DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeals by the Appellant.

 

The decisions of the Manchester First-tier Tribunal dated 21 March 2013 under file references SC946/12/10318 & SC946/12/10319 involve an error on a point of law. The First-tier Tribunal’s decisions are set aside.

 

The Upper Tribunal is not in a position to re-make the decisions under appeal. It therefore follows that the Appellant’s appeals against the Secretary of State’s decision dated 13 August 2012 (the entitlement decision) and 24 August 2012 (the overpayment decision) are remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below. 

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

DIRECTIONS

 

The following directions apply to the hearing:

 

(1)        The appeal should be considered at an oral hearing at a venue convenient for the Appellant. 

 

(2)        The new First-tier Tribunal should not involve the tribunal judge who was previously involved in considering this appeal on 21 March 2013.

 

(3)        If the Appellant has any further written evidence to put before the tribunal, this should be sent to the tribunal office in Liverpool within one month of the issue of this decision.

 

(4)        The District Tribunal Judge responsible for listing directions may wish to consider the nature of directions associated with the CCTV footage, including directions as to the production of the footage itself, the clerical log and the RIP1 authorisation.

 

(5)        The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.

 

 

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.

REASONS FOR DECISION

 

The Upper Tribunal’s decision in summary

1.       The Appellant’s two connected appeals to the Upper Tribunal are allowed. The decisions of the First-tier Tribunal (“the tribunal”) involve an error on a point of law. I therefore set aside the tribunal’s decisions.

 

2.       The case now needs to be re-heard by a new tribunal. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new tribunal will succeed on the facts.

 

3.       So the new tribunal may reach the same, or a different, decision to that of the previous tribunal. It all depends on the findings that the new tribunal makes.

 

4.       This is a case in which the tribunal decided, after a hearing at which the Appellant was present and gave evidence, that she was not entitled to, and so had been overpaid, income support. This was because she was said to have failed to disclose the material fact that she was living together as husband and wife with her partner. As a result, a substantial sum was owing and recoverable from her (amounting to nearly £19,000 in relation to a period of about two years). For the purposes of this decision I refer to the Appellant as Ms R and her partner as Mr D. A further individual, who makes a fleeting appearance, is a Mr A, who was the ex-partner of the Ms R’s mother and wrote a letter in support of the Appellant’s case. I refer to the property at which the Appellant was living at the relevant time as No 118.

 

The grant of permission to appeal to the Upper Tribunal

5.       Mr Alex Jolley of Trafford CAB has been acting as the Appellant’s representative. He made a written submission to the tribunal below but does not appear to have acted at the hearing itself. He applied for permission to appeal on four grounds. I gave permission to the Appellant to appeal to the Upper Tribunal in the following terms:        

 

‘Ground 1: the failure to mention Mr A’s letter

2. I should say at the outset that I do not think there is much mileage in this ground. Technically it might have been better to mention the letter, but it arguably falls into the same camp as the neighbour’s letter, if not more so – i.e. the author could not realistically be regarded as an independent witness and the evidence could not be properly tested.

 

Ground 2: the CCTV footage

3. I have to say this appears at first sight to be the strongest ground of appeal (and by some margin). This was a case with a binary decision to be made: either the Department was right (the alleged cohabitant was an actual cohabitant who lived with the claimant, and the other address was in effect contrived) or the Appellant was right (the alleged cohabitant spent a considerable time at the claimant’s address, but was a regular visitor rather than an actual resident, with a genuine address elsewhere). That being so, it was surely crucial to establish how much and what time the alleged cohabitant spent at the Appellant’s address. As regards para. 12 of the statement of reasons, how could the judge form a “general impression” in part from evidence (CCTV footage) that she had not actually seen? The alleged cohabitant’s evidence was unclear – at some points he seemed to agree he was at the claimant’s address most of the time he was not working or sleeping; at other points he contradicted this. So surely the tribunal should have called for the actual evidence?

 

Ground 3: alleged inconsistency in the Appellant’s account

4. The potential problem with this ground is that it appears to assume as fact what it actually asserts – namely that the alleged cohabitant came to the address for practical reasons on a variable basis, rather than (as the tribunal found) actually living there.

 

Ground 4: Appellant did not realise obligation to report

5. The difficulty here is that the representative’s argument seems to ignore the distinction between the duty under regulation 32(1A) and that under 32(1B). For the purposes of 32(1A) what is a material fact is to be determined objectively, irrespective of the claimant’s understanding (see e.g. B v Secretary of State for Work and Pensions [2005] EWCA Civ 929 reported as R(IS) 9/06).’

 

The parties’ submissions to the Upper Tribunal

6.       Mr B A Wilson, for the Secretary of State, supports this appeal to the Upper Tribunal on two of the four grounds identified above. He does not support the appeal on grounds 1 and 4. On balance he supports the appeal on Ground 3, arguing that the tribunal should have explored the facts more closely to establish whether there was really an inconsistency in the Appellant’s account. Mr Wilson agrees that the second ground of appeal relating to the CCTV evidence is the most compelling and supports that ground. He therefore suggests that the tribunal erred in law, this appeal should be allowed, and the matter sent back to be re-heard by a different tribunal.

 

7.       Mr Jolley has not made any further substantive comments, doubtless keeping his powder dry for the re-hearing before a new tribunal.

 

The Upper Tribunal’s decision

8.       The tribunal may, or may not, have come to the right decision on the facts. I simply do not know. However, I formally find that the tribunal’s decision involves an error of law on the basis of Ground 2 as outlined above. I do not need to decide Ground 3 in those circumstances. I do not accept Grounds 1 and 4.

 

The First-tier Tribunal and the CCTV evidence

9.       The Department’s submission to the tribunal read in part as follows:

 

“Surveillance was undertaken at No 118 from 17/10/11 to 03/01/12 (doc 72-73). Mr D observed leaving the property at a regular time, with Ms R, taking her son to school. During CCTV observations Mr D was seen at 118 almost daily and was not observed leaving the property to return to his alternative address.”

 

10.     The surveillance record at pp.72-73 of the file listed 25 separate observations on 13 separate dates between October 2011 and January 2012. Some were ‘one-liners’ (e.g. “Drive by H/A [presumably home address]. Still no vehicle or persons seen”); other entries were much more extensive and detailed. The surveillance  record also referred to a ‘clerical log’, which appears to have been a different and more detailed document. This clerical log was said to show the “almost daily” observations at No 118; the surveillance record itself, of course, showed nothing of the sort, as it represented at best the ‘edited highlights’ of the clerical log.

 

11.     On 22 February 2013 Mr Jolley wrote to the Department asking to be provided with copies of the CCTV footage itself “as we believe that it would be unjust for the appellant to be denied access to evidence which has been used to decide her claim.” It does not appear that he got an answer to that request (at least at that time).

 

12.     Mr Jolley provided a written submission to the tribunal on the Appellant’s behalf. In that submission he made various observations about the 2-page surveillance record and what it purported to show. He added that the “clerical logs are not included in the appeal bundle, nor is the actual CCTV footage itself. We have requested a copy of the footage from both the DWP and local authority but this has not been provided. Consequently, we submit that it is unjust for this ‘evidence’ to be given any weight.”

 

13.     The tribunal dealt with the issue of the CCTV footage as follows:

 

“12. I also took note of the records of surveillance that had been conducted in relation to No 188. Observations had been carried out between 17.10.11 and 22.11.11 when Mr D was observed 4 times at the property helping her and taking the children to school, and there had been CCTV surveillance between 22.11.11 and 03.01.12 when Mr D was said to have been there ‘almost daily’. I noted what Ms R’s representative had said about this in his written submission and agreed that it was regrettable that more information had not been provided. However, the general impression given, which I accepted, was that Mr D was a very frequent visitor to her home, which was consistent with many of the statements made both by Ms R and by Mr D. What I had to decide was whether those visits represented only the visits of someone providing care for Ms R or of someone seeing his children, or whether those visits represented Mr D being part of Ms R’s family unit and living with her in her household as husband and wife. I decided that they were a family unit at No 118. Ms R and Mr D had a common household there.”

 

The parties’ submissions on the CCTV evidence

14.     In his grounds of appeal to the Upper Tribunal, Mr Jolley repeated his argument that the tribunal should have had the further evidence before it, as it had been relied on in reaching a decision on Ms R’s appeal. By this stage Mr Jolley had obtained copies of four discs of CCTV footage. He stated that “in the vast majority of the footage, Mr D is not seen arriving or leaving the property at all, which is quite at odds with the claim that he was seen there on an ‘almost daily’ basis.”

 

15.     Mr Wilson, for the Secretary of State, agrees with my observations when giving permission to appeal (see paragraph 5 above, as regards Ground 2). He makes two points. First, he argues that there was insufficient evidence for the tribunal to arrive at the conclusion it did in the absence of the CCTV footage itself. On that basis alone, the tribunal went wrong in law. Second, he agrees that Mr D’s evidence was unclear on some points, making it all the more necessary to see the footage. A “general impression”, based on evidence that had not been directly viewed, was not good enough.

 

The reason why the First-tier Tribunal erred in law over the CCTV evidence

16.     The tribunal erred in law for the reasons which are evident from the discussion above. The question of Mr D’s movements was plainly crucial to resolving the factual dispute on this appeal. It was not good enough for the tribunal to rely on what was at best second hand (and possibly third hand) evidence in the form of the surveillance record when the CCTC footage and the clerical log could have been called for. As Mr Commissioner Williams explained in CIS/1481/2006 (at paragraph [94]), the tribunal:

 

“must see for itself the whole of the relevant video and the written record and, if asked, listen to the tapes of the interview, in order to establish the facts. It must decide for itself what the evidence shows, and not rely on hearsay evidence or secondary evidence or assertion or assumption when the primary evidence is readily available.”

 

17.     It obviously was “regrettable” that Mr Jolley’s request had not borne fruit (at that stage). But the answer was in the tribunal’s hands. It should simply have adjourned the hearing and made appropriate directions for the CCTV footage and the clerical log to be produced under rule 15 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2865). That failure to adjourn, or to consider adjourning, was a further error of law. It is true that Mr Jolley could have formally made an application under rule 6 to the tribunal in advance of the hearing for an order under rule 15 directing the production of the relevant evidence. Perhaps he thought it would be released in time. In any event, his omission to do so did not relieve the tribunal of its inquisitorial function to act as I have indicated.

 

18.     I would also just add that the tribunal’s use of the word “visit” was unfortunate. One would not normally talk of someone who was a member of a household at a particular address to be visiting that address – you would say they had gone home. To visit implies to call on someone else socially, to go to another place for a specific purpose or to stay with as a guest. The use of this verb in the present context assumed what the Department had to prove.

 

What happens next: the new First-tier Tribunal

19.    There will need to be a fresh hearing of the Appellant’s appeals before a new tribunal. Although I am setting aside the tribunal’s decision, I should make it clear that I am making no finding, nor indeed expressing any view, on whether or not the Appellant was entitled to income support or was overpaid, and whether any overpayments were recoverable. Those are matters for the good judgement of the new tribunal. That tribunal must review all the relevant evidence and make its own findings of fact. 

 

20.     There is one final issue relating to the CCTV footage which I should mention. There are statutory controls in place as regards the surveillance of individuals by government departments and public authorities (see the Regulation of Investigatory Powers Act 2000, known as “RIPA”). Prior authorisation is needed in various circumstances (using a form known as a RIP1). These issues have been analysed in previous decisions by the Social Security Commissioners and the Upper Tribunal: see e.g. R(DLA) 4/02 (at [paragraphs [6]-[21]), CIS/1481/2006 (at paragraphs [34]-[54]) and DG v Secretary of State for Work and Pensions [2011] UKUT 14 (AAC) (at paragraphs [43]-[47]). The present case raises a novel and potentially troublesome point about RIPA authorisation.

 

21.    The surveillance record includes the following entry:

 

“Arrived at [a specific local authority] Housing Office to meet colleagues from Trafford Housing CCTV Control to view camera and to provide requirements. Copy of authorised RIP1 provided as requested. I requested that the camera be trained on the driveway and front door to avoid collateral intrusion as the camera is situated outside a primary school. The camera is now set to static and will record 24/7.”

 

22.    “Collateral intrusion” is a term used to describe surveillance which indirectly intrudes on the privacy of other individuals who are not themselves the subject of any investigation (e.g. passing schoolchildren). Furthermore, as the DWP’s Fraud Guide explains (at p.867), ordinary overt use of CCTV footage does not normally require RIPA authorisation; it is a fact of life in what is sometimes referred to as the “surveillance state”. However, the use of overt CCTV in “a covert and pre-planned manner as part of a specific investigation or operation” (p.868) will typically require RIPA authorisation as it falls within the statutory definition of “directed surveillance”. The new tribunal may wish to call for the production of the RIP1 to satisfy itself that the necessary authorisation was secured for all forms of surveillance used.

 

23.    The simple fact that evidence may have been obtained (if that is the case, and of course I simply do not know) in breach of the scope of the RIPA authorisation does not mean that it is inadmissible: see rule 15(2)(a). However, it may well affect the weight to be attached to such evidence (see CIS/1481/2006 at paragraph [94] per Mr Commissioner Williams). Of course, Mr Jolley may wish to have the CCTV footage admitted as evidence as he may take the view that it helps rather than hinders the submissions he makes on the Appellant’s behalf.

 

Conclusion

24.     I conclude that the decision of the First-tier Tribunal involves an error of law.  I allow the appeal and set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new tribunal subject to the directions above (section 12(2)(b)(i)). My decision is also as set out above. 

 

 

 

 

 

Signed on the original                                  Nicholas Wikeley

on 08 May 2014                                             Judge of the Upper Tribunal