Upper Tribunal (Administrative Appeals Chamber)

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[2009] UKUT 47 (AAC) (09 March 2009)
Main Category: Incapacity benefits

IN THE UPPER TRIBUNAL Appeal No. CIB/8/2008

ADMINISTRATIVE APPEALS CHAMBER

Before S M Lane

Decision: My decision is given under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007:

I SET ASIDE the decision of the Liverpool Tribunal, held on 23/10/07 under reference 069/07/00367 because it was contains an on a point of law and RE-MAKE the decision:

(i) The appellant is liable for an overpayment of Sickness, Invalidity and Incapacity Benefit of £1792.86. The overpayment is recoverable from him.

Sickness Benefit: 30/1/95 to 18/2/93 and 27/2/95 to 18/3/95	= £161.40
Invalidity Benefit: 20/3/95 to 12/4/95	= £120.75
Incapacity Benefit: 13/4/95 to 21/5/95, 5/6/95 to 10/7/95 and 28/8/95 to 8/4/96	= £1510.71

(ii) There has been a breach of Article 6(1) because the appellant was not accorded a hearing in reasonable time. The Upper Tribunal declines to grant the remedy requested by the appellant.

(iii) There has been no breach of Article 6(1) in respect of the right to a fair trial.

REASONS FOR DECISION

This appeal has been transferred to the Upper Tribunal (Administrative Appeals Chamber) under the Transfer of Tribunal Functions Order 2008 (SI2008/2833). Upper Tribunal Judge Lloyd-Davies, sitting as a Social Security Commissioner, gave the appellant leave to appeal and issued extensive directions during the case management stage. The appeal has been passed to me for final decision. I adopt the directions given by the Judge, which I consider to be entirely appropriate.

The appeal to the Upper Tribunal concerned overpayments of Sickness Benefit, Invalidity Benefit and Incapacity Benefit over a number of years and the extent of transitional protection of the appellant's award on the changeover from Invalidity Benefit to Incapacity Benefit from April 1995, which in turn affected the calculation of the overpayment. At the First-tier Tribunal (Social Entitlement Chamber), issues relating to relating to the date of notification of the decision, date of appeal, estoppel, and res judicata were raised in addition to breaches of Article 6 of the European Convention on Human Rights.

The Secretary of State did not support the appeal on the ground of Article 6, but did so on the basis of the tribunal's error in relation to entitlement to transitional protection during part of the period of the overpayment. He submits, however, that the tribunal's decision was the only one open to it, despite the errors identified.

The appellant's representative, Mr Craven, requested in his OSSC1 that, if leave to appeal were granted, the Upper Tribunal should substitute its own decision.

The facts and adjudication history: The facts leading to the overpayment were relatively straightforward. The appellant has been unfit for work since 1994 and in receipt since then of the Sickness Benefit, Invalidity Benefit and Incapacity Benefit in turn. He indicated on his Sickness Benefit claim form, which was received by the Department on 6 September 1994, that he wished to claim extra money for his wife. The Department duly sent him a separate form to claim an adult dependency increase on which the appellant answered 'No' to the question 'Has your spouse an employer?' He claimed Invalidity Benefit on a form received by the Department on 30 March 1995, and again indicated on the form that he wanted an increase for his wife. On the further claim form for adult dependency increase sent to him, he once again answered 'No' to the question 'Does your wife have an employer?' These two answers were not correct. His wife had been working for Liverpool City Council since 1991. The appellant's Invalidity Benefit was treated as a transitional award of Incapacity Benefit from and including 13 April 2005 by virtue of regulation 17 of the Incapacity Benefit (Transitional) Regulations ('the Transitional Regulations'). The increase in respect of the appellant's wife continued to be paid under regulation 24 of those Regulations.

As a result of a routine survey of Liverpool City Council's employees carried out on 10 March 1996, the Department discovered that the appellant's wife was working. The pay statements they obtained showed that her earnings during many of the weeks in question exceeded the amount of the adult dependency increase. This meant that, disregarding the period during which the appellant's adult dependency increase was transitionally protected, the appellant was not entitled to the increase. The relevant provisions are in regulation 24 of the Transitional Regulations.

At an interview held on 4 April 1996, the appellant admitted that he did not declare that his wife was working. On a review form completed on 9 April 1996, however, he stated that he was not aware that he was receiving benefit for his wife, that a friend in the same circumstances was receiving the same amount, and that although he lived under the same roof as his wife, they lived separate lives.

It is from this point onward that difficulties arose. Although an adjudication officer made a decision on 15/3/97 regarding entitlement during the disputed period and the resulting overpayment, that decision was not notified to the appellant, who only found out about it when the Department commenced deductions from his benefit at some time in 2000. After the appellant protested, the Department issued a formal notice of the decision to him on 28 July 2000, against which the appellant appealed. On 4 September 2001 a tribunal allowed his appeal because the Secretary of State had not complied with the requirements of section 71(5A) of the Social Security Administration Act 1992.

The appellant thought that this marked the end of the matter, but the Secretary of State began the process afresh by making a decision on 19 April 2002 which superseded the relevant entitlement decisions and raised an overpayment in conformity with the requirements of section 71(5A) of the Social Security Administration Act 1992. He notified it to the appellant on 20 May 2002. The appellant appealed against this decision on 20 May 2002, but the Secretary of State lost the paperwork so that no action was taken to progress the appeal. The department did not pursue the overpayment until 2006. Upon doing so, the appellant purported to 're-enter' an appeal on 2 October 2006. The appeal was finally hearing on 23 October 2007.

Summary of Significant Events

10/3/96: - discovery that appellant's wife was working.

15/3/97: - decision maker's decision, not notified to appellant.

28/07/00: - formal notification of decisions to appellant.

03/08/00: - appeal entered against decision of 28/07/00.

02/10/00: - Human Rights Act 1998 comes into force.

04/09/01: - Tribunal allows appeal.

19/04/02: - Secretary of State makes fresh decision.

20/05/02: - Decision notified to appellant.

Appeal entered.

20/05/06 & 08/09/06: - Secretary of State pursues overpayment.

02/10/06: - Further appeal entered.

23/10/07: - Hearing

The Date of Appeal

The first issue that needed to be decided was whether the appellant had entered a valid appeal, and if so, its date. If the date of the appeal were 2/10/06, it would appear to have been outside the absolute 13-month time limit after which late appeals cannot be admitted under regulation 32 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

The appellant argued that the appeal was made in 2006 and was in time because the Department had not notified the appellant of the decision of April 2002 until 2006. He argued that documents showing that the decision was notified in May 2002 must have been falsified, as it was otherwise inconceivable that the Department would not have begun recovery proceedings until 2006.

The Secretary of State, on the other hand, gave two different accounts of the basis upon which the appeal was admitted – (i) that the Department had a record of an appeal in 2002 and (ii) that the Secretary of State extended time because it was in the interests of justice.

The tribunal brushed over this matter by stating that the Secretary of State had rightly admitted the late appeal, without explaining how this was so. In the absence of some explanation, there was no apparent justification for the tribunal's decision admitting an appeal that was well outside the 13 month time limit. This amounted to an error of law.

It is not at all inconceivable to first tier and upper tribunal judges working in this field that lengthy delays occur between decisions on entitlement, recoverability and actual recovery. In all events, Judge Lloyd-Davies came to a preliminary conclusion on this matter that the decision was, on balance, issued in May 2002 and that the appellant made an in-time appeal in May 2002. He gave the parties time to challenge his preliminary conclusion. The Secretary of State accepted the conclusion, but the appellant did not reply. In the circumstances, I adopt Judge Lloyd-Davies' reasoning and conclusion. I would not have accepted Mr Craven's submission anyway. I do not consider that the reasons he puts forward for this submission go anywhere near establishing as credible that the department would falsify documents. There is simply no reason why it should have done so.

The conclusion that the appeal was in time is, of course, favourable to the appellant. It gets over the problem of the tribunal's jurisdiction to hear the appeal at all, and also leaves open the appellant's arguments relating to Article 6 of the European Convention on Human Rights ('the Convention').

The live issues:

a. Whether the delay in the disposal of the dispute between the appellant and the Secretary of State for Work and Pensions was a breach of Article 6(1) of the European Convention on Human Rights in respect of either the right to a hearing within a reasonable time, or right to a fair hearing, and if so, with what effect;

b. The dates for which the appellant was entitled to transitional protection in relation to an adult dependency addition to his Incapacity Benefit following the conversion of his Invalidity Benefit to Incapacity Benefit and its effect on the amount of the overpayment. The remaining calculations were not otherwise in dispute.

Has there been a breach of Article 6?

Article 6, so far as relevant to this appeal, states:

'In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.'

The appellant submitted that there had been unreasonable delay in bringing the decision to a hearing, and that the period of unreasonable delay ran either from the date of the original decision in 1997 or, at the latest, from 28/7/00 when the original decision was finally notified to the appellant. He submits it would be wrong to set time running from notification of the fresh decision on 20 May 2002. To do so would, in effect, reward the Secretary of State's initial failure to get the decision right and undermine the appellant's right to have the substantive issues determined in a reasonable time. The Secretary of State argued that the period of delay could only run from 20 May 2002, when the appellant appealed the decision, and not from any earlier date, because the appellant's appeal against the earlier decision taken in 1997 had been allowed and the appellant's rights in relation to it had come to an end.

The tribunal dealt with the issue of delay by dividing the period of delay into two basic parts: from 19/4/02 to 2/10/06 and from 2/10/06 to 23/10/07. The tribunal decided that although there was no satisfactory reason for the delay from April 2002 to October 2006, there had been no breach of Article 6 because the appellant's late appeal had been properly accepted, the delay did not cause him any detriment and did not prevent a fair trial from taking place. As regards the period from October 2006 – October 2007, there was no unreasonable delay. The tribunal did not expand on these reasons.

The appellant's complaint about the tribunal's decision on this matter is that it did not give sufficient reasons for its decisions and did not address the case law cited to it on Article 6 correctly, relying particularly on R v Boolell [2006] UKPC 46, Union Alimentaria Sanders v Spain [1989] II EHRR CD96, and Procurator Fiscal v Dyer and Watson [2002] UKPC D1 ('Dyer').

A tribunal does not err in law by failing to deal with each and every case cited to it, especially where, as here, they were simply presented to the tribunal as extracts. The tribunal did, however, need to address the principles in the relevant cases which were said to affect the appeal.

In dealing with the question of unreasonable delay, the tribunal did, however, err in several respects. It ran together the question of unreasonable delay in holding a hearing with that of whether a fair trial was possible. These are separate and independent elements of Article 6, as held in Porter v Magill [2002] UKHL 67, a civil case in the House of Lords which is accordingly both binding and directly relevant to a civil dispute such as this, and Procurator Fiscal v Dyer and Watson [2002] UKPC D1 ('Dyer'), a Privy Council case in the criminal law sphere. Dyer has been approved in R(IS)2/04.

The tribunal also erred by concluding that, because there was no detriment to the appellant, the delay was not a breach. This is incorrect: Procurator Fiscal v Dyer and Watson [2002] UKPC D1 ('Dyer').

Dyer reviews the European Court of Human Rights case law extensively and sets out the principles on which unreasonable delay is to be assessed. Where there is unreasonable delay, a breach is not dependent upon proof of prejudice or detriment arising from the delay - prejudice is presumed if the delay is unreasonable. Prejudice suffered through delay may, of course, make the appellant's position stronger, but a lack of prejudice does not change the character of a breach that has already arisen: paragraphs 73, 78-79, per Lord Hope of Craighead; paragraph 50, per Lord Bingham of Cornhill. Dyer also confirms that the manner in which administrative authorities deal with a dispute can be material to the issue of whether there has been unreasonable delay in providing a hearing. The Secretary of State has not disputed this in the present appeal. In light of the above authorities, the appellant's citation of Boolell and the other cases did not add to his case.

The principles in Dyer relating to delay, stated in paragraphs 52 – 55 therein, can be stated briefly:

(i) Decide whether on the face of it, without more, whether the period of time elapsed gave real cause for concern. The threshold to be reached before there can be said to be a breach of Article 6 is high (per Lord Bingham, paragraph 52) or relatively high (per Lord Hope, paragraph 78).

(ii) If the period of time that had elapsed did not give real cause for concern on the face of it, then that was the end of the matter.

(iii) If the time elapsed did give real cause for concern, go on to consider all of the circumstances of the individual case, with particular attention to three main factors:

a. The complexity of the case,

b. The conduct of the party claiming the breach, and

c. The manner in which the administrative and judicial authorities have dealt with it. It is up to the state to explain its delay satisfactorily.

These criteria apply in both the criminal and civil contexts: Konig v Germany 2 EHRR 170, paragraph 99.

Application of the law to the facts

It was the Secretary of State's responsibility to prepare the appeal and send it to the Tribunal Service, but this did not happen. The timeline shows a delay of approximately 5 years from the time the fresh decision was made in April 2002 which was solely caused by an administrative failure to progress the appeal. The appellant does not appear to have engaged in delaying tactics, and though he did not display any enthusiasm in reminding the Secretary of State of the outstanding overpayment, it would be harsh to characterise this as blameworthy in the context of benefit overpayments.

At the latter end of the period, from September 2006 - 2 October 2006 (when the appellant 're-entered' an appeal), there must have been correspondence between the parties to clarify the question of whether the Secretary of State had notified the appellant of the decision in April 2002. Nothing came of this, and the Secretary of State seems to have taken a further 6 months to decide that it was appropriate to extend time for the appeal. This was far too long.

The process of listing and hearing the appeal then took approximately 6 months, from April 2007 to October 2007, owing to a judicial constraints and the need for further submissions. This was by no means unreasonable.

On these facts, the delay between April/May 2002 and the April 2007 comprised unreasonably long and constituted a breach of Article 6(1). The Secretary of State has conceded as much.

The date of the Secretary of State's decision (April 2002) and the appeal in May 2002 are so close in time that it does not make any difference which date is chosen as the date from which time began to run for the purposes of a breach of breach of the guarantee to a hearing in a reasonable time in Article 6. R(IS)1/04 and R(IS)2/04 indicate that time should run from the date of the Secretary of State's decision where the issue is one affects an existing award. These decisions may need revisiting but it is not necessary to so for this appeal.

It is not necessary for the proper resolution of this appeal to decide whether the period from 1997 to 2002 should be taken into account. The delay during this earlier period cannot affect in any way the outcome of the appeal or the remedies that the Upper Tribunal can give. This is discussed under 'Remedies'.

The appellant also submitted that there was a breach of another Article 6 right, the right to a fair trial, caused by the lengthy delay. He argued that he was less likely to get a fair trial even if he was unable to point to any specific prejudice (per Lord Bingham, Bell v Director of Public Prosecutions, [1985] AC 939), and that the tribunal erred therefore erred in law by simply concluding that he had not suffered any detriment.

Bell v Director of Public Prosecutions is a criminal law case in which the liberty of the citizen or other punishment may be at stake, thus requiring a higher degree of vigilance by the courts to ensure fairness. In a civil case, the duty of the tribunal is, in general, to afford each party a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a disadvantage vis-à-vis his opponent (Ankerl, European Convention on Human Rights, 22 February 1996, CIB/2308/2001)). In the context of civil litigation, a breach based on non-specific prejudice would be disproportionate to the nature of the appeal and unlikely amount to a breach of an appellant's human rights under Article 6.

Moreover, a tribunal will generally be able to ensure fairness in an overpayment appeal by the correct application of the burden of proof where the evidence is finely balanced. As the burden is on the Secretary of State in an overpayment case, if he is unable to adduce sufficient evidence to discharge it, he will fail. In this case, however, the Secretary of State was able to produce full documentation, including claim forms and the appellant's contemporaneous statements. The appellant had a full and fair opportunity to peruse the documents. Although his memory might have faded, the claim forms and documents he signed at the relevant times would actually assist him to remember what he had said. He was represented and able to address any points that arose. In these circumstances, and remembering that this is a civil matter, there was no breach of the appellant's right to a fair hearing.

What remedies are available?

While a breach of a Convention right may, in principle, result in monetary compensation under the Human Rights Act 1998, neither the First-tier Tribunal (Social Entitlement Chamber) nor the Upper Tribunal have power to make such an award. It is no doubt for this reason that the appellant seeks to have his appeal simply allowed or stayed indefinitely. This, however, would be an inappropriate remedy. The jurisprudence of both the European Court of Human Rights and British courts indicates that, even where there has been very lengthy delay in cases involving serious criminal charges, it is disproportionate to stay or allow an appeal in all but the most exceptional cases, if at all. This appeal is manifestly not an example of an exceptional case justifying the remission of the overpayment, whether the period of delay is 5 years or 10, having regard to a balance between the appellant and the public interest in maintaining the integrity of welfare benefit funds (R(IS)1/04). Dyer reviews the case law extensively and it would serve no useful purpose to repeat it here.

Remission of the overpayment would, moreover, conflict with the Secretary of State's right under the right section 71 of the Social Security Administration Act 1992 to recover overpayments without limit on how far back he may go. The Upper Tribunal has no power to declare primary legislation, of which section 71 the Social Security Act 1998 is plainly an example, incompatible with the Human Rights Act 1998 (section 4(2), 4(5)). Nor can section 71 be read in a way to make it compliant, if there was any doubt about its compliance.

In all of the circumstances, I consider that the Secretary of State's concession that the delay in bringing the appeal to a hearing was too long is a sufficient remedy for the appellant.

Failure to implement the decision as revised

The final issue is technical but nevertheless important because it significantly affects the amount of the overpayment. The original decision of 19/04/02 was that there had been a recoverable overpayment of sickness/invalidity/incapacity benefits from 30/01/95 to 18/2/95 and from 27/2/95 to 8/4/96 amounting to £2105.08 because the appellant had misrepresented that his wife was not working on his claim forms dated 8/9/94 and 25/3/95. The tribunal confirmed this decision, without having regard to a revision of the amount as shown in the Submission to take into account transitional protection under the Incapacity Benefit (Transitional) Regulations 1995, S.I. 1995/310.

In the original calculations, the decision maker assumed that adult dependency increase in the appellant's award came to an end on 13/4/1995 when the award converted into Incapacity Benefit. This was incorrect because the appellant was entitled to limited transitional protection of this element of his award under regulation 24(1) of the Incapacity Benefit (Transitional) Regulations 1995, S.I. 1995/310. This has the effect of entitling the claimant to an amount equal to the adult dependent increase following conversion of the existing award to Incapacity Benefit if the adult dependency increase had been in payment at any time within the 56 days before 13/4/1995. As the increase had been payable to the appellant between 19/02/1995 and 18/03/1995, he was, therefore, entitled to receive an equivalent amount until such time as determined under regulation 24(7). That regulation provides that the equivalent amount would cease when no increase of Invalidity Benefit had been payable for at least 57 continuous days in a period of incapacity for work. This point was reached only on 24/10/1995, having regard to the appellant's wife's earnings during that period. The result of the transitional protection was to reduce the overpayment, as stated. There has been no dispute on this (or indeed any other) aspect of the calculations.

Summary of the effect of this decision:

(i) The appellant is liable for an overpayment of Sickness Benefit, Invalidity Benefit and Incapacity Benefit of £1792.86 as follows:

Sickness Benefit: = £161.40

30/1/95 to 18/2/93 and 27/2/95 to 18/3/95 6 weeks @ £26.70 per week

Invalidity Benefit: = £120.75

20/3/95 to 12/4/953 weeks 3 days @ £34.50 per week

Incapacity Benefit: £1510.71

13/4/95 to 21/5/95 (5 weeks 4 days@ 35.25 per week = £210.42

5/6/95 to 10/7/95 (5 weeks @ 35.25 per week = £176.25

28/8/95 to 8/4/96 (32 weeks 1 day @35.25 per week =£1133.04

Total £1792.86

The overpayment is recoverable from him.

(ii) There has been a breach of Article 6(1), first sentence, because the appellant was not accorded a hearing in reasonable time. The Upper Tribunal declines to grant the remedy requested by the appellant for the reasons already given.

(iii) There has been no breach of Article 6(1) in respect of the right to a fair trial.

[Signed]

S M Lane

Judge of the Upper Tribunal

7 March 2009