Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CJSA/5207/2014

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I construe this appeal as an appeal in respect of the decision of the tribunal in relation to all five appeals before the tribunal and dealt with in the decision notice.  I set aside the decision in respect of all those appeals, and I remit the matter to be reheard as soon as possible before a new tribunal in accordance with the directions below.

REASONS FOR DECISION

1.     This is an appeal with the permission of a District Tribunal Judge against a decision of the First-tier Tribunal dated 8 August 2012 dismissing the claimant’s appeal from various decisions of the Secretary of State.  Precisely what those decisions were and what the effect is of allowing this appeal, I deal with later in the decision.

2.    The essential issues at the hearing on 8 August 2012 were whether the claimant was living together with D as husband and wife for any, and if so what, part of the period from May 2007 to December 2010, and if so, what effect that had on the claimant’s entitlement to jobseekers allowance, income support and ESA which she had been awarded in respect of at least part of that period.  The appeal had originally come before a tribunal judge for a paper decision on 5 July 2012, as the claimant had not sought an oral hearing.  That had decided to adjourn the hearing to enable the claimant to attend and give evidence.  That decision was stated to be in respect of five linked cases, SC102/12/02352, 02353, 02360, 02361 and 02363.

3.    It appears from the tribunal file that the cases were listed to start at 3pm and an application for a postponement because more time would be needed had been refused.  The claimant attended with two friends and gave evidence at the hearing on 8 August.  She had also consulted a firm of solicitors who submitted lengthy written representations for the appeal hearing in respect of all five cases.  They also prepared a six page witness statement which was signed by the claimant and verified by a statement of truth.  The solicitors did not attend the hearing as the cost was not covered under the Legal Help Scheme which enabled them to prepare the written submissions and statement.  The claimant has acted in person since then.

4.    There is no written record of the proceedings, which are stated to have been digitally recorded.  The document entitled “record of proceedings” in relation to case SC102/12/02352 merely records formal details, attendance and the fact of the recording of the proceedings.  I have no file for any of the other cases.

5.    The decision notice is headed in relation to four of the cases but not SC102/1202353.  It refuses the appeal and confirms the decisions made on 28 September and 14 October 2011.  I note that those decisions are on the file before me.  The decision dated 28 September 2011 revises an earlier decision dated 18 March 2010 and other decisions awarding income based jobseekers allowance in respect of the periods from 6 to 9 March and 5 May to 15 December 2010n on the basis that she was a member of an unmarried couple and her partner was in remunerative work.  In respect of the period from 10 March to 4 May 2010, the decision confirmed her entitlement to that benefit because her alleged partner, D, was not in remunerative work.  The decision dated 14 October 2010 was that the resulting overpayments of jobseekers allowance were recoverable from the claimant.

6.    The decision notice of 8 August 2012 goes on to find that the claimant and D were “living together in the same household from 26/07/2007.  The Tribunal did not find the appellant’s account of why this was not correct to be credible.  The Tribunal finds that there was a stable relationship.  There was financial interdependency as [D] was not paying for his accommodation but he was providing money for electricity.  The Tribunal considers that there was public acknowledgment that they were a couple.  In the circumstances The Tribunal finds that the appellant failed to disclose the material fact that she was living with [D] from 25/06/2007 and this caused the overpayment of benefits.”

7.    The decision notice continued by listing overpayments of jobseekers allowance for two periods, 6 March to 15 December 2010 and 3 March to 1 July 2011.  It also lists an overpayment of ESA between 16 December 2010 and 2 March 2011 and of income support between 25 June 2007 and 5 March 2010.  The second overpayment of jobseekers allowance and the overpayments of income support and ESA are presumably relevant to the other appeals.

8.    By letter dated 31 August 2012, referring specifically only to the appeal in SC102/12/02353, the claimant asked for a statement of reasons for the tribunal’s decision. It is plain from her letter that she was contemplating a possible appeal.  A note on the tribunal file indicates that a third stage reminder was sent to the judge on 6 December 2012, indicating that the request had plainly been received and communicated to the judge previously, and another reminder had been sent on 10 October 2013.  The claimant herself had again repeating her request for a statement of reasons by letter of 4 December 2013, but no statement of reasons was received by HMCTS from the judge dated 29 July 2014.  It was issued to the claimant on 31 July 2014, a week short of two years after the date of the decision.  No apology or explanation appears to have been offered for the delay.

9.    The statement of reasons identifies only cases SC/102/12/2352 and 2353.  The statement of reasons notes that the claimant had requested in only in respect of 2353 while the tribunal administration had logged it as being in respect of 2352.  It continues by stating that the two appeals had been heard with the three other appeals identified in the decision notice.  She went on to state she was not sure whether the request for the statement related only to the overpayment decision in 2353 or also the outcome decision.  Bearing in mind that the issue with which she was dealing seems to have been relevant to all the decisions, and that there was a single decision which she had given, I am unclear why she did not consider that the claimant may have been wanting a statement of reasons for the whole of that decision, and, if in doubt, why she did not ask.  She also gives no indication that, when writing the statement of reasons two years after the decision she had before her either her own notes of the proceedings or a copy or transcript of the recording of the proceedings.

The delay and its consequences

10. To take two years to produce reasons for a decision in a case which lasted at most one afternoon with a file of under 250 pages is extraordinary.  I note that the document bundles for all five cases were stated by the judge to have been before her when she wrote the statement of reasons but the only issue dealt with was the question whether the claimant was living together with D as a married couple, and there is no suggestion that there was anything in any other bundle on this issue beyond what was in the file before me.

11. The question of such a long delay in giving a decision was considered by the Court of Appeal in Bond v Dunster Properties Ltd., [2011] EWCA Civ 455.  The delay there, in a commercial case, was 22 months.  The case had been heard over about 10 days in three tranches, beginning on 16 July 2007 and finally concluding on 6 June 2008.  Judgment was given on 16 April 2010.  Giving the leading judgment, Arden LJ began by pointing out that “This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances.  She described delays of that order as lamentable and unacceptable.  She pointed out that an unreasonable delay of that kind reflected adversely on the reputation and credibility of the civil justice system as a whole and reinforced the negative images which the public could have of the way judges and lawyers performed their roles.  Agreeing with her, Lord Neuberger MR stated that a serious delay in giving judgment, particularly when it is not explained or even apologised for, is a species of denial of justice.  “The judiciary”, he stated in paragraph 118, “has a duty to minimise such delays, both in number and duration, and, where such a delay occurs, the litigants are entitled to expect an apology, and, if there is one, an explanation.”  The absence on the part of the judge of either an apology or an explanation, if there was one, in the present case is unacceptable.

12. Nevertheless, a delay, even of that length, does not automatically invalidate or undermine the judgment although it must cause the appellate court to look very critically at the judgment (see per Lord Neuberger MR at paragraph 119).  At paragraph 7 of her judgment.  Appeals to the Court of Appeal are not only on points of law but also on questions of fact.  The present appeal is only on a point of law.  Some of the observations of the Court of Appeal as to the appropriate approach to challenges to findings of fact are not material therefore to this decision, but I note that there is an additional test stipulated in paragraph 7 of the judgment of Arden LJ that “If the reviewing court finds that the judge’s recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion.”

13.  At paragraph 12, Arden LJ went on to state that

“The standard to be applied by this court on review of a judgment which has been seriously delayed was helpfully summarised by Lord Carswell giving the opinion of the Board in the Privy Council case of Boodhoo v A-G of Trinidad and Tobago [2004] 1 WLR 1689, 1694.  He explained that [Goose v Wilson Sandiford [1998] TLR 85] provides and example of where:

“…delay may have so affected the quality of the decision that it cannot be allowed to stand.  It may be established that the judge’s ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid.”

14. In Bond v Dunster Properties Ltd, the Court of Appeal concluded that despite the delay the judgment could be relied on and dismissed the appeal.  Lord Neuberger MR explained why at paragraph 119, when he stated:

“I agree with Arden and Longmore LJJ that it is clear from the contents of the judgment, the grounds on which the judge decided the issues, and the full and clear notes which he made, that the long delay in producing the judgment is not a good ground for allowing Mr. Bond Senior’s appeal…”

15. The representative of the Secretary of State has also referred me to a recent decision in this tribunal of Judge Nicholas Paines QC in CA v Secretary of State [2013] UKUT 168 (AAC).  In that case there had been a hearing before the First-tier Tribunal on 18 January 2011.  A statement of reasons had been requested on 3 March 2011 but because of administrative error within the tribunal, which was not the fault of the tribunal judge, the statement of reasons was not produced until November 2011.  At paragraph 26 of his decision, Judge Paines observed:

“Given that First-tier Tribunal judges have heavy workloads, the ability of a tribunal judge to produce an adequate statement of reasons will (it seems to me) depend much more on the comprehensiveness of the tribunal judge’s note of the tribunal’s reasoning and conclusions than on his or her ability to to recollect unrecorded details of the reasoning at the time of writing the statement of reasons.!”

16. I note that when producing the statement of reasons, the judge had explained and apologised for the delay (see paragraph 27 of Judge Paines’ decision).

17. In the present case, as I have already indicated, (1) there is no indication in the statement of reasons or elsewhere that the judge took a single note at or immediately after the hearing, or, if she did, that she had those notes before her; and (2) there is no indication that she had available or used the recording of the proceedings, or any indication of what was said at the hearing by the claimant, who had previously been invited to attend to give evidence and answer questions. In addition, the delay in this case is more than twice that in the case before Judge Paines.

18. I have considered whether I ought to seek further information from the judge as to whether she had taken and retained notes of the evidence before her, or of the reasons for her decision beyond those in the decision notice, or whether she had called for and used the record of the proceedings.  These proceedings have, however, already been seriously delayed by her and I do not consider it to be dealing fairly and justly with this case to cause further delay by seeking information which, if positive, one would expect to have been provided in the statement of reasons.  In addition, there is no requirement pursuant to the Senior President’s practice statement to keep a digital recording for longer than 6 months, so that now, nearly 3 years later, it may well no longer be available.

19. Had the failure to produce the statement of reasons been drawn to the attention of a district tribunal judge even at a much earlier stage before it was in fact produced, the judge would have been obliged to treat its continuing absence as a serious procedural irregularity and to have considered whether it was in the interests of justice to set aside the decisions in all five appeals.  I consider it highly probable that at least a continuing failure without reasons to produce the decision ought to have led to a decision that it would be in the interests of justice to set aside the decision and have the appeal reheard.  At this stage, however, with a statement of reasons having been produced, I must consider whether it or the decision notice discloses an error of law.

20. With regard to the decision notice omitting reference to one of the appeals, it appears to me that this was a slip which could be corrected as an accidental omission.  With regard to the statement of reasons, it plainly does not purport to be a statement of reasons for any decisions except the two decisions relating to the 2010 jobseekers allowance overpayments.  The main issue in all the cases appears to have been the dates, if any, between which the claimant and D were living together as a married couple.  There does, however, appear to have been a subsidiary issue as to the amount of overpayment of income support where no indication has been given of the reasons for this part of the decision or of the manner in which it was to be recalculated.

21. The claimant, who has been unrepresented in seeking permission to appeal and in pursuing this appeal, has contended that she has been prejudiced by the delay in producing the statement of reasons in that D has died in March 2014 and so cannot give evidence for the appeal, that if they had been a couple they could have claimed much higher benefits, that D spent his money on drink and smoking, and that her friend at the hearing had done calculations and had evidence as to D’s earnings but was not asked by the tribunal for his comments.

22. None of these points give rise to any point of law.  An appeal can only be brought on a point of law.  If D had evidence to give, he should have done so at the hearing.  There is no explanation why he did not do so.  Similarly with the friend, unless the tribunal was told that the friend had relevant evidence to give, it had no reason to ask the friend to comment or produce documents it knew nothing about.  Also, the question was not how much D was earning at any relevant time, but when he was earning.  Evidence as to how much he earned would not be relevant as long as he was employed except perhaps to the limited question whether he had moved in because he had nowhere else to go.  Nor is the way in which D spent his money on drink and cigarettes relevant, although as I comment below the way in which he claims to have spent it on his own food and washing materials may be.  D’s receipt of working tax credits on which the claimant relies, simply shows that he was working, or he would not have qualified for those credits.  There also appears to me to be ample evidence, identified by the tribunal, to entitle it to conclude that the claimant and D were prepared to lie if it suited them.

23. The essential issue was whether they were living together as a married couple.  The tribunal found, for good reason, that they began living together in June 2007.  I appreciate the claimant denies this and claims that D only moved in after the death of his father in 2009, but there was evidence to support the conclusion to which the tribunal came.  There is no error of law in its conclusion.

24. Where I have more difficulty is in deciding whether the tribunal properly approached the question whether they were living together as husband and wife.  The only relevant public acknowledgment was said to have been the one holiday they took together at some uncertain date in or around 2008 at about the time of her 40^th birthday.  The only evidence of financial support was that the claimant was providing D with free accommodation.  Household expenses do not appear to have been shared except for electricity where D is said to have made a contribution to cover his usage.  There is even evidence (see for example at p.20-6 of the file) that D bought his own food and his own “washing stuff”.  That, if true, is hardly consistent with him living with the claimant as a married couple.  There are no findings in respect of this, although there is a finding that he paid no rent and contributed to the electricity, a limited finding which suggests that the tribunal had come to no conclusion as to any other sharing of resources or had accepted the evidence of the parties in that respect.

25. There is also the evidence that D had moved into the claimant’s property because, following the death of his father, he had nowhere else to go and that he could not afford to rent..  I have some doubt about that account both because D’s evidence, unsupported by a death certificate, was that his father had died early in 2009, and because D might have been expected to claim housing benefit to pay the rent.  Nevertheless, it is a matter that may have been explored at the hearing which had been directed.

26. While the claimant and D may be wholly unreliable witnesses for the reasons given by the tribunal, it was still necessary for the tribunal to assess the nature of their relationship in the light of all the evidence and the credibility or otherwise of the explanations offered for D moving in and staying with the claimant. 

27. Given the extraordinary and unexplained delay in the production of the statement of reasons and the absence of any record on the file (for example a copy of the digital recording) of what was said at the hearing, or of any indication from the judge that she had considered either that recording or any notes she had kept, I have concluded that there is sufficient to conclude that the tribunal may have erred in law in failing to consider all the relevant evidence and that there is inadequate material before to enable me to ascertain what issues were explored at the hearing and what was said there.  The combination of these matters leads me to conclude that the statement of reasons is inadequate and thus in error of law and I must set aside the decisions to which it relates.

28. It is also inadequate in that it is quite clear that although the claimant was only referring to one of the decisions under appeal before the tribunal, it was the same issue which affected all the decisions and to which the decision and statement of reasons was directed.  The tribunal ought to have treated her request as one for a statement of reasons in respect of all five of the decisions dealt with by the tribunal at the hearing and covered (mentioned or not) in the decision notice.  If in any doubt, the judge should have checked when asked for the statement of reasons.

29. I therefore construe this appeal as an appeal from the tribunal’s decision in all five appeals, and set it aside in respect of all five appeals. I remit all the appeals to be reheard at an expedited hearing.

(signed) Michael Mark

Judge of the Upper Tribunal

30 April 2015