Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CIS/392/2014

ADMINISTRATIVE APPEALS CHAMBER

BEFOR UPPER TRIBUNAL JUDGE WARD

Decision: The decision is allowed.  The decision of the First‑tier Tribunal sitting at Durham on 25 September 2013 under Ref: SC225/12/0013 involved the making of an error of law and is set aside.  Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:-

The claimant’s appeal against the decision dated 4 March 2013 is allowed.  At the time of the claim for income support made on 17 December 2012 and that of the decision refusing it the appellant had a right to reside as the family member of a worker.  She was accordingly, not a “person from abroad” so as to have an applicable amount of £Nil.

REASONS FOR DECISION

1. The appellant, a Polish national, came to the UK initially on 1 September 2010 to join her father, also a Polish national.  She became estranged from him and was taken into care until she turned 18 on 11 July 2012.  She is single with no dependants and claimed income support on the basis of being in full-time non-advanced education and estranged (see Income Support (General) Regulations 1987, sch 1B, para 15A)..  By a decision dated 4 March 2013 her claim was rejected on the grounds that she lacked the right to reside. 

2. At the First‑tier Tribunal hearing the appellant’s representative, from Durham County Council Welfare Rights Team attended, but the appellant did not.  The representative informed the tribunal that the appellant was distressed and had asked her to put her case.  In the course of doing so the representative gave details of the father’s last known address and place of work in the UK.  (It was subsequently said that the information had earlier been given also by the appellant’s support worker to the office in Wick, but that was not evidence that was before the tribunal.)  The tribunal dealt with what the representative had said by stating that:

“Only statements of fact made by a representative as to matters within their personal knowledge are evidence.  It is the appellant who must give evidence as to the facts in issue, not the representative.  If the decision appealed against was to be effectively challenged it was incumbent on [the appellant] and those advising her to recognise the need to provide evidence.”

The tribunal went on to hold that she was not the family member of a worker and so her appeal failed. 

3. Upper Tribunal Judge White gave permission to appeal, observing that:

“The submission to the tribunal recognises the need to obtain information about the arrangements under which the appellant ceased to be in the care of the local authority … and hint at the need for enquiry into the father’s work history … but the decision seems to have been made without the decision‑maker having this information, or even having sought to obtain it.  Those are matters properly relevant to the inquisitorial function of the tribunal (even where the appellant has a representative).” 

4. The Secretary of State accepts that

“The decision of the tribunal should be set aside on the ground that the issue of rights derived from the appellant’s father was not dealt with adequately or fairly.  The approach taken by the tribunal was not consistent with that established by Kerr v Department for Social Development (NI) [2004] UKHL 23.  Once judicial proceedings had begun (when the appeal was made) the tribunal could have directed the Secretary of State to provide information about [the appellant’s] father which could then be lawfully obtained and   provided without the consent of the third party (see section 35 of the Data Protection Act 1998).”

5. I agree both with Judge White’s remarks about the inquisitorial function of the tribunal and the Secretary of State’s that fairness required the use of the tribunal’s powers to obtain the missing information.  The circumstances of a young foreign national, estranged from her father, recently having left care and apparently too distressed to attend the hearing, were such as to make it incumbent on the tribunal to avoid unnecessary formality, respond flexibly and ensure her effective participation in proceedings in her absence by obtaining the evidence necessary for the issues in her case to be properly examined.  I would add that the tribunal’s approach to the giving of evidence sits very uncomfortably with Judge Jacobs’ decision in PL v Walsall MBC [2009] UKUT 27(AAC).  This was likely to prove an uncontroversial issue capable of objective verification and not one where there was any risk of the evidence being compromised if it was mediated through a representative and it is by no means clear why the tribunal considered that only evidence provided directly by the appellant on the point would suffice.

6. At an earlier stage in proceedings, the Secretary of State, while supporting the appeal, had invited the Upper Tribunal to remit the matter to the First‑tier Tribunal for further fact‑finding.  On 11 June 2014 Judge White directed the Secretary of State to make further efforts to obtain the national insurance number of the appellant’s father and to provide details of his work and benefit record, observing “it would certainly seem possible to make enquiries of the workplace identified by the appellant’s representative.”  This prompted a reply, written only a few days later, asserting that the Secretary of State was unable to retrieve the appellant’s father’s details without a national insurance number and all efforts had been made and exhausted unless the appellant was able to provide further information on the father’s date of birth.  The content of the submission was somewhat surprising to me as the father’s surname is not a common one in the UK.  The Secretary of State did subsequently manage to obtain the father’s contribution record.  He now concedes that the father was a “worker” at the relevant time.  As a result (via regulations 7(1)(b) and 14 of the Immigration (European Economic Area) Regulations 2006), the appellant had the

right to reside as a “family member”.

C G Ward

Judge of the Upper Tribunal

14 October 2014

(clerical error corrected 23 October 2014)