer at the appeal tribunal hearing do not therefore preclude the Secretary of State from submitting before me that the tribunal decision should be set aside as affected by a mistake of law.

12. In regard to the issue of legitimate expectation, Miss Haldane helpfully referred me to the detailed analysis of this developing area of public law by Lord Reed in Shetland Islands Council v Lerwick Port Authority [2007] CSOHO5. I hold that, in this case, no question of legitimate expectation arises which prevents the Secretary of State from resiling before me from the concessions made before the tribunal below. I accept Miss Haldane's submission to that effect. I do not consider that the making of the concessions by the presenting officer amounted to an undertaking that the Secretary of State would not exercise his statutory right to seek permission to appeal against the tribunal's decision, or in the event that such permission was granted that he would not seek to argue before the Upper Tribunal that the tribunal's decision was incorrect in law. At the very least, the concessions were not clear and unambiguous representations to that effect.
13. I thus move on to consider whether the tribunal's decision did involve the making of a mistake of law. The main ground on which that was submitted by Miss Haldane was that their reasoning was inadequate. She contended that it did not satisfy the criteria laid down by the House of Lords in South Bucks District Council v Porter (No.2) [2004] 1WLR1953 at p.1964, paragraph 36. She described those criteria as the template for the sufficiency of tribunal reasons. The case just cited related to planning law. However, the criteria for the adequacy of reasons contained in it are equally applicable to the decisions of tribunals dealing with social security matters. See paragraph 10 of R(DLA) 3/08, a decision of a Tribunal of Commissioners. Mrs Brown did not dispute that proposition. Rather, she submitted that the tribunal's reasoning satisfied the South Bucks District Council criteria. In particular, she emphasised, correctly, that the adequacy of a tribunal's reasons depended on all the circumstances, especially the content of oral and written submissions made to it, including any concessions. I agree that it is of considerable importance to take account of the submissions, oral and written, made to a tribunal in assessing the sufficiency of its reasons. However, even doing so, I consider, that the tribunal's reasoning is inadequate to explain its decision properly either to the Secretary of State as the losing party before it or to me as the Upper Tribunal Judge. The texts of the tribunal's decision notice and of the key passage in its reasons are laid out in paragraph 7 above. The decision notice indicates that the tribunal held that no overpayment of benefit had been established rather than that no recoverable overpayment had been established. However, they do not explain explicitly or clearly in that key passage why they reached that conclusion. At best, it is left to inference why they considered that no overpayment of benefit had been made out. The gist of the submission from the claimant's representative in paragraph 1 of document 141 accepted by the presenting officer and, thereafter, by the tribunal, according to paragraph 4 on document 159, was that the decision maker had used an inappropriate provision in Regulation 8 of the Computation of Earnings Regulations 1996 to calculate the claimant's part-time earnings. However, in that submission, the claimant's representative did not explicitly spell out what she considered the proper method of calculation to be. The text of paragraph 4 on document 159 suggests that a positive alternative to the method of calculation used by the decision maker had been advanced by the claimant's representative. That had not been done, at least explicitly. The tribunal's reasoning gives the impression that they had accepted such an alternative method. That does not accurately reflect the submission in question. Even more significantly, it is not explained, why, accepting that submission, they reached the conclusion that no overpayment whatever had been made out. Candidly, at the oral hearing, Mrs Brown admitted that to secure that result it was more probable that she would have had to succeed in more than one of the submissions which she had made on that issue rather than merely on the first of them. Given the terms of the tribunal's decision which clearly referred to no overpayment at all, rather than no recoverable one, having been established, it was unnecessary for them in justifying that decision to make any statement on whether the claimant had fulfilled her duty of disclosure. Given, however, that they had accepted a concession in respect of that matter from the presenting officer, it is perhaps surprising that they chose to ignore it completely in their statement of reasons. Be that as it may, the inadequacy of the tribunal's reasoning involves the making of a mistake of law of sufficient materiality for their decision to be set aside.
14. It is not possible for me to remake the tribunal's decision. I thus refer the case for redetermination by a freshly constituted tribunal, in accordance with the directions in paragraph 15 below.
15. The new tribunal should proceed as follows -

(a) They should recalculate the claimant's weekly earnings in the periods at issue by using Regulation 8(1)(b)(iv) of the Computation of Earnings Regulations 1996, as submitted at the hearing both by Miss Haldane and Mrs Brown. They should not use Regulation 8(3) of those regulations for that purpose.

(b) They should note that Regulation 9(3) of the Computation of Earnings Regulations 1996 does not have the effect of allowing the deduction of expenses contended for by the claimant's representative.

(c) They should however decide on the submissions of the claimant's representative regarding Regulations 4 and 8 of the Invalid Care Allowance Regulations 1976.

(d) Having done all of the above, the new tribunal should consider whether any overpayment of invalid care allowance had been made out and, if so, how much.

(e) If they decide that an overpayment has been established they must then go on to consider, having regard to Regulation 32 of the Claims and Payments Regulations 1987 and Section 71 of the Social Security Administration Act 1992 whether that overpayment is recoverable from the claimant on the ground of her failure to disclose a material fact.

(f) Finally, they should recall that the legal onus of establishing the existence of a recoverable overpayment lies with the Secretary of State.

16. The appeal by the Secretary of State thus succeeds. The merits are not determined in this decision. They will be determined by the new tribunal applying the directions in paragraph 15 above.

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 14 May 2009