Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CG/3549/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal disallows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Wakefield on 16 May 2014 under reference SC008/13/05740 did not involve any error on a material point of law and therefore the decision is not set aside.

 

This decision is made under section 12(1) and 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007

 

 

REASONS FOR DECISION

 

 

Introduction

 

1.                   This appeal concerns an overpayment of carer’s allowance (“CA”). The slightly unusual aspects of the appeal concern the age of the overpayment, which dates from 16 April 2001 to 12 September 2004, and the dates when the relevant Secretary of State decisions were made in respect of the overpayment and the adjudication of the appeal therefrom. 

 

2.                  The overpayment decision was made by a Secretary of State decision-maker on 4 September 2004. This superseded a decision dated 17 June 1999 awarding the appellant CA from 14 June 1999 on the basis of a relevant change of circumstances occurring in June 2001 (the appellant had earnings above the CA earnings limit), with the consequence that the appellant had not been entitled to CA from 16 April 2001. However, the decision that the overpayment (in fact only part of it) was recoverable from the appellant – made pursuant to section 71 of the Social Security Administration Act 1992 - was not made until nearly three years later, on 5 January 2007. 

 

3.                  A further delay then arose in respect of the appeal against the recoverable overpayment decision. The appellant had sent a letter to the CA Unit dated 11 April 2007 which it was accepted the CA Unit had received. The 11 April 2007 letter had referred to an earlier letter and an appeal form which the appellant said he had sent to the CA Unit on 6 March 2007. Neither of these documents had been received by the CA Unit. However the respondent accepted the letter of 11 April 2007 as being a valid (albeit late) appeal against the decision of 5 April 2007.  There was then a yet further, near five year delay before this letter was recognised or activated as an appeal.  The reasons for this delay are not now material. It seems the appellant, having had a series of telephone conversations with the respondent’s then Debt Management Centre, either considered matters were continuing to be investigated or that the overpayment had been resolved in his favour. The issue only then resurfaced when a County Court order for the unpaid overpayment made its way to the appellant at his new address, and he took matters up again with the CA Unit in Preston in 2012.

 

4.                  It was by this route that the appeal eventually came to be decided by the First-tier Tribunal in May 2014, it having been adjourned part-heard on 14 February 2014.

 

Issue

 

5.                  The broad issue with which this appeal is concerned is how a First-tier Tribunal should approach an appeal where the decision under appeal is many years earlier and the events giving rise it are even older.  For example, the earnings in issue in this case stretched back to April 2001, which by the time of the First-tier Tribunal’s decision on the 16 May 2014 (“the tribunal”) was more than 13 years earlier.

 

6.                  A more particular issue on the appeal is what role, if any, article 6 of the European Convention on Human Rights (“ECHR”) has on such appeals, and in particular the guarantee in article 6 of a determination of civil rights “within a reasonable time”. It was not in issue before me that the phrase “determination of… civil rights” in article 6 encompasses appeals to the First-tier Tribunal under section 12 of the Social Security Act 1998 against decisions of the respondent.

More Background

 

7.                  I need not trouble to record in this decision the statutory provisions governing the earnings limit for CA as this was all accepted. The respondent’s case as to the level of the appellant’s earnings at the relevant times was based on HMRC’s National Insurance recording system in respect of the tax years 2001/2002 and 2002/2003.  The appellant initially disputed, in a letter in March 2012, that his earnings had exceeded the relevant earnings limits on the material dates but later accepted that his earnings were over that limit, and no issue was raised on this point on the appeal before me. Nor was it disputed that the appellant was under an obligation to notify the CA Unit when his earnings increased and/or exceeded the earnings limit.

8.                 The central thrust of the appellant’s eventual case against the overpayment being recoverable from him under section 71 of the Social Security Administration Act 1992 was that he had in fact told (or, to use the language of section 71, disclosed to) the CA Unit when his earnings were above the earnings limit.  This argument, however, did not appear until relatively late in the appeal proceedings (and by “proceedings” I mean the arguments raised by the appellant going back as far as 2007). Initially, as I have set out, the appellant’s case was that his earnings were not in excess of the statutory limit.  As set out in the CAB’s letter of 19 July 2012 this point was repeated, but in addition it was said that payment of CA had come to an end in 2004 when the appellant had recognised his earnings were in excess of the allowable figure and had informed the CA Unit of this fact and returned his CA payment book.

 

9.                  In response to these grounds of appeal, the respondent set out in writing the basis on which he argued that the earnings were in fact in excess of the relevant earnings limit at the material times in 2001/2002 and 2002/20003.  That submission also argued that there was no evidence in the CA Unit’s clerical records of the appellant having notified it of his earnings from employment(s) in 2001/2002 and 2002/2003.  The respondent further submitted that the first the CA Unit became aware of the appellant’s excess earnings from these employments was when, on 31 December 2002[1], it received the evidence from HMRC’s National Insurance recording system in respect of the tax years 2001/2002 and 2002/2003.

 

10.              This was the position of the arguments before the First-tier Tribunal at its first hearing of the appeal on 14 February 2o14. It was at this hearing that the appellant put forward explicitly his case that he had told the CA Unit of both of his employments and his earning in 2001 and 2002. He also raised a separate ground of appeal, namely that he had sent the CA payment book back to the CA Unit in March 2002 and so had received no payments of the benefit after that date.  Unsurprisingly given this last point, the First-tier Tribunal adjourned the appeal and asked the CA Unit to provide evidence of payment of CA to the appellant after March 2002. 

 

11.               The respondent then provided a further response. This drew attention to page 25 of the original bundle of appeal documents which, the respondent argued, showed the dates when order books or payment books had been issued to the appellant. It was argued that this evidence showed that only one order book had been returned uncashed and this was the one covering the period from 16 August 2004 to 2 January 2005.  The Secretary of State’s further response also pointed out that the CAB’s letter of 19 July 2012 on behalf of the appellant had asserted that the CA had continued until 2004.

 

12.              The appeal came back for its final hearing before the same tribunal on 16 May 2014.  The above contradictions in the appellant’s case were put to him by the tribunal, especially why the CAB had represented on his behalf that he continued to get CA until 2004 when on the last occasion the appellant was before the tribunal he had said through his then representative that he had stopped being paid CA and had returned the CA order book in 2002.

 

13.              The tribunal dismissed the appellant’s appeal and found the overpayment up to 15 January 2013 was recoverable from the appellant as he had failed to disclose at the times relevant to the recoverable overpayment that he was in employment earning in excess of the earnings limit for CA.  In its short statement of reasons for its decision, covering one side of A4 paper, the tribunal recited in short form the above history, noted that the CA Unit had no record of having been informed of his earnings in 2001 or 2002, and concluded:

 

“The appeal was refused. Having accepted that his earnings did exceed the CA limit, the appeal can only succeed if the appellant can satisfy the Tribunal that he notified the respondent that he was working. Although he claims that he did the Tribunal found his evidence to be vague and unconvincing.  It also felt that he had attempted to muddy the waters by claiming not to have received CA after March 2002.  Furthermore the letter from the CAB, written on behalf of the appellant, states that the appellant only informed the respondent that he was working in 2004, which is at odds with what the appellant claimed at the hearing.”

 

14.              It was at this point that Kirklees Law Centre came on the scene to assist the appellant. It raised three main grounds of appeal.  

(i)                First, the Law Centre argued that the tribunal had erred in law in its approach to the appellant’s evidence that he had informed the CA Unit by telephone of his earnings.  It argued that the respondent ought to have provided the tribunal with information as to the procedures and mechanisms in place at the relevant time for recording of telephone calls. Reliance was placed on Commissioners’ decisions CSB/347/1983 and R(SB)10/85.

 

(ii)             Second, in relation to the appellant’s claim that he had returned the CA order/payment book in March 2002, it was argued that notwithstanding the entries on pages 25 and 26 the tribunal had erred in law in not making findings of fact on whether the CA order books were cashed after March 2002 by the appellant.

 

(iii)           Third, it was said that the delay in the appeal proceedings had breached the appellant’s right to a fair hearing under article 6 of the ECHR.  In particular, it was said it was unreasonable and unfair to conclude that the appellant’s evidence was “vague” and he did not have a fair hearing under article 6.

 

15.               Permission was refused by the First-tier Tribunal but was given by Upper Tribunal Judge Hemingway.  Judge Hemingway considered it was arguable that the tribunal had erred in failing to properly take account of the very extensive passage of time between the relevant events occurring and the appeal being heard when concluding that the appellant’s evidence was “vague and unconvincing”.  Judge Hemingway also considered it arguable that the tribunal had not properly explained this conclusion.

16.              The Secretary of State then filed submissions not supporting the appeal and the Law Centre filed submissions in reply. Judge Hemingway directed an oral hearing of the appeal, particularly to allow the article 6 arguments to be explored.  That hearing took place before me in Leeds with the appellant represented by Mr Power from the Law Centre and the Secretary of State by Mr Cooper, solicitor. Prior to the hearing Mr Power filed a skeleton argument on behalf of the appellant.

 

Discussion and Conclusions

 

17.               I will take each of Mr Power’s arguments in turn. I do not consider any of them establish that the tribunal erred materially in law in the decision to which it came.

 

Records of telephone calls made

18.              This ground was that once the appellant had asserted that he had contacted the CA Unit by telephone and told them of his earnings at all relevant times the onus shifted to the Secretary of State to produce more comprehensive evidence than had been produced as to the record keeping in place at the time for evidencing such telephone calls, and the tribunal erred in law in not seeking that evidence from the Secretary of State before deciding this appeal.

 

19.              As with all the grounds of appeal, there is in my judgment an air of unreality about this argument on the facts of this case.  I do not consider reference to who holds the onus of proof in such a case is a useful starting point for the analysis here.  It is doubtful following the House of Lord’s decision in Kerr –v- DSD [2004] UKHL 23; R 1/04(SF), whether the burden of proof will amount to a decisive adjudicatory criterion in most cases. In any event, if it is to have any value that value will usually only come once all relevant evidence has been gathered and weighed. Then if the evidence is genuinely equally balanced on both sides, who holds the burden of proof may have some useful application.

 

20.             The issue before the tribunal was whether it was satisfied on the evidence before it that the appellant had failed to disclose his earnings to the CA Unit between the relevant dates in 2001 and 20o2. The tribunal had positive evidence before it that the appellant had not done so. This was in paragraph 35 in Section 5 – The Response of the Secretary of State’s written appeal response to the First-tier Tribunal in which is was stated that:

 

“…in this case a full search of the CA clerical records has not revealed any evidence that the [appellant] contacted the CA Unit at any point concerning his employments….” 

 

To the same end there was also the evidence that it was only when the HMRC evidence became available to the CA Unit at the end of 2002 that it became aware of the employments. 

 

21.              It also needs to be emphasised that at the stage when the appellant first expressly raised his having notified the CA Unit of his employments by telephone in 2001 – before the tribunal’s first hearing on 14 February 2014 – he was represented by a welfare rights adviser from Kirklees Benefits Advice Service and no issue was raised at that point about the above quoted search having been inadequate nor was the telephone recording system from 2001 to 2002 asked to be evidenced.  In fact at that hearing the appellant also asserted, again for the first time as far as I can see, that he had returned the order book to the CA Unit after March 2002. In this context it was therefore unsurprising that on adjourning that hearing the tribunal only sought evidence from the respondent about payment of CA after March 2002 (which I return to below).

 

22.             The tribunal was only obliged to deal with issues raised by the appeal: see section 12(8)(a) of the Social Security Act 1998. On the face of the appeal grounds, including those advanced by the Kirklees Benefits Advice Service for the appellant at the first hearing, no issue was raised expressly about the adequacy of the CA Unit’s telephone recording systems in 2001 or 2002 or the need for the tribunal to investigate that issue. But even where an issue is not expressly raised, if an issue is “clearly apparent from the evidence” then the section 12(8)(a) obligation will apply: see Mongan –v- DSD [2005] NICA 16; R3/05 (DLA) (expressly endorsed on this point by the Court of Appeal in England and Wales in SSWP –v- Hooper [2007] EWCA Civ 495; R(IB)4/07).  However as Mongan makes plain, section 12(8)(a) does not impose a duty “to exhaustively trawl the evidence to see if there is any remote possibility of an issue being raised by it” and “[w]hether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case. Likewise, the question of how far the tribunal must go in exploring such an issue will depend in the specific facts of the case. The more obviously relevant an issue, the greater will be the need to investigate it.  An extensive enquiry into an issue will not invariably be required….” (Mongan at paragraph 17).

 

23.             Even had the accuracy of the CA Unit’s system for recording telephone calls been raised the tribunal would not, however, have been obliged to call for evidence of the recording systems, as the above quotes from Mongan show. All section 12(8)(a) of the Social Security Act 1998  requires a First-tier Tribunal to do is consider an issue raised by the appeal. How a tribunal considers the issue is a matter for the tribunal to determine based on the relevance of the issue raised to the appeal before it, and (in terms of an evidential issue raised) the strength of other relevant evidence and the likelihood of evidence gathered on the issue raised assisting in resolving a contested issue of fact.

 

24.             The first point at which the need for telephone records was raised was by Mr Power in his arguments once the proceedings before the First-tier Tribunal had concluded. The tribunal cannot be criticised, or said to have erred in law, for failing to address a submission that was not made to it.  For the argument to succeed it must therefore be based either on an argument that on the facts of this case such any enquiry was called for or that in any case where an allegation is made of telephone contact the Secretary of State has to produce records of telephone record keeping. Neither argument can succeed, in my judgment.

25.              The first fails because it amounts really to an attempt to have the Upper Tribunal re-evaluate the evidential worth of the evidence, which is not its role in exercising its error of law jurisdiction (save where it is being argued that the tribunal’s assessment of the evidence or fact-finding was perverse in the Wednesbury sense, which is not being argued here).

 

26.             I have set out the key evidence from the Secretary of State’s side showing that no telephone contact had been made by the appellant in either 2001 or 2002 about his jobs and earnings.  However there is also the evidence of the appellant. This consisted most obviously of his assertion to the first tribunal hearing that he had made such telephone contact. Little more detail was provided by the appellant to contextualise this alleged contact (e.g. whether he spoke to a man or a woman, why he wasn’t asked to put the contact in writing, when exactly he made the contact). I have already noted that at the stage this evidence was given no submission was made to the tribunal seeking the CA Unit’s records for noting telephone calls or the system in place for doing the same in 2001 to 2002.

 

27.              In addition to this direct evidence of the appellant as to telephone contact, there was also indirect evidence of his bearing on this evidence and its likelihood of being accurate.  I cannot comment on the appellant’s demeanour before the tribunal and whether he was vague and unconvincing, as I was not there. But as a matter of record his case on the appeal had changed over time from his not having earned too much at all, through his having returned the order book to the CA Unit in 2004 and telling them at that time that his earnings were too great to qualify for CA, to his case that he had told the CA Unit of his earnings in 2001 and had returned the order book in 2002.  These cases are all in important respects different and could not all be true. Importantly, but self-evidently, the appellant’s initial claim that his earnings in 2001 and 2002 did not in fact exceed the relevant CA earnings limit was inconsistent with him needing on his own case to disclose anything and therefore with his later claim that he had made good disclosure in 2001.  

 

28.             The tribunal was in my judgment entitled to take account of these contradictions in the evidence and arguments put forward by the appellant when determining whether the appellant’s evidence of disclosure of his earnings was accurate. And given this and the totality of the other evidence before the tribunal (including especially the evidence quoted at paragraph 20 above), I do not consider the tribunal can be said to have erred in law in not calling for the respondent to produce evidence of its record keeping in respect of telephone calls.

 

29.             Putting the point bluntly, on the evidence before the tribunal, including the view it took of the appellant’s evidence, the available evidence did not get to the point where the telephone record keeping of the CA Unit would have been relevant in determining the appeal as the tribunal was entitled to conclude on the evidence as it stood that the appellant’s assertion that he had made disclosure was neither credible nor accurate.

 

30.             The same considerations also lead me to reject any argument that the tribunal breached section 12(8)(a) of the Social Security Act 1998 in not considering the telephone records. In the first place, applying Mongan, I am not satisfied that this was an issue raised on this appeal. (I deal below with whether it is automatically an issue on all such appeals.)  Even if it were an issue raise by the appeal, however, in my judgment it was entitled to be subject to the shortest consideration given the other evidence pointing against the appellant having in fact made any disclosure, and therefore the tribunal did not err materially in law in not addressing this issue in its reasons.

 

31.              This then leaves an argument that as a general rule, and regardless of all other evidence in an individual case, evidence of telephone record keeping by the respondent ought to be provided, or sought by the First-tier Tribunal, in all cases where an assertion is made that telephone disclosure was made. I can see no warrant for such a general rule. It cuts against the perspective that the First-tier Tribunal should decide the appeal on the basis of the evidence before it, including the view it takes of the strength of an appellant’s claim that he did make such telephone contact, and also runs counter to the holistic view of decision making propounded in Kerr.  This is not to downplay the force of the obligation on the Secretary of State as laid down in rule 24(2)(e) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“TPR”) to provide grounds for opposing the appellant’s case or his obligation under rule 24(4)(b) of the TPR to provide the First-tier Tribunal with copies of all documents relevant to the case.  But even here the focus is on the appellant’s case and documents and argument relevant to that case. Moreover, even though the telephone disclosure argument was not made by the appellant until relatively late in the day, the Secretary of State in his original appeal response had provided evidence of there in fact being no record of any relevant contact (including, it must be assumed, telephone contact).

 

32.             The high point of Mr Power’s argument for a general duty to provide evidence of the respondent’s record keeping of telephone calls made to his offices is the decision of Mr Commissioner Edwards-Jones in CSB/347/1983. This was also an overpayment case and it too concerned a claimant who said she had made disclosure by telephone of the relevant evidence at the correct time.  The error of law into which the appeal tribunal fell was in holding that the disclosure had to be made in writing and it was on that basis that the appeal tribunal’s decision was set aside.

 

33.             However, CSB/347/1983 also addresses an argument made by the then named ‘benefit officer’ about the burden of proof. The gist of the what the Commissioner said about this was that it was for the benefit officer to prove by proper foundations that there was “no official record of disclosure by the claimant”, that “mere assertion” of the same was plainly insufficient to discharge the burden of proof, further that this deficit would not be cured by an assertion that a “search has been made for a written record and none can be found”, and therefore it was incumbent on the benefit officer to put before the appeal tribunal “the best evidence he can upon each ingredient in the chain of substantiation”. The Commissioner concluded that:

 

“….it would at least be practicable to put forward a copy of any material instruction and written statement by a responsible officer at the relevant local office at the material times dealing with [points such as whether contemporary records are made of telephone calls and then attached to the claimant’s file, and the systems in place at the relevant times allowing for this to be done, so that the absence of such a written report on a claimant’s file would have a certain probative value]” 

 

34.             It is argued that this statement of legal principle, if it is such, was approved by a Tribunal of Commissioners in paragraph 7 of R(SB)10/85. I am not sure that that is correct. The key issue with which R(SB)10/85 was concerned was whether a set-off for benefit that ought to have been awarded if the true facts had been known could be made against the amount of benefit which had been awarded on the basis of the incorrect facts.  The Tribunal of Commissioners (one of whom was the Commissioner in CSB/347/1983) also directed that disclosure to the unemployment benefit office could constitute adequate disclosure to the then separate DHSS, and in that context made reference to the new appeal tribunal to which the appeal was remitted directing itself properly as to the relevant law and practice as indicated in, inter alia, CSB/347/1983. No question of telephone disclosure seemingly arose in R(SB)10/85 and the need for evidence of recording systems  is not immediately apparent on the facts in that case. (It might have related to the proof of disclosure having been made to the unemployment benefit office, though this unstated and again is unclear.)  However, the support of R(SB)10/85 is not needed if CSB/347/1983 is laying down a point of general principle that ought still to be followed in respect of proving a lack of telephone contact.

 

35.              I do not, however, consider that CSB/347/1983 on this point carries any force of general legal principle in terms of social security adjudication now, even if it did have such force in 1983. I have already referred to Kerr but it is worth setting out what it said in terms of general legal principle attaching to social security adjudication (at paragraphs 61-63):

“Ever since the decision of the Divisional Court in R v Medical Appeal Tribunal (North Midland Region), Ex p Hubble [1958] 2 QB 228, it has been accepted that the process of benefits adjudication is inquisitorial rather than adversarial. Diplock J as he then was said this of an industrial injury benefit claim at p 240:

"A claim by an insured person to benefit under the Act is not truly analogous to a lis inter partes. A claim to benefit is a claim to receive money out of the insurance funds . . . Any such claim requires investigation to determine whether any, and if so, what amount of benefit is payable out of the fund. In such an investigation, the minister or the insurance officer is not a party adverse to the claimant. If analogy be sought in the other branches of the law, it is to be found in an inquest rather than in an action."

What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.”

36.             It is true that Kerr was concerned with a claim for benefit and so has to be read in that context. However  the Court of Appeal in Jeleniewicz –v SSWP [2008] EWCA Civ 1163; R(IS)3/09, considered the cooperative process vouched for in Kerr extended to a claimant providing  information in his or her possession relevant to whether the conditions of entitlement were no longer satisfied.  And in a different context, the decision in R(IS) 1/05 rejected an argument that Kerr meant that contrary inferences ought to be drawn against the respondent if he had (routinely) destroyed forms in his possession which may have assisted a claimant in establishing entitlement to an offset on an overpayment appeal.

 

37.              What Kerr and these subsequent authorities show, in my judgment, is that it is a misplaced exercise to rely on a party establishing the burden of proof that rests on them at the start of the evidence gathering exercise.  The relevant evidence has first to be gathered and it is only if that the evidence, having been assessed for relevance and cogency and  weighed accordingly, is genuinely neutral (in the sense of each side cancelling one another out) that recourse to who bears the onus of proof may be needed. This does not mean, however, that in an overpayment case the Secretary of State does not need to put forward an evidenced and credible case showing why a claimant ceased to be entitled to benefit and that the cause of the claimant continuing to be wrongly paid the benefit was his failure to disclose information material to entitlement or misrepresented such material information. But what that credible case will be will depend on the facts of the individual case and the relevant evidence available to the Secretary of State. It is not something which can be subject to a set of a priori immutable rules as to evidence.

 

38.             Take this appeal. The Secretary of State’s case was in essence (i) that based on the HMRC’s records of earnings the appellant in 2001 and 2002 had earned above the CA earnings limit and so had not been entitled to the CA paid to him in those years, and (ii) the contact from HMRC was the first the CA Unit knew of the appellant’s earnings and  having searched their available records they could find no evidence of the appellant having contacted them in either 2001 or 2002 to tell them of his earnings.  To borrow a phrase from CSB/347/1983, I do not see why, if believed, this was not a proper prima facie case for the Secretary of State to put forward showing that the appellant had been overpaid and such overpayment was recoverable from him.

 

39.             I accept that “mere assertion” (the quote and underlining are both from CSB/347/1983) that “there is no record” of telephone contact in the relevant respondent’s office may not amount to credible evidence if it is no more than mere assertion. However even here I struggle with the characterisation of “there is no record” as no more than mere assertion.  It seems to me that the problem here lies in the view taken in 1983 by the social security commissioners of submission writers and presenting officers from the (then) DHSS. There are two aspects to this.

 

40.             First, as pointed out by Commissioner Jacobs (as he then was) in paragraph 17 of CIS/4064/1999:

 

“[CSB/347/1983 was a decision] given when Commissioners had recently been given jurisdiction in supplementary benefit cases. They were not impressed by the standard of adjudication that they saw in the decisions of the tribunals dealing with those cases. The comments [in CSB/347/1983 about the need to evidence the systems within the respondents’ offices for recording telephone calls] must be understood against the background that (i) they were not familiar with the Department’s procedures and (ii) they wished to instil a proper approach into adjudication by tribunals. Almost two decades later, tribunals know the standards they have to meet and Commissioners are more ready to accept that matters of Department practice are well known without evidence or findings….” 

 

On this basis Commissioner Jacobs refused to criticise the tribunal for failing to make findings of fact on the evidence from the respondent’s department as to the system for recording letters and the possibility of the “disclosure” letter allegedly sent by the claimant in that overpayment case having been misfiled. It is my judgment noteworthy that Commissioner Jacobs did not view the relevant “comments” from CSB/347/1983 as laying down a rule of law. Indeed earlier in CIS/4064/1999 the Commissioner had criticised the use by the Secretary of State of comments made by another Commissioner (in CIS/178/1994) about matters of evidence and the balance of probabilities in respect of letters which are posted reaching their destination as laying down a rule of law. Commissioner Jacobs (rightly in my view) said this was not so: it was matter of fact on the evidence in each individual case whether a letter posted was received. That applies with equal force in my judgment to the view of the evidence expressed in CSB/347/1983.  

41.              Second, it seems to me that the view expressed in CSB/347/1983 about statements made by the respondents’ submission writers and presenting officers was based on a then view of their functions which is no longer true.  This was addressed most clearly by (by now) Upper Tribunal Judge Jacobs in Walsall MBC –v- PL [2009] UKUT 27 (AAC), where he said (at paragraphs 4 to 10):

 

“The officer who wrote the submission for the tribunal stated: ‘On 17 December 2007 the decision of 15 November 2004 and all subsequent decisions were revised.’ What was the status of that statement?

The Social Security Commissioners and their predecessors said that statements by submission writers, decision-makes and presenting officers were not evidence, unless it was based on personal knowledge. See, for example, what the Tribunal of Commissioners said on the evidence of a presenting officer in R(SB) 8/84 at paragraph 25(6). This appears to be based on the presenting officer's status at the hearing: see the decisions of the same Commissioner in CSB/420/1981 and CSB/13/1982. As the Commissioner said in CSB/582/1987 at paragraph 9:

‘9. … the position of the adjudication officer/presenting officer at the social security appeal tribunal is not just that of a party but is that of an amicus curiae [friend of the court] ...’

 

As such, the officer was not seen as a witness. The submission writer was likewise acting in a non-contentious capacity. (Commissioners took a similar approach to statements made by a claimant's representative: see R(I) 36/61 at paragraph 18 and R(I) 13/74 at paragraph 9.)

 

With respect to those Commissioners, their approach was out of line with the modern approach to the law of evidence and with the theoretical basis upon which tribunals proceed in making findings of fact.

The law of evidence is now less concerned than in the past with exclusionary rules that prevent a court taking account of particular categories of statements or hearing from specified categories of person as witnesses. Nowadays, the approach is to admit evidence for consideration and to take account of any possible deficiencies when deciding the extent to which it is persuasive of the facts to be proved. That approach was becoming evident by at least 1861: see Cockburn CJ in R v Birmingham Overseers (1861) 1 B & S 763 at 767. It is now the accepted approach. By 1973, Lord Simon was able to say in Director of Public Prosecutions v Kilbourne [1973] AC 729 at 756 that relevance and admissibility ‘are frequently, and in many circumstances legitimately, used interchangeably’.

Moreover, the strict rules of evidence do not apply in a tribunal: see the decision of the Chief Commissioner in R(U) 5/77 at paragraph 3. All that is required is that the tribunal's findings of fact should be based on material that is logically probative of those facts: see the opinion of the Privy Council delivered by Lord Diplock in Mahon v. Air New Zealand [1984] AC 808 at 820-821. Evidence given by submission writers or presenting officers, even if hearsay, is as capable of being logically probative as evidence, whether or not hearsay, given by anyone else.

Moreover, in the context of a tribunal, roles are often not as clear cut as they are in a court. For example: a claimant may be accompanied by someone for moral support who also acts as representative and gives evidence that is in part derived from personal knowledge and in part based on information provided by the claimant. Likewise, the role played by a presenting officer may be less clear cut than decisions such as CSB/582/1987 suggest. There is no reason in principle why a presenting officer cannot give evidence, as was recognises by the Commissioner in R(SB) 10/86 at paragraph 5. There is no reason to draw a distinction, so far as admissibility is concerned, between evidence within the officer's personal knowledge and other evidence. If the officer relays statements made by another officer, what is said is nonetheless evidence. However, it is hearsay evidence and this may affect its probative worth: see R(SB) 5/82 at paragraph 9.

On the modern approach to evidence and to the nature of proof in a tribunal, the submission writer’s statement was evidence. It was also of some probative value. The writer may, or may not, have personally made the decision on 17 December 2007. If so, the writer could speak from personal knowledge. If not, the writer was able to report the contents of the computer records of the claim and was under a duty to report that information to the tribunal, as it was not accessible by the claimant: see Baroness Hale in Kerr v Department for Social Development [2004] 1 WLR 1372 at paragraph 62. Moreover, the writer had no reason to misstate what the records contained or to mislead the tribunal, as the local authority’s role in the proceedings is a non-contentious one: see Diplock LJ in R v Deputy Industrial Injuries Commissioner, ex parte Moore [1965] 1 QB 456 at 486.”

 

42.             I respectfully agree. The final paragraph quoted immediately above has a particular resonance on this appeal and, in my respectful view, undercuts the analysis in CSB/347/1983 suggesting that statements in what is now termed the Secretary of State’s appeal response, such as “there is no record [of any telephone contact” and, even more so, “a search for a written record has been made and none can be found”, were not capable of discharging the burden of proof on the then benefit officer to show there had been a failure to disclose. In my judgment, such statements can amount to evidence. The critical issue is what weight is to be attached to them, and that is for the First-tier Tribunal classically to assess. The blander or broader the statement, the less weight it might be given.  However in this case there was a specific evidential statement made in the appeal response that a full search of the CA Unit’s clerical records had been made and in my judgment that evidence was entitled to be given weight. The particular weight to be attached to it was a matter for the fact-finding tribunal to evaluate as part of its fact-finding jurisdiction, and does not here give rise to any error of law.

 

43.             Accordingly, in so far as the comments in CSB/347/1983 about telephone recording systems was laying down a rule of law, in my judgment it should no longer be followed.

 

Order books cashed by appellant after March 2002

44.             I can deal with this argument much more shortly.  It fails on the basic level that it raises issues of fact that were never put before the tribunal before it came to its decision.

 

45.              The argument made by Mr Power was that despite the evidence on pages 25 and 26 showing, respectively, a record of orders books issued to the appellant between April 2000 and July 2004 with only the last one marked returned and a date of 13 September 2004 for the first order in such a book being uncashed, the tribunal erred in law in not investigating the address to which the order books were in fact sent and whether the orders cashed between March 2002 and September 2004 had been cashed by the appellant.

 

46.             The problem with both arguments, which is even more acute than the first argument, is that no argument was made to the tribunal by the appellant even when he was represented that the order books might have been sent to the wrong address or that someone else was cashing the orders between 2002 and 2004. The submission made at the first hearing before the tribunal, when the appellant was represented, was that he had returned the order book in 2002 and had not been paid after March 2002. At that time pages 25 and 26 were in the appeal bundle and available to the appellant and his then representative. No issue was raised at that stage about wrong addressing or any orders subsequently encashed having been cashed by someone else. Nor was any request made for the CA Unit to supply the address to which it in fact sent the orders book or for the counterfoils on orders cashed after March 2002 to be produced to see who had signed for them. In these circumstances the issues of whether the order books had been correctly addressed and who cashed the orders after March 2002 were not issues expressly raised by the appeal. (And it was far too late for Mr Power to produce evidence with his skeleton argument of wrongful addressing. Even then that evidence dated from 2007 and so lacked any obvious factual relevance.)

 

47.              As I have discussed in relation to Mongan, however, in some cases an issue might be raised by the evidence even if not put in issue by a party. But I fail to see anything in the papers before the tribunal that began to raise either the wrongful addressing of the order books or another person cashing the order books as issues. To start with the accuracy of the appellant’s evidence was not of the highest order, most relevantly his initial argument that he had returned the order book in 2004 when contrasted with later claim of his having returned the order book in March 2002. In addition, he did receive the last of the order books, the one issued to him on 16 July 2004, as it was agreed he had returned this book, and on his own case he got the order books up until March 2002.  It is therefore not immediately apparent why the other order books might have gone elsewhere only for the last one to end up with the appellant, and I note that nothing was said by the appellant at either hearing about him having problems collecting his post between 2002 and 2004. Lastly, the effect of the evidence on page 26 would seem on its face to have been that orders from the last order book (i.e. the one that was then returned by the appellant) had been cashed, but on his own case the appellant had received this order book. 

 

48.             All in all I can identify no credible evidence that ought to have led the tribunal to take these as issues relevant to the appeal such as to lead it to seek further evidence from the respondent as to which address the order books had been sent and who had in fact cashed the orders.

 

Breach of ‘reasonable time’ criterion in article 6 ECHR

49.             I turn lastly to the argument on article 6 of the ECHR and what was said to be a breach of its “reasonable time” criterion for determining the appeal. For the sake of the argument I will simply assume that the appeal was not determined within a reasonable time. 

 

50.             This in effect was the argument for which an oral hearing had been sought on behalf of the appellant. What the argument lacked in presentation at the hearing it did not make up for in terms of merit.

 

51.               Although perhaps a back-to-front approach, an immediate difficulty with the argument was what remedy the tribunal could have afforded the appellant in deciding the appeal. The tribunal’s statutory function was to decide whether the overpayment of CA was recoverable from the appellant.  It had no power to award the appellant compensation for the effects of any delay, nor does the Upper Tribunal. Both tribunals are creatures of statute and derive their powers from statute, and neither tribunal has any statutory power to award compensation. Section 8 of the Human Rights Act 1998 (“the HRA”), however, only allows compensation or damages to be awarded by a court or tribunal which has the power to make such awards in civil proceedings: see section 8(2) of the HRA.

 

 

52.              It is true that a tribunal is a “public authority” for the purposes of the HRA and by section 6(1) of the HRA it is unlawful for a tribunal to act (or fail to act) in a way which is incompatible with a right under the ECHR.  Assuming therefore that there had been a breach of the “reasonable time” criterion, what would article 6(1) require the tribunal to do? One conceptual difficulty is that by the time the tribunal hears the appeal the delay, and thus the breach, has already occurred.  If the tribunal hears the appeal, is it acting incompatibly with an ECHR right? In my view, the answer to this question is no. This is for two different strands of reasoning.

 

(i)                First, as was pointed out in CSIS/460/2002, section 6(1) of the HRA is subject to section 6(2). The latter provides that section 6(1) does not apply if the public authority has to act in a certain way because of primary legislation. I am inclined to agree with Mrs Commissioner Parker (as she then was) in CSIS/460/2002 that when seized of a statutory appeal under section 12 of the Social Security Act 1998 in respect of a whether an overpayment is recoverable under section 71 of the Social Security Administration Act 1992, the First-tier Tribunal is required by unambiguous primary legislation to determine the appeal. Section 12(2) of the Social Security Act 1998 says the claimant shall have a right of appeal and the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 set out the mechanisms to ensure this right of appeal is made effective. The issue the tribunal is then required to decide on an appeal in respect of section 71 of the Social Security Administration Act 1992 is whether the Secretary of State shall be entitled to recover the overpayment and, if that is the case, the First-tier Tribunal is then obliged to determine the amount recoverable and the period of the overpayment (s.71(2)).  That language to my mind is inconsistent with the First-tier Tribunal not deciding an appeal because of unreasonable delay.

(ii)             Second, the premise for the above argument mischaracterises the “reasonable time” right in article 6(1) of the ECHR. As Lord Millett put it in Attorney General’s Reference No.2 of 2001 [2003] UKHL 68; [2004] 2 AC 72, at paragraphs 134-138:

“The fundamental distinction and the one which is directly relevant to the present issue is that a failure to comply with the other requirements of Article 6 puts the verdict itself in doubt. If the hearing is not fair, or is before a tribunal which is not independent and impartial or does not sit in public, then the correctness of the tribunal's decision is brought into question. The object of these rights is to secure to the individual a just determination of the dispute or criminal charge which is as far beyond challenge as human justice can make it.

But the object of the reasonable time guarantee is different. The failure to hold the hearing within a reasonable time does not in itself ("automatically") cast doubt on the verdict. There is nothing wrong with the trial and the verdict is not suspect. The defendant cannot and does not challenge the propriety of the verdict on this ground. He can only say in effect: "you were right to convict me, but you should have done so sooner." The vice lies in the delay itself, with all its harmful consequences to the defendant. This is what Article 6 prohibits and for which a remedy must be found. The vice does not lie in the holding of the trial itself; and it is a misreading of Article 6 to think that it prohibits it.

Thus I agree with Lord Rodger's statement, in paragraph 148, that "everyone has a right to have his case heard fairly, publicly and in a reasonable time. If his case is not heard fairly, there is a breach; if his case is not heard publicly, there is a breach; and if his case is not heard within a reasonable time, there is a breach". Where I part company with him is in his conclusion that the three rights and the three breaches are parallel. In my opinion the third right is very different. In that case, and that case alone, the conduct of the hearing itself may be beyond reproach. This difference ought to be, and in my opinion is, reflected by an Article which confers a positive right to a hearing (being a hearing which is fair and held in public within a reasonable time), and a right not to be subjected to a hearing which is unfair or held in private; but no right not to be subjected to a late (but otherwise irreproachable) hearing.

This is a matter of right, not remedy. It marks the scope of the reasonable time requirement; it is not concerned with the nature of the remedy for breach. This is amply demonstrated by the jurisprudence of the Strasbourg court, which habitually accepts a reduction of sentence as sufficient reparation for breach of the reasonable time requirement. A mere reduction of sentence could not sensibly be regarded as sufficient reparation for conviction and sentence after a hearing which should never have taken place. The Strasbourg court cannot, of course, quash the conviction; but if the national court has failed to do so one would expect it to require reparation to be made for the wrongful conviction and sentence. The only rational conclusion from its failure to do so is that the hearing and sentence themselves are not incompatible with Article 6, and that the only violation consists of the delay.

My Lords, it is essential to keep in mind the difference between what the state authorities ought to do and what they are entitled to do. They ought to hold the trial within a reasonable time, and if they fail to do so they commit a breach of the defendant's Convention rights. But they remain entitled to hold the trial after the reasonable time has expired, though they must make adequate reparation for their failure to hold it sooner; and they do not act incompatibly with the defendant's Convention rights by doing so.”

This reasoning in my judgment is just as applicable in tribunal proceedings: see Attorney General’s Reference No.2 of 2001 [2003] UKHL 68; [2004] 2 AC 72, at paragraph 21.

53.              The consequence of the above, as Upper Tribunal Judge Wikeley put it pithily in AH –v- London Borough of Hackney (HB) [2014] UKUT 47 (AAC), is that an appellant’s remedies as regards delay must lie elsewhere.  That approach, it seems to me, is entirely consistent with the approach of the Grand Chamber of the European Court of Human Rights in Cocchiarella –v- Italy (Application no. 64886/01), decided on 20 March 2006.  That case concerned delays in the adjudication of Italian social security benefits and the Grand Chamber saw nothing wrong in principle with the “reasonable time” breach under article 6(1) being remedied by way of a domestic compensation scheme. Nothing in Cocchiarella founds an argument that unreasonable delay leads to the  remedy of appeals for that reason alone being decided in favour of the appellants.  

 

54.              Furthermore, the argument that the tribunal should remedy the article 6 breach by simply allowing the appeal whatever its merits has been (rightly in my view) rejected in previous authority: see R(IS)1/04 at paragraph 24, CSIS/460/2002,  HJ –v- SSWP [2009] UKUT 47 (AAC) at paragraph 36, AH –v- London Borough of Hackney (HB) [2014] UKUT 47 (AAC) at paragraph 12. and, to like effect, Attorney General’s Reference No.2 of 2001 [2003] UKHL 68; [2004] 2 AC 72, at paragraph 21. 

55.              Mr Power’s argument founded on the House of Lords decision in Magill –v- Porter [2001] UKHL 67; [2002] 2 AC 357. Or at least it founded on an article written about that decision. No copy of this article, let alone the decision itself, was provided to me or Mr Cooper, either before or at the hearing. That was unacceptable. The hearing in effect had been sought and granted to explore the article 6 argument. It was not just simple common courtesy but to aid the sensible use of the hearing that copies of an authority relied on ought to have been supplied by the party relying on it. If this was not reasonably possible, at the very least copies of the article relied on ought to have been supplied or, if even that was not possible, a properly reasoned explanation provided in advance to say why neither could be supplied, which may then have allowed the respondent and the Upper Tribunal to obtain their own copies of the authority.  The Upper Tribunal is sensitive to the fact that Law Centres and other advice agencies have limited resources.  But the cooperation called for in the “overriding objective” ought at least to have caused those acting for the appellant to explain in advance their difficulty (if this was the case) in providing caselaw for the hearing.

 

56.              Mr Power relied on Magill–v-Porter for the proposition that unreasonable delay of itself is sufficient to show a breach of article 6(1) of the ECHR whether or not there has been any actual prejudice arising from the delay. It is fair to say that paragraphs 87 and 108 of that House of Lords’ decision in Magill-v-Porter would seem to support this proposition. However, those statements of Lord Hope were, strictly speaking, obiter as it was found that the time the proceedings took in that case did not breach the reasonable time requirement in article 6(1) (see paragraph 114 of the decision). More importantly, however, the (majority) decision of the nine member House of Lords in Attorney General’s Reference No.2 of 2001 [2003] UKHL 68; [2004] 2 AC 72, in effect overrules this approach and holds that prejudice must be shown in addition to unreasonable delay in order for a breach of the reasonable time criterion in article 6(1) to arise such that criminal proceedings ought not to take place. To that extent it seems to me that HJ –v- SSWP [2009] UKUT 47 (AAC) was wrongly decided on this point.

 

57.              In any event, the argument made on behalf of the appellant could cope with this setback because, as I understood it, the argument was that the appellant had in fact been prejudiced by the delays. Moreover, recognising the difficulties I have outlined above in terms of simply allowing the appeal because of the delay, the argument in the end was that the tribunal had to exercise more care and be especially sensitive to the appellant’s difficulties in giving accurate evidence given the 13 years or so since the overpayments arose, and the tribunal was therefore too hasty in finding the appellant’s evidence “vague and unconvincing”.  

 

58.             Put this way however (and it seems to me that, for the reasons given above, the article 6 argument could only have purchase in this way), in the end this is really no more than an argument on the merits of the evidence.  The tribunal had to hear and decide the appeal and make the best it could of the evidence before it.  The tribunal was plainly aware of the very long time span of the events with which the appeal was concerned, and so did not disregard this as a relevant consideration.  True it is that it did not say that the events took place a long time ago and it had to therefore treat the appellant’s evidence with care and make due allowance for the time delays and the knock-on effect this might have on his evidence.  However, this was so obvious from the facts of the case that it didn’t need to be said and, just as importantly, I cannot conclude that the tribunal did not take account of this when assessing the appellant’s evidence.

 

59.              Difficult though it may have been, as I have said the tribunal had to determine the appeal on the evidence before it. Appeals can, however, quite commonly involve events that took place months or years before (see section 12(8)(b) of the Social Security Act 1998)  and involve appellants who may have particular difficulties in recalling past detail.  Overpayment appeals by their very nature are about times past. First-tier Tribunals are therefore well used to dealing with such appeals.  In this case, moreover, the appellant’s case was not, or was not consistently, that he was hampered in remembering what had occurred because of the passage of time. At the end of the final hearing he was recorded as saying, when asked when he telephoned the CA Unit to tell them of his earnings, “How am I supposed the know that, it’s 13 years ago(?)”. However at the hearing 3 months previously his case was that he had notified the CA Unit of his earnings at the relevant time, and that he had returned the order book after March 2002.  The latter statement in particular was a positive statement made by or on behalf of the appellant about what had occurred 12 years previously.

 

60.             Further, at a time a little nearer the recoverable overpayment decision – dated 19 February 2007 – the appellant was putting forward a positive case based on his own assessment of his earning in 2001 and 202 that he had not exceeded the allowable earnings limit for CA and so had not been overpaid at all. The appellant’s evidence and arguments, as I have already pointed, were not consistent with one another.  Regardless of this, however they were positive assertions made by the appellant as to what had occurred in 2001 to 2004. It was the tribunal’s function to assess that evidence.

 

61.              Even if, however, the appellant’s case had been that he simply could not recall what had happened in 2001-2004, there was still the evidence from the respondent’s CA Unit for the tribunal to evaluate. That evidence to recap was that (i) the appellant’s earnings in 2001 to 2004 were such as to disentitle him to CA (which the appellant (in the end) accepted), and (ii) their records showed no contact (telephone or otherwise) from the appellant about his earnings between 2001 and 2004. On its own in my judgment that was evidence which the tribunal was entitled to hold was probative of the overpayment being recoverable (none of the other constituent parts of establishing failure to disclose being in issue). In the end nothing in the appellant’s (contradictory) evidence robbed that evidence of its probative worth, or at least the tribunal was entitled so to find.

62.             I accept that the tribunal’s reasons could well have been more detailed. I also accept that it could have done more to explain why it found the appellant’s evidence vague and unconvincing.  It could, not should I stress, even have asked for records of telephone keeping from the CA Unit.  However on the appellant’s equivocal evidence it was perfectly entitled not to do so.  There was, however one looks at it, no material error of law in the decision to which the tribunal came.  The reasons it gave revealed adequately why the appellant had lost and that reasoning and the decision arrived at was properly based on the evidence before the tribunal.

Conclusion

63.             For the reasons set out above, this appeal is dismissed and the tribunal’s decision of 16 May 2014 stands as the determinative decision on the appeal.

 

 

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 30^th October 2015