Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL                                              Case No.  CIS/1023/2009

ADMINISTRATIVE APPEALS CHAMBER

1.       This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Liverpool on 28 November 2008. For the reasons set out below that decision was in my judgment wrong in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by an entirely differently constituted First-tier Tribunal. I draw the attention of the Secretary of State and the Tribunals Service (1^st tier) to my directions in paragraph 5 below.

2.       The issue before the Tribunal was whether, as contended by the Secretary of State, the Claimant had been working part-time for an entity called Quality Cleaning Services between 12 September 2006 and 19 November 2007 (“the overpayment period”). The Tribunal found that she had, and therefore dismissed the Claimant’s appeal against the Secretary of State’s decision dated 12 June 2008 by which (i) the Claimant’s award of income support was superseded and reduced in respect of the overpayment period and (ii) it was decided that there had been an overpayment of income support in respect of that period totalling £2,096.90, and that the overpayment was recoverable from the Claimant.

3.       The Claimant had been awarded income support on the ground that she was a carer. The reason for the reduction in the award was that her part-time earnings should have been taken into account. The Claimant denied that she had worked, saying that it was a case of mistaken identity – i.e. that she was not the person who had been working for Quality Cleaning Services. The Tribunal did not accept the Claimant’s evidence.

4.       In my judgment, and as the Secretary of State in supporting this appeal accepts, the Tribunal’s decision was wrong in law in that the Tribunal relied as one element in its reasoning on the fact that some 13 years previously the Claimant had been convicted for an offence involving claiming benefit while working, and given a community service order for 8 months. It appears from the Record of Proceedings (p.54) that that information had been elicited from the Claimant while giving oral evidence to the Tribunal, presumably in answer to a question by the chairman.  Under the Rehabilitation of Offenders Act 1974 that question should not have been put to the Claimant, and evidence of the conviction was not admissible in evidence before the Tribunal: see sections 4(1) and (6) and 7(2)(f) of the 1974 Act.

5.       I DIRECT as follows:

(1)      The Tribunals Service is to ensure that in the version of the papers which is put before the chairman of the new First-tier Tribunal all references to the conviction for the previous offence (including the references in this Decision) are blacked out or otherwise masked.

(2)      The Secretary of State shall consider whether to carry out the further steps and provide the further information referred to in the penultimate paragraph of the submission on her behalf in this appeal by Mr R.J. Atkinson dated 15 July 2009 (p.87). The case shall not be listed for hearing (save on the direction of a First-tier Tribunal Judge) until the Department informs the Tribunals Service that it has taken such of those steps as it intends to take.

(3)      The new tribunal will hear the appeal entirely afresh.

6.       The Claimant should of course be aware that the fact that this appeal has succeeded on a point of law is no indication as to outcome of the rehearing.

Charles Turnbull

Judge of the Upper Tribunal

26 November 2009