Upper Tribunal (Administrative Appeals Chamber)

[2009] UKUT 27 (AAC) (09 February 2009)
Main Category: Tribunal procedure and practice

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the Wolverhampton appeal tribunal (held on 10 June 2008 under reference 053/08/00349) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).

DIRECTIONS:

The tribunal must 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 Social Security Act 1998, any other issues that merit consideration.

The tribunal must accept that the local authority did make the necessary decisions to change the claimant's entitlement to housing benefit and council tax benefit and to render him liable to repay the benefit that he had received in excess of entitlement. It must consider the claimant's grounds of appeal against those decisions.

Reasons for Decision

A. The issue and how it arises

1. The claimant was awarded housing benefit and council tax benefit on the basis that he was entitled to income-based jobseeker's allowance. When this came to an end, he claimed and was awarded housing benefit and council tax benefit on the basis of his income. The award did not take account of his private pension. The issue in this appeal is whether the local authority took the necessary steps to change the claimant's entitlement to take account of the pension and to make him liable to repay the benefit that he had been paid in excess of his entitlement.

B. The appeal to the tribunal

2. The local authority considered that it had made the necessary decisions and notified the claimant accordingly. He exercised his right of appeal and the tribunal allowed the appeal. It decided on the evidence before it that the local authority had not made the necessary revision or supersession that was required in order to change the claimant's entitlement retrospectively and to found a liability decision.

C. The proper approach to the evidence

3. The difficulty that the tribunal identified arises from the nature of the software used by local authorities, which does not allow them to reproduce the actual decision. There is, however, no requirement that the evidence of a decision must, and can only take, the form of a copy of the decision. Tribunals are required to draw appropriate inferences from the evidence provided by the local authority. What was that evidence in this case?

D. The evidence of the submission writer

4. The officer who wrote the submission for the tribunal stated: 'On 17 December 2007 the decision of 15 November 2004 and all subsequent decisions were revised.' What was the status of that statement?
5. The Social Security Commissioners and their predecessors said that statements by submission writers, decision-makes and presenting officers were not evidence, unless it was based on personal knowledge. See, for example, what the Tribunal of Commissioners said on the evidence of a presenting officer in R(SB) 8/84 at paragraph 25(6). This appears to be based on the presenting officer's status at the hearing: see the decisions of the same Commissioner in CSB/420/1981 and CSB/13/1982. As the Commissioner said in CSB/582/1987 at paragraph 9:

'9. … the position of the adjudication officer/presenting officer at the social security appeal tribunal is not just that of a party but is that of an amicus curiae [friend of the court] ...'

As such, the officer was not seen as a witness. The submission writer was likewise acting in a non-contentious capacity. (Commissioners took a similar approach to statements made by a claimant's representative: see R(I) 36/61 at paragraph 18 and R(I) 13/74 at paragraph 9.)

6. With respect to those Commissioners, their approach was out of line with the modern approach to the law of evidence and with the theoretical basis upon which tribunals proceed in making findings of fact.
7. The law of evidence is now less concerned than in the past with exclusionary rules that prevent a court taking account of particular categories of statements or hearing from specified categories of person as witnesses. Nowadays, the approach is to admit evidence for consideration and to take account of any possible deficiencies when deciding the extent to which it is persuasive of the facts to be proved. That approach was becoming evident by at least 1861: see Cockburn CJ in R v Birmingham Overseers (1861) 1 B & S 763 at 767. It is now the accepted approach. By 1973, Lord Simon was able to say in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 756 that relevance and admissibility 'are frequently, and in many circumstances legitimately, used interchangeably'.
8. Moreover, the strict rules of evidence do not apply in a tribunal: see the decision of the Chief Commissioner in R(U) 5/77 at paragraph 3. All that is required is that the tribunal's findings of fact should be based on material that is logically probative of those facts: see the opinion of the Privy Council delivered by Lord Diplock in Mahon v. Air New Zealand [1984] AC 808 at 820-821. Evidence given by submission writers or presenting officers, even if hearsay, is as capable of being logically probative as evidence, whether or not hearsay, given by anyone else.
9. Moreover, in the context of a tribunal, roles are often not as clear cut as they are in a court. For example: a claimant may be accompanied by someone for moral support who also acts as representative and gives evidence that is in part derived from personal knowledge and in part based on information provided by the claimant. Likewise, the role played by a presenting officer may be less clear cut than decisions such as CSB/582/1987 suggest. There is no reason in principle why a presenting officer cannot give evidence, as was recognises by the Commissioner in R(SB) 10/86 at paragraph 5. There is no reason to draw a distinction, so far as admissibility is concerned, between evidence within the officer's personal knowledge and other evidence. If the officer relays statements made by another officer, what is said is nonetheless evidence. However, it is hearsay evidence and this may affect its probative worth: see R(SB) 5/82 at paragraph 9.
10. On the modern approach to evidence and to the nature of proof in a tribunal, the submission writer's statement was evidence. It was also of some probative value. The writer may, or may not, have personally made the decision on 17 December 2007. If so, the writer could speak from personal knowledge. If not, the writer was able to report the contents of the computer records of the claim and was under a duty to report that information to the tribunal, as it was not accessible by the claimant: see Baroness Hale in Kerr v Department for Social Development [2004] 1 WLR 1372 at paragraph 62. Moreover, the writer had no reason to misstate what the records contained or to mislead the tribunal, as the local authority's role in the proceedings is a non-contentious one: see Diplock LJ in R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 at 486.

E. The evidence of the computer printout

11. The submission writer provided and referred to a computer printout as evidence that the decision had been made. Of that, the chairman wrote:

'A Council Officer may know at a glance what it means, and some others may be able to guess. But certainly it is not a decision, let alone a decision superseding (or revising) an earlier decision.'

12. The chairman was correct that the printout was not itself a decision. She was also correct that it was not immediately obvious to the uninitiated what it showed. The interpretation of computer printouts was considered by Mr Commissioner Walker in R(IS) 2/96. His decision was made before section 2 of the Social Security Act 1998 had authorised the Secretary of State to make decisions by computer. It may, therefore, require some reconsideration in the light of that. However, it remains an authority on the use of printouts as evidence. Mr Walker accepted that a printout supplemented by verbal evidence could show that a decision had been made (paragraph 12). I will come to the terms of the decision later.
13. Tribunals now have greater experience of printouts than they did in the early 1990s and may be able to understand one without assistance. If not, the obvious solution is to ask for an explanation. In this case, the tribunal had a presenting officer, but I can find no evidence in the record of proceedings that he was asked to explain what the printout meant. If the issue is identified on preview, it is also possible for the tribunal to issue a direction to the local authority (under rule 5 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008) requiring it to provide an explanation of the printout. Of course, problems are better avoided than tackled, so the best course is for submission writers to explain any printouts that they include in the papers.

F. The evidence of the notices sent to the claimant

14. The submission writer provided and referred to notices to the claimant that his entitlement had changed and that he was liable to repay benefit paid in excess of entitlement. Of those, the chairman wrote:

'I did wonder whether this series of Benefit Decision Notices (seven of them) were intended to be actual decisions, but that cannot be right since a single decision upon entitlement would be all that is needed. Further there must be a supersession or revision and that was not suggested at all on pages 73-79.'

15. The chairman was correct that the notifications were not decisions. They did not purport to be. They were, as they claimed to be, notifications of changes to entitlement and liability to repay. They were also evidence from which it was possible to infer, in the context of the evidence as a whole, that the decisions necessary to justify them had been taken. (It is possible that they were computer-generated and the local authority's software would only trigger them once the necessary entitlement decision had been made. However, that would require evidence from the local authority.)
16. The notices are not easy reading and their significance might not have been immediately obvious to a claimant. However, on careful reading they do identify the relevant periods, the calculations and amounts. They also contained a statement that the claimant could get in touch to ask for an explanation.

G. Conclusion

17. I consider that the evidence of the submission writer, the computer printout and the notification letters is, taken together and without further explanation of the printout, sufficient to show on the balance of probabilities that the local authority made the decisions it claims to have made in respect of entitlement and liability.
18. Either the tribunal misdirected itself by requiring the local authority to produce the decision (whether in original or a copy) or it came to a decision on the evidence that was perverse. Either way, it made an error in point of law. I set its decision aside and remit the case for rehearing subject to my direction that the local authority has sufficiently proved that it made the necessary entitlement and liability decisions.

Signed on original on 9 February 2009

Edward Jacobs Upper Tribunal Judge