Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. CTC/99/2015

ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal.  The decision of the First-tier Tribunal made on 6 October 2014 under number SC919/14/00606 was made in error of law.  Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.

Directions

1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

3. The parties should send to the relevant HMCTS office within one month of the issue of this decision, any further evidence upon which they wish to rely.

4. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 30 August 2013.  Any further evidence, to be relevant, should shed light on the position at that time.

5. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal.  It will not be limited to the evidence and submissions before the previous tribunal. It will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion 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

Introduction

1.         This appeal concerns a decision of the First-tier Tribunal confirming a decision of HMRC to end the appellant’s award of tax credits on the ground that she was not a single person.  The appellant had been living with her partner (Mr W), with whom she has a child. The appellant claimed that they had separated in late 2010.  The issue for the tribunal was whether at the relevant time they had separated or whether they were living together.

2.         I gave permission to appeal on 3 March 2015. The Secretary of State supports the appeal and submits that the tribunal’s decision should be set aside and remitted to the First-tier Tribunal for reconsideration.  The appellant has not objected to that proposal.

3.         The Secretary of State has not requested an oral hearing.  The appellant has asked for one “To have the opportunity to put my evidence and case across if needed”.  This is an appeal on a point of law and oral evidence is irrelevant.  I am satisfied that I can properly determine the case without a hearing and, particularly in the light of the Secretary of State’s support for the appeal, it would not be proportionate for me to direct an oral hearing.  The appellant will have an opportunity to attend the hearing before the new First-tier Tribunal in order to present her case.

Discussion

4.         In the light of the positions of the parties it is unnecessary for me to set out in detail the background to the case or the evidence and arguments.  It is sufficient for me to explain why I am allowing the appeal.

5.         The Upper Tribunal will be slow to interfere with the First-tier Tribunal’s findings of fact.  It may only do so if those findings were made in error of law.  This includes making perverse or irrational findings on material matters, which includes findings which are not supported by the evidence; failing to take into account material matters; or taking into account immaterial matters.  See R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9] – [11].

6.         The assessment of the credibility or plausibility of a witness’s evidence is primarily a question of fact for the tribunal. In HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 Neuberger LJ said, at [30], that  rejection of an account on grounds of implausibility must be done “on reasonably drawn inferences and not simply on conjecture or speculation”. In addition, a tribunal may properly draw on its common sense and ability, as practical and informed people, to identify what is or is not plausible.

7.         In Gheisari v Secretary of State for the Home Department [2004] EWCA Civ 1854 (with which Neuberger LJ agreed) the Court of Appeal emphasised that an account that is unlikely may nonetheless be true, just as a likely account may turn out to be untrue.  Faced with an account which a tribunal considers to be improbable, its task is to appraise the evidence and the individual who gave the evidence, and decide whether it is true – Gheisari at [12], [13] and [16].  It may not be necessary for a tribunal to carry out a strict two stage test (improbability followed by truth), but:

 “What would be wrong would be to say …. that because evidence is inherently unlikely it inevitably follows that it is wrong.  An unlikely description may, upon a consideration of the circumstances as a whole, including the judge’s assessments of the witness and any explanations he gives, be a true one.”

 (Pill LJ in Gheisari at [21])

8.         The above discussions were made in the context of asylum appeals, where inherent improbability may be particularly unhelpful because “[m]uch of the evidence is referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience.” (HK at [29]).  It follows that inherent improbability may be more helpful in cases where the evidence is closer to the experiences of the tribunal, but it will nonetheless only be a component of the overall task which is to decide whether a witness’s account did occur not whether it was likely to have occurred.  The general approach set out in HK and Gheisari is apt in cases such as the present.  I note that it was followed by the Court of Session Outer House in an appeal concerning a decision relating to the educational needs of a learning disabled child: G v Argyll and Bute Council [2008] CSOH 61 at [157].

9.         It also follows from this approach that it will generally be inappropriate for a tribunal to appraise evidence by reference to what a reasonable person would have done.  The question for the tribunal is what the individual in question is likely to have done, not what some other (hypothetical or actual) person would have done.  As both Sedley LJ and Pill LJ said in Gheisari, the fact-finder should appraise the person giving the evidence (paragraphs [13] and [21] respectively).

10.      Judged by reference to this guidance, the tribunal’s decision in the present appeal was made in error of law. The tribunal did not accept the appellant’s evidence because it considered that it was improbable.  It did so on the basis of what the tribunal would have expected a person in her position to have done, and in one instance the tribunal expressly applied the test of a “reasonable” person in the appellant’s position.  The tribunal did not, whether as part of a single fact-finding process or by considering the evidence in stages, consider whether the appellant’s account was true rather than improbable.  Had it done so, the tribunal would have had to consider matters such as the appellant’s particular circumstances and her explanation for her actions or those of Mr W, and would have had to assess what it was likely that she or he would have done.  Unfortunately, because of the underlying error in the tribunal’s approach, in a number of respects it either did not ask the appellant to provide an explanation for her actions and choices.

11.      The erroneous approach of the tribunal is manifest in its statement of reasons as follows:

a.          At paragraph 5i the tribunal said that neither Mr W nor the appellant would have allowed Mr W to use the appellant’s address for a range of personal and financial matters.  But this failed to take into account that the appellant said she did not know that he was using her address (the tribunal referred to that but made no finding on it).  Nor did the tribunal distinguish between what the appellant would have been likely to have permitted and what Mr W would have been likely to have done. Even if the appellant would not have been likely to have permitted him to use her address, Mr W may have found it convenient to do so particularly if (as the tribunal appears to have accepted) he was of no fixed abode. 

b.          At paragraph 5iii the tribunal said that the appellant would not have entrusted their daughter to Mr W if he was of no fixed abode.  This is an example of the tribunal applying its own view of how a person should or would be likely to behave rather than considering why the appellant acted as she did taking into account her circumstances and characteristics.  The tribunal did not ask the appellant to explain why she “entrusted” her daughter to Mr W. A person might well act in a way that the tribunal considers to be ill-advised.  In addition, quite apart from the foregoing, the tribunal’s approach appears to be relevant to the behaviour of a parent of a much younger child but it is difficult to see how the notion of the appellant entrusting the daughter to Mr W is relevant in this case because at the relevant time the daughter was in her late teens. 

c.          At paragraph 5vi the tribunal found that “an Appellant, who was paying for virtually everything, would not allow an ex partner, with whom there was no relationship, the option to continue using her address, as well as coming to see his daughter at his convenience….a reasonable appellant, would not allow a relationship to continue with someone, who they have no love for, when that relationship was wholly one sided (i.e. the Appellant was bearing the burden of all the costs and expenses yet her ex-partner was still using the address for all his activities).” Not only is the last factor inconsistent with the tribunal’s finding in paragraph 5v that Mr W contributed to household costs, but it applied an objective standard (“an appellant”, “an ex partner” and “a reasonable appellant”) rather than considering the circumstances of the individuals in this case.  The tribunal continued, “At the very least, the Tribunal found the Appellant would have secured her position by taking legal advice and protecting whatever rights she had. This was not a case of the Appellant seeking money. Rather, of her protecting the fact that she was effectively, as she says, doing everything and paying for everything, yet her ex-partner was still effectively there.”  There was no evidence about nor findings made as to the character or previous behaviour of this appellant nor why she did not take such action.  It was conjecture, apparently based on the tribunal’s view of what a “reasonable appellant” or some other hypothetical appellant would or should have done. In the context of alleged relationship breakdown, such an approach is particularly inappropriate as different people will behave in such markedly different ways and it is unrealistic to expect people to make choices according to some objective standard of reasonableness.

12.      Finally the Secretary of State has pointed out that the Equifax report (at page 19) shows an alternative address for Mr W.  This is relevant in two respects.  First, if Mr W was providing more than one address at the relevant time, it tends to support the appellant’s case that he used addresses at which he was not living. Second, it raises the possibility that Mr W did not use the appellant’s address when he applied for the loan in question.  In the light of this, it was unreasonable for the tribunal to rely on the Equifax report as showing that he lived with the appellant.

13.      In the light of these errors of law, I set aside the tribunal’s decision. I am not in a position to re-make the decision. There will need to be a fresh hearing before a new First-tier Tribunal. I have made directions above for that purpose.

Signed on the original Kate Markus QC

on 15 July 2015 Judge of the Upper Tribunal